Earl Latsha Lumber Co.

EARL LATSHA LUMBER CO. 429 them vote against the Petitioner, they will be taken to have indicated their desire to remain unrepresented, and the Regional Director will issue a certification of results of election to that effect. [Text of Direction of Elections omitted from publication.] Earl Latsha Lumber Co. and Local 776, International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Case No. 4-CA-3448. August 12, 1965 DECISION AND ORDER On June 2, 1965, Trial Examiner Arthur Christopher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs,' and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner .2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders 'The Respondent's request for oral argument is hereby denied because the record, in- cluding the exceptions and briefs , adequately presents the issues and the positions of the parties. a The Respondent excepts to an Order dated January 7, 1965, before the hearing by Trial Examiner Charles W. Schneider denying the Respondent' s motions to strike sub- paragraph 5(c) of the complaint and for a more definite statement. As the complaint conformed with the requirements of Section 10(b) of the National Labor Relations Act, as amended , and Section 102 15 of the Board' s Rules and Regulations, Series 8, as amended, revised January 1, 1965, we find no merit in this exception. 154 NLRB No. 30. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent, Earl Latsha Lumber Co., Harrisburg, Pennsyl- vania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : 1. Add the following at the end of paragraph 1(c) of the Trial Examiner's Recommended Order and at the end of the fifth indented paragraph in the Appendix attached to the Trial Examiner's Decision : except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959." Add the following as paragraph 2(b) to the Trial Examiner's Recommended Order, the present paragraph 2 (b) and those subsequent thereto being consecutively relettered : " (b) Notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Arthur Christopher, Jr., in Harrisburg, Pennsylvania, on February 10, 1965 , on complaint of the General Counsel and answer of Earl Latsha Lumber Co, hereinafter called the Respondent.' The issues litigated were whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . At the hearing the General Counsel, the Charging Party, and the Respondent were represented by counsel, and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to present evidence . At the close of the hearing the General Counsel and the Respondent argued orally and thereafter submitted briefs. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation, is engaged in the retail sale and distri- bution of lumber and building materials at its principal place of business located on R D. #2, Linglestown Road, Harrisburg, Pennsylvania During the past year the Respondent, in the course of its operations, sold and distributed products whose gross value exceeds $500,000. During the same period, the Respondent received directly from outside the Commonwealth of Pennsylvania goods valued in excess of $50,000. It is admitted, and I find, that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Local 776, International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America, hereinafter called the Union or the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. ' The charge was filed by the above-named Union on September 21, 1964. EARL LATSHA LUMBER CO. III. THE UNFAIR LABOR PRACTICES 431 A. The issues The principal issues in this proceeding are whether the Respondent (1) violated Section 8(a)(1) of the Act through the alleged conduct of Respondent's president, Earl D. Latsha, an admitted supervisor, interrogating employees as to whether they signed union cards, threatening them with layoffs and discharges resulting from Respondent's going out of business because of concerted activities of the employ- ees, and stating to Elwood Dietz, in the presence of other employees, that he was discharged because of his efforts to obtain overtime payments for Respondent's employees; and (2) violated Section 8(a)(3) and (1) by Latsha's alleged discharge of Donald Reinchenbach, Clair Swartz, Bright Dietz, Elwood Dietz, Willis Weaver, and Owen Gephart because they joined or assisted the Union or engaged in other union or concerted activities. B. The facts As stated above, the Respondent is engaged in the retail sale and distribution of lumber at its lumberyard. At all dates material herein, the Respondent em- ployed approximately 30 employees, including truckdrivers and yard employees. All these employees worked under the general supervision of Earl Latsha who was in overall charge of the operation. Willis 1. "Bill" Weaver was a truckdriver and had been employed by the Re- spondent about 10 years at the time of his discharge on September 17, 1964 2 On September 13 Weaver talked to Charles Gummo, an official of the Teamsters, about getting a union into the lumberyard. He obtained Teamsters authorization cards from Gummo, signed one, and the next day while in the lumberyard obtained the signature of Elwood Dietz, a yardman who had worked for Respondent about 3 years. Dietz also agreed to assist Weaver in soliciting the signatures of employees in the yard.' From September 14 through 16, Dietz obtained the signatures of Owen Gephart, Melvin Moore, Elroy George, and Bright Dietz, a brother of El- wood Dietz. All, except Bright Dietz, who signed his card at home, signed their authorization cards at the lumberyard. When the employees reported for work on the morning of September 17, Earl Latsha advised them that a meeting was to be held, it commenced in the office at approximately 7:15 a.m. Latsha spoke to approximately 25 yard employees who attended and began his talk by stating that the Respondent would have to commence paying the time and a half for overtime under the Fair Labor Standards Act. Latsha also stated that he did not intend to borrow money to pay the customary bonuses and that the employees would be harmed by the requirement that the Respondent pay time and a half for over- time. Elwood Dietz credibly testified that Latsha became "real angry" about that time and commenced a brief discussion of the "union subject." Thereafter he picked Dietz out of the group and directed him to punch his timecard and give it to him As Dietz was slow in complying, Latsha repeated his instruction for him to punch out. Dietz thereupon complied and asked why he was fired. Latsha declined to give him a reason but promised to do so later. The credible testimony of Donald E. Rheinchenbach, Owen Gephart, and Clair E. Swartz confirms Dietz's testimony as to what transpired at the meeting in all essential respects. Rheinchenbach testified that Earl Latsha said he had heard rumors that someone was trying to establish a union in the plant. Latsha stated that he would not tolerate a union, and would close the yard before he would have a union come in. Rheinchenbach further testified that Latsha also said that he had enough money to live on without operating the lumberyard. Gephart testified that Earl Latsha, after an opening remark about the state of his health, stated "I know somebody is trying to get a union in here. I don't see where it's going to benefit you." According to Gephart. Latsha then pointed to Dietz and said "You are the S B who started this thing. You are fired. Get your time card." Latsha thereafter stated that if it were necessary he could run the yard with four men and that he was not making any profit. Earl Latsha confirmed the testimony of Dietz, Rheinchenbach, Weaver, and Gephart as to certain matters discussed at the meeting, but in his account of the meeting did not testify to any reference by him to the Union or threatening to close the yard or about the remark to Dietz attributed to him. I credit the testimony of Dietz, Rheinchenbach, Weaver, and Gephart as they impressed me as being more forthright and trustworthy witnesses than Latsha who appeared to be somewhat evasive in his testimony. 3 All dates shown are 1964 except where otherwise indicated. 3 Weaver also asked Charles Howell, another yard employee, If he would assist in the distribution of the cards but Howell returned the cards given him to Elwood Dietz. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Latsha finished his talk, he told the employees, except Elwood Dietz, to return to work. Dietz remained in the dispatch office after the other employees had de- parted, and went to Latsha's office and again asked him what was the reason for his discharge. Latsha replied that he knew Dietz was "one of the instigators of this thing" and that Dietz should obtain his check from the girls. Thereafter, Latsha remarked "there's another one too" and pulled another timecard from the rack, turning it and Dietz's card over to his brother, Lee Latsha. Dietz further testified that Lee Latsha and Bill Getz, an office employee, were present during this conversation with Earl Latsha. Lee Latsha testified that he was present when Elwood Dietz was discharged. His testimony does not controvert that of Dietz. Getz did not testify. Latsha then left the office and upon his return about 15 minutes later, asked Dietz for the names of the employees who had signed union cards. Dietz refused to give Latsha the names. Earl Latsha testified that he asked no questions of Dietz or any other employee prior to his punching out. I credit Dietz's testimony over Latsha's for the reasons mentioned hereinabove. Earl Latsha testified, as set forth below, that he selected Dietz for dis- charge because he had failed to wait on customers. Lee Latsha corroborated his brother's testimony that Dietz had failed to wait on customers. Donald E. Rheinchenbach was employed as a yardman, and at the time of his dis- charge had worked for the Respondent more than 3 years. Rheinchenbach, as stated above, signed a union card on September 14. After the September 17 meeting ended, Rheinchenbach proceeded to his job in the yard. About 30 minutes later he was summoned to the office where Lee Latsha told Rheinchenbach that Earl Latsha left instructions for Rheinchenbach to obtain his timecard and punch out. About 15 minutes later Earl Latsha returned to the office and asked Rheinchenbach if he knew anyone who had signed union cards. Rheinchenbach answered that he did not know any such employees, and to Latsha's question whether he had signed a card. replied in the affirmative. Latsha thereafter said "okay, get your timecard, go up and get your check; you are done " Earl Latsha denied questioning Rheinchenbach or any other employee and testified Rheinchenbach. like Dietz, had been the subject of several customer complaints and, along with Dietz, has slept on the job. I credit Rheinchenbach's testimony and find that he was questioned by Earl Latsha in substantially the manner as to which he testified. Owen Gephart, a truckdriver who had worked for the Respondent more than 5 years, signed a union card on September 14. Gephart credibly testified that after the September 17 meeting, he made a scheduled delivery and, upon his return to the dispatch office, was told by Lee Latsha that Earl Latsha wanted to talk to him. Earl Latsha arrived about that time and told Gephart: "You are fired; punch your time card." Thereafter, Latsha asked Gephart several times whether he had signed a union card, and each time obtained a denial. He also asked who were the other employees who had signed union cards and Gephart disclaimed any knowledge as to who they were. Latsha nevertheless persisted in his questioning and obtained an admission from Gephart that he had signed a card after telling the latter that Gephart's wife had told him that Gephart had signed a card. Latsha thereupon told Gephart to go to the upstairs office and check out. Lee Latsha, Mike Margin, Ann Roberts, Elwood Dietz, and Don Rheinchenbach were also present during the conversation. Margio and Lee Latsha testified they heard Earl Latsha tell Gerhart to punch out but did not hear him ask Gephart any questions or explain to him why he was discharged As Gephart departed from the office he overheard Earl Latsha remark to someone behind the counter, "Pull Weaver's card, he's going too; he's one of the main leaders." A few moments later while picking up his lunch bucket from the truck parked in the yard, Gephart again was queried by Latsha as to who the other employees were who had signed union cards and Gephart ignored the query and gave no response. Latsha thereupon asked him, "What did you go and try to get a union in for anyhow)" Gephart replied that he did so in order to obtain more money. Latsha responded "I can't see where it would've gotten you anywhere; you was one of my best men I had working for me; I can't understand why you would go and do something like [that]". Latsha again asked Gephart who signed the union cards and the latter again refused to disclose the names. I credit Gephart's testi- mony concerning the conversations over Earl Latsha's testimony that he asked no questions whatever. The next day Gephart returned Lee Latsha's telephone call and was asked by him if Gephart would like to return to work. He replied that he would. Lee Latsha then stated that his brother was "all excited and upset" but he would see what he could do. The following day Gephart again talked with Lee Latsha by telephone and Latsha said he thought he could arrange to get Gephart back on the job but EARL LATSHA LUMBER CO. 433 that Gephart should see him in a week or two. Later Gephart was told by Harold Neiter, his brother-in-law and an employee of the Respondent, that Lee Latsba had asked him to inform Gephart that "Earl didn't want no man to hire back that he had fired." Lee Latsha admitted that he had asked Gephart if he wanted to come back to work, but testified that although Gephart was a good employee "at times" during the last months before the instant hearing, it appeared that he was not what he used to be. Neiter, a present employee, credibly testified that prior to delivering the message, but after Gephart's discharge, Lee Latsha told Netter that Gephart was a "pretty good worker." Earl Latsha testified that Gephart was selected for discharge because he was holding down a second job at a gasoline service station "so I figured he could make a living at the . . . station." Clair E. Swartz was employed as a lift operator and worked for the Respondent 8 years until his discharge on September 17, 1964. Swartz signed a union card either on Monday or Tuesday prior to his discharge and returned it to Elwood Dietz. About three-quarters of an hour after the September 17 meeting ended, Swartz saw Latsha in the warehouse building. Latsha asked him whether he had signed a union card. Swartz replied that he had signed one. Latsha thereupon replied, "All right, shut the lift off, go down and get your check." Swartz went to the office and punched out. I credit Swartz's version of his conversation with Latsha over the latter's denial that he asked any employee any questions before telling him to punch out. Earl Latsha testified that he discharged Swartz, whom he characterized "was a good employee at one time," because he was working on his farm at night and when he came to his job with the Respondent "he was of no value" and would sit around on the lift. Bright E. Dietz commenced work on March 20, 1964, and was employed as a yardman by the Respondent. After discussing the Union with his brother, Elwood, Bright Dietz signed a union card on September 16, 1964. Although he attended the September 17 meeting in the dispatch office, Bright Dietz, because of a hearing difficulty, heard very little of the discussion. After the meeting ended Bright Dietz went to his work location, tallying lumber being unloaded from a boxcar. Later that morning Earl Latsha appeared at the boxcar and asked Dietz whether he had signed a union card. Bright Dietz answered in the affirmative. Latsha replied "You're done; lay down the tally sheet." This conversation occurred in the pres- ence of John Perry, a truckdriver, who asked Latsha if he would keep Bright Dietz as he was a good worker. Latsha replied that Dietz "would have to go now." Dietz thereafter punched out Perry testified that he did not hear all of the conversation between Latsha and Bright Dietz, but did hear Latsha tell Dietz he wanted him to go with him and that he should leave his tally book. I credit Bright Dietz's version of his conversation with Earl Latsha over the latter's denial that he questioned any employee prior to telling him to punch out. Dietz was rehired within a week. Willis S. Weaver, employed by the Respondent as a truckdriver, remained at home because of illness on September 17 and did not report for work. The same day Moore and Gephart visited Weaver and told him that Earl Latsha had fired Weaver, Elwood Dietz, and Gephart. Later in the day Margio, the office clerk, brought Weaver his check and a letter from the Respondent which stated "We no longer need your services." No reason for his discharge was given in the letter. Earl Latsha testified that Weaver was selected for discharge because "he was of least value to him." He testified that Weaver had a second job as manager of a club and "worked when he felt like it and dragged along " Latsha further testified that Weaver would not work on Saturdays. Weaver testified that he worked about 50 hours each week for the Respondent and admitted that he refused to work on Satur- days. In this respect, Weaver further testified that Lee Latsha told him, about 4 or 5 months before the hearing date or sometime shortly before he was discharged, that Latsha would penalize Weaver for not working on Saturdays by requiring him to take Mondays off. The two remaining employees who signed union cards, Elroy F. George and Melvin H Moore, were not discharged. George and Moore both signed cards dur- ing the week of September 14. George, a witness for the Respondent, credibly testi- fied that about 2 or 3 days after the discharge of the other employees, Earl Latsha asked him whether he had a union card and he replied that he had a card. Nothing further was said. I credit George's testimony over Latsha's denial that he had questioned any employees concerning the Union. Moore, likewise called as a wit- ness by the Respondent, credibly testified that he picked up his union card at Weaver's house and tore it up the morning of the September 17 meeting. He 206-44G-66-vol. 154-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further testified that he sought to obtain possession of the card the night before the meeting because "I changed my mind. I saw where the union wasn't going to benefit me." C. The Respondent's defenses The Respondent contends that the discharges were motivated solely by economic considerations, precipitated by Earl Latsha's knowledge that the Respondent would be required to pay the minimum wage for overtime in excess of 42 hours as pre- scribed by the Fair Labor Standards Act. As a result, the Respondent was re- quired to economize by reducing the number of employees in his work force. Con- sequently, the Respondent asserts, the six alleged discriminatees were selected for discharge with the view of discharging those employees "who were not an asset to his organization in order to make . [it] more efficient." The General Counsel argues that the reasons for the discharges asserted by the Respondent amount to a pure pretext and that the underlying reason for the dis- charge of the six employees was the fact that they had signed cards on behalf of the Union and had sought to organize the plant. With respect to the defense that the discharge of employees was necessary in order for .the Respondent to be able to pay its overtime from September 3, 1964, as required by the Fair Labor Standards Act, Earl Latsha conceded that Rushin, the auditor from the Wage and Hour Administration, did not tell him he had to pay overtime. Indeed, Rushin, according to Latsha's testimony, advised him to wait before instituting the payments until Rushin had completed checking the Re- spondent's books. Despite this advice, Latsha testified that on the same evening while at home, he was thinking "why don't I start paying this right away; why wait till he's finished; it took him seven or nine weeks." The next day when he arrived at the plant, he authorized the payment of overtime, retroactive 2 weeks, or from September 3. About the time of the overtime payback, Earl Latsha held the September 17 meeting, discussed hereinabove, and commenced discharging the six individuals who formed the basis for the complaint herein. Lee Latsha testified that he was not consulted prior to the discharges. Nor was any evidence adduced to show that any other representative of management or any supervisor was consulted. Complaints by customers were the reasons asserted for the discharge of Elwood Dietz and Rheinchenbach, who worked in the "upper yard," together with allega- tions that these two men had been caught loafing and sleeping on the job. The reasons assigned for the termination of Swartz, the third employee who worked regularly in the upper yard, were that he refused to work on Saturdays and his efficiency on the job was impaired because he was operating a farm, with the result he "was of least" value to Respondent. Two contractor-customers of the Respondent-William H. Trumbo and R. D. Witmer-credibly testified as to several instances in which they were not properly serviced by Dietz, Rheinchenbach, and Swartz. Trumbo testified that on one occasion Dietz was disrespectful because customers had arrived during his lunch period.4 Three other complaints about poor service were made during the period from June through August, at least one month prior to the discharges, but did not identify the individual employees involved. President Earl Latsha and yard foreman John F. DeMarco testified that they talked to the employees about their alleged failure to perform their jobs satis- factorily and about loafing or sleeping on the job. The alleged discriminatees credibly testified that they never were given any individual warnings concerning their work performance. Although Earl Latsha testified there were "many com- plaints" about the employees in the upper yard , he failed in his testimony to fix the time such complaints occurred. The Respondent asserted further that Swartz, along with Weaver, were dis- charged because they would not work on Saturdays. Swartz credibly testified that he had a conversation with Earl Latsha about a month prior to his discharge con- cerning Swartz' failure to work on Saturdays. In response to Latsha's query as to why he did not work on Saturdays, Swartz testified that he told Latsha he had to work on the family farm and was solely responsible for it as his father had died recently. Latsha replied "Why didn't you tell me sooner and not leave him know about it?" Thereafter Latsha told Swartz if he had to engage in farming next summer he would have to lay him off "this winter." Weaver also credibly testified that Lee Latsha told him that if he did not work on Saturdays the Respondent would penalize him by requiring him to take Mon- days off. Nevertheless Weaver continued to refuse to work on Saturdays. * Respondent's yardmen had no fixed lunch periods. EARL LATSHA LUMBER CO. 435 The reason assigned for the discharge of Gephart was that he was employed at a gasoline service station and had a sufficient outside income. Nevertheless, as found hereinabove, the Respondent considered the reemployment of Gephart, who admittedly was a good employee, almost immediately after his discharge, although he was not actually reemployed. No reason was asserted for the termination of Bright Dietz, who was reem- ployed about a week after his discharge. Earl Latsha, however, testified that Dietz was picked "because I was laying that many off." D. Analysis and conclusions The United States Court of Appeals for the Second Circuit, in N.L.R.B. v. Great Eastern Color Lithographic Corp., 309 F. 2d 352, enf. 133 NLRB 911, stated: The issue before is is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities. The fact that the employer had ample reason for discharging them is of no moment. It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. If, for example, the employer had long contemplated discharging . for his in- veterate smoking in violation of plant rules, and his joining the union was merely the final straw, the discharge must be held to be improper. The principle enunciated by the court, quoted above, controls the disposition of this case. Assuming arguendo that the Respondent had grounds for discharge of all the employees except Gephart and Bright Dietz, it never considered the offenses sufficiently grievous to terminate their services until the union organizational cam- paign started, although complaints against the three men in the upper yard had commenced 3 or 4 months before and both Swartz and Weaver had consistently declined to work on Saturdays for a number of months before their discharge. The conduct of the Respondent is similar to that of the employer involved in Agwihnes, Inc. v. N.L.R.B., 87 F. 2d 146 (C.A. 5), wherein the court, affirming the Board's finding of a violation of the Act, said: We think . that the evidence supports the view the Board took, that to the light of his long service with petitioner, it was reasonable to conclude that the difficulties inherent in his case only became seriously insupportable to his employer when he became secretary of the Union, and that his discharge .. . was directed more at his unionism than at his peculiarities. According it is inescapable that the real reason for the discharges was the fact that the six employees had signed union authorization cards. This conclusion is supported by credible evidence that Earl Latsha revealed union animus in his Sep- tember 17 talk to the assembled employees and his interrogation of employees con- cerning their union activities. It is further buttressed by the fact that practically all the union adherents in the plant, six employees out of seven who still supported the Union on September 17, were selected for discharge. On the basis of the foregoing, on the credible evidence that all the discharges occurred within 4 days of the commencement of the Union's organizing campaign, and were made by Latsha without prior consultation with other supervisors, and involved employees whose work tenure extended, with one exception, from 3 to 10 years, I conclude and find that the Respondent, by discharging Donald Rhein- chenbach, Clair Swartz, Bright Dietz, Elwood Dietz, Willis Weaver, and Owen Gephart discriminated against them in their employment because of their union activities and membership, and thereby violated Section 8(a)(3) and (1) of the Act .5 I also conclude and find that the Respondent violated Section 8(a)(1) of the Act by interrogating its employees as to whether they had signed union cards, threatening to close the plant rather than have a union in the plant, and by dis- charging Elwood Dietz in the presence of the other employees because of his activi- ties on behalf of the Union.6 8 Certified Casting d. Engineering, Inc., 145 NLRB 572, 581-582; N.L.R.B. v. Electric City Dyeing Co, 178 F. 2d 980 (C.A. 3) enfg. 79 NLRB 872; A. P. Green Fire Brick Company v. N.L.R.B., 326 F. 2d 910 (C.A. 8) enfg. 140 NLRB 1067. 6 N.L.R.B. v. Irving Taitel, et al., d/b/a I. Taitel and Son, 261 F. 2d 1 (C.A. 7) ; Josiin Dry Goods Company, 118 NLRB 555, 586. 436 DECISIONS OI, NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and'commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policy of the Act. Bright Dietz, who was illegally discharged on September 17, was returned to his regular employment a week later. There is therefoie no occasion to order a reinstatement order for him. As the other five employees are still in discharge status, I shall recommend that Respondent offer them immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and that Respondent make them, as well as Bright Dietz, whole for any loss of earnings they may have suffered by reason of the discrimination against them by paying them a sum of money equal to the amount that they would normally have earned as wages from the date of the dis- crimination to the date of reinstatement, less his net earnings 7 The backpay with respect to all six employees shall include interest at 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. The Re- spondent must also be ordered to cease and desist from hereafter interrogating employees as to whether they have signed union cards, threatening to close the plant rather than have a union, and discharging employees in the presence of other employees because of their union activities. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discriminatorily discharging Donald Rheinchenbach, Clair Swartz, Bright Dietz, Elwood Dietz, Willis Weaver, and Owen Gephart, as found above, Re- spondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in exercising the rights guaranteed them by Section 7 of the Act, including the discharge of Rhein- chenbach, Swartz, Bright Dietz, Elwood Dietz, Weaver, and Gephart for engaging in union activities, interrogations and threats, and by discharging Elwood Dietz in the presence of other employees because of his union activities, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com-' merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that Respondent, Earl Latsha Lumber Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees about their union activities, threatening them with reprisals for engaging in such activity, or discharging employees within the presence of other employees because of their union activities. 7 F. W. Woolworth Company, 90 NLRB 289. EARL LATSHA LUMBER CO. 437 (b) Discouraging membership in the Union or any other labor organization by discharging or otherwise discriminating in regard to hire or tenure of employment of any employee. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act- (a) Offer Donald Rheinchenbach, Clair Swartz, Elwood Dietz, Willis Weaver, and Owen Gephart immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of their discharge, in the manner set forth in the section of this Decision entitled "The Remedy " (b) Make Bright Dietz whole for any loss of pay he may have suffered by reason of his discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its operation near Harrisburg, Pennsylvania, copies of the attached notice marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for Region 4 of the Board, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith .9 8 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." O In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, In writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor: Relations Board, and in. order to effectuate the policies .of the National Labor Rela- tions Act, as amended , we hereby notify our employees that- WE WILL NOT interrogate employees about employees' union activities in a manner constituting interference , restraint, and coercion in violation of Sec- tion 8 ( a)(1) of the Act. WE WILL NOT threaten our employees with reprisals for engaging in union activity . WE WILL NOT discharge employees within the presence of other employees because of their union activities. WE WILL NOT discourage membership in any union by discharging or other- wise discriminating in regard to hire or tenure of employment of any employee. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Elwood Dietz , Donald Rheinchenbach, Clair Swartz, Willis Weaver, and Owen Gephart immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other privileges, and make them whole for any loss of pay they may have suffered by reason of their discharge , together with interest at the rate of 6 percent. WE WILL make Bright Dietz whole for any loss of pay he may have suf- fered by reason of his discharge , together with interest at the rate of 6 percent. All our employees are free to become or remain members of any labor organi- zation. EARL LATSHA LUMBER CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify Donald Rheinchenbach, Clair Swartz, Elwood Dietz, Willis Weaver, and Owen Gephart if serving in the O.rmed Forces of the United States of their right to full reinvestment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612. Neuhoff Bros., Packers, Inc. and United Packinghouse, Food and Allied Workers of America, AFL-CIO. Case No. 16-CA-2322. August 12,1965 DECISION AND ORDER On June 17, 1965, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, granting the motion of the General Counsel for judgment on the pleadings, canceling the hearing scheduled herein, finding the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCul- loch and Members Fanning and Brown]. The Board has considered the Trial Examiner's Decision, the excep- tions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions indicated below 'Respondent contends that the bargaining unit improperly excludes certain employee categories and is therefore Inappropriate. As that issue was considered and fully litigated In the representation proceeding , Respondent is precluded, under established Board policy, from relitigating this matter in the unfair labor practice case, and we hereby find the unit set forth in the Trial Examiner's Decision to constitute the appropriate unit for purposes of collective bargaining herein. 154 NLRB No. 40.