Auburn Rubber Co., Inc.

AUBURN RUBBER COMPANY, INC. 301 All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named labor organization or any other labor organization. VERA LADIES BELT & NOVELTY CORP., Employer. Dated------------------- By------------------------------------------ -Representative) (Title) 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 pro- visions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. APPENDIX B NOTICE TO ALL MEMBERS OF LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, AFL-CIO, AND TO ALL EMPLOYEES OF VERA LADIES BELT & NOVELTY CORP., NEW YORK, NEW YORK 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 you that: WE WILL NOT act as the exclusive bargaining representative of any of the employees of Vera Ladies Belt & Novelty Corp., New York, New York, unless and until we shall have demonstrated our exclusive majority representative status pursuant to a Board-conducted election among the employees of the said company. WE WILL NOT give effect to the collective-bargaining agreement dated June 9, 1964, between Vera Ladies Belt & Novelty Corp., and ourselves, or to any exten- sion, renewal , or modification thereof. WE WILL NOT in any like or related manner cause or attempt to cause Vera Ladies Belt & Novelty Corp., its officers, agents, successors, and assigns to dis- criminate against any employees in violation of Section 8(a)(3) of the Act. WE WILL NOT restrain the employees of Vera Ladies Belt & Novelty Corp., by assaulting them, obstructing. or impeding employees from entering or leaving the company's premises or by obstructing or impeding supervisors or officials of the company from entering or leaving the company's premises. WE WILL NOT in any like or related manner restrain or coerce the employees of Vera Ladies Belt & Novelty Corp., in the exercise of the rights guaranteed in Section 7 of the Act. LOCAL 29, RETAIL, WHOLESALE & DEPARTMENT STORE UNION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) 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 members have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500. Auburn Rubber Company, Inc. and General Teamsters Industrial Employees, Local Union No. 292 and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Cases Nos. 28-CA-925 and 28-CA-927. December 33, 1965 DECISION AND ORDER On July 22, 1965, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 30. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in other unfair labor practices alleged in the consolidated amended complaint and recommended dismissal of those allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Decision, accompanied by briefs. -Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, 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 made by the, Trial Examiner 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 this case and hereby adopts the Trial Examiner's findings,2 con- clusions, and recommendations, as modified hereinafter. 1. While otherwise agreeing with the Trial Examiner's rationale for the Board not deferring to the arbitrator's award with respect to the unlawful discharge involved herein, we do not rely on that portion of his reasoning which is bottomed on the fact that the Rubber Workers, not a party to the existing collective-bargaining contract, had not agreed to be bound by the arbitration proceeding. We agree with the Trial Examiner that the arbitrator's decision, as it pertains to the independent Section 8(a) (1.) and (2) issues here, should not be honored for the reason that such issues were not submitted to the arbi- trator for adjudication and for the additional reason that such issues did not.involve any question of interpretation or application of the collective-bargaining agreement. 2. In agreeing with the Trial Examiner that the Respondent ren- dered unlawful assistance to the Deming Employees Association in violation of Section 8 (a) (2), we rely principally on the fact that, at the time Mrs. Randall played a leading role in the organization of the assisted union, she exercised supervisory authority by hiring job applicants. 3. In agreeing with the Trial Examiner that the Respondent dis- charged the six employees involved here because of their adherence 1 We hereby overrule the Trial Examiner 's refusal to accept in evidence the Respond- ent's Exhibits Nos. 1 through 4, being the collective -bargaining contract between the Respondent and the Teamsters and certain pleadings in a court proceeding and related documents referred to in the Trial Examiner 's Decision . They are hereby made part of the record in this proceeding . We have considered these exhibits in reaching our decision. . 2 In the absence of exceptions to the Trial Examiner 's findings , that the Respondent did not ' engage in independent unfair labor practices encompassed by Section 8(a)(1) other than those found , we adopt these findings pro forma. AUBURN RUBBER COMPANY, INC. 303. to the United Rubber Workers or activity on its behalf and thus violated Section 8(a) (3), we rely additionally upon undenied testi- mony by John Dietrich, which we credit, to the effect that, in the middle of February 1963 he was told by the Respondent's vice presi- dent, Myers, that he knew who was at'the meeting of the Rubber Workers and that the "layoffs" were because of union trouble and the coming election.- [The Board adopted the Trial Examiner's Recommended Order.] MEMBER BROWN, dissenting in part: While I agree with the majority in all other respects, unlike my colleagues I would give binding effect to the arbitrator's determina- tion that the alleged discriminatees were discharged for cause. It has been the policy of the Board to withhold its authority to deter- mine unfair labor practices and accept arbitration awards covering the same'subject matter "unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act." 3 In the instant case, the award was issued by an impartial third party on grievances originating with the dischargees, following a proceeding which conformed fully to the foregoing standards of acceptability. Where, as here, an award and the underlying procedure cannot be faulted under these standards, it is my belief-with due regard for the role of arbitration in furthering the national policy promoting industrial peace and stability through the collective-bargaining process-that the Board should defer to the judgment of the arbitrator and extend binding effect to the results of such voluntary settlement procedures. For these reasons, I would honor the instant award, as fully con- forming with the standards that the Board has, heretofore, regarded as determinative on that issue, and dismiss the Section 8 (a) (3) allega tions of the complaint. 3International Union, United Automobile, Aircraft and Agricultural Implement Work- er8 of America, AFL-CIO, Local 98 (International Harvester Company ), 138 NLRB 923, 927; and James B. Carey, Pres. of International Union of Electrical, Radio and Machine Workers, AFL-CIO v. Westinghouse Electric Corporation, 375 U.S. 261, 270-271. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended , herein referred to as the Act, was heard before Trial Examiner William J. Brown at Deming, New Mexico, April 5 to 9, 1965. The original charge of unfair labor practice had been filed in Case No. 28-CA-925 on March 7, 1963, by General Teamsters Industrial Employees , Local Union No. 292, herein referred to as the Teamsters ; the original charge in Case No. 28-CA-927 had been filed March 8, 1963, by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL- CIO, herein referred to as the Rubber Workers. Thereafter, under date of August 6, 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1963, the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 28, issued the original consolidated com- plaint herein. It alleged the commission of unfair labor practices defined in Section 8(a)(1), (2), and (3) of the Act, including the discriminatory discharge or layoff of, some 55 employees, on the part of the above-indicated Respondent, herein referred to as Auburn. Respondent's duly filed answer denied the commission of the unfair labor practices alleged and set forth certain affirmative defenses. Respond- ent separately moved for a stay of proceedings on the grounds that issues contained in the complaint were pending before the United States District Court for the Dis- trict of New Mexico. Under date of September 20, 1963, Trial Examiner Wallace E. Royster denied Respondent's motion to stay proceedings. Thereafter, the amended complaint and notice of hearing in these matters was issued January 22, 1965. It alleged, in addition to jurisdictional matter and super- visory status on the part of certain of Respondent's officers and employees, unfair labor practices in the nature of interrogation of employees concerning union activi- ties, promise of benefits in reward for refraining from union activities, threats of harm in the event one of the unions was successful in organizational efforts, domination and support of an organization known as Deming Employees Association, and the discrim- inatory discharge or layoff of six named employees in the period between November 1962 and February 1963. Thereafter Auburn filed its answer containing inter alia the affirmative defense that all issues had been adjudicated in an arbitration proceeding, this affirmative defense also being set forth in a motion to dismiss. At the hearing the parties 1 appeared and participated as noted above; they were accorded full opportunity to present evidence and argument on the issue. Subse- quent to the hearing the General Counsel, the Teamsters, and the Respondent filed briefs which have been fully considered. Upon the entire record herein, and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER I find, in accordance with the pleadings and evidence herein, that Auburn is a corporation organized under the laws of the State of New Mexico with its principal office, plant, and place of business in Deming, New Mexico, at which place it is engaged in the manufacture, sale, and distribution of rubber and plastic toys and related products. During the 12 months preceding issuance of the complaint, Auburn purchased goods having a value in excess of $50,000, and transported to its Deming plant directly from States other than New Mexico; during the same period Auburn manufactured, sold, and distributed products valued in excess of $50,000 and shipped from the Deming, New Mexico, plant directly to States other than New Mexico. The pleadings and evidence indicate, and Respondent does not contest, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The volume of interstate commerce involved is necessary and sufficient to warrant asser- tion of jurisdiction on the part of the Board. H. THE LABOR ORGANIZATIONS INVOLVED I find, in accordance with the pleadings and evidence herein, that the Teamsters and the Rubber Workers are labor organizations within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Auburn was incorporated in 1959 to operate on behalf of the village of Deming industrial properties which had theretofore been engaged in Auburn, Indiana, since 1910 in the manufacture and sale of various rubber and plastic products.2 The relo- cation of the Indiana properties in Deming was the result of a program instituted i No appearance was entered for the Rubber Workers ; Attorney Neumeyer appeared without objection , as counsel for alleged diseriminatees , all of whom reside in the area about Hatch , New Mexico , some 48 miles from Deming and about 36 miles from Las Cruces, New Mexico. 2Auburn appears to have a minimal capitalization and to be in effect a management company acting as operating agent for the village of Deming. AUBURN RUBBER COMPANY, INC. 305 by and among various Deming businessmen as a means of diversifying the economic potentialities of the area. Richard J. Hodson, who later became Auburn's president, appears to have been one of the leaders in this program of industrial expansion and to have played a prominent role in the enactment of enabling legislation and the acquisition of capital contributions from a group of some 2 dozen Deming business- men. Prior to the advent of Auburn to the Deming area there had been earlier like industrial relocations to Deming, Tilton Rocket and Hydrotest Company. In con- nection with the move of the Indiana properties to Deming the village of Deming issued $15 million of its revenue bonds of which $3 million class A first mortgage bonds were sold to the Central States Southeast and Southwest Pension Fund, a joint employer-union fund, all the participating employers having agreements with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America.3 Shortly after the establishment of Auburn at Deming, the Rubber Workers com- menced an organizational -campaign and filed a representation petition under the Act. The Teamsters intervened, were eventually certified by the Board, and entered into an agreement with Auburn on October 24, 1960, for term expiring December 31, 1962. During the pendency of that agreement, on May 14, 1962, the Teamsters and Auburn entered into a new 2-year labor agreement for a term to expire May 14, 1964. In the fall of 1962, the Rubber Workers organizational efforts increased and on October 12, 1962, the Rubber Workers filed a representation petition. On Janu- ary 28, 1963, the Board held the existing agreement with the Teamsters no bar because it was a premature extension of the earlier agreement and directed an election. Shortly prior to the direction of election an organization of Deming employees known as Deming Employees Association 4 had come into being and had secured, on February 11, 1963, recognition from Auburn as the exclusive collective- bargaining agent for office and clerical employees. On February 13, 1963, the Board denied the Deming Employees Association a place on the ballot in the pending election which was held on February 27, 1963.5 The Teamsters filed objections to the conduct of the election on March 6, 1963, and almost immediately thereafter filed the initial charge in the present case, a filing which was followed immediately by the Rubber Workers' filing of the charge in Case No. 28-CA-927. Thereafter sometime in April 1963 the Teamsters filed a suit in the United States District Court for the District of New Mexico seeking an order requiring Auburn specifically to perform the 1962 agreement which had been held by the Board to be no bar. Following Auburn's answer the Teamsters, on June 11, 1963; filed a motion for summary judgement. On August 6, 1963, the original complaint in the instant proceeding was issued and shortly thereafter, on August 12, 1963, the United States district court entered an order requiring Auburn to perform the terms of its agree- ment with the Teamsters. On August 20, 1963, Auburn and the Teamsters entered into an agreement to arbitrate certain issues, including discharges of employees ter- minated or laid off in the period between October 1962 and March 1963. From September 10, 1963, until sometime in mid-October 1963, arbitration hearings here held resulting in an award served on the parties on March"6, 1964. On January 5, 1965, the Rubber Workers' representation petition was withdrawn with approval of the Board and on January 22, 1965, the amended complaint in the instant proceeding issued. The complaint alleges various acts of interference in the period and a single instance of warning of shutdown of the plant if the Rubber Workers won and a strike if the Teamsters won the impending election. It also alleges the sponsorship, domination, and support of the D.E.A. through the agency of various officials and agents of Respondent. Finally, it alleges the discriminatory layoff. or termination of six employees in the period November 1962 and ending February 21, 1963. Issues as to the supervisory status of certain individuals were considerably dissi- pated by stipulations entered into at the hearing. We are concerned herein chiefly with Auburn's manufacturing operations which come under the general direction of Executive Vice President Max Myers,. a supervisor. In addition to Myers, the par- ties agree that the following are supervisors: Joe Gallegos; Weldon May, John Simp- 8 This $3 million indebtedness had been reduced by October 1962 to $2,660,000. 4 Herein referred to as "D.E.A." 5 The results (inconclusive) as follows : Rubber Workers 93; Teamsters 67; neither union 46; challenged ballots 51; approximate number of eligible voters 228. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, Art Dyer, Charles Hornett, Dick Loy, and Don Heuer, all of whom except for Personnel Manager Loy, worked at material times in Auburn's manufacturing operations. B. The arbitration proceedings as a defense As noted above the Teamsters filed their suit in United States District Court for the District of New Mexico sometime in April 1963. The complaint alleged the certification of the Teamsters, the execution of the agreement of May 14, 1962, the inconclusive results of the February 27, 1963, Board election, and a refusal of Auburn to honor the agreement from and after March 1, all culminating in a request for a mandatory injunction requiring Auburn to comply with the terms of the collective- bargaining agreement.6 Auburn thereafter filed its answer and on June 11, 1963, the Teamsters filed their motion for summary judgment.? On August 12, 1963, the court signed an order to the effect that Auburn specifically perform the terms and conditions of its agreement with the Teamsters and remit to the Teamsters moneys held as membership dues under the checkoff provisions of the agreement. The court ordered a further report of compliance at the expiration of 60 days from its August 12 entry.8 On August 20, 1963, Auburn and the Teamsters executed a written agreement to arbitrate, reciting that it was entered into pursuant to the court order of August 12. Designating Kenneth C. McGuinnes as arbitrator, the agreement stipulated that the grievances submitted embraced 59 individual discharges, each case allegedly con- trary to article XVI of the collective-bargaining agreement in reprisal for member- ship in and activities on behalf of the Teamsters or Rubber Workers. The arbitration agreement restricted arbitral matters to the 59 instances of dis- charge or layoff of employees; it did not purport to confer on the arbitrator'juris- diction to make an award concerning issues arising out of the organization or recog- nition of the D.E.A. or of the numerous instances of alleged employer interference, restraint, and coercion respecting employees' organization rights. Shortly before the convention of the arbitration proceedings, the Teamsters, by Attorney Guse, notified the Rubber Workers by letter dated August 28 of the forth- coming arbitration proceedings and asserting that the Rubber Workers or their coun- sel would be welcome as a participant in the proceedings. Under date of September 5, attorneys for the Rubber Workers replied that they had instructed the employees represented by them to fully cooperate in the arbitration proceedings but asserting that the Rubber Workers would not have a representative at the arbitration in view of the fact that they were not party to the court action. When the issue of the arbitration proceedings was urged at the outset of the hearing in the instant case as a bar to further consideration, I ruled, after full argu- ment from all parties, the arbitration as no bar to adjudication of issues not embraced within the scope of the agreement to arbitrate or any amendment thereof, and likewise no bar to adjudication of the questions of discriminatory discharge of employees who had, in effect, disaffiliated from the Teamsters 9 and had not partici- pated in the arbitration proceedings. The Respondent presented the testimony of Lawrence Parra, an occasional employee of Auburn who acted as an organizer for the Rubber Workers in its 1962 campaign, to the effect that he was given to understand by International Representative Rodriguez of the Rubber Workers that the so-called Hatch group 10 should cooperate in the arbitration. According to the testimony of Irene Serna, however, when Parra tele- phoned her with instructions to see to it that the Hatch group cooperated in the arbitration, she refused on the grounds that she would not cooperate in a Teamsters' O The complaint, while alleging a refusal to process grievances, nowhere alludes to arbitration. 7 The motion prayed generally for an order of specific performance and particularly for payment of escrowed membership dues. 8 The record indicates that the court was advised of the arbitration after conclusison of the hearing but before the award. Auburn did not appeal the order of summary judgment. 0 Each alleged discriminatee had, at hiring, signed checkoff cards for the Teamsters pursuant to the union-security provisions of the agreement with annual automatic re- newal provisions. These would not preclude the processing of their unfair labor practice cases. 10 See footnote 1, supra. Auburn's employees were initially recruited; in part, from areas outside of Deming. In addition to Hatch and Garfield, employees resided in Lords- burg (59 miles distant), Bayard, and Hurley (41 miles distant). AUBURN RUBBER COMPANY, INC. 307 proceeding. Parra then informed her that Rodriguez had instructed him to secure the cooperation of the girls. Serna further testified, however, and I credit her in these matters, that when she called Rodriguez the following day he denied having such a conversation with Parra. The reluctance and ultimate refusal of the Hatch group to participate in the arbitration is also indicated by the testimony of Marion Gonzalez, who, dubious of Parra's assertions that Rodriguez desired their coopera- tion, questioned Serna in this regard and was told by Serna that Rodriguez had not authorized Parra to solicit the cooperation of the Hatch group in the arbitration. Consuela Pina and Erlinda Pina also testified that they refused to participate in the arbitration proceeding because they did not want to be associated with the Teamsters' arbitration and because they had at that time given their sworn state- ments to the Board agent in the pending case. It appears from the arbitrator's decision, Respondent's Exhibit No. 14, that the arbitrator's refusal to find impropriety in the discharge or layoff of the six members of the Hatch group here involved, was based, in part, on the absence of testimony from them. The record leaves no doubt but that the six alleged discriminatees here involved were Rubber Worker adherents at all material times. While one or two of the Hatch groups made oral protest to a Teamsters' steward after their discharge, they never filed a written grievance nor were the prearbitration steps of the agree- ment observed as their discharges." The General Counsel vigorously contends that the arbitration urged as a bar to adjudication of the unfair labor practices in the instant case, fails to meet each and every one of the three standards set forth in the landmark Spielberg Manufacturing Company case, 112 NLRB 1080: (1) fairness and regularity on the face of the proceedings, (2) unanimous agreement of all the parties to be bound, and (3) a resultant award not clearly repugnant to the purposes and policies of the Act. I appraise the evidence in the instant case as insufficient to warrant a finding respecting fairness and regularity of the proceedings, or the compatibility of the award with the statute. It is sufficient that the Rubber Workers had not agreed to be bound by the award and had declined to participate in the proceedings. Although they may have, unsuccessfully, urged the alleged discriminatees to participate, in fact the alleged discriminatees steadfastly refused to participate on the grounds that they had, by the time of the convention of the arbitration proceedings, placed their cases in the hands of the General Counsel. I regard the arbitration and the resultant award as no bar to adjudication of the issues in the present case. It would appear on its face to be improper to withhold the Board's adjudicatory hand in a case where the ques- tion of interference with Rubber Workers' sympathies was arbitrated between the Company and the Teamsters. In this regard, it is quite clearly a gross exaggeration to say that the district court ordered arbitration of the issues herein adjudicated. C. Interrogation, promises, and threat The complaint alleges in paragraphs 9 through 12, inclusive, unfair labor practices in the nature of interference with and restraint and coercion of employees in their self-organizational rights under the Act allegedly engaged in by supervisory employ- ees of Auburn on various dates in February 1963.12 1. Interrogation concerning union matters Supervisors Joe Gallegos, John Simpson, Weldon May, Art Dyer, and Tommy Hickerson, and Personnel Director Loy 13 are alleged to have interrogated employees concerning their union membership, activities, and desires. The record is devoid of evidence relating to interrogation on the part of Simpson or Hickerson.14 With u The Teamsters' brief refers to "grievances filed in their behalf." 15 While the complaint does not allege surveillance or the creation of an impression of surveillance, General Counsel's brief appears to charge Auburn with this type of unfair labor practice, relying on the testimony of a nonemployee, John Dietrich, as to a con- versation with Vice President Myers and on the transmission of a letter (General Coun- sel's Exhibit 8) by Hodson to a business associate. These. create a suspicion but not proof of interference with employees. 18 Allegations respecting Loy were added by amendment to the complaint at the outset of the hearing. 14 The allegations respecting Hickerson were dismissed by me at the conclusion of the General Counsel's case. 217-919-66-vol. 156-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to Gallegos, the General Counsel called' as a witness Auburn employee Con= cepcion Terrazas, who worked under Joe Gallegos as her foreman but` who did not remember whether or not he discussed with her the matter of her `vote in the then scheduled election. Velma Whitehead, a factory employee, testified concerning a conversation with Foreman Weldon May a few weeks before the election but the conversation, according to her account, does not appear to embrace interrogation.15 She also credibly testified that in mid-February 1963, Personnel Director Loy asked her what the people were saying and thinking as to the election. With respect to alleged interrogation on the part of ` Art Dyer, the testimony of General Counsel's witnesses Vega, Antonia Nunez, and Irene Serna suffice to make. out instances of interrogation on the part of Art Dyer. Vega credibly' testified, in fact his testimony was undenied since Dyer was not called as a witness, that shortly before the election Dyer asked him how he would vote, and when Vega responded that he would vote for "no union," Dyer expressed his approval thereof. In like fashion Antonia Nunez testified as to a conversation at work-a few days before the election in which Dyer asked what she thought about the Union, who she was for, and whether Irene Serna was for the Teamsters. Antonia Nunez was a thoroughly credible witness and her testimony was not denied by. Dyer. Serna independently testified to a conversation with Art Dyer in the plant in, which Dyer asked her inten- tions as to voting in the forthcoming election. In accordance with the foregoing analysis of the evidence, I find that the allega- tions of the complaint are sustained with respect to alleged interrogation on the part of Dick Loy and Art Dyer; evidence is wanting to sustained alleged interrogation through the agency of Joe Gallegos, John Simpson, Weldon May, and Tommy Hickerson. 2. Promise of benefits to refrain from union activity While paragraph 10 of the complaint sets forth four specific 'allegations of prom- ises of benefits on the part of supervisory employees Dyer, Hickerson, May, and company President, R. J. Hodson, on specific dates in February 1963, General Coun- sel's brief refers to no testimony in support of the allegations other than that of Antonia Nunez concerning the conversation with Dyer referred to above, and to General Counsel's Exhibit No. 4. This latter is a letter sent to employees about 10 days before the election which assures them that they would not lose their benefits even if a majority voted "no union" and that rates would be raised on April 1 in accordance with the terms of the existing agreement. Particularly, in view of the assurances elsewhere contained throughout the letter of a willingness to abide by a majority choice, it cannot be concluded that this amounted to an unlawful promise of benefits. There remains for consideration the testimony of Antonia Nunez to the effect that at the termination of his inquiries above-referred to, Dyer said that he would guaran- tee her that everything would be perfect if she voted "no union." She-was a credible witness and Dyer did not testify. There is no doubt that this assurance, while rather vague and indefinite, was an improper attempt to influence her vote and hence an instance of proscribed interference within the scope of Section 8(a) (1). 3. Warning employees of adverse consequences of union success in the election Paragraph 12 of the complaint alleges that Art Dyer, on or about February 21, approximately a week before the election, warned employees that if the Rubber Workers won the forthcoming election the plant would be shut down, and if the Teamsters won there would be a strike. The sole witness with respect to these charges appears to be Antonia Nunez. She was a thoroughly credible witness and testified that a few days before the election, while at work, Dyer told her that if the CIO; i.e., the Rubber Workers, won the election the plant would be closed and if the Teamsters won there would be a strike. Dyer did not testify. I credit Nunez' testi- mony and find these allegations of the complaint sustained by it. General Counsel's brief also points to testimony of Velma Whitehead concerning utterances of Weldon May and that of Martin Vega concerning utterances of Charles Hornett. May is alleged to have said: "We can get along without the big unions . they can hurt you and me ...... ; Hornett is alleged to have said when notifying Vega of his discharge, "They are going to close the plant, anyway." It would appear difficult to construe Hornett's remark as a threat of shutdown as a reprisal for Rubber Workers' support. With respect to May's statement to Velma Whitehead, the obser- 15 See paragraph 3, infra. AUBURN RUBBER COMPANY, INC. 309 vation that the big unions could hurt is plainly an instance of interference which, while not alleged in the complaint was litigated at the hearing, and it also constituted an unfair labor practice within Section 8 (a) (1) of the Act. D. Sponsorship of the Deming Employees Association The constitution and by-laws of the Deming Employees Association appear to have been drafted on January 5, 1963, and executed by the organizers on February 6, 1963. The organizers were Joe D. Olsen, identified in the testimony as a plant elec- trician, Edgar Davalos, quondam steward for the Teamsters, and Fern Dull, who appears to have been a production employee of Auburn at times material to the- issues herein. - It appears om stipulation of the parti +' 4at John Reeve was the principal solicitor of inrmbers;zip in the D.E.A. The evidence indicates that up until Feb- ruary 1, 1963, John Reeve had been a foreman in the production department and on that date he was transferred to the job of expeditor in the methods and standards operation. The evidence also indicates Reeve secured the assistance of Betty Randles, Jean Grimm, and Alice Webb, office employees of Auburn, who secured the signa- tures of some 29 out of the 30 office employees. Solicitation occurred on company premises and, in fact, in the office of the personnel department. On February 11, Auburn recognized the D.E.A. as the exclusive collective-bargaining agent for office and clerical employees. As pointed out above the Board, on February 13, 1963, denied the D.E.A. a place on the ballot in the election. The key figures in the rise to prominence of the Deming Employees Association appear to have been Betty Randles and John Reeve. Betty Randles, Auburn's employment manager, appears to be a key figure in the initial employment and ulti- mate separation of Auburn employees, although the evidence is wanting to indicate that she has any supervisory functions in other respects. Betty Randles was aided by Jean Grimm, wife of Robert Grimm, a product development executive of Auburn, and secretary to Max Myer, executive vice president of the Company. Reeve's status appears to have been a key one in Auburn's operations of sufficient importance that Max Myer, on February 1, posted a notice in the plant announcing his transfer from production foreman to methods and standards as an expediter with the information that his new duties would require his working all three shifts. Reeve appears to have been the one to arrange for the preparation and distribution of authorization cards and to have presided at the initial organizational meeting of the D.E.A. which was held at Jean Grimm's home. The evidence, in short, with respect to the rise to power of the Deming Employees Association preponderates in favor of the conclusion that its success in securing an overwhelming membership among the office force and ultimate recognition from Auburn was attributable to the dominating influence of Reeve. As a former supervisor and one intimately associated with management operations, Reeve would inevitably carry into his D.E.A. organizational efforts the influence that goes with his intimate association with top management. The same can be said for Betty Randles who worked directly under the personnel officer, Loy, and would be naturally regarded by the rank and file as closely associated with employment, pro- motion, discharge, and discipline. In similar fashion the active participation of Jean Grimm, whose husband Robert Grimm held a high position in the company's methods and standards operations, could also be regarded as linked to Auburn's top management. In this regard see International Association of Machinists, Tool and Die Makers Lodge, No. 35 (Serrick Corp.) v. N.L.R.B., 311 U.S. 72. I find that the participation of Reeve, Randles, and Grimm in the organizational effrts of the D.E.A. could well be regarded by the rank and file as interference by Auburn management in the D.E.A. Their activities plainly have constituted man- agerrient support and assistance to the D.E.A. and I find that thereby Respondent enraged in the unfair labor practice defined within the Section 8(a) (2) of the Act and alleged in the complaint. E. The discriminatory discharges As summarized above, one of the principal issues in the instant case relates to the discharge of six Auburn employees. Two of these, Marion and Benito Gonzales were discharged about October 22, 1962, and the remaining four, Lillian Sanchez, Erlinda and Consuelo Pina, and Irene Serna were discharged in February 1963, prior to the election conducted on February 27. The General Counsel contends that these employees were discharged because they were among the Hatch group of employees which constituted the "hard core" of the 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rubber Workers' strength. The General Counsel also contends that consideration of each individual instance of discharge will even more forcefully establish the dis- criminatory character thereof. Respondent's contention is that each individual named in the complaint was properly discharged for cause. In this regard a reso- lution of the issues have been made somewhat difficult by some confusion of Respondent's reasoning with respect to whether the discharges were, in fact, indi- vidual discharges for individual shortcomings, or whether they were, as some evi- dence might indicate, pursuant to a general reduction in force with consideration .being given to individual shortcomings. At the outset, I reject the General Counsel's analysis of the evidence as establish- ing knowledge on the part of Auburn and its representatives that the Hatch group constituted the hard core of the Rubber Workers' strength. General Counsel's reli- ance upon General Counsel's Exhibit No. 3, a letter written by Hodson to a Deming business man, which contains the expression of Hodson's understanding that the out- of-town employees [i.e. those from Hatch, Bayard, and Hurley] constituted the hard core of strength for the Rubber Workers since 1960, was, according to the credited testimony of Hodson, based upon information given him by Rubber Workers' Rep- resentative Rodriguez a day or two after the February 27 election. I do not find' General Counsel's Exhibit No. 3 sufficient to establish knowledge on the part of Auburn or its representatives, that the six discriminatees here considered were, as part of the Hatch group, a part of the hard core of strength for the Rubber Workers at the time material to their discharges.16 Turning to an analysis of each of the separations, they will be considered in chron- ological order. 1. Marian Gonzalez: She was hired in January 1961 and lived in Garfield, a few miles northwest of Hatch. She worked the second shift from 3 p.m. to 11 p.m. throughout the term of her employment and worked as a molding machine operator in department 35 under Foremen Weldon May and John Simpson. In October 1962 her department was fully manned with 30 molding machines and 1 operator assigned to each machine. On October 10, after being solicited by Rubber Workers organizers Parra and Perez and subsequently by Tony Rodriguez, she signed a card for the Rubber Workers. Thereafter, according to her credited testimony, she attended meetings of the Rubber Workers group at Irene Serna's house and an informal gather- ing of the Rubber Workers group in the Hatch area met on one occasion at her own house. Shortly after her signing with the Rubber Workers she talked to the Teamsters' steward, Davalos, and registered a complaint about what she felt was rough treatment from the supervisors. At that time Davalos said to her that maybe the Company had found out about the cards that had been signed. About 2 weeks before her discharge she was assigned as a relief operator with the duty to relieve the regular machine operators on their lunch and break periods and other absences. Respondent's Exhibit No. 32 is a written "warning or reprimand" notice signed by Marian Gonzalez, presumably on the date of the notice, January 2, 1962, referring to her excessive absenteeism and the possibility of it costing her job if it continued. In addition to this absenteeism reprimand there were several oral reprimands issued to her during the period shortly before her discharge when she was assigned as a relief operator . Her individual attendance record in evidence as Respondent's Exhibit No. 43 shows 3-days absence in early June due to family sickness but no absences thereafter up until the date of her separation. On the day of her discharge, October 19, 1962, Marian Gonzalez was reassigned from the relief operation assignment to the running of a regular machine. Shortly before the quitting time of 11 p.m., she was approached at the machine by her fore- man, Simpson, who told her to report to the office and get her check. In the ofrice Tharp and Heuer were present. Simpson said, according to Marian Gonzalez, that she was being let go because she had overstayed her break period. Marian Gor,Zalez denied the charge and asserted that she had been particularly careful because of pre- vious warnings on the subject. Marian Gonzalez struck me not only as a credible witness but as a reliable person. She testified that she had not overstayed her break on the day in question and had been particularly careful about it. No one was called to refute her testimony.lT 19I also reject General Counsel's view that Auburn sought systematically to eradicate the Hatch group by discharging these members thereof who owned or operated their means of transportation. On the evidence it appears to be no more than conjecture. 19Neither Simpson , Tharp, or Heuer nor any fellow employees testified in refutation of her testimony that she was told her discharge was due to overstaying her break. AUBURN RUBBER COMPANY, INC. 311 The evidence to me preponderates in favor of the view that the assigned reason for her discharge was not in fact, the real reason. The activities of the Rubber Workers in the Hatch area were by no means covert. Davalos, who' appears to have played the role of a double agent on more than one occasion throughout the events we are con- cerned with here, and who would undoubtedly have an interest in dissipating Rubber Workers strength, could have been the one who advised management of Marian Gonzalez' interest in the Rubber Workers. In any event I find on the record that she appears to have been a superior employee who was summarily discharged for a reason shown by the evidence not to be genuine. I find and conclude that the only logical explanation on the record is that she was, in fact, discharged because of her substantial activity for the Rubber Workers. 2. Benito Gonzalez: Benito Gonzalez was hired in July 1961 and worked the second shift as a machine operator in the injection department. His foremen at all times were May and Simpson. He signed a card for the Rubber Workers on Octo- ber 11, 1962, and, as is referred to in the-testimony of Marian Gonzalez, his wife, there were some meetings of the Rubber Workers organizing group at his home. According to Benito Gonzalez' testimony his production capacity was satisfactory as is illustrated by the fact that when he was on incentive operation he always earned the incentive. He was discharged on October 24, 1962, at the end of his shift when his foreman, May, told him he could not use him anymore and directed him to go to the office. There, in addition to May, Foremen Simpson and Tharp were present. The management group told him that his production was poor and he pointed out that for the week preceding that date he had been on a defective machine. His ter- mination report, in evidence as Respondent's Exhibit No. 40, states that he was dis- charged because he was not making standard production on the machine, and when so notified, stated that he was not concerned about the matter. Simpson, May, nor Tharp testified: I credit Benito Gonzalez', testimony, that he was assigned to a defec- tive machine from which management should not have expected full production; . . The situation with respect-to Benito Gonzalez is.that of an employee who, on the testimony before me, is shown to have been a satisfactory employee whose rate of earnings increased substantially during the period of his employment, who was rela- tively active in organizational efforts on behalf of the Rubber Workers, to which undoubtedly, on the record herein Auburn was hostile, and whose discharge occurred under circumstances indicating that the assigned reason was not the true. reason; I therefore find and conclude that he was, in fact, discharged because of his activities on behalf of the Rubber Workers. 3. Lillian Sanchez: Lillian Sanchez, one of the employees resident in the Hatch area, commenced work for Auburn in May 1961 and in February 1963 was working in Auburn's department 45 under Foreman Dyer. She worked the second shift at all times throughout her employment. On October 10, 1962 , she signed a card for the Rubber Workers and attended meetings at homes-of the Hatch employee group. She was laid off by Foreman Dyer at the end of her shift on February 13, 1963. Dyer told her this was a temporary layoff, an understanding which Personnel Director Loy confirmed about 2 days later when she went.back to the office to get her check. The layoff of Lillian Sanchez appears to have been one of a relatively large number of layoffs in early February 1963. President Hodson's testimony, which I credit, is to the effect that a combination of the natural cyclical operations of '.the plastic toy manufacturing industry together with individual financing difficulties at Auburn, necessitated a substantial reduction in force in February. 1963. The depth of the cut is shown by Hodson's testimony that of 340 employees in the production and maintenance unit on October 1, 1962, only about 160 were still employed on Febru- ary -27, 1963. Hodson's testimony also supports the conclusion that cutting across the normal considerations of employee selection for layoff were undoubted.com- mitments to the town of Deming to give preference if possible -to its citizens in employ- ment inasmuch as the town had furnished not only the organizational spark but also the bulk of the financing. In addition to the matter of preference for local, that is Deming, employees, consideration was given to the absenteeism record of employ- ees and it would naturally be expected, as appears, to be the case that there were greater absenteeism problems among the Hatch group, because of the distance of Hatch from Deming and because of the interdependence of several upon a single motor vehicle. - In determining the selection of employees to be reduced in connection with the gen- eral reduction in force, Hodson gave general instructions tb Max Myers, vice presi- dent in charge of manufacturing, as to the- number of employees that should be reduced. There appears also to have been a major reorganization of the manufac- turing operations with a discontinuation, of some departments and a consolidation 312 DECISIONS OF NATIONAL `LABOR RELATIONS BOARD of'others. According to Hodson's testimony, which I credit, there were reductions in force in the ' office staff and in the supervisors. Lillian Sanchez' absentee record is set forth in Respondent's Exhibits Nos. 29A-E and 34, the latter covering the year 1962. It seems to be substantial but- not startling, and there is not solid basis for comparison with that of other employees Shortly after her: layoff, Personnel Director Loy told her she was the first one on the seniority list and she would be called back; as noted above, at the time of her layoff, Dyer, her foreman, had given her similar assurances. The General Counsel points to inconsistency between two company termination reports both, bearing-, of February 13 and relating to the appraisal of Lillian Sanchez. One report in evi- dence as General Counsel's Exhibit No. 20 signed by Foreman Dyer and approved by the factory superintendent rates her as good in all the characteristics of conduct, attitude, ability, and work and: states his willingness to have the employee return. The second termination report bearing the same date and in evidence as Respondent's Exhibit ,No. 35, is also signed by Dyer, lists her as only fair as to conduct, attitude, and work but poor in ability; it states that Dyer would not desire her return and that she was not suited for factory work. The inconsistency in the two termination. reports of Foreman Dyer concerning Lillian Sanchez, to say the least, raises a suspicion ; this suspicion does not appear to ,be entirely allayed by testimony' of Hodson concerning a change in instructions to -foremen as to application of criteria for reemployability. On the record as a whole, -I find' solid evidence 'that Auburn was motivated by hostility to the Rubber Workers in her selection for layoff or and in the failure to recall her. While there is no doubt but what there 'was a general economic layoff substantial enough in size to include her;-the evidence of inconsistency in the termination reports, in my appraisal of it, shows-that Auburn knew that"Lillian Sanchez was an adherent of the Rubber Workers arid'discriminated against her for that reason . I base this conclusion 'on the demon- strated`falsely 'of.the reasons assigned for-her layoff and failure to recall. • The evidence; 'in niy. appraisal, pro'nderates in favor of the conclusion that she was' discriminated against. because of -her Rubber Workers' support in selection for layoff • and'in faildre'to recall her.' • ' 4. Erlinda Pina : Erlinda Pina appears to'have been one of the earliest hires of Auburn, commencing work ' in May 1960 . She worked continuously in the 'packing department under various foreman including Gallegos, but some 2 weeks before her separation-bn February 18, 1963 , she had been assigned to the wheeling department under Art Dyer. It appears that this transfer from packing to the wheel line occurred in'-connection with the major reshuffling of all Auburn 's operations in the spring of 1963 and at the time she was given an option of staying in'the packing department on the ' first shift. or working the second shift on the wheel line, the latter apparently being her choice ' because - of her transportation arrangements . 'She signed a card `for the Rubber Workers in early October 1962 but does not appear to have been particularly.active in that union's campaign. On- February 11, 1963, Erlinda Pina, visited her physician in Hatch who advised her that ' she should remain away from work for at least 5 days. She 'arranged for the physician to sign a certificate ofillness with the prediction that she would prob- ably be able to return to work about February 18. Erlinda Pina then called Auburn's personnel 'office and talked 'to Betty Randles, explaining the situation and stating that she would send' her' physician's certificate in With a fellow employee. According to her testimony, 'which .I find' creditable, she did send.the slip in by fellow employee Antonia Nunez. When she returned to her physician.for a checkup on'February 18 she,was informed that a telegram had'been"sent to her from Auburn Rubber advising -her that she had been . released for. excessive absenteeism and failure to report. There-appears to. have been no'question but that she was a satisfactory employee from the' point,of view of work performance and that she received-many compliments on her work. ' 'With respect to any contention that excessive absenteeism was the real reason for 'her discharge,, it does appear from Respondent's Exhibit 41, the 1962 attendance :record for Erlinda Pina, that she had a substantial number of absences although, here again, there is no solid -basis for' 'comparison with other employees . In any event, she testified , and her testimony is credited'and undenied , that Plant Superintendent Huer' and.Supervisor Bob .Grimm informed the packing department -in early 1963 that 'they started, with a new-slate •'with respect to, absenteeism with the beginning of 1963. With*'respect to the failure to report, the record indicates that the action could only have been taken upon the basis of the February' l 1- illness. I find her testimony credible, however, to the effect that she did report and, indeed, her' account was not denied by Betty Randles , who testified as to other aspects of her termination. AUBURN RUBBER COMPANY, INC. 313 . In the case of Erlinda Pina the record , to me, indicates that the assigned reason for her release could not, on the basis of the evidence herein, reasonably be accepted as in fact the true reason. I conclude that hostility to the Rubber Workers is the only logical explanation on the record herein for her discharge in view of her undenied and credited testimony that she had even been praised as a good worker and the pre- cipitate nature of and implausible reason for her release. 5. Consuelo Pina: She was one of the early hires at Auburn starting work in May 1960. She worked in department 40, the wheel line, under Foreman Art Dyer. I credit her testimony that prior to her discharge on February 21, 1963, there had been no previous complaints about her work and in fact, she had received compliments from an earlier foreman, Gallegos; she had also been praised by Foreman Reeve. She signed a Rubber Workers' card on October 10, 1962, and attended Rubber Workers' meetings on two occasions at Irene Serna's house. As noted above, her testimony is that she was discharged on February 21, 1963. While this was at or about the time of the layoff in large numbers of other employees, her testimony would establish, in fact, that she was discharged not as a part of a reduction in force but assertedly because she was not making company standards. Her termination report in evidence, signed by her foreman, Arthur Dyer, and approved by his superiors, rates her as fair on conduct and ability but as poor on attitude and unsatisfactory as to work. Dyer's signature on the report contains the certification that he did not want her to return because of her poor attitude toward her assigned work. Dyer did not testify, nor did Gallegos or Reeve. In the situation of Consuelo Pina, the evidence to my mind preponderates in favor of the conclusion that she was not, in fact, discharged because of any deficiency in her production . In fact, she appears to have been a superior producer on the basis of earlier estimates from her foreman ; she also was of such seniority that she would be entitled to retention and service were it not for some undisclosed motivation. In view of praise from earlier foremen it is not reasonable to my mind to accept the statements on her termination report that she was released because of a poor attitude toward her work. In view of Auburn's hostility to the Rubber Workers, which I find on the record herein, and the demonstrated falsely of the assigned reason for her discharge, I conclude that the evidence preponderates in favor of the view that she was , in fact, discharged because of her membership in the Rubber Workers. 6. Irene Serna: She commenced work for Auburn in November 1961, and after working for a period in the packing department , under Foreman Gallegos, she was transferred to the wheel line where she worked under Foreman Dyer. Prior to her separation, under circumstances herein after set forth, Irene Serna , according to her testimony, which I credit, had never been warned about any deficiencies in her work- manship and in fact had received compliments on her work and her advice had been solicited by Supervisors Tharp and Reeve on the reason why other operators were not producing the standard expectation . On another occasion Foreman Reeve, about a month before her separation from the Company , assigned her to a particularly diffi- cult operation on the basis of her ability and experience. Irene Serna signed a card for the Rubber Workers on October 11, 1962, and appears to have been one of the foremost employee workers for the Rubber Workers in the organizational effort. She attended almost all the Rubber Workers' meetings in her neighborhood, some of which were held at her home. She campaigned actively -for the Rubber Workers in the plant cafeteria. She appears to have been suspected by management of Rubber Workers' activity, as appears from Antonia Nunez' testi- mony, that Dyer specifically asked as to the union sympathies of Irene Serna. According to Serna's testimony, which I credit, she was called into the office about 2 minutes before quitting time by Dyer. Simpson was there also. Dyer said that he was discharging her for not making company standards . I credit her undenied 'testimony however, that on the machine she was then operating there were no specified production standards. Whereupon Irene Serna somewhat forcefully expressed her view that Dyer was engaged in some relatively dirty work. She threatened Dyer that he would be sorry and went out banging the door. Although Respondent identified and introduced into evidence several absentee reports for the year 1962, it appears that the last of these was in November, and it does not appear to be contended that she was discharged on the basis of absenteeism. Her termination report, signed by Dyer and approved by the supervisors above him, rates her as fair or poor on employee rating criteria . It further states that she was called into the office merely for a warning respecting company standards , whereupon she called Dyer various derogatory epithets and threatened that he would be sorry, whereupon he at once released her. Dyer did not testify nor did any of the other supervisors who approved the report, or Simpson who was present in the room at the time of the interview. I credit her account of the discharge discussion. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of her substantial activity on behalf of the Rubber Workers, including her campaigning in the plant and Respondent's efforts to learn her sympathies, and in view of the fact that Respondent's account of her separation does not hold water, I find that she was, in fact, discharged because of her activity on behalf of the Rubber Workers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent employer set forth in section III, above, and therein found to constitute unfair labor practices defined in the Act, occurring in connection with the operations of the Respondent employer outlined 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 In view of the findings herein that Respondent has engaged in certain of the unfair labor practices alleged in the complaint, I shall recommend that Respondent be required to cease and desist therefrom, and take certain affirmative action as appears necessary and appropriate to effectuate the purposes and policies of the Act. In view of the above finding that Respondent had discriminated with respect to tenure of employment with respect to employees because of their activities on behalf of the Rubber Workers, I shall recommend that Respondent be required to offer them rein- statement to their former or to substantially equivalent positions, and make them whole for loss of earnings in accordance with the remedial policies outlined in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent employer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Rubber Workers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their membership in or sympathies for the Rubber Workers or the Teamsters, by promising benefits in the event the fore- going unions were unsuccessful in a Board election, and by threatening adverse conse- quences in the event of the aforesaid labor organizations were successful in the election, Respondent has engaged in unfair labor practices defined in Section 8 (a) (1) of the Act. 4. By the participation of management representatives in the organization and operations of Deming Employees Association, Respondent has engaged in unfair labor practices within the scope of Section 8(a) (2) of the Act. 5. By discharging or laying off employees Marion Gonzalez , Benito Gonzalez, Lillian Sanchez, Erlinda Pina, Consuelo Pina, and Irene Serna and refusing thereafter to reinstate them because of their activity on behalf of or sympathy for the Rubber Workers, Respondent has engaged in unfair labor practices defined in Section 8(a) (3) and (1 ) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as specifically found herein , Respondent has not engaged in unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Auburn Rubber Company, Inc., Deming, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning membership in or activities on behalf of the Rubber Workers or the Teamsters, promising benefits in the event either of said labor organizations fails in efforts to secure representation rights, or threatening employees with reprisals in the event either of said labor organizations succeeds in securing representation rights. AUBURN RUBBER COMPANY, INC. 31 5 (b) Discouraging membership in or activities on behalf of the Rubber Workers, or any other labor organization of its employees , by discharging or in any other manner discriminating against employees with respect to hire, tenure or terms or conditions of employment , except as may be in accordance with the terms of an agreement lawfully entered into pursuant to the provisions of Section 8(a)(3) of the Act. (c) Sponsoring, promoting , assisting, or contributing support to the Deming Employees Association or any other labor organization by participation of super- visors, or other management agents in the organization or operation of such a labor organization. (d) In any other manner interfering with, restraining , or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Benito Gonzalez , Marion Gonzalez, Consuelo Pina , Erlinda Pina, Lillian Sanchez, and Irene Serna immediate reinstatement to their former or sub- stantially equivalent positions , without prejudice to their seniority or other rights or privileges , and make them whole for any loss of pay suffered by reason of Respondent's discrimination against them in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Notify any of the above-named employees if 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, as amended , after discharge from the Armed Forces. (c) Withdraw recognition of D.E.A. as representation of any of its employees and all employees of such withdrawal. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze and give effect to the backpay due under the terms of this Recommended Order. (e) Post at its plant in Deming, New Mexico, copies of the attached notice marked "Appendix." 18 Copies of said notice to be furnished by the Regional Director for Region 28, shall, after being duly signed by the authorized representative of Respond- ent, be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for Region 28, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply with the provisions hereof 10 is If 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 such notice . If this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting for the words "a Decision and Order" the words , " a Decree of the United States Court of Appeals , Enforcing an Order." zs If 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 discharge or otherwise discriminate against employees because of their membership in or activities on behalf of United Rubber , Cork, Linoleum and Plastic Workers of America , AFL-CIO, or any other labor organization. WE WILL offer reinstatement with backpay to Benito Gonzalez, Marion Gon- zalez, Lillian Sanchez, Erlinda Pina, Consuelo Pina , and Irene Serna. WE WILL NOT interfere with or support the Deming Employees Association, and WE WILL withdraw recognition of it as representative of office employees. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any way interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under the National Labor Relations Act, as amended. AUBURN RUBBER COMPANY , INC:, Employer. Dated------------------- By----------------------------------------- (Representative) (Title) 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, 1015 Tijeras Street NW., Albuquerque, New Mexico, Telephone No. 247-.031.1 , Extension 2520. The Babcock & Wilcox Company and Local 901, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Petitioner . Case No. 10-UC=3. December 23,1965 DECISION AND ORDER Upon a petition duly filed under Section 9 (b) of the National Labor Relations Act, as amended, a hearing was held before a Hearing Officer of the National Labor Relations Board. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Employer filed .a brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. This proceeding involves the Brunswick, Georgia, plant of the Employer, where it is engaged in the manufacture of boilers and related products. Since March 17, 1958, the Petitioner has been the certified bargaining representative of the following unit : All production and maintenance employees at the Employer's Brunswick, Georgia, plant, including storeroom employees and tool attendants, and excluding office clerical employees, guards, leadmen, and supervisors as defined in the Act. On June 22, 1965, the Petitioner filed a petition seeking clarification of the above unit to include the "planning and sequence men." The Employer's title for this job is "estimator planner." The Petitioner contends that the work performed by the estimator planners is the same as that done by layout men who are included in the unit. Prior to January 1964, the work of the layout men, who are included in the bargaining unit, consisted of receiving and sorting billing mate- 156 NLRB No. 21.