John Langenbacher Co., Inc.

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Willie Brown, Walter Dials, Jerome Dozier, James Fulton, Willie Hill, Thomas Howell, Abraham Johnson, Leroy Lester, Victor Rams, Bernardo Ruano, James Scott and Lawrence Slappy for their losses resulting from our delay in accepting their unconditional offers to return to work. CHANTICLEER, 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 questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 706 Federal Office Building, 500 Zack Street, Tampa, Florida 33602 , Telephone 228- 7711, Extension 257. John Langenbacher Co., Inc. and Carl Blum. Case 2-CA-10806. October p21,1966 DECISION AND ORDER On July 1, 1966, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed an answering brief. 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 [Members Fanning, Brown, and Jenkins]. 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] 1 On p 24, 1. 26, of the Trial Examiner's Decision delete "United Steel Workers of Amer- ica, AFL-CIO" and substitute therefor "Local 34, International Brotherhood of Teamsters, Chaufteurs , Warehousemen and Helpers of America (Ind.)." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on October 18, 1965, by Carl Blum , an individual , the com- plaint herein issued on December 30, 1965, alleging that John Langenbacher Co., 161 NLRB No. 20. JOHN LANGENBACHER CO. 259 Inc. (herein called Langenbacher, the Respondent, or the Company), violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act), by refusing to reemploy after a layoff occasioned by economic considerations employees Carl Blum, Joseph LiCausi, and Frank Infranca because they had engaged in several acts of protected concerted activity. The complaint alleged as well two instances of threats or warnings of reprisal to the employees because of their concerted activity. At the hearing, General Counsel amended the complaint to allege a third instance of protected activity and a warning by Respond- ent to the employees to cease such involvement. The Respondent's defense, in sub- stance, is a denial that the failure to recall the three employees was in reprisal for their concerted activity and a denial of any threats or warnings arising from the employees' actions. Further, Respondent asserts that in the absence of any provi- sion in the collective-bargaining agreement providing for job security or requiring that layoff and recall from layoff be governed by seniority, the Charging Party and his fellows are attempting to achieve such job protection by means of this proceeding. All parties participated at the hearing conducted by Trial Examiner Arthur M. Goldberg at New York, New York, on March 7 through 11 and April 14, 1966, and were afforded full opportunity to be heard, introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Oral argu- ment was presented and briefs were filed by General Counsel and Respondent. Motions made by Respondent at the close of General Counsel's case to dismiss the the complaint in whole or part, on which I reserved ruling until issuance of this Decision, are disposed of in accordance with my findings below.' Upon the entire record in the case, my reading of the briefs, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer did not controvert, and I find that John Lan- genbacher Co., Inc., is and has been at all times material herein a New York cor- poration, with its principal place of business in the Borough of the Bronx, city and State of New York, where it is engaged in the manufacture , sale, and distribution of architectural woodwork and related products, and is an employer engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED District Council No. 9, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (herein called District Council No. 9 or the Union), is a labor organization within the meaning of Section 2 (5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Langenbacher is part of the architectural woodwork industry, constructing and installing the wood interiors of banks, hotels, restaurants, offices, and the like. As in other phases of the construction industry, all of Langenbacher's work is per- formed on a contract basis, with no inventory accumulation. The wood finishing division of Langenbacher's operation involved in this pro- ceeding, employs only some 8 or 10 of the Company's over 100 employees. The wood finishers, members of the Union, are part of a group of only about 125 such craftsmen available to the industry in the city of New York. The work is skilled, requiring a 4-year apprenticeship before journeyman status is achieved. Other wood finishers represented by the Carpenters Union, are not involved in this proceeding. Prior to 1962, the jurisdiction of District Council No. 9 did not include Brook- lyn or Queens. As a result, over the years a substantial differential developed in the wages of wood finishers employed in the Bronx and Manhattan and those work- ing at the trade in Brooklyn and Queens. After 1962, District Council No. 9's juris- diction was expanded to take in Brooklyn and Queens, and thereafter in the July 1, I General Counsel's motion of May 18, 1966, to correct errors in the transcript of the proceedings , standing unopposed , is hereby granted. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1964, collective-bargaining agreement between the Union and the Manufacturing, Woodworkers Association of Greater New York, Inc. (herein called the Associa- tion) a program was established to narrow the wage differential over a 3-year period. By granting increases to the Brooklyn-Queens men every 6 months during the 3-year term of the contract, while giving only two increments to the Bronx- Manhattan employees during the same period, the wage gap between the two, groups was to be cut from 46 to 20 cents at the contract's end. Langenbacher has since 1935 maintained contractual relations with District Coun- cil No. 9 as the representative of its wood finishers. Until July 31, 1964, the Com- pany executed individual collective-bargaining agreements with the Union, adopt- ing the so-called trade agreement, which is the contract between the Union and the painting industry. On July 1, 1964, Langenbacher joined the Association and effec- tive the following August 1 began to apply the terms of the Association's collective- bargaining agreement? The last trade agreement adopted by Respondent, provided a wage scale of $4.50, per hour for "New.Work" and $4.06 per hour for "Repaint Work" 3 for the period August "1,, '1962 to July 31, 1964. It appears that while the practice was for pay wood; finishers at the repaint scale, Respondent in this instance raised its finishers to $4.50 per hour. Subsequently, upon learning of its error in the spring of 1963, Kurt Tolksdorf, Respondent's president, called the employees together and informed, them 'that the rate would be reduced to $4:06. Tolksdorf suggested that the finish- ers see Martin Rarback, secretary-treasurer of District Council No. 9. The men met with Rarback and ,as a result took the wage cut instituted by the Company. At this. meeting, Rarback selected Anthony Liggio, a long-time employee of Respondent, to, act as shop steward and so advised the Company. About 1 week thereafter Tolks- dorf called the finishers together again and told the men to call the Union 'to find out about institution of an 8-hour rather than the 7-hour day they then were work- ing Liggio and Joseph LiCausi spoke to Morris Arber, assistant secretary-treasurer of District Council No. 9 who said the 8-hour day was proper. They so advised Tolksdorf and thereafter worked an 8-hour day. In the summer of 1964, District Council No. 9 announced in its newspaper the negotiation of a new collective -bargaining agreement providing wage increases for the 'entire membership. LiCausi asked both Frank Comi, foreman of the wood fin- ishing section and Eric Falso, company office manager about the raise. He was informed that the Company had not as yet received a new contract from the Union, but that the raise would be retroactive to August 1. It appears that at that time Rarback was away from his office at a convention. At the same time, Carl Blum, the Charging Party herein, had learned that wood finishers employed by Jacob' Froelich Cabinet Works, a competitor of Respondent, had not received their raise. After LiCausi reported 'his findings, Blum organized a committee of two. employees from the Froehlich shop and two from Respondent to meet with and, tell Rarback they 'had not received the announced raise. Though Blum set up the committee and arranged for it to meet with Rarback, he himself did not go with the delegation. As Rarback at this meeting said would happen, the finishers sub- sequently received an increase of 10 cents per hour, retroactive to August 1, bring- ing their hourly rate to $4.16.4 Each year the employees receive from the Painting Industry Insurance Fund a statement showing, among other things, the total wages on which their employer made a stated percentage contribution to the Fund . A number of Respondent's finishers noticed that the wages reported on their 1964 statement from the Fund, received in April 1965, were lower than their earnings reported for income tax pur- 2 There is presently pending in the Federal District Court, Southern District of New York, a lawsuit, infra, which raises tinter alga the question as to which of the two con- tracts, -i.e , the Association 'or ,the Trade Agreement, should apply to the 'employees of several employers, including Respondent. At issue as well is the good faith of the parties in (entering into the program 'to ease the wage differential described -above Accordingly, I shall make no findings on these two issues . Moreover, I need not resolve these points to determine the questions presented to me by the instant complaint. 3 Both 'terms, New Work and Repaint Work, appear to be words of art peculiar to the painting industry. The record does not,indicate that either term had any significance to the wood finishing trade. 4 The July 1, 1964, agreement between the Association and the Union provided for a $4.16 per hour rate for Bronx-Manhattan finishers. As noted, effective August 1, 1964, Respondent applied the terms of the Association agreement to its finishers. JOHN LANGENBACHER CO. 261 poses on the W-2 forms supplied by the Company . In LiCausi's case the discrep- ancy was approximately $2,000. Froehlich's finishers reported the same problem. On receiving his statement Blum pointed out the disparity in the figures to Fore- man Comi. When Comi asked what difference it made to Blum, the latter explained it affected his vacation pay and the amount paid as a percentage contribution by Respondent for welfare purposes . Comi replied that the finishers made enough money and he could not understand why they fussed about little things. Once again Blum formed a committee of Langenbacher and Froehlich finishers, this time him- self serving as a member. The committee visited the Insurance Fund 's office where they learned Respondent was making its percentage contributions on straight time earnings for both regular and overtime hours, with no contribution made on pre- mium, bonus , or any overscale portion of wages. The foregoing method of compu- tation was proper under the Association agreement, but not under the Trade Agree- ment which called for contributions to be made on gross wages. LiCausi discussed the Company's method of contribution with Falso, its office manager, who con- firmed that contributions were not being made on premium time. Following this visit to the Insurance Fund, Blum, using his own mailing list of wood finishers , sent out some 70 to 80 cards to finishers in the city inviting them to a meeting. At this meeting , held in mid-April 1965, the Hardwood Finishers Club (herein called the Club) was organized. As explained by Blum , the purpose of the Club was "to protect our Bronx and Manhattan woodwork finishers from being relegated to an inferior contract like the Queens and Brooklyn men were working under. We wanted to continue to keep together for our mutual protection ." Frank Schonfeld , a painter, Blum, and Louis Candela, a finisher then employed by Froeh- lich and now working for Langenbacher , were elected officers of the club. Though it had no dues, the Club met fairly regularly with expenses covered by contributions from the members. On June 29, 1965, seven members of the Club , including Blum and Frank Infranca , met with Morris Arber at the Union's office to complain of Respondent's method of contribution to the Insurance Fund . When no remedial action satisfac- tory to them was undertaken by the Union , Blum, Infraca, LiCausi, and 17 other finishers and Schonfeld, the painter, petitioned the court for permission to sue Rar- 'back and Arber for alleged breach of their fiduciary duties as union officers. B. The split-shift incident In June of 1965 Langenbacher was working on a contract for the interiors of ,over 30 branches of the Chase Manhattan Bank. Because of delays in construction, Respondent's end of the job could not be installed at the job sites and as a result the finished material piled up at the plant , the finishing room being used for storage after Respondent's warehouse and truck dock had been filled. It thus became dif- ficult for a full shift of finishers to properly function in the crowded quarters. On Saturday, June 19, 1965, Foreman Comi called the finishers together and after telling them that the Company had a number of jobs which had been con- tracted on the assumption of no overtime costs, asked the men to work a split shift, with half the force working from 8 a.m. to 4:30 p .m. and the other half reporting at 12:30 p.m. and working until 9 at night . After an exchange between Blum and Comi about the proper rate of pay for such an arrangement and the necessity of ,obtaining union approval, Comi said, "We are not all pure. We don't always do whatever the Union says." The men refused to go along with Comi' s suggestion, and after he called Tolksdorf, all went up to the latter's office for further discussion of the proposed work schedule change. Tolksdorf greeted the five finishers who came to his office by asking what their beef was. He went on to say they were doing wrong by Comi and pointed out that their earnings had been high. Tolksdorf then turned to Frank Infranca and saying he understood Infranca had a big mouth , suggested he serve as spokesman . Tolks- •dorf explained that Rarback had called after a meeting the men had had with the union official and told the company president of Infranca 's "big mouth." Referring to the finishers' previous Jewish foreman, Tolksdorf said to them , four of whom were Italian, that he could have loaded the plant with Jews, attaching to the refer- ence an obscene appelative , but that instead he had made one of their own kind the foreman, namely Frank Comi . At this point Blum, after noting his opinion of Tolksdorf's remark, left the meeting. Thereafter, Tolksdorf pointed out that John Imbasciani and Liggio had worked for Langenbacher for many years and that he had taken Infranca and LiCausi off 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the streets. He stated his feeling that the men could repay him by working the split shift at straight time pay. After discussion as to how long the second shift would continue and under such an arrangement, the finishers refused to go along with the change in working hours. At this point the men left. Infranca alone testi- fied that as they left the office, Tolksdorf said, again using fecund shop language, that what the men had done unto him this time, he would do unto them the next. Infranca explained that he alone heard this remark because he was the last employee to leave the office. Tolksdorf denied making the statement. The Chase Manhattan contract was subsequently canceled at a loss to Respondent and the finished material moved out to a competitor's plant. General Counsel alleges that the employees were engaged in protected concerted activity during the course of their joint refusal to work the split shift. I so find. Interboro Contractors, Inc., 157 NLRB 1295. Further, it is alleged that Tolksdorf's parting shot to Infranca as the men left the office was a threat of reprisal for the finishers having engaged in the protected con- certed activity found and violated Section 8(a)(1) of the Act. I so find. The Youngstown Cartage Company, 146 NLRB 305. In so finding I necessarily credit Infranca's testimony that the statement was made and discredit Tolksdorf's denial. Imbasciani, the only witness to the meeting who was not directly involved in the outcome of this proceeding, substantially corrobrated Infranca's account of the meeting in all respects other than Tolksdorf's threat, an omission explained by his having left the office before Infranca and so having been beyond earshot when the words were spoken: In choosing between Infranca and Tolksdorf, I rely upon Imbasciani's support of Infranca, as well as my observation of the witnesses' demeanor while testifying and Tolksdorf's general lack of candor. C. The Anthony Comi incident Foreman Frank Comi's college student son Anthony worked in Respondent's finishing department during vacations from his studies. Prior to the summer of 1965 Anthony was not a member of the Union. In June of that year, Anthony again came to work in the factory. This time Anthony's presence in the finishing department caused unrest. John Kohnken, the apprentice, complained to all who would listen that he was doing menial, manual tasks, while Anthony was working as a journeyman. Others were concerned that the finishers in the Langenbacher shop would be exposed to accusa- tions of disloyalty to District Council No. 9 if they worked with Anthony, then not a member of the Union. During the morning of June 30, Shop Steward Liggio approached Frank Comi and told the foreman of the finishers' concern about Anthony's nonunion status. Frank Comi became upset and stormed from worker to worker, asking if each had any objections to his son working in the shop. Blum sought to explain to the foreman that the men had been holding meetings and had gone to the District Council about their grievances, among which were complaints about nonunion men working in union shops. Comi replied that he had heard of these meetings through the grapevine and went from Blum to another worker. Thereafter, Comi took the problem to Tolksdorf who advised him to send Anthony to the Union to obtain an apprentice card. That very afternoon Anthony went to District Council No. 9, where he paid 3-months dues in advance and obtained a working card. Nothing more was heard of the matter until General Counsel at the opening of the hearing herein moved to amend the complaint to. allege that the employees were engaged in protected concerted activity when com- plaining of Anthony's employment. General Counsel further alleges that Frank Comi's angry investigation of Liggio's report of the men's concern constituted a warning to the employees to refrain from such concerted activity. I shall recommend that this allegation of the complaint be dismissed. In so, doing I do not dispute that the employees, however wrong in their grievance,5 were engaged in protected concerted activity in pressing their complaint. Interboro Con- tractors, Inc., 157 NLRB 1295, footnote 7 and cases cited therein. However, I do not find that Frank Comi warned the employees to refrain from their concerted 6 Though Anthony had not joined the Union by June 30, he had not as of that date been employed 30 days, and was therefore free, under the statute and the contract, to work without union sanction. JOHN LANGENBACHER CO . 263 activity. No direct evidence was offered of such a warning. If one be found, it must be inferred from Comi's manner of investigating the depth of employee opposition to his son's employment. This I cannot do. While Comi's anger at the finishers' complaint would under ordinary circumstances have exceeded a normally expected reaction, even then I would read no warning into his conduct. Moreover, I am mindful that this protest was directed against his son and would therefore elicit a stronger response. See Thor Power Tool Company, 148 NLRB 1379. D. Comi warns Blum to cease his union activities Carl Blum was laid off by Comi on July 2 or 3, 1965, with orders to call his foreman during the course of the following week to learn when to report back to work. Pursuant to these directions Blum telephoned Comi at Respondent's plant for instructions. During this conversation Comi reiterated a previous warning to Blum, that should he be further involved in union activities and "these people upstairs" at Langenbacher hear about it, they would drop him from their employ immedi- ately and Comi would be powerless to help. Further, Comi expressed surprise that Blum had not learned a lesson from his previous activities. Blum, whose version of the conversation I credit over Comi's denial that he had uttered the threat, explained that Comi's last remark referred to Blum having usually been on every committee formed that had anything to do with employee benefits. Company records, which establish that Blum did not work during the week ending July 11, 1965, support his recollection of the conversation. Blum testified that he had called Comi during the week while on layoff status. Comi, on the other hand, stated that while he had originally told Blum "to take a few days off," he suddenly discovered need for Blum's services and over the weekend called him back to work. Thus, Comi recalled that Blum had not been on layoff during the period in question. The entire conversation, Comi stated, consisted of his telling Blum to forget the layoff and report for work on Monday. Since Blum was on layoff for the week, Comi's account of the conversation is erroneous. I find Comi's warning that Blum's services would be terminated by Respondent if top management learned of his involvement in activities protected by the Act violated Section 8(a)(1). E. The lawsuit Following the failure of union officials to take action satisfactory to them to rectify what they conceived to be improper contributions to industry welfare funds by certain employers, including Respondent, 20 finishers and 1 painter took the matter to court. On July 15, 1965, this group acting "on behalf of and for the benefit of District Council No. 9" filed a petition pursuant to Section 501(b) of the Labor-Management Reporting and Disclosure Act of 1959, for leave to com- mence an action against Rarback and Arber for alleged breach of the fiduciary duties imposed by Section 501(a) of that statute. Among the named plaintiffs were the alleged discrimintees, Blum, Infranca, and LiCausi. Joining with them were three other Langenbacher employees, Liggio, Imbasciani, and Bernard Brady. Additional plaintiffs were John Pawlizyn and Louis Candela, who were hired by Langenbacher after the events herein. In sum, the events and transactions set forth in section A, supra, entitled "Back- ground," constitute the alleged violations of fiduciary duties by the Union's officials. The Association agreement with its program for equalizing finishers' wages through- out the city of New York is alleged to be a "sweetheart" agreement. In the various affidavits filed in support of the petition for leave to sue, the grievances of Langen- bacher's finishers against their employer are prominently expounded. This initial petition for leave to sue was denied but a second petition filed on July 28, 1965, was granted on August 23. On September 29, Tolksdorf gave an affidavit in support of a motion for sum- mary judgment filed by the defendants, Rarback and Arber. General Counsel urges that the employees were engaged in protected concerted activity when participating as plaintiffs in this action against their Union's officials. I so find. F. The layoffs On August 12, 1965, Respondent laid off Blum and LiCausi, together with Kohnken, the apprentice, Gruenstrass who had been hired on July 13 and Lucia, so new to the industry that he was not yet a member of the Union although experi- enced in wood finishing from his prior employment in furniture manufacturing. The following Monday, Infranca, who was not at work on August 12, was furloughed. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is conceded that the layoff was economically motivated , occasioned by the type of work coming through the shop at that time which did not require finishing in the shop, but was instead painted at the construction site after installation. How- ever, General Counsel alleges that Respondent took advantage of this layoff to rid itself of the named alleged discriminatees by not recalling them to employment. Kohnken, Gruenstrass, and Lucia were recalled to work within a reasonable period of time after the layoff. Much evidence was adduced about industry practice pertaining to recalls after layoff. Additionally, proof was offered on the identity and comparative skills of new employees hired by Respondent at the very time it was ignoring requests by the three discriminatees to be put back to work. In finding that Langenbacher violated Section 8(a)(1) by its refusal to recall the three employees from layoff status, I do not deem it necessary for me to decide whether, in the absence of any such contract provision , wood finishers by industry custom and practice have seniority and recall rights. Nor do I see the need for me to rule whether a wood finisher trained in Germany 40 years ago is a more valu- able employee than one who had worked 11 years without break for Respondent.6 Rather, I base my findings on Coral's admissions made while offering the three finishers employment at a carpenter's shop and the very act of seeking to place them in that employment, conduct I find to be out of character with usual behavior. G. The luncheonette incident Shortly after the August 12 layoff, Fred Correale, finishing foreman for William Somerville, Inc. (herein called Somerville), requested that Comi refer some finish- ers to him. A day or two later Comi returned the call, told Correale he had three men available and asked how much work there was for them. Correale estimated there were at least 5 weeks of work on hand, probably more. Comi said he would talk to, the men and see if they would accept Correale's offer. When Correale asked that good men be sent, Comi allayed his concern by naming LiCausi, Infranca, and Blum as the men he had in mind. Correale had worked with Infranca and LiCausi when he had been employed by Langenbacher some years before and knew them to be qualified. When Correale asked why Comi was sending these three men, inquiring if work was slow at Langenbacher, Comi put him off, saying he would discuss this with Correale later. Comi called the three men together for a meeting on Wednesday, August 18, 1965, at a luncheonette located on the same street as Respondent's plant. The four men assembled some minutes after 10 a.m. After Comi announced that work was available for them at another plant, Blum asked if this meant the layoff was perma- nent. Comi replied that he could not give an answer. The men would have to read between the,lines, he said, and if they returned to the plant looking for work, saw new faces and available work, but Comi would not hire them, they would know the answer to the question. Comi stated the decision to lay them off was not his and that he was merely following orders. Comi then pointed out to Blum that he had warned him of the consequences of continued union activity, but understood that it was in Blum's nature to be so involved. Turning to Infranca and LiCausi, Comi expressed surprise and disappointment at their activity. Noting that they had had good jobs, Comi said they had no business getting involved in union activity. To Infranca and LiCausi, Comi raised the possibility that if they "kept their noses clean" and came back after several months and apologized to Tolksdorf, they could again work for Langenbacher. Comi then asked them to think over the job offer (the men knew that the shop involved was Somerville) and to give him an answer when he returned to the luncheonette in a few minutes. Infranca and LiCausi accepted the jobs at Somerville, but Blum agreed with Correale that it -would be best for him not to start on a new job as he was scheduled for surgery on his hand. In fact, Blum entered the hospital on September 8 and was unavail- able for work until after October 6. LiCausi and Infranca started working for Somerville on Monday, August 23. On LiCausi's recommendation, Correale hired John Kohnken, Langenbacher's G In reaching my ultimate conclusions herein I am not unmindful of the fact that Infranca was primarily skilled as a sprayer and Pawlizyn, who was employed after the August 12 layoff, Is also valuable principally for his spraying ability. I note as well that LiCausi was rated as a good all around finisher as were most of the new hires after the layoff in question . Finally, while Blum was utilized mostly as a rubber (one who buffs a finished surface ), in the face of Respondent continuing unchanged its prelayoff operation, I must assume that his skill as well was needed in the production process. JOHN LANGENBACHER CO. 265 apprentice who had also been laid off on August 12. Kohnken started work on Tuesday morning, at which time Correale assured him of a long period of employ- ment at Somerville. However, on Thursday, Kohnken informed Correale that Comi had called and said he wanted Kohnken to return to Langenbacher. Kohnken finished out the week at Somerville and then returned to Respondent 's employ. While working for Somerville, Kolinken received journeyman contract scale wages. Comi's version of the luncheonette meeting itself substantially conforms to that of the three discriminatees, except that he denies any reference to union activities or that work might be available in the future for Infranca and LiCausi if they apologized to Tolksdorf. Comi remembers questions concerning the duration of the layoff to which he recalls replying that he could not say. Comi's recollection of the date and time of the meeting conflicts with that of Correale and the discriminatees. I credit the employees' testimony attributing to Comi the statements squarely establishing Respondent's unlawful reasons for failure to recall them to work. If it was Comi's purpose to serve only as a conduit for Correale's job offer there was no need for him to call the men together. Comi could have transmitted the message by telephone or could simply have given the employees' telephone numbers to Correale. In part, I conclude that Comi wished to justify his actions to the employ- ees and to exculpate himself from blame for their loss of employment. However, I find controlling, the need to explain to them why in this particular layoff situation they should take other employment. LiCausi had worked for Langenbacher for 11 years; Infranca for 6; and Blum had been in the plant finishing unit since Decem- ber 1963. During their respective periods of employment each had been laid off a number of times. However, on every occasion in the past, recall to work had shortly followed. Based on their years of experience with Respondent's layoff and recall procedure, no reason existed for the employees to believe that this furlough was in fact a discharge. Accordingly, absent direct information that they could expect no further work from Langenbacher, Comi could not have reasonably expected that the three finishers would accept Correale's offer. Thus, Comi's expla- nation that he merely advised the men of Correale's offer lacks credibility. More- over, Comi's account of what was said in his meeting with the men is questioned by his inaccurate recall of the time and date of the encounter. Accordingly, I conclude and find that Respondent's failure to recall to work Infranca , LiCausi, and Blum, in spite of a letter they wrote requesting reemploy- ment, telephone calls, and visits to the plant for the same purpose, was in reprisal for their concerted activity, and a violation of Section 8(a)(1)? In so finding, I have considered the various defenses raised by Respondent; that there was no obligation to recall the laid off employees ; that when work was available better applicants were at the door; and, that it was against the rules of the game to call Infranca and LiCausi away from their employment at Somerville. I would find the violation here even if I did not reject these defenses as being without merit, which I do, noting that the employees had always been recalled before , that no challenge was made to their complete ability to handle their job assignments , and that Comi had no compunctions about calling Kohnken away from Somerville . In view of my crediting the testimony establishing Comi 's admissions, and my findings above of prior warnings of retribution to come for concerted activities , I find the true reason for the refusal to reemploy Blum, LiCausi, and Infranca was their protected con- certed activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in connection with the operations of Respondent described 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 7In view of the fact that the remedy would be the same , I find it unnecessary to deter- mine whether the failure to recall to work also violated Section 8 (a) (3) of the Act. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have found that Respondent's refusal to recall Blum, LiCausi, and Infranca from layoff violated Section 8(a)(1) of the Act. My Recommended Order shall provide for their reinstatement and that they be made whole for any loss of earn- ings resulting from the discrimination, their backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. John Langenbacher Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The evidence adduced herein establishes that Respondent threatened employ- ees with reprisals for their having engaged in protected concerted activities and refused to recall Carl Blum, Joseph LiCausi, and Frank Infranca to its employ after an economic layoff in August 1965, in violation of Section 8 (a)( 1) of the Act. 3. The unfair labor practices enumerated above are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER The Respondent, John Langenbacher Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals for engaging in protected concerted activities or warning employees to refrain from union activities. (b) Refusing to recall employees from layoff or otherwise discriminating in regard to their hire, tenure of employment, or any other term or condition of employment, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (c) In any like or related manner interfering with , restraining, or coercing employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act, 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 by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Carl Blum, Joseph LiCausi, and Frank Infranca immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any rights or privileges they may have enjoyed, and make each of them whole for any loss he may have suffered by reason of the failure to recall him to employment in the manner and to the extent set forth in the section entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records nec- essary or useful to determine the amount of backpay due. (d) Post at its Bronx, New York, plant, copies of the attached notice marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for Region 2, after being duly signed by an authorized representative of the Respond- ent, shall be posted by Respondent immediately upon receipt thereof, and be main- tained by it for 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. 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." BEER COMPANY OF BATTLE CREEK, INC. 267 (e) Notify the Regional Director for Region 2, in writing, within 20 days from the receipt of this Decision , what steps it has taken to comply therewith .9 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. D In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 2, in writing, within 10 days from the date of the receipt of this Order, what steps Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a 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 threaten our employees with reprisals or warn them against engaging in concerted or union activities. WE WILL NOT refuse to reemploy employees because they engaged in con- certed or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring mem- bership 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 Report- ing and Disclosure Act of 1959. WE WILL offer Carl Blum, Joseph LiCausi, and Frank Infranca immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any rights or privileges previously enjoyed and make them whole for any loss of pay they have suffered by reason of the discrimina- tion against them. JOHN LANGENBACHER CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Notify 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. 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, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Tele- phone 715-5500. Beer Company of Battle Creek, Inc. and Local 34, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Ind.). Case 7-CA-5432. October 21, 1966 DECISION AND ORDER On July 20, 1966, Trial Examiner Jerry B. Stone issued his Deci- sion in the above-entitled proceeding, finding that Respondent 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- 161 NLRB No. 24.