W. K. Manufacturing Co.

W.K. MANUFACTURING COMPANY 1185 W.K. Manufacturing Company and Local 980, Furniture Fin- ishers Union, affiliated with Brotherhood of Painters , Decora- tors and Paperhangers of America, AFL-CIO. Case 14-CA- 3851. November 18, 1966 DECISION AND ORDER On August 22, 1966, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision. 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 Fanning 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 the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modification : [1. Add the following to the third paragraph of the notice attached to the Trial Examiner's Decision : All production and maintenance employees at Respondent's Arnold, Missouri, plant, excluding office clerical and professional employees, guards, and supervisors as defined in the Act.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in this proceeding was held before Trial Examiner Benjamin B. Lipton in St. Louis, Missouri, on May 17 and 18, 1966, upon a complaint by the General Counsels alleging that Respondent violated Section 8(a)(1), (3 ), and (5) of the Act. All parties were represented at the hearing and were afforded full opportunity to present relevant evidence . Oral argument on the record was waived . Each of the parties filed briefs , which have been given due consideration. 1 The original charge by the Union was filed and served on December 28, 1965 , and the General Counsel 's complaint thereon was issued on March 18, 1966. 161 NLRB No. 110. 264-188-67-vol. 161-76 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case,2 and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Since it commenced operations in July 1965, Respondent has been engaged in the business of finishing wooden furniture at a manufacturing plant in Arnold, Missouri. It was admitted that for the projected year of operations ending July 1966, the value of Respondent's products and services will exceed $50,000, and that in excess of $50,000 worth of such products and services will have been fur- nished by Respondent to Chromcraft Corporation in the State of Missouri, which corporation annually has a direct outflow of goods in interstate commerce valued in excess of $50,000. Respondent concedes, and I find, that it is engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues General Counsel alleges, and Respondent denies, that following the inception of the Union's organizational campaign, Respondent engaged in certain coercion of employees in violation of Section 8(a)(1); discharged Irma Foster, Joyce Kunz, and Dorothy Boyer in violation of Section 8(a)(3); and refused to recognize and bargain collectively with the Union, upon request, in violation of Section 8(a)(5). B. Organizational activity; bargaining requests and responses; - general background On November 15 or 16, 1965,3 Dorothy Boyer telephoned Omar Rodenhauser, business representative of the Union, and arrangement was made for the initial organizational meeting to be held at the home of Alice Kline in the evening on November 19. The decision to contact the Union was precipitated by a recent layoff of employees, which they believed to be in disregard of their seniority standing. At the November 19 meeting, the 12 employees who attended all signed cards applying for union membership and authorizing the Union to represent them in collective bargaining with Respondent. Rodenhauser indicated that the signed cards were for the dual purpose of seeking recognition and filing a petition for an election, if necessary.4 Additional authorization cards were solicited of employ- ees at their homes and in the plant by Boyer and Joyce Kunz; and on Monday afternoon, November 22, Boyer delivered six signed cards to Rodenhauser. On November 24, at 9 a.m., Rodenhauser and Charles Werner, the Union's attorney, visited the plant and spoke to Walter Kundert, Respondent's president and sole stockholder. As of November 24, it is undisputed and I find that-(a) the appropriate bar- gaining unit consisted of all production and maintenance employees; 5 (b) there were 24 to 26 employees 8 in the unit; and (c), the Union had valid authorization cards of 17 employees in the unit,7 a clear majority. At their meeting with Kundert on November 24,8 Rodenhauser and Werner presented the Union's majority claim and recognition demand. They produced the ' 2 The General Counsel's motion to correct the record in minor respects, without opposi- tion, is hereby granted. 3 Unless otherwise specified , all dates are in 1965. 4Irma Foster testified that Rodenhauser explained that (in a'union contract) he would undoubtedly not get a large raise for the employees because the Company was just start- ing out, but he could get better working conditions and seniority rights to meet their complaints. 5 Full description of the unit is contained infra. 6 The parties were unable to agree on the status of Delores Viets and Mary Frances Pratt. 7 One of the 18 cards received by the Union was that of Rosalie Dunn, who quit her employment on November 22. 8 Based on Rodenhauser's substantially undisputed and credited testimony. W.K. MANUFACTURING COMPANY 1187 cards, face down, and offered to arrange for a-card check to be conducted by a neutral party. Kundert replied that he did not have "full say"; that he would have to get authority from "higher-ups" who had money invested; and that one such person he would have to contact was "his uncle," who would be out of town until December 4.9 Pressed for an earlier reply, Kundert said he would answer on Sat- urday morning. He was left with a letter from the Union requesting recognition together with a letter form of recognition agreement. Saturday morning, Novem- ber 27, Rodenhauser called the plant and was informed that Kundert was out for the day. On November 29, Kundert told Rodenhauser he had not as yet contacted "his uncle." Rodenhauser made further calls to Kundert on November 30, Decem- ber 2 and 3, and was advised on each occasion to get in touch with Kundert's attorney 10 (i.e., Attorney MacGreevy, of record herein)." On behalf of Respond- ent, no reply at all was made to the Union's pending request for recognition. On December 3, the Union filed with the Board a representation petition.12 C. Interference, restraint, and coercion 1. On November 24, following the Union's recognition demand, Walter Kundert assembled all the employees for a meeting about 12:30 p.m. He told them that he understood they were thinking of having union representation; that he was very small, just starting out, "like a babe in diapers"; and that they "could either make him or break him" and "could all be without a job." He said that he had belonged to a union and could not see that it had done him any good. He asked if it was more money they wanted and, if that were the case, he could see what he could do for them. He was "sorry if he had laid off somebody he shouldn't have." Point- ing a finger at Dorothy Boyer, he said, "I asked you if you wanted to be laid off." Boyer answered, "No, Mr. Kundert, you didn't ask me.... You just laid me off." 2. Later that evening, Joyce Kunz had a conversation with Cliff Kundert, a supervisor and brother of Walter. She told him that "he knew then we were trying to bring the union to the factory." He asked her if she had joined the Union, and if she had signed a card. She responded affirmatively to both questions. At this point, he remarked, "That puts you in between, doesn't it?" He spoke of the unions he had belonged to, and about what a union could do and could not do. Asked why the employees were bringing the Union in, Kunz explained that it was not only for a raise, but they wanted seniority rights because he had laid off employees who are senior to others who were retained. In reply to his question, Kunz told him they were seeking $1.50 an hour. He said that if they get such an amount, "The plant would have to close because he couldn't afford it." 3. On November 29, Walter,Kundert called another meeting of the employees during the noon period. He did not know that the Union would do them any good. He suggested that, if they had any problems, they should form their "own little organization" and appoint a spokesman, and "she could come and talk to him, then he could do his best to iron things out and go along with her." Kundert introduced Ishmael Kempf (referred to as "Mr. Ish") as his secretary. Among other things, Kempf pointed out that the employees would have to pay initiation fees and dues and "wouldn't come out too much ahead." He said that the Company was small and, if they brought in the Union, Respondent would have to "fold up" or "close the factory," because it could not meet 'the Union demands. Kundert pointed to Irma Foster and said, "Right there is a girl that can tell you about unions because she's belonged to them ." 13 He invited the employees to speak if 9 Kundert testified that his comment about having to see his uncle-"is a little expression I picked up in order to evade someone for the time being," 10 In Kundert's version, Rodenhauser expressly declined to call Kundert 's attorney. (Rodenhauser testified merely that he "saw no need" to do so.) 11 Kundert testified that, beginning November 24, he tried to reach Attorney MacGreevy, finally succeeding on November 29, at which time he was able to retain MacGreevy in the case. He was permitted to testify that MacGreevy told him, "Let me handle the deal," and that MacGreevy would take care of everything. >, Case 14-RC-5299. Pursuant to a consent-election agreement executed on December 13, an election was held on December 28, in which the ballots were impounded by reason of the Union's unfair labor practice charge on file. On April 4, 1966, the Union's petition was withdrawn with Regional Office approval. . . , is When Kundert interviewed Foster, for employment in August, they discussed the fact that in her previous job she had been paid at a union rate, which was higher than the rate he was willing to pay upon hiring her. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had anything to say. Joyce Kunz queried whether she would get fired if she spoke up, and said, "Why, certainly not." She explained that the employees were not "mad at each other," as he had stated, but lust at him for watching them so closely, which actually caused them to make mistakes. 4. About December 1, Kundert called Boyer into his office. He showed her some bills and said that he was not making any money, that he was very small, just starting out, and that if they planned on going ahead with the Union, he did not feel he could stay in business. 5. Toward the end of the week of November 29, Kundert called Alice Kline into his office and spoke to her for about a hour and a half. He showed her bills and other papers, and said he was not making any money and was "getting back rejects." He stated that "if we got a union in there, we would all be out of a job because he surely couldn't go on." The foregoing is a composite of the credible testimony of Boyer, Kline, Foster, and Kunz, which is virtually undenied. Significantly, Cliff Kundert and Ishmael Kempf were not called to testify Regarding these issues, Walter Kundert's testi- mony was exceedingly terse, vague, lacking in memory, and generally unconvincing. Respondent seeks to justify, as sincere and permissible predictions, the various statements made to the employees that union representation would "break" the Company or force it to close down, thereby causing the employees to lose their jobs. Apart from other consideration, Respondent's evidence does not establish a basis for such position of anticipatory inability to pay the employees under a union contract. Indeed, the Union had made no wage or cost demands; and in any case, the Union's contract proposals would be subject to collective bargaining. This is not to say that an employer, even if he had such an honest belief, may tell his employees during an organizational campaign that he would go broke or close down the plant if they chose to be represented by a union.14 Suffice it here to hold, in light of Respondent's entire course of conduct, that this plea in defense is unsustained and lacking in credence. Accordingly, it is found that in the statements and conduct of Walter and Cliff Kundert and of Kempf, as above described, Respondent violated Section 8(a)(1) of the Act by-expressly and impliedly threatening employees with loss of jobs and closing down the plant; engaging in coercive interrogation (of Alice Kline); promising benefits (if it was more money they wanted, Kundert would see what he could do); suggesting that they form their "own little organization"; and seeking to bargain directly with the employees-in the face of the Union's continuing recognition demand.ls D. The discharges 1. Irma Foster On December 1, Foster was dismissed allegedly for disobeying orders. Two weeks after she was hired (in August), she was assigned to work with Alice Kline in the finishing department, in functions involving various operations of sanding and finishing dresser and chest tops. At the time, she was told by Walter Kundert that this would be her job "from now on," and she would be placed elsewhere only when the finishing department was short of work. Thereafter, she was regularly occupied on the finishing job, and only when the work there was slow "from time to time" was she assigned for 2 or 3 hour periods on the "filler" or in "rough sanding." At 8 a.m. on December 1, Walter Kundert told her to work today with Myrtle Blomker in rough sanding. Until noon, Foster rough-sanded drawer fronts. At lunch, she was informed by other employees that Alice Kline "was snowed under with work." Shortly after lunch, Foster told Blomker she was finished with the drawer fronts. Blomker said she could start on dresser tops. Walter Kundert was standing nearby and Foster said she would ask him what to do. She approached him and inquired whether she should work with Kline, or what she should do. Kundert then asked Blomker if she had something for Foster to do. Blomker indicated that she had told Foster to work on dresser tops. Foster said she would work on the tops but, if they were too rough to sand by hand, she would give them to Blomker to do, because she (Foster) had never used a belt sander for 1* See Kolmar Laboratories, Inc, 159 NLRB 805. 35 E.g., Crescent Art Linen Co., et al., 158 NLRB 447. W.K. MANUFACTURING COMPANY 1189 dresser tops.is Kundert, displaying anger, stated that she would do as she was told, ,and would have to perform the belt sanding herself. Foster indicated that she learned from the girls that Kline was "snowed under with work" in the finishing department, and that this was Foster's regular job. She then asked Cliff Kundert, who had walked up, to affirm that she had been regularly assigned to work with Kline "all the time." Cliff Kundert replied that he did not recall, and that she does not have "a regular job around here." Walter Kundert insisted that she was going to do the belt sanding, and Foster repeated that she did not know how. He said he would show her, and he belt sanded one of the dresser tops, saying "there is nothing to it." At this point, Foster began crying. Walter Kundert said he wanted to talk to her, and took her into his office. He remarked, inter alia, that there was "something wrong with you girls," and that she was "on edge." Cliff Kundert, having walked in the office with Blomker, made the statement: "I want something straight right now that anyone that works with [Blomker] and don't do as she says will be fired, and if you don't fire them . I will." Walter Kundert thereupon turned to Foster and said she was fired-for failure to obey orders. Foster was at the organizational meeting of the Union and had signed a card. Two days before her discharge, she was particularly pointed out by Walter Kundert at the second plant meeting as a girl who knew about unions "because she belonged to them " Kundert's testimony that he knew nothing "whatsoever" of her union activities or her attitude toward the Union until he saw her union card at the instant hearing-is plainly incredible. As stipulated by the parties, Blomker was not a supervisor, and was an employee on the election eligibility list. Walter Kundert testified that she was one of the employees-who told him she would quit if the Union came into the plant. Alice Kline testified, without contradiction, that she had a considerable backlog of work to be done in the finishing department on the day of Foster's discharge. No reason was offered by the Respondent for the assignment of Foster to work that day with Blomker. This sudden, unexplained variation from past practice in regard to Foster's regular work, viewed against the current developments involving the Union, raises an implication that Respondent was attempting to entrap Foster or create conditions of work which would cause her to quit. Respondent was unques- tionably entitled to have its reasonable orders carried out by Foster, irrespective of the union situation. However, in the particular circumstances, it cannot be held that she flatly refused the assignment. Her emotional reaction to Kundert' s anger and to his apparent discriminatory treatment of her on December 1-is understand- able. She was not afforded a fair chance to attempt the work on the 'belt sander, merely upon Kundert's brief demonstration. tHer discharge came summarily. As appears in the evidence, the given reason must be assumed to be that stated by 'Cliff Kundert; i.e.; failure to carry out orders of employee Blomker.17 Thus, the usual issue is presented whether the discharge was for valid cause or was motivated in whole or in substantial part by union activity. Weighing in the balance is the evidence of Respondent's animus toward the Union, its contempo- raneous course of unfair labor practices, as found, and the very timing of Foster's discharge. On the entire record, I am impelled to find that Respondent was seeking a ground to discharge Foster and seized upon the opportunity presented by the belt sanding incident as a pretext to eliminate her as a known or strongly suspected union leader. My conclusion is that Respondent violated Section 8(a)(3), as alleged.'8 - is Foster testified, without contradiction, that while she had previously belt sanded small edges on drawer fronts, the dresser tops, on which the edges had to be sanded, were much larger, more difficult to handle, and could be ruined if not held straight on the belt machine ; in addition, greater particularity was demanded in the work on a dresser top, as it is a "showing" section of the furniture. 17 The same result would follow if Respondent charged hei with disobedience of Walter Kundert. I,- , is At the hearing, Respondent introduced, without objection, a decision of an appeals tribunal of Missouri Division of Employment Security, in which Foster was denied un- employment compensation for a 3-week period on the basis of a ruling that she was dis- charged for misconduct connected with her work " The document was offered by Respondent as additional evidence of, the reason for Poster's discharge. Such a ruling of a State agency is in nowise controlling in the present type of proceeding, in that the State determination does not involve the essential question, in the Board' s special province, -of Respondent's motive relating to union organization and activity. See Cranston Print, Works Co., 117 NLRB 1834, 1835; Cadillac Marine t Boat Co., 115 NLRB 107,108.. , , . , 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Joyce Kunz Kunz was a spray painter under the particular supervision of Cliff Kundert. Kunz has two children who were sickly and often required her presence at home. When hired in August, she informed Walter Kundert of her home situation, and he said he would understand. During the period of her employment, she was allowed to be absent at times of such sickness of her children. In November, for example, her children were ill with pneumonia, and Kundert informed her merely to let him know when she could come back to work. At one of the plant meetings concerning the Union, Kundert mentioned that he had been kind enough to let Kunz stay home when her children were sick. On December 1, in the morning, Kunz told Cliff Kundert that her babysitter had quit and she was able to come to work that day only because her husband was home ill. She said, "I would try to get a babysitter and if I couldn't get one before morning I would quit or take the children to my sister unless I could get someone else and [Cliff Kundert] said that would be fine with him as long as I let him know ahead of time." About 4 p.m., Walter Kundert came into her work area and she told him exactly the same thing. He was "already angry," and said, "You did have a damn good job here. If you don't come in tomorrow, don't bother to come in at all." She asked if that meant she was fired, and he repeated, "If you don't come back tomorrow, don't bother to come at all." 19 She "didn't go back and didn't work after that." General Counsel alleges that Kunz was constructively discharged. Respondent defends on the ground that she voluntarily quit. As understood from the outset, the terms of Kunz' hire and continued employ- ment included the contingency of occasional absences because of her problem with the children. There is no evidence or contention that she abused the understanding or engaged in excessive absentism. On December 1, she made a simple request, based upon a reasonable need, to be alowed off the next day if it became necessary. So as not to discommode Respondent with uncertainties, she added the assurance that she would quit if she could not settle her home difficulty for the future. In the morning of December 1, her request was granted by her supervisor, Cliff Kundert, and she could reasonably have relied thereon to make her arrangements. However, at the close of the workday, Walter Kundert came to a different decision. Contrary to the past understanding and practice, he informed her in plain effect that she was discharged if she took off the next day. No explanation was given to her, nor showing made, of a particular need for her to work that day. While Kundert testified that he looked for her and needed her the following day, he made no effort to communicate with her when she remained away from work. Despite Walter Kundert's denial, Respondent certainly had knowledge of Kunz' union activity, particularly in view of her interrogation by Cliff Kundert. She had in fact undertaken a leading role, with Dorothy Boyer, in espousing the Union, as for example by soliciting union cards. And on behalf of the employees, she spoke up in criticism of management at the plant meeting on November 29. - In all the circumstances, Walter Kundert's action in denying her reasonable request for time off the next day well appeared to Kunz as discriminatory. He had earlier on December 1 discharged Irma Foster. He was angry, and hostile, and had foreclosed her prospects in the future of being excused from work to take care of her children in an emergency. Her options as to continued employment were thus effectively removed by Kundert. The question is not whether Respondent was limited in reasonably requiring Kunz' attendance at work, nor whether it was irrevocably bound to continue the practice of granting her requests for time off. Again, the issue turns on whether Respondent acted as it did with the intent of causing her termination for reasons relating to the current organizational activity of the employees and Kunz' principal part therein. In my opinion, the evidence amply supports such a finding. The Section 8 (a)(3) allegation is therefore sustained. 3. Dorothy Boyer 2° On Tuesday, November 30, in the course of her work, Boyer got a large splinter in her finger. The splinter was removed, but her hand became swollen and painful. i0 Kundert testified that all he said was that-"You have a job." He is not credited. 90 While Boyer's testimony was somewhat confused as to the sequence of events leading to her discharge, the facts stated in the text are credited as essentially her account of the developments. W.K. MANUFACTURING COMPANY 1191 The next morning, she told Walter Kundert and he sent her to Dr. Twersky (in Arnold, Missouri), who treated her and told her to come back the next morning. Returning to work, she advised Kundert of her appointment. On Thursday at the plant, she and Kundert discovered that Dr. Twersky had office hours that day only from 7 to 9 p.m. in Arnold, and Kundert said he thought she should go to the doctor on her own time that evening since she missed him in the morning. However, Boyer later called the doctor, and he told her it was not necessary to come this distance (from her home in Festus, Missouri, some 29 miles away), because she was taking medication and could just as well see him on Friday. On Friday morning, when she reported to work, Kundert asked her whether she went to the doctor on Thursday. She explained that she had called the doctor and related to him the doctor's advice to come in on Friday instead. Kundert told her she should have gone on Thursday. He asked her if on Thursday evening she had gone to the basketball game (in which her son was playing at Festus High School), and she said that she had. That morning, December 3, Boyer and her daughter were assigned by Kundert to another job-working in the finishing department because Alice Kline was absent. After she had completed about three dresser tops, her injured hand was very sore and she was resting it on top of the other hand in the sanding process. Kundert said she was doing it wrong, and wanted her to take several pieces of steel wool and perform the job more vigorously. Then he indicated he was going to time study Boyer and her daughter in this work. Respondent offered no testimony concerning this decision, and there is no evidence of any other timestudies by the Company.) Boyer said it would not be fair to time study her with her sore finger. He replied that he did not think her finger was as sore as she was pretending. She offered then to go to the doctor on her own time and see if he would advise her to go home. Kundert remarked, "If you can't do the work, quit." She answered that she was trying her best. At this point, he requested that she come into his office, where he informed her she was fired. She demanded a reason for the discharge,21 but he did not tell her.22 As already shown, Boyer was the most active among the employees in the union campaign. Kundert was made aware that a major grievance of the employees in calling in the Union stemmed from his earlier layoff of employees, including Boyer, without giving effect to their seniority with the Company. At the November 24 plant meeting, Boyer contradicted his statement that he had asked her in advance whether she desired to be laid off, and thus openly showed herself as one of the protesters. Kunz and Foster, other leading union advocates, had been discharged within the same week. It is reasonable to infer, and I do, that Respondent knew or surmised the leadership role of Boyer in the Union. The credible events plainly disclose the arbitrary manner in which Kundert treated Boyer on December 3, culminating in her discharge. The reason given for her termination, vaguely argued by Respondent as insubordination, is not substantiated or convincing in the evi- dence. In the context of Respondent's propensity for engaging in unlawful conduct, as previously found, to defeat the employee's efforts in obtaining union represen- tation, I conclude, on the substantial evidence, that Boyer was discharged for discriminatory reasons, in violation of Section 8(a)(3). E. The refusal to bargain Kundert admittedly engaged in deliberate evasions of the Union 's recognition and bargaining demands on and after November 24. Respondent made no claim that it doubted the Union's majority status. Indeed, the Union was given no answer whatsoever to its verbal and written requests 23 m Kundert's version , not credited, is that Boyer refused to do the work in the manner he instructed her, and he therefore told her she was discharged m At 2 p.m. on December 3, Boyer went to Dr. Twersky, who sent her to a hospital in St. Louis to have her swollen band X-rayed. She was not charged with any of the medical bills. 28 It is not specifically alleged, and unnecessary to decide, whether Respondent's fail- ure to answer and its evasions of the Union independently breached the good-faith requirements of Section 8(a) (5). As a related matter, it may be stated that Kundert's belated instruction to the Union to contact his attorney scarcely served as an answer to the Union's recognition requests made upon Respondent, as the principal. In the circum- stances, it was not incumbent upon the Union to communicate with the attorney . Rather, if Respondent desired that a position in response to the Union be stated through the medium of its attorney, the initiative lay entirely with it. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the serious violations committed, as found above, Respondent ren- dered impossible the holding of a Board election free of substantial coercion upon the employees 24 At the time of its requests upon Respondent, beginning November 24, the Union was validly designated as bargaining representative by a majority of the employees in the appropriate bargaining unit. On the settled doctrine of the Joy Silk Mills case,25 it is readily evident herein, and concluded, that Respondent's refusal to recognize the Union was motivated by a rejection of the collective-bargaining principle and by a desire to gain time in which to destroy the Union's majority status.26 Accordingly, it is found that Respondent violated Section 8(a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection 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 burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A broad cease-and-desist order appears warranted.27 It will be recommended that Respondent offer Dorothy Boyer, Irma Foster, and Joyce Kunz immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimination, from the date of the discrimination to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 28 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Dorothy Boyer, Irma Foster, and Joyce Kunz, thereby discouraging membership in the Union, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. Since November 24, 1965, and at all material times, the Union has been the exclusive representative of all employees in the following appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 24 Irving Air Chute Co., 149 NLRB 627, enfd. 350 F 2d 176 (C.A. 2) ; Photobell Co , 158 NLRB 738 25 Joy Silk Mills, Inc, 85 NLRB 1263, enfd. 185 F.2d 732 (C.A D C ), cert. denied 341 U.S. 914. 26 And see, e.g , Aaron Brothers Company of California, 158 NLRB 1077. 27 N.L.R.B. v. Empress Publishing Co, 312 U.S. 426, N.L.R B. v. Entwistle Mfg. Co, 120 F.2d 532 (C.A 4). 28 Respondent's Proposed Findings of Fact and Conclusions of Law are rejected except to the extent consistent herewith. W.K. MANUFACTURING COMPANY 1193 All production and maintenance employees at Respondent 's Arnold, Missouri, plant, excluding office clerical and professional employees, guards, and super- visors as defined in the Act. 5. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in the appropriate bargaining unit , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By the foregoing, and by various other conduct interfering with, restrain- ing, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, W.K. Manufacturing Company, Arnold, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 980, Furniture Finishers Union affili- ated with Brotherhood of Painters, Decorators, and Paperhangers of America, AFL-CIO, or in any other labor organization , by discharging employees, or in any other manner discriminating in regard to hire or tenure of employment or any terms or condition of employment. (b) Refusing to bargain collectively with Local 980, Furniture Finishers Union, affiliated with Brotherhood of Painters, Decorators, and Paperhangers of America, AFL-CIO, as the exclusive representative of all Respondent 's employ- ees in the appropriate unit described hereinabove. (c) Coercively interrogating employees concerning their union activities; expressly or impliedly threatening employees with loss of jobs, closing down the plant, or other reprisal, to discourage their union membership or activity; prom- ising or granting them benefits to dissuade them from selecting a bargaining repre- sentative ; suggesting that they form their own labor organization; or seeking to bargain directly with them while there is a current question concerning repre- sentation raised by 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 designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Offer Dorothy Boyer, Irma Foster, and Joyce Kunz immediate and full reinstatement to their former or substantially equivalent positions, without prej- udice to their seniority or other rights and privileges, and make them whole for any loss of earnings , as set forth in "The Remedy" section of the Trial Exam- iner's Decision. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharged from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents all pay- roll and other records, as set forth in "The Remedy" section of the Trial Examiner's Decision. (e) Post at its Arnold, Missouri, plant copies of the attached notice marked "Appendix." 29 Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecutive days. 29 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. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.3o "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 14. 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 discourage membership in Local 980, Furniture Finishers Union, affiliated with Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or in any other labor organization , by discharging employees, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate our employees concerning their union activities ; expressly or impliedly threaten them with job loss , plant closure, or other reprisal, to discourage their union membership or activity ; promise or grant them benefits to dissuade them from selecting a bargaining representa- tive; suggest that they form their own labor organization ; or seek to bargain directly with them while a current question concerning representation has been raised by a labor organization. WE WILL NOT refuse to bargain collectively with the above -named labor organization as the exclusive representative of the employees in the appropriate bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above -named, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring member- ship 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. WE WILL, upon request , bargain collectively with the above-named labor organization as the exclusive representative of all the employees in the appro- priate unit, and embody in a signed agreement any understanding reached. WE WILL offer Dorothy Boyer, Irma Foster, and Joyce Kunz immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges previously enjoyed. WE WILL make the above-named employees whole for any loss of pay they may have suffered by reason of the discrimination against them. All our employees are free to become , or refrain from becoming members of the above-named labor organization, or any other labor organization , 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. W.K. MANUFACTURING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above- named employees if presently serving in the Armed Forces of the United States of their rights to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. SPARKS NUGGET, INC. 1195 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, 1040 Boat- men's Batik Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4156. Sparks Nugget, Inc. and American Federation of Casino and Gaming Employees. Case 9O-CA-3741. November 18, 1966 DECISION AND ORDER On July 11, 1966, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent 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 [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the exceptions, cross-exceptions, briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner concluded that the Respondent violated Sec- tion 8(a) (1) of the Act of promulgating a rule forbidding union activities during nonworking time. The complaint alleges, however, that it is the Respondent's maintenance of this rule which constitutes a violation of the Act; the complaint does not allege that the promul- gation, which occurred prior to the limitation period of Section 10(b) of the Act, is such a violation. As the Trial Examiner also found, and i The Respondent 's motion to reopen the record for the purpose of receiving additional evidence with regard to the Board' s jurisdiction herein is hereby denied. See Carson City Nugget Casino, Inc., 161 NLRB 532. 161 NLRB No. 111.