Buddy Schoellkopf Products, Inc.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buddy Schoellkopf Products, Inc. and Amalgamated Clothing Workers of America from publication.] AFL-CIO.' Cases 16-CA-2562, 2607, 2648 and 2648-2 and 16-RC-4119. May 16, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 15, 1967, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the 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 Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal thereof. In addition, the Trial Examiner found merit in certain of the objections to conduct affecting the election results, and recommended that the election held on January 14, 1966, in Case 16-RC-4119, be set aside, and that a second election be directed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting 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. 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 brief, and the entire record in this case, and hereby adopts the findings," conclusions, and recommendations of the Trial Examiner.; ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Buddy Schoellkopf Products, Inc., Dallas and Mineola, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the election held on January 14, 1966, among the employees of Buddy Schoellkopf Products, Inc., Dallas, Texas, in the stipulated unit be, and it hereby is, set aside. [Text of Direction of Second Election omitted Herein called the Union ' The Trial Examiner, in finding that Respondent discharged Maldonado in violation of Section 8(a)(3), stated that Respondent's knowledge of Maldonado's union activities "can be imputed" from a top-level supervisor to the employee's immediate supervisor We need not pass upon this dictum of the Trial Examiner It is sufficient that Respondent was aware of Maldonado's active support of the Union's organizing drive, having been so informed by telegram from the Union on October 27 In view of his finding, which we adopt, that Respondent exceeded the bounds of lawful questioning, we find it unnecessary to pass upon and do not adopt the Trial Examiner's opinion as to when an employer may legitimately begin questioning his employees with respect to their union activities for the purpose of preparing his defense to unfair labor practice charges TRIAL EXAMINER'S DECISION AND REPORT AND RECOMMENDATIONS ON OBJECTIONS TO THE ELECTION STATEMENT OF THE CASE WILLIAM W. KAPELL, Trial Examiner: Cases 16-CA- 2562, 16-CA-2607, 16-CA-2648, and 16-CA-2648-2, proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard before me in Dallas, Texas, on August 18 and 19 and September 20, 1966,' pursuant to due notice on a consolidated amended complaint2 issued on June 30, by the Regional Director of Region 16 of the National Labor Relations Board, hereafter called the Board, alleging that Buddy Schoellkopf Products, Inc., hereinafter referred to as Respondent, violated Section 8(a)(1), (3), and (5)3 of the Act by various specified acts of interference, restraint, and coercion, by the discriminatory discharge of certain employees, and by the discriminatory denial of overtime work to another employee. In its answer, Respondent denied the supervisory status of employees Reba Luttrell, Joe Henson, and George Helm, whose violative conduct is imputed to Respondent, and also denied engaging in any conduct violative of the Act. The complaint also alleges that pursuant to a Stipulation for Certification upon Consent Election in Case 16-RC-4119, an election was held on January 14 to determine whether Respondent's employees at its Dallas plant desired to be represented for the purposes of collective bargaining by the Union in a unit consisting of all production and maintenance employees. Following said election, which the Union lost, timely objections to conduct affecting the results thereof were filed by the Union on January 20. A report on said objections was issued by the Regional Director on April 7, overruling certain objections and recommending a hearing on others. Exceptions thereto were filed by the Union on April 29, All dates hereafter refer to the year 1966 unless otherwise noted ' Based on charges filed herein in each case by the Amalgamated Clothing Workers of America , AFL-CIO, hereafter referred to as the Union By amendment dated August 10, General Counsel deleted those paragraphs of the complaint alleging the grounds for and the violation of Section 8(a)(5), and renumbered and amended subsequent paragraphs , as therein indicated , to accommodate the deletions Accordingly , said violation is not considered herein 164 NLRB No. 82 BUDDY SCHOELLKOPF PRODUCTS pursuant to which the Board issued its order directing a hearing on certain of the objections, which was to be consolidated with the hearing in the complaint proceedings. All parties were represented and afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. General Counsel, Respondent, and the Union filed briefs which have been carefully considered. Upon the entire record4 in the cases and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent at all times material herein has been a corporation duly organized under and existing by virtue of the laws of the State of Texas with its principal office and place of business in Dallas, Texas, and a branch plant in Mineola, Texas , and has been engaged at said plants in the manufacture , sale, and distribution of hunting and camping equipment and other related products. During the past year , Respondent , in the course and conduct of its business operations at its plants , manufactured and sold products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plants directly to purchasers located in States of the United States other than the State of Texas. Respondent admits, and I find , that at all times material herein that it has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that at all times material herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. - III. THE UNFAIR LABOR PRACTICES A. Respondent's Alleged Violations of Section 8(a)(3) Respondent is charged with having violated Section 8(a)(3) of the Act by discriminatorily discharging Gertrude Bradshaw on or about October 28, 1965, Robert R. Maldonado on or about November 19, 1965, and Milton Tyler on or about May 4; and by discriminatorily withholding the assignment of overtime work to employee ' At the hearing, General Counsel moved to (1) delete paragraph 9 of the consolidated amended complaint and the first paragraph of objection 15 to conduct affecting the results of the election (apparently overlooked in his amendment dated August 10, supra), (2) amend renumbered paragraph 8(b) by adding the date of October 28, 1965, with respect to threats allegedly made by Reba Luttrell, and adding a new subparagraph (g) to the effect that on May 3, Fritz Lyric prepared and circulated a questionnaire among the employees at Respondent's Dallas plant, which coercively interrogated and interfered with the rights of said employees to engage in union activities , and (3) amend renumbered paragraph 7 of the complaint by adding "Fritz Lyne-Attorney and agent " The amendments were granted over the objections of Respondent. At the conclusion of the General Counsel's case-in-chief, rulings on Respondent 's motions to dismiss on the ground that no prima facie case had been made, and to strike the testimony with respect to any conversations or occurrences involving employees Reba Luttrell and George Helm on the ground that it had not been established that either one was a supervisor whose testimony was binding on Respondent, were reserved The motions are hereby 661 Melvin Jaynes since on or about October 13, 1965, because of their union activities. 1. Gertrude Bradshaw Bradshaw began working in Respondent's Mineola plant on July 18, 1962, as a machine operator under the supervision of Frances Dobbs. She took an active part in the Union's organizing campaign at that plant during 1965. Her activities included signing an authorization card on July 12, successfully soliciting or aiding in the solicitation of other employees to sign such cards, being elected and functioning as a union committeewoman from the town of Quitman, where she resided, and attending union meetings at which she reported her organizing progress.5 On or about August 1, 1965, the Union advised Respondent by telegram that she had signed an authorization card. On the morning of October 28, 1965, Bradshaw and other employees reported for work at the Mineola plant shortly prior to 8 a.m., their starting hour, and engaged in conversation as was their practice. When the bell rang signaling the beginning of the shift, she sat down and began operating her machine. Almost immediately, Frances Dobbs approached her and said "Gertrude, I want you and Bessie and Maxine [operators working close by] and other women who are campaigning for the Union to stay at your machines and sew." Bradshaw denied either leaving her machine or ever talking about the Union on company time, and asked why Dobbs did not tell the nonunion women to stay at their machines. Dobbs replied that she intended to and started to leave, but returned after taking a few steps and said "but, I don't have to take any smart talk from you as of yet," to which Bradshaw replied, "Well, I don't think I have to you either." Employees Maxine Nethery and Bessie Willingham, who witnessed the conversation between Bradshaw and Dobbs, corroborated, in substance, the testimony of Bradshaw, which is credited as related above.6 Following her conversation with Bradshaw, Dobbs reported to Hosea that Bradshaw had told her that she did not have to take any smart talk from her. Hosea then had her summon Bradshaw to his office where he told her that Dobbs had reported to him that she (Bradshaw) told Dobbs that she did not have to take orders from her. Bradshaw denied it, but Hosea told her he took the word of his supervisor and discharged her for insubordination.7 disposed of in accordance with the findings and conclusions hereinafter set forth Subsequent to the closing of the hearing, General Counsel submitted an unopposed motion dated October 20 to correct the transcript The motion is hereby granted 5 She participated in the signing up of approximately all 60 employees who resided in Quitman. 6 Dobbs testified, in substance , that earlier that morning upon requesting permission from Superintendent Derrell M Hosea to tell the machine operators to be at their machines when the 8 o'clock bell rang, she was instructed to advise the girls to stay at their machines during working hours, and , if they wished, to campaign for the Union during their lunch and coffeebreaks. She then approached Bradshaw at her machine and repeated Hosea's instructions to the girls . Bradshaw demed talking about the Union and asked Dobbs, "Why don't you go and tell some of the others that." Dobbs replied that she intended to and started to leave when Bradshaw stated that she did not have to take any smart talk from her ' He admitted on cross-examination that he had decided to fire her before she was called to his office 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bradshaw thereupon claimed that he was firing her on account of the Union but Hosea denied it.8 About a week or two later Respondent for the first time advised its employees of its basic work rules at an employee meeting and also posted them. These rules included the following: 5. INSUBORDINATION-any employee who is found guilty of insubordination shall be subject to company discipline as that term is hereinafter defined. The term "insubordination" shall include but will not be limited to excessive talking during working hours. Employees are required to stay at their work station and are not allowed to visit with other employees during working hours. Employees who are on breaks and lunch periods shall not go in to working lines for any reason. Conclusions It is evident from the testimony of Dobbs and Hosea that the latter was concerned about excessive talking of employees who were engaging in union campaigning while at work. Bradshaw, however, was not fired because of excessive talking but rather for insubordination, which in the testimony of Hosea consisted of his understanding that she [Bradshaw] had told her supervisor that she did not have to take orders from her. Bradshaw not only denied that she said it but also denied ever refusing to take orders. Her credited testimony, in effect, shows that she made the remark about not having to take any smart talk from Dobbs only in reply to a similar remark addressed to her by Dobbs. Moreover, it appears that it was only in Hosea's office after he had stated that he understood Bradshaw to have declared her refusal to take orders from her supervisor, that Dobbs confirmed his understanding and accused Bradshaw of insubordination. Prior to that time according to Dobbs' testimony she had accused Bradshaw only of stating that she would not take any smart talk from her. It is also significant to point out that Hosea admitted that he decided to fire Bradshaw before she was summoned to his office, and that although she denied the insubordination accusation, she was not given an opportunity to present her version of the incident. The credited testimony shows that no insubordination had actually taken place, and that Bradshaw's remark about not taking any smart talk from Dobbs was in large measure provoked by Dobbs. Furthermore, even if Dobbs' version of the conversation with Bradshaw is accepted the remark attributed to Bradshaw was, at most, impertinent or insolent. In this connection it is noteworthy to point out that the basic work rules promulgated after Bradshaw was discharged included excessive talking in its definition of insubordination. This unusual construction of the term "insubordination" strongly suggests that it may have been intended to cover retroactively the Bradshaw discharge. It is also pertinent to note that no warning was given to Bradshaw, and that her discharge occurred shortly after a union organization campaign culminated in a representation election, in which she had been very active. Considering all the evidence, I find that Respondent was motivated to discharge Bradshaw because of her union activities in violation of Section 8(a)(3) of the Act, and that its claim of insubordination was pretextual and intended to mask its true motive. 2. Robert R. Maldonado Maldonado began working at Respondent's Dallas plant in September 1964, after having been hired by G. L. Hudson, superintendent of the cutting room department. He was paid $1.35 an hour to start with and later was successively raised to, $1.45, $1.60, $1.70, and finally to $1.80. His work consisted of operating a diecutting machine, cutting plastic, leather, and cloth in the cutting room department. He became interested in the Union in August 1965 following a visit to his home by a union representative. At that time he signed a union card and thereafter attended a number of union meetings, assisted in recruiting members for the Union, and signed up two employees. On October 27, 1965, the Union sent a telegram to Respondent listing the names of its employees, including Maldonado's, who were on the organizing committee. It was the Union's policy at the time to advise Respondent when its employees joined and became active in the Union. In June 1965, Maldonado in a conversation with Superintendent Hudson advised him that he intended to take a civil service examination for employment in the post office. Hudson asked him to give 2 weeks' notice before he took the examination in order to give them ample time to train a replacement. Hudson also advised him that he understood that Maldonado would not be hired immediately and could continue working until called by the post office. The following month Maldonado told Jim Leigh, his supervisor at the time, about his expectations with respect to a post office job. Leigh replied that he was not opposed and was pleased to see a young man get ahead. On November 15, 1965, Maldonado told Leigh that his civil service examination was scheduled for November 21. Leigh inquired whether he was giving notice to quit, and Maldonado replied that he was not, because he did not know whether he was going to pass the test. Later that morning Hudson met Maldonado and said that he had heard that he was leaving. Maldonado denied that he was quitting, claiming he was only going to take a test. At 2 o'clock that afternoon Leigh called Maldonado to his office where they met Hudson. A tape recorder was then turned on, and Leigh stated that they do everything with a tape recorder nowadays. A statement was then read to Maldonado to the effect that on November 14 he had advised Leigh he was going to take a civil service test, and concluded with an assertion that on Friday his resignation would be accepted. Maldonado denied that he was quitting, and stated again that he did not even know whether he would pass his test. Hudson replied, "When you look for a better job, you know you no longer want to work for us," and that the Company had invested a lot of money in training him and could not afford to hire a replacement and keep him on at the same time. Maldonado then returned to his cutting machine but shortly thereafter was transferred to another department. On Friday of that week, November 19, Leigh gave Maldonado his paycheck and told him to punch out. Maldonado examined his check and complained that it did not include his vacation pay. Leigh informed him that inasmuch as he had quit he was not entitled to vacation pay. Maldonado again disavowed that he was quitting and asserted that he was being fired. On the following Monday, Maldonado returned to the plant but was refused " These findings are based upon the composite testimony of Bradshaw, Dobbs, and Hosea BUDDY SCHOELLKOPF PRODUCTS admission by Hudson and Leigh. When he inquired whether it was because he had been fired he was told, "No, you quit." Maldonado again denied quitting.` Conclusions The evidence patently establishes that Maldonado was discharged despite Respondent's attempt to make it appear that he quit.10 Respondent defends its position primarily on the grounds that Hudson knew nothing of Maldonado's union activities, and that inasmuch as there was an abundance of employees to do the work which Maldonado was performing, Hudson preferred to train his replacement, if one was to be made, rather than have the former operator do so, especially if that operator was quitting. I find no merit in these contentions. Maldonado was an active union member and Respondent had been so advised by telegram from the Union on October 27, 1965. Hudson, according to his own testimony, was a cutting coordinator, whose duties included coordinating the cutting between the pattern room and the cutting room. He admittedly supervised George Helm and Jim Leigh, and reported directly to Vice President Delbert Chandler. Respondent conceded that Jim Leigh was a foreman, and although it denied the supervisory status of George Helm, he also is found, infra, to be a supervisor. Thus, Hudson's status in Respondent's supervisory hierarchy was higher than that of a foreman and properly included within the upper echelon of management. In that capacity, the Union's notice to Respondent apropos of Maldonado's union activities can be imputed to him." I also find unpersuasive Respondent's other contention that Maldonado was fired because Hudson preferred to train his replacement rather than have Maldonado do so, and thereby avoid the expense of keeping Maldonado on the payroll. If Hudson wished to train the replacement, he could have done so if and when Maldonado quit, in which event Maldonado, who was regarded as a satisfactory worker, could have continued on the job. There was no reason to fire him when presented with what appeared to be an opportune time to effect his separation, especially at a time when the Union was engaged in an organizing campaign, which was being vigorously contested by Respondent. See infra. Furthermore, Respondent's persistent use of the term " resignation" when, in fact, it was actually discharging Maldonado, strongly suggests that for undisclosed reasons it wished to avoid the stigma of effecting a discharge during a union organizing campaign. Under these circumstances, I conclude that Respondent was motivated to discharge Maldonado because of his union activities in violation of Section 8(a)(3), and deviously attempted to resort to a "forced resignation" as a pretext to effect his separation. " The above findings are based on the credited testimony of Maldonado Hudson testified that after he told Maldonado that his resignation was being accepted, Maldonado replied that he wanted to work until the Civil Service called him, but that he (Hudson) did not see fit to keep him on any longer than Friday of that week He also admitted on cross-examination that Maldonado may have said it would be some time after the test before he could be sure whether or not he wanted to quit " A transcript of the recorded conversation (Resp Exh 8) in Hudson's office confirms that Maldonado was repeatly told, despite his protestations, that he was resigning ' i There is also evidence and findings, Infra, to the effect that Helm interrogated Maldonado about his attendance at union meetings 663 3. Milton W. Tyler Tyler was hired by Respondent in March to work in the warehouse at the Dallas plant. His duties were essentially those of a stock clerk,1i and he worked under the supervision of James Morris and Jim Winterow, the warehouse foreman. His duties also included moving stock from the top of the warehouse bins to the lower part so that female order-fillers could reach such stock when necessary. On May 4 after less than 2 months' employment, Tyler was discharged by Morris for failing to take out the trash and move some gun cases as directed, and for excessive talking to the female order-fillers. Tyler admitted that he failed to move the gun cases as directed but claimed that his other duties precluded him from doing so. He also admitted talking to the female order-fillers, but denied that it was excessive and contended that it was necessitated by the nature of his assistance to them. According to Morris whose testimony was persuasive and is credited, Chandler told him in April that upon checking the stock in the warehouse he found it intermingled, and he was instructed to have it straightened out. Morris, thereupon, ordered Tyler to attend to the matter. Upon checking later, Morris found that Tyler had failed to straighten out the stock, and he again directed him to attend to it in preparation for taking a new inventory. Tyler, however, again failed to do so. About that time, Morris was also advised by Forelady Vivian Murphy that she was having a problem with Tyler because he was going into the packing room and talking to the female employees whom she supervised. Morris, thereupon, discharged him. General Counsel contends that Respondent was aware of Tyler's prounionism and discharged him because of it. He presented testimony by Tyler to the effect that on May 3 he was present when a questionnaire was passed out to the employees by the Company and saw employees Ronnie Miller and his mother inserting the answers. Upon observing some of the questions he commented to them that he would throw the questionnaire in the trash because the Company was breaking the law,13 and he also made some prounion statements to the Millers. He, however, was unable to state whether Vivian Murphy was present at that time.14 Nor was there any testimony produced to establish that any other supervisor or representative of management was present at that time or heard his remarks. Tyler also testified that on May 3, the day before he was discharged , he had lunch with Wayne Winthrop , who was his immediate supervisor and directed his work, and that during the luncheon he freely expressed himself in favor of the Union.15 '2 His testimony that he also filled orders is not credited The testimony of James Morris, superintendent of the warehouse, and Vice President Chandler to the effect that he was only a stock clerk appeared more reliable "The legality of the questionnaire is discussed, infra, as an alleged violation of Section 8(a)(1) 'a Earlier, when he noticed that the questionnaires were being distributed, he had asked Murphy what they were and was told that it was none of his business and he was not to get one "The complaint, which lists 11 individuals as alleged supervisors, does not include Winthrop, nor was any amendment to the complaint offered to include him 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions The record shows that Tyler named only Morris and Winterow as supervisors when testifying about his duties and his supervision. It was only in connection with the luncheon with Winthrop that he claimed the latter to be his immediate supervisor, whereas his previous testimony indicated that Winterow was his immediate supervisor. I find that General Counsel has failed to establish that Winthrop was a supervisor within the meaning of the Act, whose knowledge of Tyler's prounionism can be imputed to Respondent, or that Respondent was otherwise aware of his prounionism . I find further that he was discharged because of his unsatisfactory work and not because of his prounionism. Accordingly, I shall recommend that the allegations of the complaint pertaining to his alleged discriminatory discharge be dismissed. 4. Melvin Jaynes As indicated above, Respondent is charged with having discriminatorily withheld the assignment of overtime work to Jaynes. He started working for Respondent at its Dallas plant in December 1959. At first, he spread materials in the cutting room, then was trained as a cutter, and thereafter continued to do both types of work for 2 years until 1961 when he became the foreman's assistant for about a year. He then was made a foreman and served in that capacity until October 1963 when he became ill and underwent surgery. Upon his return to work about 2 1/2 weeks later, he was informed by Hudson that Helm had replaced him as foreman, and he was given the job of marker, which consisted of preparing the markers to guide the spreaders and cutters. In addition, he also did a little spreading and cutting. He performed these tasks until October 1965. Meanwhile on September 13, he signed a union authorization card and on October 7, he attended a union meeting. The following week on October 13, he, Leigh, and Hudson were called to one of the offices where Vice President Chandler read a prepared statement to Jaynes relating that there was some question about him being a foreman at the time and advising him that he was neither an assistant foreman in the cutting department nor any part of the management team, and that, accordingly, he was free to continue his union activities. As a result, Jaynes decided that he might as well openly campaign for the Union and thereafter attended all union meetings and successfully solicited eight employees to sign union cards. Prior to October 13, occasional mistakes in his work were called to Jaynes' attention by his supervisors and he was admonished to be more careful in the future. Thereafter, whenever he made a mistake he was reprimanded in a stern manner. Thus, on October 27, he made an incorrect count in spreading cloth to be made into vests carrying shotgun shells and also made a mistake in "turnbacks," which he called to the attention of Leigh, who instructed him how to correct them. Shortly thereafter, Hudson appeared and in an angry tone berated him for making these mistakes. On another occasion he cut over the line in cutting cloth and the next morning Hudson gave him a written reprimand for sloppy cutting. Sometime thereafter, he was given a third reprimand by 16Jaynes' testimony pertaining to overtime assignments was based on personal notes maintained by him " Nor was any contention made by Respondent that the quality of his work was inferior to that of the other cutters who were awarded overtime work Hudson for incorrect counting on a spread job which he had done 3 weeks before, although he denied making the error, and asserted that Leigh and another employee, Harrison Holloway, had okayed the count at the time it was made. On April 14, he spread some material wrongside up, which was detected in time but Hudson, nevertheless, gave him another written reprimand, and informed him that 200-odd gun cases would have been ruined if the error had not been discovered in time. Two other employees, Green and Roden, were also employed at the time in cutting. However, when Roden made a serious mistake in November 1965 he was not reprimanded; nor was Green reprimanded for making several mistakes, especially one on November 9, 1965, when he was found to be one short in a dozen. Green was told only that his counting was bad. Nor were reprimands issued to him on other mistakes, despite the loss of time resulting from correcting his errors or in improvising to reduce the loss. Prior to October 1965 Jaynes had frequently been assigned overtime work. Following October 13 when he was told about his nonsupervisory status and his right to continue his union activities, other employees worked overtime on one or two Saturdays but no such overtime work was assigned to him. As far as he knew there was no overtime work in November and December 1965 and January 1966. On or about February 5 he heard Hudson tell Leigh that everybody was to work overtime except him. Although Green and Roden were assigned overtime work thereafter none was assigned to him until one day in March when he was assigned 30 minutes overtime while the other cutters worked 1 hour overtime. 16 In contradicting Jaynes' testimony concerning his overtime assignments, Respondent introduced two exhibits (Respondent's Exhibits 3 and 4) reflecting that Jaynes worked 1 hour overtime during the week of April 10, and 7 1/2 hours overtime during the week ending April 3. Jaynes did not deny these overtime assignments and claimed that he did not remember them. Conclusions The complaint alleges only that Jaynes was discriminated against with respect to overtime work assignments . His testimony was not refuted as to the occasions on which overtime work was assigned to the other cutters but not to him. Nor did Respondent attempt to explain or justify this alleged discrimination. Although he admitted making mistakes in his work, he also testified without contradiction that the other cutters were also responsible for making mistakes, which appeared to be as serious as those committed by him." Respondent controverted his testimony with respect to his overtime work assignments by introducing only those of its records which established that he worked overtime on two occasions, which he admittedly failed to remember. Significantly, however, Respondent did not see fit to produce its records showing the extent of the assignment of overtime work to its other cutters during the contested period. The unexplained failure of Respondent to produce such records suggests a strong inference that they would not support its contention that it did not discriminate in the assignment of overtime work. 18 " II Wigmore, Evidence, §285 (3d ed ). see also Missouri Transit Company, 116 NLRB 587, 588, enfd 250 F 2d 261 (C A 8), with reference to inferences to be drawn from a litigant's failure to produce pertinent records. BUDDY SCHOELLKOPF PRODUCTS I find that the evidence clearly establishes that Respondent was aware of Jaynes' union activities at least on or before October 13 when he was advised that he was free to continue his union activities; and that it was also made aware on October 27 when it received the Union's telegram that Jaynes was continuing his activities as a member of the Union's organizing committee. I find further that Respondent failed to rebut Jaynes' testimony that he was discriminated against in the assignment of overtime work. Viewing these factors in the context of all the evidence, especially the timing of the overtime work assignments, the disparate treatment accorded Jaynes with respect to his mistakes and reprimands, and Respondent's failure to justify or account for the discrimination which it failed to controvert, I conclude that since about October 13, 1965, Respondent was motivated to discriminate against Jaynes in the assignment of overtime work because of his union activities in violation of Section 8(a)(3) of the Act. B. The Alleged Interference, Restraint, and Coercion 1. The disputed supervisory status The complaint' alleges and General Counsel contends that Reba Luttrell, George Helm, and Joe Henson are supervisors within the meaning of the Act at Respondent's Dallas plant, whose interrogation of rank-and-file employees is binding on Respondent and violative of Section 8(a)(1) of the Act. Respondent denies that they are supervisors or that they engaged in violative interrogation. Accordingly, the resolution of their supervisory status is dispositive of whether Respondent can be held responsible for their antiunion conduct, if any. a. Reba Luttrell The following evidence was presented by General Counsel to establish the supervisory status of Luttrell: Lois Cole, an employee who worked in the leather department, testified that Luttrell was an assistant to J. D. Holman, the supervisor of the leather department, that Luttrell gave work and orders to about 10 employees, that if Luttrell answered the telephone whenever she called in to report being sick, Luttrell would reply that she would so advise Holman, that whenever she requested permission from Luttrell to take time off, Luttrell replied that she would tell Holman about it, that she never knew Luttrell to have disciplined an employee or to have discharged one, that in 1965 she heard Holman introduce Luttrell as his assistant to some visitors who were going through the plant; and that on the day of the election Holman told her that he and not Luttrell was the boss. Nancy Shimmel, an employee who did assembling and varnishing in Holman's department, testified that on one occasion she asked Luttrell for time off and was referred to Holman who granted it, that Luttrell never gave her permission to take time off, that when she called in to report her inability to appear for work because her children were ill, Luttrell, who answered the telephone, replied, "all right," that when things went wrong she would ask Luttrell, the oldest and most experienced employee, what to do and, in turn, was advised and shown how to correct the trouble, that when she was out of work 665 she went to Luttrell who assigned work to her, and that she could not recall ever being taken off one assignment by Luttrell and being given another one by her. ty Lee J. Metger, a union representative, testified that, accompanied by another union representative, he visited Luttrell's home about the end of October 1965 for the purpose of ascertaining her status as a supervisor, which appeared in doubt, that in response to his question as to whether she could hire or fire employees, she replied in the negative, that she stated she considered herself an assistant forelady who could effectively recommend to Holman to promote, transfer, or discipline an employee, and that she attended supervisors' meetings. Respondent in support of its contention that Luttrell was not a supervisor adduced the following testimony: J. D. Holman testified that he was the foreman in the leather department, that Luttrell had no authority to hire, fire, etc., that she directed the work of other employees only pursuant to his supervision, that he occasionally used her to instruct other employees because she was the oldest and most experienced employee, and that she carried out his orders. Chandler testified that Luttrell was the only cutter in the leather department, that she was supervised by Holman, that she had no supervisory responsibilities, and that she attended some supervisors' meetings as a leadwoman to discuss production problems stemming from her work. Luttrell testified that she was a leather cutter and did the cutting as indicated on the tickets sent to her from the office, that she ordinarily used a round knife to cut the leather except on straps when she used a machine on which she was assisted by another employee, who caught the straps as they dropped on the opposite side of her machine, that this assistance was of a mechanical nature requiring no instruction or training, that Holman assigned the employees who assisted her or did it himself, that she had no authority to hire, fire, promote, grant pay raises, or to recommend such action, that she never told Metger that she could do any of these things, that she attended supervisors' meetings to discuss the quality of the leather cut by her, and never participated in discussions of company policy concerning rank-and-file employees, and that she voted at the representation election but her ballot was challenged. Conclusions I find that the evidence establishes that employee requests for permission to take time off made to Luttrell were referred by her to Holman who acted on them; that ,she was a production worker who performed routine skilled work specified on tickets sent to her from the office; that she also served as a conduit for instructions from Holman, the foreman, to other employees; and that because of her greater skill and experience, other less experienced operators sought her advice in their work. I also credit the testimony which indicates that she did not have the authority to hire, fire, or discipline other employees, or to effectively recommend such action. Although General Counsel presented conclusionary testimony that she could effectively recommend such action, the record is barren of any evidence to support that conclusion. I, therefore, conclude that General Counsel " In illustrating the manner in which Luttrell directed her work, Shimmel, in effect, referred to such direction as being given instructions on how to correct her mistakes. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has failed to establish by a preponderance of the evidence that Luttrell was a supervisor within the meaning of Section 2(11) of the Act . See N.L.R.B. v. Lindsay Newspapers , Inc., 315 F.2d 709, 712 (C.A. 5). b. Joe Henson Henson testified that he was in charge of the receiving department, that his duties included receiving all raw material and issuing it to the cutting department and the gun case line, that he kept a daily record of receipts and distribution of materials, that he directed two employees who assisted him in his work, that he also physically engaged in the work, and that he reported directly to the secretary-treasurer of the Company. It also appears from the credited testimony of Maldonado that when Henson went to summer camp, he was temporarily replaced by Jim Winterow (an admitted supervisor), and that on one occasion when he and Henson were discussing the Union, Henson stated that he could not attend any union meetings because he was a supervisor. It is apparent from the evidence that Henson, who admittedly was in charge of the receiving department, directed the work of two assistants. The fact that he personally engaged in some of the work does not detract from his supervisory responsibility in running his department. It is also significant to note that Henson reported directly to an officer of the corporation without any intervening level of authority, such as a foreman or superintendent, who operated in other departments. I conclude that Henson was a supervisor within the meaning of Section 2(11) of the Act. See N.L.R.B. v. Southern Airways Company, 290 F.2d 519,523 (C.A. 5). c. George Helm Respondent concedes that Helm was a supervisor in the cutting room and head patternmaker until the last week of October 1965. At that time management decided that Helm's work was too much for one man and his supervisory duties were transferred to Jim Leigh who became sole foreman in the cutting room while Helm remained only as head patternmaker and marker. These changes were then announced to the employees at a departmental meeting.20 Maldonado testified that Helm interrogated him about the Union after October 27, on the 28th or 29th,21 and that Helm was replaced as a supervisor "maybe 2 or 3 weeks later." Thus, it becomes material to determine whether Helm's supervisory duties terminated before the alleged interrogation took place. In his brief, General Counsel, in support of Helm's supervisory status, stresses his testimony to the effect that on the day of the representation election (January 14), he neither ascertained whether he was on the eligibility list to vote nor voted, and that in a conversation on that day Hudson told him he did not know whether or not he was eligible to vote and suggested that he should not vote because he had "'These findings are based upon the testimony of Helm, Holman , and Chandler 21 The complaint alleges that it occurred on October 29 22 These findings are based upon the credited testimony of Maldonado, who impressed me as being a trustworthy witness Henson not only denied that he questioned Maldonado about the Union, but asserted that it was Maldonado who, in fact, asked him whether he was going to attend the meeting , and that in reply he inquired what time the meeting was to take place , and then stated that he would not attend because he was not interested in joining been a supervisor. Helm, however, explained that he did not vote because he had made it a practice from past experience to wait and see before committing himself, and that he would not have voted regardless of Hudson's suggestion. Furthermore Maldonado who testified on behalf of the General Counsel admitted that Helm was no longer a supervisor several months before the election. Viewing the definite testimony of Helm, Chandler, and Holman as to the date of the transfer of Helm's supervisory duties to Leigh, the plausibility of the reason for the change, the failure of General Counsel to controvert the announcement of the change to the employees at a departmental meeting, and the indefinite testimony of Maldonado as to the precise date of the change, I conclude that Helm was no longer a supervisor prior to October 28, 1965. 2. Respondent's alleged violative conduct a. By Reba Luttrell and George Helm As related, supra, both Luttrell and Helm, at all times material herein, were found not to be supervisors, whose antiunion conduct could be imputed to Respondent. Nor does the record show that they engaged in interrogation of fellow employees at the instigation of or request of Respondent. It, therefore, follows that Respondent cannot be held responsible for their interrogation, if any, of employees. Accordingly, I shall recommend that those allegations of the complaint setting forth Respondent's violations of Section 8(a)(1) of the Act based upon their antiunion conduct be dismissed. b. By Joe Henson As indicated above, Henson was found to be a supervisor, whose antiunion conduct, if any, can be imputed to Respondent. The General Counsel adduced evidence to indicate that Henson engaged in such conduct on two occasions. The first occasion occurred in September 1965 when Maldonado was asked in a conversation with Henson whether he had attended a union meeting. Henson also expressed a desire to join the Union to better his working conditions but regretted his inability to attend the meeting because he was a supervisor. When Maldonado advised him that he had attended the meeting, Henson asked what he thought about the Union. 22 The second occasion took place in October 1965. At that time a female employee asked Henson during a coffeebreak to issue some material to her. He refused stating that she would have to wait until after the "break." He then told Maldonado and another employee, Tom Walker, that he refused to issue the material because the woman was for the Union.23 I find that in these conversations, Henson interfered with, coerced, or restrained an employee in the exercise of his statutory rights in violation of Section 8(a)(1). the Union Henson's version of the conversation is not credited I find it implausible that he should have inquired as to the time of the meeting if he were uninterested in joining the Union and did not intend to attend the meeting 21 These findings are also based upon credited testimony of Maldonado Henson testified that he refused to issue the material only because he was on a coffeebreak, that he did issue it following the break, and that he did not make the statement attributed to him by Maldonado BUDDY SCHOELLKOPF PRODUCTS c. By James Winterow Tony Sandifer, a former employee of Respondent, testified credibly that while working in November 1965 under the supervision of Winterow, an admitted supervisor, he was asked by Winterow if any of the union guys had been out to see him, and that he replied in the negative. Winterow denied questioning Sandifer, and asserted that while sitting with employee Ronnie Norris and Sandifer during a noon break, Norris asked him whether the union people had been out to see him, that after he replied that they had not, Norris asked Sandifer the same question and received the same answer, and that he had not otherwise engaged in the conversation. Sandifer impressed me as a truthful witness and his testimony as related above is credited. I find that Winterow's interrogation of Sandifer during a union organizing campaign was an invasion of the statutory rights of an employee in violation of Section 8(a)(1). d. By Delbert Chandler It is not denied that on October 27, 1965, employee Thelma Grantham, one of the most active union members at the Dallas plant, was summoned to an office by Chandler and, after discussing vacation plans with her, he asked her to discuss why she was for the Union. Despite her protestations about discussing the matter, Chandler persisted in pressing the subject and finally insisted upon reading to her from a prepared statement. According to Grantham, Chandler referred to the union people as a bunch of "New York Jews, Chicago thugs and known communists," and stated that the Company may end up back on Swiss Avenue (where Respondent's original small place of business was located), that Respondent was not going to allow a union to come in and tell them how to run their business, and that he wasn't threatening anybody, but if anyone went out on strike they would never get back. Chandler denied reading from a statement or making the reference attributed to him as to his characterization of union people or about not permitting strikers to return.24 Based on the demeanor of the witnesses, I credit Chandler's denial that he characterized the union people as claimed. I find, however, that the matter of strikes was discussed, and that Chandler threatened not to take back any employee who went on strike. This threat and Chandler's persistence in discussing the Union and why Grantham supported it, interfered with and coerced Grantham in the exercise of her statutory rights in violation of Section 8(a)(1). e. By Buddy Schoellkopf It is undisputed that Schoellkopf made three speeches to the employees at the Dallas plant , the last of which was made on January 12, 2 days before the election. The General Counsel adduced testimony that in this speech, Schoellkopf made statements to the effect that those employees who supported the Union would be "marked" or that they were known , that if and when such employees 24 In support of Chandler's testimony , notes of the conversation made by him immediately thereafter, were admitted in evidence without objection They do not include the remarks attributed to him by Grantham, which he denied, but do indicate Grantham's reluctance and Chandler' s persistence in discussing the Union and her strong support of, and Chandler's determined opposition to, the Union 667 applied elsewhere for employment, and the prospective employer contacted Schoellkopf for references, he would be notified of the employees' union activities, and that would be the end of their prospects for employment.25 Schoellkopf denied making statements to that effect or that he told any employees that he would notify any other employer that they supported the Union. He produced recorded tapes of his speech to corroborate his denials. Excerpts from the tapes concerning the future employment prospects of employees include the following: Now, you're going to be marked if this union gets in. You're going to be marked, and everybody will know it. And when you leave here for any reason, or your husband moves, or something like that, or you get fired, or whatever the circumstances is and you go applying for another job, they'll say, "Where did you come from?" "Buddy Schoellkopf Products". And they'll say, ". . . that's nice. What did you do?" And you say, "Well, I worked on a zigzag machine". "Well, that's nice. We'll call you if we need you." Think about that, too. Don't worry, they're going to know who's who. And you can't discriminate, by law. You legally cannot refuse to hire somebody just because they're associated or affiliated with a union. If the General Counsel's version of the speech is credited, it clearly carried a threat to the employees that their future prospects of obtaining employment elsewhere would be seriously jeopardized if they continue to support the Union or voted for union representation. Moreover, even if Schoellkopf's version of his speech as set forth in his recording is accepted, I find that it would be reasonable to construe the speech as carrying strong innuendos and implications of a threat to future employment prospects because of union support by employees or a union election victory. In fact, the employees clearly indicated by their testimony that they received that impression from the speech. Thus, the speech emphasized that the employees would be "marked" or known, yet failed to explain how. Under the circumstances it left a strong inference that Schoellkopf would somehow be implicated. Also, the assertion that the denial of future employment would be accomplished legally had a sinister connotation. The question whether certain employer statements are violative of Section 8(a)(1) turns not on the motive for the statements but on its reasonable effect on the employee. "The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7). 1, therefore, conclude that regardless of which version of Schoellkopf's speech is credited, it interfered with, coerced, and restrained employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. f. By Respondent's questionnaire to its employees Following the filing and service of the charge herein on April 12 in Case 16-CA-2648, alleging, inter alia, violation of Section 8(a)(5), in that Respondent has refused to bargain collectively with the Union as the duly designated '' These alleged remarks are based upon testimony of Lois Cole, Thelma Grantham, Johnnie Carrington, and Nancy Shimmel Although each of these witnesses differed somewhat in relating their version of the speech , the pertinent composite effect of their testimony is summarized as recited above 1 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority bargaining representative of its employees, the Regional Director of the Board sent a questionnaire 26 to each of Respondent's employees, requesting information pertaining to the signing of union authorization cards for the purpose of verifying the information contained on such cards. On May 3, Respondent's supervisory personnel distributed to its employees while at work a packet containing a letter, a questionnaire, and a stamped envelope addressed to Respondent's attorney, Fritz Lyne (General Counsel's Exhibit 2). The letter stated that the Union claimed that, although it represented a majority of the employees on December 29, 1965, it lost the election because of Respondent's unfair campaign tactics, and it, therefore, had filed charges with the Board; and that in order for the Company to properly prepare its defense to those charges, Respondent requested the employees to fill out and return the attached questionnaire, and assured them that no one would be penalized for having signed a union card. Janie Mitchell, an admitted supervisor, requested the employees to complete the questionnaire and place it in and seal the envelope, and stated that she would pick it up. The sealed envelopes were then collected and sent to Respondent's counsel.27 General Counsel and/or the Charging Party contend that questions numbered 6, 7, 8, 9, 10, 11, and 12 in Respondent's questionnaire exceed the permissible limits accorded Respondent in preparing its defense, and are therefore violative of Section 8(a)(1). Respondent claims that it was entitled to initiate its own investigation to prepare its defense to the filed charges, especially in view of the Regional Director's questionnaire. In substance these questions are as follows: question 6-If a union card was signed, who solicited it?; question 7-If a card was signed, to whom was it given or what happened to it?; question 8-If a card was signed, what was the signer told as to its purpose?; question 9-If a card was signed, in whose presence was it signed?; question 10-If a card was signed, where was it done?; question 11-If a card was signed, did the signer later change her mind? If so, explain the reasons; and question 12-If the signer changed her mind after signing the card, was it done before December 29, 1965, was the Union so advised, and, if so, how was the Union notified? The "line between proper preparation of a defense in a proceeding of this type and conduct prohibited by the Act is fine indeed." N.L.R.B. v. Guild Industries Manufacturing, 321 F.2d 108,114 (C.A. 5). Thus: [A]n employer may question his employees in preparation for a hearing but is restricted to questions relevant to the charges of unfair labor practice and of sufficient probative value to justify the risk of intimidation which interrogation as to union matters necessarily entails; and. . .even such questions may not be asked where there is purposeful intimidation of employees. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 743, cert. denied 341 U.S. 914. Or, as the court held in Texas Industries, Inc. v. N.L.R.B., 336 F.2d 128,133 (C.A. 5): On the other hand, fairness to the employer dictates that he be given a reasonable opportunity to prepare his defense. Accommodation of these interests requires that the scope and manner of permissible questioning be strictly confined to the necessities of trial preparation. Conclusions Questions 6, 7, and 9 seek to ascertain the identity of the solicitors of authorization cards, who may well be those employees most actively engaged in the organizational campaign. Such questions on their face intruded into employee activities which were irrelevant to any defense, besides exposing those employees to possible retaliation. Sullivan Surplus Sales, Inc., 152 NLRB 132, 134. Questions 5 and 11 inquire as to the reasons why an employee signed a card or changed her mind after signing a card. These questions deal with an employee's subjective state of mind and have been held violative of Section 8(a)(1). See Joy Silk Mills, supra; Johnnie's Poultry Co., supra; Barker's East Main Corp., 142 NLRB 1194, 1201. I, accordingly, conclude that Respondent's questionnaire transgressed the permissible limits for interrogating employees in violation of Section 8(a)(1).228 g By the discontinuance of employee purchases It is undisputed that prior to October 1965, employees at the Dallas plant enjoyed the privilege of purchasing Respondent's products. This privilege was discontinued in October. Thereafter, at an employee meeting, Schoellkopf was questioned by employees about resuming the purchasing practice. He replied that it could not be reinstated as long as the union business continued. The privilege has not been restored. General Counsel contends that the discontinuance of this privilege was an economic reprisal imposed because of the union activities at the plant. Respondent claims that the record is barren of any proof to show that the privilege was discontinued because of union activities on the part of its employees. It definitely appears that the practice was discontinued during the Union's organizing campaign, that Schoellkopf intimated that it would be resumed after the termination of 28 Ruling was reserved during the hearing on General Counsel's objections to its offer in evidence by Respondent, which had received a copy, and leave was granted to brief the point Question was raised as to whether the circumstances herein-while the Board was investigating the charges and before a complaint was issued-would ordinarily warrant extension of the privilege for preparation of a defense The exhibit was offered as background, which inspired Respondent to initiate its preparation for its defense to the 8(a)(5) charge As indicated, supra, the complaint was amended prior to the hearing to exclude the alleged 8(a)(5) violation None of the briefs submitted touched on this point The Board declined to pass upon a similar situation in Johnnie's Poultry Co , 146 NLRB 770, 776, reversed on other grounds 334 F 2d 617 (C A 8) I see no reason why an employer must wait until served with a complaint before beginning to prepare its defense The exhibit is admitted in evidence as Resp Exh 5 ['These findings are not controverted Employee Johnnie Carrington also testified without contradiction that she placed the questionnaire and the letter in her purse , but when Mitchell picked up her envelope and found that the letter was not enclosed, she requested that the letter be turned over to her and, upon receiving it and the questionnaire, placed them in the envelope 2" The Board has also held that an employer availing himself of the privilege of interrogating employees in preparing a defense to a trial of the case must abide by certain safeguards designed to minimize the coercive impact of such interrogation, one of which requires that the interrogation occur in a context free of employer hostility to union organization Johnnie's Poultry Co , supra, cf Bryant Chucking Grinder Company, 160 NLRB 1526 The findings herein amply establish not only the vigorous opposition to the Union by Respondent but also its violative conduct BUDDY SCHOELLKOPF PRODUCTS 669 the union activities,-2' and that no explanation was offered by Respondent to account for the discontinuance of the practice. Under these circumstances, I find it is reasonable to conclude that the purchasing privilege was discontinued because of union activities, and that it constituted an economic reprisal in violation of Section 8(a)(1). IV. THE OBJECTIONS TO THE ELECTION As related above, an election was held on January 14, at which 37 ballots were cast for and 59 against the Union. Fifteen ballots which were challenged were not sufficient to affect the results. Following the filing of objections to the election by the Union, a report by the Regional Director recommending disposition of the objections, and the filing of exceptions thereto by the Union, the Board accepted certain of the Regional Director's recommendations, overruled others, and directed that a hearing be held on objections 1, 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, and 17. Exceptions and objections by Respondent to the Board's rulings were denied. It is well settled that the Board will consider only conduct which occurred after the date of the filing of the petition for an election as a basis of objections to an election."" The petition was filed herein on November 12, 1965. Objections 8, 10, 11, and the second part of 15 encompass the following conduct during the critical period: Interrogation of employees, the unrevoked discontinuance of the employees' purchasing privilege of company merchandise, the unremedied discriminatory discharge of Bradshaw and Maldonado, the continued discriminatory withholding of overtime work to Jaynes, and Schoellkopf's threat to future employment prospects of employees. This conduct has been found hereinabove to be violative of Section 8(a)(1) and (3). I find further that such conduct, a fortiori, also interfered with the exercise of a free and a untrammeled choice in the election held herein. Accordingly, I find merit in and sustain the aforementioned objections. Moreover, even assuming, arguendo, that Respondent's conduct was not violative of Section 8(a)(1) and (3), I find that its vigorous opposition to the Union culminating in Schoellkopf's preelection speech of January 12, generated an atomosphere of fear of economic loss, which rendered impossible the exercise of free choice in the election. See R. D. Cole Manufacturing Company, 133 NLRB 1455, 1457; Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 553. I shall, therefore, recommend that the election held herein be set aside and that a new election be held. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of 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 burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW In view of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law: 24 Although he claimed he could not resume the practice prior to that time, he apparently did not feel precluded from 1. At all times material herein, the Union has been a labor organization within the meaning of Section 2(5) of the Act. 2. At all times material herein , the Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with , restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribes) by Section 8(a)(1) of the Act. 4. By discriminatorily discharging Robert R . Maldonado and Gertrude Bradshaw , and discriminatorily withholding overtime work from Melvin Jaynes, thereby discouraging membership in the above Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. All allegations of the complaint as to which specific findings of violation have not been made, have not been sustained by the preponderance of the evidence. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act. Having found that Gertrude Bradshaw and Robert R. Maldonado were discriminatorily discharged, I shall recommend that they be offered full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. I shall also recommend that Respondent make them whole for any loss they may have suffered by reason of discrimination in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Melvin Jaynes was discriminatorily denied overtime work, I shall recommend that Respondent make him whole for any loss he may have suffered by reason of the discrimination practiced against him. Having found that Respondent discriminatorily withdrew the privilege previously granted to its employees to purchase its products, I shall recommend that Respondent immediately restore said privilege. Having found that Respondent's unfair labor practices interfered with the exercise of a free and untrammeled choice in the election held in Case 16-RC-4119, I shall recommend that the election be set aside and a new election be ordered. In view of the nature of the unfair labor practices engaged in by Respondent, I shall also recommend that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I shall recommend that Respondent, Buddy Schoellkopf Products, Inc., its officers, agents, successors, and assigns, shall: terminating it during the union organizing campaign i" Goodyear Tire and Rubber Company, 138 NLRB 453 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees in the exercise of their statutory rights by interrogating them about union matters, threatening economic reprisals in the event that they supported the Union, or that the Union won the election, or withdrawing economic benefits previously granted employees in retaliation for their union support. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to join, form, or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities. (c) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization, by discharging and refusing to reinstate employees or denying overtime work to them, because of their union activities, or in any other manner discriminating against them with respect to hire or tenure of employment or any other term or condition of employment. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Robert R. Maldonado and Gertrude Bradshaw immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay in the manner described in the section of this Decision entitled "The Remedy." (b) Notify Robert R. Maldonado and Gertrude Bradshaw if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the provisions of the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make Melvin Jaynes whole for any loss of pay he may have suffered as a result of discriminatorily withholding the assignment of overtime work to him. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Immediately restore to its employees at the Dallas plant the privilege of purchasing company products as previously enjoyed by them. (f) Post at its plants in Dallas and Mineola, Texas, copies of the attached notice marked "Appendix.""' Copies of said notice, to be furnished by the Regional Director for Region 16, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of at least 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 such notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Recommended Order, what steps Respondent has taken to comply herewith.'' I RECOMMEND FURTHER that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein and that the election held herein be set aside. " 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 " '' 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 16, in writing, within 10 days from the date of this Order, what steps 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating them concerning their union activities or threatening them with economic reprisals because of their union support. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL NOT discourage membership in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, by discharging and refusing to reinstate employees or withholding the assignment of overtime work to them because of their union activities, or in any other manner discriminating against them in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL offer Robert R. Maldonado, at the Dallas plant, and Gertrude Bradshaw, at the Mineola plant, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and WE WILL make them whole for any wages lost as a result of the discriminatory termination of their employment. WE WILL make Melvin Jaynes at the Dallas plant whole for any wages he may have lost as a result of the discriminatory withholding of the assignment of overtime work to him. WE WILL immediately restore to our employees at the Dallas plant the privilege of purchasing merchandise from the Company which they previously enjoyed. All our employees are free to become or refrain from BUDDY SCHOELLKOPF PRODUCTS 671 becoming members of the above-named labor reinstatement upon application in accordance with the organization, or any other labor organization. Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the BUDDY SCHOELLKOPF Armed Forces. PRODUCTS, INC. This notice must remain posted for 60 consecutive days (Employer) from the date of posting, and must not be altered, defaced, Dated By or covered by any other material. (Representative) (Title) If employees have any question concerning this notice or compliance with its provisions, they may communicate NOTE: We will notify Gertrude Bradshaw and directly with the Board's Regional Office, Room 8A24, Robert R. Maldonado if presently serving in the Armed Federal Office Building, 819 Taylor Street, Fort Worth, Forces of the United States, of their right to full Texas 76102, Telephone 334-2921.