Boot-Ster Manufacturing Co., Inc.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boot-Ster Manufacturing Company, Inc. and United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. Case 26-CA-2539 June 12, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 14, 1967, Trial Examiner John G. Gregg 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. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions and a brief. The Respondent filed a brief in opposition to the General Counsel's cross-exceptions. 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, the cross- exceptions, the briefs, and the entire record in the 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, Boot-Ster Manufacturing Company, Inc., Clarksville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GRESS, Trial Examiner: This matter was heard before me at Clarksville, Tennessee, on December 19, 1966, upon allegations in the complaint of the General Counsel issued in Case 26-CA-2539, on November 1, 1966, based upon charges filed on September 13, 1966, and the duly filed answer of the Respondent to the aforesaid complaint. The General Counsel alleges essentially that the Respondent committed unfair labor practices in that it interrogated and threatened employees in violation of Section 8(a)(1) of the Act; discharged employees Roy Lee Lewis and Gerald Clinard in violation of Section 8(a)(3) of the Act; and unilaterally changed its existing wage rates by granting an increase in wages to an employee in violation of Section 8(a)(5) of the Act. The Respondent denies the commission of any unfair labor practices. Upon the entire record in this case, from my observation of the witnesses, and after due consideration of the arguments and briefs herein, I make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE RESPONDENT'S BUSINESS The Respondent is now, and has been at all times material herein, a Tennessee corporation with its principal office and place of business located at Clarksville, Tennessee , where it is engaged in the manufacture of footwear. During the past 12 months the Respondent, in the course and conduct of its business operations, purchased and received at its Clarksville , Tennessee, location materials and supplies valued in excess of $50,000 directly from points outside the State of Tennessee, and during the same period of time sold and shipped finished products valued in excess of $50,000 directly to points outside the State of Tennessee. The Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union herein is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference , Restraint , and Coercion The General Counsel alleges that the Respondent by J. Z. Miller, president, early in June 1966 interrogated its employees concerning their union sympathies, activities, and desires, and that the Respondent by Jack Miller, Jr., vice president, early in June 1966 (a) interrogated its employees concerning their union sympathies, activities, and desires, and (b) threatened its employees with discharge if they engaged in union activities or gave any assistance or support to the Union. Roy Lee Lewis, then an employee of the Respondent, testified that sometime around the first of June he was in the main office of the plant when President J. Z. Miller called over and asked him, "What's this I hear about a union representative being down to your place?" According to Lewis, a union representative had been to his house the previous day. Lewis responded that "there had been one down there," whereupon J. Z. Miller responded, "Well, this is all." Lewis returned to his work. Later that day, according to Lewis, J. Z. Miller' s son, Jack Miller, Jr., called Lewis to the office where Jack Miller, Jr., said to Lewis, "What's this I hear of daddy saying that a union field representative has been down to your house." When Lewis answered that there had been one there, Miller 165 NLRB No. 47 BOOT-STER MFG. CO., INC. asked him what they had talked about; Lewis replied that they had talked about the Union, the benefits of the Union. According to Lewis, Jack Miller, Jr., then said, "Well, as long as I'm owner of this plant I won't have no union coming in here or taking bread out of my children's mouth." According to Lewis he then also said, "I'll fire anyone that tries it." Miller added, "After all what we've done for you you haven't changed your mind." Lewis told him he had not. Jack Miller, Jr., then said, "Well, your head is as hard as a rock." Miller then said, "If you don't change your mind you're going to be left out on a limb." Both J.Z. Miller and Jack Miller, Jr., denied making the statements attributed to them by Lewis. Based on my observation of the demeanor of the witnesses as they testified I credit the testimony of Lewis as to the statements . I find in the statements clear elements of interrogation and threat in connection with the union activities of Lewis. Accordingly, I find that J. Z. Miller interrogated Lewis early in June 1966 and that Jack Miller, Jr., interrogated and threatened Lewis early in June 1966, thereby interfering with, restraining, and coercing employees of the Respondent in the exercise of activity protected by the Act in violation of Section 8(a)(1) of the Act. B. The Discharges 1. The discharge of Roy Lee Lewis According to J. Z. Miller, president of the Respondent corporation, Lewis worked in the shipping room and was dismissed or fired because he had the reputation of "being the No. 1 goldbrick in the entire company." Miller testified that while he had seldom reprimanded employees, Lewis was one individual whom he had reprimanded on many occasions. "Some of the men that worked more closely with him have reported to me on numerous, numerous occasions that he wouldn't do what he was told to do, mess up jobs, refuse to do jobs that he was asked to do." According to Lewis, he worked for the Respondent a little over 3 years, became a union member in 1963, his union activity including participation in trying to get the members to sign union cards and participation in union meetings. Lewis talked to employees on breaks and at lunchtime , and as he stated it, "talked to practically each and every one that they hired. At that time in my department they had about 14 or 15 members, and I talked to each one of them." Lewis had also testified, at a previous Board hearing in 1964, that he had signed a union card and was a member of the Union. Lewis' account concerning the events leading up to his discharge was that on July 14 he and other employees were asked to come into work early by Seymour Goldman, the Respondent's sales manager , and by Lewis' foreman, James Gibbs. When he arrived the next morning, July 15, 1966, about 6:30 a.m., he worked 15 minutes, then Albert Coke, Goldman 's assistant, came over and told him to get out of the warehouse, he was not needed that morning. Lewis asked him about the 15 minutes he had worked, Coke replied that Lewis was to get out of the warehouse and he would see about that later. Lewis then checked out. He checked in again at his normal time, 7:30 a.m. Later, around 9:30 or 10 a.m. Gibbs came to him, handed him two checks and a layoff slip, and told him that Coke had fired him. Lewis then went to Goldman's office where he was told, "Well, you have your papers and we can get someone else to do yourjob. We're tired of your foolishness." 319 Lewis then went to Jack Miller, Jr.'s office where Miller is alleged to have said, "Well, Albert and Mr. Goldman run this office as much as I do .... If they fired you they must have their reasons." Lewis stated that he had never been told that his work was not satisfactory, was never reprimanded or warned, but on the contrary had been told by Gibbs, Goldman, and Jack Miller, Jr., at various times that his work was excellent. He testified that during his employment he received each and every wage increase received in his department, and that he was the highest paid employee in the department at the time he was discharged. Lewis testified further that he was offered a job as a stitcher by Jack Miller, Jr., around the end of June or early July. Goldman, sales manager for the Respondent corporation, testified that he made the decision to discharge Lewis, that he had observed that Lewis had been loafing for a period of several years prior to the date of his discharge, and that he had many times cautioned Lewis about his loafing. Goldman said there were occasions on which Lewis did good work without loafing; he could do good work if there was someone supervising him or watching over him continually. Goldman testified that on July 14, prior to the discharge of Lewis, the warehouse had been so hot because of the high temperatures that he decided it would be easier on the men to ship out the orders on July 15 early in the morning before the warehouse heated up. He arranged on July 14 to have a trailer at the warehouse at 6 a.m. on July 15, and then proceeded to arrange for a group of men to be on hand for the shipping at 6 a.m. On July 14 he gathered the men together. According to Goldman, Lewis was in the forefront, directly in front of him. Goldman told the men of his plan and stated that he wanted six men to come in and work in the morning. "Roy Lee Lewis was always one who asked me and always asked the foremen for as much overtime as he could get. So, I singled him out and gave him an opportunity at that moment and asked him if he wanted to come in at 6:00 o'clock in the morning. The man never did answer me. He did not utter a word..I then said to the whole group, `I want six men tomorrow morning in the warehouse at 6:00 o'clock,' and asked for volunteers, whoever would want to come in then." Goldman testified that he selected six men by a show of hands and Lewis was not one of the six. Goldman made a list of the men and turned it over to Albert Coke who was to supervise the next morning with Gibbs, the foreman. Coke was advised as to the six men who were to report. Goldman testified that his estimate of the job indicated that six men were required for the job, that more than that many men would get in each other's way, and that the job could be done easily in a reasonable time by the six men. According to Goldman, after the shipment was completed the next morning, Coke came to him and told him of difficulties with Lewis; that after the time designated to begin, Lewis had arrived on the scene at 6:30, picked up one carton, and carried it over to the truck. Coke discussed this with Gibbs and Coke told Lewis to leave the warehouse, that he was not one of the men designated to unload. Lewis then, as Goldman understood it from Coke, gave Coke a "hard time" and wanted to be paid for the 15 minutes he had been there. Goldman testified, "At that time I had just gotten my craw full, because I had had so many problems with Roy Lee Lewis before, and he had been insubordinate about coming in when he wasn't instructed to come in ... I said, `I'm going 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to fire him."' Goldman testified that he had no knowledge of any union activity Lewis had engaged in, that he had had no connection with the prior union situation at the Respondent's plant 3 years earlier, that he did not know Lewis had testified at the earlier proceeding, that he had nothing to do with industrial relations as his job was sales and shipping, and that he had no knowledge of which employees were active in union affairs. Goldman testified that after he discharged Lewis, within an hour, Lewis was at his office seeking to know why he had been discharged. Goldman testified that he told Lewis he had not been selected for the loading that morning and that Goldman was tired of his not following instructions and his loafing. Goldman said they parted with a handshake. Goldman testified that the reason why Lewis was discharged was because Lewis was a goldbricker, did not follow instructions, and was insubordinate. Q. Had he been insubordinate before? A. No, sir, not until this particular-not like he had been this time. Goldman said he had warned Lewis about goldbricking before, "Numerous times." Q. Had you ever given him a written reprimand? A. No sir. Q. Had you ever told him he would be discharged? A. No sir. Q. When was the last time you caught him goldbricking? A. I can't give you a specific time. Q. Was it in the summer? A. It was I would say within 30 to 60 days from the time he was discharged. Goldman stated he did not know that Lewis was a member of the Union, although Goldman was employed in 1963, but he was aware there was union activity at the plant, that there had been a hearing, and the record indicated that the union campaign had been discussed by management. Goldman testified that he had discussed the Union and the prior hearing with the Millers on numerous occasions. Under these circumstances and based on my observation of the witness as he testified, I do not credit Goldman's statement that he had no knowledge of Lewis' union activity. Goldman's account of the events leading to Lewis' discharge was substantially corroborated by James Gibbs, foreman of the shipping department. Jack Miller, Jr., J. Z. Miller's son and vice president of the Respondent corporation, testified that on the morning of the discharge Goldman asked his opinion as to the discharge and Miller concurred with him 100 percent, that Lewis came to see him to ask whether there was any chance of his getting his job back, and that he had responded that there was not because of the situations that Lewis had been involved in over the past 2 or 3 years and because of the particular incident that morning. Miller testified that because he knew Lewis had a family he did not indicate the reason for the discharge on Lewis' separation slip but indicated that he was laid off for lack of work in order to permit Lewis to draw unemployment compensation. Miller testified further that he did not know that Lewis was a member of the Union, that while he knew of the prior hearing he did not remember that Lewis had ' I am not convinced that Lewis understood that he was not to report for overtime work that morning in view of his past practice of generally participating in overtime work and do not believe that testified in 1963 or 1964. Miller stated that he had had conversations with Lewis concerning his poor work. I simply do not credit Jack Miller, Jr.'s statement that he was unaware of Lewis' union membership under the circumstances herein and in view of the close relationship between the Millers. A set of cards kept by Gibbs, who was Lewis' foreman, indicates such notations from December 1963 through January 1966 as "doing good work," "have to get on him every once and a while," "caught Roy standing around," "Roy & Birt talking during work hours, have talk to Roy once before about this, don't seem to do no good," "Roy will do good work when some one is with him but will loaf some when not," "Have to tell Roy a lot of times to go to work, don't seem to mind me any more." One entry stated, "Albert Coke asked Roy where he had been, and he told him, it wasn't any of his damn business." There was no note on the card from January 18, 1966, until Lewis was discharged. Albert Coke, assistant sales manager for the Respondent, testified that he had reprimanded Lewis on many occasions and that when Lewis was not being supervised he would "goof off." On the day of the discharge, Coke arrived at *he warehouse at 6 a.m. with James Gibbs for the loading. After 6:30 when there were between 30 and 50 cartons left to load, Lewis showed up. Coke discussed this with Gibbs, then felt that since they were so close to being completed Lewis' presence was not needed and for him to go back and check back in at 7:30. "He refused. I then told him to go back. At this time he demanded to be paid for 15 minutes. I agreed to do so. I had to get the job completed." Later Coke met with Goldman and told him about the incident. Coke stated that he did not know Lewis had had anything to do with the Union. As indicated hereinabove, based on my observation of the witnesses as they testified, I credit the statements of Lewis concerning his discussions with J. Z. Miller, Jack Miller, Jr., and Goldman. I find also ample testimony of record indicating the awareness of the Millers concerning union activity in the plant, of discussions between the Millers and Goldman relative to union activities and matters, and find, accordingly, that the Respondent had knowledge of Lewis' union acitivity. While I credit Goldman's version' concerning the incident which led to Lewis' discharge on July 15, I am convinced that this incident was not the true reason for the discharge, but that the Respondent discharged Lewis because of his union activity. While the Respondent advanced several reasons for Lewis' discharge, I find these to be pretextual. The long list of notations indicating minor infractions and incidents of loafing, as noted by his foreman over the period of years, was obviously not of sufficient importance previously to warrant discharge and the Respondent did not discharge him for these infractions. On the contrary, Lewis was brought along by the Respondent, advanced and raised with the other employees in his department, and achieved the status of enjoying the highest pay in the department at the time he was discharged. It is not contested that, at a time just preceding his discharge, the Respondent offered Lewis a job as a stitcher, which, although perhaps paying less, Lewis was testifying falsely but rather mistakenly as to whether he had been requested to report on the morning in question BOOT-STER MFG. CO., INC. clearly casts doubt on the Respondent's claim that Lewis was its "number one goldbrick ." It is not reasonable to believe that management would offer its "number one goldbrick" a job on the production line. While I credit Goldman's account of the incident of July 15 leading to Lewis' discharge , I note that it is also clear from Goldman's testimony that prior to this incident Lewis was never given a written reprimand or warned of impending discharge . His previous infractions were obviously "not of sufficient importance to warrant a discharge at the time they occurred." N.L.R.B. v. Greensboro Coca Cola Bottling Company, 180 F.2d 840 (C.A. 4). I find , therefore , that the Respondent discharged Lewis not for the reasons advanced , but because of his union activity , and that the Respondent thereby discriminatorily discharged Lewis to discourage union activity in violation of Section 8(a)(3) and (1) of the Act. 2. The discharge of Gerald Clinard Clinard testified that as an employee of the Respondent he worked on the sole machine, was first employed the latter part of December 1965, worked 2 months and quit, started again in March, and was discharged August 31, 1966. He stated that he attended union meetings on July 21 before he was discharged and on August 8 subsequent to his discharge. Clinard said that when he reported for work the morning of August 3 his foreman brought him a check and a layoff slip marked "Excessive Absenteeism." The foreman, Paul Majors, told Clinard that the plant superintendent had ordered the discharge. According to Clinard, all this came as a surprise. He testified that before coming to work on August 3 he had been absent for 2 days, in Nashville, taking a written and physical test for the Navy, and that he had advised the Respondent of this through his mother who had called in and talked to Foreman Majors. Clinard testified that from his return to work in March 1966 until his discharge he had been absent 3 days in July when he was hit in the side with a rack of shoes and sent to the doctor by his foreman. The doctor required him to stay home 3 days before approving his return to work. Then, in the latter part of July, he missed 2 days going to Nashville. Clinard testified that on the occasion of his earlier 3-day absence his mother had called into the Company for him, and that he had never been questioned or warned because of the absence. Clinard also testified that he had never been told his work was inferior but, on the contrary, had been told it was good 3 months before he was discharged. Clinard added that he missed another half day when he went to see the Navy recruiter either June 26 or 27, that he had advised his foreman, Adkins, at that time, and that Adkins had approved his absence. Clinard testified that when he went to the union meeting, which he believed was in July, at the union hall in Clarksville, he saw 14 or 15 employees whom he recognized from around the plant, and that, as far as he knew, they were all still employed at the plant. Clinard testified that his foreman knew that if he (Clinard) did not get into the Navy he would not be going into the Army until February 1967. Clinard did testify that after his discharge on August 3 he went into the Army on September 7. When queried as to the number of days he was absent during his first employment from December 1965 until he quit in February 1966, Clinard could not remember. He did remember that he was absent "some." He testified that he was absent an unspecified number of times in May, no 321 more than 2 days in June, missed at least 1 day in each of 2 weeks in July, then the first and second day in August. He reiterated that no one had ever said anything to him about his absences nor complained about them. Jack Miller, Jr., testified that he understood that Clinard was discharged because he had been absent from work to such a degree over the weeks and months that he did work for the Company that "the type business such as ours in a production line that his foreman and the plant superintendent just could not tolerate this absenteeism and had to discharge him for that reason." Miller stated that Plant Superintendent James Bowes had so advised him. Miller testified that other employees have been absent from the plant, but that in his opinion Clinard's absences were excessive; he was absent more than other employees. He did not know whether some other employees might have had equally excessive absences. Miller testified that he did not know whether Clinard was discharged because he did not ask permission to be absent or because of the total number of days he was absent. Miller said the decision to discharge Clinard was made by Bowes and Majors. Paul Majors, assistant foreman, testified that Clinard worked for him, that he was absent about 2 or 3 days in a row, out sick. His mother called in. Majors stated that he warned Clinard and others about absenteeism. Later Clinard was absent a couple of more days; his mother called in and said he had gone to see about joining the Army. Majors stated that he again warned Clinard about production requirements and told him this was his last chance. About a week later he missed another day or two and did not call in . Majors talked it over with the plant manager and they decided to let Clinard go. Majors said he knew that Clinard was about to go into the Army, that Clinard told him that he had passed his examination. Majors denied any knowledge that Clinard had been to a union meeting. In testifying relative to the posted company rule on absenteeism, Jack Miller stated that the rule read " `Unexcused absenteeism of three continuous scheduled work days. (When leave of absences are not granted.)' Penalties for rules under Section 1 are as follows: `First offense, written reprimand. Second offense, written reprimand and/or suspension for a period of one to five days without pay. Third offense, termination of employment."' Miller testified that written reprimands had never been given under these rules as far as he knew. Mrs. Cunard, Clinard's mother, testified that she called Clinard's foreman, Majors, both days when Clinard was at Nashville for his examination. Mrs. Clinard testified that she did not call on the other occasion of Clinard's absence as she was not aware of his absence. She also testified that she called Adkins on both, days on the occasion of Clinard's injury and visit to the doctor. Based on the testimony of record and my observation of the witnesses as they testified, I am convinced and find that the Respondent did not discharge Clinard because of his union activity. Clinard's record of absences, if not the worst in the plant, were obviously high. His imminent entry into the service was a matter of knowledge to the Respondent. His union activity was minimal, and it does not appear that the Respondent had knowledge thereof. It is well settled that the Respondent may discharge an employee for any reason or for no reason at all if the discharge is not motivated by the employee's participation in protected union or other concerted activity. I find that by the discharge of Clinard the Respondent did not violate 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(3) of the Act. Accordingly, I will recommend dismissal of that portion of the complaint alleging the discriminatory discharge of Clinard. C. The Wage Increase Joe Perry, an employee at Boot-Ster, received a pay increase the week ending August 12, 1966, from $1 55 per hour to $1.65 per hour. Perry's job was maintenance mechanic on general maintenance-the repair of machines. Perry was one of the employees included in the appropriate unit represented by the Union. According to President J. Z. Miller, Perry's boss Suder came to Miller and said that Perry had a grievance that he wished to discuss. That afternoon J. Z. Miller, his son Jack Miller, Jr., Suder, and Perry met to discuss the matter. According to J. Z. Miller, Perry stated that he took a real interest in the Company and was doing his job well. J. Z. Miller said, "I told him yes, I thought he did his job very well. He is the son of a man that I have known for years and years, and we are very friendly." Perry then said that he did not believe that it was right that Levi, another employee working in the same capacity, should be making more money than he, claiming that he worked on more machines than Levi. J. Z. Miller said he agreed with Perry but said that he would look into the matter. Miller stated that the foreman agreed that Perry was doing an excellent job. After about another hour of discussion on the pros and cons, it was decided to give Perry a raise. "I think everybody there decided to give him a raise and told him we could check out the amounts and let him know later, which was done on that same day." J. Z. Miller testified that he did not notify the Union he was going to give Perry a wage increase, and he never discussed it with the Union. According to J. Z. Miller, after he was given the raise, Perry said in effect that his grievance had been over his wages and that he now, having received the raise, regretted that he had taken the union way. J. Z. Miller also testified that when Perry received his raise he was not the most senior employee in the department, and that the more senior employees did not receive a wage increase at this time. Wilson Sims, Esq., lawyer for the Respondent corporation, testified that he conducted the negotiations for the Respondent with the Union and that at the time of the grant of a wage increase to Perry, the week of August 12, 1966, there had been no negotiations, that there had been no negotiations prior to that time, and that the Union had by letter of June 20 indicated that it would like to enter into negotiations. The parties were then unable to find a mutually satisfactory meeting date until finally the first meeting took place on August 26, 1966. According to Sims, at the time the wage increase was granted to Perry on August 12, 1966, not only had there been no negotiations about wages, there had been no negotiations at all. Sims also indicated that at no time during the negotiations did the Union object to the Perry increase. However Sims did state that the Union was not informed at any time after its letter of June 20 that Perry was to receive a wage increase. It is clear from the record that Perry had a grievance concerning the rate at which he was paid, that this matter was discussed by management, and a decision made to adjust the inequity by raising Perry's pay. The Union was not invited nor requested by the Respondent to participate in these discussions and negotiations, nor did it. It is clear though the initial request to bargain had come prior to the time of the wage increase to Perry, because of repeated postponements there had been no actual bargaining nor negotiations initiated at the time of the wage increase, nor did any take place between the Union and the Respondent until after the increase had been granted. The Respondent argues that this is not a violation of Section 8(a)(5) of the Act, and that, even if it were to be held a technical violation of the Act, under the circumstances of this case it does not justify the issuance of a remedial order. I have given careful consideration to the record and the briefs of the parties. I have taken into account the posture of the parties herein as they prepared to negotiate in accordance with the enforcement order of the United States Court of Appeals for the Sixth Circuit, N.L.R.B. v. Boot-Ster Manufacturing Company, Inc., 361 F.2d 325 (1966), requiring the Respondent to bargain with the Union herein. I find that the Respondent, in view of the above- mentioned enforcement order, and the Union's letter of request of June 20, was clearly under a duty to consult with the Union as the bargaining representative of the employees in the appropriate unit, that Perry was an employee of the Respondent in that unit, and that the Respondent, by failing to fulfill that duty and by granting the wage increase to Perry unilaterally and without discussion or consultation with the Union, failed to bargain in good faith as required by the Act. As the Supreme Court of the United States indicated in N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736, the Board may properly conclude that an employer's unilateral action in granting wage increases during negotiations with a union amounted to an unlawful refusal to bargain, without making a finding of subjective bad faith on the part of the employer. A unilateral change in conditions of employment under negotiations is tantamount to a refusal to negotiate on affected conditions of employment and frustrates the statutory objective of establishing working conditions through bargaining. While the Respondent argues that bargaining had not begun at the time of the wage increase herein, I do not find this distinction material in view of the flagrant failure of the Respondent to fulfill its obligation to consult with the Union under the circumstances herein and in the face of a court order. Finally, the Respondent urges that even if this be a technical violation of the Act, the violation herein is so isolated as not to justify the issuance of a remedial order, citing Bob Morgan Motor Company, Inc., 106 NLRB 334. Aside from the distinguishing fact that in Morgan the Board had found that the record of the negotiations between the respondent and the union did not show lack of good-faith bargaining, I do not agree. While at first blush the wage increase to one employee herein appears to be an isolated incident, closer scrutiny of the action against the posture of the case and its background persuades me that the action of the Respondent demonstrates a lack of good faith on the part of the Respondent, and that a remedial order would effectuate the policies of the Act. In the face of a court order to bargain with the Union and a clear request by the Union to commence negotiations, and at a time when the parties were about to begin negotiations, the Respondent saw fit to ignore the Union while it proceeded to deal directly with an employee concerning wages. In my opinion this action was calculated to affect the Union adversely, was in derogation of the Respondent's duty to bargain, and, as clearly indicated by the testimony of Perry, designed to effectively cool ardor for concerted activity. Under these circumstances, while the incident may appear to be isolated, it is by no means de minimis. BOOT-STER MFG. CO., INC. Accordingly, I find the Respondent, by its unilateral grant of a wage increase to Perry under the circumstances herein, to have refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act and to have interfered with, restrained, and coerced its employees in the exercise of their union and concerted activities protected by the Act in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth in section III, above, occurring in connection with the operations of the 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 1. Boot-Ster Manufacturing Company, Inc., is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2) of the Act. 2. United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is, and has been at all times material to this proceeding, a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since October 10, 1963, the United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, has been the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, of the unit consisting of all production and maintenance employees of Respondent's Clarksville, Tennessee, plant, excluding all office clerical employees, guards, and supervisors as defined in the Act. 4. By unilaterally instituting a wage increase without notice to or consultation with the Union, thereby failing to bargain in good faith with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By discriminatorily discharging Roy Lee Lewis, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, through interrogation and threats, 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. 8. The discharge by the Respondent of Gerald Cunard, for cause, did not constitute an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act and that portion of the complaint so alleging is dismissed. THE REMEDY Having found that the Respondent has engaged in various unfair labor practices affecting commerce, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. 323 Having found that Respondent failed to bargain collectively with the Union in good faith in violation of Section 8(a)(5) of the Act, by unilaterally granting a wage increase without notice to or consultation with the Union, I shall recommend that the Respondent be ordered to bargain collectively, upon request, with the Union, and, if an understanding is reached, embody such understanding in a signed agreement, and that the Respondent be ordered to cease and desist from unilateral grants of wage increases without adequate notice to and consultation with the Union. Having also found that Respondent unlawfully discharged Roy Lee Lewis on July 15, 1966, I shall recommend that it be ordered to offer him immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of discharge to the date of Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the Respondent's failure to bargain in good faith, its unilateral actions, its coercive interrogation and threats, and its discriminatory discharge of employee Lewis, it is reasonable to conclude that the Respondent in the future, unless specifically enjoined, may deny its employees their statutory rights not only in these, but in other ways as well. Therefore, I shall also recommend that the Respondent be ordered to cease and desist from in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I shall recommend that the Respondent, Boot- Ster Manufacturing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of employment with United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees at Respondent's Clarksville, Tennessee, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Unilaterally instituting changes in wages, rates of pay, or other terms and conditions of employment of its employees in the above-described appropriate unit without first notifying and consulting with the Union. (c) Discouraging membership of any of their employees in United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization, by discharging or in any 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other manner discriminating against any employee in regard to his hire, tenure of employment, or any other term or condition of employment because of his union or other protected concerted activity. (d) Coercively interrogating and threatening employees, thereby interfering with, restraining, and coercing its employees in the conduct of activities protected by the Act. (e) In any other manner, interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively with representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. Nothing herein contained shall be construed as requiring the Respondent to revoke any wage increase which it has heretofore granted. (b) Offer to Roy Lee Lewis immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due to Roy Lee Lewis. (e) Post at its plant in Clarksville, Tennessee, copies of the attached notice marked "Appendix."2 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by the Company's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.-; ' 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 26, 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: Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to abide by what we say in this notice. WE WILL NOT refuse to bargain collectively with United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, by unilaterally granting wage increases or other benefits without notice to and consultation with your bargaining representative. WE WILL NOT try to discourage you from becoming or being a member of the United Rubber Workers, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, by discharging any employee, or in any other manner discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment because of their union membership or activities. WE WILL NOT threaten any of our employees because of their union membership or activity. WE WILL NOT try to discourage you from union activities or membership by questioning you about your union or other concerted activities and sympathies. WE WILL offer Roy Lee Lewis his former job with all of his rights, without prejudice to his seniority, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. BOOT-STER MANUFACTURING COMPANY, INC. (Employer) Dated By (Representative) (Title) Note: We will notify Roy Lee Lewis if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161.