American Art Industries, Inc.

AMERICAN ART INDUSTRIES, INC. 943 American Art Industries, Inc. and General Sales Drivers and Allied Employees, Local No. 198, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 12-CA-3577(1-2) July 31, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 24, 1967, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the 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 Na- tional 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 Respondent's ex- ceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modifications: 1. The Trial Examiner found, and we agree, that the Respondent interrogated and threatened its em- ployees and made promises of benefit, discrimina- torily discharged four employees, and refused to recognize and bargain with the Union as the representative of its employees in an appropriate unit, in violation of Section 8(a)(1), (3), and (5). 2. On July 20, 1966, the Respondent's em- ployees went on strike to protest the discriminatory discharges. The strike was, therefore, as found by the Trial Examiner, an unfair labor practice strike. On two separate occasions after the strike began, the Respondent offered to take back all its striking employees, including the four who had been dis- criminatorily discharged. The Respondent, how- ever, at the time of its first offer, made no effort to dissipate the effects of its various violations of Sec- tion 8(a)(1). Furthermore, this offer was followed closely by the Respondent's unlawful refusal to bar- gain. At the time of the second offer of reinstate- ment, the Respondent made no attempt to remedy the effects of its continuing violations of Section 8(a)(1) and 8(a)(5). We agree, therefore, with the Trial Examiner that the strike, which was still in ef- fect at the time of the hearing, continued to be an unfair labor practice strike.2 3. The Trial Examiner found that the Respond- ent refused to bargain with the Union in violation of Section 8(a)(5) of the Act on July 22, 1966, when the Respondent sent the Union a letter rejecting a written request for recognition and bargaining. We agree. We do not agree, however, with the Trial Ex- aminer's further finding that the Respondent vio- lated Section 8(a)(5) beginning on July 20, 1966. On that date, the employees, who were assembled in front of the plant prior to their strike vote, shouted, in the presence of the Respondent's offi- cials, "We want union, we want union." The Trial Examiner found that the employees had thereby ad- vised the Respondent of their desire for representa- tion, and "the Union at least informally demanded recognition by adopting the majority strike and picketing with signs protesting the Company's un- fair labor practices, over the name of the Union." The Trial Examiner concluded that the Respondent "had an obligation at that time to respond to the in- formal recognition demand and to offer to bargain with the Union." We find, however, that such a vague and informal indication of a desire for collec- tive bargaining did not create an obligation on the part of the Respondent to bargain with the Union.3 4. The Trial Examiner also found, and we agree, that the Respondent made an unconditional offer of reinstatement to the four discharged employees on July 21, 1966; that their failure to accept this offer had the effect of changing their status from dis- criminatorily discharged employees to unfair labor practice strikers ;4 and that this resulted in the ter- mination of their right to backpay on that date. In his Recommended Order, however, the Trial Ex- aminer requires the Respondent to offer reinstate- ment to the four employees. As they are unfair labor practice strikers, however, not dischargees, we shall require the Respondent, as in the case of the other strikers, to offer them reinstatement upon application. 1 The Respondent excepts to the credibility resolutions made by the Trial Examiner It is the Board's established policy not to overrule aTnal Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a con- clusion is not warranted here Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3). The Respondent also contends that the Trial Examiner was biased against it, but our examination of the record reveals no basis for this con- tention 2 See Art Metalcraft Plating Co , Inc., 133 NLRB 706, enfd 303 F.2d 478 (C.A. 3). 3 See American Buslines, Inc., 164 NLRB 1055; John Wafford dlbla Wafford Cabinet Company, 95 NLRB 1407. 4 Spitzer Motor Sales, Inc, 102 NLRB 437, enfd. 211 F 2d 235 (C.A. 2); Coca-Cola Bottling Co., 95 NLRB 284, modified in another respect and enfd 195 F.2d 955 (C.A. 8). 166 NLRB No. 109 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The record shows that many of the Respond- ent's employees are Spanish speaking . We shall therefore require that the Notice to All Employees, contained in the Appendix attached to the Trial Ex- aminer's Decision, be posted in Spanish as well as in English. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, American Art Industries, Inc., Miami , Florida, its officers , agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: ' 1. Insert in paragraph 1(a) of the Trial Ex- aminer's Recommended Order the words "Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America," after the words "Local No. 198." 2. Delete paragraph 2(c) of the Trial Examiner's Recommended Order and insert the following as 2(c): "Make J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez whole in the manner set forth in the section of the Trial Examiner 's Deci- sion entitled `The Remedy."' 3. Insert the phrase "in both Spanish and in En- glish," in the first sentence of paragraph 2(f) of the Trial Examiner's Recommended Order after the words "Miami , Florida," and before the words "co- pies of." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This proceeding was heard at Miami, Florida, on November 21-23, 25, and 28-30, 1966,1 pursuant to charges filed on July 20 and August 3 by General Sales Drivers and Allied Em- ployees, Local No. 198, herein called the Union, and to ^a complaint issued on October 7. The case involved primarily the issues whether the Respondent, American Art Industries, Inc., herein called the Company, (a) coer- cively interrogated and promised benefits to its em- ployees, and threatened closure of the plant if the Union came in; (b) discharged the four union organizers dis- criminatorily; (c) threatened to discharge employees if they struck in protest; and (d) unlawfully refused to recognize and bargain with the Union. Upon the entire record, including my observation of the demeanor of the witnesses, and in the absence of briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company is a New York corporation, which is en- gaged in the manufacture, sale, and distribution of art- ware, paintings, pictures, sculptures, and related products at its Miami, Florida, plant, from which the Company ad- mits it ships annually good valued in excess of $50,000 directly to points outside that State. I find that it is en- gaged in commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events In bare outline, the credited evidence (discussed more fully hereinafter) established that on Monday, July 18, four employee organizers began handing out authoriza- tion cards at the plant. On the next day, Vice President Isaac Joseph "Joe" Foster interrogated three of the four organizers about union activities. Later that afternoon, President Theodore "Ted" Foster was overheard telling his brother: "Joe, I thought this was the beginning of everything, that they were doing some talking, but they have given out the cards all over the place and we've got to get rid of them." Thereafter in the conversation, Ted Foster was heard saying, "We will say it's quiet and it is slow." About a half hour later, the Company "laid off" all four of the organizers, stating that business was slow. The next morning, Wednesday, July 20, 32 or 33 of the 47 production and maintenance employees congregated at the parking lot near the plant. About 7:50, Mr. and Mrs. Ted Foster appeared. Mrs. Foster told the em- ployees that the four "laid-off" employees were "just try- ing to use you, don't follow them," and threatened: "If by 8 o'clock you don't punch in and you follow those four" (point at them), and try "to get the union in, you all will be fired." The employees began shouting, "We want union, we want union," then left and went to the union hall, and returned that morning with picket signs reading: "Em- ployees of American Art Industries on strike because of unfair labor practices. Teamsters Union 198." During the afternoon, a total of 37 employees joined the strike at the plant. The next day, July 21, the Company posted notices, and mailed out letters to all the striking employees (in- cluding the four union organizers), inviting them to return to work. The Company took no other action to remedy its unfair labor practices. The employees remained on strike. Eight old employees and three newly hired employees worked behind the picket line the first day of the strike. Two days later, on Friday, July 22, when a total of 12 replacement employees were working (in addition to the 8 old employees), the Company received the Union's written demand for recognition. The Company answered the letter the same day, claiming a good-faith doubt of the Union's majority in the described production and main- All dates refer to the year 1966. AMERICAN ART INDUSTRIES, INC. 945 tenance unit , and suggested an election. At the hearing, a total of 35 valid authorization cards were received in evidence. B. July 18 and 19 Interrogations, Threats, and Promises On Monday, July 18, the four organizers, Rev. J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez, began passing out union authorization cards. A few minutes before 10 o'clock the following morning, accord- ing to Rev. Mosley's testimony, Vice President Joe Foster went to where Mosley was working and asked him if he had "heard anything concerning a union." Attempt- ing to give an evasive answer, Mosley responded: "Maybe I moved too fast for the rumor to catch up with me." After lunch, about 1 o'clock, Joe Foster again ac- costed Mosley on the job. Foster told Mosley that it was the second time somebody had informed him (Foster) about a union, and added that this was the second attempt for a union to organize the plant and that if a union would come in, "He and I would lose our jobs because the plant would close up. They wouldn't have a union in there. The plant would close before they had a union." He then asked Mosley again if he had "heard anything concerning a union," and Mosley gave the same response: "Maybe I moved ... too fast for the thing to catch up with me." About 1:30 that afternoon, Joe Foster went to where Herman Gonzalez was working. Foster said he had "heard some kind of rumor about the union." Gonzalez denied knowing anything about it. Then Foster said (in Gonzalez' somewhat broken English): "I heard this kind of rumor and if anybody tried to get the union in this place he is a foolish man and put himself in a trap because he close down before that happen." In the meantime, according to the testimony of Jesus Diaz, Joe Foster went to Diaz' machine before lunch and asked: "Do you know anything about Union?" Diaz an- swered, "No." Foster said: "Rumor has been going around, some fellow told me that somebody is trying to get the union in here." Diaz denied knowing anything about it. Then Foster said: "Listen Jesus, union is good only for the low class people, not for you. Don't you think you are going to get anything out of this ... before getting the union in this place we will close down the plant and get everybody out." Joe Foster, who does not speak Spanish, did not inter- rogate the fourth union organizer, Carlos Paez, who speaks little English. However, the company counsel brought out on cross-examination of Paez, that Paez (who works with Diaz) overheard and understood enough of Foster's interrogation of Diaz that day to know that Foster was talking to Diaz about union activities. Concerning these interrogations and threats, the Com- pany's defense was a complete denial. Joe Foster an- swered "I did not" to the company counsel's question: "Prior to the time of the strike have you ever at any time discussed union or union activities with any of the em- ployees in the plant?" Because of the demeanor of Joe Foster and the four employees on the stand, during both direct and extensive cross-examination, I discredit Foster's denial, and credit the employees' testimony. I find that the Company coercively interrogated and threatened three of the union organizers, Mosley, Gon- zalez, and Diaz, in violation of Section 8(a)(1) of the Act. I also credit Diaz' undenied testimony that at lunchtime the same day, July 19, President Ted Foster went outside the plant to where Diaz and a group of other employees were eating their lunches, sitting on the ground. Foster talked to them, and promised to make some tables, and to fumigate the place, to improve the conditions for eating there. Although Foster did not men- tion the Union's organizing drive, I draw an inference, from all he circumstances, that his promises were a part of the Company's unlawful conduct designed to un- dermine the organizing drive, and further violated Section 8(a)(1) of the Act. C. Discharge of the Four Organizers 1. Rev. J. D. Mosley Mosley had worked for the Company about 3 years. He was the only employee who operated the large machines in the carpentry department for making tables. His supervisor, Vice President Joe Foster, gave him the orders to be filled, and he was responsible for the assem- bling of the tables, with the aid of one or more assistants. He was then daily replacing tables sold from stock. About 65 percent of his time was spent operating the edging, drill, and routing machines, and about 35 percent filling orders and replacing the stock. According to Mosley's credited testimony, he had previously asked for a raise in pay, and had been told that the request would be considered. He was being paid $1.62 an hour. On Tuesday morning, July 19, about 8:50, Vice President Joe Foster went to the carpentry depart- ment and told him that he (Foster) was giving him a raise, "starting on that day" (the beginning of the workweek). Foster did not say how much the raise would be. (Foster admitted that he told Mosley that Tuesday morning he would put Mosley in for a raise.) Later that day, about 10 a.m. and again about 1 p.m., as heretofore found, Joe Foster interrogated Mosley about the Union. Mosley was passing out cards at the plant that day and the day before. About 4 p.m., Joe Foster again went to Mosley's de- partment, and told Mosley that the department was very slow, and he (Foster) had to lay someone off. Then about 4:30, when Mosley was at the timeclock, Joe Foster told him to go to the office and pick up his check. Upon arriv- ing at the office, Mosley was immediately given two checks, one for the week ending Monday afternoon, and the other for that day, Tuesday. (As found hereafter, and as confirmed by Mosley, such immediate payment to laid- off employees was contrary to the i customary practice before July 19.) After signing for the checks, Mosley returned to the timeclock and asked Foster why he was being laid off. Foster responded that the work was slow, and that he had to let Mosley go-without indicating for how long. Earlier that day, Foster had given him to be filled a total of 84 orders, which Mosley credibly testified was a large number of orders to have on hand. In addition to this work, which would have required 3 or 4 hours if "you could stay right on them," Mosley testified that he had several days of work to do on the edging maching, trimming the tops of tables which were then stacked by the machine. Joe Foster, on cross-examination, gave this testimony: Q. Did you know at that time that you told Mr. Mosley that you were going to give him a raise that you were going to lay him off that that afternoon? A. I had thought I might have to, depending on what happened at 2 or 2:30 when-we got word in 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the salesmen about what transpired at the shows and if they were going to go strong we would continue, or if they didn't we would have to have a temporary layoff. Q. At the time you told Mosley that you were putting him in for a raise you knew at that time that you were going to lay him off then? A. Yes, sir. In so testifying, Foster appeared to be grasping for an- swers which would appear plausible, regardless of the truth. The economic defense is discussed later. Foster admitted that he, himself, was the only other person to operate Mosley's power machines. 2. Herman Gonzalez Since January 1965, Gonzalez had been the Com- pany's only maintenance mechanic. He made repairs, and each day checked each of the machines used daily in production. When not so engaged, he performed various types of production work and was the only employee who operated the graining machine (for putting grains in the wood on the tables). He regularly worked a half-day over- time on Saturday. About a week before the strike, Pre- sident Ted Foster told him that Foster wanted to give him some help because he had too much work, and told him to teach employee Felder Williams to assist him in doing the maintenance work. Accordingly, he started teaching Wil- liams how to weld and to use the cutting torch. Gonzalez was being paid $2.37 an hour. During the Tuesday lunch hour, from 11:30 to 12, Gonzalez continued (for the second day) passing out union cards. Somewhere around 1 p.m:, Vice President Joe Foster came to the glue machine where he was work- ing on production, and gave him an order for 300 TV ta- bles with a fleur-de-lis design, to be made from scratched and otherwise damaged tables on hand. This would require about 2 weeks' work., The company counsel vigorously cross-examined Gonzalez, attempting to dis- credit this testimony. However, despite Gonzalez' broken English (which contributed to some difficulty in his expressing himself as he testified without an in- terpreter), I was much impressed by his apparent sinceri- ty. I credit the testimony and discredit Foster's denial that this conversation took place, and Foster's testimony that be had fleur-de-lis tables in stock, and that he had no order for 300 of them. (The Company did not produce the tally sheets, discussed below, which would have established conclusively whether there was such an order.) It was about 1:30 when Joe Foster returned to talk to Gonzalez, and interrogated him about the Union, as heretofore found. Then about 4:30 that afternoon, when Gonzalez tried to punch out, his timecard was missing from the rack. As he turned to go to the office to see what had happened to it, Joe Foster called him aside and told him, "Herman, I have to let you go because the work has'been slow ...... He responded: "How come you let me go when you just gave me 300 tables to make this afternoon?" Foster answered: "It's the order I got and the work is slow and it's something I can't help." (In one version of this conversation, Gonzalez testified that when Foster told him Foster would have to let him go, Foster added, "I don't know if it's maybe for 3, 4 days or 4 months or forever, I don't know." Later, in recalling this conversation, Gonzalez testified thafFoster said: "I have to let you go for a few days, I don't know, maybe 2 days, 3 days, one week, two weeks or maybe 7 months, because we are going to start closing department in this place" Despite the differences in these two versions, Gonzalez appeared to me to be earnestly endeavoring to recall accurately what was said, but was unable to recall Foster's exact words when Foster indicated that the layoff was for an uncertain length of time. I also find that the vigorous nature of the cross-examination aggravated Gonzalez' difficulty in expressing himself, and tended toward upsetting and confusing this conscientious wit- ness.) Joe Foster testified that he himself intended to do the machinery maintenance work, as he had before Gonzalez was hired (about a year and a half earlier). He had never laid off Gonzalez before. (I do not credit a number of as- sertions which were made by Foster in his pretrial af- fidavit, but which were not repeated on the stand where he was subject to cross-examination. I specifically dis- credit the statement in his affidavit that Gonzalez had been laid off before.) 3. Jesus Diaz and Carlos Paez These two organizers were the only two employees in the fiberglass department. Diaz had been working there since 1961, and Paez, since 1963, except for a break in service which each had when he quit and worked el- sewhere for several months. Diaz was paid $1.68 and Paez $1.50 an hour. - Before they were abruptly laid off about quitting time Tuesday, July 19, they had been passing out union cards that week. As found above, Vice President Joe Foster had interrogated Diaz about the Union that morning, within the hearing of Paez, and had threatened a plant clo- sure to keep out the Union. Also, as already found, Pre- sident Ted Foster made some promises to Diaz and other employees during lunchtime about an improved eating area. Then about 3:45 p.m., when Diaz was working at his machine, he overheard part of the conversation between Ted and Joe Foster, when Ted Foster stated that "they have given out the cards all over the place and we've got to get rid of them," and Joe Foster said, "We will say it's quiet and it is slow." Less than 45 minutes later, Joe Foster went to where Diaz was working, told Diaz to call over Paez and translate for him and, accord- ing to Diaz, "He said that the business was slow, that they would have to close some departments down, and that probably it could be 3 days, 2 weeks or probably much longer, he said he didn't know. So he said to go to the office and pick up our checks." Upon going to the office, the two employees found that their checks were ready and that they were being paid in full. Diaz credibly testified on cross-examination that he was familiar with the company policy for paying laid-off employees, "Because when somebody gets laid off they go home and they have to come back to pick up the checks some other day, and even sometime also people complain about that too." This practice was confirmed by Rev. Mosley, who likewise credibly testified that the practice was to require laid-off employees to wait until payday for their money. (I discredit the contrary testimony by the company witness, employee Evelyn Wagner, that 99 percent of the time laid-off employees are paid by check at the time they are laid off. From her demeanor on the stand, Wagner appeared willing to fabricate whatever testimony might be helpful to her Em- ployer's cause.) Diaz and Paez, like Mosley and Gon- zalez, were each given immediately a check for the week AMERICAN ART INDUSTRIES, INC. 947 ending July 18, and another check for July 19, instead of being told to return on payday, Wednesday. Diaz testified that he knew how many orders there were on hand at the time because Joe Foster and Mrs. Ted Foster gave him the orders for that department. Diaz credibly testified that he had orders for roughly a week and a half, "plus I got orders to make that was in the back and I never had time to start it, they rushed me on those orders." Paez (who credibly testified he had never been laid off previously) confirmed that the orders were given to Diaz, and testified that Diaz posted the orders on the wall and told him how much work there was to be done. I credit his testimony that there was "plenty" of work on hand in that department. On cross-examination, Joe Foster admitted that by lay- ing off Mosley and Gonzalez, he had no regular em- ployees capable of producing tables, and that by laying off Diaz and Paez, he had no one capable of making plastic products-except himself. He estimated that 10 to 15 percent of the business was manufacturing tables, and about 10 percent producing plastic products. 4. Economic defense The Company prepares production tally sheets which tabulate daily the sales orders received from salesmen or customers. These sheets contain the production orders for each department. Mrs. Ted Foster (the secretary of the corporation) maintains the originals, and copies are dispatched to the various departments. Although these production tally sheets, which were available, would have shown conclusively how many orders were on hand July 19, and although the Company also keeps other records of sales, the Company did not support its economic defense with such records. For some unexplained reason, the Company instead attempted to support its economic defense with testimonial evidence, and with two reports dated 11 and 20 days earlier. Explaining the layoffs, Vice President Joe Foster testified on direct examination: Q. On that date that ... J. D. Mosley ... was laid off, what was the reason for it? A. We were slow. We just had no work. Q. On the day that Mr. Paez was laid off, what was the reason for it? A. There was just no work. * * * * * Q. On the day that Jesus Diaz was laid off, what was the reason for it? A. Same reason, we just had no work. * * * * * Q. Why was Mr. Gonzalez laid off? * * * * * A. That's right. There just was no work. He offered no details, and no records. The General Counsel began his cross-examination of Foster by questioning him about the dubious situation of laying off an employee in the afternoon after giving him a raise in the morning. Foster's incredible response, as quoted above, was that when he told Mosley about the raise, he thought he might have to lay Mosley off the same day, depending "on what happened at 2 or 2:30 when we got work in from the salesmen about what trans- pired at the shows" - that if the shows "were going to go strong we would continue, or if they didn't, we would have to have a temporary layoff." When pressed about what did happen that afternoon , Foster first claimed that he received "no business" reports that afternoon , at 2:30 from the "salesmen at the shows ," and then, when asked for specific information, Foster testified that "the girls in the office" received such a report from one person from one show, and "that was it": Q. What information did you receive at 2:30 and from whom? A. We had no business , from our salesmen. Q. You mean you had no orders on hand? A. That's right. Q. Anywhere in the plant? A. We had a few orders but we had ample stock on hand to cover those. Q. What information was it that you received at 2:30? A. That some anticipated business coming in did not materialize. Q. Who gave you that information? A. The salesmen at the shows. Q. Well, can you identify the specific person who gave you the information? A. Well, the Atlanta show came in and we ex- pected something big out of that and that was a big flop. Q. Would you tell me who gave you what infor- mation at 2:30 that afternoon? A. Mr.... Richard Foster, was at the show, and he called in and that was it. Q. He had called in and that was it? A. Yes. Q. And what did he report? A. No business, no sales. Q. To whom did he speak? A. To the girls in the office. [Emphasis supplied.] What began as an attempt to establish that there was no work for Mosley, ended with an assertion that there was ample stock on hand to cover all plant orders. If there had in fact been such a shortage of orders throughout the plant, or a shortage of work to be per- formed by the four alleged discriminatees , the Company undoubtedly would have produced its available records as substantiation. Evidently the Company realized that the records would not show such a situation , but would show, at most , a shortage of work for certain other in- dividuals- not at 2 or 2:30 that day, but that morning. As discussed below , the Company contends that the layoff of employee Lionel Bogen that day occurred in the morn- ing, and the evidence shows that the layoff or termination of two other employees , Verdell Marshall and Nell McLeroy, also occurred that morning. (Assuming that the three employees were laid off nondiscriminatorily, for lack of work, that fact would not support Foster's claim that there was no work that afternoon for other em- ployees.) I credit only that part of Joe Foster's quoted testimony wherein he stated that Richard Foster called in at 2 or 2:30 that Tuesday afternoon, July 19 , and reported "a big flop" at the Atlanta show (which began on July 17 and continued through July 20). 1 find that the Company se- ized on this one unfavorable report , and used it as a pre- text for claiming that there was no work for the four al- leged discriminatees. Reliable testimony by a company witness later in the hearing revealed that Atlanta was merely a minor show. Regional Sales Manager Bernard Rogover, who made a very good impression on the stand , testified that the fall 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD season had begun in June, and normally would run until Thanksgiving, and that the markets were held at the beginning of the season. Concerning the number of shows being held, he testified that there were two major mar- kets, in Chicago and New York, where each show ran at least I week. Then there were minor shows, including the national markets in Atlanta, Miami, Detroit, Los An- geles, Dallas, and Boston, and a number of regional mar- kets in other cities, with still smaller shows. Rogover, who had access to the Company's files, did not produce any of the sales records, or tally sheets, for the month of July. Instead, he produced from the files a June 28 report he had written, complaining about busi- ness at the Chicago and New York shows (held about June 15 and 22, respectively), and a July 8 report from the Company's CPA, analyzing the reasons for the Com- pany's poor ratio of net profits to capital investment. In the June 28 report, he had recommended that the stock of several lines, including all tables, should be cut back. (Joe Foster, who claimed a high inventory of tables on July 19, did not reveal that this recommendation was made about 3 weeks earlier. Instead, he pretended that the Chicago show had been held near the middle of July, over 3 weeks later than it actually was). After considering all of Rogover's testimony, as well as the two documents he produced from the company files, I find that they do not establish how much work was available at the plant at the time in question. Rogover, like Joe Foster, having failed to produce the controlling sales records and tally sheets, I must conclude that those documents would not have supported the Company's economic defense. Rogover did not testify specifically about other shows being held in July, although there had been a conflict in testimony between employee Edna Trujillo and Vice Pres- ident Joe Foster about the Atlanta show being followed by a Chicago show. Mrs. Trujillo had testified that on July 18, she told Richard Foster that she was planning to leave the Company. He replied that she should not, because it would get his father and mother (Mr. and Mrs. Ted Foster) upset, inasmuch as he (Richard) was leaving that same day for a show in Atlanta. She promised to wait until he returned from Atlanta, and he said, "You will have to wait a little longer because when I come back from Atlanta I have another one in Chicago." Following this testimony, Joe Foster had taken the stand and testified first that Richard Foster was not so scheduled to go to Chicago next, then that he did not think Richard was, and finally that the Chicago show had been held a week prior to the Atlanta show (i.e., about the middle of July). The timing of the Chicago show appears to be of some importance. If a witness for the General Counsel was deliberately giving false testimony, that would be one thing. But if the Company had scheduled Richard Foster to go next to a major showing in Chicago, and if Joe Foster had abruptly laid off the four key employees at the middle of the minor Atlanta show, then falsely testified that the Chicago show would not be held after the Atlanta show, his veracity would be further impugned. While testifying on direct examination, Rogover seemed to corroborate Joe Foster's testimony about the timing of the Chicago show more than Mrs. Trujillo's by testifying that the show began about June 15 (over 3 weeks before the time given by Joe Foster). But just be- fore he left the stand, after lengthy cross-examination, Rogover revealed that the markets were held at the beginning of the season, and that there were two 1-week shows both in Chicago and New York. Instead of disput- ing Mrs. Trujillo's testimony, about Richard Foster going to a Chicago show after the Atlanta show, Rogover thereby revealed that in fact there was to be a second show in Chicago, also near the beginning of the season. (Although the General Counsel in his closing argument strongly attacked Rogover's credibility, I find that Rogover was a trustworthy witness. However, his testimony on direct examination may have been somewhat misleading, though technically accurate, not only when he testified about the timing of the Chicago show, but also when he stated his capacity as "Sales Manager," and recited his duties, without then revealing, as he did later on cross-examination, that he was no longer the national sales manager, but a regional sales manager). Mrs. Trujillo impressed me as being an honest witness, and I credit her testimony that on July 18 Richard Foster talked about going to a Chicago show after the Atlanta show, and find that a second show in Chicago was-contrary to Joe Foster's testimony - scheduled shortly after the Atlanta show. Joe Foster's credibility if further impeached by the way he testified about the amount of inventory on hand on July 19. After indicating that there may be as many as 2,000 different items (including different sizes, designs, etc.) which the Company produces, he testified: Q. It is your testimony today that the company on July 19, 1966 was adequately stocked on all 2000 of the items which the company regularly produced? A. Yes, sir. This categorical answer would indicate no work for any of the production employees, despite the undisputed fact that the plant was scheduled to remain in production. When pressed on this point, about whether all 2,000 items were in stock, Foster next answered: "We also have a prerogative where if we don't have it we just back order it." When asked the third time, he answered: "I would say pretty close to all of them." When asked how close, he first answered 90 or 93 percent, then testified that it was impossible for him to pinpoint it, and added: "but I would say any place between 90 and 95%." From his demeanor on the stand while so testifying, I find that he was merely theorizing, to support the Company's defense, rather than endeavoring to give facts. Having to choose, on the one hand, between the testimony of Mosley, Gonzalez, Diaz, and Paez about the orders the Company had assigned them to fill at the time of their layoffs, and on the other hand, Joe Foster's deni- als, I credit the former, and discredit Foster's testimony that there was an economic justification for laying off the four union organizers on July 19. 6. Concluding findings on discharges Based on the above findings, and the record as a whole, I find that the Company was discriminatorily motivated in laying off J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez. I particularly rely, with reference to all four of them, on the following findings: (a) All four were actively organizing for the Union at the plant that week. (b) President Ted Foster and Vice President Joe Foster were overheard plotting to get rid of somebody by claim- ing that business was slow when the two officials discovered that "the cards were all over the place." (c) The four union organizers were abruptly laid off, within 45 minutes of that overheard plot. (d) Contrary to the Company's practice, the four employees were given their AMERICAN ART INDUSTRIES, INC. 949 pay in full immediately, for the evident purpose of keep- ing them away from the plant (and from the employees) on the regular payday. (e) Joe Foster's testimony in sup- port of the Company economic defense for the layoffs contained clear fabrications and is discredited. (f) Foster revealed the Company's effort to undermine the Union's organizing drive by promising benefits to the employees at noon, before the layoffs, and Joe Foster did so by inter- rogating three of the four organizers that day, and threatened them with a plant closure if the Union came in. (g) As later discussed, Mrs. Foster indicated an aware- ness on July 20 that the four employees were trying to lead the employees into the Union. (h) There was ample work on hand to keep all four of them busy. (i) As found below, Mrs. Foster revealed the Company's union animus by telling two striking employees that she had fought off a union before. In addition, I particularly rely on the fact, with reference to Mosley, that he was given a raise in pay on the same day as his abrupt layoff; with reference to Gonzalez, that he was the Company's only maintenance mechanic, who had regularly worked over- time, and who was training another employee to assist him with his excess work; and with reference to Gonzalez and Paez, they had never before been laid off. I discredit Joe Foster's and Mrs. Ted Foster' s denials of knowledge about the union drive. In addition to the above, I also note that there were sufficient opportunities for them to obtain such knowledge. As early as Monday, July 18, two of the employees, Margaret Williams and Betty Walker (both of whom later worked behind the picket line), talked to employee Nell McLeroy about the Union. According to McLeroy's undenied testimony, Betty Walker told her that some men from the Union were supposed to come to the plant, and Mrs. Williams denied that the men were coming, "but they were sending some cards for us to sign." (Mrs. Williams was one of the employees to whom Rev. Mosley gave a card that week.) Although there is no direct evidence that these non- strikers notified the supervision about the union activity, this evidence shows that nonsupporters of the Union had early notice of the organizing drive. I therefore find that the Company discharged Mosley, Gonzalez, Diaz, and Paez as a part of its efforts to un- dermine the union drive, in violation of Section 8(a)(3) and (I) of the Act. D. July 20 Threat ofDischarge On the morning after the discharges, the four union or- ganizers returned to the plant's parking lot, handing out additional cards and collecting those which were signed, and talked to the employees about being unjustly laid off or discharged for passing out cards that week. About 7:50, Mr. and Mrs. Ted Foster went over to the parking lot to speak to the group of employees congregated there. Although the testimony is conflicting about what was said, it appeared to me that Jesus Diaz had the best recol- lection of what happened, and I find, from his demeanor, that he was honestly attempting to recount accurately what was said- despite his ungrammatical use of the En- glish language. Mrs. Foster first asked what was the matter, and she admitted on the stand that she was told the employees were out on strike "because some people had been laid off." Thereafter, according to Diaz' credited testimony, Mrs. Foster said: "Listen people I have been very good to all of you. I have to lay off these people because I didn't have work for them, and even when I didn't have work for . . . you . . . I gave work, and these people are just trying to use you, don't follow them, they are only thinking about themselves, they are foolish and selfish." Then, looking at her watch, she said: "If by 8 o'clock you don't punch in and you follow those four" (pointing toward the four discharged organizers who were standing together), "and tries to get the union in, you all will be fired." (In Diaz' pretrial affidavit, which the Company introduced into evidence without limiting its purpose, Diaz stated: "She then said it was five minutes to eight. She said `If by eight o'clock you don't punch in, and if you join them [she pointed to us again] in the union, your fired.' ") Then Herman Gonzalez (one of the discharged organizers) lifted his hand to say something, and Mrs. Foster told him: "You shut up, you are the worst." Several of the other employees credibly testified that Mrs. Foster threatened discharge if they did not report to work. Carmen Sera testified that Mrs. Foster told them "if we remained with the other four, and she pointed to them, we were fired." Maria De La Fe testified: "She gave us, I can't recall now , five or ten minutes , I can't re- call now, in order to go back to our work, and she said, if we did everything was okay, but if we didn't we were going to be fired." George Kovach testified: "She said that if we didn't go to work at the time we would be fired and she gestured over towards the four persons that had been fired and said, if you follow them they will cause you nothing but trouble." (When asked on cross-examination if Mrs. Foster mentioned the Union, Kovach answered: "It has been a while , so I would hate to say.") Rev. Mosley (who is a practicing minister of the Apostolic Church and who on the stand appeared quite cognizant of his affirmation to tell the truth) testified that Mrs. Foster said that they (the laid-off employees) are trying to "coax" them "into the union and ... it's no good, and if you don't punch in by 8 o'clock you are all fired." Her- man Gonzalez testified that when he started raising his hand, Mrs. Foster said, "You shut up, you are the worst one in here ... All people go over there and punch the card and if all of you are not there by 8 o'clock, all of you are fired." Another witness, Johnnie Mae Milton, testified that Mrs. Foster said : "These people have not given you anything, they don't mean you any good ... if you want to go to work and you want a job, come on back to work ... punch in before 8 o'clock and if you don't you don't have a job." (In her pretrial affidavit, Mrs. Milton stated: "She said that if we wanted to work to come on and punch in by 8:00 a.m. or if not we were fired.") I discredit Mrs. Foster's denials that she threatened to discharge the employees , and that she mentioned the Union at any time in her speech. Neither do I believe her testimony that she did not even recall seeing the four laid- off employees there. As a witness, she appeared willing to say whatever she thought might help the Company's cause. I therefore find that Mrs. Foster threatened the employees with discharge if they participated in the strike, in violation of Section 8(a)(1) of the Act. Mrs. Foster's prior knowledge of union activity in the plant is confirmed by an incident that afternoon about 4 o'clock when two of the employees , Antonia Sanchez and Edna Trujillo, went to Mrs. Foster's office to get their paychecks. Both Mr. and Mrs. Ted Foster were present. Mrs. Foster spoke first to Mrs. Sanchez, asked her (ac- cording to Mrs. Sanchez' credited testimony) if "some- body forced me to be outside with thefour that want the union in the place." [Emphasis supplied.] Mrs. Sanchez 308-926 0-70-61 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that was not true. When Mrs. Trujillo was testify- ing on direct examination, she also recalled Mrs. Foster talking about "if we follow the four into the union." Then on cross-examination, she testified: Q. And is this all that you call to mind or recall about the conversation? A. No. Because I was cut off. I can tell you what happened. We were in there and she told me that twenty-five years ago she worked in a plant and they brought the union in and she fought it off, she fought it off, and that I should do the same thing, that I should go outside and tell those people that and then she told me you know what they are using you out there for, their using you as a prostitute. I credit this undenied testimony, and find that it also demonstrates the Company's union animus. (This con- versation was not alleged as a separate Section 8(a)(1) violation.) E. Unfair Labor Practice Strike On Tuesday afternoon, after quitting time , the four laid-off union organizers began talking to the other em- ployees about the unjustness of their layoff or discharge. Then before starting time the next morning, July 20, all four of the organizers went to the Company's parking lot and spread the word that they had been laid off or discharged because of their union activities . About 7:50 a.m., when Mr. and Mrs. Ted Foster came to the parking lot to speak to the employees, one or more employees told Mrs. Foster that they were striking because of layoffs. Rejecting Mrs. Foster's explanation that the layoffs were caused by lack of work, and disregarding her threat of discharge if they did not punch in on time , the as- sembled employees began shouting "We want union, we want union." Shortly thereafter, the striking employees went to the union hall, reaffirmed their support of the Union by a unanimous vote, and returned later that Wednesday morning to the plant with picket signs reading "Em- ployees of American Art Industries on strike because of unfair labor practices . Teamsters Union 198." From these facts, it is clear that the discriminatory discharge of the four union organizers precipitated the strike, and that the employees were striking not only for union representation but also to protest of the Company's efforts to undermine the organizational drive. I therefore find that it was an unfair labor practice strike. The next day, July 21, the Company posted notices at the plant, inviting all the strikers (which would include the four union organizers), to return to work. The Company also placed in the mail that same day a copy of the notice to each of the strikers. The four organizers and the other strikers continued on strike . Nearly all of the strikers were still on strike at the time of the hearing. (Although the Union on October 27 applied for reinstatement on be- half of 36 named employees, and the Company, on November 7 wrote a letter to the union counsel, making "an unconditional offer to the employees to return to their old jobs," the strikers held a meeting on November 12 and voted to remain on strike. I find that despite these respective offers, the unfair labor practices remained un- remedied, and the the continuing strike of the employees remains an unfair labor practice strike.) F. Refusal to Bargain 1. Proof of large majority There were 32 or 33 employees in the group at the parking lot on Wednesday morning, July 20, when the employees went on strike. Thirty-two of them were posi- tively identified in the evidence : Aurora Aguirre, Juan Armas, Hilda Baserva, Luis Blanco, Lucy Cano, Robert Davis, Maria De La Fe, Elias de la Melia, Jesus Diaz, Herman Gonzalez, Isralee Hamlin, Annie Hudson, Nieves Iruretagoyena, 2 Estella Jackson, George Kovach, Maria Navarete Lazo, Verdell Marshall, Nell McLeroy,3 Ellis McMillon, Johnnie Mae Milton, J. D. Mosley, Caridad Padrol, Carlos Paez, Manuel Rodriquez, An- toma Sanchez, Carmen Sera, Margarita Soto, Flora Taylor, Jose Torres, Edna Trujillo, Horacio Trujillo, and Bernice Williams. A valid authorization card4 was in- troduced into evidence for each of these 32 named strikers, with the exception of Mrs. Marshall. Four additional employees joined the strike at the plant that afternoon: Dorothy Chester, Armando Kuly, Fred Percy, and Felder Williams. These four employees also signed union cards,5 which were received in evidence - making a total of 35 valid authorization cards in evidence .6 There were eight nonstriking production and main- tenance employees who worked behind the picket line on July 20: Jane Mega, Susan Myers , Ann Renick, Betty 2 Misspelled Nievez Yrureta Coyena in the transcript. 3 Verdell Marshall and Nell McLeroy were probably laid off. Mrs. McLeroy credibly testified that she worked on Monday , July 18 , called in on Tuesday and reported she was not feeling well, and was on her way to work Wednesday morning when she went on strike with the others She had heard nothing about being laid off or discharged In her pretrial af- fidavit , which the Company introduced into evidence without limiting its purpose , she further stated that "On Wednesday, July 20 , Verdall Marshall told me that I had been fired the day before. She told me that the company had given her my check on Tuesday by mistake. She was fired on Tuesday and got her check then " Employee Jesus Diaz credibly testified that on that Tuesday morning, employee Antonia Sanchez told him that employees Marshall and McLeroy "got fired . . because they were union already " Mrs. Marshall did not testify. However, I note that the Company contends that employee Lionel Bogen was laid off that Tuesday morning "as were other individuals on the same date ," and Mrs. Ted Foster also testified that others had been laid off. In the absence of any direct evidence that ,either Mrs. Marshall or Mrs McLeroy was ter- minated , and inasmuch as employee witnesses used the words "laid off" and "discharged" interchangeably , and company witnesses testified that there were other employees besided the four alleged discrimmatees who were laid off that day, I find that Verdell Marshall and Nell McLeroy, as well as Lionel Bogen, were laid off on July 19 , and include them in the unit as temporarily laid-off employees at the time of the strike 4 At the hearing, the company counsel examined many of the strikers at length, questioning the genuineness of the signatures on their cards. When asked if he intended to have a handwriting expert to compare the signa- tures with signatures on other documents which the counsel was introduc- ing into evidence , the counsel answered. "At this moment we don't know, but the likelihood is that we will as soon as we get them all in." No expert was called 5 Felder Williams , who went to work at 7 a.m after turning in his union card to Rev. Mosley, worked at the plant that moi .ung However, that af- ternoon he joined the strike , did part of the picketing, and signed another card (which was the one introduced into evidence) 6 All except 4 of these 35 strikers (Cano, Padrol, Percy, and Felder Wil- liams) personally authenticated the genuineness of their cards . The cards of these four were authenticated by persons who observed the signatures being affixed to the cards. AMERICAN ART INDUSTRIES, INC. Walker, Gene Williams, Margaret Williams, glue machine operator Ariceii (or Ceil), and a shipping department em- ployee named Billy. In making this finding, I rely particu- larly on the following testimony: Jesus Diaz testified that he counted exactly eight old employees who worked in the plant that day, plus three (or perhaps four) new em- ployees.' Rev. Mosley testified that he counted the em- ployees as they left the plant, and that there were 11, in- cluding the new employees. Employee Dorothy Chester testified that there were seven or eight old employees, and named six of them, plus "Melia," who I find was the same person as the "sample girl" (who worked in the of- fice), mentioned by Herman Gonzalez in his testimony. Employee Edna Trujillo" identified 6 of the employees who worked in the plant that day, and testified that there was a total of about 11, of which she guessed there were "about two new ones roughly." Herman Gonzalez, who testified that there were about eight old employees, named seven of them (omitting only Billy, the shipping department employee who worked that day). Union Busi- ness Manager Eli Schutzer was also at the plant when the employees left that day. Although he admittedly did not make an exact count, he testified that he made a habit of estimating how many people were in the plant during a strike in order to determine how effective the strike was. He testified that he saw "between 10 and 11 people" leaving the plant at quitting time that afternoon. There were three additional employees in the plant be- fore the strike: Lionel Bogen,9 Helen Pechony,10 and Gertrude Shillane. Although they did not work, on the first 3 days of the strike, there is no direct evidence that any of them joined the strike. However, I credit the testimony of employees Gonzalez and Edna Trujillo that there was a total of 37 strikers (which would include the 35 card signers ,and Verdell Marshall), and find that 1 of these 3 employees was the 37th striker.ri I therefore find that on July 20, the first day of the strike, there was a total of 47 production and maintenance employees-37 strikers, 2 employees who neither 7 He credibily corrected his earlier testimony that there were 1 I or 12 new employees He evidently was confused at first on the date he saw that many, and was then recalling the number of new employees he saw on July 22 8 After the Company finally admitted m its amended answer the super- visory status of Richard Foster (following the pretrial motion for summary judgment and responses resulting from the Company's improper filing of a general denial), the Company moved at the hearing to amend again its answer to deny Richard Foster's supervisory status. The motion was de- nied. Thereafter, the Company took the position that Mrs. Trujillo (who relayed Richard Foster's orders to employees in the frame department) was a supervisor, I find that Mrs. Trujillo had no supervisory authority. 9 As contended by the Company, I find that Bogen was laid off on the morning ofJuly 19. 19 The Company introduced into evidence three pretrial affidavits by employee Antonia Sanchez for the limited purposes of impeachment and verification of the signature on her authorization card In view of these limited purposes, I do not rely on the statement in one of the affidavits. "I do recall an employee by the name of Helen (last name unknown) who quit about the day of the picket. She told us all that she had quit " 11 I discredit the testimony of employee Ann Renick (a most unreliable witness, as hereinafter found) that Ludmilla Rapp was working in the art department at the time of the strike. From all the credible evidence, I find that Mrs. Rapp was one of the new employees hired after the strike began. I also find that Gerald Goodall, mentioned by employee Wagner as a per- son who used the telephone near the art department, was not working there at the time of the strike In making these findings, I rely in part on the fact that employee Kuly did not name either Rapp or Goodall as em- ployees in the art department, but I do not rely on the statements in Mrs. Sanchez' above-mentioned affidavit that Mrs. Sanchez (who had been em- 951 worked nor joined the strike, and 8 nonstrikers who worked behind the picket line.12 Accordingly, the General Counsel has established that over 78 percent of the plant employees (37 out of 47) were on strike, and that the 35 valid authorization cards constituted 74 per- cent of the production and maintenance employees on the Company's payroll at the time of the strike. I further credit Gonzalez' testimony that there was a total of 20 employees working on Friday, July 22 (the date the Company received the Union's formal demand for recognition, as discussed hereafter). These 20 em- ployees included the 8 old employees, plus 12 new em- ployees.13 2. Records concealed During the hearing, the company counsel had in their possession the weekly payroll records, showing the earnings of every employee for each day of the week. In- asmuch as these records had been kept by the Company in the regular course of business, and were required to be kept accurately for various tax and other purposes, they would have proved-without corroborating testimonial evidence-who were on the payroll and when they worked. Before the hearing, the General Counsel had timely subpenaed these weekly payroll records, by serving on President Ted Foster a subpoena duces tecum, requiring him to produce "The earning record of every non-super- visory employee who worked in the production and main- tenance unit ... at any time between May 22, 1966 and July 22, 1966, inclusive, showing dates and hours of such work." As I understand the General Counsel's position, when he explained at the hearing the necessity of these regular payroll records, in preference to the individual timecards (which the Company offered to produce in- stead), he was asserting that the timecards would not prove conclusively, on their face, that each of them was actually punched by the. person whose name appeared ployed there 9 years) did not recall any employee who worked at the Com- pany the name of Ludmilla Rapp, and that Gerald Goodall had left the Company several months before the strike, had told her that he had found a better job, but apparently returned after the strike began. 12 This finding is further supported by the testimony of Herman Gon- zalez, who first testified that there were no more than 45 plant employees, but who later set the outside limit as 48. Gonzalez (who was either the highest or one of the highest paid plant employees) appeared to be particu- larly alert and intelligent. He had an excellent opportunity to observe whoever was working in the plant because his duties as mainteance mechanic required him to go throughout the plant and check each of the production machines daily. Although he did not have access to the Com- pany's records, I find that his estimate of the number of plant employees is quite reliable. 11 After the General Counsel concluded his direct examination, Gon- zalez, responding to a question by the Trial Examiner, testified that "maybe" 20 or more new employees were there that Friday On redirect examination, the General Counsel asked Gonzalez how many employees he observed leaving the plant on July 22 (after reminding him that he had already answered the Trial Examiner's question earlier). Gonzalez testified: "20, with the 8, with the old ones, plus 12 new ones." After hav- ing observed his demeanor on the stand, I am convinced that he was truthfully correcting a misstatement in his earlier answer. I further find, from the way he appeared on the stand to be a scrupulously honest wit- ness (despite his struggling use of English), that he would not have testified that there were 12 new employees unless he was reasonably sure, after having had time to recall, that there was actually that number. Moreover, his testimony is corroborated by the testimony of Business Manager Schutzer that on July 20, Schutzer saw "about 18 or 19" em- ployees leaving the plant. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereon. Therefore the timecards would need to be sup- plemented by testimonial evidence , which might present unnecessary credibility questions and unduly prolong the hearing; whereas the weekly payroll records would be self-supporting documents, showing conslusively who worked, by showing who were paid. Explaining the need for the payroll records for a 2-month period, the General Counsel claimed that that was "a relevant period of time" for determining "who were in fact permanent em- ployees." The company counsel had filed a petition to revoke the subpena, asserting that the subpena was (a) "oppressive and unduly burdensome," (b) worked "extreme and undue hardship," (c) called for "confidential and privileged" records, (d) violated the "due process clause(s)" of the United States Constitution, (e) con- stituted "a fishing expedition and witchhunt," (f) called for "items . . . not relative and material to the issues," (g) where there had been "no prior determination of what is a proper unit," and (h) was "untimely"-all clearly un- founded contentions. At the hearing, the counsel asserted in addition that President Ted Foster had the constitutional privilege against self-incrimination, arising from the fact that he had been "indicted" on a misdemeanor charge of violat- ing the Florida "Right-to-Work" statute (for conspiring with his wife and brother to coerce Herman Gonzalez in the enjoyment of his right to join and assist a union.) 14 When asked to explain how the production of company records showing the number of employees in the bargain- ing unit could in any way affect his defense in the State action (where there would be no refusal-to-bargain issue), the company counsel answered: "I don't know in what manner it might affect it. I am not taking any chances, and I am refusing to produce them and I ask you to rule on it." The counsel also refused to permit the Trial Examiner to make an in camera inspection of the weekly payroll records for the purpose of determining if there was anything in the records which could possibly tend to in- criminate Foster in the State court action (even if, contra- ry to Foster's position in both the State and Federal courts, the State court had jurisdiction). Neither the Company nor President Foster suggested any manner, however remote, in which the payroll records could possibly tend to, or lead to evidence which might tend to, incriminate Foster in State proceeding. I denied the peti- tion to revoke, ruling that these subpenaed records were material to the issues of this case, that their production would not be burdensome, that the subpena covered specific available records for employees well defined in the alleged bargaining unit, that these regular payroll records were not "privileged," but that even if they would tend to incriminate him, he was not excused from producing them, because Section 11(3) of the Act specifi- cally granted immunity against subsequent prosecution, inasmuch as he had claimed herein the privilege against self-incrimination. Despite these rulings, the company counsel, on Foster's and the Company's behalf, refused to produce the weekly payroll records, which the counsel announced had been returned to the plant. In the absence of these subpenaed company records, the General Counsel proceeded to prove the number of employees in the unit, by introducing the testimony of 31 employees and I union representative. Then in the second week of the hearing, after the General Counsel's 32 witnesses had left the stand and the General Counsel had rested his case, the Company called a clerical em- ployee, Evelyn Wagner, to dispute the General Counsel's evidence about the number of employees in the unit, and to verify the purported timecards for the workweek beginning Tuesday, July 19, and ending Monday , July 25 (3 days after the July 22 demand for recognition .) Thus, the Company had withheld the unprivileged weekly payroll records which, I find, would have conclusively revealed who actually worked during the period in question (by showing who were paid for working, accord- ing to records which must be kept accurately for tax and other purposes.) In their place, the Company sought to substitute individual timecards which, through honest mistake or otherwise, could include cards which were punched by someone other than the persons whose names appeared thereon. (One of General Counsel's wit- nesses, when asked by company counsel on cross-ex- amination, "Well, suppose I tell you that the timecards reflect that on [July 20] some 24 or 25 people worked," had answered: "I'd say the cards were false.") Further- more, the Company had, without justification, deprived the General Counsel of the subpenaed documentary evidence during the presentation of his case-in-chief, while the large group of witnesses were at the hearing, available to give testimony regarding any employee in dispute. In order to prevent an abuse of the Board's proceedings, under all the circumstances, I excluded further evidence on the number of persons in the bargain- ing unit. As held by the Board in Bannon Mills, Inc., 146 NLRB 611, 613 (footnote 4), and 633-635 (1964), in a case where the employer had refused to produce sub- penaed payroll records, and the Trial Examiner had ruled them and supporting evidence inadmissible when the employer later offered them when presenting its defense- "If the best evidence which could have been offered on this issue is not before us, responsibility therefor rests with Respondent who refused to honor a subpena by the General Counsel for its production " Moreover, the justification for applying the Bannon Mills rule in this case now appears even more justified, to avoid abuse of the Board's proceedings. After weighing the credibility of the witnesses, and considering the entire record (including the Company's offers of proof), I find that the motivation of President Ted Foster, and the Company, in refusing through the company counsel to produce the subpenaed weekly payroll records, was to misrepresent the actual number of employees in the bar- gaining unit. The apparent plan was first to have clerical employee Evelyn Wagner (who impressed me as a most untrustworthy witness) to testify falsely to cast doubt on the testimony, herein credited, that there were 8 old em- ployees working in the plant during the first 3 days of the strike, with 3 new employees working on July 20 and a '4 The Company introduced into evidence its State court motion, in which the Company asserted that the State court "lacks jurisdiction" because "the matters complained of are arguably an unfair labor prac- tice" which, under "federal pre-emption comes with the exclusive ju- risdiction of the National Labor Relations Board " The Company also in- troduced into evidence Foster's petition for writ of habeas corpus and restraining order, filed by company counsel during the hearing herein, in the Federal district court in Miami, Florida, against the State's attorney, et a! , to refrain Foster's prosecution under the State statute, because the Federal Act "has pre-empted any State Court consideration" of any such matter "as such comes within the exclusive jurisdiction of the National Labor Relations Board " AMERICAN ART INDUSTRIES, INC. 953 total of 12 new employees working on July 22. The General Counsel's witnesses, in testifying about the number of plant employees who were working behind the picket line., had relied on the number of plant employees seen leaving the plant at quitting time. The employee exit from the plant was at the front, where the timeclocks were. There was a separate exit from the office, which was also at the front of the building, where striking em- ployees were picketing. Although employee Herman Gonzalez had positively (and credibly) testified that on July 20, he saw office employee Wagner15 leaving from the front with the Fosters and two other office em- ployees, Mrs. Wagner was willing to testify (according to the Company's offer of proof) that on that day, she "left by an exit in the rear" (i.e., out the back dock, over rail- road tracks). Apparently, the Company planned to argue, from this false testimony, that other employees might likewise have left the plant without going out the front exit past the timeclocks and the picket line. (For some unexplained reason, and notwithstanding the Company's weekly payroll records, President Ted Foster claimed in his August 9 pretrial affidavit: "I have no idea how many employees stayed working on July 20. ") Next, the apparent plan was for the Company to assert a sufficiently large number of employees in the bargaining unit, in order that the 37 strikers would not constitute a majority. Thus, Mrs. Wagner was willing to testify (as proffered by company counsel) that "there were some 75 or 76 persons present within the plant on July 19, 1966, and that on the following day there were present Within the premises ... the same number of people, minus those who were out on strike." In support of this position, the Company had offered as evidence 76 timecards (69 in ad- dition to those which were already in evidence for com- parison of signatures). The timecards were ruled inad- missible, because of the Company's refusal to produce the conclusive weekly payroll records. The 69 timecards were placed in the rejected exhibit file, but the company counsel withdrew them, after the General Counsel ob- jected that some of the timecards were those of admitted supervisors, and other "are cards as to which the first entry on the card is that of July 25" (showing that the per- sons worked for the first time that workweek on Monday, 3 days after the recognition demand on July 22). The counsel's only explanation for withdrawing the timecards was "we don't have any desire to have them in the Re- jected Exhibit File." The counsel made no further com- ment when the Trial Examiner indicated that an inference might be drawn from the fact that the cards were being withdrawn. Being thereby prevented from examining the timecards, I draw the inference that the Company withdrew them for the purpose of concealing, from the Trial Examiner and the Board, the fact that the cards on their face would belie the Company's offer of proof, that there were 75 or 76 persons working on July 19.16 1 therefore find that the Company was deliberately en- deavoring to misrepresent the number of employees in the bargaining unit, and for that reason refused to produce the weekly payroll records, which readily would have revealed the correctnumber.17 3. Appropriate bargaining unit A large majority of the production and maintenance employees went on strike, and the Union in its July 21 recognition demand described the bargaining unit as "all production and maintenance employees, excluding office clerical employees, guards, and supervisors." In its July 22 written response (quoted hereinafter), the Company raised no objection to the unit description. It was not until August 9 (6 days after the Union had filed a second charge against the Company, alleging an unlawful refusal to bargain), that the Company raised a question concerning the unit in President Ted Foster's pretrial affidavit. He stated: Also, my lawyers informed me that they didn't know if it was an appropriate unit or not but they didn't think it was. My lawyers explained to me that we had painter, or artist who would not belong in a unit of production and maintenance. In other words I had a doubt that the union represented the majority of our employees in a proper unit. The Company employed two artists in its art depart- ment: Ann Renick (who did not strike) and George Kovach (who did). Both of them spent part of their time sketching original designs on silk screens, to be used in the regular production work in the department. However, they both spent much, or a majority, of their time doing production work alongside other employees, and were paid $1.50 an hour, which was less than the wages paid three other employees in the department. They have similar hours and working conditions as other plant em- ployees, and there is no basis for their exclusion from the unit. When Ann Renick was called as a company witness, she testified (contrary to credited testimony by other em- ployees) that the silk screen work was done in a separate department from the art department, and that there was virtually no interchange between the employees in the silk screen department and the art and other departments. (Earlier, the company counsel had referred to her work as being in the art department.) However she, like three of the Company's four other witnesses, appeared to be willing to testify truthfully. (Because of her demeanor on the stand, and because of her evasiveness, the manner in which she engaged in arguing answers to support to Com- pany, and the conflicts in her testimony, I discredit her testimony wherever it conflicts with testimony of other 15 Employee Nell McLeroy credibly identified Evelyn Wagner as "one of the secretaries in the office." I specifically discredit Mrs. Wagner's testimony that she spends most of her time in the plant, and only about an hour a day in the office , and that she has frequent contacts with the plant employees. She appeared to be fabricating this testimony. 16 The Company also offered to prove that "the following days ... some 25 or 30 more" additional production employees were present in the plant. The offer does not indicate specifically on which days -whether there were that many new employees on the payroll that workweek (end- ing July 25), or by what time. I further draw the inference, from the Com- pany's withdrawal of the timecards, that if the timecards did in fact show that 25 or more new employees had been hired, they included those work- ing for the first time on July 25. 17 The Company further offered to prove that "there were at least 8 in- dividuals who had worked there before the 19th, and were temporarily on leave of absence during that week, and that some of them have since returned." If the Company had produced the subpenaed payroll records and if other names had appeared thereon during the 2 months preceding the strike, their status could have been litigated while the General Counsel was presenting his case. However, the Company refused to produce the records, and raised this contention, about purported employees being on leave of absence, after all 32 of the General Counsel's witnesses had left the stand. Such an attempted abuse of the Board's proceedings further il- lustrates the justification for the Bannon Mills rule. Moreover, even as- suming that there were 8 additional employees in the bargaining unit, mak- ing a total of 55, the Union still represented a large majority of them. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees.) While parts of the production work requiring the making and use of silk screens were more highly skilled than all or most other production and maintenance work in the plant, I find in accordance with credited testimony that the silk screen work was done in the art department, that some of the employees working with silk screens also did other types of work in the art department and in other departments in the plant, that some art de- partment employees frequently worked in other depart- ments, and that there is no justification for excluding all or part of the art department from the bargaining unit. I therefore find that the production and maintenance unit sought by the Union is appropriate for bargaining, and that the alleged inappropriateness was a mere af- terthought. 4. Alleged good-faith doubt of majority Despite the fact that 37 of its 47 employees were on strike, the Company claimed a good-faith doubt of the Union's majority status. In answer to the Union's recog- nition demand, the company counsel wrote, on July 22: With respect to your letter dated July 21, 1966 and received by this office on July 22, 1966, please be advised that I have consulted with my client and it is felt that in good faith that there is not a majority of employees of American Art Industries, Inc. in the collective bargaining unit, described in your letter, who have designated you as their exclusive bargain- ing representative. While there is no refusal to bargain as such with any duly authorized representative, it is suggested that you advise your client to use the facilities of the Na- tional Labor Relations Board to determine the rights of the parties. Thus, at that time, the Company was not disputing the ap- propriateness of the described bargaining unit, nor claim- ing that the employees were striking against their will. The Company claimed only a good-faith doubt that a majority of the employees "in the collective-bargaining unit, described in your letter" had designated the Union as their exclusive bargaining representative. In light of all the relevant facts of the case, I find that the Company's insistence on an election was not motivated by a good-faith doubt of the Union's majority. Upon learning about the Union's organizing drive, it had discharged all four of the union organizers, falsely con- tending that they were being laid off for lack of work. It threatened to close down the plant if the Union came in, promised benefits to undermine the organizing drive, and later threatened to discharge its employees if they struck in protest. This flouting of the Act demonstrates the Company's rejection of the collective-bargaining princi- ple. There could have been no doubt from the first day of the strike, Wednesday, July 20, when the large majority of the employees left the plant shouting "We want union, we want union," and began picketing later in the day with the Union's picket signs protesting the Company's unfair labor practices, that a majority of the plant employees had designated the Union as their bargaining representative. The strike itself established that. William S. Shurett, d/bla Greyhound Terminal, 137 NLRB 87, 90, 92-93 (1962), enfd. 314 F.2d 43, 44 (C.A. 5); N.L.R.B. v. Comfort, Inc., 365 F.2d 867 (C.A. 8), 63 LRRM 2118, 2125. Inasmuch as the strike was an unfair labor practice strike, it did not matter how many replacements had been hired by Friday, July 22, when the Company received the formal recognition demand and claimed a good-faith doubt of majority. The replacements could not be con- sidered in computing the majority. However, even if the strike had been an economic strike, the Union still represented a clear majority. Only 12 new employees had been hired. The 37 strikers constituted a large majority of the old and new employees combined (47 plus 12, totaling 59). As discussed heretofore, I find that the Company's be- lated contention, that it doubted the appropriateness of the production and maintenance unit sought by the Union, was a mere afterthought, made in bad faith. I also find lacking in merit the other contention, also made for the first time in President Ted Foster's August 9 pretrial affidavit (and not mentioned in the Company's July 22 letter), that "I felt that some of the strikers were only striking because of threats and intimidation." He con- tended in the affidavit that employees Sanchez and Trujil- lo told him and his wife in a conversation on the afternoon of July 20 that they had been forced to strike. At the hear- ing, after the two employees gave contrary testimony about the conversation (which I credit, as discussed heretofore), Mrs. Ted Foster did not dispute the em- ployees' version. There is no evidence to support the as- sertions in Ted Foster's affidavit, and no evidence that any of the 37 striking employees was coerced in any manner to join the strike or to remain away from work. Is I find that the statements in Foster's affidavit were mere fabrications, made in an effort to conceal the Company's bad-faith refusal to recognize the Union' s large majority status. I therefore find that the Company violated Section 8(a)(5) of the Act by refusing on July 22 to recognize and bargain with the Union as the exclusive collective-bar- gaining representative for its plant employees. As noted before, the Company did not receive the Union's formal recognition demand until Friday, the third day of the strike. However, the employees had advised the Company on Wednesday morning of their desire for representation by shouting, "We want union, we want union," and the Union at least informally demanded recognition by adopting the majority strike and picketing with signs protesting the Company's unfair labor prac- tices, over the name of the Union. Under all the circum- stances, including the Company's flagrant violations of the Act in order to defeat the Union's organizing drive, and its clear realization that a majority of its plant em- ployees had designated the Union (in view of the large 18 Near the close of the hearing, the Company proffered as evidence a copy of a State court injunction issued against the Union and some of the strikers on August 4, with reference to the picketing and related conduct. The order recited that evidence adduced in court that day (15 days after the strike began) indicated that there had been "unlawful threats com- mitted by some of the named defendants against employees of the [Company] as an incident to the picketing which commenced on July 19th." However, there was no specific fording of any threats or other misconduct on July 20, 21, or 22, and no finding that any of the strikers was at any time intimidated. The exhibit was rejected. After reconsidering the proffered exhibit (in the rejected exhibit file), I find that it is not material to any of the issues in this case. AMERICAN ART INDUSTRIES, INC. 955 majority of them who had gone on strike), I find that the Company had an obligation at that time to respond to the informal recognition demand and to offer to bargain with the Union. Having failed to do so, its violation of Section 8(a)(5) began on that day, July 20. CONCLUSIONS OF LAW 1. By discharging J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez on July 19, 1966, because of their union activities, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating employees, threatening closure of the plant if the Union came in, making promises of benefits to undermine the Union's organizing drive, and threatening to discharge employees if they struck in protest, the Company violated Section 8(a)(1) of the Act. 3. All production and maintenance employees at the Company's Miami, Florida, plant, excluding office cleri- cal employees, guards, and supervisors as defined in the Act, constitute an appropriate bargaining unit. 4. By refusing to recognize and bargain with the Union which represented a majority of its plant employees, the Company violated Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent had committed cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct, and to take certain affirmative action, which I find necessary to remedy and to remove the effect of the unfair labor prac- tices and to effectuate the policies of the Act. The Respondent having discriminatorily discharged J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez on July 19, 1966, I shall recommend that it be or- dered to reinstate them with backpay, computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Inasmuch as the Respondent offered reinstatement to the four discharged employees on July 21, 1966, and they chose to remain on strike, I shall recommend that the period for computing the backpay due them in consequence of the initial dis- crimination shall not extend beyond that date. The Respondent also offered reinstatement on the same date to all the other strikers. However, in doing so, it did not remedy its unfair labor practices, and a large majority of the strikers remained on the unfair labor practice strike. I shall therefore recommend that the Respondent be or- dered, upon abandonment of the strike and making appli- cation, to offer the strikers reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary any employee hired to replace the striking employees on or after July 20, 1966, the day the strike bagan. I shall also recommend that the Respondent be or- dered to make whole those strikers entitled to reinstate- ment for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth above for comput- ing backpay. In view of the serious nature of the unfair labor prac- tices which the Respondent has committed, showing an utter disregard of the policies of the Act, I shall recom- mend that it be ordered to cease and desist from in any manner infringing on the rights guaranteed to its em- ployees by Section 7 of the Act. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend, pur- suant to Section 10(c) of the Act, issuance of the follow- ing: ORDER Respondent, American Art Industries, Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with General Sales Drivers and Allied Employees, Local No. 198, as the exclusive representative of the employees in the following ap- propriate unit: All production and maintenance employees at the Company's Miami, Florida, plant, excluding office cleri- cal employees, guards, and supervisors as defined in the Act. (b) Discharging or otherwise discriminating against any employee because of his membership in or his activi- ties on behalf of General Sales Drivers and Allied Em- ployees, Local No. 198, or any other labor organization. (c) Threatening to close down its plant if a union comes in. (d) Threatening to discharge employees for engaging in protected concerted activities. (e) Promising any benefits to discourage support of a union. (f) Coercively interrogating employees concerning union activities. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union as the exclusive representative of all em- ployees in the above-described appropriate unit, and em- body any understanding reached in a signed agreement. (b) Upon application, offer to its striking employees reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) Offer J. D. Mosley, Herman Gonzalez, Jesus Diaz, and Carlos Paez full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (d) Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all 956 DECISIONS OF NATIONAL payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its plant in Miami, Florida. copies of the at- tached notice marked "Appendix "''' Copies of such notice, on forms provided by the Regional Director for Region 12, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.20 'y 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " zu In the event that this Recommended Order if adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 12, 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 Ex- aminer 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 em- ployees that WE WILL BARGAIN upon request with General Sales Drivers and Allied Employees, Local No. 198, as the exclusive representative of our plant em- ployees. WE WILL OFFER to our striking employees, upon their application, reinstatement to their former or substantially equivalent positions without prejudice LABOR RELATIONS BOARD to their seniority or other rights and privileges, dismissing, if necessary, any employees hired on or after July 20, 1966, to replace them, and WE WILL make each employee whole for any loss of pay suf- fered by him as a result of our failure to reinstate him within 5 days after his application. WE WILL OFFER Rev. J. D. Mosley, Mr. Herman Gonzalez, Mr Jesus Diaz, and Mr. Carlos Paez rein- statement, upon request, and pay them for earnings they have lost since July 19, 1966, as a result of their discriminatory discharge. WE WILL NOT threaten to close down our plant if a union comes in. WE WILL NOT threaten to discharge employees for supporting a union. WE WILL NOT make promises of benefits to our employees to discourage support of a union. WE WILL NOT coercively interrogate employees about union activities. WE WILL NOT interfere with our employees' union activities. WE WILL NOT lay off, discharge, or discriminate against any employee for supporting General Sales Drivers and Allied Employees, Local No. 198, or any other union. AMERICAN ART INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) NOTE: Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.