Colony Furniture Co.

COLONY FURNITURE COMPANY Colony Furniture Company and Millmen's Union No., 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 20-CA-4352 December 6, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On September 8, 1967, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding the Respondent, Colony Furni- ture Company, had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor prac- tices and recommended dismissal of those allega- tions of the complaint. Thereafter, the Respondent and General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified below: 1. Particularly in the light of Davis' later unlaw- ful discharge, we agree with the Trial Examiner that supervisor Foster's statement to Davis, that plant manager McKee was "mad" because Davis went to the Union instead of going to McKee concerning vacation pay, was'coercive and thus a violation of Section 8(a)(1). 2. The Trial Examiner found no independent violation of Section 8(a)(1) in Supervisor Foster's statement to Davis that Davis was being retired "On account of the Conciliator coming over." We find merit in the General Counsel's exception on this point. The statement is of course relevant as showing Respondent's "motive" in Davis' forced retirement, as found by the Trial Examiner. Beyond that, we find the statement is also an independent violation of 8(a)(1) in that it contained implied threats of reprisals against employees for engaging in protected activity in filing grievances which might require the presence of a conciliator. 725 3. We agree with the Trial Examiner's conclu- sion that, in the circumstances of this case, Respond- ent's forced retirement of Davis for an unlawful reason did not constitute the unilateral institution of a retirement "plan," in violation of Section 8(a)(5). However, in accordance with the General Coun- sel's exception, we take note that the General Counsel's "concession" concerned only the limited nature of the so-called new working condition, and not a concession that Respondent did not violate 8(a)(5). 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 as modified below and hereby orders that the Respondent, Colony Furniture Company, Richmond, California, its officers , agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the following for paragraph 1(a) of the Recommended Order: "(a) Discouraging membership in Millmen's Union No. 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, or by discouraging members from exercising their right to go to the Union to have their grievances handled , or by discharging or in any other manner unlawfully discriminating against any of its employees in regard to hire or tenure of employment, or any term or condition of employment." 2. Change paragraph 1(b) of the Recommended Order to 1(c) and add the following as paragraph I(b): "(b) Indicating its displeasure to employees when they go to the Union to have their grievances handled, and telling employees it has discharged or retired them for this reason." 3. Delete the third indented paragraph of the Appendix and replace it with: WE WILL NOT indicate our displeasure to employees when they go to the Union to have their grievances handled and will not tell them we have discharged or retired them for this reason. 4. In the fourth indented paragraph of the Ap- pendix, delete the word "again" from between "Union" and the period. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: This proceeding brought under Section 10(b) of the National Labor Rela- tions Act, as amended, herein called the Act, was heard, 168 NLRB No. 92 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon due notice, before David E. Davis, the duly designated Trial Examiner, on June 13, 1967. The original charge, filed on December 30, 1966, by Millmen's Union No. 550, United Brotherhood of Car- penters & Joiners of America, AFL-CIO, herein called the Union, was served on the same date on Colony Furni- ture Company, herein called Respondent. The Union filed an amended charge on March 21, 1966, and a copy thereof was served on Respondent on the same date. The General Counsel of the National Labor Relations Board, herein called the Board, issued a complaint on April 3, 1967, and served a copy thereof on Respondent on April 4, 1967, and on Respondent's counsel on April 6, 1967. The complaint alleged that Respondent violated Section 8(a)(1), (3), and (5) of the Act. The issues may be summarized as follows: 1. Did Respondent, in violation of Section 8(a)(1) of the Act, interfere with, coerce, or inhibit protected union activity or threaten an employee with loss of benefits and discharge because of his union activities? 2. Did Respondent, on or about November 23, 1966, discharge Ben Davis because of his union activity in violation of Section 8(a)(1) and (3)? 3. Did Respondent, without prior notification or con- sultation with the Union, unilaterally institute a retire- ment policy in violation of Section 8(a)(5) of the Act? Respondent in its answer denied the commission of any unfair labor practices. Upon the entire record and after consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is engaged in the manufacture, sale, and distribution of furniture products with its principal office at Linden, New Jersey, and plants located in Arkansas, New Jersey, and California. The Richmond, California, plant is the only plant involved in these proceedings. Dur- ing the past year, Respondent, in the course and conduct of its business, received at the Richmond, California, plant materials valued in excess of $50,000 directly from points located outside the State of California. During the same period, Respondent sold and shipped from the Richmond, California, plant, products valued in excess of $50,000 directly to plants located outside the State of California. The complaint alleges, the answer admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find that it would effectuate the purposes of the Act to assert ju- risdiction herein. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Preliminary Findings The complaint alleges, the answer admits, and I find that pursuant to an election on December 7, 1964, the Union was certified by the Regional Director of Region 20 as the exclusive collective-bargaining representative in the following appropriate unit: All production, maintenance, and warehouse em- ployees of the Employer at its Richmond, California, plant, excluding office clerical employees, truckdrivers, guards, and supervisors as defined in the Act. The complaint alleges, the answer admits, and I find that on or about October 28, 1965, Respondent and the Union executed a collective-bargaining agreement' effective November 1, 1965, through October 31, 1967, covering the employees in the above-described unit. The evidence disclosed, and I find, that, prior to the ex- ecution of the collective-bargaining agreement, the Union engaged in a strike at the Richmond, California, plant, which lasted for 14 weeks. B. The 8(a)(1) Allegations The complaint alleges that James L. Foster, Jr., the im- mediate supervisor of employee Ben Davis , threatened Davis in October 1966 with loss of benefits unless he abandoned his union activities and ceased filing grievances with the Union. The evidence presented con- cerning this allegation involved testimony by Davis that Foster told him in October 1966 that Claud E. McKee, general manager of the Richmond , California, plant, was mad because Davis went to the Union instead of going to McKee concerning vacation pay claimed by Davis. It was also alleged that Foster , about November 1966, threatened Davis with discharge or forced retirement because of his union activity. Davis testified, concerning this incident, that in November 1966, after McKee told him that he would be "retired" on November 23, 1966, he asked Foster why they were going to retire him and Foster replied, "On account of the Conciliator coming over." As I fully credit Davis' testimony and do not credit Foster's denials, I find that both incidents occurred as Davis described them. However, I find that the second incident did not constitute a threat of discharge but rather was an explanation for Davis ' subsequent discharge or "retirement." As such, it is relevant evidence with regard to Davis' discharge but does not warrant a finding of an independent violation of Section 8(a)(1). I find the first in- cident to constitute a violation of Section 8(a)(1), as notice to an employee by a supervisor that the top operat- ing official in a plant is "mad" because the employee filed a grievance with his union , the lawfully designated representative, tends to inhibit an employee from exercis- ing his guaranteed rights in Section 7 of the Act. Ac- cordingly, I find that Respondent, by reason of Foster's remark on October 1966, engaged in conduct violative of Section 8(a)(1) of the Act. C. 8(a)(3) - The Discharge or "Retirement" of Davis Ben Davis was employed by Respondent from 1955 to December 27, 1965, when he was discharged for insubor- dination. During the 1965 strike, referred to above, Davis did not respect the picket line and worked as a "scab," a term applied to him by Respondent's counsel. The evidence disclosed that Davis strenuously objected to the Union. When the collective-bargaining agreement of Oc- I Resp Exh. 1. COLONY FURNITURE COMPANY 727 tober 28, 1965, was executed, containing a membership requirement, Davis refused to pay the initiation fee required for joining the Union. McKee paid the initiation fee for Davis, apparently because he did not wish to lose one whom he considered to be a valuable employee. On December 27, 1965, Davis, under the impression that some vacation pay was due him, inquired from McKee, "What happened to our vacation pay." McKee at the time was in Foster's office discussing a matter with Foster and replied, "Here's the phone. Call back East." (Linden, New Jersey, the home office.) Davis then said, "They weren't the ones that told me. You did." McKee then said, "If you are going to talk to me, you come into the office." Davis, whereupon replied, "I will talk to you wherever and whenever I please." Ac- cording to Davis, it was at this point that Davis was discharged. Davis testified that they then went into McKee's office where further angry words were exchanged. Davis, in effect, accused McKee not only of pocketing the vacation money but also a certain sum that Davis' daughter-in-law had paid for a piece of furniture earlier that month. Davis testified that the discharge came before this accusation was made. McKee and the office clerk, Elizabeth Browne, testified that the discharge came after Davis, in effect, accused McKee of appropriating the money paid for the furniture. I need not, for the pur- pose of this case, resolve the precise question of credibili- ty involved in this incident. Neither is it necessary that a determination be made whether the discharge was justified. It is sufficient to acknowledge the fact, as a matter of background, that Davis was discharged on December 27, 1965, as a result of the above altercation and that the Union, despite Davis' former antagonistic at- titude toward it, interceded in his behalf. Clyde Johnson, business representative of the Union from 1961 to October 1, 1966, was notified by the shop steward, Armida Ramirez, that Davis had been discharged. Within the following week, Johnson called on McKee and was told by McKee that he would not reem- ploy Davis. Johnson, thereafter, pursuant to the terms of the collective-bargaining agreement, called the State Con- ciliation Service, stating that he wished to pursue the con- tact grievance machinery further by having a conciliator discuss the matter with Respondent. Commissioner Marshall of the State Conciliation Service, who was as- signed to the matter, subsequently called Johnson and said that Johnson should talk to McKee and that the matter might be straightened out. Johnson did go to see McKee the latter part of January 1966, and was informed by McKee that he would be willing to take Davis back provided that Davis did not talk to McKee and that the shop steward and Davis would refrain from discussing his return to work with other employees. Thereafter, Davis returned to work on February 4, 1966. Johnson further testified that the question of backpay for Davis' unem- ployment period was not raised or made an issue because Davis was satisfied to have his job back. It was Johnson's understanding that Davis in other respects was returning as a regular employee. The evidence showed that Foster and Davis were very close friends and that Foster, on several occasions, had spoken to McKee about reemploy- ing Davis, explaining that Davis was extremely sorry for his accusations against McKee. Undoubtedly Foster's in- tercession was a contributing factor in Davis' reemploy- ment. McKee testified that he talked with Commissioner Marshall about Davis and told Marshall that he felt very badly about the discharge of Davis because of Davis' long employment by Respondent; that Foster had also in- terceded for Davis; that if Marshall could find a way for him to take Davis back, "... without it being used against me, as far as the Union bringing him back, or I was forced to bring him back ...." McKee also stated that in his conversation with Marshall he attached these conditions to Davis' return: (1) Davis would return as a new em- ployee without seniority; (2) Davis would retire when he reached the age of 65; and (3) Davis would suffer no cut in pay. Subsequently McKee received a call from Marshall saying that he had discussed the matter with Johnson and fixed a time for Davis' return. Following the above, Foster called Davis to come to the office and was met by McKee, John McCurry, the plant superintendent, and Foster. McKee acting as spokesman, according to his testimony, told Davis, "you are going back to work, Mr. Davis. You will have to go back to work as a new employee, losing your seniority. You will be retired at 65 but you will work at the same rate of pay that you made when you were terminated. This you have earned." McKee also testified that he told Davis that, if he had anything to say to McKee, he was to direct his statements through Foster because he and Davis seemed to have a personality clash. McKee added that this was the only time that he had spoken to Davis since Davis returned. McCurry confirmed McKee's testimony with regard to the conditions attached to the reemployment of Davis. Foster, on direct examination, also confirmed this testimony but on cross-examination serious doubts were cast on the veracity of his direct testimony. Davis, on the other hand, testified he was told he was coming back to work and things would be just the same as they were before his discharge. I credit Johnson's and Davis' testimony in this regard. I view the elaboration by McKee, McCurry, and Foster of the conditions attached to Davis' reemployment as a complete fabrication and an afterthought designed to bolster the defense against the allegations of the General Counsel's complaint. I arrive at this conclusion not only from my appraisal of the credibility of the witnesses by reason of their demeanor and manner of testifying but also because acceptance of the story taxes credulity. Surely if the conditions were actually attached to the reemployment of Davis, as testified to by Respondent's witnesses, both Davis and the union representatives would have been reminded of these conditions when Respondent, on November 23, 1966, insisted that Davis terminate his employment because Davis had reached the age of 65. The evidence shows, however, that McKee, at no time prior to this hearing, though he had many oppor- tunities, informed any union official, Johnson, Bigby, or Coelho, that Davis was reemployed as a new employee or that his reemployment was conditioned on his retire- ment at age 65. In fact Davis himself was never directly reminded of these conditions. As will appear below Davis had further reason to avail himself of the Union's services and, during the processing of these grievances, numerous occasions arose when McKee could have mentioned to the union representative the "conditions" for Davis' return, but failed to do so. In addition Foster, on several subsequent occasions, had opportunities to remind Davis of the "conditions" of his reemployment, but he, like McKee, failed to do so. Returning to the sequence of events, Davis returned to work on February 4, 1967. He received no holiday pay for Washington's birthday and complained to Johnson 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it after first discussing the matter with McCurry who told him to see the people in the office . Johnson told Davis that he did not know whether he could do anything about it under the contract because Davis had been out for more than 30 days before being reemployed . Johnson apparently did not press this claim. Several months later, approximately June 15, 1966, the plant vacation bulletin was posted and Davis , while look- ing at it , according to Foster's testimony, ". . . seemed to be very much surprised that he wasn't getting a vaca- tion." Foster then said to Davis, "It is a rough deal, Ben, but there is nothing I can do about it." Clearly, Davis would not have expressed surprise or disappointment if there had been an agreement that he was a new employee, and more important, Foster would have reminded Davis that as he was a new employee he was not entitled to a va- cation. Foster, however, expressed no such sentiments but sympathized with Davis that it was a "rough deal." Davis informed Foster he was going to see the union steward and did so. Subsequently Johnson contacted McKee and McKee agreed to pay Davis for his vacation. I credit Johnson's testimony that during the discussion over vacation pay with McKee no mention was made by McKee of any agreement with Davis, Marshall, or John- son that Davis, when rehired, forfeited his seniority or agreed to be retired when he reached 65. McKee's testimony, quite confusing in various aspects, confirms Johnson's testimony in this regard. McKee stated that he was contacted about the vacation pay about 3 or 4 months after Davis was reemployed and about 3 or 4 week prior to Davis' termination on November 23, 1966. Commissioner Marshall contacted him about it and he told Marshall that it would be paid when Davis retired. McKee admitted that he had never discussed Davis' retirement with any union but relied on his agreement with Marshall as to the conditions upon which Davis returned to work. I view the invocation of the "condi- tions" of Davis' return at this late date as a transparent subterfuge. To attach any validity to this claim requires a conclusion that all the persons involved behaved in an illogical manner. To reiterate, it is rather obvious that, if Davis was rehired as a new employee , he was not entitled to a vacation. Davis and Foster, as recited above, did not behave logically when no mention of this was made in their conversations. Further, Johnson, by processing the grievance , behaved logically if he had no knowledge of such an agreement, while McKee behaved illogically by not mentioning the agreement to Johnson or to Marshall. Marshall2 also behaved in a highly illogical manner. If he were aware of the conditions of Davis' rehire, he would not have continued to attempt to conciliate the vacation grievance. Finally, Arsie Bigby, business agent for the Union since October 1, 1966, as successor to Johnson , credibly testified that early in October 1966 he and his assistant, Edward Coelho, had a conversation in McKee's office with McKee and McCurry, at which time Bigby told McKee that Davis had not as yet received "a vacation that the Company had promised to pay." McKee's reply was, "It is being taken care of." Again McKee permitted an opportunity to pass in which he could have reminded Bigby or made him aware of the conditions upon which Davis was rehired , if there were such conditions. Having heard that Davis had not received his vacation pay, Big- by, on October 13, 1966 , sent the following letter3 to McKee: October 13, 1966 Coloney [sic] Furniture Company 200 West Ohio Avenue Richmond Calif 94804 ATTENTION: Mr. McKee Dear Sir: Representatives of Millmen's Union 550 have talked to you several times in reference to Vacation Pay for Ben Davis in accordance with the Agreement. Each time we have been informed that it would be taken care of. To this date this vacation pay has not been paid. We believe it is time to bring in the State Conciliator to see if we can bring about a settlement of this grievance. Request your immediate reply. It is rather astonishing that McKee made no reply to this letter. In view of his contentions that Davis was rehired as a new employee and that he informed Marshall that Davis would be paid his vacation upon retirement, it would seem logical and imperative that a reply setting forth these contentions would be dispatched immediately. Continuing with the sequence of events , the evidence discloses that early in November 1966 Foster told Davis he was wanted in the office. When Davis went into the of- fice McCurry, in the presence of Foster, told Davis, "They are going to retire you on November 28, pay day ends on the first day of December and I will let you work on to then." Again no mention was made of any prior agreement. As subsequent events reveal, Davis' last day of work was actually November 23, 1966. Davis credibly testified that a few days after the McCurry meeting, he asked Foster why they were going to retire him and Foster replied, "On account of the Conciliator coming over." I find this to be the true reason for Davis' so-called "retirement" or discharge which, in fact, it was and is conceded by Respondent's counsel in his brief to be a "forced retirement." As it is established that Respondent has no retirement plan, the "forced retirement " was a ter- mination, or more properly a discharge. From the recital of the chronology of events and the cogent testimony concerning each of the occurrences, it seems rather plain that McKee continued to harbor a deep resentment toward Davis because Davis turned to the Union in his hour of need . Moreover, McKee's union animus is displayed throughout the series of events. At the very outset he made it a condition of Davis' reem- ployment that Marshall work out a way to reemploy 2 Marshall did not testify and was not requested to do so by any of the parties. 3 G.C Exh. 2. COLONY FURNITURE COMPANY 729 Davis without the Union receiving any credit and that the matter not be discussed with other employees. The other events demonstrate McKee's great aversion to dealing with the Union. Despite the requirement of the collective-bargaining agreement that agreement of both parties is necessary to settle a grievance, McKee con- tended and testified that his agreement concerning Davis' reemployment was with Marshall, not with the Union. Even if this were the case, and I do not credit McKee on this score, such an arrangement under the terms of the collective-bargaining agreement was not,binding on the Union. McKee, McCurry, and Foster testified that Davis was called in and told of the "conditions" under which he was to be reemployed. Assuming arguendo that Davis did agree to these conditions, such an agreement again is not binding on the Union and demonstrates McKee's desire to bypass the Union and deal with Davis as an in- dividual. However, as I have indicated above, I have not and do not credit the testimony of McKee, McCurry, and Foster that the conditions of Davis' rehire included that (1) he start as a new employee, and (2) that he retire at 65. I believe this fable was concocted much later and after the Union pressed for payment of Davis' vacation pay, wrote the letter of October 13, 1966, and called in a con- ciliator. McKee, after contradictory testimony that he had one or two conversations with Bigby concerning the reasons for Davis' discharge, finally admitted, on cross- examination, that he had never discussed the question of Davis' retirement with any union official, as follows:4 TRIAL EXAMINER: Well, just a minute. My question is, did you have discussions with represent- atives of Local 550? THE WITNESS: No. TRIAL EXAMINER: The answer is no? THE WITNESS: That is correct. Q. (By Mr. Wirts) So as of this date you have never had any discussions with representatives of Local 550 regarding the question of the retirement of Ben Davis, is that correct? A. As a meeting as such, no. I have discredited Foster on the matter of conditions of Davis' reemployment and in other respects not only because of my appraisal of his demeanor but also because of the affidavit which he gave to the Board's field ex- aminer who investigated the charge. In that affidavits Foster makes no mention of the two additional conditions attached to Davis' reemployment. As this statement was given on January 24, 1967, and was carefully read and corrected by Foster, I am of the opinion that Foster would have detailed the conditions if, in fact, they were discussed with Davis. Foster's weak excuse that he was not asked the precise question by the field examiner is not credited. I find that Foster, in the affidavit he executed for the field examiner, did disclose all the significant occurrences of the meeting with Davis preceding Davis' reemploy- ment. Foster's attempt to hide behind the field examiner's alleged failure to ask the precise question is, as a matter of fact, contradicted by his own testimony. Near the end of his testimony, on further cross-examination, Foster ad- mitted that the affidavit did, in fact, contain a fair state- ment of what occurred at the meeting.6 On December 5, 1966, Bigby sentRespondent the fol- lowing letter:7 December 5, 1966 Colony Furniture Company 200 West Ohio Avenue Richmond Calif 94804 ATTENTION: Mr. McKee. Dear Sir: Reference the forced retirement of Mr. Ben Davis. As the union official stated to you, we have no objec- tion to Mr. Davis being retired if he is willing to do so, however Mr. Davis has expressed the desire to continue working for an indefinite period of time. The State Conciliator has notified me that he was unable to change your mind about retiring Mr. Davis. Mr. Davis has seniority, Section 5 of the Union Agreement, therefore has the right to continue em- ployment. Since there is not an Arbitration Clause in the Agree- ment, I must advise you, if you persist in your think- ing, and retire Mr. Davis against his wishes, I must advise you, you are provoking a strike or other action to bring about a settlement of this grievance. This letter, like that of October 13, 1966, was not an- swered by Respondent. Thereafter on December 30, 1966, the Union filed its initial charge with the Regional Office. D. Concluding Findings The complaint alleged that Respondent refused to bar- gain concerning the institution of a retirement plan. The General Counsel in his brief concedes that the evidence does not support such a finding. Accordingly, I shall dismiss this aspect of the complaint. As I regard the use of the words "retirement" or "forced retirement" in the context of the facts disclosed by the record as mere euphemisms for discharge, I find that Davis was discharged on November 23, 1966, because he filed grievances with the Union and because the Union, in turn, put into motion the grievance machin- ery of the collective-bargaining agreement by referring the matters involved to the State Conciliation Service. The filing and processing of grievances is a concerted ac- tivity protected by the Act, and the privilege of filing grievances an inherent right guaranteed to him under Sec- tion 7 of the Act. The discharge of Davis, therefore, was violative of Section 8(a)(3) and (1) of the Act. I so find.8 4 Tr. p 86. G C. Exh. 4. 6 Tr. p. 155,1.14. [Question by Mr. Kmtz ] Then it [the affidavit ] does reflect a correct picture of what happened at the meeting? A. To the best of my knowledge, yes 7 G.C. Exh. 3. " Bowman Transportation, Inc., 134 NLRB 1419; Interboro Contrac- tors, Inc., 157 NLRB 1295. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section 1, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ben Davis on November 23, 1966, it will be recommended that Respondent offer Ben Davis immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from November 23, 1966, to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent, in violation of Section 8(a)(1) of the Act, coerced and inhibited an employee from exercising his rights guaranteed in Section 7 of the Act, it will be recommended that Respondent cease and desist therefrom. It is concluded that the above unfair labor practices are of such a character and scope that they strike at the basic purposes of the Act, it will therefore be recommended that Respondent cease and desist from in any manner in- terfering with, restraining, or coercing employees in their guaranteed rights. CONCLUSIONS OF LAW 1. Respondent is, and during all times material herein was, an employer engaged in commerce and a business af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is, and during all times material was, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing an em- ployee in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Ben Davis on November 23, 1966, because of his protected concerted activity in filing grievances with his duly designated collective -bargaining representative , Respondent has discouraged membership " 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 in a labor organization and has discriminated against said Davis in violation of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is recommended that Colony Furniture Company, the Respondent herein, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Millmen's Union No. 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, by discharging or in any other manner unlawfully dis- criminating against any of its employees in regard to hire or tenure of employment, or any term or condition of em- ployment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist Millmen's Union No. 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized under Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Ben Davis immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy," and, if said Davis is now serving in the Armed Forces of the United States, notify him of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant at Richmond, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (d) Notify the Regional Director for Region 20, in 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." COLONY FURNITURE COMPANY 731 writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. to Except to the extent that unfair labor practices have been found, I recommend that the complaint be dismissed. 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent 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: After a trial in which both sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. As it was decided that we violated the law when we fired Ben Davis because he went to the Union and com- plained about his vacation pay, we will offer Ben Davis his old job with all his seniority and give him backpay. WE WILL NOT tell any of our employees that we are mad because they complain to the Union about wages, hours, or working conditions. WE WILL NOT fire anyone over the Union again. You are all free to become or remain members of Millmen's Union No. 550, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other Union, and we won't punish you in any way if you do. WE WILL NOT in any other way interfere with, restrain, or coerce you from exercising your lawful right to choose a union for the purposes of bargaining and representing you. Dated By COLONY FURNITURE COM- PANY (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.