Porta-Kamp Manufacturing Co., Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Porta-Kamp Manufacturing Company, Inc. and Car- penters District Council of Houston and Vicinity, AFL-CIO. Cases 23-CA-3471 and 23-RC-3371 November 19, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On May 26, 1970, Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding finding that the Respondent in Case 23-CA-3471 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connec- tion with these cases 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 and the entire record in these cases, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Porta-Kamp Manufacturing Com- pany, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY DIRECTED that as part of the investiga- tion to ascertain representatives for the purpose of collective bargaining among the employees of Porta- Kamp Manufacturing Company, Inc., Houston, Texas, in the appropriate unit, the Regional Director for Region 23 shall, pursuant to National Labor Relations Board Rules and Regulations, Series 8, as amended, within 10 days of the date of this Direction, open and count the ballots of the 20 employees found herein to have been discharged in violation of Section 8(a)(3) of the Act, and thereafter prepare and serve on the parties a revised tally of ballots, including therein the count of said challenged ballots. In the event that the revised tally of ballots shows that the Union has received a majority of the valid ballots cast, the Regional Director shall issue a certification of representative. In the event that the revised tally of ballots shows that the Union has not received a majority of the valid votes cast, the Regional Director shall issue a certification of the results of the election. Chairman Miller dissenting: I find the evidence insufficient to establish that the Employer's discharge of 20 employees on November 10, 1969, was discriminatorily motivated. The General Counsel introduced no evidence that the Respondent knew the identity of union adherents. In fact, two of the laid-off employees had not been involved in union activities; two others had not signed cards. There was no union activity at the plant, and one of the Union's chief organizers testified he was careful not to discuss union matters during working hours. The fact that 80 percent of those laid off had signed cards is hardly conclusive when 50 percent of all employees had signed cards. Respondent gave a convincing explanation for the November 10 layoff. In the spring of 1969, Bigalow, Respondent's president, returned from a lengthy illness and found the Company was losing money and operating at low efficiency. In June of that year, several of Respondent's officials made an examina- tion of its products at Bergstrom Air Force Base, found the products faulty, and thereafter sent a memo to all employees about the serious problems existing at the plant. Matters worsened, and Plant Supervisor Ed Freed was terminated on August 8, 1969. Presi- dent Bigalow and Vice President Burg thereafter commenced running the plant themselves. All this took place before early October, the date when union activities started at the plant. On November 10, Respondent terminated the 20 employees involved in the instant proceeding.' Respondent's testimony revealed that its projected orders required a reduction from eight to four units per day, and from 80 to 60 employees. The record shows that Respondent's complement had not risen above 60 to the date of the hearing, and in fact had dipped to 49 in January 1970. Respondent testified as to its reasons for selecting the 20. At least seven had been employed for a very short time-most of the seven for but a few days or weeks. Others of the 20 had attendance or production problems. I cannot say from this record that Respondent should have terminated "A" and "B" rather than "C" and "D"; in view of the large percentage of employees who had signed cards, any group selected would in all likelihood have included many union adherents. I I Five other employees had been terminated on October 17. for refusing to work overtime. Their discharges are not alleged as unlawful. 186 NLRB No. 97 PORTA-KAMP MANUFACTURING COMPANY 657 cannot find, on the evidence in this record, that the Respondent significantly cut its production, and permanently reduced its work force by 20 employees, simply in the hope that the accompanying layoff would "catch" some union adherents. Though Respondent's few 8(a)(1) violations seem to me marginal, I am willing to adopt the Trial Examiner's findings in this regard. As indicated, I find that the General Counsel has not sustained his burden of proving that the layoff of November 10 was discriminatorily motivated, and I would dismiss that portion of the complaint. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: In this consolidated proceeding under Sections 9(c) and 10(b) of the National Labor Relations Act, as amended (herein called the Act), the issues to be decided are whether Respondent Porta- Kamp Manufacturing Company, Inc., interfered with, restrained, and coerced its employees in the exercise of their rights of self-organization ; whether Respondent discrimi- natorily discharged 20 employees in order to discourage support of Carpenters District Council of Houston and Vicinity, AFL-CIO, herein called the Union; and whether challenges to the ballots cast at a Board election held on January 7, 1970, by 15 of the alleged discriminatees should be overruled or sustained.' The case was heard at Houston, Texas, on March 24 and 25, 1970. Briefs filed by the General Counsel and the Respondent have been considered. Upon the entire record herein and my observation of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation, is engaged at its plant in Houston, Texas, in the manufacture of portable camps and portable buildings. Its annual interstate purchases are over $50,000. I find, as Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Early in October 1969,2 the Union began a campaign to organize the employees at Respondent's plant. Approxi- I Case 23-CA-3471, upon a charge filed on November 12 and amended on December 16, 1969, a complaint was issued on December 18 and amended on March 5, 1970. By order dated February 26, 1970, Cases 23-CA-3471 and 23-RC-3371 were consolidated for purposes of hearing and decision. 2 All dates hereafter are in 1969 unless otherwise noted. 3 Lewis Harris and Peter Harris are not related. Peter Harris, one of the alleged discriminatees in this case , dated his conversations with Supervisor Harris in relation to the date he was hired, May 21, 1969, or the date of his discharge, November 10, 1969. The hiring date would place the conversation described in the text months before the organizing campaign began . Using the termination date , the conversation would have taken place early in October. I consider this much more likely in view of mately 10 to 15 of Respondent's 80 production, mainte- nance, and warehouse employees attended one or more meetings held at a "U-totem" store near the plant or at the Cyclone bar and grill, and about the same number of employees attended a meeting at the Union's hall on October 26. Between November 2 and 10, union authoriza- tion cards were signed by 40 employees. Elias Flores obtained signed cards from 27 employees at the U-totem store or the plant parking lot, Genaro Valdez obtained cards from 7 employees at the parking lot, and Frederick Holley obtained cards from 4 employees. Soon after the start of the union campaign, Supervisor Lewis Harris asked forklift operator Peter Harris,3 while driving from work in the former's car, "What did [he] think about the Union?" Peter replied that he "didn't even think about it." About 2 weeks later, again while driving from work, Supervisor Harris again asked Peter Harris what he knew about the Union. Peter Harris, who had been advised by Frederick Holley not to talk union to any supervisor, answered that he "didn't think of it because [he] didn't think it would happen. Supervisor Harris said, "Yes, it could happen." Peter Harris said, "Well, I don't see how, because if [President] Bigelow would hear tell of it he would lay them off. He would even close his plant down." Supervisor Harris replied, "No, it couldn't be that way, if a hundred percent of the men would vote for the Union, he couldn't close it down." 4 Supervisor Harris asked employee Ernest Minor on the job early in October if he knew anything about a union. Minor said "no" and asked Harris "had they heard about one." Harris remained silent and then asked Minor not to tell anyone he had asked him about a union. About October 28, Harris asked Minor "whether we were still going to get a union." Minor, who had attended union meetings, said he "didn't know." A few days later, Harris remarked to Minor that he "ought to go tell [President] Bigelow that Shipley was a strong union man." 5 Minor heard Harris say the same thing to Gilbert Flores. About November 7, Supervisor Harris instructed Freder- ick Holley to meet him at the U-totem store. In Harris' parked car at the store, Harris told Holley that Respondent was "scared" of the Union but that he hoped it would organize the plant because he "wouldn't have to work so hard." He asked Holley if he knew anything about the Union. Holley said he was "just as much in the dark about it as anybody." Harris said Respondent would fire him if they knew he had talked about the Union .6 Supervisor Ernest Marotta also asked Holley in December 1969 what he thought about the Union. Holley said he "didn't think about it, and . . . didn't want to talk about it." contemporaneous events, and Peter Harris' testimony concerning his next conversation with Supervisor Harris which shows that he was aware of the organizing campaign at that time and which he placed as about 3 weeks before his discharge. + Peter Harris also testified that 2 weeks after he was hired , Supervisor Harris asked him "not to talk union around the plant" because some employees who had done so "a number of years ago were laid off about it." Harold Shipley was not a union supporter. 6 The Union notified Respondent on October 18 that it was organizing its employees. President Bigelow thereupon instructed the supervisors not to talk about the Union to the employees. The employees were not advised of these instructions. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Minor was one of 20 employees discharged on November 10. Supervisor Harris met Minor at the plant gate before work on November 11 and gave him his check. Minor asked why he had been laid off and Harris said he would find out and let him know. Two nights later, at a service station where Minor worked part time, Harris told Minor that he was laid off "on account of the Union." Minor asked Harris "why didn't they lay the rest of them off." Harris replied that Respondent would lay the rest of "the old mens off" when the new employees learned their jobs and business slowed down. Supervisor Harris' statement to Peter Harris not to talk union around the plant because employees had been discharged in the past for doing so, implied that Peter Harris risked discharge if he engaged in union activity and hence constituted a threat violative of Section 8(a)(1) of the Act. As his statements to Minor after November 10 that Minor had been discharged for his union activity and that Respondent would fire other senior employees for their support of the Union when "business slowed down," tended to restrain Minor from engaging in union activity, I find them also violative of Section 8(a)(1) of the Act. R. J. Reynolds Foods, Inc., 168 NLRB No. 47(TXD). Harris also asked Minor, Peter Harris, and Holley what they knew about the Union and how they felt about it. The three employees pretended that they knew nothing about the Union and had no interest in it. I find below that Minor, Peter Harris, and 18 other employees were discharged on November 10 to discourage support of the Union. When Supervisor Marotta asked Holley about a month later what he thought about the Union, Holley, who had been an active union supporter, refused to talk about the Union. I find in these circumstances that Harris' and Marotta's questioning of Minor, Peter Harris, and Holley concerning union activity and sentiment was violative of Section 8(a)(1) of the Act.7 Respondent argues that it is not liable for the conduct of Harris and Marotta because they are minor supervisors, who engaged employees in isolated and casual conversa- tions about the Union, in a context free of antiunion hostility, and contrary to Respondent's express instruc- tions. Harris and Marotta were departmental foremen; Harris had five conversations with Peter Harris, Minor, and Holley concerning the Union during a period of about I month; Respondent did not notify the employees of its neutrality instructions and, as I find below, Respondent discriminatorily discharged 20 employees, including Peter Harris and Minor, on November 10. I therefore find no merit in Respondent's contention that it may not be held responsible for the conduct of Harris and Marotta. B. The November 10 Discharges Respondent discharged 20 employees after work on Monday evening, November 10.8 Unlike previous reduc- tions in force at the plant, the supervisors and employees had no advance notice, the discharges were accomplished r Supervisor Harris also remarked to Minor and Gilberto Flores on November 7 that they ought to tell President Bigelow that Shipley was a strong union supporter. I find, contrary to an allegation in the complaint, that Harris' statement was not sufficient to create an impression that Respondent was engaging in surveillance of union activity. X The discharged employees received their final paychecks that evening or before work the next morning. on a Monday rather than a Friday, which is payday at the plant, and the layoff included many "seasoned hands." For a number of weeks before November 10, all production employees had worked 10 to 12 hours a day, 6 days a week. After November 10, the remaining employees continued to put in considerable overtime work .9 Sixteen of the 20 discharged employees had signed union authorization cards and 10 of the 16 had attended union meetings . Of the five employees in the mill department supervised by Foreman Harris, four who had signed union cards-Gilberto Flores, Franco, Minor, and Reyna-were discharged. Shipley, who had not engaged in union activity , was retained . Eleven dischargees were among Respondent 's highest paid em- ployees. Andres Flores, Elias "Joe" Flores, Tony Franco, Reynaldo Liandro, Ernest Salas, and Genaro Valdez were "department heads"; Johnny Delgado and Earnest Minor were leadermen ; and Gilberto Flores, Inez Longoria, and Rafael Reyna were "class A" employees. 10 Except for Longoria, these employees had signed union cards , and all but Reyna had attended union meetings. Respondent hired 39 new employees between November 13, 1969 , and March 12, 1970, including three employees hired in the week following the layoff. Respondent's explanation for the discharges may be summarized as follows : President Floyd Bigelow, after a long hospitalization , returned to the plant on a full-time basis in April 1969. He found that efficiency was down and that customers were sending in serious complaints. On a trip in June 1969 to an Air Force Base in Austin, Texas, Respondent's representatives found serious deficiencies in buildings the customer had complained about. On July 28, President Bigelow issued a memorandum to all employees on "Company Rules & Standard Operating Procedures." The memorandum closed as follows: 7. Quality of our Product and Services. I have received many complaints from our customers during the past year about the poor quality of the workmanship of both our finished buildings and our export packing. We can not stay in business with our customers unhappy about our work. Carelessness and sloppy workmanship by any employee of Porta-Kamp, either salaried or hourly, will not be tolerated. I must ask all employees to improve the quality of the work they perform, and especially the appearance of our buildings. Major points to improve are: Interior trim work. Windows and doors in straight and operable. Equipment properly installed and tied down. - Electrical. - Exterior wall finish-drive screws-scratches. Export packing-Needs much better blocking when packed in buildings. Boxes for boxed equipment are leaking and are not properly braced. - Completeness of all parts and equipment for each job-Too many shortages are being reported by our customers. 9 Vice President Frank Burg testified that after the layoff the employees worked 10 hours daily from Monday to Thursday, 9 hours on Friday, and, if necessary, on Saturdays . At the time of the hearing, the plant was scheduled to work 2 of the next 4 Saturdays. 10 Respondent classifies its rank-and-file employees as departmental heads, leadermen, class A, class B, class C, and trainees . The department heads and leaderman lead small crews in their work. PORTA-KAMP MANUFACTURING COMPANY 659 - Welding-There is too much splatter left. Also, there are some poor welds, especially on skid ends and stacking racks. - Flooring-Ridges are showing up after linoleum is installed. This is primarily because self-tapping screws used to put down the plywood floors are being run in too deep and are not being put close enough together. They should be approximately 12" on centers and the heads flush with the top of the plywood. Your cooperation in the above will certainly make Porta-Kamp a better place to work, and, at the same time, help keep our customers satisfied. Without satisfied customers we are all in trouble. On August 8, President Bigelow discharged the plant superintendent and decided that he and Vice President Frank Burg would "run the plant directly for a period of time." They observed the employees at work and concluded that they had "to have some better grade personnel for the organization." Respondent had a "tremendous workload" ahead and was unable "to hire any kind of experienced help." It determined to "ride through with the people [it] had" and to bring "everyone that [it] could possibly bring out of the office to act as . . . working supervisory capacity." It decided, however, to terminate 14 employees as soon as possible, including Andres Flores, Reynaldo Liandro, Johnny Delgado, Ernest Salas, Earnest Minor, and Tony Franco.11 Sales Manager Russell Brient returned from a sales trip on October 24 and advised Bigelow the next day that sales for the next 3 to 6 months would be "in the range of 40 to 50 percent below our normal sales." Early in November, Respondent decided to reduce production from as much as eight units a day 12 to four units a day and to cut the work force from 80 to 60 people in light of orders on hand and decreased sales activity. On the morning of November 10, Bigelow gave Burg the names of the 7 employees still in Respondent's employ whose termination had been decided upon in August and told Burg to select 13 more employees for discharge. Burg made the decision himself. That afternoon, he advised the supervisors of the discharges. The supervisors gave the discharged employees their final paychecks that evening or before work the next morning. Respondent's business is somewhat seasonal and layoffs are not infrequent. Respondent's explanation for the November 10 layoff, however, does not show why it was 11 Five of these 14 employees, who worked in the wall department were allegedly discharged on October 17 because Bigelow had traced "sloppy work" to them that morning and they refused later that day to work overtime. Respondent also claims that Delgado and Franco were excessively tardy and Franco was sent home one morning for coming to work intoxicated. It does not appear that the men were reprimanded for their tardiness, or that Respondent found it necessary to send Franco home again. In any event, Respondent's basic claim is that it selected 14 employees, including Delgado and Franco, for future discharge in August because the quality of their work was poor. 12 Production usually did not exceed six or seven units a day. 13 Respondent labels "incredible" this testimony of Minor. Minor's testimony, however, is quite detailed, and Respondent chose not to call Harris to testify. 14 Respondent asserts that the number of man-hours per unit produced was substantially reduced after the November 10 discharges . A supporting tabulation put into evidence by Respondent takes no account of the fact that the average man-hours required for the different units manufactured effected without notice, on a Monday, and at a time when the remaining work force could not meet production requirements without working much overtime at consider- able extra expense to Respondent. Although President Bigelow had been advised on October 25 that sales prospects were poor, the plant hired 12 new employees between October 27 and November 3, an action on its face inconsistent with a contemplated reduction in force but quite consistent with Bigelow's testimony that he could forecast production "with some certainty" for 2 or 3 months ahead. Respondent on November 10 had orders for 95 buildings and expected to receive additional orders. In these circumstances, I find unconvincing Respondent's explanation that it effected the November 10 discharges because a drop in sales and orders necessitated a drop in production from eight to four units a day and a consequent reduction in force. I also find unconvincing Respondent's explanation that it included seven senior employees in the layoff pursuant to a decision made in August to discharge these employees as soon as possible because they were not performing their work properly. President Bigelow testified that customer complaints were traced to these employees and that he talked to them about improving their work. The record shows, however, that customer complaints have been regularly received and recorded during the 15 years Respondent has been in business ; no customer canceled an order before the November 10 layoff; Respondent issued no further memoranda to its employees on the quality of their work after the July 28 memorandum, which called on all employees to improve the quality of their work; and no employee was formally reprimanded for the poor quality of his work. In fact, Minor received a pay increase about 2 weeks before his discharge. Supervisor Lewis Harris told Minor he did not know why he had been discharged and later told him that he and other senior employees were discharged for their union activity. 13 Respondent makes no claim that any of the seven employees was ever warned that he risked discharge if his work did not improve, and called no area supervisor to testify concerning the work of the seven employees. In these circumstances, I reject the testimony of Bigelow and Burg that Bigelow decided in August to discharge Delgado, Andres Flores, Joe Flores, Franco, Liandro, Minor, and Salas as soon as possible to improve efficiency of operations. 14 by Respondent varies from 80 to 300 man-hours. As Respondent did not show the type of buildings produced before and after the layoffs, the tabulation is of little significance . In any event, Respondent's actual production in the 5 weeks before the layoff with a work force of 80 men was 195 units, which compares favorably with Respondent's production of 114 units in the 5 weeks after the layoff with a work force of 60 men. Respondent also claims that the quality of work improved after November 10, as shown by the receipt of fewer customer complaints. Data sheets on complaints put into evidence by Respondent show five complaints received in the 6 months before November 10, the last one being dated September 19, 1969. Sales Manager Brient testified that Respondent received between 2 and 6 complaints in the 41 /2 months between November 10 and the hearing. Respondent introduced no supporting documents. Assuming however that Brient's testimony is accurate and that the number of complaints received is a reliable index of quality, Respondent has shown no reduction in complaints since November 10 warranting a finding that the quality of its products has significantly improved since the November 10 discharges. Indeed, so far as the record shows, Respondent received no written complaint on orders completed between September 19 and November 10. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The seven senior employees discharged on November 10 had all signed union cards. Of the other 13 employees discharged at the same time, 9 employees-Aleman, Alvarez, Gilberto Flores, Martinez, Montoya, Reyna, Valdez, Valencia, and Zamora 15 -had signed union cards; Peter Harris attended union meetings at the U-totem store and was questioned about the Union by Supervisor Lewis Harris before his discharge. Inez Longoria was present at the October 26 meeting at the union hall. Only two discharged employees-Amy and Clemens-were not involved in union activity. Valdez, who had received seven signed cards from employees at the plant parking lot, was a leaderman in the plant steel shop. Valdez was given a pay raise 2 Or 3 weeks before his discharge and was told at that time by his supervisor, Joe Faherty, that he was getting the raise for "a well-done lob." When Faherty gave Valdez his final paychecks on November 10, he said Valdez was doing a good job and that he had had nothing to do with Valdez' layoff. Valdez asked Faherty why he had been discharged. Faherty walked to the plant office and returned to tell Valdez that he had been laid off for his "attitude." Vice President Burg testified that he selected Valdez for discharge because he had failed to correct plumbing work after it was called to his attention; because he had refused to change his way of installing insulation on a "port- apartment operation" after being corrected on it by an inspector; and because Supervisor Faherty advised Burg 2 weeks before November 10 that "Valdez had lost control of the operation." Valdez, the highest rated rank-and-file employee in the plant, received a wage increase shortly before his discharge. His testimony that he had been complimented on his work by Supervisor Faherty and that Faherty did not know why he was discharged is uncontrad- icted. I reject Burg's testimony that he selected Valdez for discharge because he was not properly discharging his job duties. Peter Harris was hired on May 21, 1969, and received two pay raises before his discharge on November 10. Burg allegedly selected him for discharge because, in checking out foremen complaints "that they could not get their materials into their departments," he observed that Harris "did more talking than he did work" and failed to keep the forklift in operating condition. Harris testified that no one ever told him that he was "doing a bad job." I consider Burg's unsupported testimony concerning Harris' alleged shortcomings untrustworthy and find that Harris was regarded as a satisfactory employee before his discharge. I further find, as Respondent hired another forklift operator a few days after discharging Harris, that his services were needed at the time of his discharge. Under all the circumstances-including Supervisor Lewis Harris' interrogation of employees concerning union activities; the elimination of all union supporters in his department on November 10; his statement to Minor that he and other senior employees had been discharged for union activity; the disproportionate selection of union supporters for discharge; Respondent's unconvincing explanations for the discharges of Delgado, Andres Flores, Joe Flores, Franco, Liandro, Minor, Salas, Valdez, and Peter Harris; the timing of the discharges at a critical point in the Union's organizing campaign; the effectuation of the discharges on a Monday, without notice to supervisors, and at a time when the remaining work force could meet production requirements only by working overtime at considerable extra expense to Respondent-I find that Respondent knew or suspected the identity of many union supporters and effected the discharges on November 10 to get rid of such employees and to discourage the remaining employees from supporting the Union. Cf. Sun Hardware Company, Inc., 173 NLRB No. 143, enfd. 422 F.2d 1296 (C.A. 9). I conclude that the 20 employees named in the complaint, as amended at the hearing, were discriminatori- ly discharged, in violation of Section 8(a)(3) and (1) of the Act. IV THE CHALLENGED BALLOTS I find that the following 15 employees, whose ballots were challenged at the Board election on January 7, 1970, in Case 23-RC-3371, were eligible to vote as discriminatorily discharged employees: Antonio C. Aleman Raynaldo Liandro Juan Alvarez Alejandro Martinez Johnny Delgado Earnest Minor Andres Flores Rafael Reyna Elias G. Flores Ernest Salas Gilbert Flores Genaro Valdez Tony V. Franco Fernando Valencia Peter Harris As no evidence was introduced to show that the following employees were eligible to vote at the election, I find that the challenges to their ballots should be sustained: Robert Almaguer Donato Garza Ladislado Hernandez Ovidid H. Hinojosa Josias G. Moreno Pablo H. Santos CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By the acts and conduct herein found violative of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain action designed to effectuate the policies of the Act. As it has been found that Respondent discriminatorily discharged 20 employees on November 10, 1969, I shall recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent 15 Zamora, whose full name is Albert Gomez Zamora, signed a union card as "Alberto Gomez " PORTA-KAMP MANUFACTURING COMPANY positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them. The loss of pay under the order recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 N LRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 As the unfair labor practices of Respondent found herein go to the heart of the Act, it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, it is recommended that Respondent, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Discouraging membership in Carpenters District Council of Houston and Vicinity, AFL-CIO, or any other labor organization of its employees, by laying off or discharging its employees or discriminating against them in any other manner in respect to their hire or tenure of employment, or condition of employment (b) Threatening employees with discharge for engaging in union activity, coercively interrogating employees concern- ing their union activity or sentiment; or in any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer the following employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole for any loss of pay they may have suffered because of the discrimination against them, in the manner set forth in the section entitled "The Remedy". Antonio C. Aleman Necie Amy Juan Alvarez Marshall Clemens Johnny Delgado Andres Flores Elias G. Flores Gilbert Flores Tony V. Franco Peter Harris Raynaldo Liandro Inez Longoria Alejandro Martinez Earnest Minor Anselmo Montoya Rafael Reyna Ernest Salas Genaro Valdez Fernando Valencia Alberto Gomez Zamora (b) Notify the above-named 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. (c) Preserve and 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 or 661 useful in computing the amount of backpay due, as herein provided. (d) Post at its Houston, Texas, plant, copies of the attached notice marked "Appendix " 16 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.17 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that the Board in Case 23-RC-3371 overrule the challenges to the ballots of the 15 employees found herein to have been eligible to vote at the January 7, 1970, election, and that these ballots be opened and counted 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions , recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " it In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 23. in writing within 10 days from the receipt of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage you from membership in Carpenters District Council Of Houston and Vicinity, AFL-CIO, or any other labor organization, by discharging, laying off, or discriminating against you in any other manner with respect to hire or tenure of employment or any term or condition of employment. WE WILL offer any of the following employees who have not been reinstated immediate and full reinstate- ment to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, and we will pay all the following employees any wages due them as a result of our discrimination against them: Antonio C. Aleman Necie Amy Juan Alvarez Marshall Clemens Johnny Delgado Andres Flores 662 DECISIONS OF Elias G. Flores Gilbert Flores Tony V. Franco Peter Harris Raynaldo Liandro Inez Longoria Alejandro Martinez Earnest Minor Anselmo Montoya Rafael Reyna Ernest Salas Genaro Valdez Fernando Valencia Alberto Gomez Zamora NATIONAL WE WILL notify the above-named 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. WE WILL NOT threaten you with discharge for engaging in union activity, or coercively question you LABOR RELATIONS BOARD concerning union activity or sentiment, or in any other way interfere with your right: To organize yourselves To form,join, or help unions To bargain, for your wages, hours, and working conditions as a group through representatives of your own choosing To refuse to do any or all of these things. PORTO-KAMP MANUFACTURING COMPANY INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 713-226-4296.