C. P. Lesh Paper Co.

C. P. LESH PAPER CO. 359 C. P. Lesh Paper Company and Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 25-CA-3626 December 21, 1970 observation that, for the most part, collective bargaining is collective rather than individual To interpret this as a threatened loss of benefits merely because of the language in the proviso to Section 9 (a) seems to Chairman Miller farfetched See the somewhat similar view expressed by Member Zagona in Graber Manufacturing Company, Inc, 159 NLRB 244 at 245, as it referred to the speech quoted at p. 248 of the Trial Examiner 's Decision in that case. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On August 12, 1970, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed timely exceptions and brief to the Trial Examiner's Decision. General Counsel has filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent, C. P. Lesh Company, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C P 3) We find no such basis for disturbing the Trial Examiner's credibility findings in this case 2 Chairman Miller would find no violation of the Act in Respondent's statement to several employees that , if the Union came an, "we would be taking away our freedom of speech because we would have to go to the union steward instead of going to the bosses " In Chairman Miller's view, there was nothing improper in Respondent's essentially truthful LLOYD S. GREENIDGE, Trial Examiner: This proceeding was heard at Indianapolis, Indiana, on April 22 and 23, 1970. The complaint, which was amended at the hearing, issued on February 27, 1970, based on a charge filed on January 8, 1970. The complaint, as amended, alleges violations of Section 8(a)(1) and (3) of the Act. Briefs were filed by the General Counsel and by the Respondent. Upon the entire record, his observation of the witnesses, their attitude and demeanor while on the stand, and the briefs of the parties, the Trial Examiner hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint, as amended, alleges, and Respondent admits, that Respondent is an Indiana corporation with an office and place of business in Indianapolis, Indiana, where it is engaged in the manufacture , sale, and distribution of pape: products; that, during the past year, which is representative of its operations at all times material herein, it purchased, caused to be transported and delivered to its Indianapolis, Indiana, facility, goods and materials, of which in excess of $50,000 worth came directly from points outside the State of Indiana ; and that, during the same period, of its products manufactured at the above-named facility, it sold and distributed in excess of $50,000 worth directly to points outside the State of Indiana. I find, upon the foregoing, as Respondent also admits , that Respondent is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, affiliated with The International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent: (1), as more fully set forth in the complaint as amended, engaged in activity in contravention of the provisions of Section 8(a)(1) 187 NLRB No. 42 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act, by interfering with, restraining or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, by (a) the conduct of Respondent's supervisor, Tom Tomey, interrogating employees with respect to their own and other employees' union activities and member- ship, threatening that Respondent would shut down its business operations before it would recognize the Union, threatening employees with discharge and other reprisals should they become or remain members of the Union, or telling them that they did not and would not receive planned or scheduled wage increases because they became or remained members of the Union, on various dates in November and December 1969 and in January 1970, or (b) by the conduct of Respondent's supervisors Tomey and Fred Hunter giving employees the impression that the Respondent had engaged in and was engaging in surveil- lance of their union activities on various dates in November; or (c) by, on, or about early December, implementing, maintaining, and enforcing a restrictive work rule prohibiting certain employees from talking during working hours and by withdrawing certain privi- leges, all because the employees had become or remained members of the Union; or (2) engaged in activity in contravention of the provisions of Section 8(a)(3) and (1), as more fully set forth in the complaint as amended, by laying off and terminating the employment of five named employees on various dates in January and February 1970, because the said employees and other employees of Respondent had joined and assisted the Union. The Respondent denies the commission of any unfair labor practices. B. Background For many years, Respondent has been, and is now, primarily engaged in the sale at wholesale of paper products. In addition, Respondent conducts limited manufacturing operations in what it calls a converting department. The converting department handles custom jobs, and manufactures blue books and class record books for sale to colleges and grade schools. About January 1969, Respondent replaced two of its blue book machines, instituted a night shift for polywrap activity, transferred two female blue book machine operators to the night shift, and hired another girl to form a three-girl crew on night polywrap work. The dayshift polywrap activities continued without interruption. From about October 1, 1969 until January 3, 1970, the period generally relevant hereto, the converting department had a work complement of about 30 i Jessie Gibson , Sudan Macon, and Mildred Hensley 2 Also referred to as bookbinding machines, binders , or automatic collators There had been a nightshift operation on the bookbinder for more than 6 years prior to the start of the night polywrap operation 3 Leon Beck 4 The names and dates of hire of the alleged discriminatees, who had been class recordbook gatherers, are as follows Paulette Lacefield October 13, 1969 Anna Qualls November 23, 1969 The names and dates of hire of the alleged discnminatees , who had been polywrap operators, are as follows Patricia Benson October 22, 1969 employees, of whom 21 were assigned to the day shift and 9 to the night shift. On the night shift, three employees' operated the blue book machines 2 one operated the ruler cutter,3 two collated or gathered class record books, and three were assigned polywrap work. On January 3, 1970, the Respondent laid off the five employees on the night shift who had been engaged in the assembly of class record books and in the operation of the polywrapping machine under circumstances herein alleged to be discriminatory.4 The president of the Respondent is Frederick Lesh, the vice president and internal manager is William Muir, the day foreman is Fred Hunter, and the night foreman is Tom Tomey. The complaint alleges, Respondent admits in its answer, and I find that, at all times material herein, Lesh, Muir, Hunter, and Tomey have been and are supervisors of the Respondent within the meaning of Section 2(11) of the Act. C. The Union's Campaign In late October or early November 1969, Paulette Lacefield, a class record book assembler on the night shift, telephoned the local office of the Union to suggest that it seek to represent the company's employees. The following day, Oscar Manual, a business representative and organizer for the Union, called on Lacefield, discussed with her and Jessie Gibson the means of organizing the employees, and gave them union literature concerning the same. On November 4 or 5, Manual returned to Lacefield's home. This time he explained to Lacefield, Gibson, and Sudan Macon the procedure to be followed to obtain employee signatures on union authorization cards and handed Lacefield 15 to 20 cards to distribute among the employees. Lacefield, in turn, passed on about eight of the cards to Gibson and Macon. Pursuant to instructions from Manual, Lacefield distributed union cards in the parking lot and inside the plant and succeeded in obtaining signatures thereto of eight to ten of her coworkers. Gibson secured four signed cards and Macon a like number. Both returned the cards to Lacefield who passed them on to Manual.5 The last reported organizational meeting with Manual was held at Marathon Truck Stop, South Harding Street. In attendance were Lacefield, Gibson, Macon, Frieda Ray- mond, and Delores Dill .6 The organizational drive did not attain its objective, however, as the Union did not file a petition for an election with the Board nor was a demand for recognition ever made. D. Interference, Restraint, and Coercion On November 13, 1969, Day Foreman Fred Hunter Mary Jane Carter November 9, 1969 Sherry Vance November 12, 1969 5 The names of the signatories to the union authorization cards in evidence and the dates of execution thereof are as follows Paulette Lacefield November 4, 1969 Jessie Gibson November 5, 1969 Sudan Macon November 5, 1969 Patricia Benson November 5, 1969 Mary Jane Carter November 10, 1969 Anna Qualls November 23, 1969 6 Raymond and Dill were dayshift employees, the others worked nights C. P. LESH PAPER CO. posted a notice on the employees' bulletin board. It read as follows: As of November 13,7 1969, we have found it necessary to cease all conversation not pertaining directly to the operation of gathering, and wiring Class Record Books or other wire bound books in that Department. Benson recounted that, shortly after the notice was put up, Tomey told her that he had requested the posting and that his reason for so doing was to get the girls in collating, particularly Lacefield,8 to stop talking; that he knew Lacefield could not stop and, the minute he caught her talking, he would fire her on the spot. According to Tomey's version, the posting was a natural and logical response to an intolerable condition. Tomey elaborated stating that, in early November, Hunter told him that he (Hunter) had given the day shift employees an oral warning against talking on the job and suggested that Tomey do the same with respect to the employees on the night shift. A couple of weeks later Tomey asked Hunter to issue a written notice because the employees in gathering were continuing to talk while at work .9 Initially, Tomey asserted that his decision to request a posting was prompted by complaints from Anna Qualls and Sherry Vance about Lacefield conversing with them during working hours. However, when it was pointed out to Tomey on cross- examination that Qualls was hired 10 days after, and Vance only I day prior to, the posting, Tomey retracted somewhat, stating that he himself had observed Lacefield leave her area at least twice each night to go to Gibson's work station, or to the poly crew, or to Macon where she carried on conversation about matters not disclosed. But, here again, according to the credited and unchallenged testimony of Lacefield, Tomey had instructed her to see that the girls followed proper procedures in collating, to make certain that they used the correct materials in their work, and to insure that there was sufficient material on hand to do the jobs. Finally, Tomey had cautioned Lacefield that she would be held responsible for any mistakes the girls might make.10 Thus, to achieve the results required by Tomey it was necessary, according to Lacefield, to converse with employees detailed to collating duties when work in their respective areas had slacked off. Muir gave a different explanation as to the reason for the posting. According to Muir, although he had determined early in 1969 that the class record book section (day shift) had turned into "some kind of sewing circle" and had immediately instructed Hunter to take corrective action, Hunter "messed around with it for a month or so." Some months later, when Muir realized that "you couldn't perpetually be counting and talking," he told Hunter "to knock off as much of the unnecessary talk as could be knocked off." The posting on November 13 followed. r A white mark appears over the "I" in the number "13 " Lacefield, Gibson, and Benson testified that they saw the notice at the time of, or soon after, the posting and that the "1" was not covered I credit their testimony and find that the date set forth in the notice was November 13, 1969 8 Until November 23, when Qualls was hired, Lacefteld was the only employee assigned to collating on the night shift 9 There is no evidence of an oral warning to the night crew 10 Lacefield was the most experienced night worker among the new hires She was first employed by the company on January 16, 1968 as a 361 Benson and Mary Jane Carter testified, in substantial accord, that, sometime about the middle of November while in Tomey's car, Tomey asked if they had signed union cards and they told him it was none of his business. According to Benson, Tomey then stated that Muir knew the employees who had and those who had not signed cards for the union; and that Tomey named in the latter group, Sherry Vance, Mildred Hensley, Frances Long and, generally, most of the older employees. Carter recalled that Tomey said "they" knew the employees who had signed union cards. Continuing, these individuals testified that Tomey advised that, if the Union became the bargaining agent, employees would not be permitted to go to the restroom without first getting a pass from him and, if they talked back, he would fire them on the spot. After this, Tomey told Benson and Carter that they were interested in the wrong union; that the bookbinders' union not the Teamsters was the union for them; and that, if the former sought to organize the plant, he would go along because it would mean $1 per hour increase for him. Tomey acknowledged a conversation with Benson and Carter in the middle of November but generally denied the remarks attributed to him. In Tomey's version, Benson and Carter initiated the discussion with the statements to the effect that Lacefield and Gibson were trying to organize the employees but that they (Benson and Carter) had not and would not sign union cards. The alleged report about the employees' organizational effort was not news, according to Tomey, because "we already knew" a campaign was underway. Tomey explained that, a "couple of days" before the mid-November conversation, an office boy had told him that the employees on Tomey's shift were organizing and that Muir was aware of it." On November 23, Hunter and Tomey stopped Gibson and Macon in the work area. Hunter told them that he knew who the instigators were "in all this union" activity; named Gibson, Macon, Lacefield, and Raymond as the instigators; 12 called Gibson and Macon "a bunch of low- down rotten people for doing him the way we were doing him" after all he had done for them; stated it was a "pretty dirty" thing to do; identified Macon as "a pusher" on the night shift and Raymond her counterpart on the day shift; and warned that if the Union comes in "we would be taking away our freedom of speech because we would have to go to the union steward instead of going to the bosses." 13 In late November or early December, Tomey had another conversation with Benson and Carter this time in the plant and at the end of the work shift. The three had planned to go bowling that evening but, according to Benson, Tomey was upset so they stood around and talked. Benson testified, corroborated in essential particulars by Carter, that Tomey stated that Muir had called him into the office that day and had directed him "to get nd of Paula book machine operator and continued in its employ until May 29, 1969, when she quit 11 Muir did not deny knowledge of the employees' organizational activities at times material. 12 Each of these individuals had attended one or more of the union's organizational meetings 13 These findings are based on a synthesis of the credited and mutually corroborative testimony of Gibson and Macon Hunter was not called as a witness and the failure to call him was not explained Tomey did not challenge any of the statements attributed to Hunter 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Lacefield) or they would get rid of Tom (Tomey)." Asked why he had to get rid of Lacefield, Tomey replied, according to Benson, "they said because Paula had started the union, all the trouble with the union." Continuing Tomey related, again according to Benson, that Muir had two plans to accomplish his goal and that "one of them was that they was going to layoff the polywrap and collating crew and then in a week or two later they would call everyone back but Paula." 14 Tomey also reported that "after they got rid of Paula they would make sure they would get rid of Jessie (Gibson) and Sudan (Macon), too; advised that "if the Union didn't get in .. . all the girls that had signed cards would be fired except Mary Jane (Carter) and I (Benson)"; and, finally, declared that "before they let the union in, that the plant would close the doors down." Tomey categorically denied all the statements and comments charged to him by Benson and Carter in this conversation, testifying that all that occurred was what was related in his version of the episode. In Tomey's view, the conversation was initiated by the girls who asked what the Company would do if the Union was voted in. To this Tomey replied that he did not know but guessed that it would agree to a contract. The girls went on to say, according to Tomey, that the Union had promised them a lot of money and they were going to get it whether the Company liked it or not. Benson then stated that the Company had to accept the Union and Tomey answered in the refrain that it would do so to stay in business but otherwise would not. About the end of November or the beginning of December, Gibson confronted Tomey at her work station. On this occasion, Gibson told Tomey, according to Gibson, that she had received a telephone call from one James Sharpe and asked if Tomey knew the man. Tomey identified Sharpe as the president of the bookbinders' union and stated that he had given Gibson's and Mildred Hensley's telephone numbers to his mother who had passed them on to Sharpe. Tomey then suggested that Gibson invite Sharpe to her home; declared that "we will recognize the bookbinders but not the Teamsters"; stated that Sharpe had told him he would receive a $1 pay increase if the bookbinders became the bargaining agent; and advised that the bookbinders would do more for the employees than the Teamsters as the latter promised a lot but delivered little or nothing. In the same conversation, Gibson asked Tomey about a raise she thought the employees were to receive. Tomey replied, according to Gibson, that the employees were scheduled to get a blanket raise but "since the union talk came up I don't think you'll get anything." Sometime in December, Tomey had still another conversation with Benson and Carter this time at the start of the shift and near the papercutter. According to Benson, whose testimony was corroborated in major parts by Carter, Tomey told them that "all the girls in the plant were supposed to get a raise the first of December but now they were not going to get the raise or anything else, since they had started trouble with the union." Tomey's recollection of the Gibson conversation differs in certain material respects from the version reported by Gibson. With regard to the bookbind - ers' union , the testimony is in harmony to the extent that Tomey confirmed the report with respect to his mother's activities but conflicts at the point of his alleged interest in the bookbinders' union. As to the latter, Tomey testified that he reported to Gibson that he had resisted all attempts by his mother to get him to "push" the bookbinders' union because he "had enough trouble with one union and didn't want to worry about two unions at the same time." With regard to the pay raise, Tomey declared flatly that he told Gibson he knew nothing about it. By way of an explanation, Tomey stated that, sometime prior to Decem- ber 1, Gibson had inquired about a raise she was supposed to receive on November 5 and that, during the said November or December conversation, Gibson advised that Hunter had told her that she would get a raise in December because everyone was due for a raise at that time. Concerning the conversation with Benson and Carter at the papercutter, Tomey denied the statements attributed to him. In Tomey's version, Carter inquired about an alleged blanket raise the employees were to receive on December 1. Tomey replied that Gibson had asked the same question and that he had told her he had heard "nothing official." Lacefield testified, credibly and without contradiction, that, about December 5 while discussing a shortage of materials with Tomey in the office, Tomey said that "the company was going to give the girls a blanket raise but since this trouble started he rather doubted whether we would get it or not." The testimony of Benson, Carter, and Gibson, on the one hand, and Tomey, on the other, is in irreconcilable conflict. I resolve the issue in favor of the former and against the latter and find that Tomey made the statements, in substance, attributed to him. My reasons are the following: Judged by the attitude and demeanor of the witnesses involved and making due allowance for interest, the testimony of Benson, Carter, and Gibson appeared more plausible and convincing. Their general demeanor was affable; their testimony candid, unequivocal, and straight- forward. Benson frankly admitted that, for about a month beginning in late November, she had dated Tomey-a married man-at a time when she was also married but separated. Considering the close friendly relations which had existed between them, it is not unreasonable to believe that Tomey told Benson what was reported above with respect to Lacefield and others and what follows with respect to the layoffs, perhaps assuming that she would hold it in confidence, without suspecting that his remarks would someday return to confound him. Further, the testimony of Benson and Carter is mutually corroborative as to their conversations with Tomey, and Gibson was employed by the Respondent at the time she testified adverse to the Respondent. See Federal Envelope Co., 147 NLRB 1030, 1036, citing Georgia Rug Mill, 131 NLRB 1304, 1305, footnote 2, modified on other grounds 308 F.2d 89 (C.A. 5). Conversely, Tomey was uncertain, vacillated, and conveyed the impression of a man faced with a problem of implicating his employer in a scheme to circumvent the law, thereby betraying a trust (and possibly jeopardizing his job) or resorting to the only refuge available-formal denials and inadequate explanations. He elected the latter alternative. To be sure, all of the witnesses 14 The second plan was not disclosed C. P. LESH PAPER CO. have an interest in the outcome of this controversy but Tomey's was more pronounced, his anxieties more acute though unfounded in at least one instance . Thus, Tomey acknowledged that he was upset about the prospect of having to testify and attributed his concern to reports that "if things are proven like this ... the labor board would fire me. They had the power to fire people ." He also disclosed that he was in financial straits to the point where his wages had been garnished . Hampered by such beliefs, fears, and anxieties , Tomey's capacity to recollect and report, accurately and impartially, on the matters in dispute was seriously impaired . In view of the foregoing, as well as demeanor, I regard Tomey's testimony as generally unworthy of reliance and credit it only when it conforms with other credited testimony , or constitutes an admission against the Respondent's interest . In addition, I do not accept Muir's explanation that the posting of the notice at the height of the Union's campaign was but a fortuitous circumstance as the condition which the Respondent sought to correct was known to and endured by the Respondent for almost a year prior to the posting. Concluding Findings I find from the credited testimony that Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act by the following conduct of Tom Tomey and Fred Hunter. 1. The interrogation of employees Benson and Carter by Supervisor Tomey, in November 1969, (and other conduct of Tomey directed at these employees on the same day, as later detailed in this paragraph) concerning their union activities was coercive as it exceeded permissible limits of legitimate inquiry; 15 the threat by Tomey that the employees would lose restroom privileges and face summary discharge for insubordination if the plant were unionized; the statement by Tomey that Vice President Muir knew who had and had not signed union cards created the impression that the Respondent was keeping the union activities of its employees under surveillance; 16 and Tomey's statement that the employees were interested in the wrong union and should instead seek representation by the bookbinders' union interfered with the right of employees to freely select their own bargaining representa- tive guaranteed in Section 7 of the Act. 2. The remarks to employees Gibson and Macon on November 23 by Supervisor Hunter that he knew the instigators of the Union's organizational effort and the naming of the aforesaid employees and employees Paulette Lacefield and Frieda Raymond as instigators. These remarks plainly gave the impression of surveillance of employee organizational activities. Hunter's further remark that the employees would lose their freedom of speech if they selected the Union as their bargaining representative was intended to discourage employee support of the Union and thereby interfered with the exercise of statutory rights. 3. The promulgation and posting by the Respondent on 15 Bourne Co v N L R B, 332 F 2d 47 (C A 2), Johnnie 's Poultry Co, 146 NLRB 770, 775 16 See Jervis Corporation, 159 NLRB 262, 264 17 New French Benzol Cleaners, 139 NLRB 1176, 1179, American 363 November 13 of a rule forbidding employees in the class record department unqualifiedly to engage in general conversation. The rule is broadly restrictive and fails to distinguish between working time and nonworking time. Notice of the rule was posted, according to Muir, in the interest of production, order, and discipline and was primarily intended to correct a condition prevalent among the day shift employees. Tomey the night shift foreman, gave a different explanation. According to the credited account of Benson, Tomey advised that the rule was promulgated in order to get the girls in collating to stop talking. However, since Lacefield was the only night shift employee assigned to collating at the time of the posting, the rule was obviously directed at Lacefield and was to be used as a vehicle to bring about her elimination as Tomey thought she "could not stop talking." Tomey conceded that, at the time of his mid-November conversation with Benson and Carter, "we already knew" the Union was organizing. Moreover, he acknowledged receipt of a report from the office boy, "a couple of days" prior to the said mid-November meeting, to the effect that the employees on Tomey's shift were organizing and that Muir knew about it. In these circumstances, I find that Respondent had knowledge of the employees' union activities prior to the posting on November 13. In addition, I find that Respondent was aware of such activities before November 13 for still another reason. Considering the small size of the night crew and the plant in general, an inference of knowledge is permissible under the Board's small plant rule which I now invoke and apply.i7 On the basis of this rule, and on the entire record, including the open nature of Lacefield's union organizing conduct, I infer and find that word of Lacefield's activities reached Respondent's super- visors shortly after she became engaged in it and before November 13. Inasmuch as the conduct of which Muir complained was one of long standing, known to, and tolerated by the Respondent, I can not find that the precipitant promulga- tion and posting of the rule banning such conduct was motivated by the necessity of a legitimate purpose. On the contrary, considering the timing and content, the employ- ees had reasonable cause to believe, as evidenced by Tomey's conflicting explanation to Benson, that the rule was to be used to inhibit employee talk, interest, and activity in union organization. Accordingly, I find that the promulgation of the rule was for a discriminatory purpose and violative of Section 8(a)(1) of the Act. Ward Manufacturing, Inc., 152 NLRB 1270, 1271. 4. The statements by Supervisor Tomey to employees Benson and Carter, in late November or early December, that Vice President Muir had told him to fire Lacefield because she had started the Union; that Muir had two plans to get rid of Lacefield, one being to layoff the polywrap and collating crew and later to recall everyone except Lacefield; that, after the company had fired Lacefield, it would fire Gibson and Macon as well; that, if Union did not get in, all the employees who had signed Grinding & Machine Co, 150 NLRB 1357, 1366, Angwel! Curtain Company, Inc v N L R B, 192 F 2d 899, 903, (C A. 7); N L.R.B v. Joseph Ante!!, Inc, 358 F 2d 880, 882 (C.A 1) 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union cards would be fired except Benson and Carter; and that the company would close the plant before it would permit it to become unionized.18 5. Tomey's statements to employee Gibson, in Decem- ber, to the effect that he had given the telephone numbers of Gibson and employee Hensley to his mother who had passed them on to a representative of the bookbinders' union ; that Gibson should invite the representative to her home ; that the Respondent would recognize the bookbin- ders but not the Teamsters; and, that the bookbinders would do more for the employees than the Teamsters. These statements were deliberately intended to interfere with the statutory rights of the employees to select their own bargaining representative as they implanted in the minds of the employees the idea that it is right of the employer to decide which union is suitable for them.19 6. Tomey's statement to employee Gibson, in late November or early December, that the employees were scheduled to receive a blanket wage increase but, since union talk had come up, he did not believe they would get anything ; a similar statement to employee Lacefield about December 5 that a planned wage increase would probably not be granted because "trouble" had started; and his statements to Benson and Carter, in December, that the employees had suffered the loss of a wage increase because of their involvement with the Union. E. The Discharges and Layoffs As reported above, Paulette Lacefield was initially employed by the Respondent from January 16, 1968 until May 29, 1969 as a book machine operator.20 She returned to work for the Respondent, on October 13, 1969, as a polywrapper on the night shift and, 2 weeks later, was assigned collating or gathering work. At times, Lacefield worked on the bookbinder as well. Patricia Benson was hired on October 22, 1969, Mary Jane Carter on November 9, 1969, and Sherry Vance on November 12, 1969, all as polywrap operators on the night shift. Anna Qualls was engaged on November 23, 1969, as a gatherer on the same shift. Lacefield, Benson, Carter, Vance, and Qualls were laid off on January 3, 1970, in circumstances detailed below. On Friday, January 2, 1970, Muir sent Hunter and Tomey an intraoffice memorandum.21 It read as follows: NOTE TO: Fred Hunter and Tom Tomey SUBJECT: Night Shift in Polywrap and Class Record Book Departments 18 Tomey's admitted remark that the company would accept the Union to stay in business but otherwise would not reinforces the finding made above with respect to his statement about plant closure as I construe the remark as an implied threat that the Respondent might elect to go out of business if the employees were unionized. As such, it was calculated to instill in the minds of the employees the futility of selecting the Union as their bargaining representative and thus interfered with the Sec 7 rights of employees 19 Not alleged but fully litigated and I am not precluded from making appropriate findings with respect thereto by the failure of the General Counsel to have alleged the statements as a violation Associated Home Builders of Greater East Bay, Inc v N L R B, 352 F 2d 745 (C A 9), Frito Company, Western Division v N L R B, 330 F 2d 458 (C A 9), N L R B v Pecheur Lozenge Co, Inc, 209 F 2d 393 (C A 2), cert denied 347 U S 953, American Newspaper-Publishers Association v N L R B, 193 F.2d 782 (C A 7), cert denied 344 U S 812 , Granada Mills, Inc, 143 NLRB 957, 958, DATE: January 2, 1970 FROM: W. F. Muir, Internal Manager Due to reduced demand and the high cost of production, the Company has decided to lay off the Night Shift in the Polywrap and Class Record Departments. An analysis of the time spent and production results of the Day Shift and the Night Shift indicates that the Day Shift may possibly be able to handle the total production necessary in the Polywrap Department. Production records in the Class Record Department Night Shift indicate only about 50% efficiency in gathering and inserting. Accordingly, until the Company can develop training methods that will enable more economical production, the Night Shift in these two departments will be discontinued at the end of the work shift on Saturday, January 3, 1970. W. F. MUIR Internal Manager On January 3, the night shift was scheduled to work a makeup shift during the day. When Tomey arrived at the plant that morning he found a note on his timecard to call Muir. Tomey promptly complied. In the conversation that ensued, Muir advised that he (Muir) was laying off five girls on the night shift, specifically, the polywrap girls and Lacefield and Qualls in gathering, and that notices of the layoff were in the office. Tomey testified that the news of the layoff was a complete surprise to him, that it hit him hard, and that he did not want the layoff. Elaborating, Tomey explained that, for almost a year, he had asked Lesh and Muir to augment the size of the night shift for reasons that appear to be purely subjective. Thus, Tomey did not know whether more employees were needed but, if needed, he wanted them to be assigned to his shift. In any event, Tomey told Muir that, since the news was sudden and unexpected,22 the employees should be given about 2 weeks advance notice, but Muir demurred stating that the Company could not afford to continue them in its employ beyond January 3. Finally, at Tomey's suggestion, Muir agreed that the girls could be dismissed at noon with full pay for the day. After work had started, Tomey approached Benson at the book machine.23 First, Tomey reminded Benson of a suggestion that she look for another job and, then he told her that the polywrap and collating crews were being laid off at noon. Pressed for an explanation, Tomey declared, Monroe Feed Store, 112 NLRB 1336, see also Rule 15(b), Federal Rules of Civil Procedure 20 This period of Lacefield's employment was interrupted by a temporary layoff in March 1968. 21 Neither Hunter nor Tomey saw the memorandum on the day it was transmitted 22 Tomey's assertion of surprise must be weighed against Muir's uncontested testimony that , in December, he told Tomey, the Company was not getting as much work from the night crew as it had expected, a report which presumably prompted Torrey to suggest to Benson that she look elsewhere for employment . However, while Torrey might have anticipated a layoff of one or two employees, a mass layoff could reasonably have been astounding to him 23 Gibson was out sick and Benson was substituting for her on the machine Lacefield was also out that day. C. P. LESH PAPER CO. "Well, that's the only way they had of getting rid of Paula." 24 Following this exchange, Tomey summoned Qualls, Vance, Carter, and Benson to the office where he formally announced that they were being laid off because of a lack of work and a reduction in the work force. He then gave each girl a notice of layoff and advised that they would be recalled in 2 or 3 weeks if the day shift was unable to handle the work. The notice is entitled Employment Record and the reason given therein for the layoff is "no work." At this point, Benson asked Tomey to tell the truth, declared that the real reason was because Lacefield had tried to bring in a union and that a mass layoff was the only way the company could get rid of her. Qualls expressed similar sentiments. Tomey's response was simply that Benson was uninformed 25 About noon, while in the collating department, Tomey walked up to Benson and said, "Patty, I told you not to say anything about the conversation we had because you could get me fired." Continuing Tomey stated that, in 2 or 3 weeks, all the girls would be recalled except Lacefield.26 Sometime the same day, Torrey telephoned Lacefield and told her that the girls on the night shift had been laid off. Lacefield asked for how long and Tomey said he did not know. Lacefield also requested an explanation but Tomey evaded stating that she would receive a slip which would give the reason for the layoff.27 Gibson, an employee with about 16 years of service with the Respondent, testified, credibly and without contradic- tion, that, except for a 4-week layoff of Lacefield during her first term of employment, she did not recall a single instance of a layoff and definitely not one of the magnitude of the layoff on January 3; that prior thereto the practice had been to rotate off time among the employees. At Macon's direction, Tomey placed a call to Muir at the latter's home on Sunday, January 4, and Macon talked to 24 1 find these facts on the credited account of Benson Tomey denies the statements attributed to him, asserting that all he told Benson was that he had "bad news " His denial is not credited 25 The facts above are found from the credited testimony of Benson, Qualls, Carter and Vance, as corroborated in part by admissions of Tomey The testimony of the latter in conflict with the findings is not credited 26 1 find this discussion from credited testimony of Benson Testimony of Tomey at variance therewith is not credited 27 These facts are found from the credited and uncontroverted testimony of Lacefield The names, classifications, and dates of hire of the employees who remained on the night shift after the layoff of January 3 are as follow Leon Beck, disc operator, June 3, 1969-quit Jessie Gibson, book machine operator, Sept 1954 Sudan Macon. book machine operator, Aug 29, 1969-quit about 4 weeks after the layoff Mildred Henley, book machine operator, date of hire and present status not known 365 Muir. In that conversation, Macon asked Muir not to discharge Gibson 28 and told him that Lacefield not Gibson was the troublemaker and the source of the problem. To this, Muir replied that "they had gotten rid of the problem now" adding "something to the extent that he had to get rid of the other girls in order to get rid of Paula." 29 Benson was recalled on January 13 to substitute for Gibson on the book machine. She was laid off again about February 13 when Gibson returned to work. Sometime during this period of her reemployment, Benson asked Tomey why Lacefield had not been recalled since Lacefield had more seniority than Benson. Tomey replied, "We won't call Paula back no matter what." 30 On February 26, 1970, Respondent engaged one Roteen Cowan, a new hire, to work nights on the book machine. Concluding Findings The complaint, as amended at the hearing, alleges that Respondent discriminatorily terminated five named em- ployees on January 3, 1970, that it recalled one such employee on or about January 15 but then again laid off and terminated the said employee on or about February 5. Apart from the limited recall on or about January 15, none of the employees had been recalled at the time of the hearing. It is the General Counsel's position that such actions were part of a grand design by the Respondent to rid itself of Paula Lacefield, the known union leader. Phase one of the two-part plan was instituted, argues the General Counsel, by the posting of the "no-talking" notice on November 13 which was intended to provide the Respondent with an excuse to eliminate Lacefield as it was contemplated that she would not be able to stop talking. When this action failed to produce immediate results, Respondent moved to the second phase of the plan-the mass discharge of all employees in the class record and polywrapping sections on the night shift-thereby achieving its goal, namely, the 28 Macon felt impelled to plea for Gibson although the reason for her action is not readily apparent as Gibson was not among those whose employment had been terminated and Macon did not explain why she feared Gibson might be included in any future termination. 29 The above facts are found on the credited testimony of Macon To the extent that Muir's testimony conflicts with the findings, it is not credited Muir acknowledged a conversation with Macon but was uncertain as to the date He testified that, if the conversation took place on January 4, "it would have been very logical" for him to have said "that the troublemaker isn't there anymore " 30 These findings are based on the credited testimony of Benson Testimony of Tomey at variance therewith is not credited Tomey averred that he merely gave Benson the "general gist" of a conversation with Muir In the earlier conversation, according to Tomey, Tomey told Muir that Benson had five children, was separated and on welfare, whereas Lacefield had only two children and was receiving support from an estranged spouse. Thus, applying a test of relative need, it was decided not to recall Lacefield Muir tells a different story According to Muir, Lacefield was not recalled because she had gone on record as saying she did not want to work on the book machine or the polywrapper. It was developed, however, in further testimony by Muir, that, intermittently during the fall of 1969, Lacefield did in fact work on the binding machine and, for a period of 2 weeks, on the polywrapper In view of the conflict and the admission of Muir, I do not accept the explanation of either Tomey or Muir for Respondent's refusal to recall Lacefield 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elimination of Lacefield and, in the process, the elimination of three other known union adherents as well. The dragnet caught one nonunion supporter, however, but this, asserts the General Counsel, was only an attempt by the Respondent to give the layoffs "an aura of credibility by following seniority ranking" among the night shift employ- ees. The objective in all this, the argument continues, was to dampen the ardor of employees generally for union representation . It is clear that the recitation of the facts leading up to the terminations vividly reveals their discriminatory character. However, in the face of the overwhelming credited evidence that the terminations were plainly attributable to Respondent's animosity to the employees' organizational activities, Respondent contends that the true reasons for the terminations were economic. In support of this contention Respondent offered the testimo- ny of Muir and certain statistical data. From a synthesis of the testimony of Muir and the proffered exhibits, it appears that Respondent's version of its reasons for the terminations is as follows: In April 1968, Muir was elected secretary and internal manager of the Respondent and, since then, has instituted a number of changes in the Company's operations, all designed to make it more competitive. His first concern was the custom job section in the converting department. For some time, the department had allegedly shown a bad variance31 and Muir attributed the variance to poor salesmanship on the part of the employees in the custom job section which he characterized as the "sickest" in the department.32 In an attempt to solve the problem, Muir hired a cost accountant in May or July 1968, set up a system of standards, instituted a polywrap operation on the night shift in January 1969, added a class record gathering section to the night shift in October 1969, reduced salary costs, and replaced all but one of the supervisors. Next, Muir turned his attention to the blue books and class records section in a continuing search for a solution to the variance problem. The departure of Plant Superintendent John Leach at the end of September provided an excuse for further exploration, according to Muir, but for about 6 weeks thereafter Muir did little or nothing in this regard. However, on November 13 after notice of the employees' organizational activities, Muir (1) installed a photoelectric counter33 on the delivery belt of the polywrapper and instructed the girls to take readings, and (2) directed the night foreman to turn in the Bindery Daily Time Reports prepared by the girls in the class record section. From these reports, Muir kept summaries of the polywrap and night shift class record work for the period November 13 through December 31.34 About December 15, or approximately I month after he had instituted the study, Muir decided to discontinue the night shift polywrap and class record operations allegedly because no one was putting in a full day's work on polywrap and not enough work was being done in class records to justify the continuance of the 31 A variance is the difference between what products should have cost the company to produce and their actual cost 32 As noted above , the converting department has three functions (I) the filling of custom jobs, (2) the manufacture of examination blue books, and (3) the manufacture of class record books 33 The counter recorded only the total number of packages wrapped. It did not give a breakdown for each girl operations. In addition, an inventory was starting to build up in class records due to the fact that Muir had raised the price of custom work to the point where the products were not moving. In December, Muir discussed the alleged variance and business trends with Frederick Lesh, the company's president, but first advised Lesh of his decision to terminate the night shift employees in issue sometime between 2 and 4 p.m. on January 2, when Lesh accidentally entered Muir's office. Tomey was apprised of the decision for the first time the morning of January 3, Hunter sometime later. It is my opinion and I find that the limited data submitted by the Respondent are insufficient to weaken the thrust of the General Counsel's case. Further, I find that Muir's oral explanation of Respondent's actions was not credible. These ultimate findings are based on the entire record and the subsidiary findings enumerated below which I also find as facts. Although Muir denied that his decision to terminate the employees was in any way motivated by the fact that an organizational campaign was then in progress, and instead claimed that it was predicated solely on economic considerations which indicated that Respondent was losing money in its operations, no company records, which certainly exist, were introduced. The failure to do so warrants the inference that such records, if produced, would not support Respondent's case. As the Supreme Court said in Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, "The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse." Muir's summary of night production in class records shows the functions performed by the employees in that section and the code number for each function but does not indicate the type book gathered. Attached is a listing of production standards for book types. It is clearly evident, therefore, that the summary was of little value to Muir in determining whether an employee had met the standards as there was no way for him to tell what type books had been gathered or what standards had to be applied. Further, the statistical data assembled for the class record work was limited to the activities of the night shift employees. Comparable statistics for the day shift employees was not presented. Unless production records of the night shift employees are compared with similar records of the employees on the day shift it is impossible to determine whether the former were, as claimed, responsible, in part, for the alleged variance. As to the summary on polywrap work, the results here disclosed that the girls on both shifts were not working full time. Measured on the basis that a full day required 7.6 hours of work, the summary for the period November 13, 1969 to December 31, 1969 showed that the average of hours of work per night shift employee was about 5.2 and, on the day shift, about 4.2. Vance and Macon, former 34 No summary of class record activity was maintained from January 1, 1970 to February 13, 1970 On the latter date , Muir began to compile statistics of class record work performed by the day shift employees-the only employees so engaged at that time-continuing the same through April 12 The summary of polywrap work was continued through Apnl 13 without interruption C. P. LESH PAPER CO. polywrap and blue book machine operators, respectively, averred that, on occasions, they ran out of blue books to be polywrapped. Vance, a witness for the Respondent, elaborated, testifying that idle periods also occurred when she encountered problems with the machines. She went on to say, supported by Qualls, that there were delays in gathering and wiring35 as well due, in the first instance, to the unavailability of needed materials and, in the second, to the fact that available wire often was not of the right size. During such idle moments, Vance and Qualls swept the floor and performed other like chores. A reference to the reports filed by these individuals reveals, however, that the amount of time each spent in cleanup work was not significant. The testimony of Macon, Vance, and Qualls establishes that periods of idleness were often induced by a malfunctioning of the machines or a lack of materials to do the jobs and not by a lack of work, as claimed by the Respondent. Considering now the underlying documents used by Muir to prepare the summary on polywrap work, Muir testified that "there may be some stuff here that's not quite right. From now on the times will be recorded automatically. We will not leave it up to employees to record time ...." And, when queried about certain notations on the class record summary, Muir declared that they indicate "confusion in his mind as to the purport of the documents." Further, Muir agreed that his summary on class record work was "a mess"; admitted that he "didn't have enough information", but then asserted, somewhat apologetically, that "it's the best I've got to go by." These statements amount to a tacit acknowledgment by Muir that the documents which he used as a basis for his decision to terminate the employees were totally unreliable 36 I agree and so find. Moreover, assuming relevance, there is no reason to believe that the summaries maintained by Muir after the decision are any more reliable than those prepared by him prior thereto. Thus, on the basis of a 4-week study of production records in the polywrap and night class record sections, Muir decided to terminate five employees on the night shift. The limited statistical information then available was hardly sufficient to indicate that serious economic prob- lems were developing for the Respondent, particularly in view of the known unreliability of the basic documents. The written explanation itself stumbles into confusion and ambiguity over the central question of the motivation for the terminations. In the first paragraph of the January 2 memorandum to Hunter and Tomey, Muir states that "due to reduced demand and the high cost of production, the Company has decided to lay off the Night Shift in Polywrap and Class Record Departments." Muir contra- dicts this claim, however, by his declaration on the stand that "No, I don't think there was a reduced demand" for polywrap products. Further, in the final paragraph of the said memorandum, Muir advised that the night shift "in these two departments" will be discontinued "until the Company can develop training methods that will enable more economical production." It is not clear, and Muir did 35 When out of polywrap work, Vance gathered or wired class record books 36 The following examples are illustrative of the unreliability of the summaries Muir wrote, on the class record summary, the words 'no count' 367 not explain, what a need for training had to do with the terminations, particularly in light of his testimony that the jobs were "surprisingly easy" to learn and that he would have pursued the same course whether or not there had been a training program. Moreover, Muir absolved the employees from any blame in this regard as he also averred that the company "has been lax in training methods" and has had "a lot of trouble in this area." For the reasons set forth above and the record as a whole, I do not believe that the Respondent has established a convincing defense. Evaluating all the pertinent and relevant factors, and resolving credibility issues on the basis of the appearance and demeanor of the witnesses involved; considering the conduct of Respondent's supervisors in interrogating rank- and-file employees regarding their union and concerted activities and in telling employees they did not and would not receive scheduled wage increases because of their involvement with the Union, the implications of surveil- lance, and the explicit threats of reprisal, all manifesting an attitude of opposition to the self-organizational efforts of its employees; taking into account Lacefield's union and concerted activities; the timing of Muir's decision to closely scrutinize the polywrap and class record jobs in relation to the Union's organizational campaign; the fact that Muir's study of class record production was restricted to the night shift and was instituted at a time when Lacefield was the only employee assigned to that section indicating that the study was directed at Lacefield; weighing the other conduct of supervisors Tomey and Hunter, described elsewhere herein in connection with violations of Section 8(a)(1) of the Act, which amply illustrates Respondent's dislike of unions in general and the Union in particular; mindful of the action of Muir in summarily discharging the employees without consultation with the foremen under his supervi- sion who were immediately responsible for them, Muir's statements to Macon on January 4-reported above and reviewed below-which graphically reveal Respondent's true motivation in making the layoffs, Muir's refusal to recall Lacefield-the senior employee among the terminat- ed employees-to temporarily replace Gibson in January, the statements of Tomey to Benson in January with regard to Lacefield's prospect of recall, the hiring of Roteen Cowan on February 26 for work which could have been performed by Lacefield, and Muir's refusal to recall Lacefield when Macon quit in March, all patently demonstrating that Respondent never intended to reinstate Lacefield; and, mindful too of Respondent's failure to supplement Muir's explanation with convincing statistical evidence or other persuasive proof; it is found that the terminations were an integral part of Respondent's antiunion strategy which was to discharge Lacefield, that to realize this goal Respondent was obliged to terminate four other employees in order to reach Lacefield, and that its ultimate purpose in all of this was to warn the employees of Respondent's displeasure over the union campaign and the risk they would incur by supporting the Union. According- opposite the names of several operators indicating thereby that they had failed to record the requested information In addition, an entry was made on November 13, 1969, for Anna Qualls despite the fact that Qualls did not commence her employment with Respondent until November 23 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, I find that Respondent was discriminatorily motivated in terminating and laying off Paulette Lacefield, Patricia Benson, Mary Jane Carter, Anna Qualls, and Sherry Vance and, for that reason, violated Section 8(a)(3) and (1) of the Act. 37 I have heretofore found that, during Tomey's initial conversation with Benson on January 3, Tomey told her that the polywrap and collating crews were being laid off at noon and, when Benson remonstrated, Tomey declared, "Well, that's the only way they had of getting rid of Paula"; that, after the termination interviews and still later in January, Tomey advised Benson that, in 2 or 3 weeks, all the girls would be recalled but Lacefield; that, on Benson's query, in the second of the two January conversations, as to why Lacefield had not been recalled to temporarily replace Gibson, Tomey stated, "You know what I said. We won't call Paula back no matter what"; and that, in a telephone conversation on January 4, Muir told Macon that "they had gotten rid of the problem" and that he had to terminate "the other girls in order to get rid of Paula." As these statements were clearly coercive, they are additional violations of Section 8(a)(I) of the Act and I so find and conclude. 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 the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. It will, therefore, be recommended that Respondent be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent terminated Paulette Lacefield, Patricia Benson, Mary Jane Carter, Anna Qualls, and Sherry Vance on January 3, 1970, in an effort to chill the organizing campaign being conducted at its plant, that it recalled Patricia Benson on or about January 13, 1970, but then finally terminated her employment on or about February 13, 1970, it will be recommended that Respon- dent offer said employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. It will also be recommended that Respondent make said employees whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimina- 37 The fact that Jessie Gibson and Sudan Macon, other known union members, were not terminated on January 3 does not detract from the ultimate finding. "An employer's failure to discharge all the union adherents does not necessarily indicate an absence of discriminatory intent tlon, from the date of the discrimination to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate computation of backpay. In view of the nature and extent of the unfair labor practices in which Respondent has engaged, it will be further recommended that Respondent be ordered to cease and desist from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act.38 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. C.P. Lesh Paper Company, an Indiana corporation, is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, affiliated with The International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. 3. By terminating certain employees on January 3, 1970, by delaying and refusing to recall Patricia Benson-one of the terminated employees-until January 13, 1970, and by again terminating Benson on February 13, 1970, in order to discourage union activity, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the entire record in the case, and the foregoing findings of fact and conclusions of law, it is hereby recommended that Respondent, C.P. Lesh Paper Compa- ny, of Indianapolis, Indiana, Respondent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Ware- housemen and Helpers, Local 716, affiliated with The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other as to those he did discharge " W.C Nabors Company, 89 NLRB 538, 542 enrd 196 F 2d 272 (C A 5) 38 N LR B v Express Publishing Company, 312 U.S 426, 437-438, N L.R.B v Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A 4) C. P. LESH PAPER CO. labor organization, by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees with respect to their activities in behalf of the Union in a manner as to interfere, coerce, or restrain them in the exercise of their rights guaranteed in Section 7 of the Act. (c) Threatening employees with discharge, loss of privileges, or other reprisals if they engage in union activities. (d) Telling employees that (1) its plant would be closed if it were to become unionized, (2) they did not and would not receive pay raises which were due because of the pendency of the union campaign, (3) the Company would recognize the bookbinders' union but not the Teamsters, (4) it was laying off and had laid off employees in order to get rid of the union leader, and (5) all of the laid off employees would be recalled except the union leader. (e) Creating the impression among the employees that their union activities are under surveillance. (f) Promulgating, maintaining, enforcing. or applying any rule or regulation which would prohibit employees from engaging in union talk and union activity in the plant during nonworking time in nonworking areas. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act- (a) Offer Paulette Lacefield, Patricia Benson, Mary Jane Carter, Anna Qualls, and Sherry Vance immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered by reason of the discriminations against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Notify the employees named in subparagraph 2(a) supra, if any of such persons are 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 (d) Post at its place of business in Indianapolis, Indiana, copies of the notice attached hereto, marked "Appendix "39 Copies of said notice, on forms to be provided by the Regional Director for Region 25, shall, after being duly signed by Respondent's authorized representative, be posted by it immediately upon receipt thereof, and 369 maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in wasting, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.40 as 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" 40 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 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 After a trial in which all parties had the opportunity to present evidence, the National Labor Relations Board has found that we, C.P. Lesh Paper Company, violated the National Labor Relations Act and has ordered us to post this notice. We, therefore, notify you that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their right to support Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, an affiliate of The International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein at times called the Union, or any other labor organization, as their collective-bargaining repre- sentative by- Coercively interrogating them concerning their union activities and sympathies. Threatening them with discharge, loss of privileges, or other reprisals if they engage in union activities. Telling them our plant will be closed if it becomes unionized. Telling them they did not and would not receive a scheduled wage increase because of the pendency of the Union's campaign. Telling them that we were laying off and had laid off employees in order to get rid of the union leader and that all of the laid off employees would be recalled except the union leader. Indicating a preference for one labor organiza- tion over another. Promulgating and maintaining any rule regula- tion which will prohibit employees from engaging in union talk and union activity in the plant 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during nonworking time in nonworking areas, and enforcing the rule against employees who support the Union. Creating the impression that we are keeping the union activities of our employees under surveillance. WE WILL NOT discourage membership in Coal, Ice, Building Material, Supply Drivers, Riggers, Heavy Haulers, Warehousemen and Helpers, Local 716, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by discriminating in any manner with regard to hire, tenure, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from engaging in any or all such activities. WE WILL offer Paulette Lacefield, Patricia Benson, Mary Jane Carter, Anna Qualls, and Sherry Vance immediate and full 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 earnings resulting from our discrimination against them. WE WILL notify the above-named employees, if any of them are 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. All of our employees are free to become, remain, or to refrain from becoming or remaining members of the above- named labor organization or any other labor organization. C. P. LESH PAPER COMPANY (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, 46204 Telephone 317-633-8921.