Les Schwab Tire Centers, Inc.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Les Schwab Tire Centers, Inc. and Teamsters Local Union No. 551 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America . Case 19-CA-3533 June 24, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 2, 1967, Trial Examiner James R. Webster issued his Decision in the above -entitled proceeding , finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion . Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner 's Decision , the exceptions and the brief, and the entire record in the case , and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modifications.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent , Les Schwab Tire Cen- ters, Inc., its officers, agents, successors , and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' Member Zagoria would find no violation of Section 8(a)(3) of the Act as, in his opinion, the General Counsel has failed to adduce sufficient af- firmative evidence of discriminatory motivation on the part of the Respon- dent in effecting the changes in question . However, he agrees that these ac- tions violated Section 8(a)(5) of the Act , as they were taken without notice to or consultation with the Union . Member Zagoria therefore concurs in the remedy of reinstatement and backpay , but would base it solely on the 8 (a) (5) violations found. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R . WEBSTER , Trial Examiner: This case with all parties represented was heard in Lewiston, Idaho . on April 4, 1967, on a complaint of the General Counsel and answer of Les Schwab Tire Centers, Inc., herein called Respondent . The com- plaint was issued on February 2, 1967, on a charge filed on November 30, 1966 . The complaint alleges that Respondent has engaged in violations of Sec- tion 8 (a)(1), (3), and (5) of the National Labor Relations Act, herein called the Act. The General Counsel, Respondent, and Charging Party have filed briefs herein and they have been carefully considered . Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Oregon corporation , maintains an office and place of business in Lewiston , Idaho, herein called the Lewiston plant , and at various other locations in the States of Idaho and Oregon. Respondent is engaged in the recapping of automo- bile and truck tires and in the sale of recapped tires at retail and wholesale . During the calendar year 1966, Respondent transported and delivered to its various places of business tires and related materi- als valued in excess of $50,000, which were trans- ported and delivered in interstate commerce from States of the United States other than the States of Oregon and Idaho . Also, during the calendar year 1966, Respondent manufactured , sold and dis- tributed at its Lewiston plant , products valued in excess of $50,000 , which were shipped from said place of business in interstate commerce directly to customers located outside the State of Idaho. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters Local Union No. 551, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement and Issues On or about October 1, 1966, Respondent purchased from the General Tire and Retreading Company the Lewiston plant, including a substan- tial portion of the Company's physical assets, good- will, name, accounts receivable and other trade as- sets and assumed the liabilities theretofore incurred by said company. 172 NLRB No. 10 LES SCHWAB TIRE CENTERS, INC. On or about October 1 , 1966, Respondent com- menced operating the Lewiston plant with the same employees in the bargaining unit described below, being approximately 15 in number , as had been em- ployed by General Tire Company. On or about October 27, 1960, the Union was certified by the Regional Director of Region 19 of the Board as the exclusive collective-bargaining representative of the following unit of employees: All tire recappers and tire servicing employees at the Lewiston plant, excluding all office cleri- cal employees, salesmen , janitors, guards and supervisors as defined in the Act. At all times since October 27, 1960, the Union has been the duly certified exclusive bargaining representative of all employees in said unit , and, in October 1966, all employees in said unit were members of said Union. General Tire Company and the Union entered into collective-bargaining agreements covering the employees in said unit , the last of which agreements covered the period from October 1, 1965, to Sep- tember 30, 1966. The agreement provides that it shall continue in full force and effect from year to year unless written notice of desire to cancel or to terminate is served by either party upon the other party at least 60 days prior to the date of expira- tion. The agreement also provides that either party may serve upon the other a notice at least 60 days prior to September 30, 1966 , advising that such party desires to continue the agreement but also desires to revise or change the terms or conditions of the agreement. On or about July 26, 1966, the Urion gave due notice to General Tire Company of its intention to negotiate revisions and changes in the terms and conditions of the agreement , pursuant to its terms providing for the continuance of the agreement pending the completion of any changes or revisions. Thus, except for such changes and revisions that might be negotiated by the parties, the contract was extended for another year to September 30, 1967. Respondent assumed from the General Tire Company its collective-bargaining agreement with the Union, and a representative of Respondent has met and negotiated with a representative of the Union on the matters that the Union seeks to change or revise in said agreement. On October 1, 1966, there were 11 employees on the day shift-6 in the recapping or retread depart- ment and 5 in the service and sales department; on the night shift there were 4 employees in the retread department. On November 7, 1966, Respondent discontinued the night shift , and laid off the four employees on this shift; also three em- ployees on the day shift in the retread department were laid off. The issues are: (1) Whether William Baltzel, foreman of the retread department, was a supervisor within the meaning of the Act while employed by Respondent; 165 and, if so, whether his statements to employees constitute interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (2) Whether statements by Respondent's general manager, Norman Nelson, at meetings of em- ployees at the Lewiston plant in explanation of the new Company 's hospitalization and insurance pro- gram and other employee benefits constitute offers or promises of benefits in violation of Section 8(a)(1) of the Act. And, whether he made any il- legal threats to employees on these occasions. (3) Whether the shipping out of work of the retread department , the discontinuance of the night shift, and the laying off or discharging of seven em- ployees on November 7, 1966, violated Section 8(a)(3) of the Act, or were done for economic reasons and incompetence of employees. (4) Whether Respondent violated Section 8(a)(5) of the Act by unilaterally increasing wages of the employees at the Lewiston plant, by uni- laterally granting life insurance policies to said em- ployees, by unilaterally discontinuing the night shift at the Lewiston plant, by unilaterally shipping out work of the retread department to another plant of Respondent, and/or by unilaterally laying off seven employees in the retread department. B. The Status and Conduct of Foreman Baltzel William Baltzel, who had been the foreman or manager in charge of the retread department under General Tire Company, was retained by Respon- dent as foreman of this department under its new manager, Gordon Priday. He was terminated on Saturday, November 5, 1966. During the time that he worked for Respondent, he continued to direct the operations of the employees in the retread de- partment and run that department as he had under General Tire Company. The employees were not told of any change in his authority or status. He had exercised the authority to hire employees while -under General Tire Company. Priday was also in charge of a warehouse of Respondent in Lewiston and in October 1966 he spent about 50 percent of his time at the warehouse facility . I find that Baltzel was a supervisor of Respondent within the meaning of the Act. Near the end of October 1966, Baltzel and em- ployee Ronald Thrall had a conversation regarding the attitude of the new company, Respondent, toward the Union. Baltzel asked Thrall a few questions about the medical plan in the union con- tract and he gave Thrall some information on Respondent's plan that was in operation at other plants. Respondent has 12 stores in Oregon and 6 in Idaho. He told Thrall that "if the boys stayed union he thought that the company would shut down the plant before they would have a union shop." In about the middle of October 1966, Baltzel and employee Tarvis Rhodes had a conversation regard- 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the attitude of Respondent toward the Union. He told Rhodes that Respondent did not approve of the Union, and if the employees did not go along with Respondent , it would shut the shop down; that if they had to get in new employees they would bring them in from outside if necessary. I conclude and find that the statements made by Baltzel to Thrall and Rhodes constitute restraint and coercion within the meaning of Section 8(a)(1) of the Act. Although there is no evidence that any superior of Baltzel authorized these statements or made such statements to him , I do not consider this material. The position of Baltzel with Respondent, his identification with management, and the nature of his remarks make his statements herein coer- cive.' C. Statements of General Manager Norman Nelson Very shortly after Respondent took over the operations of the Lewiston plant , a meeting of em- ployees was called . Gordon Priday, Respondent's new manager at the retread department and Respondent's General Manager Norman Nelson spoke. Priday told them that Respondent had taken over the plant and that Respondent thought they were going to get along very well with the crew that they had. In response to a question by an employee, Nelson told them about Respondent 's medical plan, life insurance policies, and other programs for em- ployees at its other plants . He told them that Respondent had never had any experience with a union shop, but that it was up to the employees whether they wanted to stay union or not. Shortly after the layoffs of November 7, 1966, meetings of employees in the retread department and in the service department were held. Nelson told them that Respondent had had to cut down due to its problems, adjustments , and output, and had laid some men off; that they were going to have to work some harder and try to produce better and put out better work; that due to this Respondent felt that it would give them a raise to rates of pay comparable to those of employees at Respondent's Oregon plants . He told them about Respondent's medical plan and insurance plan and that Respon- dent would like for the men to join it; that the rest of Respondent's organization was satisfied with it; that if the employees wanted a union they could use their own judgment whether they wanted to join Respondent's plan or stay in the Union . In the ser- vice department Nelson told the employees sub- stantially the same thing.2 'Wilder Finishing Co., 138 NLRB 1017, N.L.R B. v. Kingsford, 313 F.2d 826 (C A. 6) ' One employee, Eilman , testified that at the meeting with service de- partment employees Nelson also testified that "they couldn 't see no use having a union plan because their plan was good enough , and they wasn't going to have a union plant." The last clause of this testimony is incon- sistent with that of other employees who testified to statements by Nelson which were to the effect that the employees could use their own judgment on the Union, and it is denied by Nelson; I do not credit it. Also, I do not I find no violation of the Act in Nelson 's remarks to employees on October 1, 1966, but his promise of a general wage increase in circumvention of the Union, and his offers of a medical plan and of a life insuance plan in the event of their abandonment of the Union on November 7, 1966 , constitute restraint and coercion within the meaning of Sec- tion 8(a)(1) of the Act. D. The Layoffand Discharge of Seven Employees On November 7, 1966, Respondent laid off three of the seven day shift employees in the retread de- partment: Phillip Eller hired by General Tire Com- pany on September 1, 1949, Eugene Marshall hired in June 1950, and Ronald Thrall hired August 4, 1959. Eller and Marshall were the senior employees in the retread department , and Thrall was senior at least to two of the remaining four. Each was told that the layoff was for business reasons. When Respondent commenced operations at the Lewiston plant there were six employees in the retread department on the day shift: Eller, Marshall, Dwain Broucher, Thrall, Hutchinson, and Rhodes. On October 1, 1966, Respondent trans- ferred Delton Wilson into the retread department from the Empire Tire and Warehouse Company, which was part of the business purchased from General Tire Company. Thus, on November 7, there were seven employees in that department on the day shift. After the layoffs and in the month of November the following employees were added to this department: Glen Hafer , hired on November 8, in a part-time capacity after his layoff on November 7, 1966, from the night shift ; Lester Spears, trans- ferred from the service department on November 18; Kenneth Mitchell, hired on November 2 On Monday, November 7, 1966, the same day as the layoff in the day shift, the night shift in the retread department was discontinued , and the four employees on that shift were terminated: Alan Powell, hired October 1, 1966; Ronald Pelton, hired August 25, 1966; Glen Hafer, hired August 19, 1966; and Leonard Spreiter , hired February 1, 1965. On the day shift, Eller was the final inspector of the tires after the retreading operation , Marshall was the initial inspector of the tire casings before retreading, and Thrall was a buffer; he operated a machine that removes rubber from the tire casings. There are, of course , essential positions to the credit Nelson 's denials of any reference to the Union or the union medical plan, he solicited the employees to participate in the company plan rather than the union plan. ' This does not include employee Tine McAmis as the evidence is not clear as to his job, shift assignment, and period of employment . Priday testified that McAmis received a wage increase of 15 cents in November 1966, but he is not included on G.C. Exh. 4, a list of employees receiving wage increases in November 1966. LES SCHWAB TIRE CENTERS, INC. 167 operation of the retread department and someone has to perform these duties. On the afternoon of Monday, November 7, 1966, Priday told Eller that they were going to have to cut the crew down and that Eller was one to go. Eller asked for a reason and Priday replied that it was business reasons. About 2:30 on the afternoon of November 7, 1966, Marshall was called into Respondent 's office and told by Nelson that because of business condi- tions they were going to have to cut down the crew for a while and work with a skeleton crew and see how things work out. Thrall was also called into Respondent's office about 2:30 p.m. on November 7, 1966, and told by Nelson that business conditions were bad , that they were going to have to let some of the employees go for business reasons, and that by the process of elimination he had been chosen as one to go. Priday told the night crew on November 7, 1966, that he was going to have to lay them off because of slack time , that he was going to run with a skeleton crew and try to build up things, and that some of them would be called back later. Eller and Marshall were never criticized about their work , and as to Thrall, Nelson asked him "as a suggestion " that he try not buffing the casings as deep as he had been doing. Respondent contends that the operation of the retread department in Lewiston was not as produc- tive as it should have been and that Manager Priday observed the men for about 30 days and compared quality and quanity of their work with that done in Respondent's plant in Prineville, Oregon, and picked the men for layoff that were the least effi- cient and the least productive . As to the night shift, it is contended that the employees on this shift were not putting out the tires and that the reason for its discontinuance was "strictly production." Priday testified that he picked Eller because there was not enough work for him , and in his in- spections he was letting tires go through that had been buffed into the cord and had cuts on them. As to Marshall, Priday testified that he had missed holes and nails in tires on initial inspections and had let tires of poor quality go into the shop. He testified that Thrall buffed tires too close to and into the cord and that he had been warned not to buff in this manner. Priday testified that on the night shift employee Powell did not wrap retread on tires evenly and did not take care of his equipment. Before making the layoffs Respondent contacted Attorney Givens as to whether it could do so because of the union contract , and was advised that it could be done. The contract with the Union pro- vides as follows: It is understood and agreed that the Employer shall be the sole judge of the competency of all employees, provided, however, that no man shall be discharged or discriminated against in any way because of his membership in or law- ful activities in behalf of the Union. In the case of all layoffs and rehires older employees in point of service with the Company shall be given first consideration for retention of em- ployment or rehire. It shall be further provided that the Employer shall give reasons for the discharge of any member upon demand of the Union. Priday also testified that adjustments on tires sold were running over 5 percent, whereas 2 percent would be about normal. Thrall testified that he was told by Priday and Nelson to discontinue buffing so deep into the cas- ing and that if he cut into any of the cords on a pas- senger car tire he should throw the tire away. He stated that he did this thereafter and that the matter was not brought up again. On the day following the layoffs, the employees affected went to the Union about the matter. About 9 a.m. on November 9, 1966, Union Representative Everett Byers went to Respondent's Lewiston plant. He talked with Manager Dennison Cook in the sales and service department and told him that the seven employees had pay coming because they had been improperly laid off. Cook told him he would have to talk to Priday in the retread department. Cook called Priday, who was at Respondent's warehouse, and handed the telephone to Byers. Byers told Priday that the Union had a wage claim for seven employees and he inquired if Priday or Nelson would be the one with whom to discuss the matter. Priday replied that he would have Nelson call him. A few days after the layoff of the seven em- ployees, employee Clarence Eilman asked Priday why he did not let these men collect unemployment benefits. Priday replied that they had gone to the Union and caused trouble, that he had gotten mad, that he had then marked on the slips from the em- ployment bureau that they had been fired, and that it was up to that office as to whether or not they got unemployment benefits. He had received a note from the employment office inquiring as to the reasons for termination . Priday also told Eilman that he thought he would keep one of the men. Glen Hafer, one of the men on the night shift, was rehired on November 8, 1966, on a part-time ba- Sls.4 ' Eilman also testified in this connection that Priday told him he thought he would keep one of the men, but that "the man said he wouldn 't work on a nonunion job, so he let him go , too." I do not credit this testimony There is no evidence that with Eilman or with any employee was the matter of working on a nonunion job broached , none of the terminated employees who were called as witnesses testified to any such matter In a prior foot- note , I discredited other testimony of Eilman. I realize that those two in- cidents of discredited testimony reflect on other disputed testimony of Eil- man. I have credited Eilman 's testimony that Priday told him the laid-off employees had caused trouble by going to the Union and he had then re- ported on the employment office slips that they had been discharged. Priday acknowledges significant features of the conversation , such a state- ment by him is supported by the sequence of events and Respondent's failure to deal with the Union on employee matters and Respondent's general attitude toward the Union I discredit Priday's denial. Universal Camera Corp., 179 F 2d 749, 754 (C A 2). 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Unilateral Actions by Respondent On about October 13, 1966 , Byers met Nelson and discussed the Union's contract covering em- ployees in the Lewiston plant and discussed the Union 's new contract proposals . Byers advised him that the Union was seeking a wage increase of 15 cents per hour for each of the next 3 years, a pen- sion plan and improved health and welfare ; the first wage increase was to be effective as of October 1, 1966. Nelson told him that he was aware of the labor agreement with the Union and that he would be representing the new Company, Respondent. No meeting for negotiations was set at that time. On approximately December 13, 1966, Attorney James Givens called Byers and informed him that he represented Respondent and was willing to meet and discuss the labor agreement . Since that time Attorney Givens and Byers have met six times for contract negotiations ; no other representative of Respondent has participated . Attorney Givens had represented the prior owner of the Lewiston plant, General Tire Company , and had negotiated with Byers on the current contract . As of the time of the hearing herein no agreement has been reached on the Union's new proposals; there is no evidence as to the status of negotiations, and the General Coun- sel is making no contention of bad faith as to the conduct of the negotiating sessions . The General Counsel contends that Section 8(a)(5) of the Act has been violated by Respondent's unilateral ac- tions on wages, benefits, working conditions, and tenure of employment of the employees and by its unfair labor practices geared to undermine the Union 's bargaining position. On November 7, 1966, Nelson announced to em- ployees that a wage increase would be given, to bring them in line with wages paid by Respondent at its Oregon plants. In November 1966, wages of all employees were increased , with most of them receiving 15 cents per hour increases. Dwain Ackerman and Arthur Flodin in the service depart- ment received 10-cent increases ; Tarvis Rhodes and Lester Speers in the retread department received a 20-cent and a 40-cent increase , respec- tively . The increases were not discussed with the Union. On November 7, 1966, Nelson informed the em- ployees of its medical plan and of its program of giving employees life insurance policies paid for by the Company. The employees were given the op- portunity of choosing between Respondent 's medi- cal plan and the medical plan in the Union's con- tract. Nelson testified that the medical plan has not been put into effect at the Lewiston plant, and there is no evidence to the contrary . Nelson testified that he was unaware that any of the em- ployees at the Lewiston plant had received Respon- dent's life insurance policies, but employee Eilman testified that he received a life insurance policy about a month or a month and a half before the hearing herein , that is, in about February 1967. Nelson testified that it was a policy of Respondent for all employees to be issued term life insurance policies . The Union was not notified that life in- surance policies were being given to employees at the Lewiston plant. On November 7, 1966, Respondent discontinued the night shift in its retread department, thereby laying off four employees ; on the same day it laid off three employees in the retread department on the day shift. These actions were not discussed with the Union. Since its takeover of the Lewiston plant , Respon- dent has been sending tire casings to its plant in Prineville , Oregon , for recapping on molds with more modern tread design than are available in Lewiston . Prineville is about 350 miles from Lewiston . Also, tire casings are brought to the Lewiston plant from Prineville for recapping by a cold process and on other molds that Respondent does not have at its Prineville plant . This sending out of work from the Lewiston plant was not discussed with the Union. Approximately 30 per- cent of the Lewiston plant's recap work is being sent to Prineville , and approximately 3 or 4 percent of its work is on casings received from Prineville, or a net loss of work of approximately 26 percent. When Respondent bought the Lewiston plant it had planned to send some tire casings to its plant to Prineville for recapping on the molds with the newer tread design. Priday testified that the volume of casings being sent to Prineville is increasing because "we are buying more new molds in Prineville." F. Conclusions as to the Unilateral Actions and Terminations The unilateral wage increases given by Respon- dent to employees in November 1966 significantly exemplify the tone of Respondent 's attitude toward and relations with the Union . At the time of the in- creases, negotiations were pending and the Union had proposed a 15-cent increase for the current contract year ; the Union was completely ignored on the matter of the increases . The fact that the em- ployees of Respondent at other plants were receiv- ing more money than those at the Lewiston plant is no justification for its bypassing the Union. In the same category is Respondent 's unilateral issuance of term life insurance policies to employees at the Lewiston plant. I find that by this conduct Respon- dent has violated Section 8(a)(1) and ( 5) of the Act. When Respondent took over the Lewiston plant it sought to conduct a productive and profitable en- terprise , and it is reasonable to anticipate that a new owner will make changes in a newly acquired plant to conform to his methods of operation and to his ideas for improving production and efficiency. But, as to changes that affect the wages , tenure, LES SCHWAB TIRE CENTERS, INC. 169 and working conditions of employees , he is under an obligation to discuss these matters with the em- ployees' bargaining representative before their in- stitution. This, of course , does not preclude the making of changes nor does it contemplate that they should be unreasonably delayed . The bargain- ing representative , however, should be given the opportunity to discuss the matter so that the in- terests of the employees can be fully considered. Shortly after Respondent took over the Lewiston plant it discontinued the night shift in the retread department, it started sending out approximately 30 percent of its tire casings to another plant of Respondent for recapping , and it laid off almost half of the employees on the day shift in the retread department. In 1 day it reduced the number of em- ployees in the retread department from approxi- mately 11 to 4. Respondent contends that the actions taken were motivated by economic considerations-the finan- cial losses incurred by this department and a poor production record by the employees, and that the selection of employees for layoff was based on Priday's judgment as to the relative competence of all employees, and that the contract provides that "the Employer shall be the sole judge of the com- petency of all employees." Respondent further con- tends that as all of the employees in the bargaining unit were members of the Union there could be no discrimination. The General Counsel contends that Respondent violated Section 8(a)(3) by laying off employees to discourage membership in the Union , and violated Section 8 ( a)(5) of the Act by not notifying the bar- gaining representative and discussing the matter with him before making the layoffs. Since the shipping out of approximately 30 per- cent of the work of the retread department, the elimination of the night shift in this department, and the layoff of almost 50 percent of the day shift in the retread department drastically affected the tenure of employment of employees in the bargain- ing unit, Respondent was under a duty to notify the bargaining representative and discuss these matters with him, and its failure to do so constitutes a viola- tion of Section 8(a)(5) of the Acts On the issue as to whether or not the layoffs were discriminatorily motivated, Respondent contends that the motivating factors were poor production, inefficiences, and financial losses . To substantiate its contention on financial loss, Respondent in- troduced into evidence a financial statement for January and February 1967 which shows a loss of $12,731.30 for this period . Financial records for October, November, and December 1966, and those of General Tire Company prior thereto, were not available at the hearing , and there is no evidence as to losses during these periods . It is in- teresting to note that the loss in January 1967 was $2,546.39 and in February 1967 it increased to $10,184.91. On the contentions of poor production and inef- ficiencies, these were not mentioned to the em- ployees at time of layoff or at any time, with the ex- ception of Thrall who was asked in October 1966 that he try not buffing as deep as he had been do- ing. There is no evidence that employees were told of any production quotas or standards; the testimony on production is very general-that the employees were not producing as well as those in Prineville and were not producing the units of work required for a profitable operation . On quality of work , tires with defects on which adjustments had been made were displayed at the hearing ; adjust- ments in January and February were 5.7 percent of total sales, whereas 2 percent would be about nor- mal. There is no evidence that Respondent discussed the matter of quality or workmanship with any of the employees, except Thrall. Of course, an employer may discharge an employee for any reason he chooses except his union activi- ties, and the existence of a valid reason for a discharge does not justify a discharge motivated by union activities. Considering the totality of the evidence I am con- vinced that Respondent was discriminatorily motivated and violated Section 8(a)(3) of the Act by its discontinuance of the night shift, its layoff of Marshall, Thrall , Eller, Spreiter , Hafer, Powell, and Pelton, and by its reduction of the production at the Lewiston plant by sending out approximately 30 percent of its tire casings for recapping in Respon- dent's plant in Prineville , Oregon . This is based principally on Respondent 's blatant disregard of the Union , the efforts of Nelson to get the employees to abandon the Union, the warnings and threats by Baltzel, Priday's reaction to the fact that the laid- off employees went to the Union, the failure of Respondent to advise the employees of any defi- ciencies in quality or quantity of their work, and the vague and incomplete picture on financial losses; replacements (Hafer, Speers, and Mitchell) were added in November 1966 to the day shift in the retread department; also, the reason assigned for the discontinuance of the night shift was that the employees "weren't putting out any tires and we just couldn 't keep it running under those basis"; there is no contention that a reduction in force was necessary because of lack of work .' I also note that additional new molds were being installed in Prineville , Oregon, and none in Lewiston, Idaho. Respondent gave cost of installation as an obstacle to the installation of new molds in Lewiston. Respondent's contentions of economic considera- s Fibreboard Paper Products Corp., 379 U.S. 203; Ordont Orthopedic Laboratories, Inc., 156 NLRB 49. 6 It could very well be that the discontinuance of the night shift and the resulting failure to secure full utilization of the retreading machines con- tributed to financial losses . And certainly the transportation of tire casings 350 miles to Prineville for recapping and the return of these tires the same distance to Lewiston added substantially to the costs of the finished product. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions and deficiencies of workmen as the motivating factors for its actions are not convincing. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with the Respondent's operations described in section I, above, have a close , intimate, and substantial rela- tionship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the mean- ing of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By shipping out approximately 30 percent of the work of the retread department to another plant of Respondent, by discontinuing the night shift in the retread department , and by laying off and then discharging Phillip Eller, Eugene Marshall , Ronald Thrall, Leonard Spreiter, Glen Hafer, Ronald Pelton , and Alan Powell because of the membership of its employees in the Union, Respondent has discriminated against employees to discourage membership in the Union, and has thereby engaged in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. By the threatening statements by Foreman Baltzel referred to above in paragraph III, B, by the promise and grant of a wage increase , the offer and grant of term life insurance policies, and the offer of a medical plan by General Manager Nelson referred to above in paragraph III, C, Respondent has interfered with , restrained and coerced em- ployees in the exercise of rights guaranteed by Sec- tion 7 of the Act and has thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. All tire recappers and tire servicing employees of Respondent at the Lewiston plant, excluding all office clerical employees, salesmen , janitors , guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. At all times material herein the Union has been and is now the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 7. By unilaterally granting wage increases and life insurance policies to employees , by unilaterally discontinuing the night shift in the retread depart- ment, by unilaterally shipping out approximately 30 percent of the work of the employees in the retread department, and by unilaterally laying off 7 of its approximately 11 employees in the retread depart- ment, Respondent has refused to bargain collective- ly with the Union , thereby engaging in unfair labor practices proscribed by Section 8(a)(5) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily shipped out work of the retread department, discontinued the night shift and terminated seven employees, I shall recommend that Respondent resume its former production in the retread depart- ment, resume its night shift, and offer the ter- minated employees immediate and full reinstate- ment to their former or substantially equivalent em- ployment and make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them , by paying to each a sum of money equal to that which he normally would have earned as wages, from the date of the discrimina- tion to the date of his reinstatement , less net earnings during such period , in accordance with the Board 's formula set forth in F. W. Woolworth Com- pany, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. A remedy for an unfair labor practice is fashioned to return conditions as nearly as possible to the status quo that would have existed in the absence of any unfair practices and an employer will not be required to resume a discontinued operation if an undue financial hardship were in- volved. In this case the night shift was not discon- tinued for lack of work, but on alleged poor production of the employees. The resumption of the night shift and of its former production at the Lewiston plant will work no undue hardship on Respondent , and in fact could have a salutary effect on the economy of the Lewiston plant. I shall recommend that Respondent bargain col- lectively with the Union with respect to rates of pay, wages , hours of employment, and other mat- ters affecting the tenure and terms and conditions of employment before instituting any changes in these matters, or upon request by the Union , and, if an understanding is reached , embody such un- derstanding in a written and signed agreement. I shall not recommend that Respondent withdraw wage increases and insurance policies unilaterally LES SCHWAB TIRE CENTERS , INC. 171 granted to employees ; these matters are subjects for bargaining by the Union and Respondent. Upon the basis of the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Hafer, Ronald Pelton, and Alan Powell 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 they may have suffered as a result of the discrimination against them , in the manner set forth in the section of this Decision entitled "The Remedy." Notify any of the above employees, if presently serving in the Armed Forces of the Les Schwab Tire Centers, Inc., its officers, United States, of his right to full reinstatement agents, successors , and assigns, shall: upon application in accordance with the Selective 1. Cease and desist from: Service Act and the Universal Military Training and (a) Threatening employees with a closing of the Service Act, as amended, after discharge from the Lewiston plant if they continue with the Union. Armed Forces. (b) Promising and offering employees wage in- (c) Preserve and, upon request, make available creases, a medical plan and life insurance policies, to the Board or its agents, for examination and or other benefits as inducements for abandonment copying, all payroll records, social security payment of the Union. records, timecards, personnel records and reports, (c) Discouraging membership in Teamsters and all other records necessary to analyze the Local Union No. 551, International Brotherhood of amount of backpay due under the terms of this Teamsters, Chauffeurs, Warehousemen and Hel- recommended Order. pers of America, by shipping out work of the (d) Post at its plant in Lewiston, Idaho, copies of retread department to another plant of Respondent, the attached notice marked "Appendix."7 Copies of by discontinuing the night shift in the retread de- said notice, on forms provided by the Regional partment, by laying off and discharging employees, Director for Region 19, after being duly signed by or by any other manner discriminating against em- an authorized representative, shall be posted by ployees in regard to hire or tenure of employment Respondent immediately upon receipt thereof, and or any terms or conditions of employment. be maintained by it for 60 consecutive days (d) Making changes in the wages, benefits, thereafter, in conspicuous places, including all tenure, and other terms and conditions of employ- places where notices to employees are customarily ment of employees without notifying and bargain- posted. Reasonable steps shall be taken by Respon- ing with the Union, or otherwise refusing to bargain dent to insure that said notices are not altered, collectively with said Union as the exclusive bar- defaced, or covered by any other material. gaining representative of its employees in the fol- (e) Notify the Regional Director for Region 19, lowing described appropriate unit: in writing, within 20 days from the receipt of this All tire recappers and tire servicing employees Decision, what steps have been taken to comply of Respondent at the Lewiston plant, excluding herewith." all office clerical employees, salesmen, jani- 7 In the event that this Recommended Order is adopted by the Board, the tors, guards and supervisors as defined in the words "a Decision and Order " shall be substituted for the words "the Act. Recommended Order of a Trial Examiner" in the notice In the further (e) In any like or related manner interfering event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- with, restraining, or coercing its employees in the peals Enforcing an Order " shall be substituted for the words "a Decision exercise of rights guaranteed in Section 7 of the and Order." Act, except to the extent that such rights may be af- 6 In the event that this Recommended Order is adopted by the Board, fected by an agreement requiring membership in a 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 labor organization as a condition of employment has taken to comply herewith " where authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all of its employees in the aforesaid bargaining unit with respect to rates of pay, wages , hours of em- ployment, and other terms and conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a written and signed agreement. (b) Resume its former production in the retread department, and resume the operation of the night shift in the retread department and offer immediate and full reinstatement to Phillip Eller, Eugene Marshall, Ronald Thrall, Leonard Spreiter, Glen APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten to close the Lewiston plant because of union activities of employees. WE WILL NOT offer or give wage increases, insurance policies, a medical plan , or other 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits as inducements for employees to aban- don the Union. WE WILL NOT make changes in wages, benefits , or in terms or conditions or tenure of employment of employees in the bargaining unit described below without first notifying and bargaining with Teamsters Local Union No. 55 1, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, concerning such changes. WE WILL NOT discourage membership in said Union, or in any other labor organization of our employees , by shipping out work to another plant, by discontinuing the night shift, or by laying off or discharging employees, or by discriminating against them in any other manner in regard to hire or tenure of employ- ment or other terms and conditions of employ- ment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment where authorized in Section 8(a)(3) of the Act. WE WILL, upon request, bargain collectively with Teamsters Local Union No. 551, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining representative of all em- ployees in the unit described below with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a writ- ten, signed agreement . The bargaining unit is: All tire recappers and tire servicing em- ployees at the Lewiston plant, excluding all office clerical employees, salesmen, janitors, guards and supervisors as defined in the Act. WE WILL resume our former production in the retread department at the Lewiston plant and will resume operation of the night shift in that department and will offer the following named employees immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of pay suffered by reason of our discrimination against them: Phillip Eller, Eugene Marshall, Ronald Thrall, Leonard Spreiter, Glen Hafer, Ronald Pelton, and Alan Powell. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named or any other labor organization. LES SCHWAB TIRE CENTERS, INC. (Employer) Dated By (Representative) (Title) Note: We will notify any of the above-named employees, if presently serving in the Armed Forces of the United States, of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 327 Logan Building, Seattle , Washington 98101, Telephone 583-4583.