St. Francis Pie Shop, Inc.

ST. FRANCIS PIE SHOP, INC. 89 St. Francis Pie Shop , Inc. and Willie Frank, an In- dividual. Case 20-CA-4624 June 21, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 28, 1968, Trial Examiner Maurice Alexandre, issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom, and take certain affir- mative action, as set forth in the attached Trial Ex- aminer 's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering 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 briefs, and the entire record in this case, and finds merit in the exceptions of the Respondent. Ac- cordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent herewith. The complaint alleged, and the Trial Examiner found, that Respondent's discharge of employee Willie Frank on June 30, 1967, violated Section 8(a)(3) and (1) of the Act. The Trial Examiner, however, rejected the General Counsel's theory that Frank was discharged pursuant to Respon- dent's plan, conceived shortly after Frank's hire in April 1962, to find a pretext to fire him because he did not stay away from the Union. We agree with the Trial Examiner that the record does not support General Counsel's contentions, but we are equally of the opinion that neither does the record support the ground relied on by the Trial Examiner. The Respondent contended that it decided to discharge Frank for his arrogant rejection of Baum 's request that he work on July 4, a holiday. It is clear from the record that Frank angrily rejected Baum 's request and was discharged shortly thereafter. The Trial Examiner concluded, how- ever, that the reason assigned for Frank's discharge was a mere pretext and that Frank in fact was discharged because of Respondent's belief that Frank, as he announced, intended to discuss holiday work with Union Business Agent Pelz, and that such action, if taken, would impair Respon- dent's practice of preventing employee contacts with the Union. The record, however, fails to show any intention on Respondent's part to prevent Frank from contacting Pelz. On the contrary, Respondent itself brought the entire matter to the attention of Pelz, and was assured by him that Respondent was within its contractual right in ask- ing Frank to work on July 4. It is true that Respon- dent would not grant Frank permission to leave his work in order to discuss the matter of holiday work with Pelz, but Respondent was under no obligation to do so, and his failure in that regard cannot be taken as evidence of discriminatory intent. From the foregoing, and the entire record in this case , we can find no basis for the Trial Examiner's conclusion that the reason for Frank's discharge was a pretext. Accordingly, we shall dismiss the complaint.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. ' Contrary to the Trial Examiner, we think that Respondent 's inquiry of employee Palmer, present when Frank requested time off to see Pelz, as to why Palmer was following Frank and going to see the Union , was an in- nocent query simply brought on by seeing Palmer at Frank 's side Respon- dent 's question was not accompanied by a threat of reprisal and cannot be said to have violated Section 8(a)(1) TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE , Trial Examiner : This case was heard at San Francisco , California, on December 12, 1967, upon a complaint issued on October 5 , 1967,' alleging that the Respondent had violated Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended . In its answer, Respondent denied both the conclusionary allega- tions relating to jurisdiction and the commission of unfair labor practices . The issues presented are whether or not: (1) Respondent 's operations satisfy the Board 's jurisdictional standards, ( 2) Respon- dent unlawfully interrogated Roy Palmer , and (3) Respondent unlawfully discharged Willie Frank. ' Based upon a charge filed on July 25, 1967, by Willie Frank 172 NLRB No. 16 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, my observation of the witnesses, and the briefs filed by the General Coun- sel and the Respondent, I make the following: will effectuate the purposes of the Act to assert ju- risdiction herein.6 FINDINGS AND CONCLUSIONS 1. JURISDICTION The jurisdictional facts are not in dispute. Respondent is a California corporation with a plant and place of business in San Francisco, where it is engaged in the operation of a bakery. During the past year, Respondent purchased and received directly from outside the State of California products valued in excess of $5,000. It also sold cakes and pies valued at about $85,000 to the United States Navy and the United States Coast Guard, and delivered such products to Navy and Coast Guard vessels docked at bases in the San Francisco Bay area.' During the past year, the United States Navy purchased, for use at its California facilities, services, goods, and materials valued in excess of $50,000 directly from suppliers located outside the State of California. I agree with the General Counsel's contention that Respondent's operations satisfy the Board's in- direct outflow standards for nonretail operations, as set forth in Siemons Mailing,' i.e., over $50,000 in goods shipped or services furnished "to users meet- ing any of the Board's jurisdictional standards" ex- cept the indirect outflow or indirect inflow stan- dard. Respondent argues that since the Navy is not an employer within the meaning of the Act, the value of goods shipped to the Navy should not be considered; and that without such goods, Respon- dent's operations do not satisfy the Siemons stan- dard." That standard, however, does not refer to goods or services supplied to employers who satisfy the Board's jurisdictional standards. It refers to "users" who do so. Siemons expressly states (122 NLRB at 85, fn. 12) that such users shall include an enterprise or organization which is itself exempted from the Board's jurisdiction, if its operations are of a magnitude which would justify assertion of ju- risdiction were it nonexempt. It is undisputed that during the past year, the Navy's operations in California were of such magnitude. Accordingly, it is appropriate to consider the goods which Respon- dent furnished to the Navy for use in California.' I therefore find that Respondent's operations satisfy the applicable jurisdictional standards, and that it ' These products were intended for consumption on board such vessels while they were so docked There is some evidence that bakers on board such vessels bake the products which are consumed at sea , and that while the vessels are docked , the purchase of Respondent 's products operates to relieve such bakers from their normal duties . Respondent has been the sole supplier of pies to the Naval vessels . Other bakeries have supplied un- specified products to the Naval and Coast Guard vessels, and could supply them with pastry products if Respondent did not do so. ' Siemons Mailing Service, 122 NLRB 81 Respondent does not question, and I find , the existence of statutory ju- risdiction II. THE UNFAIR LABOR PRACTICES A. The Events of June 29, 1967 Willie Frank, the alleged discriminatee, was hired by Respondent as a baker's helper in April 1962. His duties consisted of icing cakes, hauling and rolling flour, and scrubbing floors. At the time he was hired, Frank was informed by Respondent's president, Bernard Baum, that he would not be required to work on holidays. On October 1, 1966, Roy Palmer was hired as a baker's helper and was similarly told that there would be no holiday work for him. Prior to June 29, 1967, neither Frank nor Palmer was ever requested to work on a holiday. Thus, following past practice, the two men would have worked on July 3 but not on July 4, 1967. On June 28, 1967, Baum was informed by Jerry Buschini7 that a fleet of Navy ships was expected to arrive in port over the July 4 weekend. In anticipa- tion of additional orders, Baum decided to have a baker's helper on duty on both July 3 and 4 to assist Respondent's bakers, who worked on holidays. Accordingly, on June 29, he told Palmer that he wanted him to work as usual on July 3 and that Frank was to work on July 4. Baum then sought out Frank, informed him that he would be off on July 3 and would work on July 4, but was told by Frank that he would not work on a holiday. There is a conflict as to exactly what the two said to each other. According to Frank's testimony, the conversation was as follows: A. He come up to me that morning and he says, "Willie, you are going to work Tuesday [July 4], and you are off Monday, and if you are not going to do it you are fired." And I says, "No, Barney," I said, "you re- member, you told me that I didn't have to work holidays when I first come." "If you don't do it, you are fired. I am going to call the union." That's all that was said. Baum's testimony was as follows: A. I asked Willie Frank, I mentioned to Wil- lie Frank I wanted him to work Tuesday, and then let him have Monday off, and he was washing racks at the time, and said to me, "I ' Carroll-Naslund Disposal, Inc, 152 NLRB 861, affd 359 F 2d 779 (C A 9), National Survey Service, Inc., 151 NLRB 783, affd 361 F 2d 199 (C A 7), Mendenhall Trucking, Inc., 153 NLRB 1276, Ford's Redi-Mix Concrete Co , Case I 1-RC-1265, 45 LRRM 1023, Connecticut State Board ofLabor Relations, 145 NLRB 1415 ' In view of the above finding, it is unnecessary to determine whether, as asserted by the General Counsel, Respondent 's operations also satisfy the Board 's national defense standard set forth in Ready Mixed Concrete & Materials, Inc., 122 NLRB 318. ' Although Respondent is a corporation , Buschini was described at the hearing as Baum 's "partner " ST. FRANCIS PIE SHOP, INC. don't work on holidays, and I won't work on holidays." Q. What did you say? A. I told him, " I'm going to call the union and if I'm right, you are through." Baum then returned to Palmer, angrily stated that it appeared that he was going to have trouble with Frank, and told Palmer that he wanted him to work on July 4 . In response to Palmer's reply that he had plans for that day, Baum inquired how he could make plans if he did not have a job. When Palmer answered that he did have a job, Baum stated , "I don't understand you fellows," and walked away. Buschini testified that immediately after the " argument" with Frank, Baum went into the plant office, was "all shook up" and "red in the face," stated that he had "had it," and described what had happened. According to Buschini, he was unaware that Baum had told Frank that he would fire him, and urged Baum to discharge Frank. Baum did not do so immediately. Instead, he telephoned Union Business Representative Herman Pelz, told him what had happened, inquired whether Respondent's collective-bargaining con- tract with the Union permitted holiday work, and was told that it did. When asked at the hearing whether he also told Pelz that he was going to fire Frank, Baum testified , "Perhaps I did." Pelz testified that Baum told him that "if [Frank] was going to refuse to work, he was going to fire him"; that Pelz asked whether Baum wanted him to talk to Frank; and that Baum replied, "whatever you do won't change it." The prehearing affidavit which Pelz gave to a Board agent does not state that he asked whether Baum wanted him to talk to Frank. According to Palmer's testimony, which I credit, he was with Frank in the back of the shop at about the time of the foregoing events; Frank attempted to telephone Pelz but could not reach him; before he could try again, Buschini informed them that someone wanted them on the office phone; Frank took the call, which was from Pelz, in Buschini's presence ; Frank told Pelz that he could not discuss his business on the telephone and wanted to see him in person ; Frank then called Pelz on a telephone across the street; and he reported to Palmer that Pelz could not see Frank that afternoon after the latter finished work for the day. Frank, accompanied by Palmer, then went to Baum 's office and in the presence of Buschini, asked Baum whether he could go to the union hall to talk to Pelz . Baum replied that he could not do so during worktime. Shortly thereafter, while Palmer was with Frank , Baum called Palmer aside. Palmer testified without contradiction that their en- suing conversation was as follows: Q. Who called you? A. Barney. And so, he said, why was I following Willie and doing what Willie told me to do. 91 I told him I wasn't following Willie, I wasn't doing what Willie told me to do. * Q. (By Mr. Hoffman) Was there more to that conversation? A. Yes. He said, why was I going to the union. And I asked him, I said, "Did you hear me say I was going to the union?" And he said, "I hear Willie say, 'We was going to the union."' * * * * * Q. (By Mr. Hoffman) Did you make any reply to Mr. Baum at that point? Did you tell him anything that you can recall? A. That's when I told him I wasn't going to the union. I asked him if he heard me say I was going to the union. He said, "No. I hear Willie say, `We was going to the union."' And so we walked a little farther by the of- fice and he told me he had been having trouble with Willie ever since Willie had been there, and he says he was mad at Willie, he was angry at Willie, and he told me Willie had caused a lot of guys to get fired from there. B. The Events of June 30, 1967 On June 30 Frank worked as usual . At the end of his shift at 1 p.m., he went to Respondent's office and, in the presence of Buschini, asked Baum whether he still wanted him to work on July 4. Baum replied, "Here is your check. You are fired. We don't need you here no more." Baum did not tell Frank the reason for the discharge, but testified that the reason was as follows: His attitude, his general attitude, the way he blew up and the way he told it to me; I got a business to run; if all the help told me what he was going to do and what he was not going to do, I would close up and give the key to the employees. If one man tells me he is not going to do something, that puts me in a hell of a position, pardon the expression. Finally he gets his way and so did the rest of them. Palmer similarly asked Baum whether he still wanted him to work on July 4. Baum replied: "No, I have everything all planned out. Come in Monday [July 31, like I told you to do." Baum testified that since the anticipated orders from the fleet did not materialize, he had concluded by noon on June 30 that he did not need the services of a baker's helper on July 4. Later that day, Frank went to see Pelz at the union hall, reported the events, and requested Pelz to telephone Baum to advise him that Frank was willing to work on July 4. Frank testified that Pelz 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to his office and on his return, stated that he could "do nothing with that man." Pelz testified that he informed Baum on the telephone of Frank's willingness to work on July 4, that he asked Baum whether Frank had so informed him, and that Baum answered in the negative. Baum testified that he could not recall being told by Pelz that Frank was willing to work on July 4. C. Subsequent Events About 2 weeks later, Frank returned to see Baum . According to Frank, Baum stated: He say, "You remember I told you to stay away from that union hall. If you had stayed away from that like I told you, you would still have your job now. "Of course, you would not be making more than 80 bucks a week, but that's better than nothing. Now you have got nothing. "I told you I was going to get you a long time ago, but I finally got you." Frank further testified that he left the office when Baum 's son entered ; that he returned shortly thereafter to ask for a letter stating the reason for his discharge; that after first refusing Baum in- formed Pelz over the telephone of Frank's request; that he heard Baum ask Pelz, "Yeah, but what am I going to put in there?"; and that upon terminating the conversation shortly thereafter, he said to Frank, "You tell that guy to call me up." Baum de- nied reminding Frank of a warning to stay away from the Union and telling him that he would still have a job if he had heeded the warning. D. Concluding Findings I find that Frank's discharge was unlawful, but for reasons which differ somewhat from those ad- vanced by the General Counsel. Thus, I am not per- suaded that soon after hiring Frank in April 1962, Baum decided to find a pretext for getting rid of him because he did not stay away from the Union, and that he finally carried out his intention in June 1967. It is true that between the time Frank was hired and fired, he had gone to the Union with complaints about Respondent.' It may even be true, although denied by Baum, that he told Frank and Johnson on one or more occasions that he intended to discharge them because they did not stay away from the Union. However, it is unnecessary to resolve this conflict. For even if Baum did threaten discharge, I find insufficient evidence to support " In October 1962 Frank and another baker 's helper, Henry Johnson, learned that Baum had withheld from them the fact that Respondent had executed a union -shop contract with the Union , and they thereupon became members . In addition , Baum was compelled to pay Frank $830 in backpay , representing the difference between the contract wage scale and the wages paid to Frank up to that time In September 1966 Frank com- plained to the Union that Baum had failed to pay him the contract rate while he worked as a substitute for a vacationing baker , and the Union compelled Baum to revise Frank 's paycheck There is also uncontradicted the view that he was in fact lookin* for an opportu- nity to get rid of Frank prior to his discharge. For one thing, while testifying, Frank presented a curi- ous combination of blandness and histrionics which has created serious doubts in my mind concerning his credibility. Accordingly, I do not credit his testimony that Baum admitted to him, subsequent to the discharge, that he had finally carried out his threat to discharge Frank because he had not stayed away from the Union. Moreover, the record establishes that Baum had complimented Frank upon his work as recently as early 1967, and had given him periodic wage increases. It is hardly like- ly that an employer would praise and reward an employee whom he intends to fire. It is also unlike- ly that Baum would have waited 5 years to find an excuse for firing Frank. Johnson was discharged in July 1966 for reasons undisclosed by the record. So far as the evidence shows, Frank was more of a thorn in Baum 's side than was Johnson; yet the latter was the one whom Baum first selected for discharge. In addition, if Baum wanted an excuse to discharge Frank, he had a most convincing one. In April 1967 one Joan Robowski and her parents complained to Baum that Frank had frequently an- noyed her when she passed Respondent's plant. Although Frank denied the accusation and Baum admitted that he was in no position to resolve the conflict, it would have been entirely feasible for Baum to take the position that he did not desire to retain even an accused employee. Nevertheless, Baum did not utilize this readymade excuse to discharge Frank promptly, but on the contrary sug- gested that Frank go to the district attorney if the accusation was untrue. On the entire record, I find that prior to Frank's rejection of the work assign- ment for July 4, 1967, Baum had no plans to discharge him. On the other hand, contrary to Respondent's claim, I find that the discharge was not motivated by the arrogant attitude attributed by Baum to Frank when he refused the July 4 work assignment, or by the alleged deterioration in Frank's per- formance as an employee during the last 3 years of his employment.9 However, Buschini 's testimony in this regard was vague and unpersuasive. As for Baum , in testifying concerning Frank's per- formance as well as other matters, he was preoccu- pied, confused, self-contradictory, and evasive to such a degree that I find him to be an incredible witness. Moreover, as already noted, Baum had given Frank periodic wage increases and had com- plimented him upon his work performance early in testimony that Frank refused to accede to a request by Baum that he falsely report to the Union that he had been paid for overtime work. For example , Baum and Buschmi testified that the bakers had com- plained that Frank neglected his duties , that he had failed to keep the washrooms and equipment clean; that he had used the office telephone without permission; that he had held conversations with friends who came to see him at the shop , that he had rejected work assignments ; and that he had given impertinent answers to them ST. FRANCIS 1967. Finally, I note that in testifying regarding his motive, Baum merely referred to Frank 's arrogant refusal to work on holidays. I therefore find that the claim of work deterioration is an afterthought. I need not resolve the conflict as to whether or not Frank was arrogant when he declined the holiday work assignment , since I further find that neither an arrogant attitude by Frank nor his refusal of the assignment was the real reason for Frank 's discharge . It is true that upon such refusal, Baum became angry and threatened Frank with discharge . However, Buschini admitted that Baum had been angered by , and had discussed discharg- ing, Frank in the past, "but next day he had cooled off." The record also shows that although he was urged by Buschini to fire Frank on June 29, Baum did not do so immediately. Instead , he telephoned Union Business Representative Pelz on that day, and told him that he intended to fire Frank if he refused to work on July 4. This suggests that Baum was following his usual pattern of cooling off. Finally, I note that Baum also impliedly threatened Palmer with discharge when he objected to working on July 4, but did not carry out the threat. These considerations lead me to conclude, and I find, that prior to the time that Frank requested time off to go to the union hall to see Pelz , Baum had no inten- tion to discharge him.to In my opinion, it was Frank 's request, in the presence of Employee Palmer, for permission to go to the union hall to see Pelz that triggered the discharge . Although I doubt that Baum seriously objected to Frank 's discussion of holiday work with Pelz in view of the latter's statement that such work was permitted by the contract, I believe that he did strongly object to Frank 's disclosure to Palmer of his intention to discuss the matter, and feared the possible effects of such disclosure upon the latter and other employees . The record establishes that for several years, Baum had instructed a number of employees to hide when a union business represen- tative visited the shop . He had given such instruc- tions to Frank , Johnson , John Grech , an employee identified only as Alec, and two other unidentified employees." In the case of Frank and Johnson, such instructions resulted in postponing their union membership for 6 months . Grech continued to hide 10 In so finding, I place no reliance upon Frank 's testimony that during his telephone conversation in Buschini 's and Palmer's presence shortly after he rejected the assignment to work on July 4, he told Pelz that he was willing to work on that day . As noted, Frank was not a credible witness Moreover, Palmer , who was called as a witness by the General Counsel, did not corroborate such testimony . For these reasons, I credit Palmer's ver- sion of the telephone conversation 11 At one point , Baum denied giving such instructions to anyone, but el- sewhere in his testimony, he admitted giving the instructions to Grech, Alec, and the two unidentified employees Baum 's lame explanation for his conduct was that they were schoolboys doing part -time work and that he did not know whether the Union would object to their working in his shop. I do not credit his denials with respect to Frank and Johnson 15' Baum 's relationship with Pelz apparently presented him with a unique opportunity, which he undoubtedly wished to preserve , to maintain the said practice For example , despite his knowledge of the complaints that PIE SHOP, INC. 93 whenever the union representative arrived from the time he was hired in August 1965, until he left Respondent's employ in December 1966, and he never joined the Union. It is thus apparent, and I find that for sometime, Respondent had attempted not only to circumvent its collective-bargaining obligations, but also to prevent contacts between its employees and the Union. The evidence further shows that Palmer was with Frank when, in Buschini's presence, the latter told Pelz on the telephone that he preferred to talk to Pelz in person; that Palmer accompanied Frank when the latter went to Baum and requested time off to see Pelz; and Palmer was with Frank when Baum called him aside to question him as to why he was following Frank, why he was doing what Frank instructed, and why he was planning to accompany Frank to the union hall. It is thus apparent that Baum became concerned that Frank had influenced or encouraged Palmer to accompany him to the union hall. In view of Baum 's constant attempts to prevent employee contacts with the Union, I have no doubt that he also became concerned that Frank's willingness to complain to the Union might spread to other employees, and that Baum's par- tially successful practice of preventing employee contacts with the Union would be impaired .12 It is therefore difficult to escape the conclusion, and I find, that Baum discharged Frank because of his belief that Frank's announced intention to discuss holiday work with Pelz constituted a threat to that practice, and because of his desire to eliminate that threat. This conclusion is buttressed by Baum's unexplained action in telephoning Pelz when Frank requested a letter stating the reason for discharge, Baum 's expressed quandary as to what to say in such a letter, and his ultimate refusal to furnish the requested letter. It is well settled that the Act guarantees the right of an employee to consult and file grievances with a union concerning terms and conditions of employ- ment. It also protects the right of an employee to inform his employer that he has filed, and will con- tinue to file, such grievances. Where an employee is discharged for engaging in such protected activity, the discharge not only discriminates against him, but also tends to deter other employees from con- Respondent had paid Frank less than the union wage scale and less than the baker's scale when he performed baker's work , Pelz, who voluntarily ap- peared as a witness for Respondent, testified that he had no knowledge of the receipt of any complaints relating to Respondent 's labor relations prior to Frank's discharge , and he described his 20-year relationship with Respondent as "fairly good " Moreover, after hearing Grech 's testimony that, upon Baum's instructions , he had concealed himself from the Union's representatives for almost a year and a half, and after admitting that he was unaware of Respondent's use of schoolboys for part-time work without their joining the Union, Pelz attempted to excuse such use by stating that it was not unusual for other employers under contract with the Union to use nonunion schoolboys during vacation time I accordingly find , in agree- ment with the General Counsel, that behind the relationship between Respondent and Pelz lay the tacit understanding , "You don't bother us and we won 't bother you." 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suiting and filing grievances with a union, thereby interferin* with rights guaranteed by the Act and discouraging union activity. The discharge thus vio- lates Section 8 (a)(1) and ( 3).13 For the same reasons, a violation of that section occurs where an employer, in order to deter employees from con- sulting and filing grievances with a union, discharges an employee who merely announces that he intends to consult the union. I therefore find that the discharge of Frank constituted an unfair labor practice violative of Section 8(a)(1) and (3). I further find, contrary to Respondent's claim, that Baum 's interrogation of Palmer constituted neither legitimate inquiry nor an isolated and in- nocuous incident . The interrogation was part and parcel of Baum 's practice of preventing employee contacts with the Union, conveyed to Palmer Baum 's displeasure regarding such contacts, and was followed the next day by a more potent warn- ing against such contacts in the form of Frank's discharge. Accordingly, I find that such interroga- tion constituted further interference with protected rights and thus violated Section 8 (a)(1) of the Act. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. ' Colony Furniture Co., 168 NLRB 725; Interboro Contractors, Inc., 157 NLRB 1295, enfd. 388 F.2d 495 (C.A. 2); Dr. J. C. Campbell, 157 Affirmatively, I shall recommend that Respon- dent offer to Willie Frank immediate and full rein- statement to the position which he held at the time of his discharge, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges , dismissing if necessary an employee hired subsequent to the date of such discharge. I shall further recommend that Respon- dent make Frank whole for any loss of earnings suf- fered because of his discharge by paying to him a sum of money equal to that which he would have been paid by Respondent from the date of his discharge to the date on which Respondent offers reinstatement as aforesaid , less his net earnings, if any, during the said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W. Woolworth Com- pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. By unlawfully interrogating Roy Palmer, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 2. By discharging Willie Frank, Respondent en- gaged in an unfair labor practice within the mean- ing of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publica- tion. ] NLRB 1004; Tom Johnson , Inc., 154 NLRB 1352, enfd. 378 F.2d 342 (C. A. 9).