Astro Electronics, Inc.

572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Astro Electronics, Inc. and Frank H. Roberts, and Reg- ina M. Bohatch, and Irene Petronella, and Irene La- Fave, and Senaida B. Sianez, and Nina Louise Nance, and Emily Kathryn Anderson, and Delfina Trevino, and Nell Cota. Cases 21-CA-8623, 21- CA-8623-2, 21-CA-8623-3, 21-CA-8623-4, 21- CA-8623-6, 21-CA-8623-7, 21-CA-8623-8, 21- CA-8623-9, and 21-CA-8623-10 February 18, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 4, 1970, Trial Examiner David E. Da- vis issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Re- spondent filed exceptions to the Decision and a supporting brief. The General Counsel filed cross-exceptions to the Decision and an answering brief in support of the cross-exceptions. 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 these cases to a three-member pan- el. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial 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 these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' 1. The Trial Examiner found that Respondent, through its president, Sheldon Schreiber, violated Sec- tion 8(a)(1) of the Act on January 30, 1969, by choos- ing the bargaining representative for the employees, and, on March 6, by threatening to prevent employees Irene LaFave and Frances Roberts from securing work elsewhere. We agree with these findings. 2. The Trial Examiner found that Respondent vio- lated Section 8(a)(1) of the Act by discharging em- ployees LaFave and Roberts on March 6 because they were leading a work stoppage to protest working con- ditions. He further found that nine other employees 1 We correct the Trial Examiner's reference to Pamela Baker as Respondent's accountant to read Respondent's buyer immediately engaged in an unfair labor practice strike in support of the discharged employees LaFave and Roberts. The General Counsel contends that Respondent discharged all employees on March 6 for engaging in a lawful work stoppage. Respondent contends that the employees quit on that day. Alternatively, both the General Counsel and Respondent contend that the employees had the status of strikers. The facts, as found by the Trial Examiner, show that the employees had a long period of dissatisfac- tion with Respondent's President Schreiber because they had been unable to obtain improved employ- ment conditions. After waiting for favorable action from September or October 1969, they finally walked out on March 3 after an unfavorable outcome of a meeting between employee representative Roberts and Schreiber.2 Believing employee Irene LaFave was the source of the trouble, Schreiber discharged La- Fave and threatened like action against the others. The employees remiained away from work on March 4 and returned only on management' s urging and a promise to reinstate LaFave. An employee meeting with Schreiber on March 6 failed to produce the de- sired results. Employees were scattered about the production area when employee LaFave said to Schreiber that the employees would see Mr. Brattain, chairman of the Respondent's board of directors. Schreiber replied, "You won't see anybody; you won't speak to anybody; you won't work for anybody; I'll see to that." LaFave and Roberts started to walk to the door as did the others. Schreiber shouted, "If you walk out the door, you're fired. How do you want your checks?" Roberts answered, "Mail them." Respondent gave employees final paychecks on March 12, the next regular payday. It did not recall any of the employees. None except Delfina Trevino and Emily Kathryn Anderson reapplied for her job. In summary, the facts show that on March 6 the employees stopped work to protest working condi- tions and that, as they were walking out, Respondent's President Schreiber theatened to black- list some and fire all if they did. The employees con- tinued their walkout. The Trial Examiner found that Schreiber's dis- charge statement was directed only to LaFave and Roberts who were standing nearby and to whom he had just been talking, and that the other employees struck in support of the two discharged employees. The facts do not justify this conclusion. The Trial Examiner's conclusion fragments the conglomerate of events. There is no reason to infer that Schreiber was limiting his remarks to LaFave and Roberts. And the employees did not think he was. 2 Other management officials present included Vice President Ertel and Production Manager Henry 188 NLRB No. 92 ASTRO ELECTRONICS, INC. The facts clearly show that the employees engaged in a work stoppage on March 6, as they had on March 3, to protest their working conditions. This was a strike that was economic at its inception.' Thereafter Respondent's president, in violation of Section 8(a)(1), theatened to prevent employees LaFave and Roberts from securing employment elsewhere and warned all that if they left the plant they were fired. Such conduct at the outset of an economic strike tends to prolong the dispute. For this reason the Board has held that unfair labor practices of this char- acter convert an economic strike into an unfair labor practice strike.4 Consequently, we find that the em- ployees involved in the walkout became unfair labor strikers and, upon termination of the strike, are enti- tled to reinstatement, upon application, regardless of whether replacements have been hired to take their jobs. While the discharges followed fast upon the em- ployees' commencement of strike action, we do not agree with the General Counsel's contention that this fact precipitated the strike. As we have found, the strike was grounded in economic considerations and it was Respondent's subsequent unfair labor practices that converted it into an unfair labor practice strike.' CONCLUSIONS OF LAW Delete paragraphs 2 and 5 of the Conclusions of Law in the Trial Examiner's Decision and substitute therefor: 2. By its discharge of employees on March 6, 1969, Respondent engaged in conduct violative of Section 8(a)(1) of the Act. 3 In so finding we adopt the credibility resolutions of the Trial Examiner which are overwhelmingly supported by the record Standard Dry Wall Prod- ucts, Inc, 91 NLRB 544, 545, enfd 188 F.2d 362 (C.A 3) We do, however, draw a different inference from the facts as found when we hold that the strike was economic in its origin and that Schreiber thereafter discharged all of the employees. 4 Rental Uniform Service, 167 NLRB 190,194-195,196-197, Radio Station KPOL, 359, 360-362; Baldwin County Electric Membership Corporation, 145 NLRB 1316, 1318. 3 We find no ment in Respondent's contention that the employees quit The facts do not point to that conclusion. The walkout was a spontaneous reaction to the employees' feeling of frustration in being unable to secure improved working conditions This, coupled with the threats and discharge action, prompted continuation of the strike Eaborn Trucking Service, 156 NLRB 1370, upon which Respondent relies, does not fit the facts of this case The employees who quit in Eaborn unequi- vocally told the employer that they would not continue working and the employer then said he would run the business himself We have also considered the written statements of the employees made in the State Department of Employment proceedings and the testimony of officials in that department We find nothing to detract from our conclusion None of the employees said that she quit, and all, except LaFave, recounted the history of unfavorable working conditions that culminated in the March 6 walkout LaFave wrote that she was "terminated " We find no basic contradiction in the two interviewing officials' state- ments Both showed that employees do not always understand the reasons assigned for being out of work or the legal consequences of them 573 5. The strike, which commenced on March 6, 1969, was converted into an unfair labor practice strike by Respondent's unfair labor practices on that date. THE REMEDY We have found that the strike, which began as an economic strike on March 6, 1969, was converted into an unfair labor practice strike by Respondent's threats and its discharges of the strikers on that day. We have also found that none of the strikers, except Trevino and Anderson, applied for reinstatement. The Trial Examiner recommended that Respon- dent immediately reinstate employees LaFave and Roberts with backpay to run from March 6, 1969, the date he found that they were discharged. He ordered that the others, who were discharged thereafter be reinstated on application, with backpay presumably from the dates of application. The General Counsel argues that all of the employees were discharged on March 6, and therefore the Board should order all of them reinstated with backpay from March 6, Alterna- tively, he argues that reinstatement and backpay rights of the strikers should date from March 12, when employees received final paychecks, because any ap- plication for reinstatement by them thereafter would have been futile. It is the settled policy of the Board that striking employees are not entitled to backpay while they are on strike. Their rights depend on the termination of the strike which is ordinarily signified by the strikers' application for reinstatement. Employees who are dis- charged while on strike also must indicate abandon- ment of the strike and a willingness to return to work, in order to establish their right to their jobs and re- sumption of wages 6 unless there is a showing that such application would be rejected, i.e., that it would have been futile? The General Counsel has made no such showing here, and none except Trevino and An- derson made application to return to work. In fact when employees Trevino and Anderson applied for their jobs, Respondent agreed to reinstate them. There is no reason in this case therefore to depart from the usual remedy with respect to discharged strikers. We shall order Respondent to offer to each striker except Trevino and Anderson upon his unconditional application immediate and full reinstatement to his former job or, if such job no longer exists, to a sub- stantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing if 6 Toledo Commutator Company, 180 NLRB No 146, In. I (D & 0); Baldwin County Electric Membership Corporation, 145 NLRB 1316, 1319-20, Sea-way Distributing, Inc, 143 NLRB 460; Ford Radio & Mica Corporation, 115 NLRB 1046, 1048-49 7 Southern Greyhound Lines, 169 NLRB No 148, enfd 426 F 2d 1299 (C A 5) 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary, any employee hired since March 6 to re- place him. If, after such dismissal, there are not suffi- cient positions available for all the strikers (other than Trevino and Anderson),8 Respondent shall place their names on a preferential hiring list for employment in suitable new openings in preference to new appli- cants. We shall also order Respondent to make whole those employees entitled to reinstatement for any loss of earnings they may have suffered as a result of Respondent's failure to reinstate them upon applica- tion, as aforesaid, by payment to each of them of a sum of money equal to that which each would have earned as wages from the date of his unconditional application to return to work to the date of Respondent's offer of reinstatement, less his net earn- ings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. We shall also order that Respondent make availa- ble to the Board, upon request, payroll and other records to facilitate checking of the amount of earn- ings due. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Astro Electronics, Inc., Fullerton, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening our employees that we will prevent them from securing employment elsewhere because they engaged in protected concerted activity. (b) Discharging our employees because they en- gaged in protected concerted activity for the purpose of collective bargaining or other mutual aid or protec- tion. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon their unconditional application, offer to Frances M. Roberts, Irene LaFave, Regina Bohatch Baca, Irene Petronella, Senaida B. Sianez, Nina Louise Nance, Nell Cota, Catherine A. Miller, and Keith A. Perkins immediate and full reinstatement 8 The General Counsel in his exceptions states, as the record shows, that Respondent made valid offers of reinstatement to Trevino on May 5, 1969, and to Anderson on April 28, 1969, and he does not seek reinstatement for them We therefore do not order these two employees reinstated They will be entitled to backpay from the date of their unconditional application to return to work until Respondent's offer of reinstatement and make them, as well as Delfina Trevino and Emily Kathryn Anderson, whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon appli- cation, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all oth- er records necessary to analyze the amount of back- pay due under the terms of this Order. (d) Post at its plant in Fullerton, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Direc- tor for Region 21, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 10 days from the receipt of this Deci- sion, what steps Respondent has taken to comply herewith. MEMBER JENKINS, dissenting: Contrary to my colleagues, I conclude that all the employees involved herein were discriminatorily dis- charged and, therefore, are entitled to the usual reme- dy of backpay and reinstatement. In reaching such conclusion I find several factors persuasive. The dis- charges were simply the implementation of prior un- lawful threats to discharge employees for exercising their Section 7 rights. Secondly, in light of the way the discharges were effectuated, under an objective stand- ard, any reasonable person would conclude that an application for employment would have been futile. On the basis of credited testimony, the Trial Exam- iner found that Respondent's president, Sheldon Schreiber, had discharged employee Irene LaFave on March 4, 1969, because he believed her to be the source of trouble prompting an employee walkout on March 3 and had informed Production Manager Hen- ry that he was going through employees' files and that he would go down the line and fire them all. Schreiber himself conceded that he may have stated to Henry 9 In the event that this 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." ASTRO ELECTRONICS, INC. that he would fire one employee a day. Certainly, it is not disputed that threats to discharge employees for exercising their Section 7 rights are clearly unlawful. While this initial employee walkout was temporarily resolved when Schreiber reluctantly agreed to rein- state LaFave, the labor dispute continued and, on March 6, production employees met in a general meeting with Schreiber. At such meeting, Schreiber refused to grant any additional economic concessions and refused to grant any sick leave despite a prior authorization by a principal stockholder to grant up to 3 days' sick leave a year. As the general meeting adjourned in confusion with at least one female em- ployee in tears, employee LaFave credibly testified: Mr. Schreiber at that time was still sitting on the bench and I walked by him and I said, "We will get to see Mr. Brattain [principal company stock- holder] whether you like it or not." And he [Schreiber] said "You won't see anybody; you won't speak to anybody; you won't work for anybody. I'll see to that." We walked-Mrs. Roberts and myself walked to the back door and he said, "If you walk out that door, you're fired. How do you want your checks." And Mrs. Roberts replied, "Mail them." Thus the record clearly establishes that Respondent had actually discharged LaFave before she had walked out and that other employees were threatened with discharge if they exercised their Section 7 right to walk off the job. While I agree with the general rule that employees deemed to be economic or unfair labor practice strik- ers are not entitled to backpay where they voluntarily withhold their services from their employer, the spe- cial circumstances here warrant an exception to such rule. In instances where an employer expresses a prior threat to discharge employees if they walk out and then effectuates such threat contemporaneously with such walkout, the Board should find the effectuation of such a prior threat to be a discriminatory discharge with all the entitlements of such status. To hold other- wise permits an employer to undermine and inhibit a basic Section 7 right, the right to strike. Moreover, the majority is utilizing a, subjective standard 10 in determining whether the employees could have reasonably believed that in light of their discharge it would have been futile to apply for em- ployment. The majority appears to rely on the after- the-fact event that two employees, who in fact applied for reemployment, were rehired. The proper standard to be applied here is an objective one, whether under all the circumstances surrounding the discharges, a reasonable person would have concluded it was futile to apply for reinstatement. The continuing dispute 575 between the employees and President Schreiber had developed a highly emotional atmosphere and the an- tipathy between the parties was highlighted by Schreiber's threat to blacklist and threats to dis- charge. When considered with the fact that employees were paid all accrued benefits at the next regular pay period an employee would readily conclude that it would be futile to apply for reemployment. Thus, even were I to rely solely on the ground that it was futile to apply for reemployment, I would also find the em- ployees entitled to an offer of reinstatement and back- pay from the date of discharge. 10 The Board normally eschews the utilization of a subjective standard in determining whether an interrogation or threats are in violation of the Act because the effect or subjective result is immaterial to a finding of a violation, and such view has been accepted by a number of circuit courts See N.L.R B v. Hill & Hill Truck Line, Inc, 266 F 2d 883, 885 (C.A 5); Welch Scientific Inc v NLRB, 3401`2d 199, 203 (CA 2) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that we will prevent them from securing employment elsewhere because they engaged in concerted ac- tivity. WE WILL NOT discharge employees because they engage in protected concerted activity for the purpose of collective bargaining or other mutual aid or protection. WE WILL, upon application, offer to the em- ployees whose names appear below and who have not already been offered reinstatement im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, dis- missing, if necessary, any persons hired on or after March 6, 1969. If jobs are not available, we will place these names upon a preferential hiring list. Frances M. Roberts Nina Louise Nance Irene LaFave Nell Cota Regina Bohatch Baca Catherine A. Miller Irene Petronella Keith A. Perkins Senaida B. Sianez WE WILL make whole the above-named em- ployees and Delfina Trevino and Emily Kathryn Anderson for any loss of earnings they may have 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered, in the manner provided in the Board's Decision and Order. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. Astro Electronics, Inc. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5203. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DAVIS, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, herein called the Act, was heard, pursuant to due notice, on Octo- ber 14, 15, 16, 21, and 22, 1969, in Los Angeles, California, and concluded on October 23, 1969, at Fullerton, Califor- nia. The consolidated complaint issued on August 14, 1969, by the Regional Director for Region 21 of the National Labor Relations Board, herein called the Board, alleged that Respondent unlawfully interfered with the self-organi- zational rights and the protected concerted activities of its employees and discharged and failed to reinstate II em- ployees because they had participated in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection.' The Respondent in its answer denied the allegation that it violated Section 8(a)(I) of the Act and pleaded certain affirmative defenses. All parties participat- ed in the hearing. Respondent and General Counsel tiled briefs. Upon the entire record in the case, my observation of the witnesses and their demeanor, and my consideration of the briefs, I make the following: i Each of the alleged discharges except Catherine A. Miller and Keith A Perkins filed individual charges. Frank H . Roberts filed the first of the charges on June 6, 1969, on behalf of Frances M Roberts, the other charges were filed on various dates to June 20, 1969 FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleged and the answer did not deny that Respondent is a corporation engaged in the design and manufacture of certain precision instruments, called poten- tiometers, at its plant in Fullerton, California; that it annu- ally sells and causes to be delivered goods valued in excess of $50,000 directly to customers located outside the State of California. Accordingly, it is found that Respondent is en- aged in commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purpose of the Act to assert jurisdiction herein. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The alleged and litigated issues in this case may be sum- marized as follows: 1. Did Respondent select Frances M. Roberts as the em- ployee sppokesman or representative and thus interfere with the emplo ees' organizational rights within the meaning of Section 8(a)(1) of the Act.' 2. Did Respondent discharge and fail to reinstate the employees listed below because they engaged in protected concerted activity? Frances M. Roberts Emily Kathryn Anderson Regina M. Bohatch Delfina Trevino Irene Petronella Nell Cota Irene LaFave Catherine A. Miller Senaida B. Sianez Keith A. Perkins Nina Louise Nance 3. Did Respondent threaten the above-named employees with industry blacklisting if they continued to engage in protected concerted activity? 4. Did the above-named employees, as Respondent con- tends, voluntarily terminate their employment or in the al- ternative did said employees engage in an economic strike following which they were permanently replaced? B. Background There is no essential dispute that in late September or early October, 1968, Sheldon Schreiber, Respondent's presi- dent, called a meeting of Respondent's production employ- ees at which time he commended them on their efficiency and reported that the company had overcome its financial difficulties. In response to questions from several of the employees concerning the possibility of obtaining addition- al benefits, Schreiber replied that he would look into these matters. Regina Baca 3 and Sara Nita Henry, Respondent's production manager during the events discussed in this de- cision, testified that Schreiber promised an answer by the first of the following year.4 Henry, on a friendly basis with the employees she super- vised, was approached by a number of them early in Janu- ary, 1969 5 with a request that she speak to Schreiber about meeting to discuss new benefits. Henry contacted George 2 Respondent in its brief refers to the complaint as alleging violations of Sec 8(a)(1) and (3) Examination of the complaint shows only allegations of violations of Sec 8(a)(1) of the Act. 3 The mamed name of Regina Bohatch, one of the Charging Parties ° Schreiber testified that he did not remember making such a commitment but accepted the representations to this effect by Henry and Peggy Clark, Respondent's accountant at this time 5 Hereafter, dates will refer to the year 1969 unless otherwise specified ASTRO ELECTRONICS, INC. Ertel, Respondent's vice president, reporting to him that the employees were upset because Schreiber had not followed through on his promise. Ertel agreed that the employees were unhappy and that an answer from Schreiber was over- due. Accordingly, about the middle of January, they dis- cussed the matter with Schreiber who said that he had not had an opportunity to give his attention to possible new benefits. As there was no further word from Schreiber, Ertel and Henry again approached him about January 30. Henry told Schreiber that the morale was becoming worse and that he would not have a meeting with all of the employees but would meet with one of them as a representative. C. The Selection of an Employee Representative According to Henry , supervisor within the meaning of the Act, whose testimony I credit,6 Schreiber chose trances Roberts to be the spokesman or representative of the em- ployees because he considered Roberts to be highl emo- tional and would "fall apart." Schreiber instructed Henry to inform Roberts to prepare a list of the employees' desires and to meet with him the following morning . Schreiber's testimony, supported by Ertel, that he did not select Roberts but instructed Henry to have the employees select a repre- sentative is not credited. As a legal matter, it does not matter whether Henry, an acknowledged statutory supervisor, se- lected Roberts pursuant to Schreiber 's instructions or made the selection herself . The plain fact is that the employees did not make the selection but management did. The evidence shows and I find that the employees were informed that Roberts was their representative . Thus, it is clear the em- ployees were denied a basic right reserved to them by Sec- tion 7 of the Act .7 Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by the selection of Rob- erts as the employee representative. D. The Events of January 31 and March 4 After being informed by Henry that she was the spokes- man for the production employees, Roberts solicited from her coworkers and prepared a list of benefits and conditions that the employees wished to present to Schreiber. Roberts conferred with management in the presence of Schreiber, Ertel, and Henry on January 31. At this meeting Schreiber informed Roberts that Edward Brattain, the majority stock- holder and chairman of Respondent's Board of Directors, was contemplating the institution of a profit-sharing plan then in effect in another company in which Brattain had an interest. Roberts in turn presented the list of employee re- quests which she had compiled as follows: (a) Three weeks vacation (b) A coffee pot in the production area (c) Six paid holidays plus a floating holiday (d) Six days sick leave per year (e) A wage review plan (f) A cost-of-living provision (g) A bonus provision 6 Henry impressed me as a witness possessed of a high degree of integrity and credit by reason of her demeanor and her forthright manner of testifying Despite her identification with management, Henry maintained an excellent relationship with the employees under her supervision during and after her employment by Respondent Additionally, it is clear that Henry continued to be held in such high esteem by top management that her position was offered and reoffered to her after she had voluntarily resigned because of her devotion to her view of the principles involved in the situation 7 Sec. 7 Employees shall have the right to self-organization to bargain 577 Schreiber agreed to take up the employee requests with Respondent's Board of Directors and to reply in 30 days. Due to Ertel's illness, the meeting was mutually, postponed until March 3 when Ertel returned. On that date, Schreiber again met with Roberts in the presence of Henry and Ertel. Schreiber informed Roberts that a coffee pot had already been placed in the production area and that a floating hol- iday had likewise been granted ; that the 6 paid holidays were granted ; that a wage review plan was in the hands of the supervisors, that a cost-of-living provision was difficult to administer; that a bonus was denied , but that a profit- sharmi plan was being contemplated . The request for 6 days sick leave was denied. Roberts at this point remarked, "Does that mean we only get three weeks after five years, six holidays, and a coffee pot?" Schreiber replied in the affirmative and Roberts departed. Returning to the production area , Roberts discussed the result of the meeting with a group of approximately five or six employees. The employees agreed that they would be willing to give u the third week of vacation which was a benefit to only a few of the older employees in exchange for sick leave for everyone . Word of the results of the meeting quickly spread during the lunch time and created wide dis- satisfaction. As a result, the employees, without any formal discussion, decided to leave the plant . Without informing management of their action, all the employees, with the exception of Phillip Hankins, a coil winder, and Rosetta Coppella, walked out.' On Tuesday , March 4, none of the employees participating in the walkout the previous day reported for work . Schreiber informed Henry when she ar- rived at the plant on March 4 that some of the people had called in sick. During the conversation with Henry, he in- formed her that he considered Irene LaFave as the source of the trouble and that he already had discharged her. He also told Henry that he was going through the employees' files and that he would go down the line and fire them all.9 Henry told Schreiber that under these circumstances, she could no longer continue to work for Respondent and therefore was giving notice . She returned to her office to pick up her personal belongings when Ertel came into her office to talk to her. Soon thereafter, Schreiber joined the group and the three of them had a discussion. Ertel took the employees' files from Schreiber and suggested that he would try to contact the production employees to have them come back to work. Schreiber asked Henry if she would return if the employees returned and Henry answered in the affirma- tive. One of the early calls Ertel made was to Baca , who testi- fied she received a phone call from Ertel about 11 a.m. and that Ertel told her that he was disappointed in both sides and had been instructed by Schreiber that if she did not report for work the next morning at 8 o'clock she would be discharged . Baca replied that Elie did not know what she would do. Ertel then suggested that he could attempt to mediate between management and the employees to work out something . He asked Baca if she would contact some of the employees and inform them that if they come into the plant he would attempt to work something out.10 Ertel and Henry each called Roberts and informed her that if the production employees would report on the next day, March 5, possibly they could reach an agreement . Roberts stated through representatives of their own choosing, etc (Emphasis supplied ) 8 Senaida B Sianez, who was ill on that day did not participate in the walkout. 9 Schreiber conceded that he may have stated to Henry that he would fire one employee per day 10 This is the substance of Baca's testimony which I credit Ertel had a different version in some respects which I do not credit 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was essential to have LaFave reinstated before the employees would come in to talk to Ertel. Ertel, convinced that the employees would not report unless LaFave was reinstated, informed Schreiber, Schreiber agreed to rein- state LaFave and authorized Ertel to make this fact known to the employees. Thereafter, Ertel, in communicating with other employees, informed them that LaFave was reinstat- ed. As Ertel was unable to reach LaFave, he asked Henry to do so. Henry agreed and did convey this information to LaFave and to other employees. E. Events of March 5 and March 6 On March 5, Ertel arrived at the plant about 9:30 a.m. and had a conversation with Pamela Baker, Respondent's accountant, who informed him that she had been in touch with some of the production employees and that they agreed to report about 1:30 p.m. for a meeting with Ertel. At ap- proximately 1:30 p.m., all the employees who had walked out the previous day arrived and seated themselves in the luncheon area of the plant. According to Ertel's testimony, he opened the meeting by saying that "then should have their necks rung, along with Mr. Schreiber.' He then said that nothing could be accomplished by walking out; that the only way to reach an agreement was to engage in discus- sion ; that some neutral ground was necessary. He then asked the employees to think of their demands and he would write them down and see that they were presented to Mr. Brattain. Ertel added he was not acting as part of man- agement but was neutral on the question. Discussions con- tinued until about 4 p.m. The lengthiest issue, according to Ertel, concerned dismissal of employees. As the employees wanted protection from a reoccurrence of the manner in which LaFave was discharged, this issue had to be resolved before other matters were discussed. They wanted a set of rules "for employee bargaining and dismissal." Ertel in- formed the employees that Schreiber had rescinded the ear- lier discharge of LaFave and that she was reinstated. It was suggested that the production manager and the leadman should be involved when a question of discharge arose. Ertel also made it clear that there would be no evidence of the discharge of LaFave in her personal file. Thereafter, the question of fringe benefits was discussed prefaced by Ertel's caution to the effect that they could present their wishes but not to be upset if everything they requested was not granted. Ertel testified the first matter he wrote down under the heading of fringe benefits on the list he was compiling was the matter of the 3-week vacation after 5 years. He conced- ed that this had already been granted. There followed on his list the 6 paid holidays plus 1 floating holiday and the coffee pot. These items again were matters that had been granted prior to the meeting. The entire list as drawn up by Ertel was introduced in evidence as Respondent's Exhibit I and is reproduced below:'[ March 6, 1969 I. Rules for Bargaining and Employer Dismissal A) Draw up a set of Employee Bargaining rules re- garding procedural steps and time allowances. B) Require that prior to any labor employee dismiss- al that the production manager and leadman be con- sulted. C) Irene LaFave will return providing item (B) is incorporated and that no entry of dismissal in her per- sonel file. n Ertel testified that he did not draw up Resp Exh I until the next morning from the notes which he had made during the meeting with the employees. The original notes were destroyed by him and were unavailable II. Fringe Benefits A) Three week vacation after five years B) Six paid holidays 1 Floating C) Coffee Pot D) Six days paid sick leave each year E) End of the Year Bonus to be paid to all labor employees. This bonus amount is to be determined by Mr. Brattain according to what he feels is fair to the employees. III. Labor personel Meeting with Mr. Brattain The employees are strong in their demands for a meet- ing between themselves and Mr. Brattain so that indi- vidual questions can be answered. This meeting should take place as soon as possible and not later than one week after his return from Washington. At the conclusion of the March 5 meeting of the employees, it was agreed that the employees would report for work the next day at the usual time. On March 6, after Ertel had transcribed his notes and prepared the list of employees' demands, he contacted Rob- erts during the coffee break about 10 a.m. and received her assent that the list accurately reflected the employees' de- mands. The list was then posted on the bulletin board with a copy to Schreiber. Schreiber and Ertel then went to Brattain's office which was located about five minutes from the plant. Brattain read the list and according to Ertel, told Schreiber that with regard to employee dismissal he agreed in general and for Schreiber to work out the details on employee bargaining and dismissal. With regard to the fringe benefits, Brattain agreed to the 3-week vacation, the coffee pot, and the holiday provisions. Discussing the sick leave issues , Brattain questioned Schreiber with regard to what Respondent's competitors were affording in this re- gard and stated that they ought to meet the competition. Brattain, however, added that he would meet the employees half way and to give them three days sick leave if that's what the competition was doing.12 Brattain turned down the bo- nus plan, qualifying his denial by saying that he was work- ing on a profit-shanng plan. Brattain rejected the employees request that he meet with them personally and told Schreib- er that he was the president of Astro and he was responsible for running Astro, that it was Schreiber's responsibility to make decisions. Ertel further testified that he told Brattain that he was afraid the employees would be dissatisfied un- less all their demands were granted and this could entail additional costs to Respondent as they were already behind their production schedules. Brattain replied, "Well, we'll still have to stand by our decisions." At approximately 1:15 p.m. on March 6, Schreiber asked Henry to summon all the production employees to the plant area where the picnic tables were located. Henry followed Schreiber's instruction and when the employees were gath- ered Schreiber addressed them. According to General Counsel's witnesses, Schreiber banged his fist down on the table and said, "I'm the president of Astro Electronics, I'm responsible for operating the company and the demands that have been posted have been reviewed by Mr . Brattam this morning."' Ertel then testified that Schreiber said that with regard to the rules for bargaining and employee dis- missal he accepted them with a qualification which would be worked out as he did not think that the production 12 It is rather strange that Schreiber was unable to secure information regarding the sick leave practices of competitor establishments from October 1968 to March 1969 13 The quoted language is that testified to by Ertel. Ertel did not agree that Schreiber banged his fist on the table prior to making the above opening remarks ASTRO ELECTRONICS, INC manager and leadman should control the question of dis- charge. With regard to the fringe benefits, he accepted the first three items on the list which he had in front of him;14 that he was denying the request for six days' sick leave. Baca, at this point, interrupted, "How about five?" Schreiber rep- lied, "Denied." She then asked about four and Schreiber again said "Denied."15 Another employee, unidentified according to Ertel, asked about "How about bonuses?" Schreiber replied that that was denied. Schreiber also denied the employees request that they have a meeting with Brattain . At this point, Rob- erts remarked, "We're not getting anything more than we had before." Another emp ogee said that their benefits were not competitive with the industry. Schreiber then said. "Well, give me a few minutes and I 11 go and check." He then left. Shortly thereafter, Schreiber returned and told the employees he was unable to contact a competitor he was trying to call. An employee remarked that this was a runa- round and stall 16 and Schreiber asked if they would let him have the rest of the day to get in contact with this company and one of the employees said that wasn't possible. 17 Ertel s testimony continued as follows: A. She 18 was the one who said that she felt that this was a stalling tactic. Q. Did Mr. Schreiber leave the meeting or did man- agement leave at any other time? A. The people asked all of management to leave. They wanted a group- Q. Before they asked management to leave, did Mr. Schreiber say, "Either go back to your benches or leave and consider yourselves fired"? A. No, I don't recall that. Q. Did Mr. Schreiber say, "Either go back to your benches or leave"? A. I don't recall him saying that. Q. What is your best recollection today, he did or he did not? A. I don't believe we reached the point where-I'm not going to answer that question. I don't recall. Q. Now, tell me : What was said when management returned, if anything, by anyone? A. Well, Mrs. Roberts told Shel 19 that Frankie 20 was doing pretty well in his job and that she didn't have to have this job and she didn't have to put up with this kind of shit. Q. What, if anything, happened at that point? A. Mr. Schreiber moved closer and sat down next to her and said, "Frannie, there's no need to use profani- ty." And she began crying and, I believe, at that point adjourned to the rest room. Q. Now, during this period of time when you came back-when management was asked to come back, where were you standing in relationship to the picnic bench and to the vestibule door that was near there? A. I was about 20 feet to one side-to the accounting room side of the vestibule? Q. You were standing-were you still in the assembly area? 14 Res Exh 1. 15 Several employees testified that Baca continued and asked about three and two days sick leave and that each of these were in turn denied 16 Later credited to Roberts. 17 The foregoing is a summary of Ertel's testimony . A version differing in many respects was testified to by several production employees called by the General Counsel. I credit the employee 's version whenever it conflicts with Ertel's 1s Roberts. 19 Schreiber 579 A. Yes. I was standing against the wall. TRIAL EXAMINER How far from Mr. Schreiber? THE WITNESS Fifteen feet. Q. (By Mr. Goldstein) What happened next? What did you see at that point? A. Frannie went to her workbench and got her purse, and Shel Schreiber was still sitting at the picnic table where he had been sitting next to her earlier. She was heading towards the door and Shel asked her, "Are you leaving And she said, "Yes." He asked, "Does this mean you're quitting?" And she said, "Yes, I'm quitting." He asked, "Would you care to wait for your check?" And she said, "No, send it to my home." On cross-examination, Ertel testified as follows: A. He [Brattain] said he did not wish to begin giving sick leave, because once you began, they'll continue to ask for more through the years later. I said we had to begin some place with the people, that they were probably not going to react and leave the plant because we'd give them part of what they asked for, anyway. The difference between March 5th- between March 6th and March 3rd was three days sick leave, was what had been gained, I felt. TRIAL EXAMINER Well, did they gain it? Were they ever offered three days sick leave? THE WITNESS They were going to be offered three da S. 1 RIAL EXAMINER That isn't my question. Were they ever offered three days? THE WITNESS No. Henry credibly testified that Ertel stated at the March 5 meeting that he was sure he could get the girls some sick leave. He did not know how much, but if they would return to work Thursday, March 6, it would give him some le- verage when he went to see Mr. Brattain.21 With regard to the March 6 general meeting of pro- duction employees addressed by Schreiber, Baca credibly testified 22 that when Schreiber announced that the employ- ees request for 6 days sick leave was denied, she asked Schreiber if they could have 5 days and Schreiber replied "No." Baca then proceeded to ask about 4 days, 3 days, and 2 days. Each time, Schreiber replied "No." However, when Baca asked about 2 days, someone said that Beckman, a competitor of Respondent, was allowing its employees 2 days sick leave. Schreiber replied that he would call Beck- man and that if Beckman's employees were receiving 2 days Respondent likewise would grant two days sick leave. At this point, Nell Cota said "You're not going to get anything from that man." Mrs. Cota got up from her seat in the picnic area and proceeded to her workbench. Schreiber then said "You'll have to accept things the way they are and go back to your benches, or else if you don't like it, dust leave. 'Baca, thereupon, asked Schreiber as well as all other management personnel to leave 23 so that the employees could have a private discussion. During the absence of management per- sonnel, Irene Petronella proposed that they should give Er- tel a chance to work things out because he had promised to intercede in their behalf. The employees, after some further 20 Roberts' husband. 21 Baca , in her testimonial account likewise, stated that Ertel stated with certainty that he could get some sick leave Ertel's contrary testimony is not credited 22 Baca's testimony is supported in its crucial elements by the testimonial accounts of Henry, LaFave, Cota, Irene Petronella, and Senaida B. Sianez. 23 I find that this was the only occasion when Schreiber and other manage- ment personnel absented themselves from the meeting 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion then, agreed to continue the meeting with Schreiber and notified management personnel that the em- ployees were ready to resume the meeting. Schreiber, upon the resumption of the meeting, told the employees that he had been unable to reach Beckman's personnel department. Baca then asked if Schreiber could have an answer by quit- ting time that afternoon or by the following day. Schreiber replied that it did not give him enough time and Baca said "it looks that you're stalling again because you had since September of last year." She and several other girls then vacated the picnic tables and proceeded to their workbench- es. There was considerable confusion at that time and Rob- erts found herself facing Schreiber in the picnic area. It was at this point, that Roberts in a fit of utter frustration en- gaged Schreiber in a heated discussion. According to La- Fave's credited testimony the following occurred: 4 And she said-Mrs. Roberts said, "Mr. Schreiber, I don't give a shit if you fire me for this, but Mr. Ertel, Mrs. Henry, and the production people made this com- pany." And then she started crying and left and went to the ladies room. I left the area, left the bench, and went to the ladies room, consoled Mrs. Roberts for a few moments, and we walked back down the aisle to the production area. I walked by Mr. Ertel, who was still standing there, and I said to him, I said, "George, I'm really sorry about this because I think you really tried." Mr. Schreiber at that time was still sitting on the bench and I walked by him and I said, "We will get to see Mr. Brattain whether you like it or not." And he said,"You won't see anybody; you won't speak to anybody; you won't work for anybody. IT see to that." We walked-Mrs. Roberts and myself walked to the back door and he said, "If you walk out that door, you're fired. How do you want your checks?" And Mrs. Roberts replied, "Mail them." And that's it. We left. At the time when LaFave and Roberts were approaching the vestibule and the above interchange with Schreiber took place, several other employees were at or near various exits from the plant. Cota and Sianez were in the vestibule and overheard these remarks while Trevino and Anderson were 60 feet from where Schreiber was sitting and likewise heard the interchange. There was no positive evidence as to the location of Catherine Miller and Keith Perkins. Some em- ployees, however, were under the impression they had left the plant building. Neither of these two employees testified and it is uncertain whether or not they heard the foregoing interchange. At any rate, it is clear that all the employees left the premises thereafter. Following the incidents of March 6, the employees en- gaged in no picketing or any other strike activities. The following week when they returned to the plant for their paychecks, they received two checks; one for their work period through March 6 and the other, for accummulated vacation pay.25 After March 6, none of the alleged dis- chargees offered to return to work except Trevino and An- derson. Neither did Respondent request any of the employ- ees to return to work. Thereafter, as described above, all of the employees filed claims with the California Department of Employment and sought permanent full-time employ- ment elsewhere. The General Counsel, on the basis of the foregoing, urges 24 Her testimony is supported by Baca I credit this testimony 25 This would indicate permanent separation of the employees that all the employees were discharged on March 6 at a time when they were engaged in protected concerted activity in protest of their working conditions, that Respondent there- by was in violation of 8(a)(1) of the Act. Respondent's counsel on the other hand, relying on Wil- liam Eaborn d/b/a, Eaborn Trucking Services,26 contends that the employees were not discharged but voluntarily quit their employment rather than continue to work under the conditions prevailing. I take a view different from either that of the General Counsel or from that of Respondent's counsel. It seems clear to me that the closing remarks of Schreiber were di- rected to LaFave and Roberts as they were leaving the plant area. From LaFave's quoted testimony above, it seems plain that LaFave regarded these remarks as having been specifi- cally addressed to her and Roberts. Roberts apparently also regarded these remarks as addressed to her and LaFave. Accordingly, I find that LaFave and Roberts were unlaw- fully discharged because they were leading a lawful work stoppage to protest working conditions. All other employees thereafter left the plant and did not return to work in sup- port of and in sympathy with LaFave and Roberts. Accord- ingly, I find that directly following the unlawful discharge of LaFave and Roberts, the other production employees, commenced an unfair labor practice strike and that the strike has continued to date. r further find, on this record, none of the employees has made an application to return to work with the exception of Anderson and Trevino. 7 F. Additional Findings and Conclusions Respondent, in its brief, strenuously argues that the uniformity in testimony of the employees warrants a con- clusion that it is incredible and improbable. I disagree. Of course, there were many similarities in the testimony. This is characteristic of witnesses describing the same events in sequence. I am certain that counsel would have stressed inconsistencies if his searching cross-examination had re- vealed them and thus would have argued that the inconsist- ent testimony should be discredited. On the whole, the employee witnesses appeared to me to be careful, sincere, and imbued with a desire to tell the truth. I have given little weight to Ertel's and Schreiber's testimony where it differs from that of production employees 28 Both Ertel and Schreiber despite the basic differences in their approach to the technique of employee relations appeared to me to be less than candid in their testimonial account. Schreiber hardly could have considered that the employees had volun- tarily quit when he notified the state employment service that they had engaged in a "wildcat" strike. I accept Barbara R. Nagy's 29 testimony that claimants for unemployment compensation are generally reluctant to disclose the fact that they have been discharged. Under all the circumstances, I regard the conclusions, the evidence, and investigation of the State Department of Employment as having little or no impact on the merits of the issues in this proceeding. The department of employment was pass- 26 156 NLRB 1370 27 Trevino and Anderson, according to Ertel, applied for reinstatement sometime in April Respondent, after some delay, offered them reinstatement as new employees Anderson apparently worked one day. The evidence is somewhat inconclusive and, in my opinion, the backpay liability of Respon- dent to Trevino and Anderson was not sufficiently litigated It seems appro- priate, therefore, to leave the backpay question to the compliance stage 28 Patricia Amacher's testimony was unimpressive and in my opinion high- ly selective Her claimed possession of extraordinary hearing powers while bus with her bookkeeping duties is incredible 2 Nagy is an employment and claims assistant for the California Depart- ment of Employment ASTRO ELECTRONICS, INC. ing on whether a claimant is entitled to unemployment com- pensation, while this administrative proceeding is directed to an Inquiry whether or not unfair labor practices have been committed . The objectives, criteria, and legal issues presented to the two agencies are markedly different. I, therefore, conclude that the failure of production employees to report to the department of employment in precise lan- guage that they were discharged is insufficient ground to warrant a finding that they are untrustworthy witnesses who have contrived to mislead this Trial Examiner. As recited above, I view their testimony as a sincere effort by intelli- gent witnesses to disclose all facts within their knowledge. The record shows that Schreiber while quite deliberate and procrastinating in his handling of employee relations failed to offer or even to indicate to the employees that he was authorized by Brattain to grant 3 days sick leave. The record also shows that when the employees engaged in a work stoppage on March 3, Schreiber 's immediate reaction was to discharge LaFave and to threaten to discharge one employee per day. It seems quite logical and characteristic for Schreiber to have quickly resorted to the discharge weapon again when, on March 6, the meeting of employees terminated in chaos while he was surrounded by weeping and frustrated females who were leaving the plant premises. Although the question is quite close whether Schreiber in- tended to discharge all employees who walked out on March 6, I have concluded that he discharged only LaFave and Roberts because he was addressing himself to those two employees . Respondent's failure to offer to rehire any of the employees and the presentation of two checks to them when they appeared would seem to indicate that all employees were discharged. On the other hand, the failure of the em- ployees to to request reinstatement would indicate that they were determined to continue to refuse their services to Re- spondent under the prevailing conditions. I believe , there- fore, that the production employees were engaging in an unfair labor practice strike. Respondent counsel's attempt to equate the situation with that prevailing in Eaborn Truck- ing Service is misplaced. When the totality of the events is considered, i.e., the demands, the walkout on March 3, the meeting of March 5 , the return to work on March 6, Schreiber's threat to LaFave and Roberts that they "won't work for anybody," and Schreiber's statement to LaFave and Roberts that if they left the plant they were fired, lead to the logical conclusion that they were engaging in a con- certed effort to secure better working conditions and were not voluntarily quitting their employment . I find , as indica- ted above, that Schreiber's threat to LaFave and Roberts, "You won't work for anybody. I'll see to that," constitutes coercion and violates Section 8(a)(1) of the Act. Upon the basis of the foregoing findings of facts, and the entire record in this case, I make the following: CONCLUSION OF LAW 581 1. Respondent is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Respondent, by its discharge of Irene LaFave and Frances M. Roberts on March 6, 1969, and its failure to reinstate them thereafter , engaged in conduct violative of Section 8(a)(1) of the Act. 3. Respondent by selecting Frances M. Roberts as the representative of its production employees on or about Jan- uary 30, 1969, interfered with its employees rights guaran- teed in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 4. Respondent, by threatening Irene LaFave and Frances M. Roberts "to prevent them" from securing employment elsewhere, engaged in conduct violative of Section 8(a)(1) of the Act. 5. The strike of Respondent's production employees commencing on or about March 6, 1969 , constituted an unfair labor practice strike which was caused and prolonged by Respondent's unfair labor practices described above. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. III THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, it shall be recommended that it cease and desist there- from and take certain affirmative action designed to effec- tuate the policies of the Act. As Respondent unlawfully discharged Irene LaFave and Frances l . Roberts on March 6, 1969, it will be recom- mended that Respondent offer them immediate and full reinstatement to their former jobs or to substantially equiva- lent obs, without prejudice to their seniority rights and privileges , and that Respondent make them whole for any Ioss of pay that they may have suffered by reason of Respondent's discrimination against them, by payment to them of a sum of money equal to that which normally they would have received as wages from March 6 , 1969, until the day Respondent reinstates them, less any net earnings in the interim period . Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company 30 with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plum- bing & Heating Co)' 3[Recommended Order omitted from publication.] 30 90 NLRB 289 31 138 NLRB 716