General Plastics Corp.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Plastics Corporation and Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO. Case 12-CA-4750 (1-2- 3) February 25, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On October 22, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. He also found that the Respon- dent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of such allegations of the complaint. Thereafter, the Respon- dent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions 2 and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, General Plastics Corporation, Mi- ami, Florida, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's Recommended Order .4 IT IS FURTHER ORDERED that those allegations in the complaint as to which no violations have been found are hereby dismissed. i The Respondent's exceptions, in large part, are directed to the credibility findings made by the Trial Examiner It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions as to credibility unless, as is not the case here , a clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 2 We disagree with the Trial Examiner's finding that Respondent , through its attorney, violated Section 8(a)(1) by systematic interrogation of employ- ees The only evidence in support of this finding consists of an admission by Respondent that its attorney questioned employees solely for the purpose of preparing a defense to pending unfair labor practice charges . From the record it does not appear that the attorney in this respect exceeded Board standards for legitimate interrogation Although the Trial Examiner found that questions were asked that were outside the scope of lawful pretrial investigation, there is no evidence to that effect other than statements appear- ing in affidavits introduced solely for impeachment purposes. Accordingly, as the record does not establish that the interviews were conducted in a fashion exceeding Board requirements for privileged interrogation , we shall dismiss this allegation of the complaint Member Brown would sustain the Trial Examiner respecting the attorney's interrogation, for the reason that Respondent failed to establish that this activity was conducted in confor- mance with the safeguards required by Struksnes Construction Co, Inc., 165 NLRB 1062. 3 As we agree with the Trial Examiner that a bargaining order is justified under N L R B v Gissel Packing Co, 395 U S 575, we find it unnecessary to reach, and do not pass upon, the Trial Examiner's reasoning that such a result is also warranted under the theory enunciated in Derse, Arthur F, Sr, President, and Wilder Manufacturing Co, Inc, 185 NLRB No 76. While Chairman Miller agrees that a bargaining order is appropriate herein, he would, for reasons stated in his separate concurrence in United Packing Company of Iowa, 187 NLRB No 132, predicate this remedy solely upon the extensive 8(a)(1) and (3) violations found herein ° In footnote 51 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The initial charge herein was served on Respondent on January 26, 1970,1 the com- plaint issued on June 26, and the case was heard on August 4, 5, and 6. After the hearing a brief was filed by Respon- dent, together with a stipulation, which is hereby ordered received in evidence as Trial Examiner's Exhibit 1. The issues litigated related to alleged violations of Section 8(a)(1), (3), and (5) of the Act. Upon the entire record,2 including observation of the witnesses' demeanor, the following findings and recommen- dations are made: I RESPONDENT'S BUSINESS General Plastics Corporation, herein called Respondent, is a Florida corporation, with a principal place of business at Miami, Florida, where it is engaged in the business of manufacturing plastic bags. During the 12 months preced- ing the issuance of the complaint Respondent purchased directly from out-of-state sources goods and materials worth more than $50,000 and shipped goods in excess of such value to out-of-state points. Respondent is engaged in commerce under the Act. II THE UNION Meat Cutters, Packing House Workers & Food Handlers District Union No. 65T, AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III THE UNFAIR LABOR PRACTICE The complaint, as amended at the hearing, and the an- swer raise the following issues: 1. Whether Respondent violated Section 8(a)(1), inter aha, by interrogation, by promises of benefit, and by in- ' All dates are in 1970, unless otherwise indicated 2 For corrections of the transcript, see the order of September 1 188 NLRB No. 111 GENERAL PLASTICS CORP. structions to a supervisor to report on employee union activ- ity. 2. Whether Respondent violated Section 8(a)(3) by dis- charging or laying off certain employees for union activity and by discriminatorily failing to offer timely and proper reinstatement to returning strikers. 3. Whether Respondent unlawfully refused to recognize the Union. A. Sequence of Events In mid-January Respondent had 40 production and maintenance employees at its plastic plant in Miami. About January 15, Vega contacted the Union , which supplied him with authorization cards. He took the cards with him when he reported for work at 11:30 p.m., on January 18, and during his work shift, which ended at 7:45 the next morning, obtained about 15 signatures . He was discharged a few days later.' Arroyo was notified in the morning of January 20, a day after he signed a union card , that he was being transfer- red to a different shift. He indicated that he could not work the new hours because of a conflict with a second job. When he next reported for work on his old shift , he was dis- charged. Carmouze signed a union card on January 19. He was discharged 2 days later , allegedly for incompetence. On January 21, the Union sent a wire to Respondent claiming majority status and requesting bar ggaining. No rep- ly to this wire was received until January 3I, when Respon- dent refused to recognize the Union unless it established its majority status "in accordance with the National Labor Relations Board's customary standards." Meanwhile, at un- ion meetings held on January 22 and 23 , the employees discussed participating in a strike to protest the foregoing discharges, and on January 24 they struck . Respondent re- tained counsel, who discussed with Union President Green- field various proposals for resolving the parties' differences, but without any result. In a wire of January 30, describing itself as the duly designated bargaining agent of the strikers, the Union requested that they be reinstated to their former positions. In a reply letter of February 4, Respondent dis- puted the validity of the union authorization cards signed by the employees, citing the coercive tactics of the ` card solicitors,' and declared that, since the Union did not in fact represent a majority of Respondent 's employees, it had no standing to authorize their return to work." Respondent added that it had, nevertheless, been making a maximum effort to reemploy the strikers and would continue to do so. In fact, beginning on February 2, Respondent gradually rehired, or attempted to rehire , all the strikers . However, some were thereafter suspended or discharged for various alleged derelictions. Respondent continues to refuse to rec- ognize the Union. B. Discussion 1. The 8(a)(1) issues The complaint alleged that during the period from Feb- ruary 4 to 20, Respondent engaged in systematic interroga- tion of the employees about their union activities and those of other employees . Respondent stipulated that such inter- rogation occurred, explaining that it was conducted by an unidentified , English-speaking counsel for Respondent, whose questions were translated into Spanish for the em- ployees benefit by Bumgarner , Respondent's general man- 3 The conflicting testimony as to the exact date is discussed and resolved below 711 ager. Since both the attorney and Bumgarner were acting as agents for Respondent in that connection, it is found that Respondent thereby violated Section 8(a)(1) of the Act" Moreover, Bumgarner admitted at the hearing that dur- ing the night of January 19 he interrogated a number of employees, but he insisted that he did so because of reports he had received concerning threats by solicitors for the Un- ion, and that he asked the employees only whether they had been subjected to such threats. However, Garrett, a former supervisor, testified that in the afternoon of January 22, Bumgarner confided that he had stayed in the plant until 4 that morning , interrogating employees to determine who had signed union cards, that he had discharged four card signers , including Vega and Arroyo, that he was going to get to the bottom of the matter, and that he would discharge all of the card signers . Bumgar- ner disputed this, insisting that he told Garrett on that occa- sion only that he was going to "get to the bottom of these threats.' Treto testified that about 11:30 a.m., on January 21, in the presence of Foreman Castillo , Bumgarner asked her if she had signed a union card, how many others had signed, and why she had signed ; that the witness answered that she had signed because she wanted Sundays off; that Bumgar- ner asked if she would like to work in the office ; that the witness expressed a preference for her existing job because of her domestic responsibilities ; and that Duarte was next summoned to the office. Duarte's account of her interview was that Bumgarner asked if she signed a union card and who had solicited her, and denounced the Union as a racket, and that Foreman Castillo, who was present, agreed. Rufin testified that on January 21 or 22, Bumgarner elicited from her an admission that she had signed a card , and asked why she had done so and who had given her the card ; that he adjured her not to tell anyone about their conversation; and that he warned that he would thereafter "keep a closer eye on the workers." Cardozo testified that he signed a union card on January 19 and that a few days later he was asked by Bumgarner whether he had heard any references to the Union or knew the identity of any card signers . C. Rodri- guez testified that on January 20, Bumgarner summoned her to his office, asked if Vega had given her any papers" to sign, and, when she professed ignorance, explained that Vega had contacted a union and was soliciting signatures on papers." " Although all of these five witnesses in effect contradicted Bumgarner's contention that his interrogation of employees was limited to the issue of threats by union solicitors, he did not specifically dispute their version of his interview with them 5 Accordingly, I deem such testimony to require a finding that in the case of these five witnesses, at least, the interroga- tion by Bumgarner about their contacts with union solic- ° Respondent's trial counsel stated that the foregoing interrogation was conducted in preparation for the instant proceeding Assuming that to be the case, the fact remains that no attempt was made to show that such interroga- tion conformed to the limitations imposed by the Board on pretrial interviews by respondents See Johnnie's Poultry Co., 146 NLRB 770, 775, Neuhoff Bros., Packers, Inc, 151 NLRB 916; Struksnes Construction Co., 165 NLRB 1062. Moreover, some of the questions, particularly those relating to the union activities of other employees, were prima facie beyond the scope of any legitimate pretrial investigation, and it is clear, in any case, that the fact that the interrogation occurred in a climate of hostility to the Union , including, as found below, the discriminatory discharge of union adherents, would defeat any privilege which would otherwise attach to a pretrial investigation 5 Moreover, Castillo did not dispute the accuracy or completeness of Duarte's version, and as to Treto's account he asserted only that her conver- sation with Bumgarner was not intelligible to him because it was conducted in English. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itors was not for the purpose of verifying any reports re- ceived by him about threats by such solicitors. If any further proof of this were needed, it would be supplied by the aforenoted testimony of Garrett, which I credit, as to the reason given him by Bumgarner for his inquiries-namely, to ascertain the identity of all union adherents with a view to reprisals .6 Such interrogation is found to violate Section 8(a)(1) of the Act. Betancourt testified that she signed a union card on Janu- ary 19, that 2 or 3 days later Plant Manager Placencia asked her if she had done so, and that she denied that she had. Placencia's version was that Betancourt volunteered to him that she had signed a card. On the basis of demeanor, Be- tancourt is credited and Placencia's interrogation is deemed unlawful. As found above, in his conversation with Treto on Janu- ary 21, after ascertaining that she had signed a union card and that the source of her discontent was having to work Sundays, Bumgarner asked if she would like to work in the office, eliciting from her a negative answer. The General Counsel contends that this constituted an offer of an office job in order to wean Treto away from the Union. Bumgar- ner did not dispute Treto's testimony nor did he attempt to explain why he sounded her out about a transfer to office work. In view of this, as well as the fact that the reference to an office job was made in the context of a discussion of the source of her discontent and how it could be eliminated, it is inferred that Bumgarner meant to imply to Treto that an office job was available to her, and that his motive was to remove her from the ranks of union adherents, either by allaying her dissatisfaction with existing working condi- tions, or by detaching her from the production and mainte- nance unit, which was the sole target of the Union's campaign. Treto testified, also, that later the same morning, after she had returned to her machine, Castillo told her that she was a good worker and either that he was going to recommend, or that he had already recommended, a raise for her. Castillo's version was that Treto asked him for a riase and he merely promised to report her request to Bumgarner. Even if it be assumed that he gave her a stronger assurance than that, the immediate, conversational context was not such as to warrant the inference that such assurance was for the purpose of inducing her to abandon her union activ- ity, rather than that it reflected merely appreciation of her work .7 Accordingly, it is found that the implied offer to Treto of an office job, but not the discussion of a raise, was unlawful. The General Counsel contends further that the Act was violated by Bumgarner's aforerelated remarks to Rufin, ad- uring her not to disclose to anyone that he had interrogated her about the Union and warning her that he would keep a closer watch on the employees. It is clear that the latter 6 No attempt was made through cross-examination of Garrett to show any bias on his part against Respondent. It was not until a later session of the hearing, when Garrett was no longer available for rebuttal, that, in response to a query by the Examiner as to what reason Garrett would have to testify falsely, Bumgarner made a vague allusion to a disagreement between Garrett and Respondent over compensation. In view of these circumstances, little weight can be given to the foregoing allusion as proof of bias. In any event, Garrett impressed me as a more candid and forthright witness than Bumgar- ner. r According to Treto, after the alleged reference to a raise , Castillo dis- closed that Vega and Arroyo had been engaged in union activity However, she admitted that this disclosure was not volunteered by him but was elicited by an inquiry on her part, and that, except for a discussion of her signing a union card, which was initiated by another employee, there was no other reference to the Union by Castillo on that occasion statement, read in context, implied that Respondent would be on the lookout for any employee union activities, and that such statement was therefore calculated to inhibit such activities and was unlawful. As for the instruction to Rufin not to reveal that she had been interrogated, the foreseeable effect thereof was to deter Rufin from bringing the interro- gation incident to the attention of the Board or testifying about it in a Board hearing, thereby impeding the processes of the Board. It is accordingly found that by such instruc- tion Respondent further violated Section 8(a)(1). It is finally contended that Section 8(a)(1) was violated when, as Garrett credibly testified, in the context of threats to discharge any card signers, Bumgarner directed Garrett to report an thing he heard about employee union activ- ity a Although Garrett was at the time not an employee but a supervisor, and although he denied that he made any such report,9 or that he disclosed to any employee what Bumgar- ner had said, the General Counsel contends that the forego- ing instruction was unlawful, citing Cannon Electric Company, 151 NLRB 1465, 1466. The Board there held that the respondent violated Section 8(a)(l) of the Act by twice soliciting, in memoranda to its 25 supervisors, reports on the identity of union adherents. However, the Board there stressed, inter alia, that "it was reasonable to infer that at least some of the 25 supervisors would have divulged to the employees the contents of those memoranda." Such infer- ence is barred here, not only by the fact that all that was involved was an oral instruction to a single supervisor, but also by the aforenoted express denial of that supervisor that he disclosed to any employee the substance of Bumgarner's remarks. Accordingly, no violation is found here. 2. The 8(a)(3) issues a. The prestrike discharges The complaint, as amended at the hearing, alleges the discriminatory discharge of Arroyo on January 20, of Car- mouze on January 21, and Vega on January 22.10 Vega Vega had been hired in October 1969, and in December was given a raise in recognition of his competence. As rela- ted above, he was the instigator of the union movement at the plant and the principal card solicitor. Bumgarner admit- tedly knew of such activity through reports from employees who had been solicited by Vega. Be a testified that, when he reported for work at 11:20 p.m. on January 21, he was summoned to the office, where, after commending his work, Bumgarner showed him a telegram from the Union,l I stated that he had been told that Vega was in touch with the Union, and asked him what was going on in the plant and what the employees' complaints were. Vega added that when he pleaded ignorance, Bumgarner discharged him without any explanation. Garrett testified that Bumgarner told him on January 20 that Vega was one of those soliciting for the Union, and that in the afternoon of January 22, Bumgarner confided that he had discharged Vega, among others, for signing a union Bumgarner admitted that he asked Garrett to make such a report. See General Engineering, Inc., 137 NLRB 648, where, in accord with earlier decisions there cited, the Board held that an instruction to a supervisor to engage in antiunion conduct could not be held unlawful if it was not implemented ° Other allegations of discriminatory discharge were either struck at the hearing or withdrawn by the General Counsel ii As noted above, the Union had wired a demand for recognition on January 21 GENERAL PLASTICS CORP card. I credit such testimony, despite Bumgamer's denial, since, for reasons already indicated, I regard Garrett as a more trustworthy witness than Bumgamer. For Respondent, Castillo testified that Vega had done a good job until he received his raise , but thereafter became indolent, talked too much with the female employees, and slept on the job; that the witness reprimanded him therefor several times; that, after consulting with plant manager Pla- cencia, the witness decided to discharge Vega as part of a general housecleaning; that in the morning of January 19, Bumgamer approved this decision ; that the witness did not see Vega that night, because that was his night off; that the witness next saw Vega in the afternoon of January 20, when he happened to visit Castillo at his home whereupon he notified Vega of his termination; that, not being satisfied that Castillo had authority to discharge him, Vega reported for work that night ; that the witness intercepted him and escorted him to Bum arner's office, were, after interrogat- ing him about some threats," Bumgamer confirmed that Vega had been discharged because of the deterioration in his work. Bumgarner's version was that Castillo had recommended Vega's discharge because of neglect of his work and inter- ference with other employees ; that Bumgamer acquiesced in this recommendation,' that on the morning of the 19th the witness received reports that employees had been threat- ened by Vega to induce them to sign union cards ; and that the same night, when Castillo reported that Vega wished verification of his discharge , the witness confirmed such discharge to Vega and at the same time asked him about the alleged threats. However, Bumgarner's testimony was clear that Vega was not discharged because of any threats but solely on the basis of Castillo's foregoing recommenda- tion.13 In rebuttal, Vega denied the charge of deterioration in his work, and that he had been reprimanded by Castillo there- for. While admitting that he visited the latter at his home, Vega insisted that this did not occur on the 20th, as Castillo testified, but on the 18th, and that his purpose was to con- fide to Castillo, whom he regarded as a friend ,14 his inten- tion to solicit on behalf of the Union , provided that it would not jeopardize Castillo's job; and that, declaring that his job would not be affected, Castillo told Vega to do as he pleased. Vega denied that, in discharging him, Bumgamer referred to any deterioration in Vega's work or gave any other explanation for his discharge. Thus, on the one hand, we have Vega insisting that he was not notified of his termination until about 11:30 p.m. in the night of January 21 , when he was discharged by Bumgamer without any explanation, but in the context of a reference to his union activity; and on the other hand, Castillo's ver- sion that he attempted to discharge Vega in the afternoon of the 20th for his shortcomings on the job, but he insisted on obtaining confirmation of this from Bumgamer that night. The matter is further complicated by the fact that, wile agreeing with Castillo in other respects , Bumgamer 12 Bumgamer did not say when the recommendation was made IS At a later point in his testimony , in an effort to counter Garrett's charge that he admitted terminating Vega for signing a union card, Bumgamer declared that he had merely told Garrett that Vega had been discharged because of his threats. When his attention was drawn to the apparent conflict between such a remark and the reasons elsewhere assigned by him for Vega's discharge, Bumgarner explained rather confusedly that his remark to Garrett was a slip of the tongue and did not reflect the true reason for Vega's discharge. I have given weight to this circumstance in evaluating Bumgamer's credibility. 14 They had spent 5 years together in a concentration camp in Cuba and Castillo had given Vega his job with Respondent. 713 did not agree with his chronology. As related above, Bum- gamer described his final interview with Vega as occurring about 11 p.m. on the 19th and not the 20th, as Castillo claimed." Vega's chronology is the only one that squares with Respondent's records, which show that he worked for it until 7:45 a.m., on January 20.16 Although, according to Vega, he was not actually discharged until about 11:30 p.m. on the 21st, he insisted that he performed no work after the end of his shift in the morning of the 20th, because the next shift, from 11:301 p.m. on the 20th to 7:45 a.m. on the 21st, was his night off. Castillo's version conflicts with the fore- going records, inasmuch as he contended that Vega's last shift worked was the one ending in the morning of the 19th,18 and Bumgarner's version fares no better, since his testimony that he discharged Vega before the start of his shift in the night of the 19th necessarily implies that Vega last worked on the shift ending in the morning of the 19th. In addition, althouCastillo professed to have consulted Placencia about discharging Vega, and Placencia testified for Respondent about other matters, no attempt was made to elicit from him any corroboration of such consultation. Finally, in evaluating Castillo's credibility, I was unfavor- ably impressed not only by his demeanor but also by his strangely evasive and argumentative replies, when asked for details about the alleged visit to his home on the 20th by Vega.19 All things considered, including the aforenoted discrep- ancy between the versions of Bumgamer and Castillo and the various other matters reflecting on their credibility, I do not regard Respondent's evidence as to the reasons for Vega's discharge as sufficiently cogent to offset the General Counsel'sprima facie case, buttressed as it is by the testimo- ny of Garrett, a former supervisor, that Bumgamer admit- ted having discharged Vega because of his union activity. It is found therefore that Vega was notified of his dis- charge on January 21, that the reason therefor was his union activity, and that Respondent thereby violated Section 8(a)(3) and (1).20 Arroyo Arroyo had been in Respondent's employ since Novem- ber 1969. He worked on the night shift with Vega. Early in the morning of the 19th he was solicited by Vega and signed a union card. The next morning, as he was leaving work, he was asked by Plant Manager Placencia whether he could transfer to the "morning" shift ,21 which worked from 7:30 a.m. to 3:30 p.m. Arroyo stated that he could not change to 15 Toward the close of his testimony Bumgamer seemed to lose confidence in his own chronology, professing a willingness to accept that of Vega, who gave about 11:20 p.m. on the 21st as the time of his final interview with Bumgamer. 16 See Trial Examiner's Exh. 1. 17 If any confirmation of Vega's chronology were needed, it would be supplied by Garrett's testimony that Vega was off that night and was sum- moned to Bumgarner's office when he reported for work the next night. is Castillo maintained that Vega was off the next night , but Respondent stipulated at the hearing that this was not the case. The effect of this stipula- tion was to strip from Castillo's version of the discharge the only apparent explanation for his failure to notify Vega in the night of the 19th of the decision allegedly reached that morning to discharge him 19 While it is true that at the time of the hearing Castillo was no longer in Respondent's employ, it cannot be assumed that he had no interest in clear- ing himself and his former associates of involvement in any wrongdoing. At any rate, this circumstance alone would not suffice to overcome the other considerations cited above militating against his credibility. 20 It is found in addition that Respondent violated Section 8(axl) by the interrogation of Vega immediately prior to his discharge 21 Also referred to in the record as the "day shift " 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that shift because of a conflict with another job. That night, when he reported for work on his regular shift, Castillo discharged him without any explanation. Garrett testified that in his conversation with Bumgarner on the 22nd, the latter named Arroyo as having been dis- charged, together with Vega, for signin a union card, and that in their prior conversation on the 20th, Bumgarner had named Arroyo, as well as Vega, as a solicitor for the Union. Notwithstanding Bumgarner's denial, I have credited Garrett's testimony insofar as it related to Vega and the record suggests no reason for not giving it equal credit inso- far as it relates to Arroyo.22 While Bumgarner denied that he knew of Arroyo's sign- ing a union card, Treto testified that the day after Arroyo's termination Castillo explained that Arroyo had been dis- charged for sleeping on the job and that he had become a union adherent so that he could indulge this tendency. Al- though Castillo denied that he had told her this, I credit Treto on the basis of demeanor, as well as the other circum- stances noted above reflecting on Castillo's candor. At any rate, Bumgarner's admission to Garrett that Arroyo had been discharged for signing a union card would alone suf- fice to establish Bumgarner's awareness of such signing. Respondent's defense is that Arroyo was discharged for refusing to transfer from the night to the morning shift. Castillo, Arroyo's supervisor on the night shift, testified that he was a mediocre worker with a limited potential; that Placencia agreed to take Arroyo under his wing on the morning shift and see if he would benefit by a change in supervision ; that Placencia notified Arroyo of this change in the morning of the 18th or 19th; and that, when Arroyo, insisted on reporting for work that night on his old shift, Castillo stated he did, not need him any more. While admit- ting that, when hired, Arroyo disclosed that he had another daytime job, Castillo insisted that Arroyo was told at that time that he would have to be available for work on any one of Respondent's three shifts and that, if he was assigned to a daytime shift, he would have to choose between his job with Respondent and his second job. Placencia confirmed Castillo's explanation of the reason for the transfer, as well as Arroyo's testimony that he objected to the transfer be- cause of his other job. The General Counsel presumably would have the Board find either that the transfer was proposed with the fore- knowledge that it would be rejected, thereby providing a pretext for the discharge of Arroyo, or that, while the trans- fer was proposed in good faith, Arroyo would not have Been discharged for that reason alone, had he not signed a union card. Carrett's testimony that Bumgamer admitted dis- charging Arroyo for signing a union card is consistent with either of these theories, and there seems to be no need to determine which is the more accurate, since, in either case, the discharge would be discriminatory. 22 In disputing Garrett's testimony that on January 22, he admitted dis- charging Vega and Arroyo for signing union cards, Bumgarner, as stated above, contended that he told Garrett only that Vega had been discharged because of "threats." When asked what he told Garrett about Arroyo, Bum- garner expressed doubt that he had ever discussed Arroyo with Garrett, since the two men worked on different shifts and he did not think that Garrett even knew of Arroyo's existence. However, Bumgarner later acknowledged the veracity of Garrett's testimony that in the afternoons of January 20 and 21, he was instructed by Bumgarner not to let Vego or Arroyo punch in. While it is true that there is no evidence that Arroyo solicited for the Union, and that Bumgarner's charge to that effect on January 20, as reported by Garrett, was therefore erroneous, or Garrett was mistaken in ascribing such a charge to Bumgarner, that circumstance does not require rejection of Garrett's more pertinent testimony that on the 22nd Bumgarner declared that he had discharged Arroyo, as well as Vega, for signing union cards. While Respondent's explanation for the discharge is not implausible, it seems strange that the chain of events culmi- nating in the discharge of Arroyo was initiated only a day after he signed a union card. In view of this coincidence, and Bumgarner's admission to Garrett, as found above, that Arroyo was discharged for signing a union card, as well as the other abundant evidence of Respondent's union ani- mus, the record is deemed to preponderate in favor of a finding that the discharge was discriminatory. Carmouze At the time of his discharge on January 21, Carmouze had worked for Respondent only about 2 weeks. In the morning of the 19th he signed a Union card. He testified that about 4 a.m. on the 21st Castillo showed him how to operate one of Respondent's machines, asked him if he understood how to do it, and, when the witness answered that he did, prom- ised to let him operate the machine at the first opportunity. However, 3 hours later he was discharged by Castillo. The latter averred that Carmouze was discharged because he had no aptitutde for operating a machine, and Castillo de- nied that there was any such predischarge incident as was described by Carmouze. However, on the basis of demean- or, as well as the other matters reflecting on Castillo's credi- bility, I credit Carmouze, and find that only a few hours before his discharge Castillo accepted Carmouze's assur- ance that he could operate the machine and promised to let him do so. It has already been found that on January 22, Bumgamer admitted to Garrett that Vega, Arroyo and two other uni- dentified 23 employees had been discharged for signing un- ion cards. The General Counsel would apparently have the inference drawn that one of the latter two was Car- mouze.24 The timing of the discharge in relation to his sign- ing of the Union card, coupled with the untenable explana- tion given by Castillo for Carmouze's termination, support such an inference. It is accordingly found that Carmouze was discharged because of his adherence to the Union,25 and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. b. The poststrike discrimination The strike ended with the Union's unconditional request of January 30 that the strikers be reinstated. The process of reinstatement began on February 2, and continued for se- veral months. The General Counsel contends that there was discrimination against certain of the strikers in this regard. Rufin She worked on the night shift. She testified that on Feb- 23 According to Garrett, they were named by Bumgarner, but Garrett could not recall their names. 24 A fourth employee, M Sanchez, who signed a union card on January 19, was alleged in the complaint to have been discnminatonly discharged on January 21. However, this allegation was withdrawn by the General Counsel at the hearing with the explanation that M. Sanchez had refused to cooperate with the General Counsel and no evidence was adduced as to his discharge. 25 While, unlike the cases of Arroyo and Vega, there was no specific evi- dence that Bumgarner knew of Carmouze's union activity, and he denied that he did, such knowledge may be inferred from the small size of the plant, Bumgarner's intensive efforts to determine the identity of the Union adher- ents, his admission that he knew the identity of certain of them, his admission to Garrett that he had discharged two unidentified employees for signing union cards, and the absence of any plausible explanation by Respondent for the discharge of Carmouze. See Meinholdt Manufacturing, inc., 183 NLRB No. 129 (TXD) GENERAL PLASTICS CORP. rary 2, she reported to the plant together with other return- in strikers ; that Plant Manager Placencia notified the as- sembled employees that they would be recalled as needed; and that, although, in response to an inquiry by Respon- dent, she notified it in writing on March 6 that she was available for recall , she was not actually offered reinstate- ment until April 20. Duarte She worked on the night shift. Although Respondent by letter of March 4 inquired as to her availability, and shy replied on March 6 that she was available, she was not actually reinstated until April 20. A. Diaz He never actually received any offer of reinstatement. However, the record shows that on February 12, Respon- dent instructed him by letter to report for work, but the letter was returned undelivered because of an incorrect ad- dress, which was the one carried on Respondent's records. J. Rodriguez He worked on the morning shift as a helper on one of the machines. When hired on January 15, Placencia told him he would work a 48-hour week and he did work on that basis until the strike on January 24. He did not return to work until February 19, and then only after he solicited Bumgar- ner to rehire him. Moreover, he was not immediately re- stored to his former job but was assigned to cleanup work about the plant and his weekly hours were reduced to 40 until April 15, when he complained to Bumgarner about his new assignment. He was then reassigned to his former work on the machines and returned to a 48-hour week. The Gen- eral Counsel claims backpay based on the failure to rein- state him at all until February 19, and the reduction in his work week between February 19 and April 15. Nazario He worked on the night shift as a helper under Castillo. He returned to work on February 2. He testified that on February 5, he failed to report for work because, relying on a schedule posted by Placencia, he assumed that that was his day off; that on February 6, he was suspended for 3 days by Castillo for his absence on the 5th; that, on February 10, when his suspension expired, Castillo transferred him to the morning shift, where he worked until about March 2, when Placencra assigned him to cleanup work outside the plant; and that, when he refused to accept this assignment, he was told that no other work was available and was discharged. In explaining the 3-day suspension on February 6, Castillo testified that he alone had authority to schedule days off for the employees on his shift, and that he had not authorized Nazario to take off on the 5th. Placencia confirmed that the scheduling of days off for a particular shift was the function of the shift foreman. With regard to the delay in reinstating certain of the foregoing employees, Bumgarner testified that it took about 60 days for Respondent to recover fully from the effects of the strike and resume normal production, that during that period employees were recalled as they were needed, and that for operational reasons the night shift was the last to be restored to its prestrike level. However, a posthearing stipulation 26 shows that from January 24 through April 3T, 26 Trial Examiner's Exh I 715 Respondent hired 51 emplo ees, and, more specifically, that from January 24 through February 18, it hired 15 employ- ees; and in its brief Respondent in effect concedes that A. Diaz, Duarte, Rufin, Nazario, and Rodriguez are entitled to backpay from the date of their offer of January 30, through the Union, to return to work until the date of a proper offer of reinstatement. In view of this concession as well as the evidence of new hires after January 24, it is found that the delay in recalling the foregoing employees violated Section 8(a)(3) and (1) of the Act. I In the cases of Duarte and Rufin, Respondent contends that a proper offer of reinstatement was made on March 4. However, as noted above, all that Respondent did on that date was to inquire about their availability, and no offer of reinstatement was actually made until April 20. According- ly, it is found that they are entitled to backpay until that date. In the case of Nazario, Respondent contends he is not entitled to any backpay for the period after his reinstate- ment on February 2. The General Counsel's position is apparently that he is entitled to backpay for the 3 days of his suspension in February and for the period following his discharge about March 2, for refusing to accept an assign- ment to yard work. With regard to the suspension, I credit Castillo's explanation, which was at least partly corroborat- ed by Placencia, and find that Nazano was mistaken in assuming that February 5 was his day off, and that he was, in fact, suspended only for being absent without leave, as Castillo testified. As for his assignment to yard work about March 2, Placencia and Bumgarner explained there was no other work available at the time and that, while one of the two machines that he normally serviced was then in opera- tion, the regular operator could handle that machine with- out any assistance from Nazano. Placencia added that the reason for the shutdown of the other machine was the cur- tailment of production due to the effects of the strike. How- ever, Nazario testified, in effect, that, when he was assigned to yard work, a new man replaced him as a helper on the machines. While Pacencia denied this, I credit Nazario on the basis of demeanor, as well as the fact that the re- cord 28 shows that there were three new hires about the time of Nazario's discharge,29 and the fact that in its brief Res- pondent in effect abandoned any reliance on the testimony at the hearing as to the adverse effect of the strike on normal operations thereafter. Absent any tenable explanation for Nazario's assignment to yard work, and in view of the ad- mitted discrimination against others because of their partic- ipation in the strike, it is inferred that he was assigned to yard work for discriminatory reasons. Accordingly, his dis- charge for rejecting such assignment is found to violate Section 8(a)(3) and (1) of the Act 30 In the case of J. Rodriguez, Respondent concedes he is entitled to backpay on the basis of a 48-hour week through April 14. It is so found3t In the case of Diaz, Respondent contends that his back- pay should be tolled as of February 13, when, as the record 27 The record shows, and it is not disputed, that the strike was in protest of the discharges of Vega, Arroyo, and Carmouze, which have been found to be discriminatory It follows that it was an unfair labor practice strike and that strikers were entitled to immediate reinstatement, upon application, even if they had been permanently replaced 28 Trial Examiner's Exh. 1 29 Montesinos, Rivero, and Pereira were hired on March 4 30 South Bay Daily Breeze, 130 NLRB 61, enfd as mod 299 F 2d 677; J. W Mays, Inc, 147 NLRB 942, 962, enfd. as mod. 356 F 2d 693 (C.A 2). 3i Respondent would of course receive credit for all interim earnings, including those paid to J Rodriguez by Respondent during the backpay period 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shows, Respondent made a bona fide effort to transmit to him an offer of reinstatement . In accord with Board preced- ent,32 I find that his backpay was so tolled, but that such unsuccessful effort to reach A. Diaz did not discharge Resppoondent's obligation with respect to reinstatement. Ac- cordingly, it will be recommended that Respondent be or- dered to make A. Diaz another, proper offer of reinstatement. 3. The refusal to bargain a. The appropriate unit It was agreed at the hearing that the following unit of Respondent's employees was appropriate for bargaining: Allproduction and maintenance employees at its Miami, Florida, plant, including truckdrivers and warehouse employees, but excluding office clerical em- ployees, guards, and supervisors as defined in the Act. b. The Union's majority status It was stipulated that "as of January 24," Respondent had 40 unit employees.33 Of this number, the record shows that 19 signed cards on January 19, 4 more signed on January 23, 5 more on the 24th, and I more on the 30th. The complaint alleged that the initial refusal to bargain occurred on January 24.34 By that date the Union had 28 signed cards. -Of these cards Respondent would exclude those of M. Sanchez," Vega, Arroyo, and Carmouze on the ground that they were discharged for cause before January 24.36 As to the three last named, this contention is rejected, in view of the finding above that their discharge was discriminatory. As to M. Sanchez, although the complaint alleged his dis- criminatory discharge on January 21, no proof of discrim- ination was offered, and the allegation was withdrawn. Accordingly, he will not be counted as in the unit. Respondent attacks, also, the cards of A. Leon and M. Gil on the basis of testimony regarding the circumstances under which they signed. However, there is no need to resolve the conflicting testimony in that regard, since, even without these 2 cards, the Union would have a majority on January 25,31 of 25 out of 39.38 Moreover, of the 36-employ- 32 Joy Company, Inc, 103 NLRB 1645, 1647; The Rollash Corporation, 133 NLRB 464. 33 See General Counsel's Exh, 10. Since Trial Examiner's Exh. I shows that there were no new hires on January 25, it is found that there was no increase in the size of the unit on that date. 34 It is found below that such refusal in fact occurred on the 25th. 33 Misspelled "Danchez" on General Counsel's Exh. 10. 36 Although Respondent at the hearing accepted as correct General Counsel's Exh. 10, which listed these four employees as in the unit "as of January 25, they were not sufficient in number to affect the Union's majority only to agree that they worked some part of the week ending January 24. 3 See fn. 34, above. 39 While Trial Examiner's Exh. 1 shows several hires during the week after January 25, they were not sifficient in number to affect the Union's majority as of the date of the subsequent refusals during that week to recognize the Union. See discussion below. Respondent attacks the cards generally on the ground that, although bear- ing the caption, "Union Authorization Card," and commencing with a decla- ration that the subscriber has authorized the Union to represent him with regard to the terms and conditions of his employment, the remainder of the card authorizes the checkoff of dues in favor of the Union. While there may therefore be some question as to whether the employees intended merely to authorize the Union to represent them or intended, in addition, to authorize dues checkoffs, that circumstance would not invalidate the cards as evi- dencing at least a desire for Union representation ees actuary employed on January 24 '39 20 card signers and 4 others left work on that date to join the strike called by the Union to protest the discharge of 3 other cards signers (Vega, Arroyo, and Carmouze), and they remained on strike until January 30, when the Union made an unconditional offer on their behalf to return to work. It follows that on January 24 and 25, the Union had a card majority of at least 25 out of 39, and that in addition 4 others on those dates demonstrated their alignment with the Union by strikmg.41 c. The demand and refusal On January 21, the Union wired a request for recognition, claiming that it had been designated by a majority of Respondent's production and maintenance employees and offering to furnish proof in support of that claim. As related above, not having received any reply to this wire, and three Union adherents having been discharged, the Union on January 24 called a strike . On the basis of the uncontradict- ed testimony of Union President Greenfield, it is found that on January 25 he encountered Radford, Respondent's then legal advisor, near the plant and requested recognition but received a negative answer.42 On January 31, Respondent replied to the Union's wire, stating that it seriously doubted the validity of the Union's claim, and alleging that no employee had told Respondent he desired the Union to represent him, that several had disclaimed any such desire, and that Respondent had been told that certain employees signed cards under duress. As to the Union's offer to prove its majority status, Respondent asserted that it could not determine from an examination of the cards either the authenticity of the signatures nor the circumstances under which they were obtained, and Res- pondent proposed instead that the parties agree on some more reliable method of testing the Union's claim, such as a private election or a "third party check" which would "meet the standards of the [Board] relating to the authentic- ity and validity" of the cards. Respondent suggested further that, absent agreement on such a procedure, the Union petition the Board for an election. In the meantime, on January 30, the Union had sent Respondent a wire, offering on behalf of the strikers their unconditional return to work. In its reply of February 4, Respondent, inter alia, disputed the Union's authority to speak for the strikers , asserting again that many of the cards were signed under duress. ' At the hearing, Respondent indicated that its position on recognition of the Union had not changed. It is clear, therefore, that Respondent has since January 25,43 refused to recognize the Umon in the unit hereinbefore 39 The figure of 36 has been arrived at by subtracting from the 40 named in General Counsel's Exh . 10 the 4 who were discharged a few days before the strike. 40 Cueto, Medina, Labato, and Zubizarreta. The last named signed a card on January 30. 41 By the same token, it might be urged that 2 of the foregoing 25 card signers who worked during the strike (A. Gil and Perez) should be deemed to have demonstrated thereby their disaffection from the Union. However, the record shows that they signed their cards after the strike started . That fact precludes any inference of a defection from the Union at that time. 42 Greenfield added that Radford asked how Greenfield felt about an election ; that, when hq expressed interest in a "quick" election to be held within 30 days, Radford indicated doubt that it would be acceptable; and that in followup conversations with Radford during the next several days the latter again refused recognition and ruled out a "quick " election.I credit such testimony which was uncontradicted. 43 There was conflicting evidence regarding an alleged discussion of the matter of recognition on January 24 between Greenfield and Bumgarner, which evidence was offered in support of the General Counsel 's contention GENERAL PLASTICS CORP. found appropriate. It has also been found that Respondent reacted to the Union's initial request for recognition by discriminatorily discharging three union adherents, includ- ing the principal solicitor for the Union, and by engaging in extensive interrogation and other coercive conduct. It has also been found that after the conclusion of the strike Res- pondent again extensively interrogated employees and dis- criminated against certain of the strikers. The question is therefore presented whether under the rule of Gissel44 it should be found that by the foregoing conduct Respondent precluded the holding of a fair election, that Respondent's refusal to bargain consequently violated Section 8(a)(5), and that a bargaining order is the only appropriate remedy. On this issue, Respondent appears to contend as follows: a. That, of the 24 employees who struck on January 24, only 20 were properly in the unit, which consisted of 40 employees, so that the strike may not be considered as dem- onstrating the Union's majority status. However, Respon- dent arrives at this result, inter alia, by subtracting Vega, Arroyo, and Carmouze from the number of strikers, on the assumption that they had been properly discharged before the strike. Not only is this assumption inconsistent with the findings above as to the illegality of their discharges, but it is also clear that they were not among the 24 employees who left work to join the strike. 5 In fact, the names of those three employees should be added, rather than subtracted, from the number of such strikers, since, whether or not the three actually picketed,46 Respondent was well aware of their Union sentiments, having discharged them therefor. It fol- lows that on January 24, Respondent had convincing proof that at least 27 of its 39 unit employees were union adher- ents47ln any case, under Gissel, the controlling considera- tion is not the number of employees who demonstrate their union sentiments by striking but the number who have signed cards, and here it has been found that at the time of the Union's request for recognition on January 25, it had a clear card majority. b. The fact that Respondent suggested a Board election precludes a violation findin under the rule laid down in Wilder Manufacturing Co., 185 NLRB No. 76. However, that case held that, despite the fact that a union had con- vincingly demonstrated to an employer its majority status by means, not only of cards, but also through participation of the majority of the employees in a strike, the Board would not find a refusal of recognition unlawful if the employer showed a genuine willingness to resolve the question of the union's majority status through a Board election." Here, the record shows that Respondent did suggest that the Union seek a Board election . The question arises whether this cir- cumstance alone exonerates Respondent from any violation of Section 8(aX5), despite the Union's card majority and its that the initial refusal occurred on that date. However, in view of the findings herein as to subsequent refusals, there is no need to resolve such conflict. w N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. u For a list of their names see General Counsel's Exh. 33. 46 The record indicates only that Vega was at Respondent's premises dur- m$ the strike and is silent as to the others. 7 Respondent would also subtract from the number of strikers M San- chez, who has not in fact been counted by me as an employee during the critical period, and those strikers-four in number-who had not signed cards when the strike began. However, there is no evidence that Respondent knew they had not signed cards not does it appear that it had any cause to believe they had joined the strike for any reason other than their desire for union representation . Nor does the record show any other reason for their participation in the strike. a This holding amplified the Board's decision in Pacific Abrasive Supply Co., 182 NLRB No. 8, as to the effect of a convincing demonstration of a union's majority status by means other than cards on the employer's duty to recognize the union. 717 further convincing demonstration of majority status through the strike, and despite Respondent's extensive and flagrant unfair labor practices. Even if one assumes that such practices would not, under Gissel, preclude the holding of a fair election, because the demonstration of majority support for the Union via the strike occurred in spite of Respondent's serious, prestrike, unfair labor practices, I do not believe that the Wilder case aids Respondent. In that case the Board stressed the fact that the employer had com- mitted no independent unfair labor practices. Presumably, where an employer does engage in such practices, that cir- cumstance would preclude a finding that he had a "genu- ine" desire to resolve the issue of majority status through the Board's processes, and that would be true even if such prac- tices had no immediate effect on the union's majority status. The following statement by the Board in Wilder would seem dispositive of the matter. In the interest of encouraging all parties to avail them- selves of our election procedures, we would not be inclined to enter a bargaining order if, absent independ- ent unfair labor practices, the record supported a findingg that the Respondent had in good faith indicated a wilr ingness to utilize these procedures, since, as the Su- preme Court has said, a Board conducted election is indeed the "preferred route" for determining employee desires. [Emphasis suppplied.] It is inferred from this that the Board did not intend to preserve such "preferred route" for employers who, in fact, knew that the union had achieved majority status, and who, by engaging in unfair labor practices calculated to interdict the use of that route, had demonstrated that they had no genuine interest in pursuing it. In such a case, it would be of no avail to the employer to show that he had proposed a Board election to the union or that his efforts to destroy the union's majority status had not been immediately suc- cessful. It follows that, the Union having obtained a card majori- ty by January 23, and, in addition, convincingly demon- strated its majority status by the strike of January 24, and Respondent having refuse dyto recognize the Union while engaging in unfair labor practices so serious and extensive that it is unlikely that conventional remedies will insure the holding of a fair election, it is proper to find, as I do either under the rule of Gissel or under the Wilder case, that Respondent's refusal of recognition on and after January 25 violated Section 8(a)(5) and (1) of the Act and that a bar- gaining order is necessary to effectuate the policies of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent engaged in certain unfair labor ractices within the meaning of Section 8(a)(1),(3), and (5) of the Act, I shall recommend that it be directed to cease and desist therefrom and take appropriate affirmative action, including bargaining upon request with the Union as the exclusive representative of all employees in the unit set 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth above and, if an understanding is reached, embody such understandin in a signed agreement. Having found that Respondent discriminated against Vega, Arroyo, Carmouze, and Nazario by discharging them, I shall recommend that it offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of earnings which they may have incurred as a result of Respondent's unfair labor prac- tices by payment to them of the amount of money they normally would have earned as wages from their discharge to the date of Respondent's unconditional offer of reinstate- ment.49 Said loss of earnings shall be computed in the man- ner set forth in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that backpay computed in the same manner be awarded to Rufin , Duarte, J. Rodri- guez, and A. Diaz, to compensate them for earnings lost as a result of Respondent's discriminatory delay, as found above, in offering them full reinstatement to their former jobs, and that Respondent be ordered to make a further offer of reinstatement to A. Diaz for the reason related above. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees of Respon- dent at its Miami, Florida, plant, including warehouse employees and truck drivers, but excluding office cleri- cal employees, guards, and supervisors as defined in the Act. 4. At all times since January 23, the Union has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. B refusing on January 25 and thereafter to bargain with the Union as the exclusive representative of the em- ployees in the said appropriate unit, Respondent has en- gaged in and is engagm in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By coercively interrogating its employees about their union activities and those of other employees, by admonish- ing an employee not to disclose such interrogation to others, by threatening to look out for employee union activities, 4v In the case of Arroyo, the record shows that a proper offer of reinstate- ment was mailed by Respondent to Arroyo's correct address, and delivery was attempted on July 10, but the letter was not claimed by him and returned undelivered Accordingly here, as in the case of A. Diaz, backpay will termi- nate on the date of attempted delivery of the above offer, but it will be recommended that Respondent be required to renew that offer. Respondent contends that Carmouze was also offered reinstatement, on March 12. However, while a letter was sent to Carmouze on that date offering him reinstatement, the letter instructed Carmouze to notify Respondent in writing by March 18 of his availability, and although Carmouze complied on March 16, he admittedly has not yet returned to work In any event, any contentions by Respondent on this score may best be resolved in compliance proceedings. and by offering a plant employee an office job to divorce her from any union activity, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(axl) of the Act. 7. By discriminating against employees because of their union activity, Respondent violated Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in this case, it is recommended that Respondent, General Plastics Corpo- ration, Miami, Florida, its officers, agents, successors, and assigns, shall be required to: 1. Cease and desist from: (a) Discouraging membership in Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO, by discharging or otherwise discriminating against employees because of their union activities or be- cause of their participation in a strike. (b) Coercively interrogating its employees about their un- ion activities and those of other employees and forbidding disclosure of such interrogation to others. (c) Threatening to watch out for employee union activi- ties. (d) Offering employees a transfer or any other induce- ment to secure their defection from a union. (e) Refusing to recognize and bargain with Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO, as the exclusive representative of its employees in the following unit: All production and maintenance employees of Respon- dent at its Miami, Florida, plant, including warehouse employees and truck drivers, but excluding office cleri- cal employees, guards, and supervisors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Make whole Enrique Vega, Jorge Arroyo, Rolando Carmouze, Elias Nazario, Arminda Duarte, Alberto Diaz, Cira Rufin, and Jose Rodriguez, for any loss of pay suffered by them as a result of the discrimination against them, in the manner set forth in the "Remedy" section of the Trial Examiner's Decision herem. (c) Offer to said Vega, Arroyo, Carmouze, Nazario, and Diaz immediate reinstatement to their former positions, or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (d) Post at its Miami, Florida, plant copies of the attached notice marked "Appendix."50 Copies of said notice, on 50In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as GENERAL PLASTICS CORP. forms provided by the Regional Director for Region 12, shall be signed by Respondent's authorized representative, and posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in wnting, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith51 provided by Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions 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 " 31 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in wnt- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutu- al aid or protection To refrain from any and all of these things WE WILL NOT do anything that interferes with these nights, More specifically, ` E WILL NOT ask you questions about your activity or that of other employees on behalf of Meat Cutters, Packing House Workers & Food Handlers District Un- ion No. 657, AFL-CIO, or any other union and we will not forbid you to disclose such questioning to others. 719 WE WILL NOT threaten to watch out for your union activities. WE WILL NOT offer you an office job or any other inducement to keep you out of the union. WE WILL NOT discharge or otherwise discriminate against employees because they favor Meat Cutters, Packing House Workers & Food Handlers District Un- ion No. 657, AFL-CIO, or any other union, or because of their taking part in a strike. WE WILL compensate Enrique Vega, Jorge Arroyo, Rolando Carmouze, Ehas Nazario, Arminda Duarte, Alberto Diaz, Cira Rufin, and Jose Redriguez for any earnings lost by them as a result of the discrimination against them and we will offer to take Vega, Arroyo, Carmouze, Nazano, and Alberto Diaz back at their old jobs. WE WILL recognize Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO, as the only collective-bargaining represent- ative of our employees in the bargaining unit, which is: All our employees at our Miami, Florida, plant, including warehouse employees and truckdnvers, but excluding office clerical employees , guards, and supervisors as defined in the Act. WE WILL bargain on request with that union regard- ing wages, hours and conditions of employment and any agreement we reach will be put in writing and signed All our employees are free to join or not to join Meat Cutters, Packing House Workers & Food Handlers District Union No. 657, AFL-CIO. Dated By GENERAL PLASTICS CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 826 Federal Office Building, 51 South West First Avenue, Miami, Florida 33130, Telephone 305-350-5391.