Raven Industries, Inc.

RAVEN INDUSTRIES, INC. Raven Industries, Inc. and Allied Industrial Workers, AFL-CIO. Case 18-CA-2706 September 19, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On June 10, 1969, Trial Examiner Alba B. Martin issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that is cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner with the modification noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified above, and hereby orders that the Respondent, Raven Industries, Inc., Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 'We find merit in the General Counsel's exceptions to the Trial Examiner's make whole recommendations We, accordingly. substitute for the Trial Examiner's backpay remedy for all diseriminatees in this case the Board's general and usual requirement that the discriminatecs be made whole for all losses suffered by reason of the discrimination against them The determination of the extent of these losses is to be left to the compliance stage of this proceeding TRIAL EXAMINER'S DECISION STATFYTENT OF ME CASE ALBA B. MARTIN, Trial Examiner- This proceeding. with all parties represented. was heard before me in Sioux 1-ails. South Dakota, on April 15 and 16, 1969, on 527 complaint of the General Counsel and answer of Raven Industries, Inc., herein called Respondent and the Company.' The principal issues litigated were whether Respondent terminated three employee. Marcia Steward, Caroline Illian, and Erma Newcomer, because of their union activities and in order to discourage activity and membership in Allied Industrial Workers. AFL-CIO. herein called the Union After the hearing the General Counsel and Respondent filed helpful briefs which have been duly considered. Upon the entire record and my observation of the witnesses, I hereby make the following FINDINGS AND CONCLUSIONS 1. THE BUSINFSS OF RESPONDENT Respondent, a South Dakota corporation having its principal office and place of business in Sioux Falls, South Dakota. where it has three plants,' is engaged in the manufacture. research and development of fiber glass tanks, parachutes, balloons and outer wear clothing. During the year prior to the issuance of the complaint on Feburary 14, 1969, Respondent purchased goods and services directly from places outside South Dakota valued in excess of $5 million. During the same period Respondent sold goods and services valued in excess of $12 million, which were produced in South Dakota and shipped directly by Respondent to places outside of South Dakota. Respondent admitted, and 1 find, that at all times material herein Respondent has been and now is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has some 700 employees, about 500 of whom are women Its largest division is the sewn products division in which approximately 200 employees work in Sioux Falls. Many of these are sewing machine operators If. THE LABOR ORGANIZATION INVOLVED Allied Industrial Workers, AFL-CIO, is now and has been at all Limes material herein a labor organization within the meaning of Section 2(5) of the Act. inn. THE UNFAIR LABOR PRACTICES A. Self-organization of Eniplovees and Respondent's Opposition thereto initial efforts at self-organization by employees occurred in May 1968.' In late May Respondent's president enclosed an antiunion letter to all employees with their paychecks This letter told employees, among other things, that no union can make or sell products or offer security, and asked employees what they knew about the union, what is the union promising, what does it deliver, how much would it cost, and do the employees need it. The letter contained no threats or promises of benefit When the union representative they had contacted moved out of town, the employees tried to organize the employees into the Union beginning in middle June 'The Union filed the charge on December 12, 1968, and the first amended charge on February 3, 1969 'Respondent has another plant in Huron, South Dakota, which is not herein involved 'All events herein occurred in 1968 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Present at a supervisory meeting in May were Vice President Christensen , David Stavig, production manager of the sewn products division , and the sewing supervisors numbering about six. The supervisors were asked by Christensen or Stavig "to listen for anything that was said about the union [the first union] and not to discuss it with the girls, and to bring back what we heard to the' office." At least one supervisor. Violet Flaskey, responded in subsequent days by reporting to Stavig that union meetings were being held; information she had learned from "hearing the girls talk , discuss them." At one of the plants in Sioux Falls, called "the tunnel," on October 9. the day before the election mentioned below, Vice President Christensen told the small group of employees there (about four or five) that "he thought that all of us would go along with the Company , that we really didn't need any union , and that we were doing a fine job on our work." He "complimented us on how well everybody was doing their work , that when we knew we were about done with our work we didn 't slack off or anything, we kept right up with our quota ." This was the credible and uncontradicted testimony of Erma Newcomer. At a secret election conducted by the Board on October 10. 190 votes were cast against the Union and 93 votes were cast for the Union. During the preelection period the few employees working in the tunnel discussed the Union freely among themselves . Dan Hudson said that he saw no need for the Union , that he didn't think they needed one, and that anybody who was for the Union "was looking for trouble " Shortly after the election Hudson said that those who had voted against the Union "knew which side their bread was buttered on." The General Counsel contended that Hudson was a supervisor within the meaning of the Act and that these remarks constituted threats of reprisal in violation of Section 8(a)(1) of the Act. As Hudson's remarks related solely to the thinking of the employees and referred in no way, expressly or impliedly , to what Respondent would do, I find that they were views , arguments , or opinions protected under Section 8(c) and not violations . Under the circumstances it is not necessary to decide whether Hudson was a supervisor under the Act. I conclude from all the above evidence in this section A that Respondent opposed the self-organizational efforts of its employees , that for its own purposes Respondent gathered what information it could concerning these efforts, that Respondent sought to defeat the Union at the election . and that in all of this Respondent did not violate the law B. Union Activity of Steward , Illian , and Newcomer, and Company Knowledge thereof Mrs Marcia Steward, a 23-year old sewing machine operator, was one of the most active employees, and possibly the most active employee, in both union movements. She made the initial contact with the first union in early May, and was the principal connecting link between the employees and the Union beginning in mid-June. With union representatives she visited employees at their homes, tried to get cards signed with some success. She held union meetings in her home. In general she promoted the unions. All of this went on throughout the summer, from May until September. Caroline Illian, also, was very active in the self-organizational movement. She telephoned employees at their homes and spoke to them during lunches and work breaks, trying to get them to sign up for the Union. She went to union meetings and coffee parties. Illian credibly testified that not many "girls" were trying to get the Union in; that "the rest didn't want to become involved all of a sudden"; and that most of the "girls" with whom she had lunch and coffee "didn't say anything" about the Union, "they were afraid to say anything." "I more or less did all of the talking ....'' At the election Erma Newcomer served as an observer for the Union. This occurred the day after Vice President Christensen had expressed his thought to the tunnel employees that all of them would go along with the Company, as has been seen above, and was clear proof to the Company that Newcomer was going with the Union. The night before the election Newcomer had telephoned Christensen that the Union had asked her to serve as its observer. Under all the circumstances it is clear that Respondent knew of Newcomer's assistance to the Union. Production Manager Stavig testified that his first knowledge that Steward was active in the union movement was in mid-August. which was prior to the election of October 10 and prior to the discharge of Steward and Illian on November 19. It is certain, however, that Respondent knew of Steward' s union activity prior to mid-August. In late May, while Steward was still working for the first union. Vice President Christensen called Steward into his office and asked her if she was unhappy and several times asked her if there was "anything you want to tell me." The record suggests as the reason for Christensen's questioning of Steward, nothing but an effort to get Steward to talk about the union movement then going on and the causes for it Knowledge was further proven by the fact that on election day Respondent was told by the Union that Steward was a standby union observer at one of the polling places. In addition to all of this Steward's active role in the union movements could not have failed to come to Respondent's knowledge through its news-gathering system set up by Christensen in May among the supervisors. The record shows also that Respondent knew of Illian's sympathy for the Union. She was a steady luncheon companion of Marcia Steward. On election day she entered the reception room of the building where the polling place was with Steward. Personnel Manager Conradi was in the reception room, and obviously saw them together, while they waited around the reception room for a while until they could go up to the third floor to vote. As they proceeded to the voting place they passed another supervisor, who nodded to Illian as they passed her. hurther. Respondent's news-gathering system must have revealed to Respondent that one employee, Illian, was doing "all of the talking" about the Union among the employees with who she worked and associated. C. Respondent's Policies and Procedures Concerning Discipline and Discharge An employee information booklet handed to new employees by the Company had a heading, "Regulations Governing Discipline and Discharge" (subject to approval by an officer of the Corporation). Under a subhead. "Dismissal Policy," Respondent told the new employees. Few people have been fired by the management of Raven. Whenever it has become necessary to discharge an employee, it has been done only after careful consideration of all factors involved and for one of the following reasons: RAVEN INDUSTRIES, INC. 529 1. Dishonesty. 2. Intoxication on the job. 3. Gross insubordination with superiors. 4. Misconduct in connection with his work. 5. Continued neglect of assigned duties. As long as there is work available your job at Raven is never in jeopardy if you make sure you are never in violation of any of the above reasons or any policies the Company may adopt. In addition Respondent has, presumably for the use of management, a policy and procedures + handbook. Its current "Regulations Governing Discipline and Discharge" set forth some 28 "infractions" for which penalties arc prescribed For many infractions the regulations provide one or two warnings before discharge. The only infractions possibly relevant here are the following 2. Wasting time, loitering, soldiering, leaving place of work during working hours. [Warnings for first and second offense. Discharge for third offense.] 23. Deliberately restricting or interfering with output. [Discharge for first offense.] 25. Failure to return from lunch or rest periods on schedule. [Warnings for first and second offenses, discharge for third offense.] Although Respondent had this written material for both employees and management concerning discharge, Respondent made no mention of it as a basis for any discharge, to any dischargee or at the hearing D. Discharge of Steward and Illian At the time of their discharge, on November 19, Steward and Illian were on layoff status. They were among the 12 out of the 35 on the Aspen ski jacket line who were laid off August 5 for failing to make the minimum quantity on that line. Of the 13 laid off 4 including Steward and Illian were discharged on November 19 and the remaining 9 were recalled to work sometime after December 3. The record contains no evidence as to why the two other than Steward and Illian were terminated. The only reason given in the termination letters to Steward and Illian was that Respondent was terminating them "rather than continuing to hold you on an indefinite lay-off." Personnel Manager Conradi gave only this reason to Illian in a postdischarge conversation in December. At the hearing Respondent explained that in October and November it had some 30 employees in layoff status. It would not appear that laying off five greatly reduced that number. Further, by the hearing herein on April 15 all of these but the five terminated had been taken back or given an opportunity to return. The record showed that when these termination letters were written Respondent was really not considering continuing the layoff status of anyone. At the time of the discharge of Steward and Illian Respondent knew that "We were going to be needing more people within the near future for other contracts." In fact for the sewn products division in Sioux Falls Respondent hired a number of employees in November and December 1968, and approximately 36 employees between about January 1, 1969, and the hearing herein on April 15, 1969. These 36 were hired "for a great variety of different kinds of sewing." As Respondent knew when it wrote the termination letters to Steward and Illian that it was going to hire more employees shortly, as Respondent recalled all but the four terminated, and as Respondent gave specific alleged reasons at the hearing for the terminations, I conclude that the reason given in the termination letters and by Conradi to Illian after the discharge had no connection with the real reason for the discharges. The record contained no reason favorable to Respondent as to why Respondent did not in these letters, and Conradi verbally to Illian, give its alleged real reasons for the discharges. As stated at the hearing by Production Manager Stavig, Respondent's reason for discharging Steward and Illian was that "We felt [they] had not done what [they] could have done for us on the Aspen ski jacket line, that [they] deliberately held back on [their] production and consequently did not deserve another chance to work with our Company." Stavig admitted that Respondent never talked to either of these two employees concerning this serious charge and conclusion. He stated that he and Personnel Manager Conradi felt that "The entire group was not doing what we had hoped they would. We had to evaluate on our own as to whether individuals had deliberately held back. We didn't speak to either girl " Nor did their supervisor, Vivian Bosch. or any other official, speak to them about their alleged holding back. Respondent's experiment with the Aspen ski jacket. which it started making in June, was a fiasco. It hoped to make 25,000 units but abandoned the project in October after 5,000 units. It cost Respondent much more to make each unit than it had estimated. In the summer a small delegation even went to the Aspen Ski Wear Company in Denver, Colorado, where the same jacket was made, to try to get some ideas for improving production. Supervisor Bosch of the Aspen line, one of those who went to Denver, explained that Some of the things we tried the way they were doing it, but they were a plant that had been sewing these jackets many more years than what we had and, of course, were much more advanced, and, of course, there were many things that we couldn't apply to our small group, an inexperienced group One idea they learned in Denver was "to sew the pocket in first before they finished the whole pocket." Bosch never relayed this idea to Steward or Illian, who were sewing zipper pockets, though her testimony indicated she assumed others on the line, supervisors or sewers, had. Having started the project in early June. in early July Respondent went to an individual quota system for each girl in an effort to improve production. Finally Respondent conducted a test week the week before the August 5 layoff, and told the line at a meeting on July 27 that that test would determine their future rates of pay and whether they met the minimum standard "to hold her job." This latter phrase clearly meant hold the job on that line, because no one was discharged August 5 and those who failed to meet the minimum standard that week were laid off, not discharged. Respondent did not contend otherwise. Production Manager Stavig testified that work on the commercial lines, which included the Aspen line. was a finer type of sewing than on parachutes. Respondent's entire experience shown in this record proved that Respondent's sewers, inexperienced in this fine type of sewing, were unable to do the work on the Aspen line in 530 DECISIONS OF NATIONAL LABOR RELATIONS BOAR D sufficient quantity to make it a profitable venture for Respondent Yet only Steward and Illian and two others were discharged out of the 35 on the line. It is evident that discharging these two, or these four, did not cure what was wrong and that Respondent did not think that it would In fact the Aspen line was abandoned shortly before their discharge. Respondent was selling the jacket it was making the test week to Aspen Wear for S5-$6, and it cost Respondent $16 to make it. In view of Respondent's heavy financial losses on the Aspen line for several months, had Respondent really believed as it contended that Steward and Illian were intentionally holding hack. Respondent would surely have spoken to these two employees and either discharged them long before (under item 23 of its Regulations), or been satisfied that their recalcitrance would cease.' On the preponderance of the evidence in the entire record I find Respondent's defense concerning its belief as to Steward's and fllian's lack of effort unconvincing and unworthy of credence. On their assignments on military work during their entire previous employment history with Respondent, Steward and Illian had demonstrated that they were among Respondents best sewing machine operators. For increased production Steward had been given step by step raises from $1 25 per hour to $1.85 per hour, and Illian from $1.25 per hour to $1.80 per hour Stavig testified that Steward was one of Respondent's best sewers, and had been the top producer of 60 at gore sewing on the Mark 24 parachute. Illian was a very good seamstress. better than average, but not in the same category with Steward On numerous previous occasions, where there were layoffs because the work on a given line was ending, Steward had been reassigned rather than laid off. Neither Steward nor Illian had ever been laid off before Respondent could have retained these two operators, one excellent and one very good, had it wanted to. by reassigning them to military work where they had proven their excellence at high quantity work, and where they had been most of the time prior to their assignment to the Aspen line. Stavig testified that at the time of the hearing Respondent was making five different kinds of military parachutes and a bag for a parachute. As has been seen Respondent hired some new employees during November and December and 36 between January 1 and April 15 for a great variety of different kinds of sewing-which must have included some military sewing. In any case, as of the time of the hearing Respondent had some 200 employees in the sewn products division, of whom only 35 were shown to be in commercial work-on the Snowmobile line. Steward credibly testified that on the Aspen line she tried to make her quota but was unable to do so. that "I tried the best I could to get the quality that I thought I should have, and I just couldn't make it." I find it impossible to believe that as good a sewer as Steward did not try to make her production quota. particularly during the test week. She understood Vice President Christensen to say on July 27 when he announced the test week, that those who did not make their quotas would be discharged, and she did not impress me as one who would deliberately court discharge by intentionally failing to make her quotas 'instead, when they were laid off Stavig told Illian and implied to Steward that they would be called back 'I am not dissuaded from these findings by the testimonial opinion of an acting supervisor, Mrs Buffett, that the union girls on the line weren't really trying to do their job and that she tried to get the union organizer to Respondent's deliberately-holding-hack defense was presented primarily against Steward's discharge, and then Stavig testified that "it was the same situation with Illian " The frailty of this defense is particularly patent as applied to Illian's discharge Illian worked on the Aspen line only 2 or 3 weeks, during which she worked on more than one lob: she was steady on the upper pocket job only the last week, the test week, during which she increased her production every day, as Stavig admitted to her he knew when he laid her off on August 5. Thus she had almost no training period on the line and went through the test week on virtually a new assignment, one of the hardest assignments on the line, as Stavig also admitted to her he knew. Stavig volunteered to her that some sewers find it "hard to sew on commercial where they can sew on military" and added that "it they ever got a military contract I would be called back." Although Illian did not make her quota during the test week and while she was on that line, it cannot be concluded on this evidence that she was intentionally holding hack or that Stavig thought she was. Under these circumstances Respondent's defense cannot be credited Conclusions- Upon the preponderance of the evidence in the entire record considered as a whole I conclude that Respondent discharged Steward and Lilian in order to get rid of two active and outspoken prounion employees, thereby discouraging further union activity in the plants in Sioux Falls, Respondent thereby violating Section 8(a)(3) and (1) of the Act. Respondent had won the election, but it knew that as long as these two leaders were still in the plants there was always the possibility of the reemergence of the union spirit. An attempt to cover up this real reason for the discharges is the only credible explanation in the record as to why Respondent never told these employees why they were being discharged, and as to why it gave them the pretext that it was reducing the number on layoff and then offered as its principal defense at the hearing the unsupported and unproven defense that they were intentionally holding back production. Had they been intentionally holding back Respondent would have discharged them rather than lay them off on August 5 and would have told them the true reason for Respondent's action. Thus 1 conclude that this reason was also a pretext E. Discharge of Erma Newcomer As has been seen above, the day before the election Vice President Christensen told the tunnel employees including Newcomer that he thought all of them would go along with the Company and that they were doing lire work and kept up with their quota. That evening Newcomer telephoned Christensen and told him she had been asked to serve as a union observer. The following day she served as the union observer at the "balloon plant" where the tunnel employees voted. But for a fire in the tunnel on December 3 the evidence suggests that Newcomer would not have been discharged. The lire closed down operations in the tunnel for several months. The following day, December 4, Respondent had the tunnel employees down at the main plant to make tape recordings of their versions of the incident. While Hudson and Bren were at the main plant on December 4 they took the initiative to speak to Stavig speak to an unidentified girl who was "being obnoxious " By their demeanor before me it does not seem to me that either Mrs Steward or Mrs Illian was the obnoxious one RAVEN INDUSTRIES , INC. 531 about Newcomer. They expressed to him the hope that when operations in the tunnel resumed he would send out some girl in place of Newcomer. They didn't ask that Newcomer be discharged, but only replaced. Stavig indicated he would try to find some work for her in the main plant and they left with the feeling that someone else would be sent out to the tunnel Hudson then told Newcomer they would probably have something for her to do at the main plant. Instead of giving her other work Stavig discharged Newcomer the following day. The record contains no evidence that Stavig tried to find other work for her before deciding to discharge her In the severance interview Stavig told Newcomer he was discharging her because of her attitude, that he didn't "like her attitude." This was the first time any company official had ever said anything to her about her attitude. She replied that her attitude was the same then as it had been for the past 2 1 /2 years, the length of time she had been with the Company. He suggested that she sign a paper that she was quitting. She refused. He said then they would terminate her She asked if it was because of the Union. He replied in the negative, saying that everybody has his own opinion; but not denying that he knew she was a prounion employee At this time there were only four production employees working in the tunnel. Dan Hudson (who had some supervisory authority ), Dennis Bren, Marian Clary, and Newcomer. Of these Newcomer was the only prounion employee Both before and after the election she and Bren and Hudson discussed the Union back and forth in a "kidding" way. Hudson said that he saw no need for the Union, that he didn't think they needed one, and that everybody who was for the Union was looking for trouble. Bren told her that if she wanted the Union she should go work some place where there was a union. After the election, as has been seen above, Hudson said that those who didn't vote for the Union knew which side their bread was buttered on. When on December 4 Hudson and Bren recommended to Stavig that he remove Newcomer from the tunnel, Stavig knew that Bren was against the union movement and must have known that Hudson was also. Early in the campaign Bren had sought out Stavig and told him Bren was not interested in the Union Stavig had told him it was an election and not to worry about it. As for Hudson, he had some supervisory authority and was in charge of the work at the tunnel, to hold which job Respondent must have been satisfied that he shared its views toward the Union, which he did In their discussion with Stavig on December 4 Bren and Hudson had talked about Newcomer's attitude and had cited several examples of her alleged shortcomings They said she took too long on the breaks, that prior to the election they overheard her tell Marian Clary that if you put out more work they would expect more, and that during the last 2 hours of her day when she was supposed to help Clary at her job Newcomer did not work as hard as she should have At the hearing Newcomer credibly denied taking too long on breaks or counseling Clary or any other employee to restrict production. Clary was not called as a witness and was not shown to be unavailable, nor did Respondent produce any records concerning Newcomer's production, although it kept daily records on all production in the tunnel If Respondent intended to prove that Newcomer was discharged because she deliberately restricted or interfered with output. surely Respondent would have attacked the matter head-on and produced the production records and Clary. Stavig testified that since there were no toilet facilities in the tunnel, the tunnel employees used the facilities in the balloon plant a block away, and that for this purpose Hudson permitted them an extra 5 minutes more than the customary breaktime. 11' Hudson had authority to grant them this extra 5 minutes surely he had authority to see that they didn't abuse it. He never spoke to Newcomer on this score or any other subject concerning her that he and Bren discussed with Stavig. Newcomer's principal assignment had been the one in the tunnel for well over a year, since the spring or fall of 1967. Several times during this period, when work was temporarily at a halt because they were out of material or were making a change in the balloon they were working on, etc.. Newcomer would be temporarily reassigned elsewhere and then called hack to the tunnel when production there resumed. The fact that she was always returned to the tunnel shows that Respondent considered her work and work habits there satisfactory. Respondent had never indicated the contrary to Newcomer. Respondent offered no evidence as to when her alleged had attitude had begun. There was no evidence that her attitude ever changed. If she was not doing her share of the work at the tunnel for about a year, it would seem that word to that effect would have reached Stavig sooner. In 2 1/2 years with Respondent Newcomer's wages had advanced from $1 25 per hour to $1.80 per hour, which advances compared favorably with those of Steward, an admitted excellent producer and employee until her troubles at the end. During this period Newcomer's work was never criticized. A few weeks before her discharge Vice President Christensen had told the tunnel employees, including Newcomer, that they were keeping up with their quota. All of Respondent's written rules and regulations in evidence relating to discipline and discharge have to do not with attitudes of employees but with certain actions or failures to act. Newcomer's alleged shortcomings related most closely to infractions No 2 and 25 of Respondent's "Regulations Governing Discipline and Discharge" quoted above relating to leaving place of work during working hours and failure to return from rest periods on schedule. 01' note is that these regulations require warnings for the first two offenses, not precipitate discharge. The preponderance of the evidence concerning the Newcomer discharge leads me to the conclusion that as understood by Stavig, Newcomer's "attitude" Bren and Hudson were complaining to Stavig about was her prounion sympathy and assistance at the time of the election a few weeks before. Discharging her was a further example to employees, along with the discharge of Steward and Illian, that it was safer to leave the Union alone Thus the discharge tended to discourage the revival of any union spirit among employees Upon the above facts and considerations and upon the preponderance of the evidence in the entire record considered as a whole I believe and find that Respondent discharged Newcomer because of her sympathy and activities and to discourage further union activity among employees, Respondent thereby further violating Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THI UNI-AIR LABOR PRACIICIES UPON COMM[ RCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I recommend the customary broad cease-and-desist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent's unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. The record showed that of the 13 laid off from the Aspen line on August 5, 9 were recalled to work sometime after they were sent letters on December 3 that they would be recalled during December Had they not been discharged it is fair to assume that Steward and Illian also would have been recalled during December. To remedy its discriminatory discharge of Steward and Illian , Respondent will be required to reinstate Steward and Illian as sewing machine operators on work on which with reasonable effort they can make the average quota being made by others on that work, without prejudice to their seniority or other rights and privileges; and Respondent will be required to make each whole for any loss of pay suffered by reason of the discrimination by paying her, from December 3. 1968, until the date of the offer of reinstatement, a sum of money equivalent to the average amount per hour paid to the nine from the Aspen line who were recalled , or those among them who remained with Respondent after their recall, during the first 90 working days after their recall. Subtracted from this amount will be her net earnings during the period December 3, 1968, until the date of the offer of reinstatement. The backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as ascertained by the formula adopted in Isis Plumbing & Heating Co., 138 NLRB 716. As for Erma Newcomer, the record showed that Respondent followed a practice of reassigning to other work employees who were temporarily out of work, and only Newcomer was shown to have been terminated after the fire. During the period the tunnel was out of operation because of the fire Hudson was reassigned elsewhere. Bren testified that he had been working for Respondent since October 1965 and said nothing about being laid off while operations were at a standstill because of the fire. The record is silent as to Clary, but presumably she was reassigned under Respondent's policy. Under these circumstances it is fair to assume that Newcomer also would have been reassigned during this period but for her discharge. To remedy Respondent's discriminatory discharge of Newcomer, Respondent will be required to offer her reinstatement to her former position in the tunnel or to substantially equivalent employment acceptable to her, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of pay suffered by reason of the discrimination by paying her a sum of money equivalent to the amount she was earning at the tunnel, from the date of her discharge, December 5, 1968, to the date of the offer of reinstatement , less her net earnings during such period. The backpay shall be computed on the same basis with interest as is provided above for Steward and Newcomer. As provided in the Woolworth case, I recommend further that Respondent make available to the Board, upon request, payroll and other records in order to facilitate the checking of the amounts of backpay due. Upon the basis of the foregoing findings of fact and the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Raven Industries , Inc., of Sioux Falls, South Dakota, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Allied Industrial Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Marcia Steward , Caroline Illian, and Erma Newcomer , thereby discouraging membership in Allied Industrial Workers, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 4. The aforesaid 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 conclusions of law, and upon the preponderance of the evidence in the entire record considered as a whole, I recommend that Raven Industries, Inc., of Sioux Falls, South Dakota, its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Discouraging membership in Allied Industrial Workers, AFL-CIO, or any other labor organization of its members, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment, (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Allied Industrial Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer reinstatement to Marcia Steward, Caroline Illian, and Erma Newcomer in accordance with the recommendations set forth in "The Remedy" herein. (b) Make whole Marcia Steward. Caroline Illian, and Erma Newcomer, for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in "The Remedy" herein. (c) Notify Marcia Steward, Caroline Illian, and Erma Newcomer, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) 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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. RAVEN INDUSTRIES, INC. 533 (e) Post at each of its plants in Sioux Falls, South Dakota, copies of the attached notice marked "Appendix "` Copies of said notice, on forms provided by the Regional Director for Region 18 (Minneapolis, Minnesota), after being duly signed by Respondent's authoriLed representative, shall be posted by it 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 he taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 7 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeal, the words "a decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX recommendation of the Trial Examiner's Decision. WP WILL make whole Marcia Steward, Caroline lllian, and Erma Newcomer for any loss of pay suffered by them by reason of the discrimination practiced against them , in accordance with the recommendation of the Trial Examiner's Decision Wi- Wii t 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 Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization , to form labor organizations, to join or assist Allied Industrial Workers. AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or any other mutual aid or protection or to refrain from any and all such activities. All our employees are free to become, remain, or refrain from becoming or remaining members of Allied Industrial Workers, AFL-CIO. or any other labor organisation. RAVEN INDLSIRIES, INC. (Employer) NOTICE TO ALL E_yiPL O'tEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: Wi- WILL otter to Marcia Steward. Caroline Illian. and Erma Newcomer, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, in accordance with the Dated By (Representative) (Title) 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 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2618