Marco Paper Products Co.

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marco Paper Products Co. and General Truckdrivers, Warehousemen, and Helpers Union, Local 624, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-5006 October 17, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 22, 1969, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed an answering brief. 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 made by the Trial Examiner 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, the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner I join my colleagues in adopting the Trial Examiner's finding and conclusion that Respondent violated Section 8(a)(1) and (3) by discharging Otis Gay because of his participation in the Union's organizational campaign. I am not satisfied, however, that the evidence supports the Trial Examiner's conclusion that General Manager McCall raised Robert Sparkman's wages on May 27 "with the express purpose of impinging upon his employees' freedom of choice for or against unionization, and that [such] action was reasonably calculated to have that effect." I note that Sparkman's raise was only one of several given to employees shortly before the election was conducted in Respondent's plant, and that, as to the other raises, the Trial Examiner found they were given for legitimate reasons and without interfering with employees' exercise of Section 7 rights. Moreover, Sparkman's wage increase must be contrasted with the treatment afforded Gay who was discharged for his union activities I find little if any evidence explaining why Respondent chose to discharge one employee for his union activity and buy off the other employee for his union activity if such be the case. Although the timing of Sparkman's raise is suspicious, I find that factor insufficient to support the Trial Examiner's conclusions as to McCall's motivation for granting the wage increase to Sparkman and the impact of that wage increase on employees' exercise of Section 7 rights. I would dismiss the allegations of the complaint insofar as they allege that Respondent violated the Act by giving Sparkman a raise. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Marco Paper Products Co., San Rafael, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order MEMBER FANNING, concurring in part and dissenting in part: 'These findings are based , in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record , we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 'Like the Trial Examiner, we are satisfied upon the basis of all the circumstances recited by him, including the timing and absence of any acceptable explanation therefor, that the discharge of Gray and the pay raise to Sparkman were violative of the Act Each , in its way, was designed to thwart the Union's organizational effort Contrary to the dissent' s view of Sparkman' s raise as "only one of several given", the record' shows that Sparkman alone among Respondent's regular employees received a pay raise Respondent itself seeks to defend this raise on the, ground that it was an "isolated raise to one employee " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAURICE M MILLER, Trial Examiner. Upon a charge filed May 20, 1968, and duly served, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served on Marco Paper Products Co , designated as Respondent within this decision. The Complaint issued December 18, 1968; therein Respondent was charged with unfair labor practices affecting commerce, within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519 Within Respondent's duly filed answer, certain factual statements in General Counsel's Complaint were conceded; Respondent, however, has denied the commission of unfair labor practices Pursuant to notice, a hearing with respect to this matter was held at San Francisco, California, on April 15, 1969, before me The General Counsel and Respondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Since the hearing's close, a brief has been received from the General Counsel's representative, this brief has been duly considered. 179 NLRB No. 34 MARCO PAPER PRODUCTS CO. 195 FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION Respondent raises no question herein with respect to General Counsel's jurisdictional claims. Upon the Complaint's relevant factual declarations, which have not been controverted, I find that Respondent was, throughout the period with which this case is concerned, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended Further, with due regard for presently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. 11. THE LABOR ORGANIZATION INVOLVED General Truckdrivers, Warehousemen, and Helpers Union, Local 624, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, designated as Complainant Union within this decision, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's employees to membership. III THE UNFAIR LABOR PRACTICES A. Issues General Counsel's Complaint, herein, charges Respondent with statutorily-proscribed interference, restraint, and coercion, because of certain wage increases which were granted a limited number of Respondent's employees, purportedly for the purpose of discouraging their Union sympathies. Further, General Counsel charges that Respondent discharged Otis Gay because of his union activities, or other protected concerted activity for the purpose of collective bargaining or other mutual aid or protection. Respondent contends that its challenged wage raises - three in number - were granted for legitimate business reasons. With respect to Gay's termination, Respondent contends that it lacked knowledge regarding his Union sympathies when management's decision to terminate him was reached, and that his termination was dictated by legitimate business considerations. B. Facts 1. Background Respondent maintains a San Rafael, California plant, within which it manufactures and processes paper tapes These tapes are, then, sold for building and construction work; they are used in connection with sheetrock installation Respondent's plant contains three departments within a single physical facility: (1) A Shipping-Receiving-Material Handling department, (2) a Processing department; and (3) a Rewind Machine department. Within the first department designated, Respondent receives paper in large rolls In Processing, these large rolls are cut to proper sizes The firm's Rewind Machine department workers transfer such cut paper to smaller rolls. These are, then, transferred back to Respondent's Shipping and Receiving department, within which they are packed for shipment These various operations, described, are conducted within a comparatively small physical compass, they require a comparatively small production crew Respondent's Processing and Rewind Machine departments, combined, occupy no more than 600 square feet The Shipping-Receiving-Material Handling department fills the balance of Respondent's plant space, not specified for the record. (The precise physical configuration of Respondent's combined Processing and Rewind Machine departments has not been described However, Respondent's suggested area figure, 600 square feet,would require a space measuring approximately 30 by 20 feet) During the particular April 16 - May 31, 1968 period with which this case is directly concerned, Respondent's total production and maintenance crew complement fluctuated between 15 and 19 workers This group included two part-time Rewind Machine operators, two part-time Shipping employees, and one part-time janitor, plusl0-15 full time salaried or hourly paid workers Throughout the period with which this case is concerned, Respondent maintained a two-shift operation Two Processing department workers, together with one part-time Rewind Machine operator, worked a swing shift, the balance of Respondent's production crew worked days. Within Respondent's crew, turnover - during the period with which this case is concerned - was relatively high. Between January I and May 15, 1968, 10 workers were hired; during the same period, three men ceased work or were separated Between May 15 and July 31, however, five more workers were terminated Respondent's consolidated payroll list, between April 1st and July 31, specifically, contained 24 names Among those listed, however, two performed no work after May 15 (One, William Christiana, designated a part-time Rewind Machine operator, is merely shown as not working. Otis Gay, Jr., with whose termination this case is concerned, concededly was dismissed on the designated date.) Further, two of those listed - with previous experience in Respondent's hire - did not resume their work, during the 1968 calendar year, before certain designated dates in June and July, respectively. 2. Otis Gay's employment history On April 18, 1968, Respondent hired Otis Gay. His testimony regarding his work history - proffered and received largely without challenge - would warrant a determination that he started in Respondent's Shipping and Receiving department, where he worked three or four days Gay was then transferred to work as Processing Machine helper on Respondent's swing shift, he held this position for some 2 weeks (This determination derives from a summary of Respondent's personnel record, plus a synthesis of relevant testimony proffered both by Gay and Respondent's general manager Gay testified that he was transferred from Shipping and Receiving to Rewind for 3 days, following which he served 2 weeks in Respondent's Processing department. General Manger McCall testified, however, that Gay was transferred directly from Shipping and Receiving to Processing, where he served I week on Respondent's small swing shift The firm's personnel record summary reveals no transitory Rewind Machine service by Gay, I reject his testimony in that connection. However, Respondent's personnel record summary buttressed by testimony - particularly General Manager 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCall's testimony that Gay was relieved of his Processing department assignment on May 6, pursuant to request - persuades me that he probably did spend about 2 weeks on Respondent's swing shift. I have so found ) Gay, however, finally reported a distaste for swing shift hours, and requested day shift work in Respondent's Rewind Machine department On Monday, May 6, so I find, he received the requested transfer During this period, so I find, Gay spoke with several fellow workers regarding their need for higher wages On May 6 or 7, he communicated with Business Representative Clark of Complainant Union Shortly thereafter, on May 12, Clark visited Gay's home to discuss unionization; three more workers from Respondent's plant were present Gay, together with his three guests, signed union designation cards Thereupon, Clark gave him more cards for Respondent's workers to sign On May 13, Gay solicited and procured signed Union designations from four additional workers (His testimony shows that he solicited two named workers at their San Rafael living quarters, and that he solicited two other workers in the parking "lot" near Respondent's plant.) That afternoon, Gay further solicited Richard Wagner, rewinder, somewhere within the confines of Respondent's parking lot; Wagner, so Gay testified, took a proffered designation card, but did not sign Testifying generally, regarding his solicitation in Complainant Union's behalf during this period, Gay declared that - between May 6 and May 13 particularly - he spoke with his fellow workers, regarding unionization, both during lunch breaks and while at work The record reflects his testimony - proffered without challenge or contradiction - that he discussed Complainant Union with his fellow workers during "every chance" which was presented. On May 14, Gay did not work, he consulted a physician because his elbows were sore He was told that his work within Respondent's plant had created or aggravated an arthritic condition When Gay reported for work on May 15 at 7 o'clock, he advised Leadman John Toll in Respondent's Rewind Machine department that he could no longer perform Rewind Machine work. He requested a transfer, and was forthwith reassigned to Respondent's Shipping and Receiving department (While a witness, Gay demonstrated the repetitive physical movements which his work as Rewind Machine operator had required. The work, so his demonstration showed, called for simultaneous lifting and twisting motions ) Within Respondent's Shipping and Receiving department, Gay then shared the work with three other full-time workers- George Schroeder, Respondent's longtime shipping clerk, Kenneth Gay (Otis Gay's brother) who had been hired May 6; and John Collins, hired May 10. Gregory Dwight, previously a member of Respondent's Shipping and Receiving crew - who had been an April 29 new hire - was switched to Rewind Machine department work, replacing Gay, concurrently with the latter's May 15 transfer 3 Gay's termination Regarding the specific developments which ensued, the record reveals testimonial conflict. Gay was concededly terminated following the completion of his May 15 stint within Respondent's Shipping and Receiving department This trier of fact, however, has been confronted with two significantly divergent factual recitals concerning the circumstances preceding his termination. Gay testified, simply, that - following his reassignment - he had worked a full day in Respondent's Shipping and Receiving department, that, when his work day ended, he had had a conversation with Respondent's general manager, that McCall had, then, said he had thought Gay could "work out" doing rewinding, but that, since he couldn't, Respondent would have to lay him off, and that he was thereupon told, "This is it," and was given his pay check While a witness, McCall provided a more detailed recital Specifically, he testified that he had reached Respondent's plant shortly after 9 o'clock that morning, that - consistently with his regualr practice - he had spoken with Leadman Toll regarding the work, and that the latter had told him about Gay's reported arthritic condition and consequent transfer Respondent's general manager, continuing, testified as follows And I related to Johnny [Toll] in response to that, that at the present time we had a surplus of help in the Shipping-Receiving Department, we were going to have to reduce our force and we did not have a place that we could utilize Otis, and it would be - that we would just have to let him go . Otis was standing in the same proximity of the machine at the time I was talking to Johnny As a matter of fact, he was in view and was standing within, I would say, less than 10 feet, and at the time of concluding the conversation with Johnny, I passed where Otis was working and related to him that I was sorry that he had a wrist condition and wasn't able to perform, that we had an excess of people at the present time and that we would have to dispense with his services at the end of the day, he could stay for the rest of the day but we would have to dispense with his services Later that day, concededly, McCall received a May 14 letter from Complainant Union, which claimed to represent a majority of Respondent's San Rafael employees. According to Respondent's general manager, this letter, which had been sent by certified mail, was received at approximately l l o'clock, McCall declared - while a witness - that, before receiving this letter, he had had no knowledge that Complainant Union was seeking to organize his plant Subsequently - so McCall testified - he had a second conversation with Gay; this, so the record shows, took place following the completion of Respondent's day shift With respect thereto, Respondent's general manager recalled that I related again to Otis that we had a surplus of people in our Shipping and Receiving Department, that we didn't have a place that we could use him, and that we had to lay him off, and I gave him his check. McCall was then asked whether he had known anything regarding Gay's activity in Complainant Union's behalf "at any time up to the time" when he (Gay) was terminated, Respondent's general manager replied negatively During cross-examination McCall conceded that Gay's work, during his prior period of service in Respondent's Shipping and Receiving department, had been acceptable; and that his performance had measured up to Respondent's estimate of his capabilities. Likewise, McCall conceded that Gay's swing shift performance record on Respondent's processing machine had been, so far as he knew, satisfactory. Nevertheless, Respondent's general manager reiterated his prior declaration that Gay had been twice told that the firm had a surplus of MARCO PAPER PRODUCTS CO. 197 Shipping and Receiving department workers, that a reduction of force was necessary; and that the firm would, therefore, dispense with his services Summoned in rebuttal, Gay could not "recall" any morning conversation whatsoever with Respondent's general manager; he denied having received any knowledge regarding his termination before the conversation with McCall which followed the completion of his work shift. When pointedly cross-examined by Respondent's counsel, Gay categorically denied any morning talk with McCall, since he could remember their purported "second" talk, but not their purported "first" conversation. When asked whether he was "positive" that no such conversation had taken place, however, Gay conceded that he could not so testify positively With matters in this posture - despite Gay's patent diffidence regarding the quality of his recollection - his recital, within my view, merits credence. The testimony of both witnesses - with respect to these matters - stands in the record without direct corroboration (In surrebuttal, Respondent proffered Leadman Toll. The latter purported to confirm a May 15 morning conversation with McCall concerning Gay's employment, but proffered no details Though he declared, further, that he had seen McCall turn and walk toward Gay some 10-12 feet distant, within Respondent's Shipping and Receiving department, Toll conceded that he had not heard their conversation.) Gay's testimony, however, was proffered rather ingenuously, with quiet sincerity; despite his demonstrated reluctance to declare himself "positive" when challenged directly by Respondent's knowledgeable counsel, his recital, within my view, carried the ring of truth Further, this trier of fact finds himself persuaded - consistently with General Counsel's contention - that McCall's proffered circumstantial recollections weaken, rather than support, his proffered testimonial version. For example- Respondent's general manager conceded that Gay was told, when his shift ended, that he was being laid off because Respondent had a surplus crew, if McCall had, really, stated the reasons for Gay's prospective layoff previously, no logical reason can be suggested for his determination to repeat himself later the same day. Further, McCall's testimony that he had notified Gay regarding his prospective termination when they spoke during an early part of Respondent's day shift - though it may not "strain credulity" as General Counsel contends - does reflect a departure from conventional management norms, no persuasive rationale for such a proffered "anticipatory" pronouncement has been vouchsafed Finally, this trier of fact notes that McCall's testimony reflects a discussion regarding his plan to reduce Respondent's Shipping and Receiving department complement with Leadman Toll, though the latter concededly had no responsibilities connected with that department, the record is completely silent, however, regarding any communication between McCall and Shipping Clerk Schroeder, whose full-time departmental crew was being reduced These considerations, inter alia, buttress my conclusion - primarily derived from my observation of both witnesses-that McCall's testimonial suggestion regarding the timing of his decision with,respect to Gay's term ination'(which would fix that decision as having been made before his receipt of Complainant Union's letter) merits rejection 4 Subsequent developments Within a letter dated May 16, Respondent's general manager notified Complainant Union that Respondent questioned its representation claims, and suggested an NLRB election by secret ballot Consistently with this suggestion, Complainant filed a petition for certification on May 20, with respect to a conventional "production and maintenance" bargaining unit Sometime thereafter, on a date not specified for the record, agreement regarding a consent election was reached A notice with respect thereto was provided for posting, the record warrants a determination that it was posted on May 27, within Respondent's plant 5. Robert Sparkman's pay raise On the "evening" of May 27, Charles Johnson, then a full-time Rewind Machine worker, told Respondent's general manager that he had procured a much better job and wished to resign Inter alia, so McCall testified, he declared that he had been solicited in Complainant Union's behalf, that he had had a prior experience which he did not wish to repeat, and that he was, therefore, resigning. During this portion of their conversation, so the record shows, Johnson further told McCall that Robert Sparkman was a union supporter. (Sparkman had, apparently, played a minor role in Complainant Union's campaign. He had signed Complainant Union's designation card on May 12, at Gay's home, the following day, so Gay's testimony shows, he had told Johnson and Preston that Gay wished to see them in Respondent's parking lot.) That same date, Sparkman received a raise He had been hired April 26, 1 month previously. Following a short period of Shipping and Receiving department service, he had been transferred to Process Machine work. The record warrants a determination that Sparkman had been hired at Respondent's standard full-time production worker rate, $2 50 per hour. His May 27 raise, however, provided him with $2.75 per hour. Thereby, Sparkman became Respondent's third highest hourly paid worker. His $2.75 rate was exceeded only by the $3 25 rate which Respondent was then paying to Sam Preston and Richard Toll, Process Machine operators with 4 and 11 years of seniority, respectively According to McCall, Sparkman had been granted his raise during a discussion "earlier that afternoon" before Johnson's resignation During that afternoon conversation - so Respondent's general manager testified - Sparkman was first reminded that, some few days following his hire date, he had been told that Respondent was seeking "capable and competent" workers; that transfers to Process and Rewind Machine work were possible, and that workers advanced or promoted to such work could expect raises Consistently therewith - so McCall testitied - Sparkman was then told, during their May 27 conversation, that, since he had performed well following his transfer to Process Machine work, his pay would be raised While a witness, McCall declared, categorically, that - when his May 27 discussion with Sparkman took place, and Sparkman was granted his raise - he (McCall) had had no knowledge of Sparkman's prior activity in Complainant Union's behalf. With due regard for the complete record, however, McCall's testimony - that Sparkman's raise was granted before he (McCall) heard anything from Johnson regarding the Process Machine helper's Union sympathies 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - must be rejected. I note, in this connection, that McCall identified Sparkman as the worker who had replaced Gay, when the latter had requested a transfer from Process Machine work on Respondent's swing shift. The record shows that these transfers were made May 6th, McCall declared, categorically, that Sparkman was a swing-shift employee when his May 27th raise was granted. Johnson, however, could not have been a fellow swing-shift worker Respondent's personnel record summary reveals that - just before his resignation - Johnson was a full-time Rewind Machine operator. McCall's testimony, however, shows that Respondent then had no more than one part-time Rewind Machine operator working swing-shift hours; this could possibly have been William Christiani, previously mentioned, or possibly James Houck, who was then likewise working part-time regularly. Since, therefore, Johnson must have been working days while Sparkman was working swing shift hours, McCall's testimony regarding the latter's purported presence on Respondent's premises "earlier" that May 27 afternoon, before Johnson's day shift stint had been concluded, can hardly be considered credible, absent some rational explanation; no explanation whatever has been proffered. With matters in this posture, McCall's testimony that his "raise" conversation with Sparkman took place earlier than his May 27 "evening" conversation with Johnson, simply cannot be credited (Further, this trier of facts notes, with respect to this facet of the present case, that McCall's sense of time, generally, was less than precise. He testified, twice, that Sparkman was granted a raise within "about a week" or within "a week or two weeks" following his transfer to Process Machine work. However, Respondent's personnel record summary - buttressed by McCall's further testimony fixing May 6 as the relevant transfer date - clearly warrants a determination that, by May 27, Sparkman had been doing Process Machine work for three weeks. McCall's lack of precision, with respect to this facet of the present case, constitutes a factor which I have considered, together with other factors, when assessing his credibility generally.) Thus, necessarily, McCall's witness-chair attempt to characterize his knowledge, with regard to Sparkman's Union sympathies, as derived belatedly, following his decision to raise Sparkman's pay, lacks a sufficient factual base, and must be rejected I so find. C. Conclusions 1. Gay's termination Gay's testimony regarding his role as Compainant Union's principal protagonist within Respondent's plant - between May 6 and May 15 particularly - stands without contradiction A recapitulation with respect thereto, now, seems hardly necessary. (By May 13, so the record shows, Gay had solicited nine of some thirteen-fourteen full-time workers, eight of whom had signed Complainant Union's designation cards ) Respondent contends, however, that Gay was not discharged therefor; the firm's defense derives, partially, from Respondent's subsidiary factual contention that General Manager McCall, when he decided to dispense with Gay's services, lacked any knowledge regarding the latter's prior work in Complainant Union's behalf. This contention, however, must be rejected With due regard for its circumstantial context, the substantial, open character of Gay's participation in Complainant Union's campaign, both within and without Respondent's plant, dictates a contrary conclusion For example' Gay testified, without challenge or contradiction, that he discussed unionization while at work within Respondent's Rewind Machine department. This department, together with Respondent's related Processing department, fills a comparatively small space, within which some 9-11 day shift workers perform full-time service. Leadman Toll, concededly a supervisor, works, throughout the day, within these closely-contained, contiguous departments. Under such circumstances, I find merit in General Counsel's contention that. In view of Toll's proximity to Gay, and the unrefuted testimony that Gay engaged in discussions with employees about the Union while he was working, it is also reasonable to conclude that Respondent learned of Gay's Union activities even before the Union's demand. This Board has held, frequently, that where a worker actively participates in substantial union activity, both within and without his place of work, and where the size of the plant is small-management's knowledge regarding the worker's union activities may properly be inferred. East Bay Rambler, Inc, 168 NLRB No. 143 (TXD); Don Swart Trucking Co, Inc , 154 NLRB 1345, fn. 2; Quest-Shon Mark Brassiere Co , Inc , 80 NLRB 1149, 1150, enfd. 185 F.2d 285 (C.A 2); see N L R B. v Abbott Worsted Mills, Inc, 127 F 2d 438, 440 (C A. 1). The testimonial record herein - like those which the Board's East Bay and Don Swart decisions both reflect - clearly reveals Gay as Complainant Union's principal within-plant protagonist. Far from being minimal and deliberately guarded, (Compare Conwood Corporation, 173 NLRB No. 94), Gay's activity was both substantial and open The present record, within my view, provides ample warrant for a determination that Respondent's general manager had knowledge of Gay's Union activities, before he (McCall) reached his May 15 termination decision. Respondent further contends, however, that Gay was not - in any event discharged, but that he was simply "laid off" because the firm had surplus workers within its Shipping and Receiving department When we consider the circumstantial context within which Gay was terminated, however, this contention stands revealed as without real evidentiary support. First- Regarding McCall's claim that Respondent's Shipping and Receiving department was overstaffed, this trier of fact notes that Respondent's general manager designated "two" workers as constituting a normal complement Between April 1 and 15, however, Respondent had had two full-time Shipping-Receiving department workers, plus two part-time workers; one, Charles Johnson, was then newly hired and subsequently transferred. During the April 16 - April 30 period, one full-time worker was terminated, but four were newly hired, with two of the latter subsequently transferred. When the period in question ended, Respondent had three full-time Shipping-Receiving department workers, plus two part-time workers Between May I and May 15, three newly hired workers were designated for Shipping-Receiving department work; one was subsequently transferred. When this period concluded, Respondent's department in question had four full-time workers, plus two part-time workers. And three of the four full-time employees still working on May 15 - Dwight, Collins and Kenneth Gay - were Otis Gay's juniors, with respect to company seniority. These figures, clearly, logically belie any present contention that Respondent normally sought to maintain merely a two-man Shipping and Receiving department crew. MARCO PAPER PRODUCTS CO. Second- Gay's May 15th transfer back to Shipping and Receiving did not, per se, create a surplus. He merely replaced Dwight, who was contemporaneously transferred to Rewind Machine work. Third Regarding McCall's baldly proffered "surplus" claim, Respondent has proffered no supporting rationale. No contention has been made that Respondent's business was declining; McCall testified, rather, that the firm's business has become "pretty stable year-round" with few peaks or valleys, save for possibly sizeable construction industry declines. With matters in this posture, Respondent's claimed economic justification for Gay's termination can hardly be considered persuasively substantiated. (The record contains a copy of Gay's post-discharge claim for unemployment compensation. When filing his claim, so the document shows, Gay said he had been "layed off" frgm Respondent's plant. This trier of fact does not, however, consider such a declaration conclusive or persuasive, either with regard to Respondent's actual reason for Gay's challenged termination, or regarding the nature of his belief with respect to particular causes which might have dictated his termination. Unemployment compensation claimants when filing claims - may not know, then, their previous employer's actual reason for discharging them And, particularly, when their previous employer's stated reason for terminating them would be least likely to forestall the routine processing of their claims, they can hardly be faulted for proffering that stated reason - whether or not they might, themselves, consider it pretextual.) To the contrary, indeed, Respondent's failure to recall Gay following his purported "layoff" provides persuasive support for the contrary, conclusion, that his termination was dictated by non-business considerations. First The testimony and documentary material with respect to Gay's work record discloses that his "progress" within Respondent's plant had been relatively rapid; that he was never criticized regarding his work; and that, in fact, Leadman Toll had complimented him regarding his Rewind Machine performance. While a witness, McCall conceded, consistently, that Gay's performance within Respondent's Shipping and Receiving and Processing departments had been satisfactory McCall further conceded that - so far as part-time workers were concerned he preferred to recall those who had performed competently. Gay, however, was never recalled. Some 2 weeks following Gay's termination, Respondent's general manager did try to recall John Collins, another full-time Shipping-Receiving department worker who had been terminated May 22, purportedly for lack of work. When Collins (whose seniority with Respondent had been less than Gay's) declined the offer, no secondary effort was made to communicate with Gay, despite his prior "satisfactory" record within Respondent's Shipping-Receiving department. No rationale for this ommission has been proffered. Second- Since Gay's discharge, Respondent's management - faced with normal turnover problems - has had to hire some five to six replacements for Shipping and Receiving department work, plus two Processing department replacements. Gay, however, has never been contacted for possible rehire; Respondent's defensive presentation reflects no showing whatsoever calculated to explain this failure to consider Gay for recall. With matters in this posture, I find merit in General Counsel's contention that Gay was discriminatorily discharged. By way of summary The record reveals that Gay had been Complainant Union's principal protagonist 199 within Respondent' s plant. Since the plant is small, and since Gay's Union sympathies were openly manifested, Respondent' s management - so I have found - necessarily became aware of his Union activities He was discharged at the height of Complainant Union's campaign, directly following Respondent 's receipt of Complainant Union's letter claiming to represent a majority of the plant's production and maintenance workers. This coincidence in timing, between Gay's substantial Union activity, Complainant Union' s demand for recognition , and Gay's discharge, provides strong prima facie support for a conclusion that his termination was discriminatorily motivated As General Counsel notes: Respondent , realizing the Union was now actively engaged in an organizational campaign , moved to chill the activity and fired Gay This, despite Gay's service seniority over several fellow workers, and despite his conceded competence in work assignments which he was still physically qualified to perform Respondent' s purported economic justification for Gay's termination - proffered to overcome General Counsel's presentation - has been found insubstantial; its lack of substance not only dictates its rejection, but strengthens General Counsel ' s prima facie case, providing further support for a conclusion that Gay was dismissed because of his participation in Complainant Union's campaign . Shattuck Denn Mining Corporation v. N L R B., 362 F 2d 466 (C.A. 9). 1 so find. 2. Sparkman' s Pay Raise With respect to Robert Sparkman 's wage increase, little more need be said Pursuant to well-established decisional doctrine , this Board closely scrutinizes wage increases granted subsequent to the filing of representation petitions . The Baltimore Catering Company, 148 NLRB 970, 973, West Texas Equipment Company, 142 NLRB 1358 Whenever the circumstantial context within which a wage increase is granted warrants a determination that such a challenged raise was effectuated for the purpose of influencing employees with regard to their choice of bargaining representatives , General Counsel has made out a prima facie case of statutorily-proscribed interference, restraint and coercion N.L R B v. Exchange Parts Company , 375 U.S 405 . Then, with matters in such a posture, the burden of coming forward with evidence calculated to establish some justifiable motive necessarily shifts to the employer concerned . The Baltimore Catering Company, supra, Glosser Bros., Inc., 120 NLRB 965. Let us apply these principles . The record, herein, clearly shows that McCall granted Sparkman a wage increase promptly upon learning of Sparkman's Union sympathies The wage increase lifted Sparkman's hourly rate substantially above that which a number of Respondent 's full-time production workers with greater company seniority were then receiving; reference has previously been made to the fact that no more than two hourly -rated workers, with substantially greater seniority , were receiving more. Upon this record, General Counsel herein - within my view - has sustained his contention that Sparkman's raise was calculated to interfere materially with the organizational rights of Respondent ' s workers . Cf. Bryant Chucking Grinder Company, 160 NLRB 1526, 1529. Respondent's proffered counter that Sparkman's relatively notable' raise was, despite its timing, granted on merit - to a worker with no more than one month's limited experience compassing no more than two of the firm's three regular production classifications - simply carries no persuasive 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD power whatsoever. With respect to certain subsequent wage increases granted before the Board-conduct election was held within Respondent's plant, I was persuaded, during the hearing, that Respondent's testimonial showing of justifiable motive should be considered sufficient to overcome General Counsel's presentation regarding a possible statutory violation Respondent's claim of merit for Sparkman's raise, however, lacks any comparably persuasive factual underpinning, the record, within my view, preponderantly supports a determination, rather, that General Manager McCall took his challenged step with the express purpose of impinging upon his employees' freedom of choice for or against unionization, and that his action was reasonably calculated to have that effect. N L R B v. Exchange Parts Company, supra My conclusion stands buttressed by the fact that Respondent's questionable conduct - with respect to Sparkman s specifically - reflects no really isolated reaction Gay's prior discharge, herein found violative of law, provides a significant sign with respect to Respondent's real motive, so far as Sparkman was concerned. His wage increase, clearly, constituted an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's course of conduct set forth in section III, above, since it occurred in connection with Respondent's business operations described in General Counsel's Complaint and concededly described correctly therein, had, and continues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, absent correction such conduct would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce CONCLUSIONS OF LAW In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following conclusions of law. 1. Marco Paper Products Co , is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. 2 General Truckdrivers, Warehousemen and Helpers Union, Local 624, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which represents certain of Respondent's workers for collective-bargaining purposes 3. Respondent, by granting a pay raise to Robert Sparkman for the purpose of interfering with his freedom of choice, and that of other employees, for or against unionization, interfered with, restrained, or coerced its employees with respect to their exercise of a right statutorily guaranteed. Thereby, Respondent did engage in, and continues to engage in, an unfair labor practice affecting commerce, within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act, as amended 4 Respondent, by its discharge of Otis Gay because of his activities on behalf of Complainant Union herein, has discriminated, and continues to discriminate, with regard to the hire and tenure and terms and conditions of employment of its employees, thus discouraging their Union membership and their participation in concerted activities for mutual aid or protection Thereby, Respondent did engage in, and continues to engage in unfair labor practices affecting commerce, within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, as amended V THE REMEDY Since I have found that Respondent engaged, and continues to engage, in certain unfair labor practices which affect commerce I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended Specifically, since I have found that Respondent violated Section 8(a)(1) and (3) of the statute through the discriminatory discharge of Otis Gay, I shall recommend that Respondent be required to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges It will be recommended, further, that Respondent be required to make this worker whole for any pay losses which he may have suffered because of the discrimination practiced against him, by paying him a sum of money equal to that which he would have earned as wages between May 15, 1968, and the date of his reinstatement, less his net earnings during such period. Backpay for the worker designated should be computed by calendar quarters, pursuant to the formula which the Board now uses. F W Woolworth Company, 90 NLRB 289. Interest thereon should likewise be paid, computed at 6 percent per year See Isis Plumbing & Heating Co , 138 NLRB 716, in this connection. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that Respondent, Marco Paper Products Company, its officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Discouraging workers from becoming or remaining members of General Truckdrivers, Warehousemen and Helpers Union, Local 624, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or from participating in Union or other concerted activity for the purpose of collective bargaining or other mutual aid or protection, by discharging them, or by discriminating in any other manner with respect to their hire or tenure of employment, or any term or condition of their employment, except as authorized under Section 8(a)(3) of the Act, as amended. (b) Interfering with, restraining, or coercing employees by discharges, or by granting raises reasonably calculated to influence them in their exercise of free choice with respect to union representation, or by any like or related conduct, with respect to their exercise of rights which the National Labor Relations Act, as amended, guarantees. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act, as amended: MARCO PAPER PRODUCTS CO (a) Offer Otis Gay immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any pay losses which he may have suffered by reason of the discrimination practiced against him, consistently with the requirements set forth within the "remedy" section of this Decision (b) Notify Otis Gay if presently serving in the Armed Forces of the United States of his 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 (c) Preserve and make available to the Board or its agent, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to analyze and compute the amounts of backpay due under the terms of this Board Order. (d) Post at its place of business in San Rafael, California, copies of the notice attached to this report as an appendix' Copies of the notice to be furnished by the Regional Director for Region 20, as the Board's agent, shall be posted, immediately upon their receipt, after being duly signed by Respondent's representative When posted, they shall remain posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insuie that these notices are not altered, defaced or covered by any other material. (e) File with the Regional Director for Region 20, as the Board's agent, within 20 days from the date of service of this Trial Examiner's Decision, a written statement setting forth the manner and form in which it has complied with these recommendations 2 ' 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 said notice in the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of 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 the Regional Director, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES 201 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 After a hearing, during which all sides had the chance to give evidence, it has been determined that this company has violated the National Labor Relations Act In order to remedy such conduct, we have been required to post this notice 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 they freely choose To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all of these things WE WILL NOT do anything that interferes with these rights. WE WILL immediately offer to reinstate Otis Gay to his former or substantially equivalent position, without any change in the seniority or other privileges which he enjoyed before we discharged him, and we will pay him any money which he may have lost as a result of our discrimination against him WE WILL notify Otis Gay if he is presently serving in the Armed Forces of the United States of his 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 Dated By MARCO PAPER PRODUCTS COMPANY (Employer) (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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.