West Coast Casket Co., Inc.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD West Coast Casket Company, Inc. and Cabinet Makers & Milimen Local 721, United Brotherhood of Carpenters & Joinrers of Ameerica,,AFL-CIO WeW'Coast -Casket Company, Inc. and Mrs. Gladys Selvin and Cabinet Makers-4 Milimen Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Cases 21-CA-8763 and ^21-CA-8807 August ` 13, 1971 DECISION AND ORDER BY CHAIRMAN MILLER-AND MEMBERS FANNING AND, BROWN On' March 10, 1971, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were Iengaging in certain unfair labor practices , and recommending that they cease and desist therefrom and'take de`rtain affirmative'action, as set forth in the'attached Trial Examiner's Decision. The Respondents filed exceptions to the Decision and supporting briefs, and the•Charging Party filed a brief in support of the Trial Examiner's Deckion. The General Counserfiled'an answering brief to Respon- dent Selvin's exceptions. 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 proceeding 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 proceeding,' and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except as herein modified.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondents, West Coast Casket Company, Inc., Los Angeles, California, its officers, agents, succes- sors, and assigns, and Mrs. Gladys Selvin shall take the action set forth in the Trial Examiner's recom- mended Order, as herein modified: 1. Delete paragraphs B, 1, (b) and (c) of the recommended Order. 2. Delete paragraph B, 2, (b) and renumber the subsequent paragraphs accordingly. 3. Substitute' the attached Appendix B for the Trial Examiner's Appendix B. CHAIRMAN MILLER, concurring: , I concur, but I do not agree that the contract clauses proposed by Selvin on behalf of, Respondent Employ- er were unlawful or an indication of bad faith. Furthermore, any single one of Selvin's idiosyncracies, such as insisting on a specified meeting place,' might well not be enough, standing alone, to support an 8(a)(5) finding. But it is impossible, for anyone 'experienced in negotiations to read this record and not conclude that the combination of strategems utilized by Selvin was designed to produce a complete breakdown in negotiations, rather than agreement. , The unilateral wage increase was part of this overall strategy. While there ,are circumstances in which an employer may, (and might even be -required' to) continue during negotiations with a preestablished pattern of merit increases based on periodic reviews of employee performance, it is clear here that Selvin chose to use the wage review and the ' resulting unilateral increases as a substitute for a bona fide wage proposal in the negotiations. Thus, under the circumstances here, this was one more step calculated to sabotage any effective bargaining, and indeed it had precisely that effect. As to the 8(a)(3) violations, the Examiner tended in my view substantially to overstate the degree of union animus evidenced by the record. Nevertheless, I find sufficient evidence of discriminatory motivation with respect to the three discriminatees to support the findings of discriminatory discharge. I fully concur with my colleague in ruling that the belated motion of the Respondent Employer seeking an opportunity to-- reopen the record to proffer evidence which it had f opportunity to present at the hearing cannot' granted if we are to maintain any semblanc,, orderly proceedings. i Respondent, West Coast Casket Company, Inc., requested oral argument. The request is hereby denied as, in our opinion, the record these cases, including the exceptions and briefs , adequately presents tL issues and positions of the parties. We similarly deny the Respondent's motion to reopen the record. Respondent had adequate opportunity at the hearing to present available evidence and there is no showing that the evidence it proposes to introduce was unavailable at that time. 2 Respondent Selvin excepted , inter alra, to the Trial Examiner's recommended remedy as to herself, claiming that the proposed order is too broad. We find merit in this exception. Although Selvin has been involved as an employer agent in other proceedings before us , she has not previously been named as a party respondent. We are not satisfied that in these circumstances there is a sufficient record as to warrant the entry of a broad order, as recommended by the Trial Examiner, and we will accordingly limit the order as to her. 192 NLRB No. 78 APPENDIX B NOTICE To EMPLOYEES WEST COAST CASKET CO., INC. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that I violated the National Labor Relations Act, and has ordered me to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. I WILL NOT, when I am an agent for West Coast Casket Company, Inc., do-anything that interferes with these rights. More specifically, I WILL NOT refuse to bargain in good faith with Cabinet Makers & Millmen Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, and Painters Local Union No. 1798, Brotherhood of Painters, Decorators and Paper- hangers .of America, AFL-CIO, as the exclusive representative of the employees of West Coast Casket Company, Inc., in the following unit: All production . and maintenance employees, in- cluding paint department employees and truckdri- vers, employed by West Coast Casket Company, Inc., excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. GLADYS SELVIN (Employer) Dated By (Representative) (Title) "his is an official notice and must not be defaced by .gone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. - Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 600, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5200. 625 RICHARD D. TAPLITZ, Trial Examiner ; This case was tried' at Los Angeles, California, on November 30, and December 1, 2, and 3,1970. The complaint, which issued on September 25, 1970, as amended during the course of the trial, alleges in substance that West Coast Casket Company, Inc., herein called West Coast, violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening employees for engaging in activities protected by the Act and violated Section 8(aX3) and (1) of the Act by discharging 121 employees because of their union activities. In addition, the complaint alleges that West Coast and its agent, Mrs. Gladys Selvin, herein jointly called Respondent, violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the Cabinet Makers & Mil men Union Local 721, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (herein called the Carpenters), and Painters Local Union No. 1798, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (herein called the Painters), herein jointly called the Union. Respondent's answer admits many of the factual allegations of the complaint, but denies any violation of the Act. The complaint was based on a charge in Case 21-CA--8763 filed on September 3, 1969, and amended on September 30, 1969, by the Carpenters and a charge in Case 21-CA-8807 filed on September 26, 1969, by the same Charging Party. The charges were consolidated upon issuance of complaint. All parties appeared at the hearing, were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which ,have been -,carefully considered, were filed on behalf of the General Counsel and Respondent. Issues 1. Did West Coast discharge 12 of its employees because of their activities on behalf of the Union and thereby violate Section 8(aX3) and (1) of the Act. 2. Did Respondent violate Section 8(aX5) and#1) of the Act by failing to bargain in good faith with the Union. 3. Did West Coast violate Section 8(a)(1) of the Act'oy sending a telegram to a striking employee saying in substance that the employee would lose all interest in her former employment unless she reported for work. 4. Was a strike engaged in by some of the employees of West Coast caused or prolonged by West Coast's unfair labor practices. Upon the entire records of the case, and from my observation of the witnesses and their demeanor, I make the following: I The original complaint listed 13 employees, but the name Roxanne Lewis was deleted upon motion of the General Counsel. 2 Counsel for the General Counsel filed a motion to vorrect the transcript of the record. Certain transcript corrections are duly noted. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. TIME BUSINESS OF WEST COAST West Coast is a . corporation engaged in the business of manufacturing and selling burial caskets at its place, of business located at 1526 East Washington Boulevard, herein called the Washington Street plant , and 734 East 17th Street, herein called the 17th Street plant , Los Angeles, California. West Coast annually sells and ships goods valued in excess of $50,000 directly to customers located outside the State of California or to customers located within California each of whom in turn annually sells and ships materials valued in excess o $50,000 directly to customers located outside the State of California. West Coast is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Carpenters and the Painters are labor organizations within the meaning of Section 2(5) of the Act. W. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharges 1. The setting As part of an organizing drive that the Carpenters and Painters Unions were jointly conducting among the employees of West Coast 'during March 1969, a meeting was held at the Painters union hall on March 26, 1969. At that meeting, the following employees of West Coast either signed or handed in signed cards authorizing the Carpen- ters to represent them: Marco Aguirre, Miguel Betancourt, Jesus Cisheroz, Roy Cooper, Miguel Vilegas, Raul Betancourt, George Saiza, Regino Encisco, Leopoldina Hajaistron, Rodolfo Ramirez, Pedro Guarola, and Aurelio Mena. All of these employees, with the exception of Aguirre, Guarola, and Hajaistron , also signed cards at that meeting authorizing the , Painters to represent them. Hajaistroa mailed in her Painters card shortly after, The record does not disclose how many employees of West Coast other than those listed above signed authorization cards on behalf of the Union, but it was stipulated that the Union did have additional cards. In April of 1969, five of the listed employees were discharged. In June, five more were let go and by July 2, 1969, all of them had been fired. The organizational drive culminated in a secret ballot election on June 13, 1969, conducted under the supervision of the Regional Director for Region 21 of the National Labor Relations Board. A majority of the employees voted for the Union and the Carpenters and Painters were certified on June 24, 1969, as the joint bargaining agent of the West Coast employees in the following bargaining unit: All production and maintenance employees , including s These findings are based on the credited testimony of Guerro. Winkler denied the substance of Guerro's testimony. He averred that he had been told that Duenas kept going into the sewing room at the Washington Street plant and telling employees that there was going to be a union shop and that they better get in line ; that Gene Shelton, foreman at,the 17th Street plant,-told him that Duenas was going there and organizing during working hours; and that he spoke to Guerro and told him to instruct Duenas to paint department employees and truckdrivers employed by West Coast; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. West Coast's animus towards the Union a. The Duenas incident Martin Winkler, Jr., is the president of West Coast and the executive who makes all, of the day-to-day operational decisions. Pilar Guerro was for 5 years poor to about September 15, 1969, a foreman for West Coast. He was in charge of the trimming room and through a forelady was also in charge of the sewing room . In the latter part of May 1969, Winkler had a conversation with Guerro in the trimming room. Winkler said that an 'employee named Salvador Duenas was causing trouble by going to the 17th Street plant and organizing a union . Guerroreplied that as long as °Duenas went on his own time there was nothing he could do about it. About a week later, Winkler had another conversation with Guerro at the same place. Winkler approached Guerro and said, "Mr. Duenas is still insisting on going out to the 17th Street plant to organize- , , .,I think we have to let him go." Guerro replied that Duenas was a good man and that he [Guerro ] didn't think that Winkler could let him go. Winkler said - that if IJuenas wanted to organize, he should work for the Union and,get paid for it. Guerro replied, 'Ifyou 'want to fire him youhave to make a check for me; too, because I wouldn'tmalce that mango." 3 b. The statements by Selvin Soon after the Union began its organizational drive, Winkler retained Gladys Selvin as West Coast's labor relations consultant. All of the Union's dealings with West Coast were through Selvin. As is more fully set forth below, Selvin had six meetings ' with the Union after the certification. All these meetings wereattended by a'reporter who made a verbatim transcript of the proceedings. The first of these meetings was on July 2, 1969 , and was attended by Selvin; Tony Bogdanowicz, business manager - and recording secretary of the Carpenters ; George Warr-r' business representative of the Painters; and Pete' Ceremello, general representative of the Painters Ir` tional. Warren testified that at this meeting, during a t: of discussion in which Selvin mentioned that she felt tr E_ union instigator was Winkler's [the president of West Coast] son-in-law, Selvin said that she intended eventuall'' to get rid of the union instigators or troublemake` According to Warren, Selvin indicated that West Coast,- going to terminate those that were in the Union. Tho the transcript of that meeting discloses discussions abd, Winkler's son-in-law, there is no mention of such a threat - by Selvin. Ceremello corroborated Warren's testimony in stop going into the sewing room and to do what was necessary if Duenas continued. Guerro, who was foreman of the trinimingtoom, (Duenas was a trimmer) averred that Duenas was' a good worker and never organized during working hours. After observing both Winkler and ,Guerro on the witness stand, I credit Guerro over Winkler. In addition, Winkler's credibility was damaged, by his testimony relating to the telegram incident which is discussed, infra. WEST COAST CASKET CO., INC. 627 part by averring that Selvin criticized the son-in-law as being the instigator of the trouble in the plant and that she said that they knew who the troublemakers were and they were going to get rid of -them. Ceremello attempted to explain the absence of such statements from the transcript of the meeting by averring that Selvin made the threat immediately after she had received a phone call. On occasions throughout the meetings, the parties did go "off the record" where Selvin saw fit and presumably the statements attributed to Selvin were not taken down because they occurred immediately after an "off the record" phonecall. Neither Bogdanowicz or Selvin testified about the alleged threat to terminate the union employees, though they both took-the stand. Though the testimony of Warren and Ceremello in this regard is uncontradicted by Selvin, I do not believe itiis worthy of credit. Warren's testimony relates to the alleged threat. Ceremello goes further and quotesSelvin as saying she knew who the union troublemakers were: The transcript of the record is silent on this issue and_ Bogdanowicz did not corroborate the testimony of the two other union officials. After observing and listening to Selvin for 4 days during the trial and after reading the transcripts. of the four meetings, I am of the opinion that the remarks attributed to=her would be so out of character for her as to be simply unbelievable. Whether or not Selvin is capable of participating in serious unfair labor practices, she does go through, the motions of complying with the law. The transcript of the meetings indicates a knowledge of statutory language and a sophistication in labor relations matters which is wholly inconsistent with the type of statements attributed to her. She might be instrumental in firing employees'because they join a union, but she would not tell three union officials that that is what she was going to do. Selvin's testimony and the transcripts themselves indicate that she is not always well organized and that her rambling soliloquies are sometimes difficult to follow. It may well be that Warren and Ceremello misunderstood what she actually said; however, I can make no findings with regard to union, animus or company knowledge of the employees' union activity based on their testimony about Selvin's remarks. 3. The discharge of Cooper Roy Cooper was an employee of West Coast from August 6, 1956, until April 20, 1969, when he was discharged. He was a trimmer, who worked on the handles and upholstery of the, caskets. In addition, he put glue on wood caskets so that cloth-,could be applied and he placed the beds and panels-inside the caskets. He worked at the 17th Street plant under the immediate supervision of Ralph Dennis.4 In the latter part of March 1969, Cooper spoke to another employee named Rudy Ramirez. Ramirez informed Cooper that he had contacted the Painters Union and he asked Cooper whether he was interested. Cooper replied that he was and a meeting was arranged with a union representative for the following day after work behind the building. The next day,' Cooper and five or six other employees. met George Warren, business representative of the Painters. Cooper told Warren that he thought the employees would go for the Union. He-attended the union meeting at the Painters Hall on March 20, 1969, and signed cards for both the Painters and the Carpenters. He passed out six or-seven-cards at the 17th Street plant and gage one to sewing room supervisor Pearl Meyers. After work,one day, he also gave a card to his own supervisor, Ralph Dennis. Dennis took the card and said he didn't know that that was going on. On April 20, 1969, Dennis approached Cooper and told him that he (Cooper) was going to be laid-off. Cooper asked for a reason and questioned whether it was his work, to which Dennis replied that it was ,not his work and that his work was good. Cooper then said, "Well, is it because of the Union?" and Dennis hunched his shoulders and replied, "Well, I guess that's it." 5 Later that same day, Cooper asked, Winkler the reason for the discharge. Winkler replied that they had to start cutting. Cooper asked why he was being laid off when there had been a recent hire of an employee named Higgins and Winkler replied that Higgins had experience as a foreman in the plant before. Cooper said that he, too, could do the duties of a foreman, and Winkler replied that he had to start cutting somewhere. Winkler testified that Cooper was discharged because work on cloth caskets was being eliminated and Cooper spent 90 percent of his time gluing caskets, for cloth covers and trimming the, cloth-covered caskets. He also averred that while West Coast was gradually,reducing the cloth covering work, he gave Cooper other tasks, to do; that he asked Cooper whether. Cooper wanted to go to the other plant, to which Cooper answered that he wasn't sure because he didn't like the foreman there;-and that later the foreman at the Washington Street plant told him that he didn't want Cooper because Cooper didn't attend to the job. Though as is more fully set forth below, there was a substantial change in the nature of the 17th Street plant's operation, I do not credit Winkler's testimony'with regard to the offer of transfer to Cooper or - the -testimony concerning Cooper's attending to the job. Cooper had been an employee for some 12-1/2 years, and, according to his own supervisor, Dennis, he was a good worker. The Respondent's answer and basic defense throughout the trial was , that the employees named as discriminatees lost their jobs because of a reorganization of West Coast's operation that resulted in the elimination of jobs and less employe being needed. Winkler's attempt in his testimony to show that Cooper might have been transferred to the Washington Street plant but for his own poor work appears to be a shift in position which sheds' some doubt on Respondent's defense generally. It is noted that this was, not the onlYsuch shift. In a statement of position to Region 21 of the Board dated July 27, 1969, Selvin wrote "No employees at the 17th Street plant have been terminated by the Company. The Company is merely phasing out the operation and not replacing those who quit voluntarily." On October 30,1970, Cooper visited the 17th Street plant 4 The complaint alleges, the answer admits, and I find that Dennis was did not take the stand, and Cooper's testimony with regard to his a supervisor within the meaning of Section 2(11) of the Act. conversation with Dennis was both believable and uncontradicied. 5 These findings are based on the credited testimony of Cooper. Dennis 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and saw -employees doing the same work that he had been ding before.hjs discharge. 4, The discharge of Ramirez Rodoifo Ramirez was an employee of West Coast from January 10, 1962 until June 23, 1969. Listed on West Coast's records as a spray man, he was a finisher who spent about a day and a half a week repairing metal caskets and the balance of the week working on wood caskets . Winkler testified that Ramirez was an assistant foreman who had never been downgraded from that position. Ramirez contradicted Winkler's testimony and averred that at one time he had been assistant foreman but that some 2 or 3 years prior to his discharge, Winkler stopped giving him a bonus check and told him that he had no more responsibilities. West Coast's records listed Ramirez as a rank-and-file employee and Ramirez voted without chal- lenge at the Board-conducted election. I credit Ramirez and find that he was an employee within the meaning of the Act at the time of his discharge. Ramirez worked at the 17th Street plant under the immediate supervision of, Gene Shelton s Ramirez was at the union meeting on March 20, 1969, and signed cards for both the Painters and the Carpenters. In addition, he passed out union authorization cards at the 17th Street plant on two occasions. On about May 15, 1969, he had a conversation with Winkler in Shelton's presence. Winkler said that Don [last name unknown], an employee of another casket company who had been making deliveries of metal shells to the 17th Street plant, had accused Ramirez of threatening him to keep him from making deliveries. Ramirez denied that he had made any threats. Winkler told: him that if he threatened anyone, he would be discharged. Winkler then asked Ramirez who paid his wages. Ramirez replied that the Company did and that he worked from 7:30 in the morning until 4 o'clock. Winkler replied, "Well, if you want to be a union organizer, why don't youilet those bums payyour- wages?" 7 At the Board-conducted election on June 13, 1969, Ramirez and Salvador Duenas were the union, observers. Ten days later on June 23, 1969, Ramirez was discharged. On that day, Ramirez asked, Foreman Shelton why he was discharged and Shelton replied that they were cutting dowzi. The employees went out on strike on September 15, 1969. Ramirez participated in the picketing. On one occasion while Ramirez and employee Aurelio Mena were on the picket, line, Winkler passed by the 17th., Street plant and said, "What are you boys doing out here? Why don't you go in to work? The doors are open." Ramirez answered that they were fired and Winkler replied, "Well, there was a reason for it " In another conversation on, the picket line, Winkler asked the pickets to come in where it was warm and comfortable 8 Ramirez and Aurelio Mena, while on the a The complaint alleges, the answer Admits, and I find that Shelton was A supervisor within the meaning of Section 2(11) of the Act., 7 Winkler testified with regard to the Don [last name unknown ] matter but did not mention his remark about the Union paying Ramirez' wages. These findings are based on the credited testimony of Ramirez. a T'hese findings are based on the credited testimony of Ramirez. Winkler acknowledged that he asked pickets to come in where it was warm, but denied he asked them to come back to work . Ramirez credible picket line, also spoke to Supervisor Shelton. Ramirez asked Shelton how it was going and Shelton.replied that it was "lousy as, ever and worse,",and that there was too muck work. Ramirez said, "If there was so much work, why were we laid off," and Shelton replied, "Well, you know it, .I know it, we all know it, but proving it try to prove it." 9 Winkler testified that Ramirez was discharged solely because the gradual phaseout that West Coast was undertaking eliminatedthe need fprhis services. 5. The discharge of Aurelio Mena Mena was an employee of West Coast from'March 26, 1951, until July 2,1969. Listed on the"Company records as a polisher, he was a spray painter who worked ' or[ metal and wood caskets at the 17th Street plant. Mena attended the 'March 20, 1969, meeting and signed cards for both the Carpenters and the Painters. =Shortly after June ' 23, 1969, he met Ramirez on the street, and Ramirez asked him to tell the other workers that there was going to be a union meeting on the following Thursday.. lie told the other workers and went to the meeting. Some 4 or-5 days later, on July 2, 1969, he was discharged.'On that day, his supervisor, Gene Shelton, told him-that he was sorry but there was nothing` he could do. The following day, Mena spoke to Shelton again and asked him why he was being laid off. When Shelton said that the place was going to be moved and changed, and there would be things cut-out, Mena' said, "Well, probably because my union activity.." Shelton replied, "I don't know. Probably." to As noted above, when Shelton was talking to Ramirez and Mena on the picket line, Ramirez asked why they were laid off, as there was a lot of work and Shelton -replied, "Well, you know it, I know it, we'ill know it, put proving it-try to prove it." On June 11, 1970, Mena was rehired by West' Coast for the same job as spray painter. 6. West Coast's defense to the discharge allegations West Coast was both a jobber and manufacturer of metal and wooden caskets which it sold primarily to funeral directors. Some ' of the caskets were purchased complete from other manufacturers. In addition,, West Coast purchased metal casket shells and did the necessary work to complete them. Wooden caskets were manufactured from scratch and were either polished or covered with cloth. The steps in production were as follows': metal shells would be purchased or wooden shells built, finishers would finish the outside of the shells by sanding; painting, polishing, lacquering or whatever else was appropriate, the interior work such as the installation of the pillows and satin o'the inside of the casket would be done", and finally the hardware would be attached to the outside. Some of these testimony was corroborated in substantial part by Aurelio Mena, who was also present on the picket line. It These findings are based on the credited and uncontradicted testimony'' of Ramirez. Shelton ' did not take the stand. Though Mena's testimony was less complete than that of Ramirez; the two witnesses did in substance corroborate each other. 10 These findings are based on the uncontradicted Wand 'credible testimony of Mena. WEST COAST CASKET CO., INC. 629 functions were performed at both the Washington Street and 17th Street plants., The 17th Street plant was used for finishing metal caskets, polishing wooden caskets, and cloth work. -In 'the beginning of 1969, West Coast employed approximately 92 -employees, some 34 to 40 of whom worked at-,, the 17th Street plant. By the beginning of December 1970, the employee complement had been reduced to approximately 52 , or 54 of whom some 5 or 7 were still working mat the 17th Street plant. In 1964, or 1965, the 17th Street plant was condemned by the building and safety department of the City of Los Angeles and West Coast was given notice that it was to be torn down. The 17th Street plant had been operated by West Coast since about 1940. After receiving the notice, West Coast sold the building to the city but remained in possession as a month-to-month tenant. Because West Coast expected to be given extensions of the time to vacate, it took no definitive action for several years, but in 1968 Winkler began thinking about whether to get new space or to reduce production. Winkler credibly testified that because of, lack of `capital in the tight money market he decided in 1968 not to build new premises but instead to discontinue some of the items betng produced and to develop a source from which' West Coast could buy the types of caskets it would no longer be making. Winkler decided to eliminate polished wood caskets and to move the cloth covering work from the 17th Street to the Washington Street plant. An'orderly phaseout of the work at the 17th Street building was begun with the intention of using up hardware and parts that were in stock. It had been West Coast's- practice to buy a large number of metal casket shells unpainted, but West Coast began to 'purchase the shells either painted' or the metal caskets completed." By December 1970, 80 percent of the metal 'caskets were painted when 'purchased. In the past, almost all the shells were unpainted. In addition, West Coast found sources of supply to purchase- more completed, caskets. These suppliers were outside manufacturers in which West Coast did not have any investment. The end result was that while West Coast had produced about 200 polished wood caskets a month prior to the condemnation of the building, in 1970, only 35 or 40 were produced a month., Even though West Coast's business operation changed, it kept doing business with approximately the same number of customers and the sale of caskets was about the same in the beginning of 1969 and the end of 1970. The difference was that West Coast purchased much more merchandise from the outside. The decision to change the operation was made in the fall of 1968 and West Coast contemplated that it would take 2 years,to, completely get out of the building. In August,1969, West Coast received the final decision that the 17th Street plant had to be vacated by the end of that year. Prior to that time, West Coast had sought another extension. Winkler testified that the phaseout had reached a point where he was ready to start laying off people at the beginning of 1969. The date these layoffs began is important because the union activity did not , begin until, March of that, year. General Counsel placed in evidence company records indicating the dates of termination of employees butthose records only show terminations between April I', and October 31, 1969. In the absence of any conflicting evidence, I credit Winkler's version of the above incidents as set up above. -- The gravamen of West Coast's defense is that all the people named as discriminatees in the amended complaint were discharged because there was no work for them due to the phasing out at the 17th Street plant. Winkler decided who was to be layed off in the phasing out process after consultation with lower level supervision. West, Coast through Winkler further contends that employees were hired back from layoff status when they were needed without regard to union considerations. Two of the alleged discriminatees who were rehired were Raul Betancourt and Aurelio Mena. The General Counsel points to the fact that three of the alleged discriminatees, Raul Betancourt, Leopoldina` Ha- jaistron, and George Saiza, were employed at the Washing- ton Street plant at the time of their discharges,,and argues that West Coast's defense that the discharges were' caused by a phasing out of the 17th Street plant, does not hive substance. This argument loses some of its force because, as has already been noted, some of the job functions were performed in both the 17th Street and Washington Street plants. It is to be expected that any serious disruption of the 17th Street plant would also have had an impact on the Washington Street plant. As the total number of persons employed kept dropping, it,1s understandable that West Coast would look to its entire operation to see where cuts could best be effectuated. The General Counsel also points to the fact that long- term seniority employees were discharged and 'that thereafter nine new employees were hired in the same job classifications as some of the dischargees.12 The business records of West Coast elicited by the General Counsel show new hires between June 1, 1969, and October 31, 1969. During that period, nine employees were hired, including three sanders, three trimmers, a cabinet man, a spray man, and a driver.13 However, only one of these new employees, 11 Winkler's testimony about reduction in work at the 17th Street plant was corroborated by Roy Cooper, who testified during 1969 production of clout-covered caskets and the 17th Street plant was substantially reduced and that shortly, before April 20, 1969, all cloth-covered caskets were discontinued in the 17th Street plant. 12 The dates of hue and discharge, and the job classifications of the alleged discnmtnatees are listed in Appendix C attached hereto. 13 See Appendix C. 14 A twenty-north name, Pilar Guerro, is listed as a trimmer, but Guerro was a supervisor. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jose Acevado, remained as a long-term employee and also he was the only new hire who was , employed prior to September 15, 1969, the date of the strike. There is no indication on the record whether the new employees were put to work in the 17th Street or the Washington Street plant, and there is also no evidence as to the number of strikers or,the need of West Coast to find replacements to continue its operation even at the phased down level. The West Coast records put in evidence by the General Counsel show . terminations between April 1, 1969, and October 31, 1969. Twenty-eight employee terminations are listed during that period.14 The term "termination" as used by West Coast included cessation of employment of an employee for any reason. Sixteen of those employees were terminated on or before July 2, 1969, the last date -of discharge of the employees named in the complaint. Though the 12 employees named in the complaint all signed union authorization cards, there is no evidence in the record whether all or any of these other employees who were terminated also signed.15 B. Legal Analysis and Conclusions as to the Discharges 1. Cooper West Coast had a virulent animosity toward the Union and toward people who engaged in union activity. This was established not only by remarks that West Coast's president, Winkler, made to employee Ramirez, to the effect that it was West Coast who paid his wages and that if he wanted to be a union organizer, he should "let those bums pay your wages," but by Winkler's statement to Foreman Guerro that employee Duenas was engaging in union activities and that "I think we have to let him go." Guerro protected Duenas by telling Winkler that Winkler would have to fire him also if Duenas was discharged, and' Duenas is not alleged in the complaint as a discriminatee. However, the incident indicates the depth of Winkler's animosity toward the Union. Cooper was active on behalf of the Union. He attended a meeting on March 20, 1969, and signed cards for both unions. In addition he passed out six or seven authorization cards at the 17th Street plant. West Coast had knowledge that Cooper was soliciting for the Union because he gave an authorization card to Sewing Room Supervisor Meyers and to his own supervisor, Ralph Dennis.'6 On April 20, 1969, less than a month after West Coast learned that he had been handing out union authorization cards, Cooper was discharged without prior notice after 12-1/2 years of employment. Cooper was, according to his own supervisor, Dennis, a good worker. On the day of his discharge, Cooper asked Dennis whether the discharge was because of -the Union and Dennis hunched his shoulders and replied, "Well, I guess that's it." From the context in which that 15 As noted, it was stipulated that some employees other than those listed in the complaint did sign union authorization cards. 16 The knowledge of a supervisor as to the union activities of an remark was made, I am convinced, that the word- !' guess" indicated a rather sheepish and reluctant-admission rather than any real doubt as to the reason for the discharge. It is noted that Winkler admitted that he conferred: with the supervisors before going through with, the, `discharges. Dennis' statement to Cooper was an acknowledgement that Cooper was being let go because of the Union. - As indicated above, West Coast harbored a virulent animosity against the Union and the union activity of its employees; Cooper was openly active on ^ behalf' of the Union; West Coast had knowledge of` Cooper's,' union activities; less than a month after such knowledge Cooper was discharged without prior notice after 12-1/2 years employment; and the statements of Supervisor- Dennis to Cooper established a causal connection between the union activities and the discharge. In the face of this forceful prima facie case of the General Counsel, the Respondent's defense is unconvincing. Though some of Cooper's work was the gluing of wooden caskets that were to be' cloth finished, he was, trimmer and he also worked on handles and upholsteries for the caskets and on interior work such as the putting in of the beds andpanels. Though the cloth- covered casket work was being phased out of ' the ",,17th Street plant, Cooper was not. limited to that work,and, according to Winkler's, own testimony, there was work available that Cooper could have done in the Washington Street plant. West Coast's defense with regard to Cooper's discharge originally was that there were no discharges but that voluntary quits were not being replaced because of the phasing out of the 17th Street plant. This defense shifted to an argument that the dischargees were let,go because-of a lack of work due to the phaseout. The discredited defense finally, relied on by Winkler in his testimony was, that Cooper was solicited to work at the Washington Street plant but, because of, Cooper's hesitancy, or -the poor opinion of Cooper by a foreman at the Washington Street plant, Cooper was not transferred. I find that a preponderance of the evidence establishes that Cooper was discharged because of his activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. 2. 'Ramirez The facts indicating West Coast's hostility toward the Union discussed in connection with the discharge of Cooper,,must also be considered as a background against which the other, discharges must be viewed. Ramirez attended the March 20, 1969,' meeting, signed-cards on behalf of the Union, and distributed union authorization employee can be, and under the facts of this case is, imputed to the Company. Texas Aluminum Co. v. N.L.RB., 435 F.2d 917 (C.A. 5, December 16, 1970), enforcing 181 NLRB No. 15. WEST COAST CASKET CO., INC. 631 cards at the 17th Street plant. By May 15, 1969, West Coast knew , that he was an active union supporter. On that day, Winkler spoke to him about some of his prounion activities and told him that if he wanted to be a union organizer, he should "let those bums" pay his wages . Ramirez continued with his visible union activity by being a union observer at the June 13,` 1969, Board-conducted election. Ten days later, he was discharged by West Coast without notice after 7-1/2 years employment. Sometime after the discharge, Ramirez and Aurelio Mena, who were on the-picket line, spoke to Supervisor Shelton, who complained that there was. too much swork to do. When Ramirez asked why they were laid - off if there was so much work , Shelton replied, "Well, you know it, I know it , we all know it, but proving it-try to prove it." Under the circumstances in which Shelton made that remark, it could mean nothing other than thatRamirez and Mena were laid off because of their union activity. Such a remark was completely inconsistent with the assertion made by West Coast that those discharges were based solely on lawful , economic reasons. As- already indicated, West Coast's animosity toward the Union was extreme ; -Ramirez was active on behalf of the Union; West Coast had knowledge of that activity; Ramirez was discharged a little over a month after West Coast indicated that it had knowledge of that activity and only 10 days- after ,Ramirez manifested his continued support of the Union by appearing as a union observer at the election. In addition, Supervisor Shelton's remarks to Ramirez and Mena on the picket line were an acknowledge- ment that their discharges were causally connected to their union activity. West Coast's defense is that Ramirez was discharged because the phaseout and resulting reduction in force at the 17th Street plant eliminated the need for his services. However, Ramirez was an employee of 7-1/2' years standing and he worked on both wooden and metal caskets as a finisher. West Coast did not establish that there was no need for his services at the Washington Street plant where at least some of the 17th Street plant work was transferred. Even assuming, however, that one of the reasons Ramirez was selected to be discharged was the reduction in force incident to the phaseout of the 17th Street plant, I am convinced that a substantial motivating reason for his being selected was also- his protected union activities. Where, as here, a substantial motivating reason for discharge is unlawful, the fact that other reasons for the discharge may be present does not prevent the discharge from being a violation of the Act. As the Court said in NLRB. v. Whitin Machine Works, 204 F.2d 883 (C.A. 1,, 1953) In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist 14 I find that Ramirez was discharged because of his union activity in violation of Section 8(a)(3) and (1) of the Act. 3. Mena Aurelio Mena attended the March 20, 1969, meeting and signed cards for the Union. In addition, near the end of June 1969, he told other employees about a meeting which the Union was going to hold and he attended that meeting. About 4 or 5 days later, on July 2,1969, he was discharged without prior notice after being an employee for some 18 years. The day following the discharge, when Mena asked Shelton whether the discharge was motivated by his union activity, Shelton replied, `-`I 'don't know. Probably." As already mentioned in the discussion of Ramirez' discharge, Supervisor Shelton explained to Mena and Ramirez why they were laid off when there was a lot of work by saying, "Well, you know it, I know it, we'all know it, but proving it try to prove it " Shelton's remark to Mena to the effect that he didn't know but that probably the discharge was motivated by the union activity must be considered in the light of Shelton's subsequent remark to Mena and Ramirez that they all knew the real reason for the discharge but "try to prove it." In the total context in which these two statements were made, I am convinced that they both constituted admis- sions by Shelton that Mena, was discharged for his union activity. No other reasonable inference can be drawn from Shelton's remarks. Though there is no evidence that West Coast had knowledge of Mena's union activities other than Shelton's remarks to Mena the day after the discharge, those admissions do establish that somehow or other West Coast did obtain such knowledge. West Coast was extremely hostile toward the Union; Mena engaged in union activities; as indicated by Shelton's postdischarge remarks to Mena, West Coast knew of those union activities; and 4 or 5 days after Mena notified employees about a union meeting he was discharged without notice after 18 years of employment. In addition, Supervisor Shelton's remarks to Mena constituted an acknowledgement that Mena's discharge was causally connected to his union activities. For the reasons set forth in connection with the discharge of Ramirez, I find that even if one of the reasons for Mena's discharge was the reduction in force required by the phasing out of the 17th Street plant, a substantial motivating factor in picking Mena for that discharge was Mena's protected union activities.'8 I find that Mena was discharged because of his union activity in violation of Section 8(a)(3) and (1) of the Act. 4. The other alleged discriminatees With regard to Cooper, Ramirez, and Mena, the evidence establishes gross antiunion hostility on the part of West 17 See also Sutherland Lumber Company, Inc., 176 NLRB No. 143; N.L.R.B. v. Lexington Chair Company, 361 F.2d 283 (C.A. 4, 1966); N.L.Jt B. v. Symons Manufacturing Ca, 328 F.2d 835 (C.A. 7, 1964). as West Coast's defense that there was no work available for Mena is somewhat put in doubt by the fact that Mena was rehired on June 11, 1970, for the same job as spray painter that he had formerly done. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coast; activities on behalf, of the Union by those -three individuals that went well beyond the attending of -meetings and signing of cards; knowledge by West Coast of the union activities of those employees; and remarks made by supervisors that established a causal connection between the protected activities and the discharges. The situation with regard to the other nine discriminatees named in the complaint, herein called the other nine, was quite different. All 12 of the alleged discriminatees were -similar in that all must be, considered in the light of the same union animus demonstrated by, West Coast; each of them did attend the March 20,. 1969,, meeting and signed upon cards; and each was fired sometime between April 16 and July 2, 1969. However, only on behalf of Cooper, Ramirez, and Mena was there credible evidence on which a finding could be based .that West Coast had knowledge of the union activity and that there was a causal connection between the union activity and the discharges.19 The Board has held "Unquestionably, knowledge by the Respondents of the dischargees' union activity is a prerequisite to a finding that the discharges were made for that reason, -and the General Counsel has the burden of proving this knowledge beyond mere suspicion or surmise. Mook Weiss Meat"Packing Company, 160 NLRB 546. See also Kayser-Roth Hosiery--Co., Inc,,166 NLRB 372. There is no direct 'evidence in the record to establish that West Coast had knowledge that the other nine had engaged in union activities of any, kind. The question presented is whether there is any evidence upon which an inference of knowledge can be based. Knowledge cannot be inferred simply 'from the fact that' West Coastwas a small plant with between -92 and 52 employees. Though the size of a plant is considered in determining whether it would have been likely that an employer would know who was active in the union, that is only one of'the factors. Wiese Plow Welding Co., Inc., 123 NLRB 616. In Hadley Manufacturing Corporation, 108 NLRB 1641, 1650, the Board said "However, the mere fact that Respondent's plant is of a small size, does not permit a finding that Respondent had knowledge of the union activities of specific employees, absent supporting, evidence that the union activities were carried on in such a manner, or at times that in the normal course of events, Respondent must have noticed them." See also Ralston Purina Company, 166 NLRB 566;, M S. Plastics of Ohio, 181 NLRB No. 104. Thus in Saxon Paint Stores, Inc., 160 NLRB 1757, the Board refused to find that an employer in a store with, 70 employees had knowledge of the union activities of its employees where there was no union activity at the store "which could be'inferred to have come to the attention of Respondent ... and the activity away from the store area was not shown to be known by Respondent ... " None of the circumstances in this case make it likely that West Coast had observed the union activity of the other nine. There was no evidence of any such activity at or near the West Coast plants, nor was there any evidence of activity other than that which occurred at the union meeting hall on March 20, 1969, and the signing of cards. None of the credited evidence indicated statements or actions by supervisors from which an inference could be drawn that the union activities of the other nine ,were known to West Coast. The evidence does not establish-that the phaseout of the 17th Streetwplant was motivated by the union activity. Only 12 discriminatees are alleged ,in the complaint, while 28 employees are listed as,, having been terminated between April 1 and October 31, 1969. I have found that Cooper, Ramirez, and Mena were discharged in violation of the -Act, but as to the=other nine discriminatees alleged in the complaint, I cannot find=any basis in'the record-for distinguishing them-from the-many other employees who were terminated due, to the,reduction in force stemming from the phaseout of, the 17th Street plant. All of those nine did attend the union meeting and signed union authorization cards, but there is no evidence as to how many other employees also-engaged in, similar union conduct. If it could be shown that a ,disproportionate number, of union adherents were discharged, it could,be seriously argued that a basis existed for inferring-that the discharges were causally connected to the union-activity. Though it was agreed that the 12 alleged discriminatees were not the only ones who signed union authorization cards, it cannot be ascertained from the record- whether almost all the employees signed for the Union or whether only a few other than the 12 alleged discriminatees did. It is reasonable to assume that a substantial , number of employees were union adherents-`as a majority of them voted for the Union at the election on , June -13, 1969. In short, I can find no bases for imputing-knowledge, of the union activities of the other nine to West Coast-nor can' I find facts upon which. to base a conclusion that the union activity of the other nine was causally connected to their discharges. I find that the General Counsel has not established by a preponderance of the evidence`tliat Marco Aguirre, Miguel Betancourt, Jesus Cisheroz, Miguel 'Vilegas, , Raul Betan- court, George Saiza, Regino'Encisco, Leopoldina' Hajais- tron, or Pedro Guarola, were discharged in` violation of Section 8(a)(3) or (1) of the Act. C. The Refusal To Bargain 1. The July 2 and 10 meetings The election was held on June 13 and the Union was certified as the bargaining agent of West Coast employees on June 24, 1969. On June 25, 1969, Selvin received a written request to bargain from the Union. Selvin was West Coast's agent for the purpose of engaging in-, collective bargaining with the Unions.20 In his testimony'West Coast President Winkler acknowledged that when he hired her he told her to do whatever was required and gave her full bargaining authority. Tony Bogdanowicz, the business manager and recording secretary , of the Carpenters, followed up the demand letter by calling Selvin on the telephone and arranging for a meeting on July 2, 1969, at Selvin's office.' Bogdanowicz had requested that the meeting be held at the Carpenter's office but Selvin told him that she would not meet at the union hall. In her 18 It is also noted that only with those three was there evidence of union and the signing of cards. - activity that went beyond the attendance at the March 20, 1969, meeting 20 This is alleged in the complaint and admitted in the answer. WEST COAST CASKET CO., INC. 633 testimony, she acknowledged that she never meets at a unionhall. The meeting on July 2, 1969, was held at Selvin's office and was attended by Selvin, Bogdanowicz, George Warren, business representative of the Painters , and Peter J. Ceremello, general representative of the Painters Interna- tional. A verbatim record of the meeting was taken by a reporter hired by Selvin. She acknowledged that she was labor relations consultant for a large number of employers, including West Coast,, and that in the course of her negotiations she invariably makes'arrangements to have a reporter present. Selvin's office and her living quarters are both in the same apartment. The apartment consists of six rooms of which two were used as her office. These two had each been subdivided so that there-were four office rooms. All of the bargaining took place in one of these office rooms and when the Union desired to hold a caucus, the living room was used. The office in which bargaining was conducted measured approximately 10 by 14 feet and was arranged in such a manner ` that iif one person wanted to leave the room another one - sitting near the door would sometimes have to get up. The union negotiators had no' place to puttheir papers other than the floor. Particularly at later meetings when a mediator was present; the meeting room was very crowded. At this and other meetings, union representatives objected to meeting at Selvin's apartment office but •Selvin repeatedly, insisted that was the only place she would meet.21 Near the beginning of the meeting, Selvin gave Bogdanowicz the, list of the names, classifica- tions, and present rates of pay of the ;employees in the bargaining unit which the Union had requested in their letter of June 25, 1969, Bogdanowicz-replied that he was going into the plant the following week to review the classifications and Selvin replied, that he was not going to be allowed into the plant. She said any information he wanted would have to come from her because West Coast was, paying hez to, be the contact between it and the Union and .that if he insisted on going in to the West Coast plant, the police would be called to remove him. Selvin added that she was the Employer's sole representative, and that "I don't take their cases unless I have that authority. The reason I don't is because employers don't know anything about this problem." She then added that she was the only person the Union would ever see. At another point in the meeting; Selvin told-Bogdanowicz that the union represent- atives were not going to be allowed into the plant until they had a contract and even then they would negotiate `when and wherein the plant the union representatives could go. There was some discussion - about the change in operations in West Coast's plants and Selvin offered to make certain changes on the, classification list Bogdanow- 21-Bogdanowicz credibly testified that he told Selvin on a number of occasions that the apartment was not acceptable for negotiations and that he asked her` to meet at other sites but that she always replied that if they couldn't meet at her apartment, there would be no meeting. Selvin acknowledged that she told the Union that she would not meet at the union hall but she denied saying that '-she would not meet at any place except her own office. I do not credit the denial. According to the transcript of the July 2 meeting, Warren asked Selvin,"Mrs. Selvin, I ask for my own clarification, so that I understand you, what you are stating is you do all your negotiating at this address and no place else? This is your statement to us at this time? ' To which Selvin replied, "Yes. This is my statement." The transcript of a meeting on July 10 , 1969, shows that icz then gave Selvin an outline of the Union's proposals. The meeting was adjourned until 2 o'clock July 10, 1%9. The July 10, 1969, meeting was also held at Selvin's office. Selvin, Bogdanowicz, and Ceremello were , present. Again, as in all these meetings , a verbatim transcript was taken by a reporter. Bogdanowicz gave Selvin an industry contract as a basis for starting negotiations . They discussed the provisions of that contract in very general terms . Selvin explained that West Coast- was not in favor of compulsory union membership and that she believed such membership to be harmful to an employer in that it deprived him of the labor of people who didn't want to belong to a union. After looking at the union proposals,. Selvin ' objected to the introductory clause which read "Whereas the parties have entered into this agreement in mutual good faith, each proposes to live up to the spirit as well as the letter of this Agreement." She said she didn't like such language. When Bogdanowicz pointed out that it involved'mutual respect, Selvin answered that that was nothing they even had to bargain about because it was not a condition of employ.. ment. Selvin then objected to the opening paragraph of the Union's proposal which read "This: Agreement is a voluntary Agreement ... 'sayinggthat it wasn't a voluntary agreement because the employees required West Coast to bargain when they voted for the - Union. Selvin then objected to the Union's proposed recognition clause which provided for recognition within the jurisdiction of the Los Angeles County District Council, of Carpenters.'She said she would prefer to use her own language. As to Bogdanowicz' proposal for union security, Selvin S counterproposed that membership in the Union would not be a condition of employment For, the Union's proposed retirement plan, Selvin pointed out `that West Coast was already required by law to pay employees' retirement, that is, social security. After, discussing the changeover of West Coast's opera- tion, Selvin said that she needed- time to study the Union's proposals. Bogdanowicz asked for a' meeting the following week, and she replied that she was not available until July 22, and that it would take her that long to see the Company in any event. Bogdanowicz asked for the next meeting to be in his office and she replied that she had good reason for not going away from the office . Selvin said that she would take the proposals totheCompany and give counterpropo- sals at the next meeting. They agreed to meet again at 9 a.m. on July 22, 1969. Bogdanowicz said they had to settle the question of the layoffs and Selvin replied that the, layoffs were caused by the putting together of the two plants. Bogdanowicz said that the reason for the layoffs was the concerted union activity but Selvin denied it. - Bogdanowicz asked for the next meeting to be at his office to which she replied that she had a good reason for not going any place else. The transcript of the meeting on September 2x, 1969, shows that James Flores of the Los Angeles District- Council of Carpenters, who' was present to assist the Carpenters in negotiations, told Selvin that the place for negotiations was not acceptable and suggested the commissioner's office (Federal Mediation and Conciliation Service) as a neutral place. She replied she had a disability and that this wa& ,her office and where she bargained. This same theme was repeated at the October 16, 1969, meeting, where she answered Flores' request to bargain at a different place with the comment, "If you want `to bargain with me you have to make the exception for me...." and then referred to a doctor's certificate. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The events leading to the strike By letter dated September 6, 1969, Selvin confirmed the conversation of the previous day and told Bogdanowicz that she was unable to meet at the time -and place suggested in his letter. The letter then went on to say "In the meantime, I have received another charge against the company, which they have mailed to me for'my attention. I will have to give this my attention prior to any further meetings with you." - The union meeting was held at the Painters Hall on September 10, 1969, with about 30 West Coast employees present. Bogdanowicz gave them a progressreport in which he described what had happened at the first two meetings and his conversations with Selvin. After hearing that Selvin was planning an ,Alaskan vacation, one of the employees suggested that, a strike be called the following morning. Bogdanowicz asked them to hold off until `he had an opportunity to review the situation and possibly consult with Winkler. A strike vote was taken and it was decided that a strike would take place the, following Monday, September 15, 1969, if a negative answer was received from- the Employer. Also on September, 12, 1969, the attorneys for the Carpenters wrote .a letter to Selvin, in which the prior dealings were reviewed- With -reference -to, Selvin's letter of September 6, this'letter, stated that her position that she would not meet until- she gave attention to the unfair labor practice charges filed against West Coast was unacceptable and constituted a refusal to bargain in good faith. In addition, the letter stated,that she- was not bargaining in good faith- by refusing to, meet-"with the Union and, by insisting that all meetings be held in her office. Selvin'was advised that the' employees intended to - protest West Coast's unfair labor practices by taking appropriate action, and that the Union was willing to meet, with her at a mutually convenient time and place on 24h6urs' notice: - ' Also on September 12, Bogdanowicz went to 'the 17th Street plant and spoke to Winkler, telling him that there was a critical situation at the- plant of which he might not have been aware. Bogdanowicz also told him that-there had been no progress during negotiations and thathe should sit down and review the union proposals and set up further meetings to settle the unrestamong the employees. Winkler replied that his counsel' was well'-informed on those procedures and he felt that' she was going in the right direction. When Bogdanowicz pointed out'that she was going on vacation and the people were becoming restless, he replied that he was going to leave it up to his labor relationsconsultant.24 After leaving the plant,,Bogdanowicz tried unsuccessfully to contact Selvin on several occasions . Each time, he-left a message which was not answered. Pursuant to 'the' strike vote on September 10, the employees went out on strike on September 15, 1969. Winkler testified that he never had'a meeting with Bogdanowicz , then he went on to say that Bogdanowicz came into the plant one day and asked him, to discharge -Selvin without -giving any reasons. He averred that Bogdanowicz told'bim, "You do that andthere will be;na problem," but, he didn't know what Bogdanowicz' problem was and he didn't inquire. I do not credit Winkler. At 4:15 p.m. on July 21, 1969, Selvin called Bogdanowicz and canceled the meeting that she had scheduled for 9 a.m. the following morning. She told him that she had to be at a board hearing in Long Beach, California, the following morning. In a pretrial affidavit, Selvin averred that she canceled the meeting because she had to help another client prepare for its election on the following day. He asked her why she hadn't let him know earlier and she replied that he had been late for the first two meetings. Selvin said there was no possible way she could make the meeting the next day because she had to go to Long Beach and because she had several other clients she had to see in the interim before another meeting could be arranged. Selvin also said she was going on an Alaskan vacation for 2 weeks starting July 27, from which she would return on August 10, 1969 . He asked for a meeting with her on August 11, and she replied that she would call when she got back and arrange for another meeting. Bogdanowicz did not receive any can, from Selvin in August, even though he called her- five or six times and left messages with , her answering service 22 , Though she returned from her ,Alaskan vacation on August 14, 1969, Bogdanowicz was unable to contact her W^nntil September 2, 1969. When he finally reached her on the phone on that date, he suggested that when they did meet it should be at a place ,other than her office, and he suggested one of the union halls. She replied that she couldn't meet at any place other ,than her office because of her incapacity to move about. Bogdanowicz told her that the employees Were getting restless about the fact that there wasn't any 'progress and that he wanted,to give 'the employees a report at a union meeting which was scheduled for September 10. She replied that she wasn't concerned about a progress report to the union people and that West Coast was moving along in its business and had plenty of people. Bogdanowicz replied that the people were getting concerned' about the layoffs and what was going to happen: He said that he would send her a letter setting up a meeting.' On September 3, 1969, Bogdanowicz sent Selvinn a letter requesting a meeting at one of the union offices at 9 a.m. on September 9, 1969:" On September 5, 1969,- Selvin called Bogdanowicz and acknowledged his letter . She said -she couldn't ' meet on September '9 because she had clients coming in from New York and she would probably have to go to the East Coast for 3 or 4'weeks. She added that she would notify hini when she was ready for another meeting. He -replied that the employees and the management had to get together to get problems resolved ^ because the employees were getting very upset. Selvin said that she had received unfair labor practice charges from West Coast and she had to -dispose of those prior to thinking of arranging for another meeting. It is noted that the initial charge in the instant case was filed on September 3, 1969. 23 22 In a pretrial affidavit, Selvin averred that she called Warren on August 15, 1969, and left a message for him. In her testimony at the trial, she stated that at some time she tried to call Bogdanowicz . I do not credit her. 23 That charge alleged that West Coast discharged 13 employees in violation of Section 8(axl) and (3) of the Act. 24 These findings are based on credited testimony of Bogdanowicz. WEST COAST CASKET CO., INC. 635 3. The poststrike meetings Commissioner Joseph Vierra, of the Federal Mediation and Conciliation Service, came into the picture after Bogdanowicz called the mediation service and told them the situation. Commissioner Vierra arranged for the scheduling of another meeting at Selvin's office on September 24, i969.' The September 24 meeting was attended by Commissioner Vierra, Selvin, Bogdanowicz, Warren, and Flores, of the Carpenters District Council. Although at the July '10 meeting Selvin had promised to bring counterproposals ' to the next meeting, she had no meaningful counterproposals to offer on, September 24, 1969. Union security was discussed and Selvin said she would not agree to any form of union-security or checkoff ,proposed that membership in the. Union and she counter should not be required as a condition of employment, that the Union would not restrain any employee who elects to, remain outside the Union, and the Company would not restrain an employee who joins the Union. Commissioner Vierra -asked for a point-by-point position of West Coast. Selvin took the following position, she: rejected the preamble, and the grievance procedure; proposed a 3-year rather than, a 1-year, contract; rejected any binding arbitration; proposed a }management prerogative clause to follow the, recognition clause said she would submit a grievance proposal that would tie into a no-strike clause with no arbitration provision; rejected the subcontracting clause with' the statement "we have a right to contract out anything that we want to do under any conditions"; said discharge and discipline were to be covered under her grievance procedure; rejected the union label provision; said she would give a counterproposal on seniority, rejected the proposal that West Coast give the Union a complete list of seniority every 30 days; proposed that such a list be given on request but not more than every 6 months, and that the list have no home Addresses because "We have got people that are answering an ad to come to work through a picket line, and, we are not going to expose those people unduly to the union"; rejected a shift clause proposal; proposed, on the question of insurance that West Coast continue in force the,same or better insurance coverage than it had at that time; rejected the union request for 40 percent increase in wages, and said, she would propose another figure; rejected the Union's retirement fund, stating that West Coast paid the employees', social security; and stated she would make counterproposals on sick,leave. During the entire meeting,,there were only two points of agreement: Selvin agreed to the inclusion of a separability clause which stated that any provision running foul of law was to be supeiceded by 'such law, with the remaining provisions of, the agreement unaffected. She also agreed that West Coast would provide a bulletin board that would be used by the Union for 'posting notices which were approved by the Company. Bogdanowicz proposed another meeting for October 7, 1969, but Selvin declined, citing commitments, and the fact that West Coast was "one of 100 clients that I help." Selvin informed them of a hearing that might last for 3 weeks that '25 These included a proposal relating to grievance procedures which were submitted in error and for which a, substitute was furnished at a later she had to attend in San Bernardino, California, which was to start on October 7. She said she would call the commissioner before October 7 and let him know whether the San Bernardino case was going to settle : When the subject of the employees' getting back to, work was mentioned, she replied that there would not be many,of them going back to work because their jobs had already been filled. Flores said that the place of negotiation was not acceptable and he suggested the commissioner's office as a neutral place, to which Selvin replied that she had a' doctor's certificate that she couldn't go any other place-and that she bargains in her office. Flores pointed out that she had just said she was going to San Bernardino -and -she replied that she was trying to get the location changed to Los Angeles. Flores answered that if she could go to a hearing in Los Angeles, she could also appear at a meeting in the mediator's office. Selvin acknowledged that she did go to the Labor Board on certain occasions . She insisted, however, that the meeting be at her office, The meeting adjourned with Selvin saying that she would get in touch with the commissioner. - The next meeting took place at Selvin's office on October 16, 1969. It was attended by Commissioner Vierra, Selvin, Warren, Bogdanowicz, Flores, and Oscar Lynch, another spokesman for the Union. Bogdanowicz asked for a copy of the transcript of the meetings and Selvin refused. Bogda- nowicz- then objected to having a reporter present and she replied that the reporter took her notes and that if Bogdanowicz wanted to object, he could. Bogdanowicz insisted that the next meeting be held at a neutral place, and she replied that she would give him a doctor's statement saying that it was best for her to bargain atther office. When Bogdanowicz spoke about "getting the show on the road" because the employees were frustrated by their experiences, Selvin replied that West Coast did not need one single employee and had a full staff. After a dis'cussion,relating to some of the jobs that had been phased out, Flores said they wanted to go through the plant and see_ the operation so that they could intelligently, negotiate. Selvin replied that he was not going to get into the plant until they had a contract. Selvin said that she had counterproposals but that her duplicating machine was not working so that she could not distribute them at that time. There was a 2-hour delay while Selvin tried to sort out and get her counterproposals duplicated. Finally, Selvin_gave' the union representatives copies of her counterproposals.ui Some of the counterpro- posals were: a broad management rights clause which provided in part that shop rules were to be made by the Company and that the Company had the unlimited right to contract out bargaining unit work; membership in the Union would not be required; representatives of the Union could come into the plant during working hours only when necessary to investigate a grievance subject to step 3 of the grievance procedure and only where and when the Company 'designated; a 3-year, contract; and a health and welfare provision whereby the Company agreed to carry. insurance equal to or better than, the protection afforded on -the date the agreement was executed. In addition, date. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selvin's counterproposals included a "settlement of griev- ances" clause which interrelated with ^a no-strike clause. The first three steps of this procedure required discussions at various levels. At each step, strict time limitations were to be observed, and, if these limitations were not met, the grievance was to 'receive no further consideration. In,the fourth step, the Union could, subject to other time limits, give notice to the Company that the no-strike clause in the contract was void and thereafter the Union could strike, provided that no strike could be called prior to the lapse of 10 days and not longer than 20 days from the date of mailing of such notice. The grievance procedure contained no'provision for' arbitration. Selvin's counterproposals did not include one relating to `wage'offer. She stated that she was not prepared to give a wage proposal at that time because a review of wages had not yet been made. She said that before such aproposal could -be' given,, West Coast would want to review the individual employees. When Bogdanowicz said that they had an obligation to finish up the contract and get the people back to work,' she^answered that she didn't want them back to work and that they had the jobs all filled.,In Selvin's words, West Coast " ... has better employees and more cooperative employees. He had some very uncoopera- tive employees- and they went- out on strike and their jobs are filled.' On` two-occasions during the meeting, Selvin referred to West Coast's wage policy. The first time she said that the Company had the policy over many years of reviewing the wages of employees in the spring and fall of each year, and that since it was ' a practice of long standing, theCompany had'to -make the review which she said they would do in the month of-October. The second time Selvin mentioned West Coast's wage proposal, she went into, more detail. 'She repeated that the company policy was to review wages twice a year and said that West Coast wished to make a review of the wages at that time but she told the Company that it could not make any increase until she had, submitted it to the Union. She added that they didn't always give everyone an increase, just those who were valuable to West Coast. She said,,that she thought West Coast was required to offer a wage increase at that time because of the past history, but that she-didn't want to do ituntil it had been discussed with the Union.' She ' then referred to West Coast's practice of reviewing ,the wages and giving raises twice a year and said "He has reviewed them as a matter of practice and where he has done it as a past practice for many years he is allowed to do it even though you sayhe,can't do it . But I told him I wanted t'o `inform you first and I ` thought it was better to have your cooperation than just say you` were going to do-it. If you say no, we are going to do it anyway." Sometime after the close of the October '16, 1969, meeting, Selvin furnished the Union, with a wage proposal which was dated October 17, 1969. he proposal keyed all wages to the individual employee with no basic wage based on classification. in effect, -each of the 56 persons listed on the wage proposal were given ' a "red circle" rate. No increase was proposed for nine of the listed employees-and most of `the others were given a 10- or 15-cent-an-hour increase. Other meetings were held on November 4 and 13, 1969, but there was no progress. The Union made no further requests for meetings because , in its view, it would have been an exercise in futility to continue., D. Analysis and Conclusion, as to the Refusal To Bargain Section 8(d) of the. Act states that, the duty to bargain requires an employer to "meet at reasonable times `and confer in good faithwith respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder ... but such obligation does not compel either party to agree to a proposal or require the making of a concession . . . ." In determining whether an employer' has bargained in, good faith, it is necessary to scrutinize the totality of its conduct. From the context of an employer's total conduct, it mustbe decided whether the employer is lawfully'engaging in hard', bargaining to achieve`a contract that it considers desirable or is unlawfully-endeavoring to frustrate the'possibility of arriving at any agreement. Sunbeam" Plastics' Corporation, 144 NLRB 1010._ The conduct of West Coast, set forth above, shows Ia consistent pattern. Selvin's actions were of such a nature as to polarize any hostilities that existed between West Coast and the Union, to force thebargaininginto 'a rigid exchange of words from which a meeting of the minds would be extremely difficult, and in general to force a wedge between West Coast and the Union that would prevent=any hope for an areement. Her game plan had a- variety of'plays. She began- by isolating the union representatives from any, contact, with the plant. She was the only person the Union would ever see. There could be no contact with, the operating manager in the plant who knew the workings of the business. She, threatened to, call the police-if the union representatives attempted to come in to the plant. The union representatives had to accept' her statements with regard to such matters as job classifications' with no opportunity, to verify her assertions with"on-site inspection of the plant. This isolation" was enhanced and, the 11union representatives were put on a psychological defensive by her adamant refusal to meet, at any place other than her "territory," that' is her office-apartment which was; badly suited for negotiations because of its lack of space. The contention that the office was- the only place where she could bargain because of` her health cannot be ; sef iously considered in the light of her admitted mobility with regard to other work she carried out at about the same time. The rigidity of the meetings was further enhanced'by Selvin's insistence on"the presence of a reporte'r` to take a verbatim' transcript. Not only did the presence of such a reporter 'tend to inhibit the' free exchange of views that its customarily associated, with `good-faith bargaining but it, indicated that Selvin was looking toward future litigation; where such,,a transcript"would be useful rather than an agreement ,where such a transcript would have little value. With such a tone to negotiations,it is difficult to reach,a meeting of-„the minds. Selvin also managed to keep the negotiations off balance by her actions in regard to scheduling meetings and her insistence on unreasonable delays:,^A-t the ,July 10, 1969, meeting she refused to agree to meet with the Union the WEST COAST-CASKET CO., INC. 637, following week and arranged for a July 22 meeting . Though that July 22 meeting was scheduled to begin at 9 o'clock in the morning, she did not notify the Union that she would not attend until 4:I5 p.m. the day before. Whether, as she claimed in her testimony, she had to attend a Board hearing the following- morning; or as she claimed in her pretrial affidavit that she had to help a client prepare for an election; no valid reason appears why she could not have given the Union more notice that she-was unavailable on July 22. The implication is clear that she waited until the last minute to notify the Union, simply to keep the Union off balance. Though she canceled that meeting, she scheduled no new ones and she disregarded her agreement to call the Union when she returned from her Alaskan vacation. Throughout the latter part of August, she kept ignoring the messages left for her by the Union and when the Union finally reached her on September 2, 1969, no new meeting was scheduled. In her conversation with the Union on September -, 5, after she received the letter from Bogdanowicz,asking for a meeting on September 9, she said that she had to attend to affairs on the east coast for 3 or 4 weeks and told him that she would call him about scheduling a meeting. Selvin even tied in her refusal to sit down and bargain with the Union with the filing of the unfair labor charge in -this case by saying that she had to dispose of the charge before thinking of arranging for another meeting. It was not until after the strike and after the Federal mediator -entered the picture that Selvin agreed to a new meeting. Selvin's conduct with regard to the scheduling of meetings can be explained only in terms of an attempt to disrupt negotiations. Selvin's actions at the negotiating sessions were such as to demonstrate a complete absence of a desire to reach agreement with the Union. At, the July 10, 1969, meeting, she went out of her way to find frivolous objections to certain union proposals. Thus she objected to an introduc- tory contract clause saying that "Whereas the parties have entered into, this, agreement in mutual good faith, each proposes to live up to the spirit as well as the letter of this Agreement." She objected to the inclusion of language that indicated the parties had mutual respect for each other, arguing that such matters were not conditions of employ- ment that she had to bargain on. She objected to the statement that "This Agreement is the voluntary Agree- ment" because West Coast was required to bargain with the Union. On apoint-for-point basis she rejected substantially all of the Union's proposals (except for the separability and bulletin board clauses mentioned ,above). Her counterpro- posals-in turn evidenced a hard line which, when viewed in the context of her other behavior., indicated a desire to push the Union to the wall - and avoid an agreement. The counterproposals contained a broad management rights clause which would give West Coast sole discretion with regard to the formulation of shop rules and which would give- the Company an,unlimited right to reduce the work force , through contracting out of unit work. Her proposals provided far- an open shop with extremely limited visitation privileges , for union representatives in the plant. Any improvements in the health and welfare benefits which were in existence were to be,left completely to the discretion of West Coast. There was to be a no-strike clause but no arbitration provision as a quid pro quo. The grievance procedure, which would under certain circumstances allow the Union to escape from the no-strike clause, amounted to little more than giving the parties some opportunities to converse and the setting up of a series `of procedural stumbling blocks which were to be conditions precedent to the Union's escape from the no-strike clause. Selvin's wage counterproposal even more clearly demon- strated West Coast's intention to keep unilateral control over matters that should have been the subject of collective bargaining. Selvin said that West Coast was going to review the wages of the employees and give certain raises, as it had done twice a year in the past. She told the Union that West Coast was going to continue its wage practices as it had in the past even if the Union said it couldn't, that she was informing them because she wanted their cooperation, but that, in her words, "If you say no, we are,going to do it anyway." This constituted a direct admission that West Coast had no' intention of bargaining with the Union on the mandatory subject of wages and is in itself a refusal to bargain by West Coast in violation of Section 8(a)(5) of the Act. An employer can unilaterally determine wage increases during an organizational campaign as long as the granting or denial of wage benefits is not prompted by the Union's presence. The May Department,Stores Company d/b/a Famous-Bar Company, 174 NLRB No. 109. In determining whether the benefits were or were not prompted by the Union's presence, the question of the Company's past practices is certainly relevant. However, once the bargaining duty is established, unilateral determi- nations as to wages are no longer permissible except in the case of the impasse. There was no question of impasse here. Selvin's initial counterproposal as to wages was given in a context under which it was clear that West Coast was going to take unilateral action as to wages whether or not the Union agreed. Cf. Moore of Bedford, Inc., 187 NLRB No. 87. To meet its duty to bargain in good faith, West Coast was obligated to negotiate with the Union at reasonable times and places. With regard to Selvin's refusal to meet with the Union at any place other than her office-apartment, I find that her actions were part of her campaign to prevent meaningful bargaining and were in violation of Section 8(a)(5) and (1) of the Act. In KFXM Broadcasting Company, 183 NLRB No. 121, the Board, under facts very similar to the ones present here, adopted the Trial Examiner's conclusion that the company violated, Section 8(a)(5) of the Act where, its negotiator (who in that case, as well as in the present one, was Selvin) insisted on bargaining only in her office-apartment. With regard to the requirement that an employer meet at reasonable times with the union, the Board held in Insulating Fabricators, Inc., 144 NLRB 1325, enfd. 338 F.2d 1002 (C.A. 4,1964): The record here quite clearly supports a finding that the Respondent, in arranging meetings with the Union, failed to display the degree of diligence that proper performance of its bargaining obligations required. This is so whether or not the delays were inspired by a deliberate scheme to engage in dilatory tactics. One may sympathize with the problems of the Respondent's 638 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD negotiator in fitting the negotiating meetings into the schedule of his busy ,law practice, but this provides the Respondent -with , no legal , excuse for the consequent inordinately long delays tending to impair employee statutory rights. Labor relations are urgent matters too. If the other activities of Respondent's attorney made it impossible for him . to devote adequate time to reasonably prompt .and continuous negotiations, it was the Respondent's obligation to ,furnish a representative who could. The duty to-bargain in good faith includes the duty to be available for negotiations at. reasonable times as the statute requires . That duty is not discharged by turning over the conduct of negotiations to one whose other activities make him not so available. A. H. Belo Corporation, 170 NLRB No. 175. See KFXM Broadcasting Company, supra, where it was found that that company, through Selvin, violated Section 8(a)(1) and (5) of the Act by unilaterally canceling scheduled meetings and refusing requests for additional meetings. I find that by Selvin's refusal to meet at reasonable times with the Union and by her ,cancellation of a meeting, West Coast violated Section 8(a)(1) and (5)of the Act. I' also find that West Coast violated Section 8(a)(5) and (1) of the Act through Selvin's insistence, over the objection of the Union, to have a reporter present during negotiation sessions to take a verbatim transcript of the proceeding. In Reed and Prince Manufacturing Company, 96 NLRB 850, enforcement granted on other grounds, 205 F.2d 131(C.A.' 1, 1953), where a company insisted upon a stenotypist to take down a° verbatim transcript of negotiating sessions over the union's strenuous objection, the Board held: This is not the approach usually takenby a participant in collective-bargaining negotiations seeking and ex- pecting in good faith to reach agreement ;,it is more consistent with the building of a defense to anticipated ,refusal to bargain charges. The' presence of a stenogra- pher at such negotiations is not conducive to the friendly atmosphere so necessary for the successful termination of negotiations, and it is a practice condemned by experienced persons in the industrial relations field. Indeed, the business world itself frowns upon the practice in any delicate negotiations where it is so necessary for the parties to express themselves freely. The insistence'by the Respondent in this case, upon,the presence of a stenotypist at the bargaining meetings is, in our opinion, further evidence of its bad faith. Though the Court of Appeals for the First Circuit enforced the Board's order requiring the employer to bargain, it stated that 'it was not inclined to agree with the Board-that the insistence upon the verbatim transcript was evidence of bad faith. In subsequent cases, the Board made it clear that it was not relying,on any per se theory in finding that such an insistence on a verbatim transcript was a violation of the Act but that in the context of the entire case, such conduct could indicate that an employer was not acting in good faith. Southern Transport, Inc., 150 NLRB 305, enforcement denied 355 F.2d 978 (C.A. 8, 1966). In Architectural Fiberglass '- Division of Architectural Pottery, 165' NLRB 238, Selvin was present once again as labor relations consultant tothe employer. In that case the Board held: Whether or not Mrs. Selvinospecifically conditioned bargaining ,on the use of .the tape recorder, the record clearly establishes that she adamantly insisted on using it throughout the negotiations, over the vigorous objections of the Union. We find, in all, the ;,circum- stances here, that the Respondent by insisting on using the tape recorder over the Union's objections, was not acting in good faith. Rather, when the Respondent's insistence is viewed in the context of theRespondent's entire course of conduct, as found herein, it is manifest, and we find, that the Respondent had as its purpose to avoid, delay, and frustrate .meaningful-bargaining with the Union. Accordingly, we find thatthe Respondent's insistence on the ,use of the tape , recorder over, the objection of the Union, further evidenced its-bad-faith bargaining as discussed below, and further violated Section 8(a)(5) and (1) of the Act. In the instant case, I find that Selvin's insistence on a reporter to take a verbatim transcript of the negotiating sessions was part of- her strategy to avoid meaningful bargaining and therefore was a violation of Section 8(a)(5) and (1) of the Act. With regard to Selvin's refusal to allow representatives of the Union access to the plant to verify the facts contained in the lists that she - gave them,,West Coast was under an obligation to furnish the Union with information'-that was necessary to enable the. Union to intelligently perform its function and this duty to furnish information included the granting of permission to conduct in-plant inspections if necessary. The Board has held that-such in plant inspec- tions were needed in order to -make timestudies where certain video tapes given a union by accompany were not considered reasonable substitutes for in-plant evaluations. General Electric Company, 186 NLRB-No. 1. An on-sight inspection will be, required if the information requested is both relevant and necessary to enable the union to fulfill its functions as the bargaining agent. Wilson Athletic Goods and Manufacturing Co., Inc., 169 ' NLRB 621 . If it is necessary for the union to make a live study so that it can reliably evaluate the company's data, such a live study is required. As the `Court said in General Electric Co. v. N.L.R.'B., 414 F.2d 918 (C.A. 4, 1969), cert. denied 396 U.S. 1005(1970): Each case requires a weighing of the union's need to make the studies balanced against any inconvenience which might be caused to the Company in the process, or the violation , of any right of privacy that the Company possessed. In the case at bar, there is no serious suggestion that , the studies in question would interfere with- production, nor can we say ' that the prerogatives of management to the-private conduct of its business-should outweigh the union's demonstrated need to the information and inspections that it sought. . . . In the instant case, West Coast furnished job classification information to the Union and the Union sought to verify it by observing the operations ,at the plant. Selvin's' refusal and her threat 'to' call the police if the'union representatives came to the plant have not been shown to be based-on' any legitimate business reason. The refusal' was simply part of Selvin's strategy to isolate the Union from West Coast and to prevent the reaching of ' an agreement. I find that, such WEST COAST CASKET CO., INC. 639 conduct was in violation of Section 8(a)(5) and (1) of the Act. West Coast succeeded in frustrating the bargaining process by failing to bargain in good faith with the Union. West Coast did not approach the bargaining table with the open mind and sincere desire to reach an agreement that is required of it by the Act and its conduct showed an intention to disparage the bargaining process itself. Herman Sausage, Inc., 122 NLRB 168, enfd. 275 F.2d 229 (C.A. 5,1960). In N.L.R.B. v. Reed and Prince Mfg. Co., 205 F.2d 131 (C.A. 1, 1953), the Court held: Thus if an employer can find nothing whatever to agree to in an ordinary current-day contract submitted to him, or in some of the union's related minor requests, and if the employer makes not a single serious proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith, that is, of a desire not to reach' an agreement with the union. In other words, while the Board cannot force an employer to make a "concession" on any specific issue or to adopt any particular position, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union, if §,8 (a)(5) is to be read as imposing any substantial obligation.. t all. - In Duro Fittings Company, 130 NLRB 653, Selvin was once again the bargaining agent for a respondent. The Board adopted the Trial Examiner's decision which, after tracing the conduct of Selvin during the negotiations , stated: "I find, based upon the foregoing, that Respondent uniformly rejected any changes in working conditions of any substance, and those matters that it did not reject' it attempted to relegate to its control by the device of the management prerogative clause ." In KFXM Broadcasting Company, supra, the Board `adopted the Trial Examiner's decision that Selvin had unilaterally canceled 'scheduled meetings and refused requests for additional meetings, procrastinated, in the preparation of counterproposals, come to negotiating meeting ' unprepared to discuss proposals-previously submitted ,; refused to meet anywhere but her apartment, and in general failed from the outset of negotiations to -engage in good-faith bargaining and thereby violated Section 8(aX5) and (1) of the Act. I find-that West Coast and Selvin have failed and refused, from the receipt of the Union's demand to bargainion June 25, 1969, and at all times thereafter, to engage in good-faith bargaining and thereby violated Section 8(a)(5) and (1) of the Act. By September 10, 1969, the date upon which the strike vote was taken, it was clear that West Coast and Selvin were unlawfully refusing to bargain. The employees at that meeting were informed about Selvin's conduct and authorized a strike. I find that the strike which began on September 15, 1969, was caused and prolonged by the unfair labor practices of West Coast and Selvin and it was therefore an unfair labor practice strike. E. The Telegram 1. The facts The complaint, as amended, alleges that West Coast violated Section 8(a)(l) of the Act by sending an employee a telegram telling her that if she took part in a strike, the Company had a right to permanently replace her, in which event she would lose all interest in her employment. The telegram which is dated September 15, 1969, reads as follows: ESTELLE CUNNINGHAM, REPORT DELIVERY 6727 HOOD AVE HUNTINGTON PARK CALIF YOU HAVE EXERCISED YOUR LEGAL RIGHT TO JOIN SOME OF YOUR CO-WORKERS IN A STRIKE, AND/OR FAILURE TO REPORT FOR WORK. THIS IS TO INFORM YOU THAT UNDER SUCH CIRCUMSTANCES, THE COMPANY HAS THE LAWFUL RIGHT TO FILL YOUR POSITION WITH A NEW EMPLOYEE ON A PERMANENT BASIS. IN SUCH AN EVENT, YOU WILL HAVE LOST ALL INTEREST IN YOUR FORMER EM- PLOYMENT. WHICHEVER COURSE YOU CHOOSE, BE ASSURED THAT WE WISH YOU WELL WEST COAST CASKET COMPANY. Company records show that Estelle Cunningham, a trimmer, was hired on May 5,1952, and was terminated on September 15, 1969, the date of the telegram.' Winkler acknowledged that she was a seamstress employed by the Company, but when he was asked whether he or someone under his direction sent the telegram to Cunningham, he answered that he didn't send it. When questioned further as to whether it was sent under his direction, he answered, "I don't know: I didn't send it. If it was sent by someone, it was sent." Later in his testimony he averred that he didn't even know that it was sent to her. He, acknowledged that Cunningham didn't report for work several days before the strike and she was under a doctor's care. - In her initial testimony Selvin averred that she was not aware whether or not the telegram was sent by West Coast to Cunningham. However, she also testified that when the strike began, certain employees did, not report for work and she told= someone, whom she could not identify, over the telephone that ". . . a telegram of that nature would be reasonable." She also acknowledged that the portion of the telegram reading "In such an event you will have lost all interest in your former employment" was part of the instructions that she gave over the telephone. Finally, Selvin testified that she gave the wording of the telegram to someone over the telephone. The testimony of Selvin and Winkler with regard to the telegram must be viewed in light of the surrounding circumstances. Pilar Guerro, a_foreman at the 17th Street plant, respected the picket line that formed after the strike, and he did not go in to work. Under cross-examination by West Coast, he acknowledged, that he received a telegram from West Coast and -that telegram was admitted to evidence as a West Coast exhibit The body of the telegram was identical with the one addressed to Cunningham which was put in evidence as a,General Counsel exhibit. Only the name and address of the person to whom they were sent differed. Apparently, at that point in the trial, West Coast was less reluctant to acknowledge that it had sent the telegram than when Winkler and Selvin testified. Selvin also freely acknowledged the telegrams at a meeting with 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union representatives on September 24, 1969, when she said: We have an ad in the paper which reads that we are employing people in certain classifications as perma- nent replacements of sinkers, and we have notified the people that we have this right and also in the same telegram we, notified them that they were exercising their lawful right to join with fellow workers and go on strike. So I don't believe you could find anything wrong with the telegram we sent to them.... I find that the telegram was sent to employees who did not report to work after the picket line was set up. Winkler acknowledged that Cunningham had been away from work for several days at that time, and I find that she, too, was sent the telegram. Winkler.'s testimony that he did not have knowledge of the, telegram is- discredited. He is the only responsible official of West Coast concerned with the day- to-day operation of the plants, and I simply cannot believe that a matter as important as the telegrams would not have been brought to his attention on the day of the strike. His testimony in this regard sheds doubt on his credibility in general. , Selvin's hesitancy in her initial testimony to acknowledge responsibility for the, telegrams also sheds serious ,doubt on her candor. 2. Analysis and conclusions Section 2(3) of the Act provides that the term employee shall include any individual "whose work has ceased as a consequence of,' or in connection with, any current labor dispute or because of any unfair labor, practice, and who has not obtained any other- regular and substantially' equivalent employment . '.. " Clearly the West Coast strikers were employees within the meaning of the Act. In The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414 F.2d 99 (C.A.' 7, 1969), cert. denied 397 U.S. 920 (1970), the Board held that economic strikers "...' are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular, and substan- tially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons." In the Laidlaw case, the Board adopted the Trial Examiner's conclusion that the employee's notification to employees that if they went out on a strike and were replaced they would -LOSE 'FOREVER (their) right, to- employment by this company" was not a correct statement of the law and was ' a threat that reasonably tended to interfere with, restrain, and coerce the employees in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. In the instant case, the strikers were told that West Coast had the right to ' fill their positions with new, employees on a, permanent basis and, in such an event, "You will have lost all interest in your former employment." The thrust of that remark was the'same as that on which the Board based its decision in the Laidlaw case. In effect the employees were being threatened with loss of their employee status and reinstate- ment rights in such a way as to interfere with their rights guaranteed by Section 7 of the Act. I find that by so threatening Estelle Cunningham, West Coast violated Section 8(a)(l) of the Act. As, I have found that the strikers were protesting West Coast's unfair labor practices and therefore were unfair labor practice, strikers who are entitled to reinstatement upon unconditional, application, West Coast could not lawfully permanently replace them ,or threaten to do so. Tommy's Spanish Foods, Inc., 187 NLRB No. 31. 1 find that the telegram to,Cunningham did contain such a threat and thereby interfered with Section 7 rights in violation of Section 8(a)(1) of the Act., IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of West Coast, and Selvin set forth in section III, above, occurring in connection with the operations of West Coast 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 Having-found that West Coast and Selvin have, engaged in certain unfair labor practices, I shall recommend that they be ordered to cease. and desist therefrom and, take certain affirmative action designed to effectuate the policies of the Act. Having found that West Coast discharged Roy Cooper, Rodolfo Ramirez, and Aurelio Mena, and failed to reinstate Cooper and Ramirez in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that West Coast, be.ordered to offer Cooper and Ramirez reinstate- ment and make all three whole for any loss of pay resulting from their discharges by payment to them of, a sum of money equal to the amount they normally would, have earned as wages from the date of their discharges to the date on which reinstatement is, or was offered, less net earnings during that , , period. Such backpay shall be computed on a quarterly basis in the, manner;prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that West, Coast and Selvin engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shallsecommend that,they be ordered to cease and desist therefrom and bargain collectively with the Union as the exclusive representative of all employees, in the unit set forth above, and, if an understanding is reached, embody such understanding in a, signed agree- ment. In order to insure that the employees will, be accorded the statutorily prescribed services of _their selected bargaining agent for,the period provided by law, I recommend that the initial year of certification begin on the date that West Coast commences to bargain in good faith,with the Union as the recognized bargaining representative in the appropri- ate unit. LT. V. Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968). Having found that West Coast, employees struck to protest the Company's unlawful refusal to bargain with the Union, I shall recommend that West Coast he ordered to, WEST COAST CASKET CO., INC. 641 upon application, offer to said employees reinstatement to their., former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights-and privileges, dismissing, if necessary, any, employees hired to replace said unfair labor practice strikers. I will also recommend that West Coast be ordered to 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 theamount of backpay due. West Coast is not a stranger to Board proceedings. In West Coast Casket Company, Inc., 97 NLRB 820, the Board found that West Coast, in a case involving the Upholster- ers' International 'Union of North America, Local 15, AFL, violated Section 8(a)(1) of -the Act by unlawfully interrogat- ing and threatening employees, and by granting 'wage increases to `induce employees to reject the union. In addition, the Board found that West Coast violated Section 8(aX3) of the Act by unlawfully discharging two employees and' by unlawfully denying reinstatement to unfair labor practice strikers who unconditionally applied for reinstate- ment. In the instant ' case," West Coast has committed flagrant and widespread violations of the Act. In view of the past history of West Coast, and the nature of the unfair labor practices committed in the present case, the commission of similar or other unfair labor practices reasonably may be anticipated. I shall therefore recom- mend that West Coast be ordered to cease and desist from in any manner interfering with rights guaranteed to its employees by Section 7 of the Act. Selvin is named as a respondent in the complaint. She admittedly is. an agent of West Coast. Section 2(2) of the Act defines the term employer so as to include any person acting as the agent of an;employer. I havefound that Selvin, as such an employer, unlawfully refused to bargain with the Union in violation of, Section 8(aX5), and (1) of the Act. A remedy , is needed that will be -binding on Selvin. She was not a pawn carrying out the- orders of West Coast but, as is clear from the findings of fact set forth above and from her own statement that "employers don't know anything about this problem," she was , the. guiding force and strategist behind the violations of Section 8(a)(5) and (1). Her unlawful tactics in this case were not specifically keyed to the situation herein but were a, part of her stock and trade and can be reasonably- be expected to reappear in the future. The Board has held that a broad order is necessary where "... the unfair labor, practices committed by the Respondent are of such a' character as to reflect' a predisposition on its part to thwart by other means as well, employees ' efforts to engage in legitimate concerted activities for the purpose of- `self-organization or other mutual aid or protection.. .. " John P. Krystyniak d/b/a Red and White Super Markets, 172 NLRB No. 210, enfd. in part 415 F.2d 125 (C.A. 3, 1969). See also Singer Company v. N.L.R.B., 429 F.2d 172 (C.A. 8,1970). When an employer, designates Selvin as its agent- for collective bargaining with the union, that union cannot refuse to negotiate` with Selvin, even where the union may have a substantial basis -for believing that Selvin has no intention of participating in the meaningful bargaining. When Local 986 of the Teamsters took such ,a position in Miscellaneous Warehousemen, Drivers and Helpers; Local 986, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica (Tak-Tralc, Inc.) and Mrs. Edwin Selvin, Labor Relations Consultant, 145 NLRB 1511, Selvin filed a charge-alleging that the union refused to bargain in violation of'8(bx3),of the Act and-the Board found a violation of that section. The Board adopted the Trial Examiner's decision which read inpart: ... while her reputation in the vicinity of her residence and in the field of labor relations is so notorious that one may well question whether any employer desirous of establishing a mutually satisfacto- ry bargaining relationship with his employees, repre- sentative would designate her as his negotiator, it may be assuming too much to say, without more evidence than is, present here, that this-employer hired her not as his representative for purposes of collective bargaining but for purposes of obstructing the bargaining process. In deciding how broad the order, should be to remedy Selvin's unlawful -conduct in this case, it must be borne in mind that, under outstanding , Board law unions cannot decline to bargain with Selvin. I shall recommend -that Selvin be ordered to cease, and desist from in any manner interfering with rights guaran- teed employees by Section 7 of the Act when she is an agent for West Coast or for any other employer subject to the jurisdiction of the National Labor Relations Board. More specifically, I shall recommend4hat she be ordered to cease and desist from refusing to bargain in good faith with any labor organization where she is, agent for any employer subject to the jurisdiction of the Board, that has an obligation under the Act to bargain with said labor organization. - CONCLUSIONS OF LAW 1. West Coast and Selvin are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Carpenters and the Painters are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. By discharging Roy Cooper, Rodolfo Ramirez, and Aurelio Mena and by-failing to` reinstate Cooper and Ramirez because of -their activity on behalf of the lrOnion, thereby discouraging membership in the Union, West Coast has violated Section 8(a)(3) of the Act. 4. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees, including ° paint department-em- ployees, and truckdrivers employed by West Coast; excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. 5. As certified by the National Labor Relations Board on June 24, 1969, the Union is the exclusive representative of the - employees in the aforesaid unit-for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. By failing and refusing , on June 25, 1969, and 642 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD thereafter, to bargain in good faith with-the Union as the exclusive representative ^ of, the' employees in the said appropriate unit, West Coast and Selvin have engaged in, and are 'engaging in, unfair labor practices within the meaning of Section 8(a)(5) of'the Act. 7. By the foregoing conduct, and by notifying employ- ees-who were' striking in protestof its unfair labor practices that West Coast had a lawful right to fill their positions with new employees on a permanent basis and thatin such event said strikers" would' have lost all interest ^in their former •employment, West-Coast threatened striking employees with loss of their employee status and reinstatements rights, and threatened unfair labor practice strikers with perma- nent replacement, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed'to, them by-Section 7 of the Act in violation of Section=8(axl) of the Act. ti 8.,- By the conduct-described in number 6`above, Selvin interfered with,, restrained,,and - coerced- employees in the exercise of the rights guaranteed to `them by Section 7 ,of the Act and thereby-violated Section 8(a)(1) -of the Act. - 9. The, strike engaged -inby'West Coast employees' on September 15, 1969, was an unfair labor practice strike. 10. The aforesaid unfair labor practices are unfair labor practices,affecting commerce within the meaning o€' Section 2(6) and (7) o€ the Act.. d 1.- The 'General Counsel has not established by a preponderance of, the'evidence that West Coast unlawfully discharged Marco Aguirre, Miguel Betancourt, Jesus Cisheroz,. Migueal Vilegas, Raul Betancourt, George Saiza, Regino Enciseo, Leopoldina Hajaistron, or Pedro Guarola, as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 26' ORDER A._ West Coast -Casket Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from-, (a) Discriminating , against employees by a ,discharging them in order to' discourage employees from joining or supporting Cabinet Makers,& MillmenLocal'7211, United Brotherhood of Carpenters & Joiners of, America, AFL=CIO and the Painters Local 'Union No. ' ,1798, Brotherhood 'of Painters, Decorators and' Paperhangers of America, AFL-CIO,,or any other, labor ' organization. r.+ (ti) _ Refusing , to bargain in good faith with the above- nained' labor organizations, as the exclusive representative of its employees in the followingunit: All production and maintenance,,, employees, including paint department em- ployees,and,truckdriver`s, employed by West Coast Casket Company,-Inc.;; excluding ' all office clerical employees, professional employees, guards and supervisors as defined ' in the Act -20 In'the'event no exceptions are filed as provided -by Section 102.46 of the Rules and_ Regulations of the National Labor Relations Board, the findings, conclusions, and recommends Order herein shall„as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (c) Threatening striking employees with loss of their employee status and reinstatement rights, and threatening unfair labor practice strikers with permanent replacements. (d) In any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the-following affirmative action necessary to effectuate the policies of the Act. (a) Offer to reinstate Roy Cooper and, Rodolfo Ramirez to-`their formerjobs, or ,if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. (b) Make Roy. ,Cooper, Rodolfo Ramirez, and Aurelio Mena whole for any loss of pay they may have suffered by reason of their unlawful 'discharges by payment to'them of a sum of money equal to'the amount they normally would haveI earned as wages from the date of their lscharges' to tie 'date that reinstatement,is or was offered, in the manner set forth in the section of this decision entitled "The Remedy." (c), Notify Roy Cooper and,Rodolfo Ramirez, if presently serving in the Armed Forces of the. United States, of .their right to,full reinstatement, upon application, after discharge in accordance with the Selective Service Act and Universal Military Training and Service Act. (d) Upon request, bargain in good faith with the above- named Unions, as the exclusive, representative of : ,all employees in the unit set forth above and, if an understanding is,reached, embody such understanding in a: signed agreement. , -. , (e) Upon application, offer all unfair labor ^ practice strikers reinstatement to their former jobs or,, if those jobs no longer exist, to .substantially equivalent positions, without prejudice to their, seniority, or, other rights and privileges,' dismissing, if necessary, any employees hired to replace said unfair labor practice strikers. (f) Preserve, and, upon request; snake- available , to the Board or its agents, for -examination and copying,- all payroll records, social, security payment records, timecards, personnel records' and reports, and gall other records necessary to analyze the amountof backpay due. '(g) Post at all of its plants - copies of the attached notice marked "Appendix A."27,Copies of the°`notice, on forms' provided by the Regional DirectorforRegion 21, after being', duly signed by West Coast's authorized representative,' shall be posted by West Coast immediately upon-receipt, thereof, and be maintained "by it for '60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps, shall be take},-by West Coast to insure that said notices are not altered, defaced,, or. covered by any other material. (h) ,Nootify the Regional Director for Region,,21, in writing, within 20 days from, the' date of receipt of ,this 27 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the'words in the notice reading-"POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to,read "POSTED PURSUANT TO A JUDGMENT OF THE 'UNITED STATES COURT OF ,APPEALS ENFORCING AN ORDER OF' THE NATIONAL LABOR RELATIONS BOARD', WEST COAST CASKET CO., INC. 643 Decision, what steps West Coast has taken to comply herewith.28 IT IS ALSO ORDERED that the complaint be dismissed insofar as it-allegesthat Marco Aguirre, Miguel Betancourt, Jesus Cisheroz, Miguel Vilegas, Raul •Betancourt, George Saiza, -Regino Encisco, Leopoldina Hajaistron, and Pedro Guerola were discharged in violation of the Act. B. Mrs. Gladys Selvin shall:' 1. Cease and desist from: (a) Refusing to bargain in good faith with the above- named labor organizations as the exclusive representative of the employees of West Coast in the abovementioned unit. (b) Refusing to bargain in good faith with any labor organization when she is agent for any employer subject to the-jurisdiction, of the Board, that has an obligation under the Act to bargain with said labor organization. (c) When she is an agent for any employer subject to the jurisdiction of the Baord, in any manner interfering with, restraining, or -coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon` request, bargain in good faith with the above- named labor organizations, as the exclusive representative of all employees in the unit set forth above, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Bargain in good faith with any labor organization when she is agent for any employer subject to jurisdiction of the 'Board,' that has an obligation under the Act to bargain with said labor organization. (c) Post at all West Coast's plants, copies of the attached notice marked "Appendix B."29 Copies of the notice, on forms provided by the Regional Director for Region 21, after being duly signed by Gladys Selvin, shall be posted by West Coast; immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by West Coast to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for, Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps, Gladys Selvin has taken to comply herewith.s0 28 In the event this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional-Director for Region 21, in writing, within 20 days from the date of this Order, what steps West Coast has taken to comply herewith." ss See fn. 27. so See fn. 28. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 you that: After a trial at which all sides had a chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights To engage in self-organization To form, join or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain 'from any or- all these things except to the extent that membership in-a union may be required pursuant to a lawful union-security clause. WE WILL NOT do anything that restrains or coerces employees with respect to these rights. More specifical- ly, - WE WILL NOT discriminate against employees by discharging them in order to discourage employees from joining or supporting,the Cabinet Makers and Millmen Union Local- 721, United Brotherhood of Carpenters & Joiners of America, AFL- 10, and the Painters Local Union No.`- 1798,' Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, or any other-labor- organization. WE WILL NOT refuse to bargain in good faith with the above-named labor organizations as the exclusive representative of our employees in the following unit: All production and maintenance employees, including paint department employees' and truckdrivers, em- ployed by West Coast Casket Company, Inc.; excluding all office clerical employees, professional employees, guards and supervisors as defined in the'Act. WE WILL NOT threaten Striking employees with loss of their employee status and reinstatement rights, or threaten unfair labor practice- strikers with permanent replacement. WE WILL offer to reinstate Roy Cooper and Rodolfo Ramirez to their former jobs or, if those jobs no longer exist, to substantially equivalent positions,-without any change in seniority or other- privileges` they enjoyed before we discharge them and we will pay to them and to Aurelio Mena any money they lost as a result of the discrimination against them with interest at 6 percent. WE WILL notify Roy Cooper and Rodolfo Ramirez, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge, in accordance with the Selective Service Act and the Universal Military Training and Service Act. WE WILL, upon application, offer to all unfair labor practice strikers reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without any change in seniority or other privileges, dismissing, if necessary, any employees hired to replace said unfair labor practice strikers. WE WILL bargain in good faith with the above-named Unions on wages, hours, and conditions of employ- 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went, and any agreement we reach will be put in writing This is an official notice' and must not be defaced by and signed. anyone. r, This Notice must remain posted for. 60 consecutive days WEST COAST CASKET from the date of posting-and must not be altered, defaced, COMPANY,' INC. or covered by any other material. (Employer) Any questions concerning this Notice-or compliance with its provisions, may be directed to the Board's Office, Dated By - Eastern Columbia Building,, 849 South Broadway, Los (Representative) (Title) Angeles, California 90014, Telephone 688-5200. 12/ The dates , of hire and discharge, and the job classifications-of the alleged discriminatees were: I - Name Date of Hire Date of Discharge ''Job Classification ' Marco Aguirre Miguel , Betancourt Jesus Cisheroz Roy Cooper Miguel Visages Raul Betancourt George Saiza Regino Encisco Leopoldina Hajaistron Rodolfo Ramirez Pedro Guarola Aurelio Mena These new hires were: 1 3/These 3/ , Name Jose Acevado Diego Cardona Faust Garcia Joseph Ginn Earl Kindle Anthony Plumber, Jr. James Reardon Alex Ramero Victor Vera 14 A twenty-ninth name , a supervisor. 3-3-69 4-16-69' Trimmer 7-20-67 .4-16-69 , Trimmer`, 1-9-69 4-16-69 Sander 8-6-56 4-18-69 ' Trimmer 9-10-62 4-23-69 Shipper 9-27-65 6-13-69 "Mill 8-25-69 6-18-69 Driver' 7-5-66 6-20-69 Spray-man 3-8-69 6-23-69 Sewing ,. 1 -10-62 6-23-69 Spray man 12-30-69 6-2-69 Cabinet 3-26-51 7-2-69' Polisher Date of Hire Job Classification Date ofDischarge - 7-22-69 r Sand"er 9-26-69 1970 Cabinet 10-6-69 10-9-69 Spray man 10-3-69 10-21-69, Trimmer, 9-26-69 1970 Sander 9-23-69 1970 Driver' 10-18-69 12-3-69 Trimmer 10-6-69 10-22-69 Sander, 10-26-69 1-0-9-69, Trimmer, Pilar -Guerro , is listed as a trimmer , but,Guerro was