Masco Products, Inc.

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Masco Products, Inc. and Richard L. Russell. Case 14-CA-6527 July 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 6, 1972, Trial Examiner Owsley Vose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order except as modified below. The sole question in this case at the present stage of this proceeding is what remedy should be ordered for Respondent's violating Section 8(a)(3) and (1) of the Act by discharging Richard L. Russell, the Charging Party, in retaliation for filing a grievance with his Union.' In his recommended Order the Trial Examiner, for reasons that will be discussed below, required only that Respondent grant Russell the first job becoming available at the plant and pay him backpay for four 37-1/2 hour weeks at the rate of $3.60 an hour. The General Counsel contends that this proposed remedy is not adequate. We agree. The normal remedy for a discharge in violation of the Act is an order requiring the unlawfully dis- charged employee to be immediately reinstated with full backpay. To avoid such an order, the Respon- dent must prove that the discharged employee would have been terminated at some later date for nondis- criminatory reasons had he not been unlawfully discharged.2 We find that Respondent failed to make the necessary proof. The only evidence Respondent offered which might have established a specific date on which Russell would have been laid off for economic reasons had he not been unlawfully discharged was the testimony of its president, Emanuel Schwartz. Schwartz testified that he had intended to inform Russell on October 4, 1971, the date on which he actually discharged him, that Russell would be laid off the following week. Although Schwartz asserted that his determination to lay Russell off arose solely from his desire to be able to increase the number of i Respondent did not except to the Trial Examiner's findings, conclu- sions, or Order The General Counsel excepted only to the proposed working hours of the remaining employees, who were on a 30-hour week at the time, several factors make his testimony incredible. Respondent's employees had been on a reduced workweek for over 2 months during which Schwartz had not contemplated any layoffs; Schwartz made his decision to lay Russell off on the day after Russell complained to him that he was being underpaid and asked for backpay; and Schwartz laid Russell off immediately after finding a copy of the grievance over back wages that Russell had filed with the Union. We find, as the Trial Examiner did, that these facts establish an unlawful motivation behind Schwartz' decision to lay Russell off. Apart from Schwartz' testimony which the Trial Examiner discredited, there is no other evidence in the record that would establish a date on which Russell would have been laid off absent discrimina- tory motivation. The Trial Examiner nevertheless found that Russell would have been laid off for economic reasons 30 days after he was actually laid off. The lack of evidence to support this finding is manifested by the Trial Examiner's statement that "[f ]ashionmg a backpay remedy in a case like this is difficult because it is almost impossible to determine with accuracy what course the Respondent would have pursued had it not suddenly laid off Russell without notice." Clearly, Respondent has not met its burden of proving that Russell would have been lawfully discharged at some later date had his discriminatory discharge not occurred. We therefore find that the normal remedy of immediate reinstate- ment with full backpay should be granted. THE REMEDY As we have found that Respondent unlawfully laid off Richard L. Russell on October 4, 1971, and that the record herein does not establish that he would have been laid off at any subsequent time, we shall modify the Trial Examiner's remedy in the manner described below. We shall direct, in the light of our decision herein, that Respondent offer to Richard L. Russell immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason thereof by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of Respondent's offer to reinstate him, together with interest thereon, less net earnings, if any, during such remedy 2 Trico Products Corp, 195 NLRB No 198 198 NLRB No. 70 MASCO PRODUCTS, INC. period. Backpay and interest shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. 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, as hereinafter modified, and hereby orders that Respondent, Masco Products, Inc., St. Louis, Missouri, its officers agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified herein: 1. We amend the Trial Examiner's recommended Order by substituting the following paragraph 2(a): "(a) Offer to employee Richard L. Russell immedi- ate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner and to the extent provided in this section of this Decision entitled "The Remedy." 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT lay off or otherwise discriminate against any employee for filing grievances with his collective-bargaining representative. WE WILL NOT threaten employees with dis- charge, layoffs, more harsh working conditions, or other reprisals for filing grievances with their collective-bargaining representative. WE WILL NOT direct or instruct our employees not to take up grievances with their collective- bargaining representative. WE WILL NOT coercively question employees 425 concerning the filing of grievances or other union matters. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer to Richard L. Russell immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and we will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. MASCO PRODUCTS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above -named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case, tried before me at St. Louis, Missouri, on February 7, 1972, pursuant to a charge filed on November 12, 1971, and a complaint and amendment to the complaint dated December 16 and 29, 1971, presents the following questions: (1) whether the Respondent laid off Richard Russell, the Charging Party, because he filed a grievance concerning his rate of pay with International Association of Machinists and Aerospace Workers, District No. 9, herein called District No. 9, in violation of Section 8(a)(3) and (1) of the Act, and (2) whether the Respondent threatened Russell with reprisals because of his grievance activities and engaged in other conduct in violation of Section 8(a)(1) of the Act. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record, my observation of the witness- es,' and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: rehirings, and a provision requiring that a week's notice be given in cases of employee terminations or that pay be given in lieu thereof. The agreement further provided for a guaranteed 40-hour week. FINDINGS AND CONCLUSIONS I. THE RESPONDENT'S BUSINESS The Respondent is engaged in the rebuilding and sale of rebuilt carburetors and related items at its plant in St. Louis, Missouri. During the calendar year 1971, a representative period, the Respondent shipped to out-of- state destinations more than $50,000 worth of rebuilt carburetors and related items. Upon the foregoing facts which are admitted by the Respondent, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, District No. 9, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Layoff or Richard Russell in Violation of Section 8(a)(3) and (1) of the Act; the Threats Against Russell and Other Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) 1. Background At the time of Russell's layoff on October 4, 1971, the Respondent had six employees. Four of these men, including Russell, were carburetor rebuilders. The other two men disassembled carburetors and cleaned parts. They were referred to at the trial as "teardown" men. The Respondent's employees were covered by a single compre- hensive collective-bargaining agreement with two unions, District No. 9 and Automotive, Petroleum and Allied Industries Employees Union Local 618, herein called Local 618. Under the agreement which is effective until June 20, 1972, the Respondent's carburetor rebuilders belong to District No. 9 and the "teardown" men belong to Local 618. The agreement provided different wage scales for the two categories of employees, "Carburetor Rebuilding Employees" being entitled to $3.60 per hour effective July 1, 1972, and "Disassemblers and parts cleaners" being entitled to $3.20 per hour. The agreement also contained seniority provisions, requiring among other things that seniority should be taken into consideration in layoffs and I In accordance with my announcement at the trial, I have reconsidered my ruling rejecting Resp. Exhs. I and 3 and they are hereby received in evidence. Resp. Exh. I consists for the most part of communications written by Russell to District No. 9 more than a month after his layoff concerning a settlement of his case against the Respondent . Resp. Exh. 3 is a letter written by Russell on January 4, 1972, to his father-in-law, Foreman Edward Gronke, at his home which is clearly offensive not only in its content but also in the vulgar manner in which he addressed it. The Respondent argues that these letters reflect an attitude which is wholly 2. The Respondent's supervisory hierarchy The majority stockholder and president of the Respon- dent is Emanuel Schwartz. Schwartz also owns another enterprise, Liberty Auto Salvage Company, to which he devotes most of his time. Schwartz visits the Respondent's plant for brief periods only, once or twice a day. William Gelfand is the general manager of the Respondent's operations. Gelfand is also in charge of sales for the Respondent and these duties frequently take him away from the plant. Under Gelfand are Lloyd Johannpeter and Edward Gronke. Gelfand testified that Johatinpeter was the foreman and that Gronke was his assistant. Gronke, who does some carburetor rebuilding work, characterized himself as a leadman. In an affidavit given to the attorney trying the case for the General Counsel on December 2, 1971, President Schwartz admitted that "Lloyd Johannpet- er & Ed Gronke are both foremen.... They both have authority to assign work to the men & to see that the men perform the work efficiently & correctly." The Respondent does not dispute the fact that Gelfand and Johannpeter are supervisors within the meaning of Section 2(13) of the Act. It does suggest that Gronke does not possess such supervisory authority. The record shows, however, that in assigning work Gronke exercises his independent judgment in appraising the capabilities of the carburetor rebuilders; that he has authority to make recommendations regarding the hiring and firing of men, which recommendations would be given serious considera- tion by General Manager Gelfand; and that Gronke keeps records of the production of the carburetor rebuilders. The record also shows that Gronke instructs and trains the men and that he receives 50 cents per hour more than the carburetor rebuilders. Upon these facts I conclude that Gronke possesses supervisory authority within the meaning of Section 2(11) of the Act and that the Respondent, therefore, is responsible for his conduct. 3. The discharge of Richard Russell on October 4 Russell was hired by the Respondent in November 1970 upon the recommendation of Foreman Gronke, who is Russell's father-in-law. Russell was first assigned to "teardown" work and was paid the contractual wage rate for such work then in effect, $3 per hour. On March 2, 1971, upon the retirement of an elderly carburetor rebuilder, Russell was selected to replace him. However, the Respondent continued to pay inconsistent with Russell being a truthful witness and that for this reason Russell's testimony should be rejected in its entirety. I have taken this argument into consideration in weighing the conflicting testimony discussed below but conclude that , while these letters do not reflect favorably upon Russell, they do not call for the conclusion urged by the Respondent, that Russell "fabricated" the charge which he filed with the Board and the testimony which he gave at the trial . In fact, on the issue of the Respondent's motivation for discharging him when it did there is no serious controversy as to the facts. MASCO PRODUCTS, INC. Russell at the lower contractual rate for "teardown" work. Russell joined District No. 9 about this time, as was required by the union security provision of the agreement. Russell continued doing rebuilding work at the lower rate for about 6 months. At this time, ascertaining that the other carburetor rebuilders were being paid 40 cents per hour more than he was, Russell remarked about this fact to Foreman Gronke in the presence of Foreman Johannpeter. Gronke stated, according to Russell's testimony which I credit, that the agreement provided for an apprentice rate and that he was not entitled to the rebuilder's rate until after he had worked as a rebuilder for a year. Then Russell asked to see a copy of the agreement. Gronke stated that President Schwartz had the contract in his office at the Liberty Auto Salvage Company and that Russell had better have a good reason to want to see it. Russell informed Gronke that he was going to District No. 9 and examine a copy of the agreement and that if what Gronke had told him about the apprentice rate was erroneous he was going to file a grievance. Russell credibly testified that Gronke angrily rejoined as follows: You better make sure you've got a grievance before you go down there, because if you go down to the union and file a grievance that it would upset Manny [President Emanuel Schwartz] and he would fire me [Russell] or lay me off.2 Such a threat unquestionably constituted interference, restraint, and coercion, in violation of Section 8(a)(1) of the Act. Around September 23 Russell left for the office of District No. 9 at 7 a.m., before going to work for the Respondent. Charles Van Bibber, the business agent for District No. 9 having the responsibility for servicing the labor agreement with the Respondent, gave Russell a copy of the agreement to look at.3 This agreement does not provide for a different rate of pay for apprentice rebuild- ers. Russell arrived back at the plant and started to work at 9 a.m. that day. Later that day, around 12:30, President Schwartz called Russell out on to the sidewalk in front of the plant and, as Russell testified, told him as follows: I better not hear you going to the union again, and that if you have any grievances, you come to me. I have a shop steward at the other place and he's nothing, all the men come to me with their grievances, and that if you have a grievance, you come to me and we'll work it out. Russell replied that he would like to make the same as the other rebuilders since he did as much work as the others. 2 Foreman Gronke admitted that he told Russell on this occasion that it would not be a good idea to go down to the Union at the present time because things were "rough" and that if there was any chance of a layoff he might be the first man laid off as he was the last man hired . Even under Gronke's version of the conversation , the statement violated Sec. 8(a)(1) of the Act. By linking Russell's going to the Union with the possibility of a layoff, Gronke subtly threatened Russell with retaliatory action for engaging in an activity protected by Sec. 7. 3 Although Van Bibber did not recall having given Russell a copy of the contract on this occasion , Russell was so positive of his identification of Van Bibber that I am convinced that his recollection is more accurate than Van Bibber's. In any event, except for credibility purposes, it is immaterial which business agent gave Russell the agreement. 4 Schwartz denied having any such conversation with Russell . However, it is wholly consistent with Schwartz' layoff of Russell on October 4, 427 Schwartz, stating that he did not have the money, left the premises.4 President Schwartz' instructions to Russell not to go to District No. 9 with his grievances clearly infringed a fundamental right guaranteed by the Act to employees who have chosen union representation. Accordingly, such conduct violated Section 8(a)(1) of the Act. Cf. Dr. J. C. Campbell et at, 157 NLRB 1004, 1008-10, 1012. On Thursday, September 30, Foreman Johannpeter and Gronke told Russell it was the wage price freeze which was responsible for Russell's not receiving the same wages as the other rebuilders, and at the same time gave Russell a document apparently supporting their assertion. This prompted Russell to go to the office of District No. 9 a second time. Russell left the plant at 2 p.m. that day and did not return that afternoon. The next morning, Friday, October 1, about 9 o'clock General Manager Gelfand spoke to Russell as follows: "You went to the union, right?" I said, "Right." He said, "Are you going to file a grievance," and I said, "Right, I am." Then he said, "I would like 20 carburetors a day from you now," and then he turned around and walked away .5 While the goal set by the Respondent for its rebuilders was 20 carburetors a day, Russell's undenied testimony is that not a single rebuilder regularly rebuilt 20 carburetors a day. Russell's own average, according to his testimony was 13 to 15 a days In these circumstances Gelfand's 20 carburetors-a-day statement to Russell amounted to an illegal threat to impose more arduous working conditions upon Russell for indicating that he was going to file a grievance with District No. 9. Furthermore, Gelfand's questioning of Russell as to whether he was going to file a grievance, when considered in the light of the threat which immediately followed Russell's giving an affirmative answer, constituted a further violation of Section 8(a)(1) of the Act. Shortly. after Gelfand's conversation with Russell on Friday morning, October 1, Russell approached President Schwartz with an inquiry about his wage rate. Schwartz suggested that they go out on the sidewalk hi front of the plant to discuss the matter. Russell asserted that he was entitled to the same wage rate as the other rebuilders, claimed that he was entitled to backpay for an unstated period, and urged that he had a day's pay coming to him for the holiday on his birthday which he had not been given. Schwartz asked Russell why he had not come to him sooner, if he believed he had an increase in pay coming to him. Russell did not answer. Schwartz stated that he could not worry about back wages, but that he would give immediately upon being informed of Russell's filing of a grievance, for Schwartz to have made such a statement. Russell impressed me as attempting to testify truthfully, Accordingly, I do not credit Schwartz' denial. 5 The above-quoted testimony is Russell's . Gelfand categorically denied having this conversation with Russell . The statement attributed by Russell to Gelfand does not seem to me to be one which an employee would be apt to fabricate. President Schwartz' own testimony and conduct establishes that he resented Russell's going to District No. 9 with a grievance. Gelfand's statement is wholly consistent with such an attitude. Under all the circumstances, I credit Russell's testimony above-quoted. 8 Although as found above, Foreman Gronke keeps productions records for all the rebuilders, these records were not offered in refutation of Russell's testimony. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Russell the regular rebuilders' wages commencing on the following Monday.? At 2 p.m. on Friday, October 1, Russell notified Foreman Johannpeter that he was going down to the office of District No. 9 ditd-fil ievance. Johannpeter said "O.K." At the union office Russell filled out the grievance form in which he claimed that he was entitled under the agreement to higher hourly wages, backpay, and birthday holiday pay. Also included in the grievance was a reference to the 40-hour workweek provision. At the Distract No. 9 office Russell was instructed to give the foreman a copy of the grievance when he returned to work. Russell did not go back to work that Friday afternoon. On the following Monday, October 4, Russell reported for work at 8 a.m. as usual. Russell gave Foreman Johannpeter a copy of the grievance. At 9 a.m. President Schwartz summoned Russell from his workbench to the sidewalk in front of the office. Schwartz, holding the copy of the grievance in his hand, told Russell that he was going to have to lay him off, explaining that he did not have enough money. Schwartz then had Foreman Gronke, Russell's father-in-law, sent out in front. After Gronke arrived, Schwartz told him that he was going to have to lay Russell off and that he hoped that there would be no hard feelings. Gronke replied, as Russell testified, that there were "no hard feelings at all." Then Gronke said to Russell, "Well you done this to yourself, buddy boy, I tried to warn you."8 No mention was made by Schwartz that Russell would be given a week's pay in lieu of the week's notice required by the union agreement .9 The very day that Russell was laid off the remaining employees were restored to a 40-hour workweek. 4. The Respondent's contentions concerning Russell's layoff; conclusions The Respondent contends primarily that Russell was laid off for economic reasons, although it in effect concedes that the layoff was accelerated by I week because of Russell's filing of the grievance with District No. 9. President Schwartz testified that over the weekend, after his discussion with Russell on Friday, October 1, he decided because of economic conditions to give notice to Russell, on Monday morning, October 4, that he would be laid off a week later, but that he "might have pushed it up an extra week . . . when [he] saw the grievance." 10 Schwartz also testified that he selected Russell because he had the least seniority of any employee at the plant, and that since the layoff of Russell he had not hired any employee to replace Russell. Regarding the Respondent's claim of economic necessi- ty, Schwartz testified that the Respondent's business had been in a slump during all of 1971. Schwartz, however, did 7 The foregoing findings are based on the testimony of President Schwartz Russell denied having any conversation with Schwartz on October I However, I believe Russell's recollection is faulty in this regard B Gronke's version of this statement is as follows "Richard Russell started all of it, he can end it." 9 While at first Schwartz testified that he told Russell at the time of the layoff that he was going to pay him for the full week, Schwartz later admitted that he was sure that Russell did not know he was going to be offered this pay when he and Russell parted on October 4 not produce any monthly sales records to substantiate his testimony in this regard.ii However, the Respondent did furnish records prepared by a certified public accountant which indicate that the Respondent's financial position deteriorated during 1971, that it suffered a net operating loss of $2,148.98 for the year, and that it experienced a substantial net decrease in working capital. The Respon- dent also produced records showing that for 2 weeks in July 1971, the whole month of August, and the first 2 weeks in September the employees' hours were reduced from 40 per week to 37 1 /2 hours, and in the last 2 weeks in September the employees hours were further reduced to 30 hours per week. In further support of the Respondent's contention that Russell's layoff was economically motivated Schwartz testified that his customers were very slow in meeting their obligations and that consequently at times he had extreme difficulty in meeting the Respondent's payroll. Considering all of the facts of the case, I am convinced that Schwartz' layoff of Russell on October 4 was prompted by his resentment of the fact that Russell had filed a grievance with District No. 9. Not only did Schwartz virtually admit as much but he also testified that he was "pretty peeved" at Russell's conduct. Furthermore, Schwartz' action in hastily removing Russell from the payroll without giving him an opportunity to work out the week, as he assertedly had decided to do over the weekend, and without offering Russell a week's pay in lieu of notice, as he was obliged to do under the labor agreement, clearly indicates that much more was involved than a layoff for economic reasons. I conclude that Russell's layoff was motivated by prohibited considerations and that it violated Section 8(a)(3) and (1) of the Act. However, I am equally persuaded that the Respondent was in financial difficulties and that a reduction in force was inevitable. The reduced workweek, including the reduction to 30 hours a week which the employees consented to in writing shortly before Russell's layoff, indicates the employees' recognition that the Respondent was having serious problems. With the labor agreement providing for a guaranteed 40-hour week and District No. 9 alerted to the fact that the Respondent was not observing this contractual requirement, it was only a matter of time before the Respondent would be required to reduce its force so as to enable it to come into compliance with the 40-hour week guarantee. Russell, as the junior employee on the Respondent's work force, would be the employee affected under the seniority clause of the labor agreement. The fact of the Respondent's financial difficulties and the necessity for a reduction-in-force will be taken into consideration in framing the remedy. 10 As found above, the labor agreement provided for a week's notice, or pay in lieu thereof, in case of employee terminations 11 The Respondent did supply monthly sales figures for the months of October 1971 through January 1972 However, these figures are not helpful in that they cover a period after the decision to lay off Russell was made and no figures for earlier months , to afford a basis for comparison, were supplied In any event, the figures as to sales for October through December 1971 average about $9 ,600 a month, which was the average monthly sales volume for all 12 months in 1971 MASCO PRODUCTS, INC. 429 CONCLUSIONS OF LAW 1. By threatening Richard Russell with discharge, layoff, and more arduous working conditions if he filed a grievance, by instructing Russell not to go to District No. 9 with a grievance but rather to take any grievance directly to the Respondent's president, and by coercively question- ing Russell as to whether he was going to file a grievance, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. 2. By laying off Richard Russell for filing a grievance with District No. 9, the Respondent has engaged in discrimination in regard to tenure of employment, thereby discouraging membership in District No. 9 in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that the Respondent has engaged in unfair labor practices, my recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent laid off Richard Russell in violation of the Act and also that because of economic conditions at the plant Russell would have been laid off at some later date. To remedy this unlawful layoff my recommended Order will require that the Respondent reinstate Russell to the first job becoming available at the plant after his layoff, dismissing if necessary to make room for Russell, any employee hired since the date of Russell's layoff. If the first job becoming available at the plant is one as a "teardown" man, Russell shall be offered this job, but at the rate of pay for "teardown" men. Whether or not Russell refuses an offer of a job as "teardown" man, he shall nevertheless be entitled to an offer of the first job becoming available as a carburetor rebuilder. Any offer of reinstatement made to Russell shall be without prejudice to his seniority and other rights and privileges. Should the Respondent fail to offer Russell the first job becoming available after his layoff, Russell shall be entitled to backpay at the rate of the job becoming available commencing with the date the job became available and continuing until the date the Respondent offers Russell reinstatement, less Russell's net interim earnings. Fashioning a backpay remedy in a case like this is difficult because it is almost impossible to determine with accuracy what course the Respondent would have pursued had it not suddenly laid off Russell without notice. President Schwartz asserts that Russell would have been laid off a week later, in any event. Of this I am doubtful. Prior to Russell's filing of the grievance, although the Respondent's financial situation remained about the same, 12 In the event no exceptions are filed to this recommended Order as provided in Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 10(c) of the Act and in Sec. 102.48 of the Rules Schwartz had let the situation drift for many months without resorting to a reduction-in-force. There are certain factors which limited Schwartz' freedom of action, howev- er. Schwartz could not continue ignoring the guaranteed 40-hour week provision of the labor agreement indefinitely, particularly since District No. 9 had been made aware in connection with the filing of Russell's grievance that the employees were currently on a 30-hour week. Business Agent Van Bibber testified that, upon a request from the employer, District No. 9 would sanction a departure from the contractual requirement for a 30-day period, with the possibility of an extension for another 30 days. Van Bibber further testified that at the option of the employer, he could at any time resort to a reduction-in-force, laying off the junior employees, in order to make it possible to give the remaining employees 40 hours a week. In this kind of a situation, in my opinion, it is appropriate to arrive at an approximate remedy. In view of all the facts of the case it is my opinion that a reasonable remedy would be one based on the assumption that the Respondent would have kept Russell on the payroll for 4 additional weeks of 37 1 /2 hours. The 4-week provision is a compromise, taking into consideration, on the one hand, the fact that under the labor agreement the Respondent could resort to a reduction-in-force at any time to bring itself into compli- ance with the 40-hour week requirement and, on the other hand, the fact that the Respondent might have been granted up to 60 days by District No. 9 to bring itself into compliance. In view of the fact that immediately after Russell's layoff the Respondent restored the remaining five employees to a full 40-hour workweek, I do not believe it reasonable to assume that had Russell not been laid off that the Respondent would have kept all the employees on a 30- hour workweek any longer. Six employees working a 30- hour week would not have been able to produce the volume of work actually put out by the five employees who worked a 40-hour week after the layoff. In addition, the 30- hour workweek resulted in such a drastic reduction in the employees' pay that the Respondent could not have expected them to put up with his contractual violation much longer. For the foregoing reasons I find that Russell is entitled to backpay calculated on the basis of 4 37 1/2-hour weeks at $3.60 per hour, less his net interim earnings. Russell's backpay shall include interest at 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER 12 The Respondent, Masco Products, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Associa- 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. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of Machinists and Aerospace Workers District No. 9, or any other labor organization, by laying off or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of employment. (b) Threatening employees with discharge, layoff, more arduous working conditions or other reprisals for filing grievances with their collective-bargaining representative. (c) Directing or instructing employees not to take up grievances with their collective-bargaining representative. (d) Coercively questioning employees concerning the filing of grievances of other union matters. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Richard Russell reinstatement to the first position as either "teardown" man or as carburetor rebuilder becoming available after Russell's layoff, without prejudice to his seniority and other rights and privileges, and pay him backpay, all as provided in the section of this Decision entitled "The Remedy." (b) Notify Richard Russell, if presently serving in the Armed Forces of the United States, of his right to' reinstatement as provided herein upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, 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, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (d) Post at its plant at St. Louis, Missouri, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representatives, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. i4 i 13 In the event that the Board's Order is enforced by a Judgment of a 14 In the event that this recommended Order is adopted by the Board United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read. Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 14, in writing, within 20 days "Posted Pursuant to a Judgment of the United States Court of Appeals from the date of this Order, what steps the Respondent has taken to comply Enforcing an Order of the National Labor Relations Board " herewith "