Advance Carbon Products, Inc.

ADVANCE CARBON PRODUCTS, INC. 741 Advance Carbon Products, Inc. and International Brotherhood of Electrical Workers, Local 1969, AFL-CIO. Case 20-CA-6747 August 7, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 10, 1972, Trial Examiner E. Don Wilson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions' and brief and a separate motion and brief urging nonsuit and judgment for Respondent. The General Counsel filed an answering brief.2 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 Respondent's motion of nonsuit and judgment for Respondent3 and the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: An initial charge was filed by International Brotherhood of Electrical Workers, Local 1969, AFL-CIO, herein the Union, on May'12, 1971, and amended by the Union on June 24, 1971. Upon the charge as amended, the General Counsel of the National Labor Relations Board, herein the Board, issued a complaint alleging that Advance Carbon Products, Inc., herein Respondent, has violated Section 8(a)(1) of the National Labor Relations Act, herein the Act, and notice of hearing, dated June 25, 1971. Respondent's answer to the complaint was timely filed. Pursuant to due notice, a hearing in this matter was held before me in San Francisco, California, beginning October 7, 1971, and ending October 18, 1971. All parties but the ,Charging Party fully participated. Oral argument was 'waived. Briefs were received January 6, 1972. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a California corporation, engaged at its San Francisco, California, location, in the manufacture and sale of carbon brushes and, specialty products of carbon and graphite. During the past year, in the course of its business, it sold and shipped products valued in excess of $50,000 directly to customers located outside the State of California. At all material times, Respondent has been an employer engaged in commerce within the meaning of the Act. 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 Respondent, Advance Carbon Products, Inc., San Francisco, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 Although Respondent's exceptions are designated "objections" to the Trial Examiner's Decision, we find that they may properly be treated as exceptions under the requirements set forth in the Board's Rules and Regulations, as amended. Accordingly, the General Counsel's motion to strike these exceptions is hereby denied. 2 Contrary to Respondent's contention, we find that the General Counsel's answering brief complie's with the requirements set forth in the Board's Rules and Regulations, as amended, and therefore is properly before us for consideration. 3 We have carefully considered the several grounds urged by Respondent in support of its motion, and we find no evidence that the rulings of the Trial Examiner have in any way been prejudicial to the rights of Respondent. Accordingly, Respondent's motion of nonsuit and judgment for Respondent is hereby denied. 198 NLRB No. 106 II. THE LABOR ORGANIZATION At all material times„ the Union has been a labor organization within the meaning of the Act. In. THE UNFAIR LABOR PRACTICES, A. The Issues The material issues are whether Respondent terminated Nathaniel King on April 26, 1971,1 and terminated Bruce Backus on or about May 6, because either or both engaged in protected concerted activities, thereby violating Section 18(a)(1) of the Act and if King were so terminated, should he be reinstated with backpay. B. Background On January 29, the Board, in the absence of exceptions, adopted Trial Examiner Irving Rogosin's Decision of I I I Hereinafter, all dates refer to 1971, unless otherwise stated 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 16, 1970, finding Respondent had violated Section 8(a)(1), (3), and (5) of the Act. Some of the credibility findings therein are similar to some I shall make herein. C. Concerted Activities Not Related to King's and Backus' Dealings With the FEPC While each and both griped and complained, etc., about working conditions between themselves and with other employees, in the comparatively small plant area, and probably to the knowledge of management, so did other employees and I find insufficient probative evidence that Respondent resented or had an animus against such activities in those broad circumstances. I shall find Respondent did have an animus against the activities of King and Backus and the extent to which their gripes, etc., were tied in to their FEPC activities, e.g., their meeting with Respondent's representatives and Bob Michaud, the, FEPC consultant or investigator, when King and Backus were vociferous in stating complaints about working conditions,2 arising out of King's charges filed with the FEPC. I find, based on the entire record, that whatever concerted activities King or Backus may have engaged in they had no bearing on their respective terminations, with the one exception of their various dealings with the FEPC. I shall further find that the reasons advanced by Respondent for terminating King and Backus were pretextual and designed to cover the real reasons, King's and Backus' conjunctive cooperation with the Fair Em- ployment Practices Commission, in connection with charges there filed involving the working conditions of employees. D. King, in Particular, and in Part, Backus, Until King's Discharge on April 26 King was hired May 14, 1970, and terminated April 26. For real or other reasons, he filed a charge against Respondent with the FEPC on March 19.3 On the previous day, King had called the FEPC from a telephone located on Respondent's premises.4 He told a young lady there that he had been referred to the FEPC by another agency which advised him the FEPC could help him. He observed Respondent's vice president, Hubert Hyde, standing right next to him, and then cut the conversation short by saying he couldn't speak freely because some one of management was standing next to him and could hear what he was saying. In the meanwhile, he had narrated most of the substance of his complaints. By subterfuge he received time off, the next day, and visited the FEPC, spoke to its 2 Fellow employee Kaiser was also then present but did little talking. 3 At that time, Respondent had about nine employees. King was the only black. Other employees were Filipinos, Mexican-Americans, and a few whites. Respondent's officers were whites and, for the most part, closely related. 4 His demeanor impressed me very favorably. In light of the entire record, I find he tried to be and was an honest witness. I credit his testimony. 5 There is no evidence that on this day Respondent knew King had already filed his charge with the FEPC. King had been advised in no way that he was going to get this raise 6 Parker was later rehired and was the white employee with whom King consultant, Bob Michaud, and filed charges against Respondent with that government agency. When he returned to work that afternoon, he received his paycheck, along with other employees. Secretary and Shop Superin- tendent William Crader, Sr., hereinafter called Crader Sr., to distinguish him from his son, William Crader, Jr., Respondent's president, while giving King his check, smilingly asked him if he noticed anything different. King noticed, and then replied he got a raise. Crader Sr. told him he had been doing good work. This was the fourth or fifth raise King had received during his employment of less than a year. Considering the record as a whole, I find this raise was, particularly in light of its timing, given to discourage King from continuing complaints to the FEPC as over- heard by Hyde on the preceding day.5 The charge filed with the FEPC by King contained a variety of allegations, including alleged misconduct by an ex-employee named Jerry Parker.6 Soon, Michaud visited Respondent's plant and served a copy of King's FEPC charge upon Hyde. After first stating the complaint was untrue, Hyde indicated he was upset and inquired why King had not first gone to Respondent. Hyde continued, saying "Jerry Parker was a s-it disturber and we terminated him a long time ago." 7 Crader Sr. in no way impressed me as an honest witness. He appeared determined to serve Respondent's cause without regard to the truth of his testimony, which I do not credit unless it is against Respondent's interests or is corroborated by otherwise credited testimony. He admitted that members of management, and particularly he, didn't "like" the filing of a charge with the FEPC by King. About an hour or two after Michaud served Hyde with a copy of the charge, Crader Sr. came into the shop area with an FEPC poster and loudly stated Respondent did not discriminate. The sign was posted by Respondent. Shortly thereafter, on April 7, Respondent called all the employees together for a meeting in the soldering area. Crader Sr. handed King a letter,8 having told the employees they had seen King's FEPC complaint. Crader Sr. told King to read the letter he had been given aloud to his fellow employees. King read part of it, as ordered, put it down and called it "garbage." Fellow employee Kaiser read about three-fourths of the balance and then said he wished to read no more. King then finished reading it aloud after Crader Sr. asked him to. The April 7 letter just referred to is a long two-page letter addressed to "All Employees" and was signed by President William Crader, Jr. It amply and clearly reveals the animosity King's charges of discrimination filed with the FEPC aroused in Respondent. That King was required to read it aloud to his fellow employees makes abundantly had a serious fight, or fights, for which King was allegedly discharged at a later date T This finding is based on the credited testimony of Michaud, who impressed me as a completely honest witness. That he had earlier in his career worked for unions has been considered by me but affects my credibility finding not at all. He was honest and forthright in his manner and appearance. In passing, it may be noted that Parker had not been terminated by Respondent in the past but rather had quit his employment with Respondent on two occasions in 1970. He was rehired April 15, after Respondent had been served with the FEPC charge. 8 G.C. Exh. 3. ADVANCE CARBON PRODUCTS, INC. 743 clear Respondent's virulent reaction to King's charges. It would serve no useful purpose to here restate the entire letter. In part, the April 7 letter refers to King's charges as "outright slander." It describes one of King's charges as "an outright distortion of the truth and facts."9 It further states, "Last but not least you will note the sworn statement may [sic] under penalty of perjury, signed by Nathaniel King. I don't know how the rest of you feel about this, but I feel, based on facts not fiction, that this statement is perjury." In this letter, Respondent acknowl- edged it was neither required to post King's FEPC complaint nor even to discuss it, nonetheless it required King to read aloud to his fellow employees Respondent's long answer including an allegation that King was a perjurer, in Respondent's eyes. I, find that this was a deliberate effort by Respondent to demean, degrade, and derogate King because he had filed charges of discrimina- tion against his employers with the FEPC. Respondent ended its long statement to its employees with an obviously sarcastic request that "everyone-be nice to Nathaniel King" and announced that the balance of the week would be, "Be kind to Nathaniel King Week ." 10 King was instructed by Crader Sr. to return to work when he concluded reading Respondent's April 7 letter aloud to his fellow employees. After work, King advised Michaud about the day's developments and was advised Michaud would visit the plant and speak to management. Crader Jr. called Michaud the next day and said King was causing all kinds of trouble but would not elaborate on that. On April 9, Michaud visited Respondent's plant and announced he wished to question each of the employees who were present on April 7.11 Crader Jr. told Michaud King's production had fallen off and the conversation became heated to the extent that Crader Jr.'told Michaud he was all wet on the complaint and none of it was true and Michaud was "an asshole." 12 On April 19 , Crader Jr. again called Michaud by phone and said King was messing up production and deliberately destroying property.13 Michaud said he'd have to come over and see the evidence and he'd be there the next day. Michaud visited Respondent's plant on April 20, meeting with Crader Jr., Crader Sr., Ron Crader, and Hyde. In an effort to resolve the entire problem , Michaud arranged for King, Backus, and Kaiser to be called into the meeting. Backus, King, and Kaiser, the last to a much lesser extent, brought up and discussed a variety of grievances they believed they had. Crader Jr. showed a box filled with 9 Of particular note, for future discussion, Crader Jr refers to Jerry Parker in this letter as follows: "Jerry Parker was warned on numerous occasions to cease his hostilities and to cease using derogatory and degrading terminology. Jerry Parker left our employ about 7 months ago." (He was rehired by Respondent about 1 week after the letter was read.) to I find none of the "humor" Respondent allegedly intended to evoke by this proclamation 11 He did so excepting for one employee who was absent. 12 King received no warning or warning letter, because of lack of production. 13 No credible evidence of truth of such allegations. 14 Crader Jr. testified he considered Backus had a very argumentative and surly manner and he had to tell him, "Just sit down " He considered carbon products alleging that King had deliberately fouled them up. There was much discussion back andiforth.14 At the conclusion of the meeting, Michaud left, stating his hope that matters could be resolved, although the discus- sions on both sides, excepting perhaps for Kaiser, became rather heated, particularly in so far as Crader Sr. was concerned. Thereafter, Crader Sr. regularly came to the production area where King and Backus worked and complained daily that production was too low. He would pull out a little black book and write in it and King was often reprimanded by him. They were required to punch in and out , on production timecards.15 Crader Sr. reprimanded King for the least flaw in his work.16 Parker was rehired by Respondent on April 15, shortly before the Michaud meeting. Crader Sr. brought Parker to various employees. Crader Sr. brought Parker to King and said, "Nat, Jerry is back with us now. He won't call anyone any names. He won't make any threats or anything like this." 17 King replied it was all right with him, and King was doing his job. The employees were told they would accept their orders from Parker and "he would not cause any more trouble." (Emphasis supplied.) is In September 1970, King had physically struck Parker outside the plant. In early 1971, Parker punched Vice President Ron Crader outside the plant 19 Reference may be made to Respondent's April 7 letter to all employees, particularly with reference to Parker's "hostilities" and use of "derogatory and degrading terminology." 20 Not long after- Parker was rehired, on the afternoon of April 26, Crader Sr., about 2:30 p.m., came to King, gave him a letter in an envelope, and told King to read the letter back to Crader Sr. The letter was signed by Crader Jr. and was dated April 26. In part, it stated Respondent understood King had threatened employees Leo Maxwell and Jerry Parker with physical violence. The letter obviously assumed these to be facts, stating that King was to "cease and desist uttering such threats" or in any other manner harassing company employees, adding that a repetition would require "appropriate disciplinary action." King explained to Crader Sr. that he did not know, what the letter was all about and asked if he could speak to someone about it. Crader Sr. told King to get back to work. King asked whom he had threatened. Crader Sr. replied, Maxwell and Parker, and again told King to get back to work. King asked Crader Sr. for a' private conference. He was again told to get back to work, in very loud tones. King tried, but he could not work. He "had gotten the shakes." The record discloses that King had had about 3 Backus, in his discussions at this meeting called by the FEPC representative, to be guilty of "gross insubordination." 15 Perhaps this had been done on other occasions, 16 He had not so acted prior to the FEPC complaint Bear in mind that Backus made it plain that he joined with King in his activities, at the Michaud meeting. 17 Obviously, Crader Sr. was aware of Parker's past misdeeds. 18 Obviously, more awareness of Parker' s traits. 19 Supposedly by invitation. 20 Much was made by counsel for both sides about new and old misdeeds of King and Parker. But, Crader Jr. testified the reason for firing King was his fight with Parker on April 26. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD active years' service as a United States Marine, with about 1 year's combat service in Vietnam where he was wounded. He was thereafter a victim of apparently uncontrollable shaking when subjected to states of great tension.21 Management had been made aware before King filed his FEPC charges that King was subject to this condition. Respondent had never inquired of King about these alleged threats before serving him with the April 26 warning letter.22 Upon finding himself unable to work because of the "shakes," King approached Parker and asked him if he, King, had ever threatened him and Parker replied, "No." King pointed to the warning letter and Parker then said, "Oh, yes, you did." 23 King then requested permission of Parker to go up to the office and speak to management. This was refused. King nonetheless took the liberty of going up to the office. He knocked on the door and Crader Jr. asked him what he wanted. King said he couldn't work under the adverse conditions and denied that he had threatened anybody and he couldn't work under the shop conditions as,they were right then. King was still nervous and shaking zCrader Sr. who had just recently given King the warning letter, slammed shut a phone book, jumped up and said, "Get the hell back to work. Get out of here." King asked if they could discuss the matter, pointing out that he had the "shaakes" and couldn't work. Crader Jr. told King to talk to him at 4:30. Crader Sr. kept yelling that King should get back to work. King explained that he couldn't work under existing conditions and would like to discuss his problem then. He repeated that he had the "shakes," and showed them his hands. He tried to explain his, mental and emotional condition to the Craders. Crader Jr. repeated that King should see him at 4:30 and Crader Sr. continued to tell him to "get the hell out," finally again opening and slamming the phone' book. Crader Jr. then said, "Well, Nat, punch out and go home and take the rest of the day off and we'll see you tomorrow." King thanked him and started down the steps from the office to the work area. Crader Sr. was right behind, telling him to get out. King again inquired what he had done and Crader Sr. said to him, "You punch out, get the hell out of here now. Get his check." 24 I find that then and there Crader Sr. terminated King.25 I shall hereinafter elaborate on the reasons for the termination.26 Here, I state only that I shall find King was discharged by Crader Sr. because he 21 While on the stand, tears appeared in King's eyes when questioned about somepf his service experiences. A recess was quickly taken and the questioning on this line ceased. 22 Parker admitted in his testimony that from the time' Parker was rehired on April 15, until the time of a fight with King on April 26, later to be discussed, King had never threatened him with any kind of violence. He admitted that he had only told Respondent that King had asked him to sign a union card and that upon his refusal, King had told Parker he probably wouldn't be working after April 26. 23 Respondent's witness, Gabriel Vicano, corroborates this portion of King's credited testimony. 24 Obviously to someone else. I do not know whom. 25 I have carefully noted and considered and do not credit Crader Sr 's denial that he fired King on this occasion. I note that Crader Sr who had ample opportunity to deal with Backus and King throughout their employment, considered each not to be untruthful in the workshop. Crader Sr admitted that he issued the warning letter of April 26 without checking the truth or falsity of the statements contained therein with King at any time. The discharge was because of King's filing the charge with the FEPC on behalf of himself and other workers and in cooperating in its engaged, at least with Backus, in protected concerted activities in connection with .the FEPC. Immediately after this discharge, King went to Backus' work station, not far from Parker's place of work. King spoke to Backus, explaining that he had just been fired and asked for his tools. Backus and King shook hands. Parker turned around during this brief conversation and said, "You niggers are all alike." King turned around, looked at Parker, walked over to him and asked Parker what he had said. Parker first mumbled and when King again asked Parker what he had said, Parker repeated, "You damn niggers." 27 Then and there in the work area which was in a potentially dangerous condition for such activity, King took a swing at Parker, did not connect, but for the next minute or two, Parker and King engaged in a rough and tumble altercation involving much wrestling, blows, per- haps kicks and knocking or shoving each other into various pieces of machinery.28 Each of the participants received visible injuries, Parker bleeding from the mouth and possibly elsewhere, and King bleeding from the inside of the ear, subsequently requiring 14 stitches. The fight was broken up by Crader, Sr. and Crader Jr.29 Both Backus and King truthfully testified Parker had called King a "nigger" before any violence occurred between them. Parker denied saying anything to King, even when King allegedly taunted him to hit King.30 Respondent's witness, Ashton, testified he observed Parker turn his head and say "something" before the fight but he didn't know what 31 Respondent's witness, Vicario, testi- fied that for a couple of seconds before the "first" fight King and Parker were loudly yelling back and forth at each other. I do not find Parker to have been an honest or frank witness. He testified he quit his job in September 1970 because he "got tired of getting [his] ass chewed out by Bill Crader, Sr." He denied that the reason for his quitting in September 1970 was because of a fight he had had with King. In a pretrial affidavit, Parker swore he quit in 1970, because King broke his nose, "and I said `the hell with it.' I don't know why I got into a fight with Nat." He testified he didn't know if King received any injuries in the April 26 fight and noticed no blood on King. He made the same statement in an affidavit he gave to Respondent after the fight. However, later in his testimony, he admitted he saw blood in King's ear and that the inside of King's ear was red and bloody. In passing, I note that Crader Sr. also investigation along with Backus. 26 I have carefully considered the testimonies of the Craders , Jr. and Sr., as to the events in the office on April 26 and immediately thereafter I credit King's version. 27 Or something similar. 28 I find incredible testimony from various witnesses that prior to this, the so-called first fight, King had walked or raced around the plant with a "crazy laugh" or had "sung" or made sounds something like, "La-de-da," etc. 29 Respondent called many fellow employees to testify about the fight and to establish that Respondent sought their versions before sending King a telegram of discharge the next afternoon. In most instances, these witnesses contradicted their statements, or their own or each other's testimony It is enough that I have found the first fight started with King being in a state of great tension, having been called an opprobious racial epithet and having cast the first unavailing blow. 30 Such never happened 31 Ashton also testified his relationship with King was not good. King had done him a wrong. ADVANCE CARBON PRODUCTS, INC. testified he never observed any injury with respect to King and swore there was no blood on King at all and King was unmarked. I find, based on the probative evidence, that King had a bloody ear and also a contusion or swelling on his forehead.32 Shortly after this "first" fight was broken up, Parker left for the washroom. Backus told the Craders he saw what had just happened and he heard Parker call King a "nigger." Crader Sr. told Backus he had seen nothing and to get back to work. Crader Jr. admitted hearing Backus say, "I seen him [Parker] call him [King] a nigger."33' With that fight broken up, Crader Sr. said to King, "I thought I told you to get the hell out. Did you punch out?" King said he had but wouldn't leave without his tools. Crader Sr. again told him "to get the hell out now." After more bickering between Crader Sr. and King, Crader Sr. said,he thought he had told King to punch out and get his check. I find Crader Sr. was here referring to his earlier discharge of King near the office and before the fight. King made references to his tools being stolen and called management and perhaps Crader Sr. a thief. They, particularly Crader Sr., Crader Jr., and King, moved to another area. Again there is much conflict in detail as to just what happened here, the scene of the so- called second fight. I explicitly do not credit Crader Sr.'s testimony that on this occasion King reached his arm through a crowd of employees and rubbed or ripped or otherwise placed his open hand across Parker's face, from the rear. Such finds no support from the many other conflicting witnesses to this incident 34 I again credit King's version, not materially controverted by others excepting Crader Sr. In this new area, King was still arguing with the Craders about not leaving without his tools when he again observed Parker, this time with a smile or grin on his face, while Crader Sr. kept "saying to King, "Get out and get out now, get the hell out, get the hell out, get out now." Observing the grin on Parker's face, King again swung at Parker, this time connecting. Parker fell off the desk, jumped up, saying, "I'll kill the black bastard" and King challenged him, saying, "Kill me." They wrestled briefly, Crader Jr. and Sr. trying to break it up. Crader Jr. 32 Crader Sr. must have been aware of it. 33 Crader Sr. incredibly dewed hearing this 34 Such was untrue 35 Obviously, participation in concerted activities protected by the Act. 36 He at least could have been reached by phone or through Michaud. 37 Crader Jr., at least, knew from Backus that Backus claimed to have heard Parker call King a "nigger." I find he heard Parker refer to King as a "black bastard" after the second fight began. Ina letter to all his employees, 2-1/2 weeks earlier, he told them, "Jerry Parker was warned on numerous occasions to cease his hostilities and to cease using derogatory and degrading terminology." Parker dewed he was ever so warned. Crader Jr., while admitting Parker "was just too agressive in his approach" and while admitting that the derogatory, etc matter was in his April 7 letter,; testified he did "not in that sense" warn Parker ono numerous occasions to cease using derogatory and degrading terminology. Fifty pages later, he swore the statement about Parker and his language in the April 7 letter wa$ a "true statement" Acibedo testified Parker had referred to him as Ila "lazy Mexican." He was Respondent's witness. 38 Before any "investigation." 39 He had heard, personally, immediately after the first fight, that it had started right after Parker called King a "nigger." Yet, although he conducted an "investigation" among his employees, excepting Backus and King, he did not ask any of his employees if they had heard Parker refer to King as a "tugger." Such would be a form of degrading or derogatory 745 called upstairs to Hyde and yelled, "Call the police." King broke loose, ran out of the plant, into and away in his car, drove to his home where he saw a police car, continued to his mother's home, and there phoned Michaud. Michaud brought him to a hospital where his inuries received attention. Immediately after the second fight, Backus told Crader Sr. he was clocking out and was going to the FEPC to file charges. Crader Sr. told him there was no need for him to do so because he had already called the FEPC. Backus clocked out and gave his timecard to Crader Sr. and went to the FEPC.35 After consulting their attorney, management sought statements from Respondent's employees that evening and the next day, asking them to write what they observed and whether they saw Parker hit King with a box or pipe. Notably, they did not ask King for his version.36 That evening Michaud told Crader Jr. on the phone that Backus and King stated Parker had started the fight and had called King a "nigger." 37 In spite of Crader Jr.'s admission that right after the first fight Backus had told him Parker had called King a "nigger," Crader Jr. "suspended" King but not Parker on April 26,38 and in spite of being told on the evening of April 26 by Michaud that Backus and King claimed that Parker provoked the fight by calling King a "nigger" and in spite of my finding that Crader Jr. heard Parker call King a "black bastard" during the second fight, Respon- dent did nothing with respect to Parker. Crader Jr. testified that if he had known that the fight started because Parker had called King a "nigger," he would have fired Parker (and presumably not King). He testified he had no reason to feel Backus wouldn't tell the truth 39 As noted already, during the evening of April 26 and early the 27th, Respondent made an "investigation" of the events of the 26th so far as King and Parker are concerned 40 Statements from some employees, then taken, are in evidence and employees testified. Statements are incomplete, in many instances contradictory, e.g., King and "crazy laughs," or "singing" or "La-de-da-da" - and Parker saying nothing before the first fight, or Parker and language he had previously warned Parker about on numerous occasions. He testified he didn't believe that if Parker had called King a "nigger" it would be sufficient provocation for any resort to physical, violence. Yet a few pages earlier he had testified he would have fired Parker if he knew the fight started because Parker called King a "nigger ." He also testified, when asked if he didn't think it important to determine in his investigation whether or not Parker had called King a "nigger," "No, I wanted to see what he would admit in his statement and compare it with what the other employees would say:' Crader Jr. testified he wouldn't expect anybody to react in a violent manner, even a black, wounded, Marine combat veteran, if he were called a "nigger " He added he wouldn't expect anybody to react in a violent manner to anything Of course, he and his father used some physical force in twice separating Parker and King, Crader Jr. had written the unsubstantiated warning letter to King on April 26, although he testified he didn't recall Parker telling him that King had threatened Parker with physical violence and he further testified that before the warning letter of April 26, Leo Maxwell had never told him that King had threatened Maxwell with physical violence Of course, before the warning letter, King had never been asked if he had threatened either Maxwell or Parker with physical violence or for an explanation. Crader Jr. certainly hadn't made a "complete investigation" as he testified he was advised to do by counsel. 40 Crader Sr. certainly knew he had previously discharged King because he resented King stirring up trouble with the FEPC. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD King yelling loudly at each other before the first fight, etc. The, various testimonies of these employees in many instances were not consistent with their statements and in many instances contradicted each other. Crader Sr. and Crader Jr., in material matters, contradicted each other, e.g., did Backus tell the Craders that Parker had called King a "nigger" before the first fight, did King hit Parker with his fist at the beginning of the second fight or reach through a crowd of employees surrounding Parker and drag his open hand across Parker's face from the rear. I reemphasize that I have found Crader Sr. terminated King right after King's visit to the office and before the Parker fights. I note further Respondent's failure to inquire directly of King and Backus, especially after the latter had full opportunity to consult a "higher authority," 41 and the fact that Respondent was told by its counsel to take no action until it had discussed "the evidence or facts" with counsel. Allegedly it was only then, according to Crader Jr., after a full consideration by the "Review Board," that it was decided to terminate King. At 2:27 'p.m. on April 27, Crader Jr. sent King a telegram42 advising him there had been a complete investigation of the altercations of April 26 and the "Review Board" found that King "initiated" the assaults, and therefore King's employment was being terminated immediately. There would not appear to have been sufficient time for the "Review Board" to have met and thoroughly review available evidence, etc 43 Had Crader Jr. told the review board that he had been told by Backus immediately after the first fight that Parker had called King a "nigger" before there was any physical violence? It is interesting that Crader Jr. refrained, perhaps scrupulous- ly, from asking Parker or any other employee, or King, if Parker had first called King a "nigger." Crader Jr. admitted he would have fired Parker, if he had known Parker had first called- King a "nigger." Yet he either didn't question Backus' honesty in this regard, or deliberately refrained from seeking corroboration of Backus or even a refutation. This is the same Crader'Jr. who issued the April 26 warning letter to King without ever inquiring of Parker or Maxwell if King had indeed made threats of physical violence to them and who completely ignored King or any of his possible admissions, denials, or explanations in connection with the threats King was supposed to have made.44 E. Backus From April 27, Until His Termination on May 6 Backus45 worked in the production department. He was hired March 6, 1971. He, for a short time prior, worked for an automobile dealer. He was a journeyman machinist, member of the IAM, and had worked for Boeing more than 3 years. He had been in the U.S. Navy for 2 years.46 As noted, he was at the Respondent's meeting with Michaud of the FEPC on April 20, along with King and Kaiser, the last having little, if anything, to say, and Backus and King brought many grievances to Michaud's attention in the presence of Respondent's officers. He clearly demonstrated that he had aligned himself with King in his complaint to the FEPC. It was the beginning of a "bad time" for Backus. Crader Jr. considered that Backus, in making his complaints known to Michaud, had a very "argumentative and surly manner." 47 Crader Jr. also considered Backus to be "grossly insubordinate" at this meeting to which Backus had been invited.48 It is a fact that Backus punched out after King and Parker had their fights, Backus having told Crader Sr. he was gq'ing to the FEPC.49 Crader Jr. testified he had no idea why Backus left early that day and, he had made no inquiry of Backus. He further testified Backus' leaving "was only attributable to gross insubordination and arrogance." He never asked Backus where he had gone or why, when he left early.50 Other than Crader Jr. 's estimate of the nature of Backus' manner at the meeting with Michaud51 and Backus having clocked out early on April 26,52 I see little evidence that Backus was "grossly" insubordinate and arrogant 53 Without ever questioning Backus about it, Crader Jr., in the midst of his "investigation" of the Parker-King disturbances, found time to have typed a warning letter to Backus about his "gross insubordination and arrogance" particularly in "walking off the job without permission" on April 26. Backus was warned on the 27th that any action of a same or similar nature would require disciplinary action.54 Crader Jr. had never discussed with Backus his demeanor or alleged arrogance and insubordination at the Michaud meeting, or his leaving on April 26, or any other imagined misconduct of Backus.55 After Michaud visited Respondent and met with Respondent's officers, King, Backus, and Kaiser, Crader, Sr. came around King and Backus, watched them, wrote in a little black book, and checked their work. On the Friday before King was fired, Crader Sr. came to Backus and 41 The FEPC. 42 G.C Exh. 5. 43 I am mindful of the alleged participation by the union attorney who never testified. 44 The "Review Board" allegedly consisted of Crader Jr, Crader Sr, Ronald Crader, Hyde, Cassell, and the Union's attorney, Davis. (Davis did not testify) Crader Sr. testified the four first named met and then Cassell and Davis conferred by phone. During the few years Crader Sr. had been with Respondent there had, been about 25 terminations by Respondent. King's was the only instance in which there was a "Review Board." 45 1 find he was an honest witness who at all times tried to and did answer questions truthfully. 46 As compared with the apparent qualifications of his fellow employees, he was eminently qualified 47 Throughout his presence in the hearing room, Backus impressed me as having a very pleasing and gracious manner. 49 Parker, who was Backus' "supervisor" or leadman, testified he never saw Backus display insubordination. Backus just did his job. 49 More concerted protected activity. 50 There is no doubt in my mind that Crader Sr. knew where Backus was headed on April 26. Also on the 26th, Crader Jr. testified Michaud phoned him and gave him the versions of King and Backus as to the encounters with Parker Crader Jr. might have guessed-correctly and easily that Backus had gone to Michaud even if one were to assume Crader Jr. did not overhear Backus' statement to Crader Sr. about punching out and reporting to the FEPC or that Crader Sr. had not told him. 51 "Insubordination" at concerted grievances. 52 With full knowledge of and no refusal of superiors 53 I find he was not. He was not terminated for these reasons. I find Respondent dug them up to suit its ulterior motives. 54 G.C. Exh. 7. A copy was sent to Respondent's counsel. 55 Respondent hasn't contended that any of this alleged misconduct entered into Backus' termination. ADVANCE CARBON PRODUCTS, INC. 747 King and told them not to work together because he knew what they were talking about. Crader Sr. started using the little black book about April 15 56 Backus only saw Crader Sr. make notations in that book with respect to King and Backus. Crader Sr. also "yelled" at King and Backus more than at other employees.57 When Backus clocked out after the fights on April 26, he first told Crader Sr. he was clocking out and going to the FEPC to file charges. Crader Sr. replied there was no need because he had already phoned the FEPC and "they knew what had happened." I find Crader Sr. could not have done so by that time. When Backus clocked out he handed his timecard to Crader Sr. Thus he left with the full knowledge of the plant superintendent who expressed no disapproval. I find the April 27 warning letter to Backus was a not-subtle device in preparation for the unlawful get-riddance of Backus as Respondent had done with King on the day before. Excepting for Backus' activities protected by Section 8(a)(1) of the Act which Respondent considered "insubor- dinate," Backus at least as of April 27 and, in fact, until his discharge, was an ideal employee.58 Parker, his "supervi- sor," or leadman, swore Backus was at least an average employee. I find Respondent "dragged up" alleged failings of King and Backus as reasons for their terminations even though they did not "rely" on them as reasons for their terminations. They were not reasons. Respondent mightily tried to blacken the black King and the white Backus as justification for reasons of termination not related thereto. Respondent's testimony, in its final analysis, claims that King was discharged for attacking Parker and Backus was terminated for lack of work. Respondent insists that in spite of its unseemly treatment or unlawful treatment of Backus prior to and consonant with his discharge, his discharge was dictated and necessitated by Respondent's "economic reasons." Backus truthfully testified he had more work to do when he was "laid off." 59 He had seniority in point of time of hire over ' at least two other employees, including Parker.60 Backus had work waiting for him when he was "laid off."&1 I here find the "laid off" deal was "phony" and Backus was gotten rid of, fired, or discharged.62 Backus, the journeyman machinist, was assigned to assembly work with which he was not familiar right before his discharge, without sufficient instruction, and did not perform as a fully trained assembly man although he was a fully trained journeyman machinist. Respondent allegedly found fault with this. Backus was improperly or insufficiently trained for this new but simple work. Backus truthfully testified he had work of his usual type to do when he was laid off. Backus, out of his line of work, was reprimanded by Crader Sr. for not properly performing work for which he never received proper training. I find Respondent was inartfully building up Backus for an unlawful discharge. I find his "lay-off" was a 56 When Parker was rehired. 57 No evidence they were not good and faithful employees 59 He should have been. He was a journeyman machinist. 59 Crader Sr had been, day after day, 5 or 10 niches from Backus, breathing down his neck while Backus was working. 60 There is no evidence that Parker was, but there is credible evidence that Backus was a journeyman machinist. 61 Respondent hired four employees between January and Backus' layoff, although business was allegedly falling off. Parker was hired April 15. mere phrase of art, designed to conceal his discharge for engaging in protected concerted activities, including his joining with King in pursuing charges with the FEPC. I cannot, and refuse to, ignore Respondent's failure to introduce into evidence records, maintained by it in the regular course of its business, that its business had been or was declining so as to require Backus' layoff. I heard testimony from Respondent's witnesses that such was a fact. An affirmative response was given by Respondent as to whether such records were maintained and were available. Such were never produced by Respondent. I have listened to and been attentive to Respondent's witnesses' testimonies that Backus was laid off because of a decline in business, a decline in orders, a decline, etc., of all means of keeping the expert Backus over a junior Parker and another employee, hired after Backus. I find most significant with respect to Backus that Respondent offered no records with respect to Backus and its business. Between January and April 15, Respondent hired new employees, including those revealed herein by the record. The testimony of Respondent's witnesses as to the decline in, and unavailability of, work for the skilled and knowledgable Backus was woefully weak in light of Respondent's failure to produce much stronger available evidence; i.e., its available books and records which would establish the facts. Backus was terminated because Res- pondent had a most strong animus against his joining with King in presenting and carrying through on King's original charge with the FEPC.63 That these findings are correct finds support in the fact that Respondent dug up much alleged misconduct by both King and Backus, although Respondent in its many days of hearing contended only that King was discharged because he started and engaged in a fight with Parker under dangerous conditions and Backus was terminated or 'laid off' only because there was not enough work for him to do. I find the failure to produce and introduce available record evidence as to lack of work for Backus is evidence that such books and records, if introduced, would have established the contrary as the true fact 64 Concluding Findings I conclude that King and Backus engaged in concerted activities protected by Section 8(axl) of the Act, particu- larly the filing by King of a charge with the FEPC and the joint pursuit of and endeavors to maintain and support the charge by King and Backus. The record amply discloses that Respondent had great animus against such activities by King and Backus; e.g., Respondent's unseemly epithet directed against Michaud; Crader Sr.'s insistence that King read aloud the April 7 letter; Crader Jr.'s characterization of Backus' strong (and protected) presentation of griev- 62 I have considered Respondent's letters to him as to his availability for work, etc., but find them to be mere facades 63 The record makes such animus clear since even before April 7. 64 Allegedly, business began declining about the beginning of January. Yet Respondent hired about four new employees from that date until Backus' termination Parker was hired only about 20 days before Backus was terminated and while junior to Backus, the latter was terminated although he may have been a much more skilled employee than Parker. He was a journeyman machinist and apparently got along very well with his fellow employees. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD antes before Michaud and Respondent as arrogant and insubordinate; delivery of the April 26 warning letter to King by Crader Sr., without King having been asked even a question as to the merits of its contents; the treatment of King in Respondent's office on the afternoon of April 26, when King sought only an explanation of the unexpected warning letter and an opportunity to reply while King was in a visibly upset and nervous condition caused by the letter and occasioned by his experiences as a United States Marine; and Crader Sr.'s selection of Backus for continu- ance of harassment prior to King's discharge until Backus' termination.65 I conclude also that the April 26 warning letter to King was designed only to set the stage for his termination for pretextual reasons. The great amount of evidence as to the alleged prior misdeeds of King was introduced only to blacken the 'character of King and not as grounds for termination because Crader Jr. and Respondent's witnesses made it abundantly clear that the one and only reason for King's discharge was his fight, or fights, with Parker on April 26 66 I have already found and here conclude that Crader Sr. discharged King after his unsuccessful attempt to be heard by Respondent in connection with the April 26 warning letter and before any fight with Parker.67 I conclude further that Respondent's great animosity against the protected activities of King and Backus through the FEPC was the motivating reason for the termination of each. Thus, I conclude each was terminated in violation of Section 8(a)(1) of the Act. There remains for conclusion whether the actions of King in taking the first swing at Parker and fighting with him twice, after Crader Sr. discharged King, disqualifies King from the usual remedy of reinstatement and backpay. I conclude that under all the circumstances of this case, King was not, and is not, so disqualified.68 The type of employee Parker was was spelled out in Crader Jr.'s April 7 letter to all employees, at least parts of which King was required to read aloud to his fellow employees and Crader Sr. Respondent knew it had had to warn Parker on numerous occasions "to cease his hostili- ties" and "to cease using derogatory and degrading terminology." It was told by Backus, right after the first fight, that Parker caused it by calling King a "nigger." I have already found this to be the truth. Grader Jr., while testifying that if he had known this to be a fact he would have fired Parker, also testified that he believed in the oft-repeated adage that "Sticks and stones may break my bones, but names will never hurt me." I have found a proper, full investigation of the April 26 fights was never made by Respondent. I recognize that these fights in the plant, as distinct from those out in the street, were potentially most hazardous, as Respondent's counsel ably argues. He adds that "verbal epithets, racial or not, do not justify physical assault under 65 E.g., Crader Sr. breathing down Backus' neck 66 Note his prior four or five raises. 67 This was because of his protected concerted activities. 68 1 am satisfied, and find, having considered the entire record, that if Respondent fully and faithfully complies with the Order recommended herein, it is most unlikely that King will again engage in a violent altercation with anyone in Respondent's premises. Compliance with the recommended Order will, eliminate most of the circumstances which gave rise to the instances of serious violence which here arose involving King and Parker. any conditions and particularly in circumstances where physical injury or death could result ."69 I have pondered this as well as counsel for Respondent's other reasonable arguments with considerable and respectful attention. We would all like to forget the not-so-far-gone era70 when almost any number of words were "fighting words." I am not here concerned with imagined cases where a blow and a fight and perhaps a death was occasioned by an obscenity, a charge of outrageous impurity on the part of one's wife or mother, or other grossly improvident verbiage. I am faced with this man, King, who obviously had been a good worker when his numerous wage increases are considered, who honestly but perhaps mistakenly believed he and his fellow employees were being discrimi- nated against by Respondent because of their races, who had filed charges with the FEPC on such basis, who had to work with or under a man, Parker, who had been warned by Respondent on numerous occasions about making degrading statements to fellow employees, who had received a warning letter about threatening Parker and Maxwell with physical violence without having been asked by Respondent about it, who unsuccessfully sought to get an explanation from and give his side to Respondent, who was thereupon unlawfully fired, who was most emotionally upset, and who was not only personally referred to as a "nigger" but was told, "All you niggers are alike." That man, King, the wounded veteran, the black man, is the man I am here considering. I observed him. Based on all the evidence in this case, I conclude that King was not a completely free actor in his response to Parker when Parker, having first been given the opportunity by King to withdraw or in some other fashion explicate himself from having called the black King a "nigger," instead reiterated the galling word and words which, in this day and age, and particularly in San Francisco, are much more than a "mere" epithet. Parker was the man who, being aware of King's discharge, increased a thousandfold King's miser- y71 by calling King a "nigger." Perhaps a Martin Luther King or a St. Martin de Porres would have humbly submitted himself to the bitterness of such indignity in all the circumstances. Is there a black man who thinks he could have successfully replied in kind by calling Parker "Whitey" or "Honkie" or some other forceless name or epithet? I am not at all surprised that King reacted as he did in these particular circunzstances.72 When the term "nigger" is used and blacks and whites are involved, what does a "reasonable" man do? Whatever a mythical "reasonable" man should or would do, King reacted to the probably insufferable circumstances of this case in a completely foreseeable, if not ethically proper way.73 Of course, I do not condone violence nor do I condone Parker's instigation of King, who had been going through his own traumatic experiences, by repeating what Respon- 69 Unfortunately, in our present day society, racial epithets are not to be considered lightly, particularly where the object thereof has been subjected to the type of unfair, labor practices found herein. 70 But fortunately no longer present. 71 Occasioned by his unlawful discharge. 72 We are not considering the calling of a black man "nigger" in a vaccuum. 73 Foreseeably by me. Foreseeable by Respondent who had intimate knowledge of Parker. ADVANCE CARBON PRODUCTS, INC. dent in its April 7 letter stated it had on numerous occasions wisely warned Parker not to do; i.e., use of degrading and derogatory remarks to his fellow employee. I find that King should be reinstated with full backpay because he was discharged in violation of Section 8(a)(1) and that his provoked and, under the circumstances, reasonably foreseeable violence in reaction to gross provocation by a man who had on numerous occasions been warned to cease his hostilities and degrading and derogatory terminology' does not disqualify him from reinstatement.74 Remember that Crader Jr. testified he would have fired Parker if he had known as a fact that Parker called King a "nigger" before the fight. Crader Jr. now knows that, after 1,000 pages of testimony and many exhibits, and I find, after much study, that was and is the fact. -I find Backus was not "laid off" for economic reasons but was discharged because he engaged with King in statutorily protected concerted activities. I reemphasize that Respondent failed to offer in evidence records it had in its possession which if produced might have sustained its position. Such failure to produce is substantial evidence that the records would not have sustained its position and that the contrary is true. Backus is to be reinstated with full backpay. The preponderance of the probative and substan- tial evidence establishes that each was discharged because of his protected concerted activities and that Respondent's assigned reasons were pretextual or of no moving force.75 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that, on or about April 26, Respondent terminated the employment of Nathaniel King because he engaged, substantially along with Bruce Backus, in protected concerted activities, especially in filing and assisting in the investigation of a charge of discrimination by Respondent against its employees, with the Fair Employment Practices Commission, and that, on or about May 6, Respondent terminated the employment of Bruce Backus because he engaged, substantially along with Nathaniel King, in protected concerted activities, especial- ly in assisting in the investigation of a charge of 74 If Respondent had policed its numerous warnings to Parker, we would not have this problem. 75 Nowhere herein do I find an employee may freely react with violence to a racial or other epithet in the absence of extreme circumstances. 76 In the event no exceptions are filed as provided by Sec. 102.46 of the 749 discrimination by Respondent against its employees, filed by Nathaniel King with the Fair Employment Practices Commission, I shall recommend that Respondent offer King and Backus, each, immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. I shall further recommend that Respondent make King and Backus, each, whole for any loss of pay each may have suffered by reason of his discharge in violation of Section 8(a)(1) of the Act, in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. The Board, in its January 29, 1971, Order, heretofore referred to, has already issued a broad cease-and -desist Order against Respondent, and I find no need for recommending the issuance of another one. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAw 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging King on or about April 26 and by discharging Backus on or about May 6 and thereafter failing and refusing to reinstate each one , because of his protected concerted activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the entire record, including the foregoing findings of fact and conclusions of law, I hereby issue the following recommended: ORDER 76 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from terminating or otherwise discriminating against any of its employees because of his concerted activities protected by Section 8(a)(1) of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Offer King and Backus, each, immediate 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. (b) Make King and Backus, each, whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him, in the manner set forth in The Remedy portion of this Decision. (c) Notify Nathaniel King or Bruce Backus, if either is Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presently serving in the Armed Forces of the United States of America, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents all records necessary or useful to determine or compute the amounts of backpay due King and/or Backus, if any. (e) Post at its plant in San Francisco, California, copies of the attached notice marked "Appendix." 77 Copies of said notice on forms to be furnished by the Regional Director for Region 20 shall, after being signed by a duly authorized representative of Respondent, be posted imme- diately upon receipt thereof and 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 Respondent to insure that such notices are not altered, defaced or covered by any other material. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.78 77 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 78 In the event that 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 20, in wasting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OP THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT discriminate in regard to the hire and tenure of employment or the terms and conditions of employment of any employee by discharging and thereafter failing and refusing to reinstate said employ- ee because he has filed charges with the Fair Employ- ment Practices Commission or cooperated in an investigation conducted by said Commission, or has otherwise engaged in concerted activities protected by Section 8(a)(1) of the Act, or in any other manner discriminate against employees for engaging in concert- ed activities protected by Section 8(a)(1) of the Act. WE WILL offer Nathaniel King and Bruce Backus, each, immediate 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. WE WILL make said Nathaniel King and Bruce Backus, each, whole for any loss of earnings he may have sustained by reason of our discrimination against each and both of them, in the manner set forth in the provision of the Decision and recommended Order of the Trial Examiner entitled, "The Remedy." WE hereby notify each of our employees that under Section 7 of the Act he has the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of his own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. Dated By ADVANCE CARBON PRODUCTS, INC. (Employer) (Representative) (Title) We will notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their 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 compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California, Telephone 556-3197.