Quaker Bakery Machine Co.

QUAKER BAKERY MACHINE COMPANY Quaker Bakery Machine Company and United Elec- trical, Radio & Machine Workers, Local # 155. Case 4-CA-5694 August 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 30, 1972, Trial Examiner William F. Scharnikow issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief, a motion to strike certain portions of the Respondent's brief, and a cross- exception to a portion of the Trial Examiner's Decision. 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 briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order as modified herein.' We additionally find that Respondent, on August 11, 1971, through its manager, John Vuytecki, by telling its employees and organizers for the Union that it would rather go out of business than fight the Union, and by closing the plant doors, paying off the employees 2 days in advance of payday, and telling employees that Respondent would not be open on payday, thereby interfered with, restrained, and coerced the employees in the exercise of the right to engage in self-organization guaranteed in Section 7 of the Act, and engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Quaker Bakery Machine Company, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order, as modified herein: 1. Insert, as paragraph 1(a) in that section of the Trial Examiner's Decision entitled "Order," the following, and reletter the subsequent paragraphs accordingly. "(a) Threatening to go out of business rather than 198 NLRB No. 141 1007 bargain with United Electrical, Radio & Machine Workers, Local # 155." 2. Substitute the attached notice for the Trial Examiner's notice. i While Chairman Miller agrees that a bargaining order is appropriate herein, he would, for reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB No 132, predicate the remedy only on the serious independent violations of Section 8(a)(1) and (3). In view of our Decision herein, we find it unnecessary to pass on General Counsel's motion to strike certain portions of the Respondent's brief and the affidavits thereto attached We deny Respondent's request for oral argument, as in our opinion the record and briefs adequately present the issues and positions of the parties in this proceeding 2 See West Side Plymouth, Inc, 170 NLRB 686, 687-688 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to go out of business rather than bargain with the United Electrical, Radio & Machine Workers, Local # 155, or any other labor organization. WE WILL NOT discharge any of our employees or otherwise discriminate against any of them in their hire, tenure, or other terms or conditions of employment in order to discourage membership in United Electrical, Radio & Machine Workers, Local # 155, or in any other labor organization. WE WILL offer Harry Wilson, Richard Young, Sydney Williams, Calvin Via, and Benjamin Nicholson full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and we will make each of them whole for any loss of earnings suffered as a result of his discharge. WE WILL, upon request, bargain collectively with United Electrical, Radio & Machine Work- ers, Local # 155, as the exclusive representative of all our employees excluding office clericals, guards, and supervisors as defined in the National Labor Relations Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and will embody in signed agreements any understanding reached. WE WILL NOT in any manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Electrical, Radio & Machine Workers, Local # 155, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. QUAKER BAKERY MACHINE COMPANY (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstate- ment, 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylva- nia 19107, Telephone 215-597-7601. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: On August 31, 1971, United Electrical, Radio & Machine Workers, Local # 155, herein called the Union, filed an unfair labor practice charge with the Regional Director, alleging that the Respondent, Quaker Bakery Machine Company, had committed unfair labor practices, and on the same day the Regional Director served a copy of the charge on the Respondent by registered mail, enclosing an explanatory letter. On September 3, 1971, the secretary of Ned Stein, a Philadelphia attorney, advised the Regional Director by letter that Mr. Stein represented the Respondent and that she would bring the Regional Director's letter and its enclosures addressed to the Respondent, to the attention of Mr. Stein on his return from a holiday on September 13. On November 30, 1971, the Regional Director, acting on behalf of the General Counsel on the basis of the aforesaid unfair labor practice charge, issued and served upon the Respondent a notice of hearing and a complaint alleging that the Respondent, a Pennsylvania corporation, acting through John Vuytecki, one of two of its named officials and supervisors-the other being Ed Rosenberg, had committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. With respect to the unfair labor practices, the complaint alleged ( 1) that the Respondent committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, by discharging seven of the Respon- dent's employees on or about August 11, 1971, because they designated, and "otherwise affiliated with" the Union as their bargaining agent , and engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and (2) that on and after August 11, 1971, the Respondent also committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, by refusing to bargain with the Union as the exclusive bargaining representative of an appropriate bargaining unit of all the Respondent's employees exclu- sive of office clericals, guards, and supervisors, although a majority of the employees in said unit had designated or selected the Union as their representative for the purpose of collective bargaining with the Respondent. In the notice incorporated in the complaint , the Regional Director advised the Respondent that a hearing would be conducted by a Trial Examiner in the Board's Philadelphia hearing room on January 5, 1972, at I1 a.m., and that if the Respondent failed to file an answer to the complaint with the Regional Director within 10 days after service of the complaint, all the allegations of the complaint would be deemed to be admitted as true and the Board might so find. On December 10, 1971, George A. Burnstein, another Philadelphia attorney, filed an answer to the complaint on the Respondent's behalf. The answer admitted, inter alia, the allegations of the complaint with respect to the Respondent's corporate status ; the nature and volume of its business as an employer in interstate commerce; the appropriateness of the described bargaining unit ; and the identity of John Vuytecki and Ed Rosenberg as "officials" and supervisors of the Respondent within the meaning of Section 2(11) of the Act. The answer of the Respondent denied, however, the allegations of the complaint with respect to the unfair labor practices , i.e., the discharges of the seven employees ; the selection of the Union by a majority of the unit employees as their bargaining representative ; the Union's bargaining requests; the Respondent's refusal to bargain with the Union ; and the conclusions set forth in the complaint that the Respondent had committed unfair labor practices. On December 30, 1971, Attorney Burnstein, in a letter to the Regional Director, requested at least a 2-week postponement of the hearing scheduled for January 5, 1972, in order to continue negotiations with the Union for an adjustment of the dispute on an amicable basis. Mr. Burnstein indicated in the letter that he was sending copies not only to the Union but also to Attorney Ned Stein and Attorney E. L. Pincus, a third attorney with an office in Philadelphia. On January 3, 1972, the Regional Director issued an order upon the foregoing request of Mr. Burnstein as Respondent's attorney, rescheduling the hearing from January 5, 1972, to January 17, 1972 , and caused service to be made of the order by registered mail the same day, upon QUAKER BAKERY MACHINE COMPANY 1009 the Respondent at its place of business, upon Mr. Burnstein as its attorney, and upon the Union. On January 7, 1972, on the application of the General Counsel, the Board issued and the General Counsel caused service to be made of the following subpoenas returnable and requiring appearances before a Trial Examiner of the Board at the Board's hearing room in Philadelphia at I1 a.m. on January 17, 1972: a subpoena directed to John Vuytecki, another directed to Edward Rosenberg, a third directed to Harriet Howard, the Respondent's bookkeeper, and also a subpoena duces tecum directed to the Respondent. By letter dated January 12, 1972, Mr. Burnstein notified the Regional Director that he was withdrawing his appearance on behalf of the Respondent. In a letter to the Regional Director dated January 12, 1972, Attorney Ned Stein referred to Mr. Burnstein's withdrawal from the case; stated that he was "now representing Quaker Bakery Machinery Corp. by its majority stockholder, Edward Rosenberg;" that "The minority stockholder is represented by Erwin L. Pincus, Esq."; and that Stein was applying to the Regional Director "to have the hearing scheduled for January 17 continued until any time after February 1" at which time the subpoena already issued "will be recognized." As the reason for this request, Mr. Stein's letter stated that, "Unfortunately, I have made arrangements to be away from my office from January 15 until February 1 upon my physician's advice to take a vacation which is necessitated by my heart condition." Still another Philadelphia law firm, Modell, Pincus, Hahn and Reich, briefly entered the picture. On January 13, 1972, Allen B. Dubroff of that firm, wrote the Regional Director that the firm represented "John Vuytecki, the minority stockholder of Quaker Bakery Machine Corp.," and, stating that "Erwin L. Pincus of this office who is handling this matter is away on vacation and will not return until January 24, 1972," asked that the hearing be rescheduled "for some time after February 1, 1972" at which time the persons already subpoenaed would appear. In a letter to the Regional Director dated January 13, 1972, counsel for the Union opposed any further continu- ance, arguing that "the people who have been discharged have been caught in the middle of this dispute for some time now." The Regional Director denied both requests for further postponement of hearing on January 14, 1972. He denied the request of Attorney Ned Stein, as "attorney for Quaker Baking Machine Company" by an order issued and served by registered mail on that date. In a letter to Mr. Dubroff, also dated January 14, he "confirmed" his denial of Mr. Dubroff's requests, noting that "your client has not been named or admitted as a party to this proceeding." Pursuant to the Regional Director's order rescheduling the hearing for I 1 a.m., on January 17, 1972, a hearing was held before me, the Trial Examiner duly designated by the Chief Trial Examiner at Philadelphia, Pennsylvania, on January 17 and 18, 1972. The General Counsel and the Union appeared by counsel. No one appeared to represent the Respondent. Nor did any of the three persons subpoenaed by the General Counsel. At the beginning of the hearing, the General Counsel submitted the unfair labor practice charge , the complaint, the Respondent's answer, the Regional Director's orders granting one postponement of hearing and denying the requests for a further postponement, and the various letters to which reference has been made . In addition, the General Counsel also informed me that a Mr. Comanor , Mr. Stein's "law partner," had appeared in the hearing room at approxi- mately 10:45 a .m., and thus 15 minutes before the scheduled time for hearing; that Mr. Comanor had said "that Mr. Stein would not be here . . . that there would be no representative here for the Respondent ," and that Mr. Comanor did not intend to represent the Respondent since "he knew nothing of the facts of the case"; and that, within a few minutes after his appearance and before 11 a.m., Mr. Comanor had left the hearing room. According to the General Counsel's further statement to me , he told Mr. Comanor before he left that I was the General Counsel's intention to proceed with the hearing. The foregoing discussion of the situation with the General Counsel, in which counsel for the Union also took part, lasted until approximately 11:45 a.m . and is set forth on the record in the transcript of the hearing. I then informed counsel I would recess the hearing until 2 p.m. and asked the General Counsel to telephone the offices of Mr. Stein and Mr. Burnstein, and leave a message that the hearing would again be in session at 2 p.m., and that I would "entertain any application of anybody from either of the offices that they make to me at 2:00 o'clock; and ... that absent any appearance by either of them or if in my opinion on appearance by either of them there's not adequate ground for a further continuance I [would] permit [the General Counsel ] to go ahead and present [his] case." When the hearing was reconvened at 2 p.m., Attorneys LeRoy Comanor and George Burnstein appeared in the hearing room in response to the General Counsel's telephone calls. Mr. Comanor stated upon the record that, although they shared the same suite of offices and are associated in a few matters, Mr. Stein and he are not partners ; that he has never been associated in the representation of the Respondent ; that he did not represent the Respondent, was not entering an appearance, and knew nothing about the matter but had come to the hearing as a courtesy to the Trial Examiner; that he had merely come to the hearing room at Mr. Stein's request to advise the Trial Examiner that Mr. Stein "had left on his vacation pursuant to his doctor's suggestion that he do so." Mr. Burnstein , in turn, informed me on the record that he had withdrawn his appearance for the Respondent; that he had so advised Mr. Stein, Mr. Vuytecki, and the latter's attorney, Mr. Pincus; and that he (Burnstein) was "in no position to make any motions on their behalf and .. . really [didn't] wish to associate [himself] further in the entire matter." Upon receiving the statement , I informed both attorneys they were free to stay in the hearing and that I was about to consider whether to permit the General Counsel to proceed with his evidence. But both attorneys left the hearing room. Thereupon, the General Counsel joined by counsel for the Union requested permission to go forward with the evidence. The General Counsel pointed out that there had 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been no renewal at the hearing of the postponement request previously denied by the Regional Director. I granted the requested permission, admitted the exhibits proffered in connection with the pretrial portion of the proceedings, and noted specifically that "insofar as the exhibits can show me, . . . all counsel and parties who might have been interested in presenting evidence or in cross-examining the General Counsel's proof or witnesses have made no appearance before me this morning, nor this afternoon." Accordingly, since no one later appeared during the hearing on behalf of the Respondent, the hearing proceeded upon the evidence produced by the General Counsel subject to cross-examination by counsel for the Union. Since the close of the hearing, the Chief Trial Examiner by telegraphic order dated February 11, 1972, extended the time for filing briefs from February 15 to February 28, 1972, on the application of the General Counsel and again by telegraphic order dated February 28, 1972, on the application of Ned Stein, as the Respondent's attorney, to March 6, 1972. Thereafter, I received a brief from the General Counsel, and also from the Respondent, both of which have been duly considered.' Upon the entire record in the case, my observation of the witnesses, and a consideration of the briefs submitted, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Quaker Bakery Machine Company, a Pennsylvania corporation with its place of business in Philadelphia, Pennsylvania, is engaged in the sale, service, and installation of commercial bakery machinery. During the year preceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, purchased and received goods valued in excess of $50,000 from locations outside of the Commonwealth of Pennsylvania. I find that the Respondent is an employer engaged in commerce and in operations affecting com- merce within the meaning of the Act and that it will effectuate the policies of the Act to entertain jurisdiction in the present case. II. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers, Local # 155, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Appropriate Bargaining Unit and the Union's Selection as Bargaining Representative by a Majority of the Employees Therein The Respondent buys used bakery machinery, repairs it in its four-story Philadelphia shop, and resells it, in some instances installing it at the purchasers ' places of business. 1 A motion made by the General Counsel on March 23, 1972, to strike the Respondent's brief as untimely filed, is denied However, in agreement with another branch of the General Counsel's motion, I make no findings The Respondent's business and operations are conducted by two of its stockholders, John Vuytecki and Ed Rosenberg, both of whom have desks in a small office at the Respondent's plant. There is only one office employee, Harriet Howard, who works at a third desk in the office. Ed Rosenberg works only in the office and not in the shop. John Vuytecki, in addition to his work in the office, supervises the work in the shop. There are no other supervisors. In addition to the single office employee, the Respondent employed only seven full-time employees and two part- time employees on August 11, 1971, and the period immediately preceding that date.2 The two part-time employees, who worked two or three times a week, were Horace Black, who was a machinist, and another man known to the witnesses only as "Joe," who did some machine work, cleaning, and painting. Of the seven full- time employees, one of them was Bernie Siegel (the shop electrician), another was Clifford Mims (a truckdriver), and the remaining five were Harry Wilson, Sydney Williams, Richard Young, Calvin Via, and Benjamin Nicholson,' who worked as mechanics, machinists, or laborers both in the repair work at the shop and on outside installations. James Devore, an organizer for the Union, met with five of the full-time employees at the request of employee Harry Wilson on the evening of July 30 and gave them the Union's membership application and bargaining authori- zation cards. When the men began work on the morning of August 11, Devore had in his possession cards signed by all seven of the full-time employees. Four of the full-time employees (Wilson, Young, Via, and Nicholson) had signed and delivered their cards to Devore on July 30, the evening they had met him. The other three full-time employees (Williams, Siegel, and Mims) had signed their cards on the morning of August 11 and the cards were given to Devore when he came to the shop to see Vuytecki that morning. Upon these facts and in agreement with the General Counsel and counsel for the Union as to the propriety of a broad employee unit I find and conclude that at the time work started on the morning of August 11, 1971, the Union had been designated and selected as bargaining representa- tive by a majority of the Respondent's employees in the following appropriate unit for the purpose of collective bargaining as provided by Section 9(a) and (b) of the Act: All employees of Respondent, exclusive of office clericals, guards, and supervisors as defined in Section 2(11) of the Act. B. The Respondent's Refusal To Bargain and its Discharge of Five of its Full-time Employees Union Representative James Devore, accompanied by Gus Schestok, another union representative, went to the Respondent's shop to see John Vuytecki at 8:30 a.m. on August 11. They entered the office and were told by Harriet Howard, the secretary, that Vuytecki was not there. Supplied by the employees with a general description of based upon certain statements in the Respondent's brief which find no support at all in the evidence before me. 2 All events in the present case took place in 1971 QUAKER BAKERY MACHINE COMPANY Vuytecki and what he was likely to be wearing, they waited on the street but Vuytecki apparently did not come to the office or shop that morning and they left. At 9 a.m., Vuytecki had called the shop and, in answer to his question, employee Sydney Williams told him there were no calls for him that morning 3 During the morning, employee Richard Young saw Vuytecki walk down the street past Devore and Schestok without entering the building. Later in the morning, Vuytecki appeared at an installa- tion the Respondent was making in Pennsauken, New Jersey, just across the Delaware River from Philadelphia, with a crew consisting of employees Wilson, Williams, and Via. While they were there Vuytecki said to Wilson, "I'm going to tell you, Wilson, like I told Sid; I'm not going to fight with the other side; I'm not have anything to do with it; I'd ratherjust close the shop down and keep a mechanic and electrician and just do repair work," and that he "wasn't going to fight with outsiders." Then Wilson saw Vuytecki make a telephone call, and overheard him address some one as "Hamet" and tell her she was "to make out the paychecks for 5 o'clock." Wilson thereupon called employee Richard Young at the shop, told Young what he had heard, and asked Young to call him back and tell him what was happening in the shop. Young thereupon went into the office and asked Miss Howard, who was alone, what was going on. Howard said, "I'm only following orders from John [Vuytecki] to take all the cards out of the time rack and make everybody's pay up." By this time, as Young had noticed, there were in fact no cards in the time rack. Young then called Wilson at the Pennsauken job and told Wilson what he had just learned. Vuytecki had just left the Pennsauken job and Wilson and the rest of the crew started back to the Philadelphia shop within a short time. Vuytecki returned from Pennsauken and entered the office at about 1:15 p.m. In the meantime, Union Representatives Devore and Schestok, having left during the morning, had returned to the shop and were told by the employees that Vuytecki was now in his office. The two union representatives entered the office and in response to their question, Miss Howard pointed out Vuytecki who was sitting at one of the desks. No one else was present in the office. Devore introduced himself to Vuytecki, presented the seven union cards signed by the employees, and began talking about the cards. Vuytecki looked through the cards and said to Devore "that he didn't want to fight with anybody; he wasn't making any money . . . that business was doing bad; he was doing the employees at Quaker a favor by keeping them on . . . and if he felt as though he did something to deserve being punished by a union being present at Quaker . . . he could understand it; but he had done no wrong to his workers . . . [and] that he was getting out . . . he was going to liquidate the business." Devore urged Vuytecki to take his time in making a decision on union recognition but Vuytecki kept shaking 3 An apparent error in the transcript at p 139, 1 8, and again at I. 10, would make it appear that Williams testified that Vuytecki asked him and he replied in the negative as to whether anybody had "carded in" instead of "called in " The error is hereby corrected 1011 his head, saying "No, no, no, I'm getting out of the business; it's not worth it." Devore and Schestok left the office and spoke to all seven of the full-time men who had gathered in the back of the shop to await word of the outcome of Devore's interview with Vuytecki. Devore told them what Vuytecki had said and, during his conversation with the men, Vuytecki came out of the office, brought in a forklift from the street, closed the plant doors, and returned to the office. The men washed up, dressed in their street clothes-some of them may already have started dressing-and went out into the street sometime between 2 and 3 p.m. to wait for picket signs from the Union. Five of the men were waiting in the cars of employees Richard Young and Sydney Williams when Vuytecki came out of the office-still slightly before 3 o'clock-with what turned out to be their paychecks up to 5 p.m. that day. This was on August 11, a Wednesday, and was not their payday, which normally was on Friday. Vuytecki went up to each of the two cars and either handed each of the five men their paychecks or threw them into the cars. To Young, who was sitting behind the wheel of his car, Vuytecki said merely, "I don't want to fight it; I'm going out of business." To employee Harry Wilson, who was also in Young's car, Vuytecki said, "Do you want your pay now?" and then, when Wilson said he would wait until Friday, Vuytecki threw Wilson's pay envelope into the car and said, "We won't be open Friday." Vuytecki made similar comments in giving their pay- checks to employees Sydney Williams, Calvin Via, and Ben Nicholson, who were sitting in Williams' car. To Williams, he said, "Here's your pay," and when Williams asked why he was being paid off on Wednesday, Vuytecki replied to all three men in the car, "It's yours. I don't want to fight with nobody. I don't want the responsibility." In view of Vuytecki's statements to Union Representa- tive Devore in rejecting the Union's request for recognition and the statements made by him almost immediately thereafter to the five men in giving them their paychecks on Wednesday, August 11, rather than wait until their usual payday on Friday, it is clear-as it was to the men-that Vuytecki discharged them in the afternoon of August 11 in order to avoid recognizing the Union as their representative. Beginning the same afternoon, and inter- mittently for the next 4-1/2 months preceding the hearing, the men picketed the Respondent's shop. In the meantime, Union Representative Devore, encour- aged by a telephone call from Attorney Ned Stein on Friday, August 13,4 made several further attempts to secure the Respondent's recognition of the Union, and a request for the reinstatement of the discharged employees. Thus, on August 16, Devore visited Ed Rosenberg in the Respondent's office but when Devore introduced himself and asked for recognition, Rosenberg replied, "I don't have anything at all to say to you; I don't want to talk to you; I don't want to discuss anything with you." Then, on August 17, and August 19, Devore mailed letters addressed to Rosenberg and Vuytecki at the Respondent's plant. In 9 For Mr Stein's role in this case, including his eventual filing of a brief following the hearing, see the in.tial section of the present Decision entitled, "Statement of the Case " 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the letters Devore referred to Vuytecki's and Rosenberg's previous rejections of the Union's requests for recognition, and again asked that the Respondent recognize the Union as the collective-bargaining representative of its employees. In the second of these letters, Devore also asked the Respondent to reinstate the discharged employees. There was no response to either of these letters. Contrary to Vuytecki's statements to Devore and the men on August 11, it appears from the evidence, and I find, that the Respondent has not gone out of business. For the men testified and I credit their testimony, that during the 4-1/2 months of picketing including the morning of the present hearing, the shop has been open, machinery has been brought in, and Vuytecki and Siegel (the electrician) have come to work and stayed at the shop during the normal working hours, as have Mark Rosenberg (Ed Rosenberg's son) and a number of men in work clothes. C. Conclusions Upon the foregoing facts shown by the evidence, it appears (1) that on and since August 11, 1971, the Union has been designated and selected by a majority of the Respondent's employees as their exclusive bargaining representative in an appropriate bargaining unit consisting of all the Respondent's employees exclusive of office clericals, guards, and supervisors, as defined in Section 2(11) of the Act; (2) that acting through its agents, John Vuytecki and Ed Rosenberg, the Respondent has, on and since August 11, 1971, rejected the Union's request that it be recognized and that the Respondent bargain with it as such exclusive bargaining representative, although on its initial request the Union submitted to Vuytecki and Vuytecki inspected the bargaining authorization cards signed by a majority of the employees in the unit; (3) that, acting through its agent, John Vuytecki, the Respondent refused to recognize or to bargain with the Union as the employees' exclusive bargaining representative, giving as the only reason for the refusal that "business was ... bad" and that he was going "to liquidate" and get "out of the business;" (4) that, as events in the next 4 months have shown, the Respondent had no actual intention of terminating its business but has in fact continued its operations; and (5) that, acting through its agent, John Vuytecki, immediately upon receipt of the Union's recognition and bargaining request and in obvious re- sponse thereto, the Respondent on August 11, 1971, paid off and discharged five of the seven employees who had signed the Union's bargaining authorizations which had just been submitted to Vuytecki, i.e., Richard Young, Harry Wilson, Sydney Williams, Calvin Via, and Benjamin Nicholson. Under the circumstances, I conclude that the Respon- dent discharged these five employees in order to avoid bargaining with the Union, to which they had applied for membership and which they had selected and designated as their bargaining agent; that, in thus discharging the five men the Respondent discriminated against them in regard to their hire and tenure of employment in order to discourage membership in and support of the Union, and that the Respondent thereby committed unfair labor practices within the meaning of Section 8 (a)(3) and (1) of the Act. Moreover, by thus discriminatorily discharging the five men, the Respondent made it impossible to hold a fair representation election under Section 9(c) of the Act for the purpose of determining the Union's majority support. Accordingly, upon the basis of the proof that a majority of the Respondent's employees in the appropriate bargaining unit had signed the Union's bargaining authorizations, I find and conclude not only that at the times of the Union's bargaining requests on and since August 11, 1971, the Union had in fact been selected by a majority of the Respondent's employees as their collective-bargaining representative in the appropriate unit, but that the Respondent's refusals to recognize and bargain with the Union as such representative constituted an unfair labor practice within the meaning of Section 8(a)(5) and (I) of the Act.5 One further matter must be considered. The complaint alleges that in addition to the five employees who I have just found were discriminatorily discharged when they were paid off by Vuytecki on August 11, the Respondent at the same time discriminatorily discharged Clifford Mims (the truckdriver) and Bernard Siegel (the electrician), both of whom had also signed the Union's bargaining authoriza- tions. In his brief, the General Counsel concedes that no finding of discriminatory discharge should be made with respect to Siegel since "Siegel was employed, or immediate- ly reemployed after August I L" But, with respect to Mims, the General Counsel argues in 'his brief that "it may reasonably be inferred . . . in view of the mass nature of the discharges, that [Mims] too was discharged" since, like the five men actually paid off by Vuytecki, he was "a Union adherent . . . employed by the Respondent prior to August 11, 1971, but not thereafter." In my opinion, the evidence in the present record does not warrant a finding that either Mims or Siegel was discharged by the Respondent and I shall therefore dismiss the allegations of the complaint to this effect. Neither Mims not Siegel testified at the hearing and there is no evidence that either of them was paid off by Vuytecki when the other five men were paid off on August 11, 1971. Although there is testimony that Siegel continued to work after August 11, there is no evidence either as to whether Mims also continued to work or, if he did not, whether it was because he had been paid off by Vuytecki with the other five employees or had been in some other way notified of his discharge. Upon the facts shown by the evidence, I cannot draw the inference sought by the General Counsel that Mims was discharged as part of a "mass" discriminatory discharge of all union adherents. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to 5 N L R B v Gissel Packing Co, 395 U.S 575. QUAKER BAKERY MACHINE COMPANY 1013 labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by discharging employees Harry Wilson, Richard Young, Sydney Williams, Calvin Via, and Benja- min Nicholson on August 11, 1971, I will recommend that the Respondent offer each of them 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 make him whole for any loss of earnings suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period. The backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Furthermore it will be recom- mended that the Respondent pay interest on the backpay due to each of these employees. Such interest will be computed at the rate of 6 percent per annum and using the Woolworth formula, will accrue immediately with the last day of each calendar quarter of the backpay period on the amount due and owing each quarterly period. Isis Plumbing & Heating Co., 138 NLRB 716. It will be recommended that the allegations of the complaint that the Respondent -also-conmiitted unfair labor practices by discharging Clifford Mims and Bernard Siegel be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. The Respondent, Quaker Bakery Machine Compa- ny, a Pennsylvania corporation, is an employer engaged in commerce within the meaning of the Act. 2. United Electrical, Radio & Machine Workers, Local # 155, herein called the Union, is a labor organization within the meaning of the Act. 3. At all times material herein, all employees of the Respondent, exclusive of office clericals, guards, and supervisors as defined in the Act, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been, and now is, the exclusive collective-bargaining representative of all employees of the Respondent in the aforesaid appropn- ate unit within the meaning of Section 9(a) of the Act. 5. By refusing on and since August 11, 1971, to bargain 6 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in collectively with the Union as the exclusive representative of all the employees in the aforesaid appropriate unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By discharging employees Harry Wilson, Richard Young, Sydney Williams, Calvin Via, and Benjamin Nicholson on August 11, 1971, the Respondent discrimi- nated against them in regard to their hire and tenure of employment in order to discourage membership in the Union, a labor organization, and thereby committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not commit unfair labor practices within the meaning of the Act by discharging Clifford Mims or Bernard Siegel. Upon the foregoing findings of facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: 6 ORDER Respondent, Quaker Bakery Machine Company, a Pennsylvania corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating in the hire, tenure, or other terms or conditions of employment of any of its employees in order to discourage membership in United Electrical, Radio & Machine Workers, Local # 155, herein called the Union, or in any other labor organization. (b) Refusing to bargain collectively in good faith -concer-ning• the wages, hours, and other terms and conditions of employment, with the Union as the exclusive representative of all employees in the following appropriate unit: All employees of Respondent, exclusive of office clericals, guards, and supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist the Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Harry Wilson, Richard Young, Sydney Williams, Calvin Via, and Benjamin Nicholson immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, and make them whole for any loss of earnings suffered by them as a result of the discrimination against them, in the manner set forth in the section of the Trial Examiner's Decision entitled, "The Remedy." (b) Notify each of the foregoing discharged employees, if any of them is serving in the Armed Forces of the United States, of his 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. (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, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request bargain collectively with the Union, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours r 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 be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." of employment, and other terms and conditions of employment, and embody in signed agreements any understanding reached. (e) Post at its place of business in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix." 7 Copies of said notice on forms provided by the Regional Director for Region 4, shall, after being signed by a representative of the Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respondent's employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 4, in writing within 20 days from the receipt of the Trial Examiner's Decision in this case, what steps the Respondent has taken to comply herewith.8 8 In the event that this recommended Order is adopted by the National Labor Relations Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "