Shelly & Anderson Furniture Mfg. Co., Inc.

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shelly & Anderson Furniture Mfg. Co., Inc. and Up- holsterers' International Union of North America, Local 15, AFL-CIO. Cases 21-CA-9861 and 21- CA-10088 September 22, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On May 8, 1972, Trial Examiner Robert L. Piper issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, to which General Counsel filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Shelly & Anderson Furniture Mfg. Co., Inc., Los Angeles, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, with the following modification: Delete Paragraph 2(c) of the Trial Examiner's rec- ommended Order, and substitute therefor: (c) Immediately notify the employees named in Appendix A except Jose Alamillo, Francisco Garcia, Renato Quijada, and Victor Rodriguez if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER. Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard at Los Angeles, California, on various dates between October 19 and November 8, 1971,1 pursuant All dates hereinafter refer to 1971 unless otherwise indicated. to due notice . The consolidated complaint, which was is- sued on August 16 upon a charge filed March 5 and a charge filed June 18 and amended August 13, alleged in substance as amended, that Respondent engaged in unfair labor prac- tices proscribed by Section 8(a)(1) and (3) of the Act by (1) various specified acts of interference, restraint, and coer- cion; (2),discriminatorily discharging two named employ- ees; (3) discriminatorily locking out, discharging, or laying off 34 named employees; and (4) failing and refusing there-, after to reinstate said employees . Respondent's answer de- nied the alleged unfair labor practices. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Respondent is a California corporation engaged in the manufacture of upholstered furniture with its principal of- fice and place of business located in Compton, California. During the past year, it sold and shipped products valued in excess of $50,000 directly to customers located outside the State of California. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and(7) of the Act. II THE LABOR ORGANIZATION INVOLVED Upholsterers' International Union of North America, Local 15, AFL-CIO (hereinafter called the Union), is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues At all times material herein, Mrs. Gladys Selvin was Respondent's labor consultant. On February 15, Respon- dent substantially cut the piecework rates paid its piece- workers. On the same day, as a result thereof, two of the employees, upholsterers called insiders, contacted the Un- ion and commenced organizational activities on its behalf which ultimately culminated in its election and certification. On February 18, the Union filed a petition for certification. On March 4, Respondent discharged the two employees who were the leaders of the activity on behalf of the Union, allegedly for engaging in a deliberate slowdown of produc- tion. On March 10, a representation hearing was conducted by the Board. On March 15, Respondent substantially in- creased the piecework rates paid its pieceworkers. On June 17, approximately 34 of Respondent's employees engaged in a 15-minute strike to protest Respondent's alleged failure to bargain, as a result of which Respondent locked out substantially all of said employees, which led to their picket- ing in protest thereof. On June 18 and thereafter, Respon-' dent refused to permit said employees to return to work without signing an unconditional application form prepared by Respondent, which resulted in their continuing to picket in protest. 199 NLRB No. 31 SHELLY & ANDERSON FURNITURE MFG. CO. The issues as framed1by the pleadings are: (1) discrimina- torily discharging two named employees on March 4 be- cause of their union or concerted activities; (2) discrimmatorily locking out, discharging, or laying off 34 named employees on June 17, and thereafter failing and refusing to reinstate them, because of their union or concert- ed activities; and (3) interference, restraint, and coercion by such discrimination and by (a) engaging in surveillance of its employees' union activities; (b) in a speech by Selvin to the employees, threatening them with more onerous condi- tions of employment, that Respondent might go out of busi- ness, refusal to bargain with the Union, and withholding improvements in conditions of employment, all if the em- ployees selected or continued to support the Union, and implying that Respondent was engaging in surveillance of its employees' union activities; (c) increasing piecework rates to induce employees to refrain from supporting the Union; (d) threatening employees with discharge for engag- ing in union or concerted activities; and (e) physically inter- fering with employees engaged in union or concerted activities. Respondent operated two plants on the same street, plant 2 being approximately one block west of plant 1. Both plants operated on a production line basis, with various stages or steps of production being performed on each piece of furniture as it progressed along the line through the plant to its final destination, the shipping department. Two pro- duction lines, one of which produced the frames and the other the necessary materials and fabrics, converged at the upholstery department, where the insiders and outsiders upholstered the furniture, from which it progressed to the legging and finishing department and thence to the shipping department. Robert D. Anderson was president and owner of Re- spondent and maintained his offices in plant 1. Mrs. Linda Monti was superintendent of both plants. Duane F. Randall, Respondent's general manager, was basically in charge of shipping. Frank Monti, Linda's husband, was the foreman of plant I and Charles Zaionz was the foreman of plant 2. Re- spondent also had several leadmen in several departments of plant 1, which the complaint alleged, and Respondent denied, were supervisors within the meaning of the Act. As previously noted, Gladys Selvin was at all times material herein Respondent's labor consultant. B. Chronology of Events On Friday, February 12, effective Monday, February 15, Respondent announced to all of its employees a substantial cut, ranging from 20 to 40 percent, in all piecework rates. Anderson informed the assembled employees of each de- partment that the piecework rates were being cut as of Feb- ruary 15 in order to meet competition, that they had been too high, permitting beginners to make as much as or more than an experienced employee, that the new piecework rates were final and not negotiable, that there would be no discus- sion by Respondent with the employees about them, and that if the employees were dissatisfied with them they could quit. He advised the employees to think about the new rates over the weekend and decide whether to stay or quit. Ander- son did not deny the foregoing statements, although he subsequently testified that he cut the piecework rates more 251 than necessary in order to later "negotiate" upward adjust- ments of such rates with the employees, whom he knew would be dissatisfied, complain, and seek to persuade him to increase them. On February 15, as a result of the piece rate cuts and general employee dissatisfaction therewith, Alphonso Belmont and Miguel Saldana, two of Respondent's insiders, contacted the Union, secured au- thorization cards and commenced organizational activities on its behalf. Belmont and Saldana were employed in the insiding section of the upholstery department in Respondent's plant 1. Many of Respondent's employees regularly ate lunch in the parking lot of a taco stand and liquor store about 1 mile from Respondent's plants. On February 16, during lunch at this location, Belmont and Saldana handed out union au- thonzation cards to about 30 of Respondent's employees. On February 17, at the request of Belmont and Saldana, several of the Union's officials appeared at that location to speak with the gathered employees, approximately 50. Bel- mont and Saldana again passed out and secured signed authorization cards, and the employees had an opportunity to meet with and talk to said union officials. Manuel Ville- gas, the leadman of Respondent's finishing department, was present at the taco stand gathering on February 17 and was given and signed an authorization card. His presence was not unusual since he customarily ate lunch there with many of the other employees. On February 18, the Union filed a petition for a repre- sentation election with the Board, a copy of which Ander- son received the same day. He immediately contacted Selvin who set up a meeting with all of Respondent's offi- cials and supervisors that evening at the Los Angeles Coun- try Club. The meeting was attended not only by Respondent's officials and supervisors but also by three of its leadmen, including Villegas, whom Respondent invited because they were salaried employees. As subsequently con- sidered more fully hereinafter and found, these leadmen were not supervisors within the meaning of the Act. In general, Selvin explained to the gathering what Respondent's supervisors legally could and could not say and do with respect to the employees during a union organi- zational drive. During the meeting, Anderson referred to a decline in production at plant 1 after the cut in piecework rates on February 15, characterizing it as a "slowdown." Selvin ad- vised him that a deliberate slowdown by employees was unlawful and they could be discharged therefor, but that he should be certain that he could prove it. Anderson subse- quently testified that he first observed a "slowdown" in the upholstery department about a week after February 15. Respondent consistently referred to the alleged decline in production in the upholstery department as a "slowdown", which term implies deliberateness. A decline in production caused by extraneous factors, such as employee confusion, lack of material or lack of hours of employment, does not constitute a slowdown, which is of course a form of unpro- tected concerted activity. On or about February 23, Selvin addressed all of Respondent's employees at a mass meeting during working hours. Her speech was tape-recorded and the transcript thereof received in evidence. After informing the employees 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she represented Respondent as its labor consultant, and generally advising them of their right to join and assist labor organizations and their right to refrain from doing so, Selvin characterized the Union variously as "rough, hoodlums, liars and dishonest." She implied that the Union was coerc- ing employees to join with threats of harm. She warned the employees that the forthcoming election and ensuing bar- gaining if the Union won would be a long and time-consum- ing process during which the.employees would be deprived of benefits which they might otherwise have received. On three occasions during her speech she implied that Respon- dent might go out of business if the employees elected the Union. Thus, she stated that during a prior encounter be- tween Respondent and the Union it had lied to the employ- ees and had almost cost Respondent its business. At another point, she stated that the Union would promise the employ- ees things that would put Respondent out of business, and that they should prefer to have an employer in business than one that had to close down because of such demands. Once again she stated that on a previous occasion the same Union had nearly caused Respondent "to close its doors, and it became very serious." She warned the employees that she was a tough bargainer and implied that she would engage in surface bargaining. Thus she advised them that the Union could not make Respondent do anything it did not want to or was not able to do, "so we just go ahead and bargain with them." She warned the employees that they might lose existing benefits if they selected the Union and Respondent was compelled to bargain with it, by advising them that such bargaining was "costly to the employer [who] had to spend money on a defense of that kind, why sometimes he does not have as much money to spend on wages, and it reacts on the em- ployees very badly if they are forced into an election." She warned the employees that they were probably depriving themselves of future benefits by supporting the Union, seek- ing an election and tying the employer's hands. Thus she stated "it won't do you one bit of good to say how many holidays that Bob Anderson paid because he can't give you any more holidays now until election is over and it might be months and months and months." Again she stated: "We'd rather deal direct with our people. Now, you've tied your employer's hands so that he couldn't do anything for you extra if he wanted to until after the issue is determined. Now if we have an election and they don't win the election, why everything is over right away. But while it is pending and while they are negotiating, we can't initiate new things that we might want to do ...pit's very stupid for employees to tie their employer's hands so that he can't do the things for them he might be inclined to do and might be able to do as he gets more business." She implied that she would refuse to bargain with the Union concerning union security if it were elected by stat- ing: "I won't put it in the contract or I haven't put it in the contract-that says you have to belong to the union and pay dues as a condition of employment." She further stated: "But, the employer is free to do things or was, until you filed this petition, the union filed this petition. Now he's had to wait all these months, and as I say, the last case lasted about two years and we didn't have an election .... We can't bargain with you today even if we wanted to. If I wanted to say today ... we'll give them three more holidays-I couldn't legally do it so I wouldn't do it. So you'll have to understand that you have tied our hands by enough of you signing cards." At the conclusion of Mrs. Selvin's remarks, Anderson invited individual complaints from the employees concern- ing the piecework rate cuts adopted February 15, contrary to his statements announcing such cuts on February 12. On February 24, the Union held a meeting of Respondent's employees at a VFW hall. In addition to the union officials, Belmont and Saldana both made speeches advocating the Union. Villegas was present by invitation. Villegas vigorously interrogated the union officials with re- spect to certain proposed programs, particularly the wages paid day workers as distinguished from pieceworkers. During the first week after the cut in piecework rates on February 15, there was considerable employee unrest, dis- satisfaction and discussion in plant 1, leading to some over- all decline in production. The employees' union activities, led by Belmont and Saldana, commenced at the same time as the cut in piecework rates. About a week after February 15, Monti admittedly reported to Anderson that Belmont and Saldana were talking excessively to other employees and engaging in activities on behalf of the Union. He re- ported that they were talking too much in their department, at their benches, and at the benches of other employees, instead of working, and that something was going on with respect to the Union. He also reported observing union authorization cards under Saldana's bench. About a week or 10 days after February 15, Respondent decided that the overall decline in production was due to a decline in pro- duction in the upholstery department, particularly the insid- ers. According to Monti, the decline in production was centered in the insider section of the upholstery department, which included Saldana and Belmont, and was caused by the fact that they were talking too much and avoiding bad or "dog" jobs. "Dog" jobs were those which were incorrect- ly timed, i.e., took too long vis-a-vis the set piece rate. Monti reported to Anderson that the production "slowdown" was centered in the insider section of the upholstery department. Anderson instructed him to "do something" about it. Monti thereafter observed that Belmont and Saldana were dodging or avoiding the so-called dog jobs, which allegedly would cause a decline in production in the department. According to Anderson, Monti reported that there was a little "slowdown" going on in the insider section of the upholstery department, but that Monti could take care of the problem. Anderson agreed to give him some time to do so. Anderson testified that this discussion took place about February 25, and that the problem continued thereafter. Although Anderson and Monti testified that they were aware that Belmont and Saldana allegedly were causing a slowdown in production in the upholstery department, ad- mittedly nobody from Respondent spoke to or warned ei- ther about such alleged misconduct. Monti and Anderson claimed that Respondent had a large backlog of orders and a need for full or high production in the plant at the time, although Respondent's records demonstrated the contrary. Although Respondent contended that the alleged slowdown by Belmont and Saldana was seriously hampering overall production and shipments during the 2 weeks following the SHELLY & ANDERSON FURNITURE MFG. CO. 253 piece rate cut, Respondent took no action with respect to Belmont and Saldana . Respondent's records demonstrated that during those 2 weeks none of the insiders worked as much as 40 hours a week . Respondent employed six insiders in plant 1. During the first week, four of them worked only 30 hours and the other two substantially less. Saldana denied that he, Belmont , or anyone else had ever avoided "dog" jobs or engaged in a deliberate slowdown, although conceding that there was an overall decline in production during the first week after the substantial piece- work rate cut because of general employee dissatisfaction and unrest. Respondent had no rules against talking, and Saldana and Belmont admittedly had, while working, talked about the Union to various employees . Saldana admitted that his production declined during the week of February 15 but said that thereafter it returned to normal. Respondent's records so reveal. Saldana correctly pointed out that during the week of February 15 available work was slow and the employees only worked 30 hours. In fact, two of the six insiders worked substantially less than 30 hours that week. Belmont was unavailable as a witness , having moved to Mexico. Manuel Rodriguez was Respondent's fastest insider, being approximately 50 percent faster than Leo Ullarich, the next fastest producer . Ullarich was slightly faster than Saldana. Belmont, although the senior employee in the de- partment, was admittedly the slowest insider . On March 3, Rodriguez left his bench early and clocked out , allegedly because he was disgusted with the operation of the insider line, particularly the alleged excessive talking and avoid- ance of dog jobs by Belmont and Saldana . Rodriguez also claimed that this conduct prevented him from working overtime when and if he wanted to, but Respondent's rec- ords established that no insider worked any overtime that entire year up to then. Monti encountered Rodriguez and asked him why he was leaving early. Rodriguez replied that he could not put up with the way things were going in the insider department, but did not want to discuss it then and would prefer to go home and cool off . Rodriguez agreed to return the next day. According to Rodriguez, he returned the next morning, March 4, started working and again Saldana and Belmont were talking too much without working , as much as a half hour to 45 minutes , and Rodriguez and Ullarich both decid- ed to quit, clock out, and go home. Ullarich testified to much the same effect and that he had much the same rea- sons for quitting as Rodriguez. The record establishes that Saldana was not at work that day. Monti was present and asked Rodriguez and Ullarich to wait until he could arrange an audience with Anderson to discuss the situation and try to correct it.- Contrary to the testimony of Ullarich and Monti, Rodriguez testified that he did all of the talking to Monti. Rodriguez and Ullarich agreed to see Anderson and shortly thereafter Monti, Rodriguez, and Ullarich proceed- ed to Anderson's office. According to Rodriguez, Anderson asked what the problem was and Rodriguez replied that it was the way the other insiders were working, not making any progress, and he saw no sense in staying and making much less money than he formerly made. On cross-exam- ination, Rodriguez admitted that he told Monti and Ander- son that he was disgusted because he was not making enough money . Rodriguez said that he did not actually threaten to quit but that he said that he could go somewhere else and get a job easily . Rodriguez testified that he did not identify who was slacking off in the insider department, but told Anderson and Monti that all they had to do was look at the piecework production sheets to determine who was slacking off. At that point, Monti left Anderson 's office and returned with the piecework production sheets for the prior week ending February 27. During each week, the employees at- tached their piecework tickets to such sheets and turned them in at the end of the week, Friday . According to Rodri- guez, Anderson and Monti agreed that the piecework tickets for the week ending February 27 demonstrated a substantial lack of production by Saldana and Belmont . However, as discussed more fully hereinafter, Respondent's records demonstrated the contrary . In fact, Saldana's rate of pro- duction was the highest it had been for the entire year and Belmont's rate of production was slightly in excess of his average for the year. Moreover, Rodriguez' rate of produc- tion for that week was his highest that year, and Ullarich's rate equalled his high for the year. Rodriguez could not recall Ullarich saying anything during this meeting with Anderson and Monti. Rodriguez did not learn of the final decision to terminate Belmont and Saldana until later that day. Rodriguez testified that he did not want anybody dis- charged and did not ask Anderson to discharge anybody. Contrary to Ullarich, Rodriguez insisted that neither he nor Ullarich identified Belmont or Saldana by name . However, Rodriguez subsequently admitted that what he told Ander- son amounted to an ultimatum that either Saldana and Belmont be discharged or he would quit. According to Ro- driguez, Respondent's Exhibit 1, a letter signed by him, Ullarich, and Anderson that day, stating the reasons for the discharge of Saldana and Belmont was not discussed at the meeting and was signed by Rodriguez later that day at Ullarich's request. At least two of the four reasons stated therein for the discharge of Saldana and Belmont were de- monstrably contrary_ to fact. Ullarich testified that the decline in production and dis- ruption in the insider department was due entirely to Bel- mont and Saldana. According to Ullarich, it also cut his production substantially, although as noted Respondent's records established the contrary. The record establishes that Ullarich was opposed to the Union. Ullarich also accused Belmont and Saldana of dodging the dog jobs. Like Rodri- guez, Ullarich said that Saldana and Belmont were contin- uing the same misconduct and disruption on March 4, although the record establishes that Saldana was not present that day. Ullarich corroborated Rodriguez' statement that they both decided to quit and clock out, were persuaded not to do so by Monti, and instead met with Anderson . Accord- ing to Ullarich, both he and Rodriguez identified Belmont and Saldana as the cause of the lack of production and threatened to quit unless they were discharged. Ullarich confirmed that the piecework production records for the prior week were brought into the office and examined by Anderson and Monti. Again contrary to Rodriguez, Ulla- rich testified that during the meeting Anderson discussed the signing of Respondent's Exhibit 1. Ullarich said that during the meeting he and Rodriguez agreed to sign 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Exhibit 1, which they did later that afternoon. Ullarich also said that Anderson stated that he would fire Belmont and Saldana if he ascertained after checking that he could do so legally. Monti corroborated Rodriguez' testimony concerning his departure from work on March 3 and their conversation, but denied having any conversation with Ullarich during which he identified Belmont and Saldana as the reasons for Rodriguez' complaint. According to Monti, on March 4 both Rodriguez and Ullarich threatened to clock out and quit because of the effect upon their production and earn- ings of the continued misconduct by Belmont and Saldana. As previously found, Monti knew that Belmont and Salda- na were active on behalf of the Union and had reported his observations to Anderson, contrary to Anderson's testimo- ny. Monti corroborated that after Rodriguez' and Ullarich's complaint on March 4 he asked them to meet with Ander- son in his office. Contrary to Rodriguez and Ullarich, both Monti and Anderson denied that they reviewed any piece- work production records during the meeting. Monti said that both Rodriguez and Ullarich identified Belmont and Saldana as the cause of the trouble and threatened to quit if they were not discharged. Contrary to Rodriguez, but in agreement with Ullarich, Monti said that Anderson asked them both to sign a statement to that effect and they agreed. Monti claimed that he later brought Saldana and Belmont from their department to Anderson's office at his request, although the record established that Saldana was not at work that day. Much of Monti's testimony was confused and contradictory. Anderson testified that about a week after the cut in piece rates he ascertained that there was a "slowdown" in the upholstery department but did not know what was causing it. He said that he discussed the matter with Monti, who did not state at that time who if anyone was causing the "slow- down" but said that he would look into and take care of it. To the contrary, Monti said at that time he informed Ander- son that the "slowdown" was being caused by Saldana and Belmont dodging dog jobs and talking too much. Anderson's discussion with Monti was approximately Feb- ruary 25 and the production problem allegedly continued. On March 3, Monti informed Anderson that Rodriguez had punched out and gone home because of his dissatisfaction and anger about the disruption in the insider section which allegedly was affecting his production and earnings. Ander- son reminded Monti that he had stated he would take care of the problem and that they would have to do something about it before long. According to Anderson, they agreed to wait a few days to see what developed. The following day, March4, Monti reported to Anderson that they had a serious problem because Rodriguez and Ullarich, the two fastest insiders, were threatening to quit, punch out, and go home. Anderson instructed Monti to bring them to his office. Monti did so. According to Ander- son, Ullarich said that he was not going to stay and watch Saldana and Belmont waste time and avoid the dog jobs, and either they had to leave or he and Rodriguez would leave. According to Anderson, Ullarich and Rodriguez gave him an ultimatum that either he fire Saldana and Belmont or they would quit. The foregoing is completely contrary to the testimony of Rodriguez. Rodriguez and Ullarich claimed that the crowning blow was that Saldana and Bel- mont were doing the same thing that very morning, yet Saldana was not at work. Anderson claimed he asked Ro- driguez and Ullarich to wait and discuss it again the follow- ing day but they refused to do so. Anderson stated that he then asked both if they would be willing to sign a statement concerning what Saldana and Belmont were doing in the department and they agreed. Anderson advised both that he was going to fire Belmont and Saldana, again contrary to the testimony of Rodriguez. Ullarich and Rodriguez re- turned to their work. Anderson then contacted Selvin. She informed Ander- son that a work slowdown was unprotected and he could legal- ly discharge Belmont and Saldana,and she helped him pre- pare Respondent's Exhibit 1. Anderson stated that about 1:30 p.m. he called Belmont and Saldana to his office and told them that due to what was happening in their depart- ment he was discharging them. He also said that because of the ultimatum by Ullarich and Rodriguez he had no alterna- tive. According to Anderson, Saldana said nothing and Bel- mont said only that he had been with Respondent for a long time and did not want to leave, but the decision was up to Anderson. Although Anderson denied that any production records were present in his office during the meeting with Rodriguez and Ullanch, he admitted that the day before he had checked the piecework sheets from the insider depart- ment for the prior week ending February 27. Contrary to Respondent's contention that Saldana and Belmont were deliberately slowing down and their produc- tion was substantially below normal, Respondent's records for the prior week established that Saldana's rate of produc- tion was the highest it had been that year, Belmont's was slightly better than normal, Rodriguez' was the highest it had been that year, and Ullarich's equalled his highest for that year.2 In addition, one of the six insiders had been given the week off and none of the other five worked 40 hours. Later that day Anderson had Rodriguez and Ullarich sign Respondent's Exhibit 1, setting forth four reasons for the discharge of Saldana and Belmont. The first reason was their alleged disruption of work by dodging "dog" jobs in the upholstery department. The second reason was that they had produced only one half of their weekly capability in pieces and apprentice upholsterers were turning out many more pieces than they. As previously noted, Respondent's records for the prior week established the contrary. One of the two so-called apprentices did not work that week and the others' rate of production was substantially lower than that of Saldana. The third reason was that the two fastest upholsterers were threatening to leave because of Saldana and Belmont, and the fourth reason was that the outsiding and trimming department was constantly waiting for work because of an apparent deliberate slowdown by Saldana and Belmont. Villegas, the leadman in charge of the finish- ing department, testified that he observed no slowdown in production during this period of time. During the 3 weeks following Respondent's piece rate cut, when Respondent allegedly needed greater production from the insider section of the upholstery department, Respondent never worked 2 Resp Exh 25. SHELLY & ANDERSON FURNITURE MFG. CO. 255 any of the insiders 40 hours a week and in fact all of them worked substantially less. Saldana denied that he or Belmont had ever deliberately avoided dog jobs. Belmont was unavailable as a witness. Abel Macias, formerly Ramon Gonzales, and Antonio Ga- laz, the two other insiders, who did not participate in the Union's subsequent protest strike, both testified that after the piece rate cut Saldana and Belmont did not talk any more than the other insiders, had not avoided dog jobs, and, in fact, Belmont did most of the dog jobs because he was the slowest insider and the others regulated their work so that Belmont would get most of the dog jobs. Macias and Galaz corroborated Saldana's testimony that during the week immediately following the piece rate cut, all of the employees produced less because of the general dissatisfac- tion and unrest. Contrary to the testimony of Monti, Rodri- guez, and Ullarich, the record establishes that Saldana was not at work on March 4. Saldana testified that he did not work on March 4 because his daughter was sick, he had to take her to the physician, and he had his wife call Monti to advise him that Saldana was taking the day off. At approxi- mately 2 p.m. that afternoon, Monti called Saldana's wife and asked her to have him come to the plant as soon as possible. Saldana arrived at the plant at 2:30 p.m. Monti informed Saldana that Anderson wanted to speak with Sal- dana and Belmont. Anderson accused both of not pro- ducing enough and discharged them. The record contains no evidence that any of the insiders, including Saldana and Belmont, engaged in a deliberate slowdown. On the con- trary, during the week preceding their discharge, the period checked by Respondent during the meeting with Rodriguez and Ullarich, Saldana's rate of production was at a high for the year and Belmont's was above average. Moreover, the repetition of misconduct by Saldana and Belmont on the morning of March 4, which allegedly led to Rodriguez' and Ullanch's ultimatum and culminated in Respondent's deci- sion to discharge Saldana and Belmont, could not have occurred, inasmuch as Saldana was not at work. On March 5, the Union filed its first charge, alleging the discriminatory discharges of Saldana and Belmont. On March 10, the hearing in the representation proceed- ing was held. Mrs. Monti testified that Respondent' s lead- men, including Villegas, were supervisors with the power to hire and fire, and Selvin subsequently stipulated that the leadmen were supervisors within the meaning of the Act. The General Counsel alleged, and sought to establish, that Villegas was a supervisor within the meaning of the Act in support of the complaint allegation - that Respondent through Villegas engaged in surveillance of the employee's union activities by his attendance at the taco stand gather- ing on February 17 and at the union meeting at the Veterans of Foreign Wars Hall on February 24, and also to establish knowledge by Respondent of Belmont's and Saldana's un- ion activities. With respect to the latter point, the record establishes that Monti was aware of the union activities of Belmont and Saldana and reported them to Anderson prior to their discharge. The General Counsel contended that because Respon- dent had stipulated in the representation proceeding that Villegas was a supervisor within the meaning of the Act, and Rule 102.67(f) of the Board's Rules and Regulations prohib-, its "relitigating, in any related subsequent unfair labor prac- tice proceeding, any issue which was, or could have been, raised in the representation proceeding," Respondent was foreclosed from relitigating in this proceeding whether or not Villegas was a supervisor within the meaning of the Act. However, it is now well-settled that while such rule prohibits relitigating such issues in a subsequent "related" refusal-to- bargain case, it does not apply to a subsequent proceeding alleging violations of Section 8(a)(1) or (3) of the Act, al- though the evidence and findings in the representation pro- ceeding are entitled to weight as evidence in the subsequent unfair labor practice proceeding.; The record establishes that Respondent's leadmen, including Villegas, were not supervisors within the meaning of the Act. Thus they did not have any of the powers enumerated in Section 2(11) of the Act. As leadmen of their departments they transferred work assignments from Monti, the foreman, to the individ- ual employees in their departments, instructed less expe- nenced employees how work should be done, and upon occasion informed Monti of employee misconduct. Con- trary to Respondent's admissions in the prior representation proceeding, they did not have the authority to hire, fire, or direct the work of the employees in their departments. The only supervisor in plant 1 other than Respondent's officials was Monti, Respondent's foreman. All of the leadmen re- ported to and took orders directly from him. All of the leadmen had their own workbenches and performed pro- duction work, just as the other employees, a majority of the time. Although the three leadmen attended the meeting with Selvin at the Los Angeles Country Club on February 18, this was so because they were salaried employees whom Re- spondent mistakenly believed were supervisors. Despite the "persuasive relevance" of the evidence and findings in the representation proceeding, I conclude and find that Villegas was not a supervisor within the meaning of the Act. On March 15, contrary to Anderson's statement on Feb- ruary 12 that the piece rate reductions were not negotiable, Anderson increased the piece rates an average of approxi- mately 20 percent as a result of meetings he had with indi- vidual employees, which he had suggested after Selvin's speech to the employees on February 23 after the receipt of the Union's representation petition. A majority of the piece rates were increased, none were cut and some remained the same. Respondent's prior practice had been to review piece- work rates once or at most twice a year. On April 22, the Union won the Board-conducted elec- tion and on April 30 was certified by the Board. On May 21, Respondent by registered mail, return receipt requested, unconditionally offered Saldana and Belmont rein- statement to their former positions as of May 24. Saldana received Respondent's letter May 24 and returned to work June 3. Respondent's letter to Belmont was returned un- claimed, Belmont having moved to Mexico. On May 25 and June 4, Selvin and the Union's bargaining committee, including two employees, conducted bargaining negotiations without any progress being made. On June 9, at a union meeting of the employees, Jess Gonzales, the Union's business manager, informed the employees of the lack of progress in negotiations with Respondent and sug- 3 Amalgamated Clothing Workers v N L KB, 365 F 2d 898 (C.A.D C 1966), and Farm Fans, Inc, 174 NLRB 723 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gested that they take action with respect thereto. The next negotiation meeting with Selvin was scheduled for June 17. The employees unanimously voted to conduct a "protest demonstration" of 10 or 15 minutes duration at work-start- ing time on the morning of June 17 to protest Respondent's dilatory bargaining tactics and to demonstrate their solidar- ity. On June 16 after work, the Union passed out handbills at Respondent's plant advising all of the protest meeting at 7:30 a.m. the following morning. This notice came to the attention of Respondent on June 16. The "meeting" was scheduled on a corner vacant lot approximately 250 feet east of Respondent's plant 1. Although this notice stated that the meeting was not a strike, clearly as a concerted voluntary withholding of services it was a strike. Shortly before 7:30 a.m. June 17, a number of Respondent's employees gathered in the parking lot adja- cent to Respondent's plant 1, where they normally gathered each morning before the starting buzzer sounded. At or shortly before 7:30 a.m. approximately 34 employees 4 left the parking lot and proceeded to the vacant lot east of the plant to the "protest meeting," accompanied by Gonzales and several other union officials. Approximately 11 employ- ees from plant 2 attended the protest demonstration, the balance being from plant 1. As soon as Anderson ascer- tained that these employees had left the parking lot to at- tend the Union's protest demonstration during working time, he ordered the gate to the parking lot at plant 1 closed and called Zaionz at plant 2 and ordered him to close and lock the parking lot gate there. Such closings effectively prevented ingress to the parking lots and the adjacent em- ployee entrances to the plants. Anderson told Zaionz that when and if the employees returned to work to tell them that they were laid off for the balance of the day. Anderson decided also to lay off the employees from plant 1 for the balance of the day and so advised Monti and Randall. Respondent admittedly decided to lock out and lay off the employees for the balance of the day when and if they returned from their protest meeting as punishment for en- gaging in concerted activity, their concerted refusal to work, on Respondent's time. A few minutes after the protest demonstration com- menced, Gonzales returned to plant 1 and met Anderson near the main entrance. Gonzales told Anderson that the demonstration was a protest against Selvin's stalling bar- gaining tactics, that Gonzales had requested the protesters to make up the lost time, and that he hoped Anderson would not retaliate. Anderson replied, "Let them protest." Accord- ing to Anderson, he also told Gonzales that he was laying the protesters off for the day. Anderson then turned on the sprinkler system which watered the lawn of plant I and in the process got Gonzales and Frank La Casella, a union business representative, wet. Gonzales returned to the lot where the protest meeting was going on, told the employees to return to work and requested them to make up the time lost, approximately 15 minutes, at the end of that day. All of the protesters from plant 1 returned to plant 1 in a group and approached the entrance gate to the parking lot. Some 4 Thirty-two of the 34 employees who attended the meeting and who, together with Roberto Ibarra , were subsequently locked out by Respondent are listed in Appendix A attached hereto . The other two, Manuel Rodriguez and Ramon Trujillo, were not locked out. were in the forefront and some in the rear, so there was considerable variance in their recollection of what then hap- pened at plant 1. Although Anderson had instructed Monti to close the entrance gate, apparently several of the employees got through the gate and approached the employee entrance at the side of the plant. Armando Quijada got inside the plant. Anderson told him not to punch in and that there was no work for him that day. Quijada then rejoined the others in the parking lot or at the entrance gate. Anderson came outside and told the group that they were laid off for that day but that they should return to work the following morn- ing. Approximately 90 percent of Respondent's employees could not understand English, but those who could translat- ed Anderson's remarks to the others. As a result of Anderson's request or gestures, all of the employees inside the gate moved outside and joined the others on the side- walk at the driveway. The gate was closed and subsequently locked. None of the employees present were allowed to return to work and all were informed, directly or otherwise, that they should return to work the following morning. Sub- sequently, the gate was reopened for a short time in order to let those who had parked their cars in the parking lot before the demonstration meeting remove them. A few of the employees, e.g., Dorothy Duke, misunderstood or did not hear what was said and did not realize that they were supposed to return the following morning. Anderson admit- tedly intended to have all of the employees return to work the following day. Gonzales and several other union representatives were present. Gonzales decided that Respondent had locked out the protesters and accordingly secured picket signs from the union representatives' automobiles and started a protest picket line outside of Respondent's plants. Apparently some of the signs read "unfair labor practice" and others read "on strike". Later that morning, Anderson, as was his custom, was jogging around the block in which the plants were located. Jose R. Solorio, known as "Boots," was seated in a chair holding a picket sign in the grass strip between the sidewalk and the curb in front of the entrance to plant 1. As Anderson came jogging along the grass strip, where he al- ways ran because it was easier on his legs than the pave- ment, Solorio's chair was blocking Anderson's path. He stooped down and tilted the chair over backwards, spilling Solorio onto the street. Solorio was not injured and he and the other pickets enjoyed a hearty laugh. Much the same sequence of events occurred at plant 2. When the plant 2 protesters arrived they found the gate locked and were unable to enter. Zaionz came out and told them that they were laid off for the day and that they should return to work the following morning. Zaionz later opened the gate to permit Robert Garcia to remove his car from the parking lot, and told him that there would be work the following day as usual. Picketing at both plants continued for the balance of the workday. The following morning, June 18, most of the employees returned to work shortly before 7:30 a.m. The testimony of Respondent's witnesses concerning what its intentions were on the morning of June 18 with respect to the protesters returning to work was confused, contradictory, and incon- sistent. According to Mrs. Monti, the protesters would have SHELLY & ANDERSON FURNITURE MFG. CO. 257 been allowed to return to work that morning without any conditions if they had reported for work, but none of them showed up. She testified that Selvin had instructed her to keep the timecards in the rack and let the protesters return to work as usual. She further said that Selvin later advised Respondent that it would have to proceed differently be- cause the protesters did not show up for work on the mom- ing of June 18. She conceded that there was plenty of work available for them that morning. However, the record estab- lishes beyond dispute, and Anderson admitted, that sub- stantially all of the protesters showed up for work on the morning of June 18 at starting time and were refused em- ployment by Respondent unless they would sign an "uncon- ditional application." Monti's testimony concerning Respondent's intentions on the morning of June 18 was totally confused. He twice testified that the protesters could have returned to work without any conditions, and twice testified that they would have had to sign an unconditional application to return to work. Anderson testified that after the picketing began on June 17 he called Selvin, advised her of the fact, and in- formed her that the pickets were carrying signs which in- cluded the words "on strike." Anderson, as he had advised the employees that morning, intended that they return to work on June 18 as usual. Selvin advised him that because the employees were carrying such picket signs he could not allow them to return to work the next morning as usual, but that instead they would have to sign an "unconditional application" to establish that they were returning to work voluntarily without any offers or inducements by Respon- dent. Selvin instructed Anderson to use Respondent's reg- ular application for employment form, a full-size printed sheet containing the usual questions customary in applica- tions for employment, and print by hand on the top the words: "This is an unconditional" above the caption, Appli- cation for Employment. According to Anderson, he ex- plained this requirement to Mrs. Monti and Josephine Dumkrieger, Respondent's office manager, later the same day. Dumkrieger testified that such forms were prepared the following morning by Marie Peterson, the Montis' daugh- ter. Juanita Eidson, Respondent's receptionist, corroborat- ed this and testified that she was instructed on June 18 to present such form for signing to anyone who came in seek- ing employment, including the protesters. About 9 a.m. Fri- day Anderson informed Monti that to return to work the protesters would have to apply at the office and sign the unconditional application for employment form. Anderson instructed Monti to explain to the employees that the word "unconditional" meant that they would not lose any senior- ity or benefits. On the contrary, Mrs. Monti testified that such form did not exist on June 18 and did not come into existence until the middle of the following week. Selvin during her testimony made no reference whatsoever to such unconditional application for employment .5 Also contrary to Anderson and the record, Monti in his affidavit stated that none of the protesters showed up for work at starting time on the morning of June 18. The testimony and affida- vits of the Montis are so confused, inconsistent, and contra- dictory that I do not credit them unless otherwise 5 Resp. Exh. 24 corroborated. - Because Anderson knew that he had told the employees to return to work on June 18 as usual and had later received contrary instructions from Selvin, he arrived at plant I about 7 a.m. on the morning of June 18 to prevent the protesters from returning to work without signing such an unconditional application for employment. Contrary to the testimony of five of the protesters, Anderson and Monti testified that their timecards were in the rack on the mom- ing of June 18. In view of Anderson's decision by way of Selvin not to let them return to work without signing such unconditional applications, it would appear logical for Re- spondent to have removed their timecards from the rack. Zaionz admittedly did so at plant 2. In any event, it is not of great significance inasmuch as it is undisputed that Re- spondent refused to permit the protesters to return to work that morning unless they signed the unconditional applica- tion for employment form. Substantially all of the protesters gathered on the parking lot adjacent to the employee entrance before 7:30 a.m. on the morning of June 18 to return to work as instructed by Anderson the day before. Probably the first protester from plant 1 to arrive at work on the morning of June 18 was Renato Quijada, who arrived before 7:30 a.m. He entered the plant, saw that his timecard had been removed from the rack and proceeded to Mrs. Monti's office. She advised him that there was no work for him that day "because the work was slow" and told him to call her Monday, June 21. He did so and she told him he could return to work the next day, June 22, if he would sign a form which Respondent had prepared. Five other protesters got inside the plant the morning of June 18. Four of them testified that their time- cards were not in the rack. One of them, Gilberto Ruelas, testified that he found his card in the rack, punched in, and went to his work station. He and Jose R. Solorio both testi- fied that they entered the plant before 7:30 a.m. and pro- ceeded to their work stations. Jose L. Ruelas entered the plant immediately behind Gilberto but was unable to find his timecard. Anderson approached and told him that those who had attended the protest meeting were to leave the plant, and if they wanted their jobs back they would have to sign an application at the office, which would be open about 8:30 a.m. Anderson then told Gilberto and Jose R. Solorio that they too should leave the plant and join the other protesters in the parking lot. All three did so. Substantially all of the plant 1 protesters, approximately 20, were gathered in the parking lot. Anderson came out and spoke to them. The union organizers were present on the sidewalk some distance away. Anderson told the group sub- stantially the same thing that he had told Ruelas inside the plant, that if they wanted to return to work they would have to go to the office when it opened to fill out an uncondition- al application. Some of the employees understood him to say application as a new employee, but in any event it is undisputed that he was referring to Respondent's Exhibit 24, Respondent's application for employment form with the words "Thus is an unconditional" printed on top. Anderson in substance admitted the foregoing statements. He then requested the employees to leave the parking lot and Respondent's premises and go outside the gate, which they did. Very few of the protesters understood English, but the 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD few who did translated for the others. Anderson was not able to speak Spanish . The union officials observed Ander- son speaking to the group but were unable to hear what he said. Up to this point there was no picketing on the morning of June 18. Anderson followed the group ' to the gate as they left the premises. At or near the gate, Anderson told the employees that those who wanted to work would have to go to the office when it opened to make applications as "new" employees. Several of the union officials present heard this. Anderson admitted that he said that they would have to fill out unconditional applications . Thereafter, the union offi- cials again set up picket lines outside the plant and contin- ued to picket thereafter to protest Respondent's continued lock out of the employees and refusal to permit their return to work except upon the execution of an unconditional application for employment. Somewhat similar events occurred with respect to the protesters attempt to return to work on Friday morning, June 18, at plant 2. Zaionz, whom I do not credit unless corroborated, testified that he decided not to permit the protesters to return to work on the morning of June 18, contrary to the admitted instructions of Anderson the day before, and accordingly removed their timecards from the rack. Although Mrs. Monti, superintendent of both plants, testified that there was plenty of work available in plant 1 and Respondent wanted all of the protesters to return to work on June 18, Zaionz testified that because of the lack of production in plant 2 on June 17 caused by Respondent's refusal to permit the protesters to return to work that day, he decided that on the following day there would not be sufficient work for all of the employees and that he would not permit the protesters to return to work that day because of their concerted activity the day before . Contrary to the testimony of many protesters who tried to return to work the morning of June 18 and talked with Zaionz , he denied that he made any reference to signing an unconditional application or knew anything about it at the time . Seven of the protesters from plant 2 testified concerning events there on the morning of June 18. The first arrival , Luis Cortez, could not find his timecard but proceeded to his work station . Subsequently, Zaionz told Cortez that he could not work that day and if he wished to return to work he would have to go to the office the following Monday and fill out an application . Zaionz was able to converse in Spanish. Other protesters were arriving at work and Zaionz instructed Cortez to tell them what Zaionz had told Cortez. He did so. They also ascertained that their timecards were not in the rack . This group then left the plant pursuant to Zaionz' orders. Saldana arrived about 7 :30 a.m. and spoke with Zaionz, who told him there was no work for him that day but to return Monday . Zaionz distributed the paychecks for the past week, which were normally distributed Friday afternoon , to all of the protes- ters that morning, because he had decided that he would not permit them to work that day. Robert Garcia arrived that morning , proceeded to his workbench, and started working . When Zaionz came around with the paychecks , he asked Garcia why he was working since his timecard was not in the rack . Garcia replied that Zaionz had told him the day before to return to work that day. Zaionz told Garcia there was no work for him that day. Garcia asked if he was being laid off or fired. Zaionz replied that he was not, but that, according to Selvin, Garcia had quit the day before when he attended the protest meeting. When Garcia protested that he had not quit but had tried to return to work the day before but had been locked out, Zaionz replied that if Garcia wished to return to work he would have to go to the office and fill out an application as a new employee. When Garcia asked, Zaionz replied that this would not guarantee his job . When Lopez arrived that morning, Zaionz informed him that he was being given the day off. Lopez asked for his second check, customary when an employee was laid off or discharged, but Zaionz refused to give it to him. Zaionz told Lopez that to return to work he would have to wait until the office opened to fill out an application. Ramon Trujillo had attended the protest demonstration but was excused by Respondent from working the prior day as one of the two employee-members of the Union's nego- tiating team. When he returned to work the afternoon of June 17, Zaionz told him there was no work and sent him home, although Trujillo protested that there was plenty of work available. Trujillo returned on the morning of June 18 and was informed by Garcia that Zaionz was laying off everybody who had attended the protest meeting . Trujillo then asked Zaionz for his check. Zaionz replied that he did not get one. When Trujillo asked why, Zaionz replied be- cause Trujillo had an excuse for being absent the day be- fore. Trujillo heard Zaionz tell Garcia and Lopez that if they wanted to return to work they would have to go to the office and sign a new application. Trujillo remained at work throughout the subsequent events herein. Later that day several of the employees went to the office at plant 1, were shown the application for employment with the words "This is an unconditional" printed on top, and told they would be required to sign it in order to return to work. Most of the employees were unable to read English or understand the form, but understood the word "uncondi- tional," inasmuch as the Spanish equivalent is spelled al- most the same and means substantially the same thing. Although Mrs. Monti testified that such form did not come into existence until the middle of the following week, An- derson admitted that he instructed Mrs. Monti and Respondent's office manager to prepare the forms on Thursday afternoon, June 17, and that on the morning of June 18 he instructed both Montis how to handle the form and what to tell any of the employees who came to the office to return to work. He told them to inform such employees that the application form meant that they were returning to work unconditionally and that they would have the same jobs and benefits as previously . Also contrary to Mrs. Mon- ti, Zaionz testified that she called him June 18 after 9 a.m. and instructed him in the use of such application form in the event any of the protesters wanted to return to work at plant 2. It is somewhat difficult to perceive how the words "This is an unconditional application for employment" could be equated with an assurance that the employees were return- ing to their former jobs without any loss of prior benefits. Later that morning, Armando Quijada and Jose L. Rue- las entered the front office and requested permission of the receptionist to pick up their tools. Shortly thereafter, the Montis came to the reception room . They asked the two SHELLY & ANDERSON FURNITURE MFG. CO. 259 employees if they wanted to return to work. When they said yes, one of the Montis handed Quijada the application for employment form. One of the Montis advised him that if he wanted to return to work he had to fill out or sign the application. Quijada and Ruelas both replied that they wanted to work but not under such conditions . Mrs. Monti allegedly told them that signing such application would not affect their prior wages or benefits. They then informed Mrs. Monti that they wanted their tools . She asked them to wait and later brought them a form of receipt to sign for their tools. Although neither of them were able to read it, Ruelas started to sign his, whereupon Quijada suggested that before signing they check with someone who could read English. They took the receipt outside to La Casella who told them its contents . The receipt read that the signer was not seeking "re-employment" but only permission to get his tools. When both of the employees subsequently refused to sign the receipt Monti gave them their tools without a re- ceipt. That same morning, Carlos Miranda and Ramiro Carril- lo entered the lobby office and the receptionist summoned Monti. Miranda and Carrillo informed Monti that they wanted to return to work. He produced a copy of the appli- cation for employment with the insertion on top and told them they would have to sign it before they could return to work. He told them it meant that they would lose no bene- fits or wages and was for the protection of Respondent. Because Miranda and Carrillo could not understand Monti, he first called Villegas and subsequently Hector Gonzales to translate for him. They explained to Miranda and Carrillo what Monti had stated . Both of them then asked Monti why they should have to fill out an application form for employ- ment when they already had one on file. Miranda testified that he could make out the word "unconditional" on the form. They refused to sign but took a copy of the form with them to show the union officials . Subsequently, La Casella told Miranda not to sign anything. On June 18, the Union filed a second charge with the Board alleging a refusal to bargain and a discriminatory suspension or discharge of the employees who engaged in the concerted work stoppage on June 17. Sometime in the afternoon of June 18 , Monti informed Anderson that the protesters were refusing to sign the un- conditional application for employment form to return to work because they did not understand its meaning, could not understand why they should fill out such an application for employment when they already had one on file and considered themselves still employees, and could not under- stand the reason for the word "unconditional". Anderson called Selvin. She said that she would prepare a shorter and simpler form for the protesters to sign before they could return to work. She prepared such form, Respondent's Ex- hibit 6, and Respondent presented it to employees who tried to return to work on and after Monday , June 21 . It read: "I the undersigned make an unconditional offer to return to my job. This is a voluntary offer . Signed Date ." Mrs. Monti had a supply of such forms typed and given to the receptionist to replace the applica- tion for employment form in the event any employees sought to return to work . Again she or Monti were to be called in the event any employee came to the reception office for that purpose . Again Selvin directed that the form must be used to protect Respondent from a potential charge of soliciting "strikers" off the picket line. Respondent 's offi- cials were instructed to tell the employees that such form meant that they would not lose any wages or other benefits, that they were not making Respondent any promises, and that it was not making them any promises. The same form was supplied to Zaionz for use at plant 2 on June 21 and thereafter. Although most of the protesters never saw either Respondent's Exhibit 6 or Respondent's Exhibit 24, when the latter was used on Friday, June 18, the word quickly spread among all of the protesters that Respondent was requiring them to sign an "unconditional " application for employment before they could return to work and, on Mon- day, June 21 , and thereafter, that Respondent was requiring them to sign a smaller form , still containing the word "un- conditional" and generally referred to by both parties as an "application." On either June 21 or June 22, Renato Quijada came to the office to talk to Mrs . Monti pursuant to her request on June 18, when she told him there was no work that day but to call on Monday. She told him he could return to work if he would sign Respondent's Exhibit 6. Quijada was unable to read and understand English , but he advised Mrs. Monti that he could not understand what the form meant and was particularly troubled by the word "unconditional". She ex- plained that the form meant that no promises were being made by either him or Respondent, and that he would not lose any seniority or benefits if he signed . Quijada refused to sign the form. She refused to give him a copy of the form but told him that Manuel Rodriguez had one. Although Rodriguez had attended the protest meeting on June 17, he, like Trujillo, was not locked out because he too had been officially excused to attend the bargaining negotiations that day as a member of the Union's committee and accordingly was still employed by Respondent. This was the same Ro- driguez who participated in the discharge of Belmont and Saldana. On either June 21 or 22, several of the protesters at plant 1 talked with Monti, who used Valenzuela, one of Respondent's leadmen, as an interpreter. They told Monti they wanted to return to work . He replied that they could do so if they would sign Respondent's Exhibit 6. He ex- plained through Valenzuela that it meant that Respondent did not promise them anything and that they were returning to work voluntarily . The protesters replied that they had been advised by the Union not to sign anything and refused to sign. They too were disturbed by the word "uncondition- al." On various subsequent occasions, Valenzuela talked with approximately 10 to 12 other protesters who asked him what Respondent's Exhibit 6 meant and how they could return to work . He told them that he could not see anything in particular to Respondent 's Exhibit 6 and that the word "unconditional" only meant that they were not promising Respondent anything and Respondent was not promising them anything. On or about June 24, a group of about five protesters spoke with Monti at plant 1 concerning their desire to return to work. Their spokesman, who was able to speak English, told Monti that they were speaking on behalf of some 19 protesters who wished to return to work . Monti replied that 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all they had to do was sign Respondent's Exhibit 6, the purpose of which was to protect Respondent . He again explained that the word "unconditional" meant that they would lose no benefits or wages . Their spokesman replied that he could not understand the form or its purpose. Monti gave him a copy. They took it to Gonzales who told them that they should not sign anything . During the ensuing days, a number of the protesters talked to Rodriguez about their desire to return to work and their uncertainty with respect to what their status would be if they signed an "uncondi- tional application." He told Mrs. Monti that he had talked with approximately 20 employees who wanted to return to work upon the condition that they all return. She gave him a copy of Respondent's Exhibit 6 to show and explain its meaning to them, and told him that they had to sign it in order to return. All of them were troubled by the word "unconditional." Rodriguez explained that it simply meant that they were to come back to work without any changes, as if nothing had ever happened . Subsequently, Rodriguez gave the form to Renato Quijada. None of this group was willing to sign the unconditional application. The record establishes that at plant 2 Zaionz told individ- ual protesters who sought to return to work on and after June 21 that they would have to sign Respondent's Exhibit 6 and gave them the same explanation as given at plant 1. The record establishes that the Union at all times advised the protesters not to sign either Respondent 's Exhibit 24 or Respondent's Exhibit 6. Several weeks later, four of the protesters, Francisco Garcia, Jose Alamillo, Renato Quijada, and Victor Rodri- guez, signed Respondent's Exhibit 6 and returned to work. The record establishes that Rodriguez returned to work on July 20, Quijada on July 27, and Alamillo on August 18. The record does not establish the exact date upon which Garcia returned because Respondent was unable to locate his per- sonnel record. However, such date should be readily ascer- tainable from other records because Garcia was in charge of the button department in plant 2 , which position he resumed upon his return. The record reveals facts with respect to several individual employees somewhat at variance with the above -found pat- tern and facts concerning the majority of the protesters, but Respondent conceded that such individuals, including those whom Respondent mistakenly considered to be among the protesters, should be treated in the same fashion as all of the protesters who were refused employment on June 17 and subsequently refused employment unless they would sign one of the forms prepared by Respondent . Thus, Dorothy Duke was present at the protest meeting June 17 and re- turned to the plant to work at about 7:45 a.m. According to her, she spoke with Anderson who told her that she was no longer needed . As a result she did not report for work on the morning of June 18. However, she picked up her paycheck that afternoon at the plant from Mrs. Monti, who did not inform her that she could return to work . Duke later ascertained, as did all of the protesters, that she would be required to sign one of Respondent's application forms in order to return to work. Duke was unwilling to do so. Roberto Ibarra was not at the protest demonstration on the morning of June 17. He arrived at work a few minutes after the protesters had returned to the plant and were gathered in the parking lot, when Anderson told them they could not work that day but to return the next day . Ibarra started to enter the plant to work, but Monti directed him to leave the premises with the others . He left the parking lot with the large group as it moved onto the sidewalk shortly before the picketing commenced . Ibarra returned to work the next morning about 7:20 a.m., but Monti again prevented him from entering the plant . Monti told him and several other employees that, if they wished to return to work , they would have to go to the office and sign an application. Thus it is apparent that Respondent by mistake treated Ibarra as one of the protesters. During the latter part of the week of June 21, Respondent began hiring replacements. The record establishes that all replacements were hired as temporary employees. The pro- test picketing continued until the hearings herein. The parties stipulated that, of the 34 employees named in the complaint as having been discriminatorily locked out on June 17, the 30 named in General Counsel 's Exhibit 8 were present at the demonstration . The parties further stipulated the presence of Francisco Garcia and the record established the presence of Jose Alamillo. The record further establishes that all 32 of these employees were locked out on June 17 and subsequently refused employment under the circum- stances hereinabove found, plus, by mistake, Ibarra. This results in the total of 33 listed in Appendix A. The record fails to establish that Carlos Rios , the other employee named in the complaint, was present at the protest demon- stration or subsequently refused employment. As previously noted, four of the employees listed in Appendix A signed Respondent's Exhibit 6 and returned to work several weeks later. On August 18, the Union filed an amendment of its second charge, withdrawing its charge that Respondent had failed and refused to bargain. C. Interference, Restraint, and Coercion 1. Surveillance The complaint alleged that in February Respondent through Villegas engaged in surveillance of the employees' union activities at the taco stand and at the meeting at the VFW Hall. As hereinabove found, Villegas, the leadman of Respondent's finishing department, was present at the taco stand on February 17 when Belmont and Saldana were passing out union authorization cards and he was given and signed an authorization card. Villegas' presence was nor- mal, as he customarily ate lunch at that location with the other employees . The record establishes that the employees considered Villegas a fellow employee and not a supervisor. Villegas by invitation also attended the union meeting at the VFW Hall on February'24, where both Belmont and Salda- na made speeches favoring the Union, and Villegas partici- pated in the program to the extent of questioning Gonzales concerning prospective wages for Respondent's day work- ers. There is no evidence in the record that Villegas reported any of these events to Respondent, and in fact there is affirmative evidence to the contrary . Anderson, at the re- quest of Selvin, subsequently criticized Villegas as a supervi- sor for attending these meetings , at which point Respondent ascertained that Villegas was not , in fact, a supervisor with- in the meaning of the Act. As hereinabove found, although SHELLY & ANDERSON FURNITURE MFG. CO. 261 Respondent stipulated to the contrary during the represent- ation proceedings, Villegas was not a supervisor within the meaning of the Act and, accordingly, I conclude and find that Respondent did not engage in surveillance of its em- ployees' union activities as alleged in the complaint. 2. The Selvin speech The complaint alleged that in February Respondent, through Selvin, at its plant threatened employees with more onerous conditions of employment, that Respondent might go out of business, and that Respondent would refuse to bargain with the Union, all if the employees selected the Union; threatened to withhold improvements in conditions of employment if the employees continued to support the Union; and implied that Respondent was engaging in sur- veillance of the employees' union activities. The foregoing allegation referred to Selvin's speech on February 23 at the plant to the assembled employees. As hereinabove found, Selvin, during her speech, after characterizing the Union as dishonest, rough, liars, and hoodlums and implying that it was coercing employees to join by threats, warned the employees that the election and subsequent bargaining was a long, time-consuming process during which the employees would be deprived of benefits they might otherwise have received . On three occasions, she directly implied that Respondent might go out of business if the employees elected the Union . On two occasions, she implied that she would engage in surface bargaining and not bargain with the Union in good faith. In addition, she warned the employees that they might lose existing benefits if they selected the Union and Respondent was compelled to bargain with it. She also warned the employees that they would be depriving themselves of future benefits by sup- porting the Union, seeking an election, and tieing Respondent's hands. There was nothing in Selvin's speech containing any implication that Respondent was engaging in surveillance of the employees' union activities. The Supreme Court has delineated the criteria applicable to distinguishing permitted employer opinions and pre- dictions from proscribed threats, pointing out, inter alia, that an employer "may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable conse- quences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization .... If there is any implication that an employ- er may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable pre- diction based on available facts but a threat of retaliation based on misrepresentation and coercion , and as such with- out the protection of the First Amendment. We therefore agree ... that `conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.' . . . As stated elsewhere, an employer is free only to tell `what he reasonably believes will be the likely economic consequences of the unionization that are outside his con- trol,' and not `threats of economic reprisals to be taken solely on his own volition.' " The Court further stated that the Board has the "duty to focus on the question `what did the speaker intend and the listener understand.... "' and the Court further observed that an employer "can easily make his views known without engaging in `brinkmanship' when it becomes all too easy to `overstep and tumble into the brink.' . . . At least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to be- lieve will mislead his employees."6 I am satisfied and find that Respondent, by threatening its employees with more onerous conditions of employment, threatening that it might go out of business, and threatening to refuse to bargain in good faith with the Union, all if the employees selected the Union, and threatening to withhold improvements in terms and conditions of employment if the employees continued to support the Union, engaged in in- terference, restraint, and coercion in violation of Section 8(a)(1) of the Act.' 3. The wage increase The complaint alleged that in March Respondent in- creased its piecework rates to induce the employees to re- frain from supporting the Union. As hereinabove found, effective February 15, Respondent substantially cut all of its piecework rates and informed the employees that such rates were final and not negotiable and they could quit if they were dissatisfied. On February 18, the Union filed its repre- sentation petition . The unrest and dissatisfaction among the employees caused by Respondent's piece rate cut led direct- ly to the employees' union activities, of which Respondent was fully aware on and after February 18. On February 24, after Selvin's speech to the assembled employees, Anderson, contrary to his statements on February 12, invited individ- ual employee negotiations with respect to adjusting the piece rates upward. The record establishes that Respondent normally adjusted its piece rates once or at most twice a year. The suggested negotiations with individual employees from the various departments followed. On March 15, Re- spondent granted a substantial increase in the majority of its piecework rates. I am satisfied and find that Respondent's purpose was to induce the employees to re- frain from supporting the Union. It is well settled that the promising or granting of wage increases or other benefits during an organizational cam- paign or the pendency of an election for the purpose of inducing employees to vote against the union is an unfair labor practice in violation of Section 8(a)(1) of the Acts The appropriate test is whether or not such benefits would have been granted for sound economic reasons in the normal course of events absent union activity by the employees. If they would not have been, but instead are promised or granted because of such, activities in order to induce the employees to vote against their union or abandon such activi- ties, their promising or granting is in violation of the Act .9 6NL.R.B. v. Gissel Packing Co, 395 U.S 375. 7 Hicks-Ponder Co., A Division of Blue Bell, Inc, 186 NLRB 712; and Great Plain Steel Corp, 183 NLRB No. 96. 8 N L R. B. v Exchange Parts Company, 375 U S 405. 9 Great Plain Steel Corp., 183 NLRB No. 96. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude and find that Respondent, by granting its em- ployees piecework rate increases to induce them to refrain from supporting the Union, engaged in interference, re- straint, and coercion in violation of Section 8(a)(1) of the Act. 4. Threats of discharge The complaint alleged that in June Respondent, by Zaionz, threatened that it would discharge employees who engaged in union or protected concerted activities. This allegation had reference to Zaionz' conversations with Rob- ert Garcia and Ramon Trujillo on the morning of June 18 when they tried to return to work at plant 2. As heremabove found, when Garcia returned to work on the morning of June 18 because he had been told by Zaionz the day before to do so, Zaionz asked him why he was working since his timecard was not in the rack. Zaionz then told Garcia that there was no work for him that day. When Garcia asked if he was being laid off or fired, Zaionz replied that he was not but that, according to Selvin, Garcia had quit the day before when he attended the protest demonstration. When Garcia protested that he had not quit but had tried to return to work and had been locked out, Zaionz replied that if he wished to return to work he would have to go to the office and fill out an application as a new employee. When Garcia asked if doing that would guarantee his job, Zaionz replied that it would not. Zaionz denied the foregoing conversation, but I credit Garcia. Trujillo had attended the protest demonstration on June 17 but had been officially excused from work that day as a member of the Union's negotiating team. When Trujillo returned to work that afternoon, Zaionz sent him home, apparently by mistake, although there was work available. Trujillo returned to work the following morning. Having learned that Zaionz was laying off everybody who had at- tended the protest meeting, Trujillo asked Zaionz for his paycheck. Zaionz replied that Trujillo unlike the others did not get a check. When Trujillo asked why, Zaionz replied because Trujillo had an excuse for being absent the day before. Trujillo heard Zaionz tell other employees who had attended the protest demonstration that if they wanted to return to work they would have to go to the office and sign a new application. Zaionz did not deny Trujillo's testimony. I credit Trujillo. Zaionz' statement to Garcia that he had quit his employ- ment because he had attended the protest demonstration during working hours, and Zaionz' subsequent statement that Garcia could not get his job back unless he filed an application as a new employee, and even this would not guarantee him his job, clearly constituted, if not an actual discharge, a threat to discharge Garcia for having engaged in a protected concerted activity. Zaionz' statement to Tru- jillo, who was present and heard Zaionz tell others who had attended the protest meeting that they could not come back to work unless they went to the office and signed a new application, that he was not being laid off and getting a paycheck like the others because he had been officially excused from working the day before clearly constituted a statement that if Trujillo had participated in such concerted activities without being officially excused from work he too would be laid off and required to file a new application, clearly a threat or warning not to engage in such union or concerted activities. I conclude and find that by the forego- ing statements to Garcia and Trujillo, Respondent threat- ened them with discharge or layoff for engaging in union or protected concerted activities in violation of Section 8(a)(1) of the Act. 5. Physical interference The complaint alleged that in June Respondent by An- derson physically interfered with employees engaged in un- ion or protected concerted activities. This allegation had reference to the incident on the morning of June 17 when Anderson turned on the sprinkler system at plant 1 and got Gonzales and La Casella wet, and the incident later that morning after the picketing started when Anderson while jogging tipped over a chair in which Jose R. Solorio was seated holding a picket sign, spilling him onto the street. There is no evidence in the record that Anderson delib- erately got Gonzales and La Casella wet and, in any event, there were no employees involved. With respect to the "Boots" incident, although he clearly was engaged in a protected concerted activity, there can be no doubt but that the incident amounted to little more than horseplay or at the most pique, resulted in no injury and caused everyone, in- cluding Boots, to laugh. It clearly did not tend to interfere with, restrain, or coerce the employees in violation of the Act. I conclude and find that the General Counsel has failed to sustain his burden of proof with respect to this allegation and that Respondent did not, as alleged in the complaint, physically interfere with its employees engaged in union or concerted activities in violation of the Act. D. Discrimination in Hire or Tenure, Terms, or Conditions of Employment 1. Belmont and Saldana The complaint alleged that on or about March4, Respon- dent discharged Belmont and Saldana and thereafter failed and refused to reinstate them, because of their union or other protected concerted activities. As hereinabove found, on March 4, Respondent discharged Belmont and Saldana, allegedly because of their deliberate slowdown, their ex- tremely low production, their constant talking and avoid- ance of dog jobs, and the alleged threat by Rodriguez and Ullanch to quit unless Respondent discharged Saldana and Belmont. Respondent's Exhibit 1, signed by Anderson, Ro- driguez, and Ullarich the same day, set forth four reasons for the discharges, at least two of which were contrary to fact, i.e., that the number of pieces produced by Saldana and Belmont were half of their capability and apprentice upholsterers were turning out many more pieces, and that Respondent's outsiding and trimming department was con- stantly waiting for work because of an apparent deliberate slowdown by Saldana and Belmont. As hereinabove found, the testimony of Respondent's witnesses present at the meeting, namely, Anderson, Monti, Rodriguez, and Ul- larich, at which Respondent decided to discharge Belmont and Saldana, was a maze of confusion, contradictions, and inconsistencies . One of the few consistencies was that Ulla- rich and Rodriguez were complaining about Belmont and SHELLY & ANDERSON FURNITURE MFG. CO. 263 Saldana and threatening to quit because their activities had allegedly interfered with the production of Rodriguez and Ullarich. However, Respondent's own records established that for the week in question and under consideration at the meeting both Rodriguez' and Ullarich's production was substantially in excess of normal. Saldana and Belmont commenced their activities on be- half of the Union immediately after the February 15 piece rate cut and shortly thereafter Monti informed Anderson that they were doing a lot of talking and engaging in union activities in the upholstery department. Respondent's dis- covery of a "slowdown" in production in the upholstery department coincided with its discovery of Belmont and Saldana's union activities. The record establishes that dur- ing the first week after the piece rate cut, there was a general decline in production throughout plant 1, including the up- holstery department, caused by general employee dissatis- faction and unrest and not by any specific conduct of Belmont and Saldana. The record establishes the following facts discrediting Respondent's alleged reasons for dis- charging Belmont and Saldana: 1. Rodriguez' and Ullarich's alleged threat on March 4 to quit if Belmont and Saldana were not discharged because of their continued misconduct that morning, consisting of disrupting production in the upholstery department by ex- cessive talking and avoiding dog jobs, when the record es- tablishes that Saldana was not at work that day; 2. Substantially contradictory and inconsistent state- ments among Respondent's four witnesses concerning their discussion at the meeting on the morning of March 4 lead- ing to the discharge of Belmont and Saldana; 3. Respondent's checking of the insiders' production rec- ords for the prior week at that meeting, allegedly estab- lishing that the production of Belmont and Saldana was substantially below normal (only half of their capability according to Respondent's Exhibit 1), when Respondent's production records established that during the week under consideration Saldana's rate of production was his highest for that year and Belmont's was above normal; 4. Rodriguez' and Ullarich's contention that their pro- duction was substantially lowered by the conduct of Saldana and Belmont, when Respondent's records for the prior week under consideration revealed Rodriguez' rate was his high- est for the entire year and Ullarich's equalled his high for the year; 5. The testimony of Saldana corroborated by two other insiders that Saldana and Belmont did not avoid dog jobs and that in fact Belmont did most of the dog jobs; 6. The fact that Respondent never criticized or warned Saldana or Belmont about their alleged poor production or any other misconduct; and 7. Respondent's contention that it needed substantially more production from the insider section of the upholstery department during the 3 weeks after the cut in piece rates, when Respondent's records established that none of the insiders worked as much as 40 hours any of those weeks and the overall average was less than 30 hours per man per week. A preponderance of the reliable, probative, and substan- tial evidence in the entire record convinces me, and I find, that Respondent's alleged reasons for discharging Belmont and Saldana were pretexts and that its real reason was their union activity, ascertained by Respondent shortly before their alleged misconduct. I conclude and find that Respon- dent discharged Belmont and Saldana on March 4 because of their union activities, thereby discriminating against them in violation of Section 8(a)(3) and (1) of the Act. As hereinabove found, on May 21, effective May 24, Respon- dent by registered mail offered Saldana and Belmont un- conditional reinstatement to their former positions. Saldana returned to work June 3 and Respondent's letter to Belmont was returned unclaimed because he had moved to Mexico. 2. The June 17 lockout The complaint as amended alleged that on June 17 Re- spondent locked out, discharged, or laid off 34 named em- ployees, and thereafter failed and refused to reinstate them. The record establishes that the 33 employees named in Ap- pendix A hereof were locked out on June 17 and subse- quently refused employment except under the circumstances hereinabove found. The record failed to es- tablish that Carlos Rios, the other named employee, was present at the protest demonstration or subsequently re- fused employment. Two other employees, Manuel Rodri- guez and Ramon Trujillo, were present at the protest demonstration but were not subsequently refused employ- ment because they had been officially excused to attend the negotiation meeting that day. As hereinabove found, pursuant to prior agreement and a written notice distributed June 16, some 34 employees attended the Union's protest demonstration on the morning of June 17 at 7:30 a.m., Respondent's work starting time, to protest Respondent's alleged dilatory tactics in bargaining and demonstrate their solidarity. Although the Union mis- takenly referred to the protest meeting as a demonstration and stated that it was not a strike, quite clearly it was a concerted voluntary withholding of services and as such constituted a strike within the meaning of the Act. As soon as the strike commenced, Anderson decided to punish the protesters because of their concerted activity by locking them out for the balance of the day, and gave orders to close the gates at plant 1 and to close and lock the gates at plant 2. A few minutes after the strike began, Gonzales informed Anderson that the employees would return to work in a few minutes and asked him not to take any reprisals. Anderson refused and subsequently informed all of the employees that they were laid off for the day and to return to work the following morning. Anderson admitted that his motivation was punitive, not caused by any economic or production necessities. All of the strikers returned to plants 1 and 2 at approxi- mately 7:45 a.m. and unconditionally offered to return to work, whereupon Anderson and Zaionz told them that they were laid off for the day and to return to work the following morning. Respondent contends that the 15-minute protest strike was an unprotected concerted activity, but the record establishes the contrary. This was not the type of unprotect- ed concerted activity such as the intermittent or recurrent unannounced work stoppages proscribed by the Supreme Court,1° nor a refusal to work overtime, a refusal to work 10 International Union, UAW, Local 232 v. Wisconsin Employment Relations Boar4 336 U.S. 245 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weekends, or a refusal to perform certain tasks, proscribed as an attempt by employees or their union to dictate their own terms and conditions of employment. The record con- tains no evidence whatsoever of intended repetition. The cases are legion, and I find, that the strike on the morning of June 17 was a protected concerted activity. II It follows and I find that Respondent's refusal to permit the strikers to return to work on the morning of June 17, after their unconditional offer to do so, because they had engaged in union or protected concerted activities, constituted a dis- criminatory lockout in violation of Section 8(a)(3) and (1) of the Act.12 The record establishes that on the morning of June 17 Respondent intended to permit the employees to return to work the following morning, June 18. They were so advised at both plants. However, shortly after the protesters were locked out, the Union commenced protest picketing at both plants, with some signs reading "unfair labor practice" and others "on strike." When Anderson ascertained that the Union and the employees were picketing, he contacted Sel- vin. She informed him that because the employees were as of then engaged in a "strike," he could not legally permit them to return to work the following morning without hav- ing them sign unconditional applications for employment, because Respondent might be charged with unlawfully so- liciting strikers to abandon their strike. She instructed him to use Respondent's regular application for employment forms, with the words "This is an unconditional" hand- printed above its caption, "Application for Employment." Much of the subsequent confusion and lack of under- standing between the parties was engendered by this advice of Selvin, enhanced by the fact that approximately 90 per- cent of the employees could not speak or read English. Substantially all of the employees locked out on June 17 reported for work at both plants on the morning of June 18 as requested by Respondent. Anderson, having received the above advice and instructions from Selvin, ordered the Montis and others not to permit any of the employees to return to work unless they signed the unconditional applica- tion for employment. Twenty-two of the 33 employees locked out were from plant 1 and 11 from plant 2. Most of the 22 employees from plant 1 arrived on June 18 before 7:30 a.m., and waited in the parking area for the starting buzzer. The gate was open. Because of the instructions from Selvin, Anderson met the employees at the entrance, in the parking lot and some inside the plant and informed them that they could not return to work unless they went to the office, which opened later, and signed an application for employment.' After Anderson so informed the employees, who had again unconditionally offered to return to work , he request- ed them to leave the premises, which they did. The Union then resumed picketing which continued thereafter until the time of the hearings herein. Much the same events occurred at plant 2, although Zaionz, whom I do not credit, denied ii E.g., N.LR.B v. Pepsi-Cola Bottling Co., 449 F.2d 824 (C.A 5, 1971); Polytech, Inc., 195 NLRB No. 126 ; and Martin Electronics, Inc., 183 NLRB No. 4. 12 O'Daniel Oldsmobile, Inc, 179 NLRB 398. that at the time the protesters returned to plant 2 on the morning of June 18 he knew anything about the require- ment of signing an unconditional application. He too re- fused them work and told them that they would have to go to the office when it opened and sign an unconditional application. I do not credit Zaionz' testimony that, contrary to his instructions from Anderson, Respondent's president, Zaionz had decided not to let the protesters return to work that morning and lay them off until Monday because of the lack of production in plant 2 the preceding day. Moreover, the lack of production of June 17 relied upon by Zaionz was caused by Respondent's discriminatory lockout of the pro- testers after they tried to return to work on the morning of June 17. In any event, Zaionz admitted that he discrimina- torily selected the protesters for layoff on June 18 because they had attended the protest demonstration while his other employees had remained at work. Inasmuch as the offices of plant 1 and plant 2 were in constant and ready communi- cation, it seems clear, and I find, that Respondent intended to follow the same procedure at plant 2 as at plant 1, i.e., to require the protesters to sign an unconditional applica- tion before they would be permitted to return to their jobs. A number of the employees who tried to return to work at plant 2 that morning so testified. As hereinabove found, Zaionz not only told Robert Garcia that he would have to fill out an application as a new employee at the office before he.could return to work, but informed him that this would not guarantee him the return of his job. Subsequently, that day several of the employees went to the office at plant 1, were shown the application for employ- ment form with the words "This is an unconditional" print- ed on top, and were told they could not return to work unless they signed such an application. Most of the employ- ees could not read the form but understood the meaning of the word "unconditional." All of the employees refused to sign such an application. Later that day the form was shown to officials of the Union, who advised the employees not to sign it. Subsequently, because of the employees' refusal to sign Respondent's Exhibit 24, Selvin prepared a different form for use by Respondent on and after June 21. Again the employees were uniformly informed that to return to work they would be required to sign that form, Respondent's Exhibit 6, which read: "I the undersigned make an uncondi- tional offer to return to my job. This is a voluntary offer." Respondent in general referred to this form as an uncondi- tional application. The employees again refused to sign this form both because they could not understand its meaning and because of the word unconditional. The Union again advised the employees not to sign such a form. Thus the record establishes and I find that Respondent, after discriminatorily locking out the strikers on June 17 after their unconditional offer to return to work, thereafter refused to permit their return to work unless they signed an "unconditional application," first, an unconditional appli- cation for employment, and subsequently an unconditional offer to return, and continued this condition to return to work to the date of the hearings herein. It is, of course, well settled that employees who have been discriminatorily dis- charged or locked out are not required to make or sign any application for reinstatement, but on the contrary the em- ployer is required to unconditionally offer them rein- SHELLY & ANDERSON FURNITURE MFG. CO. 265 statement to their former or substantially equivalent posi- tions.l3 The record establishes and I find that Respondent unlawfully conditioned the return of the discrimnatorily locked out employees to their former positions upon their execution of an "unconditional application:" Respondent's condition or requirement was based upon its mistaken belief that, because of the picketing engaged in by the Union and the employees after Respondent's discriminatory lockout, the locked-out employees were engaging in a strike and thus were required legally to make an unconditional offer to return to work. If the employees had been engaged in a strike, whether economic or unfair labor practice, it is well settled that they would be required to make an uncondition- al offer to return to work, i.e., abandon the strike, just as they did on the morning of June 17, before Respondent would be obligated to reinstate them. However, as above found, the discriminatorily locked-out employees were not engaged in a strike and hence Respondent's conditions for return to work were unlawful. A strike consists of a volun- tary withholding of services. Inasmuch as the employees had been locked out and refused reinstatement, they, just as discriminatorily discharged employees, had been terminat- ed from employment and thus could not voluntarily with- hold their services. The picketing which ensued on June 17 was in protest of Respondent's unfair labor practice of lock- ing out and refusing reinstatement to the strikers on the morning of June 17, and the continued picketing on June 18 and thereafter was in protest of Respondent's unfair labor practice of refusing to reinstate the locked-out em- ployees and could not have constituted a strike or a volun- tary withholding of services. Thus it follows, and I find, that Respondent was required to offer the locked-out employees reinstatement to their former positions, and that such employees, engaged in pro- test picketing, were not strikers required to make an uncon- ditional offer to return to work. I conclude and find that Respondent, by failing and refusing to reinstate the locked- out employees on and after June 18, except upon the condi- tion that they execute an unconditional application or offer to return to work, discriminated against such employees in violation of Section 8(a)(3) and (1) of the Act. With the exception of the four employees hereinabove found who subsequently returned to work some weeks after June 21 by signing Respondent's unconditional offer form, the remain- ing 29 employees listed in Appendix A had not been offered unconditional reinstatement by Respondent at the time of the hearings herein. 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. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices 13 NLRB. v Southern Greyhound Lines, 426 F.2d 1299 (C.A. 5, 1970); Juanita Packing Company, 182 NLRB 934; and Knickerbocker Plastics Co., Inc, 132 NLRB 1209. within the meaning of Section 8(a)(1) of the Act. 3. By discharging Belmont and Saldana on March 4 because of their union activities , and by locking out on June 17 the 33 employees named in Appendix A, attached hereto, after their unconditional offer to return to work, because of their protected concerted activity, namely, striking, and on June 18 and thereafter failing and refusing to reinstate said employees except upon condition that they sign an uncondi- tional application for employment or an unconditional offer to return to work, Respondent engaged in discrimination to discourage membership in the Union and participation in protected concerted activities, thereby engaging in unfair labor practices within the meaning of Secion 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent's leadmen, including Manuel Villegas, are not supervisors within the meaning of Section 2 (1) of the Act. 6. Respondent has not, as alleged in the complaint, engaged in surveillance of its employees ' union or other concerted activities in violation of Section 8(a)(1) of the Act. 7. Respondent has not, as alleged in the complaint, physically interfered with employees engaged in union or other concerted activities in violation of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Order recommended below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Because of the character and scope of the unfair labor practices found, I shall recommend a broad cease-and-desist order.14 Having found that Respondent offered unconditional reinstatement to Belmont and reinstated Jose Alamillo, Francisco Garcia, Renato Quijada, and Victor Rodriguez to their former or substantially equivalent positions, they will not be included in the customary reinstatement order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:15 ORDER Shelly & Anderson Furniture Mfg. Co., Inc., its offi- cers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Upholsterers' Interna- tional Union of North America, Local 15, AFL-CIO, or any other labor organization of its employees by dis- 1 ' N.L.RB. v. Express Publishing Company, 312 U S 426 (1941); NLRB. v. Entwhistle Mfg. Co., 120 F.2d 532 (C A. 4, 1941); Consolidated Industries, Inc. 108 NLRB 60, and cases cited therein. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec . 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. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charging employees because of their union activities, lock- ing out employees because of their union or protected con- certed activities, failing and refusing to reinstate such locked-out employees to their former or substantially equiv- alent positions, or in any other manner discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with more onerous con- ditions of employment, that it might go out of business, or with refusal to bargain in good faith with their labor organi- zation, each if its employees select such labor organization as their collective-bargaining representative, or threatening to withhold improvements in terms and conditions of em- ployment if its employees continue to support their labor organization. (c) Granting its employees increased piecework rates or wage increases to induce them to refrain from supporting their labor organization; provided, however, that nothing herein contained shall be construed as requiring Respon- dent to revoke the increased piecework rates heretofore granted its employees. (d) Threatening its employees with discharge or refusal of reinstatement for engaging in union or other protected concerted activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer the 33 employees named in Appendix A hereof, except Jose Alamillo, Francisco Garcia, Renato Quijada, and Victor Rodriguez, immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their senior- ity or other rights and privileges. (b) Make each of the employees named in Appendix A hereof and Alphonso C. Belmont and Miguel Saldana whole for any loss of pay he may have suffered by payment to each of a sum of money equal to that which he would normally have earned from, in the case of Belmont and Saldana, March 4, 1971, the date of their discharge, to May 24, 1971, the date of Respondent's offer of reinstatement to each, in the case of Jose Alamillo, Francisco Garcia, Renato Quijada, and Victor Rodriguez, from June 17, 1971, the date of Respondent's discriminatory lockout, to the respective dates of reinstatement of each, and in the case of the 29 other employees named in Appendix A, including Saldana, from June 17, 1971, to the date of the above-required offer of reinstatement by Respondent, less the net earnings of each during said periods (Crosset Lumber Company, 8 NLRB 440), said backpay to be computed on a quarterly basis in a manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (c) Immediately notify Belmont and the employees named in Appendix A except Jose Alamillo, Francisco Gar- cia, Renato Quijada, and Victor Rodriguez, 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. (d) Preserve and, upon request , make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to determine the amount of backpay due under this Order. (e) Post at its plants I and 2 in Compton, California, copies of the attached notice marked "Appendix B." 16 Cop- ies of said notice, on forms provided by the Regional Direc- tor for Region 21 ,17 after being duly signed by Respondent's representative shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in wnt- ing, within 20 days from the date of receipt of this Decision what steps Respondent has taken to comply herewith.'s 16 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 " 17 Said notice to be furnished and posted in English and Spanish is 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 21, in wasting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A Enrique Alamillo Jose Alamillo Manuel Alamillo Manuel Arias Ramiro Carrillo Delfino Castillo Luis Cortez Dorothy Duke Francisco Garcia Robert Garcia Jesus Gilmore Roberto Ibarra Mauricio Lopez Carlos Miranda Jose Ruiz Monzo Ricardo Monzo Pedro Moreno Antonio Orozco Ponciano Orozco Armando Quijada Renato Quijada Rojelio Rios Victor Rodriguez Gilberto Ruelas Jose Ruelas Jose Luis Ruelas Manuel Ruiz Miguel Saldana Jose Solorio Jose Rodriguez Solorio Elias Tafolla Ponsiano Tafolla Alfredo Vasquez APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Upholster- ers' International Union of North America, Local 15, SHELLY & ANDERSON FURNITURE MFG. CO. 267 AFL-CIO, or any other labor organization of our em- ployees, by discharging employees because of their un- ion activities, locking out employees because of their union or protected concerted activities, failing and re- fusing to reinstate such locked out employees to their former or substantially equivalent positions, or in any other manner discriminating against our employees in regard to hire or tenure of employment or any term or condition of employment. WEWILLNOT threaten our employees with more oner- ous conditions of employment, or that we might go out of business, or with refusal to bargain in good faith with their labor organization, each if our employees select such labor organization as their collective-bargaining representative, or that we will withhold improvements in conditions of employment if our employees continue to support their labor organization. WE WILL NOT grant increased piecework rates or oth- er wage increases to induce our employees to refrain from supporting their labor organization. However, we are not required to revoke the increased piecework rates here- tofore granted. WE WILL NOT threaten our employees with discharge or refusal of reinstatement because of their union or other protected concerted activities. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Rela- tions Act. WEWILL offer the 29 employees named herein imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each, plus Jose Alamillo, Alphonso C. Belmont, Francisco Garcia, Renato Quij a- da, and Victor Rodriquez, whole for any loss of pay which he may have suffered as a result of our discrimina- tion against him. All of our employees are free to become, remain, or refrain from becoming or remaining, members of the above- named or any other labor organization, except to the extent that such right may be affected by an agreement conform- ing to the provisions of Section 8(a)(3) of the National La- bor Relations Act. Enrique Alamillo Manuel Alamillo Manuel Arias Ramiro Carrillo Delfino Castillo Luis Cortez Dorothy Duke Robert Garcia Jesus Gilmore Roberto Ibarra Mauricio Lopez Carlos Miranda Jose Ruiz Monzo Ricardo Monzo Dated By Pedro Moreno Antonio Orozco Ponciano Orozco Armando Quijada Rojelio Rios Gilberto Ruelas Jose Ruelas Jose Luis Ruelas Manuel Ruiz Miguel Saldana Jose Solorio Jose Rodriguez Solono Elias Tafolla Ponsiano Tafolla Alfredo Vasquez SHELLY & ANDERSON FURNITURE MFG CO, INC (Employer) (Representative) (Title) We will notify immediately all of the employees named above if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon appli- cation after discharge from the Armed Forces, in accord- ance 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 direct- ed to the Board's Office, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.