Goshen Litho, Inc.

GOSHEN LITHO, INC. 769 Goshen Litho, Inc. and New York Paper Cutters and Bookbinders Union Local No. 119 , International Brotherhood of Bookbinders, AFL-CIO and Juan Madera Santos. Cases 2-CA-12407, 2-CA-1240 7-2 and 2-CA-12453 October 17, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 8, 1972, Administrative Law Judge 1 Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, the General Counsel, Charging Party and the Respondent filed exceptions and supporting memorandums. 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 attached Decision in light of the Respondent's excep- tions and memorandum and has decided to affirm the rulings, findings, and conclusions have and to adopt his recommended Order, as modified herein. The General Counsel and the Charging Party except to the Administrative Law Judge's failure to provide in his Order that employee Matthew Babula be offered an unconditional offer of reinstatement by Respondent to his former position in the Re- spondent's camera department or a substantially equivalent job without prejudice to his seniority and other rights and privileges . The Administrative Law Judge in his Decision , while finding that Babula was discriminatorily laid off by Respondent for discrim- inatory reasons the second time on or about October 27, 1971, as alleged in the complaint, failed to provide for his reinstatement by the Respondent . In the ab- sence of any evidence on the record that Respondent made an offer of reinstatement and that Babula, if offered such reinstatement would reject such offer or that Babula, in any other manner has affirmatively waived reinstatement, we shall amend the Adminis- trative Law Judge's recommended Order to provide for Babula's reinstatement by Respondent? 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 Administrative Law Judge and hereby orders that Goshen Litho, Inc., Goshen, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified below: - 1. Amend the Administrative Law Judge's rec- ommended Order by substituting for paragraph 2(a) the following: "(a) Make employees Paul Schaefer and Mat- thew Babula whole in the manner set forth in the section of the Decision entitled `The Remedy,' for any loss of earnings incurred by each as a result of the layoff of Schaefer on June 25, 1971, and the layoff of Babula on July 2, and October 27, 1971. Offer to employee Matthew Babula immediate and full rein- statement to his former job in the camera department, or if the job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or oth- er rights and privileges." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Heinrich Motors, Inc., 166 NLRB 783. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Rela- tions Act: WE WILL NOT lay you off or discharge you for appearances to testify, or for testifying, adversely to us before the National Labor Relations Board (the Board). WE WILL NOT discourage you from support- ing any union with your testimony, or discourage interest or membership in any union, by discrim- inatory layoff, discharge, or other discriminatory action affecting your tenure and conditions of employment, because of your testimony. WE WILL NOT wain you or voice displeasure about the kind of testimony you give before the Board. WE WILL NOT in any other way interfere with your rights to belong to or to be active for a labor union or to refrain therefrom. Because the Board found that we unlawfully laid off Paul Schaefer and Matthew Babula and unlawful- ly discharged Juan Madera Santos, because they ap- peared and gave testimony before the Board under the National Labor Relations Act, 199 NLRB No. 120 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL give Schaefer and Babula backpay with interest for their loss of earnings in the peri- ods of layoff, and WE WILL offer to Babula his former position or like position without loss of seniority, or other rights and privileges; and WE WILL offer to Santos his former or like job and give him backpay with interest for his loss of earnings since the discharge. GOSHEN LITHO, INC. (Employer) Dated By (Representative) (Title) We will notify immediately Juan Madera Santos, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in ac- cordance 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 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Fed- eral Plaza, New York, New York 10007, Telephone 212-264-3311. TRIAL EXAMINER'S DECISION HERZEL H. E. PLAINS, Trial Examiner: The question presented is whether Respondent, a printing company, vio- lated Section 8(a)(4), (3), and (1) of the National Labor Relations Act (the Act) by layoff or discharge of three em- ployees who testified adversely to it before the Board in a previous trial involving commission by the Respondent of unfair labor practices. The previous case was Goshen Litho, Inc., 196 NLRB No. 139 (May 9, 1972), tried in June and July 1971 by Trial Examiner Sidney Sherman, decision is- sued November 3, 1971.1 The present case was tried in Goshen, New York on March 7 and April 3-5, 1972, on a consolidated complaint issued November 12, 197 1,2 and Respondent's answer deny- ing any wrongdoing. Respondent defended on the ground that there was no work for the three employees and that the layoffs and discharge had nothing to do with their testifying. General Counsel and Respondent have filed briefs. Affirmed in all respects by the Board decision, with one exception not pertinent here The case is referred to hereinafter as Goshen Litho I. 3 The complaint consolidated charges filed by the Charging Party Union (the Union) July 12 and 19, 1971, on behalf of employees Schaefer and Babula, and a charge filed by Charging Party Santos on September 16, 1971, for himself. Upon the entire record of the case, including my obser- vation of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I JURISDICTION Respondent is a New York corporation engaged in the printing of books, magazines, and other printed materials at its plant in Goshen, New York. In the year prior to issuance of the complaint, Respondent received at its plant in New York goods valued in excess of $50,000 transported in inter- state commerce from places outside New York, and sold and distributed in interstate commerce in excess of $50,000 of its products to places outside New York. Respondent is engaged, as it admitted, in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as Respondent also admitted, a labor organization within the meaning of Section 2(5) of the Act. Two other unions are, and are conceded by Respon- dent to be, labor organizations within the meaning of the Act, Local 1 of the Lithographers Union, and Local 318 of the Paper Mill Workers. However, while they were directly involved in the previous case, they have not participated in the present case. II THE UNFAIR LABOR PRACTICES A. Discrimination Against Employees Shaefer and Babula Respondent operates its business of printing books, magazines, and other literature at the plant in Goshen with about 100 employees, according to its vice president, Morris Weintraub, who uses and prefers the name Murray Traub. He and his brother Harry, who is president of Respondent, are, the principal officers and are in overall charge of the business. Beginning in 1968 the employees have been the subject of, and involved in, union organizing activities by three competing unions. Two elections have been held and set aside, and a third has been ordered by the Board in Goshen Litho I. In Goshen Litho I, Respondent was found to have viola- ted Section 8(a)(1), (2), and (3) of the Act, comprehending discriminatory discharges and layoffs of employees, threats of reprisal and promises of benefits, and other interference, largely designed to persuade or coerce its employees to sup- port and favor one of the unions, Local 318 (see heading I, supra), for whom the Traub brothers and Respondent's su- pervisors were found to have solicited employee support. Testimony, that was relied upon in Goshen Litho I for finding interference by the Traub brothers and by Supervi- sor Tom Corday with employee rights and with the 1970 election, was given by two senior skilled employees, Paul Schaefer and Matthew Babula. Both gave their testimony in early June 1971. In the present case, employee Schaefer testified without contradiction, that when he returned to work after testifying in June 1971, neither Harry nor Murray Traub, who had theretofore talked with him as a social friend, stopped talk- GOSHEN LITHO, INC. ing to him and wouldn't even say "good morning" to him. Shortly thereafter, on June 25, 1971, President Harry Traub told employee Schaefer there was no work, that Respondent had lost all its magazines, and that he was laid off. Employee Babula testified that when he returned to work, after testifying at the trial in June 1971, his supervisor, Corday, told him that (vice president) Murray Traub was very unhappy with his testimony, and sounded very serious about it .3 While Corday dewed saying this, I credit Babula's testimony, which has support in the course of events. A few days later, contrary to a prior arrangement for a later and different type of vacation, and over his protest on this score, employee Babula was told by President Harry Traub that he was being put on a 2-week vacation (for the last two weeks in June); and, while on vacation, Babula was notified not to report back for work until further notice. Employee Schaefer began his employment with Re- spondent in 1957, when it was known as Chester Litho. Before his hiring he had had 6 or 7 years experience in color stripping and platemaking, and he was hired as a stripper and platemaker. He worked steadily and without interrup- tion for the Respondent, continuing when the Traubs took over the management as Goshen Litho (the current name), until the layoff following his testifying in June 1971. Even the temporary closing of the business years back, because of a fire, cost him only the loss of a day, since he was put to work in a temporary location in New York City. His pay rose steadily to the rate of $5 per hour (at the time of layoff) through some 15 raises, and he was told at one point by Vice President Murray Traub that he (Schaefer) was a key man in their business. His work covered stripping, platemaking, and composing. In the Spring of 1971 he was largely doing color stripping, which calls for a high degree of skill, in contrast to the lesser skill for black and white stripping. He was the employee with most seniority in the stripping de- partment. Employee Babula began his work for the Respondent in 1959, first for Chester Litho and later for Goshen Litho. He came to Respondent with 14 years' experience as a professional photographer and 5 years' experience in dot etching and color separation. He was hired as a camera man and dot etcher. In 1971 he was doing the largest part of the dot etching, which not only requires skill but artistry, ac- cording to Vice President Murray Traub. Babula had gone through successive raises to his rate of $5 per hour at the time of the June 1971 vacation and layoff, and had worked steadily for Respondent except for a brief loss of time, years ago, because of the fire and an interruption during the change of management from Chester Litho to Goshen Litho in 1966. Babula had the most seniority among the employ- ees in the camera department. In the case of both employees, the performance of their work had been favorably commented upon in the course of their employment, and their capabilities and performance was not in issue. Following the layoff of June 25, 1971, employee Schae- fer called in early July to inquire if there was work and was told no. At the end of September he was recalled and re- 3 Corday was found to be a supervisor within the meaning of Act in Goshen Litho I, and there was no evidence of any change in status warranting any different finding here. 771 commenced work September 27, 1971. He was working for Respondent at the time of the trial in April 1972. In employee Babula s case, following the two-week forced vacation from June 21, 1971, and the layoff, which would appear to have been on July 2 (but shown on Respondent's books as July 5, 1971, apparently because of the intervention of the July 4 weekend holiday), Babula came to the plant to ask about the layoff and saw Supervisor Corday and President Harry Traub. Traub said he didn't know if the layoff was permanent or temporary but would call Babula if work came in. Like Schaefer, employee Babu- la was recalled on September 27, 1971, but was laid off again October 27, 1971. Sometime thereafter he took another job elsewhere, where he was employed at the time of the trial. The Defense Respondent claims that following the trial of Goshen Litho I it had no work for employees Schaefer and Babula and laid them off. Respondent does an annual business of about $3.5 mil- lion, using as typical the monthly sales of calendar 1971. While called sales, these are actually billings for work done and delivered. Vice President Murray Traub characterized these monthly figures (listed in exhibit R-3B and supple- mented at Tr. 339-340), a good barometer of the business. The totals fluctuate from month to month, frequently by as much as $50,000, $75,000, or $100,000, and sometimes more.4 It is therefore quite significant that during the 12 to 14 years, prior to July 1971, that these two skilled employees, Schaefer and Babula, worked for Respondent, despite the fluctuations of monthly sales, they were never laid off. And, in 1971, while July turned out to be the low point in sales for the year, August, September, and October showed a rapid rise by $140,000.5 More important, however, is the fact that the manage- ment judgment on staffing or layoff of the kind of skilled employees involved here is not ordinarily a spot judgment but, as Vice President Morris Traub indicated, one calcu- lated well in advance, based upon business in hand. Indeed, Traub testified that the decision to lay off both employees was made on business in hand and billings. Nonetheless he provided no evidence of the business or orders on hand, using the June and July billings (sales) as also representing the orders on hand in June and July. But Traub also testified that he knew the business that was on hand, 4 months in advance. He therefore was well aware at the end of June and early July that while June sales and July sales would be lower than previous months, the sales in August, September, and October would go up, as they did (fn. 5, supra). To suggest, as Respondent now does, that the decision to drop two important people from among the relatively few skilled people, was made at the end of June and early July based, in effect, on the low June and July sales, is to suggest that a motive other than an economic motive figured in the decision. For example (using rounded numbers), January 1971, $335,000 dropped by well over $100,000 for February 1971, to $228,000; March 1971 rose by $50,000 to $279,000, and April 1971 jumped over $100,000 to $380,000. 5 The figures were (in round numbers), July, $204,000; August $290,000; September, $300,000; October, $345,000. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fact is that the sales figures, which are the total monthly billings for literature printed and delivered, repre- sented hindsight and not the • foresight-the orders in hand-needed and used ordinarily by this Respondent in making economic judgments regarding staffing. In this con- nection it is worth noting that in the peak billing month of April 1971, which showed sales of $380,000, there was testi- mony provided by Respondent that it laid off the whole night shift of the bindery (eight employees), indicating that the orders or "business in hand" would reflect declining sales in the next several months after April, as turned out to be the fact.6 Respondent was asked by General Counsel to produce the record of its orders. Respondent replied that it did not keep a record of orders. I find this difficult to believe for a company grossing $3.5 million annually from printing or- ders for a wide variety of literature from a fairly large assort- ment of customers. Respondent contended that its loss of publication of nine magazines (exhibit R-3A, showing last publication of two magazines in March, four in April, one in May, and two in June 1971) led to the layoff of employees Schaefer and Babula. However, General Counsel provided testimony that the dropping of these magazines was part of a changeover by Respondent from publication of so-called "girly" maga- zines to commercial types, that took place. Respondent of- fered no contradiction of this evidence, and the sales figures beginning with August 1971 would bear out General Counsel's contention that the loss or dropping of the nine magazines was made up by acquisition of other publica- tions. The Section 8(a)(4), (3) and (1) Findings The close relationship in time between the layoffs of employees Schaefer and Babula, and their testifying before the Board, and the abrupt manner of effectuating the lay- offs of these two most senior employees in their respective departments, after each had served Respondent well for 14 and 12 years, respectively, without layoff through previous dips and rises in business, indicate that Respondent was motivated if not entirely, at least in part, by a desire to retaliate for the two employees having given testimony ad- verse to Respondent in the previous unfair labor practice case. Theprima facie indication of unlawful motive was forti- fied by the failure of Respondent to support its contention that the layoffs were due to lack of work for the two employ- ees, either with adequate records or by the import of the evidence it did produce. Respondent's decisions to lay off employees Schaefer and Babula were made in late June and early July 1971, respectively, after they testified in early June. Respondent stated it selected these two for layoff upon business or the lack of it in the shop, and the billings for work done and delivered . Billings in June and July showed a downward dip from previous months. However, Respondent testified it had 4 months' advance knowledge of the business in hand, which, from the only evidence 6 In round numbers the sales were : April $380,000; May $314,000, June $279,000; July $204,000. available (the billings thereafter) ,7 showed that Respondent had business in hand to produce, and did produce, a steadily increasing rise in sales (billings) through August, September, and October 1971, resembling the upward trend and dollar amounts of early 1971. Respondent recalled employees Schaefer and Babula on September 27, 1971, and laid off Babula a second time on October 27, 1971, notwithstanding the fact that orders (again using the billings) indicated a downward followed by an upward tilt in November, December (1971), and January (1972) sales. Respondent's claim that it lacked business in the sum- mer and fall of 1971 to continue the steady employment of Schaefer and Babula thus has the appearance of pretext. In this connection, Respondent's violations of the Act in Gosh- en Litho I aid in explaining the real and discriminatory reason for the layoffs, Paramount Cap Mfg. Co. v. N.L.R.B., 260 F.2d 109, 112-114 (C.A. 8, 1958); N.L.R.B. v. Reed and Prince Mfg. Co., 205 F.2d 131, 139-140 (C.A. 1, 1953), cert. denied 346 U.S. 887; and even if the layoffs were only partially motivated by the discriminatory reason, they were in violation of the Act, N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2, 1965). The layoff of employee Schaefer on June 25, 1971, and the layoff of employee Babula on July 2, 1971, and again on October 27, 1971, were violations by Respondent of Section 8(a)(4), (3), and (1) of the Act, N.L.R.B. v. Vacuum Platers, Inc., 374 F.2d 866, 867 (C.A. 7, 1967). In addition, the warning by Supervisor Corday to employee Babula that Respondent was displeased with his testimony, was an inter- ference with the Section 7 rights of the employees in viola- tion of Section 8(a)(1) of the Act. B. Discrimination Against' Employee Santos Juan Madera Santos began work for Respondent July 1, 1969, according to his employment record, exhibit GC-8, and worked steadily with Respondent until April 7, 1971, except for a 6-week layoff (April-May 1970), an absence for ajob-connected injury (he was on workmen's compensation January-February 1970), and a short absence in December 1970. Santos started at $2.125 per hour, and received succes- sive raises to $2.50 per hour. According to his testimony, he worked at various physical labor jobs throughout the shop, and in the eight months preceding April 7, 1971, he worked under the pressroom foreman, Alfred Burgi, baling waste paper. Employee Santos became ill in April 1971, and as Fore- man Burgi acknowledged, got word to Burgi that he would have to stay out and was going to Puerto Rico. Burgi found a replacement for employee Santos in the baling room. When Santos came back at the end of May 1971 asking if there was a job for him, Foreman Burgi told Santos some- one else was doing the baling job and he had nothing for him in the pressroom, but inquired on his behalf of the foreman of the bindery, Werner Dubacher. Foreman Du- bacher said he had a job for Santos. There was a dispute in the testimony, as between Du- 7 The best evidence would have been Respondent's orders. Although Re- spondent did about $3 5 million worth of business in 1971, it made the incredible claim that it had no record of its orders, which were for a wide variety of publications from an assortment of customers. GOSHEN LITHO, INC. 773 bacher and Burgi, on the one hand, and employee Santos, on the other hand, as to whether Santos was to report the next day or on June 1, and whether or not he was told and shown in advance the precise nature of the job, and whether or not he was told the job was for a limited duration. In any event, it was agreed that Santos reported for work in the bindery, and worked, on June 1, 1971, lifting and moving heavy bundles of a hymnal book. On June 2, Santos, and a considerable number of other employees whose testimony was required by the, General Counsel in Goshen Litho I, went to court. Santos was not reached to testify until Friday, June 4. His testimony related to signing a union authoriza- tion card in April 1970 and being laid off a few days later. After giving his testimony, employee Santos returned to the shop, and found that his card had been pulled. He talked to Foreman Dubacher, who told Santos that he had pulled the card, that Santos had been absent 3 days, and there was no more work. Dubacher's words were, according to Dubacher, that the job was finished and that I didn't need him anymore. Santos protested that Dubacher knew he was at the trial, because Harry and Murray Traub knew it. Du- bacher replied he was sorry there was no more work. Santos came by the plant several times thereafter, Fore- man Dubacher testifying that he saw Santos possibly two more times talking with his "buddies" in the baling room. Santos testified, without contradiction from Foreman Bur- gi, that at the end of June he went back and asked Foreman Burgi for work and was told no, there was nothing for him. The fact is there was plenty of work for employee San- tos, if Respondent had wanted to keep him or rehire him. Witness Joseph Price, a college student, testified he was hired (a few days after Santos was discharged) and worked thereafter all summer doing physical labor in the pressroom. Employee Regie Bradshaw, who had 6 years' expe- rience working for Respondent, described a number of jobs that required physical labor in the bindery and pressroom that were available and performed by others needed for other things at the time of, and immediately following, the discharge of Santos. The hymnal job that Santos had toted on June 1 was also run again later in June and toted by someone else. Foreman Burgi admitted that he regularly hired un- skilled labor that walked in off the street looking for jobs. And, Vice President Murray Weintraub testified that Re- spondent usually advertises to obtain unskilled labor. Santos could have qualified. Respondent then restated its defense to be that Santos had not been discharged (on June 4, 1971), that he had been hired for one job which ended while he was testifying, and that he never applied again and Respondent had no obligation to look for him The Section 8(a)(4), (3), and (1) Findings I find the defense an obvious sham . Respondent's claim, that it told Santos he was being rehired only for a specific job of moving certain bundles for a few days and would then be terminated, is completely out of keeping with his 2-year work record of all around physical labor for Respondent, and Respondent's obvious great and contin- uing need for his kind of work throughout the shop. Not only did employee Santos deny being told that he was being rehired for only a few days, but Foreman Dubacher's claim that he so informed Santos is not worthy of credit. Dubacher testified that he informed the office girl, Joyce Bleha, he was putting Santos on the payroll, when he came to work June 1 . Dubacher did not claim telling her of any time limitation or other condition, and the employment record, exhibit GC-8, does not show any. Indeed it shows only that Santos worked June 1 , 1971, and was "layed off." Nor did Dubacher testify that he informed the Traubs or communicated with them concerning Santos . It would ap- pear therefore that Foreman Dubacher got his orders from the Traubs, as announced in court on June 2, and that he informed Santos accordingly on June 4 when Santos was released from his court obligation and reported back to work. The fact that these were orders from above, not to employ Santos further, is also reflected in Foreman Burgi's changed attitude toward Santos thereafter , telling Santos untruthfully that there was no work for him when he applied for work again later in June. Respondent was clearly visiting reprisal upon employ- ee Santos, because of his appearance in court to testify adversely to Respondent, with the aim to discourage other employees from so doing. Such conduct violated Section 8(a)(4), (3), and (1) of the Act, N.L.R.B. v. Vacuum Platers, Inc., supra, 374 F.2d 866, 867 (C.A. 7, 1967). CONCLUSIONS OF LAW The Defense In Goshen Litho I, on the first day of the trial, June 2, 1971, Respondent announced in open court, thru its coun- sel, that it noted the presence of Santos among the witness- es, that he had just been rehired for a specific job of moving some bundles, and that he had been told when the job was finished, and it would be finished in a few days, there would not be a job for him and he would be let go. Respondent offered this statement (exhibit R-1) as its defense here. After employee Bradshaw enumerated from the witness stand the jobs that had been contemporaneously available for Santos to fill (supra), Respondent stipulated that there were job opportunities in at least the press and bindery departments, on and after June 1, 1971, for which 1. By discriminatory layoffs of employees Schaefer and Babula for giving testimony before the Board adverse to Respondent, and by discriminatory discharge of employ- ee Santos for appearing before the Board to give, and there- after giving, testimony adverse to Respondent, with the purpose of retaliating against such employees and discour- aging others from similarly or otherwise supporting unions opposed by Respondent, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(4), (3), and (1) of the Act. 2. By warning an employee that his testimony before the Board displeased Respondent, Respondent has engaged in an additional unfair labor practice within the meaning of Section 8(a)(1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY It will be recommended that the Respondent: (1) cease and desist from its unfair labor practices; (2) make employees Schaefer and Babula whole for the loss of pay suffered by reason of their layoffs, and offer to reinstate employee Santos with backpay from the time of his discharge. The backpay in all three cases shall be computed on a quarterly basis as set forth in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888; and (3) post the notices provided for herein. Because the Respondent by its conduct violated funda- mental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commis- sion of this conduct an attitude of opposition to the pur- poses of the Act and a proclivity to commit other unfair labor practices, it will be recommended that the Respon- dent cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941,; N.L.R.B. v. Bama Company, 353 F.2d 323-324 (C.A. 5, 1965); P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDERS Respondent, its officers, agents, successors, and assigns shall: I. Cease and desist from: (a) Layoff or discharge of employees for appearances before the Board to testify, or for testifying, adversely to Respondent. (b) Warning employees that testimony given by them before the Board was displeasing to the employer. (c) Discouraging employees from supporting unions with their testimony, or discouraging interest or member- ship of its employees in unions by layoff or discharge or a In the event no exceptions are filed as provided be Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and 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 other discrimination affecting tenure and conditions of em- ployment of employees who appear and testify before the Board in support of such unions. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make employees Paul Schaefer and Matthew Babu- la whole, in the manner set forth in the section of the deci- sion entitled "The Remedy," for any loss of earnings incurred by each as a result of the layoff of Schaefer on June 25, 1971, and the layoff of Babula on July 2, and October 27, 1971. (b) Offer to employee Juan Madera Santos immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges; and make him whole, in the manner set forth in the section of the decision entitled "The Remedy" for any loss of earnings incurred as a result of his discharge on June 4, 1971. Notify him, if serving in the Armed Forces of the United States, of his right to full reinstatement upon application after dis- charge from the Armed Forces. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Order. (d) Post in its plant at Goshen, New York, copies of the attached notice marked "Appendix."9 Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 2 (New York, New York), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted cop- ies to be maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director of Region 2, in writ- ing, within 20 days from the date of the receipt of this decision, what steps the Respondent has taken to comply therewith.10 9 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 " 10 In the event that the recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read : "Notify the Regional Director of Region 2, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith."