Mission Rubber Co., Inc.

MISSION RUBBER CO. Mission Rubber Company, Inc. and Local 585, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. Case 21-CA-10651 March 1, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 30, 1972, Administrative Law Judge Irving Rogosin issued the attached Decision, as modified by an Erratum, in this proceeding. There- after, Respondent filed exceptions and a supporting brief and the General Counsel filed limited excep- tions and a brief answering Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions 1 of the Administrative Law Judge 2 and to adopt his recommended Order, as modified herein. 1. The section of the Administrative Law Judge's Decision entitled "The Remedy" does not clearly indicate that each of the 14 employees who was laid off, including those employees who have already been reemployed by Respondent, is entitled to immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job without prejudice to his seniority and other rights and privileges. Accordingly, in order to insure that each of the 14 employees laid off on February 16, 1972, is afforded full and complete reinstatement privileges, the third paragraph and footnote 21 of the section of the Administrative Law Judge's Decision entitled "The Remedy" are deleted and the following are substituted therefor: Having found that the 14 employees named in the complaint, as shown in the Appendix, were discriminatorily laid off on February 16, 1972, and were not reinstated until various dates between March 3 and April 6, 1972, it will be ordered that Respondent make each of said employees whole for any loss of pay such employees may have sustained by reason of the -1 In the absence of exceptions thereto, we adopt, pro forma, the Administrative Law Judge's findings, that Respondent (1) violated Sec 8(a)(1) and (3) of the Act by discnmmatonly transferring to a new work area and position , and by subsequently discharging, employee Francisca Gutierrez, and (2) violated Sec 8(a)(1) of the Act by unlawfully interrogating employees concerning their union and concerted activities, threatening them with reprisals, engaging in, and creating the impression of engaging in, surveillance of their union and other protected concerted activities, and by distributing the notice attached to employees' timecards 202 NLRB No. 17 33 discrimination against them from the date each such employee was laid off until the date of reinstatement, together with interest; that Re- spondent offer each of said 14 employees, includ- ing those who have been reemployed by Respon- dent,21 immediate and full reinstatement to such employee's former job or, if such job no longer exists, to a substantially equivalent job without prejudice to such employee's seniority and other rights and privileges, and make any such employ- ees whole for any loss of pay they may have suffered by reason of such discrimination from the date of said layoff on February 16, 1972, to the date of reinstatement or offer of reinstate- ment, as the case may be, and offer immediate and full reinstatement to Francisca Gutierrez to her former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her from February 24, 1972, the date of her discharge, to the date in June 1972, when she was reinstated, without prejudice to her seniority or other rights and privileges, with backpay comput- ed in accordance with the Board's formula in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. 11 Respondent contends that, with one or two exceptions, all employees laid off on February 16 were recalled between March 3 and April 3 Direct evidence of the date of reinstatement was offered only with regard to about half the laid-off employees In addition, the record is unclear as to whether each of the employees who was recalled was reinstated to his or her former job, or substantially equivalent job, without prejudice to such employee's seniority and other rights and privileges 2. We note that Respondent employs a significant number of Spanish-speaking individuals. According- ly, the Administrative Law Judge's recommended Order is modified by requiring that the notice marked "Appendix" be posted at Respondent's premises in both the English and Spanish languages. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- on July 19, 1972 2 The Administrative Law Judge made certain inadvertent errors in his Decision which are corrected as follows Under section III D I , the fourth sentence of the second paragraph should refer to "Herrera's niece" and not to "Medina's niece " In the fifth paragraph of the same section , in the first sentence delete all reference to Plant Manager Jerry Hofberger, and change the end of the fourth sentence to read, "6, in the pressroom of the rubber department " 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed Order of the Administrative Law Judge, as modified below, and hereby orders that Mission Rubber Company, Inc., Whittier, California, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order: 1. Substitute the following for paragraph 2(a): "(a) Offer each of the 14 named employees, including those who have been reemployed by Respondent, immediate and full reinstatement to his or her respective former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his or her seniority or other rights and privileges, and offer Francisca Gutierrez immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges." 2. Substitute the following for paragraph 2(e): "(e) Post at its plant and office in Whittier, California, in both the English and Spanish lan- guages, copies of the attached notice marked "Appendix." Copies of the said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. engage in, solicit employees to engage in, or create the impression that we are engaging in, surveillance of union or protected concerted activities of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by. an agreement requiring membership in a labor organization as a condition of employment, in conformity with Section 8(a)(3) of the Act. WE WILL offer each of the 14 employees named below, as well as Francisca Gutierrez, immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his or her seniority and other rights and privileges and make each of said employees whole for any loss of pay such employees may have suffered by reason of our discrimination against them. The names of the 14 employees referred to above are: Eusebio Quintero Everardo Andrade Margaret Ayala Amelia Herrera Antonio Loera Faustina Cuellar Alfonso Samaniego APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership of our employees-in Local 585, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or in any other labor organization, by discriminating in any manner in regard to hire, tenure, or any other term or condition of employment by discharging, laying off, or in any other manner discriminating against said employ- ees, except as authorized in Section 8(a)(3) of the Act. WE WILL NOT interrogate our employees con- cerning their union membership, activities, and sympathies; threaten them with reprisals because of their union or protected concerted activities; Bertha Medina Carlota Olivares Guadalupe Landeros Linda Astorga Alicia Camarena Christine Arnold Carlos Villanueva WE WILL rescind the notice distributed to our employees on July 19, 1972, and notify them of such rescission by written notices attached to their timecards. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named or any other labor organization. MISSION RUBBER COMPANY, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. MISSION RUBBER CO. 35 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION STATEMENT OF THE CASE IRVING RoGOSIN, Administrative Law Judge: The complaint, issued May 1, 1972, alleges that (1) about February 16, 1972, Respondent laid off or discharged, and has since refused to reinstate, 14 named employees;' (2) about February 17, 1972, transferred employee Francisca Gutierrez from her regular work area and position to a different one, and failed and refused to return her to her former work area and position, and, thereafter, about February 24, 1972, discharged, and has since failed to reinstate, said employee, all because of the union or other protected concerted activities of said employees, thereby engaging in unfair labor practices in violation of Section 8(a)(3); and (3) at various times, during February, March, and April 1972, through named supervisors, committed various acts of interference, restraint, and coercion, including unlawful interrogation, solicitation to repudiate the Union, surveillance and creation of the impression of surveillance, threats of reprisals, including plant closure, charges that the Union would report employees to the immigration authorities, which would result in deportation and consequent loss of employment, warning employees against signing union authorization cards or engaging in union or other protected concerted activities, and notifying employees that Respondent would not rehire any who had engaged in such activities, and warning them against further involvement in union or other protected concerted activities, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.2 Respondent's answer admits the procedural and jurisdic- tional allegations of the complaint; the supervisory status of one but not two other persons named in the complaint; the layoffs of the named employees; and the transfer of employee Gutierrez from her regular position and station to another, as alleged in the complaint, but denies generally the remaining substantive allegations of the complaint, including those relating to Gutierrez' discharge. Hearing was held before me on July 18, 19, 20, 21, 26, and 27, 1972, at Los Angeles, California. All parties` appeared and were represented by counsel (no separate appearance having been filed by or on behalf of the Charging Party), were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce oral and documentary evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. On the third day of the hearing, the General Counsel moved to amend the complaint to allege that Respondent had engaged in a further act of interference the day before by directing employees to cease engaging in union or concerted activities. The motion was granted over Respon- dent's objection. At the close of the evidence, the General Counsel moved to conform the pleadings to the proof as to formal matters not affecting the substantive issues. The motion was allowed without objection. During oral argument, Respondent moved to strike specified para- graphs of the complaint for lack of evidence. Ruling on said motion having been reserved, the motion is hereby denied. Pursuant to an extension of time duly granted, the General Counsel and Respondent filed briefs on October 2, 1972. No proposed findings and conclusions of law have been filed by any of the parties. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs of the parties, which have been carefully considered, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and it is hereby found that, at all times material herein, Mission Rubber Company, Inc., a corporation, Respondent herein, has been engaged in the manufacture of rubber and cast iron products at its facility in Whittier, California. In the conduct of its business, Respondent sells and ships goods, products, and materials valued in excess of $50,000 annually directly to customers located outside the State of California, and purchases and receives goods, products, and materials valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint further alleges, Respondent's answer admits, and it is hereby found, that, at all times material herein, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 585, United Rubber, Cork, Linoleum and Plastic Workers of America , AFL-CIO, the Union herein, is, and at all times material herein has been , a labor organization within the meaning of Section 2(5) of the Act. ' Eusebio Quintero, Everardo Andrade, Margaret Ayala, Amelia Herrera, Antonio Loera, Faustma Cuellar, Alfonso Samamego, Bertha Medina, Carlota Olivares, Guadalupe Landeros, Linda Astorga, Alicia Camarena, Christine Arnold, and Carlos Villanueva 2 Designations herein are as follows the General Counsel, unless otherwise noted, his representatives at the hearing; Mission Rubber Company, Inc, Respondent, the Company or the Employer, Local 585, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, the Union or the Charging Party, the National Labor Relations Act, as amended (61 Star 136, 73 Stat 519, 29 U S C. Sec. 151, et seq ), the Act, the National Labor Relations Board, the Board. The original charge was filed and served on February 17, 1972, an amended charge, on March 6, 1972 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Introduction Mission Rubber Company, Inc., Respondent herein, and Mission Clay Products Corporation, herein referred to as the Rubber Company and Clay Products, respectively, are separate but related corporations engaged in the business of manufacturing cast iron and clay couplings for use in joining pipe used in the construction industry. The clay couplings are used in connection with clay pipes, which are manufactured by Clay Products. Clay Products was incorporated in 1951; the Rubber Company, in 1959. The capital stock of Rubber Company is wholly owned by Clay Products, and Ben B. Garrett is president and chief executive officer; Walter N. Garrett, his son, vice presi- dent; and Katherine R. Garrett, secretary-treasurer of both corporations. Clay Products maintains plants at Fremont, Corona, and Santa Fe Springs, and headquarters at Whittier, Califorma, where the plant and office of the Rubber Company are also located. In addition to his duties at the Rubber Company, Walter Garrett is in charge of Clay Products Northern Division at the Fremont plant, which serves the territory north of Bakersfield and San Luis Obispo. The Rubber Company's sales are made almost exclusively to Clay Products, which is responsible for 98 percent of all sales of products manufactured by the Rubber Company. Only the Rubber Company, however, is directly involved in these proceedings. Departments at the Rubber Company consist of the clamp department, primarily involved in these proceedings, in which are located the assembly, packaging, and stamping departments, and a machine shop which serves the clamp and rubber departments. The rubber depart- ment, consists of a mill room, in which the material is mixed, blended, and prepared, then sent to the pressroom, where the product is actually fabricated. The volume of work performed in the clamp department is necessarily dependent upon the amount of work generated in the rubber department, and due to the nature of the items being manufactured, 60 or 70 percent of the employees in the clamp department are involved in the manufacture of cast iron couplings, the remainder being engaged in the production of couplings for clay products. For the past several years, peak employment at the Rubber Company, reached principally during the year 1971, amounted to about 90. During such peak employ- ment, Respondent's volume of sales amounted to approxi- mately $200,000 a month, divided almost equally between cast iron and clay couplings.3 During November 1971, when about 70 percent of the work in the clamp department consisted of cast iron related products, sales of cast iron couplings dropped sharply. This resulted, according to Vice President Gar- rett,4 from several factors, including the failure of the iron coupling to withstand "thrust" or pressure tests by 3 The term "clay couplings" is apparently used to denote couplings produced for use with clay pipe. 4 Unless otherwise indicated or required by the context, all further references herein to Garrett are intended to apply to this individual President Garrett did not testify. s Unless otherwise stated, or required by the context, all events occurred municipal officials and engineers, the incompatibility of the product when used with fittings of unconventional specifications, especially those produced by foreign manu- facturers, alleged unfair competition by domestic manufac- turers, including widespread disparagement of Respon- dent's product and price cutting. Garrett testified that Respondent did not become fully aware of the drastic decline in sales until December and January. Consequent- ly, according to him, Respondent resorted to three layoffs in January, and the one on February 16, the subject matter of this proceeding. B. The Organizational Campaign On February 3, 1972,5 Amelia "Molly" Herrera, a spotwelder in the clamp department, communicated with International Union Representative Howard E. Sharp and arranged to have him meet with employees at the home of Bertha Medina, another clamp department employee, the following Sunday afternoon, February 6. Seven employees, including Herrera, Medina, Faustina Cuellar, and Marga- ret Ayala, among the named alleged discriminatees, attended this meeting. Another meeting was held at Medina's home the following evening, February 7, attend- ed by 38 employees. A number of the employees signed union authorization cards at either the first or second meeting. Other employees signed cards in the plant. On February 10, the Union filed a representation petition (21-RC-12545) seeking to represent Respondent's employ- ees.6 A copy of the petition was mailed to Respondent on February 11, a Friday, which came to its attention on February 14. The processing of the petition was "blocked" by the filing of the unfair labor practice charges in this case. C. Interference, Restraint, and Coercion On February 15, Floorlady Maggie Morales, through Assistant Floorlady Edna "Virginia" Thompson, notified the clamp department employees that a meeting was to be held in that department after lunch. When they assembled at her desk, Morales addressed them in Spanish, and began by telling them that Garrett Sr. had sent for her, told her that he had received a letter from the Union, and that somebody wanted to start a union. She told the group that Garrett had intended to speak to them but had decided to have her do so instead. Present among the employees were all but the two mill room employees, alleged to have been discriminatorily laid off the following day. Morales stated that the Company had a list of all employees who had signed union cards and urged those who had done so to notify the Union that they no longer wanted it to represent them. As to those who had not signed cards, Morales told them that if they were approached to sign cards while in their automobiles, to close their doors and roll up their windows. She also urged during the year 1972 6 The unit described in the petition is as follows : All production, maintenance, shipping, and receiving employees and truckdrivers employed by the employer at its Whittier, California, plant, excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act MISSION RUBBER CO. 37 them to ignore anyone who might call on them at home to sign cards. Morales reminded them that the Company had assisted some of them with their immigration papers, and warned that the Union would deny membership to employees who were in the country illegally, and report them to the immigration authorities. She told them that the Union was "no good," would promise them anything but that all it wanted was their money. She stated that the Company did not want a union, that it would not do either of them any good; and that the Union had tried to get into another plant without success. She warned that if the Union got in, the Company would "go broke" and have to close the plant, thereby depriving the employees, including her, of jobs because the Company could not afford a union. Antonio Loera, an assembly employee, remarked that perhaps the Union would not do the Company any good but that it would benefit the employees. When Morales asked him whether he presumed to be speaking for the other employees, he told her that she might as well know that they were all involved. Linda Astorga, a spotwelder, remarked that her husband belonged to a union and that he had never experienced any of the problems which Morales raised. When Astorga protested that the Company was not paying the same wages for the same work as other companies, Morales retorted that no one was forcing her to work there, and asked Astorga whether she, too, was involved with the Union. Astorga acknowledged that she was. Faustina "Tina" Cuellar questioned why the Company was not paying the same wages as other companies, and ventured that "all this could have been avoided" if the Company had granted the employees a cost-of-living increase. Morales retorted that the law allowed the Company to pay a minimum wage, and that was what the employees were receiving. Cuellar rejoined that the Company was only paying the minimum wage because it was compelled to do so by law. Margaret Ayala suggested that Morales call for a show of hands of employees who were not in favor of the Union, and then put the question herself. Two employees, Anna (Aldarte) Frances and Lupe Marquez, raised their hands, and Morales told them to put their hands down. Morales reproved the employees for "letting her down," after she 7 According to Herrera's undisputed and credited testimony, a week or two before Christmas, some 2 months before the organizational campaign at the plant, she questioned Morales about the results of a union campaign at Respondent's Corona plant Morales told her that Garrett Sr had instructed her to discharge any employee discovered talking about the Union This episode undoubtedly prompted Morales' remark 8 The above findings are based upon the composite testimony of various employees who attended this meeting Morales did not testify, Respondent's counsel arguing that he did not call her because of the possible adverse effect it might have on employee discipline and morale. Whatever Respondent's reasons for not calling Morales as a witness , the testimony of the employees stands uncontradicted , and it is found that Morales made the statements as found above 9 Thompson did not testify, and these findings are based on Madrigal's and Cuellar's uncontradicted, credible, and mutually corroborative testimo- ny Although Respondent stipulated at the hearing that Morales was a supervisor within the meaning of the Act, it denied the supervisory status of Thompson Thompson was admittedly Morales' assistant, and the record discloses that she has substituted for Morales , on a fairly regular basis, for at least several hours once or twice a week She is the highest hourly paid employee in the department In Morales' absence, Thompson assigns work had told Garrett Sr. whom she referred to as "el viejito," ["the old man"], that her employees had not been responsible for the organizational activity. Herrera asked Morales whether Garrett had said anything about a raise. Morales told her that that was not the purpose of the meeting, and accused Herrera of "starting the Union." When Herrera asked her why she assumed that, Morales said, "Because you always talk to me about the union and about raises." 7 Morales then announced that she wanted to know which employees sided with her and the Company, and which did not. When no response was forthcoming, Morales stated that she would have to tell Garrett that the organizational activity had originated in the clamp department. Soon after the employees returned to work, Morales engaged Francisca Gutierrez in a conversation at her work station. Morales asked her if she had signed a card. Gutierrez replied that she had not and asked why she was being asked. Morales told her that she was always "complaining about too much work," and that she was not happy in her job. When Morales asked Gutierrez who was signing up the employees, she said she did not know.8 At about the same time, Assistant Floorlady Thompson approached Madrigal at her work station, near which Cuellar was also working, and asked Madrigal whether she had signed a union card. Madrigal replied, "I don't know what you are talking about." Thompson continued, "Yes, one of those cards that the union gives you." Madrigal said that she had signed nothing but her paycheck. Thompson then asked Cuellar whether she had signed a card and she, too, denied it. Then, addressing Cuellar, Thompson said, "Well, if you know anything about it, let me know; I'm curious." Cuellar responded that she knew nothing about it, and that she was "standing on [the] Fifth Amend- ment." 9 It is, therefore, found that by Morales' statements at the meeting of February 15, by her subsequent interrogation of Gutierrez, and by Thompson's interrogation of Madrigal and Cuellar, as described above, Respondent has inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby interfering with, restraining, and coercing employees within the meaning of Section 8(a)(1) of the Act.io to the employees and directs them in the performance of their jobs. She assists them in any problems relating to their work or in the event of breakdown in the welding equipment , and attempts to make such repairs as do not require the attention of a mechanic She is earned on company records as assistant floorlady, and there is evidence that she has authority responsibly to direc t the work of employees in her department during Morales' absence in other than routine fashion There is no evidence that she has authority to hire or discharge , although there is evidence that she "hired" one employee, who had previously been interviewed by Morales, while the latter was on vacation Otherwise , there is no evidence that she possessed any of the indicia of a supervisor as defined in the Act. Nevertheless , it is evident that Respondent held her out to the employees in her department, and that they reasonably believed her to be, acting as Morales' surrogate [sic] Moreover, it is clear from Thompson's remarks, following so closely on the heels of Morales' remarks of similar import to the assembled employees , obviously authorized by management, that Thompson was expressing the views of management , and that Respondent is bound by those remarks 10 For reasons stated in Sinclair Company v N L R B, 397 F 2d 157, affd sub nom N L.R B v Gissel PacAing Company, Inc, 395 U S 575, 619, (Continued) 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Discrimination in Regard to Hire and Tenure of Employment 1. The layoff of February 16 On February 16, the day after Morales addressed the employees in the clamp department, and 2 days after Respondent became aware of the filing of the representa- tion petition, Respondent laid off the 14 employees named in the complaint, 12 of whom had been employed in the clamp department, and 2, in the rubber department. Nearly all were subsequently reinstated by April 3. The employees learned of the layoff when they observed a notice containing a list of names posted at the timeclock as they checked out at the end of their shift at 3:30 in the afternoon. Individual notices were also attached to their timecards. Among the clamp department employees were five who had voiced their sentiments at the meeting the day before.[[ Also included in this group were Medina, at whose home the union representative had met with employees on two occasions, and Christine Arnold, whom Morales knew to be Medina's niece. Alfonso Samaniego, who had been interrogated by Morales earlier that morning, and had admitted signing a union card, was also among those laid off. Cuellar immediately questioned Morales about the reason for her layoff. Morales told her that the layoff was not of her doing, that it had been done by the office. Under further questioning, Morales said, "You know why. It is on account of the union." 12 Respondent firmly denies that the layoff of February 16 was motivated by reasons other than business expediency. The timing of the layoff, it maintains, was no more than coincidence. That Respondent sustained a drastic decline in sales between November 1971 and January 1972, especially in December and January, can scarcely be gainsaid.13 After attaining a peak of $132,000 in October 1971, sales of cast iron couplings declined to $32,000 in December, rising to $37,000 in January. During the corresponding period, Respondent continued to manufacture cast iron couplings at substantially the same rate, resulting, according to Respondent, in a threefold increase in inventory from approximately 70,000 units, in August, to approximately 217,000, in January. Respondent attributed the drastic Respondent's contention that Morales' threat of plant closure was merely a prediction of the probable consequence of unionization is rejected i i Herrera, Cuellar, Ayala, Astorga, and Loera 12 Although Respondent did not call Morales to refute Cuellar's testimony, it challenges her testimony regarding this statement on the ground that Cuellar had failed to mention it in any of three separate pretrial affidavits to Board agents In a fourth and final affidavit, however, obtained by one of trial counsel for the General Counsel about a month before the hearing, she did relate the substance of this alleged conversation While Cuellar's explanation of her failure to mention the conversation in her previous affidavits, that she was either not asked about it by the agents investigating the case or that it was her own private business, is not altogether convincing, it is found that her credibility has not been effectively impeached, especially in the absence of a denial by Morales It is, therefore, found that Morales made the remark on this occasion as testified to by Cuellar Moreover, the remark is consistent with the statement made by Morales to Herrera in December 1971, to the effect that Garrett Sr had instructed Morales to discharge any employee whom she heard talking about organizing a union The statement is also consistent with the statement attributed to Walt Hansen, later detailed, when he told Quintero, an employee who sought to return to work after his layoff on February 16, decline in sales to unfair business practices by competitors, including disparagement of Respondent's product (which Respondent admitted was not altogether unjustified), price reduction, rejection by its customers of defective and unsatisfactory couplings, and incompatibility of its product for use with pipe produced by foreign, as well as domestic, manufacturers. These factors, as they related to the decline in sales of cast iron couplings, were discussed among top-level management, consisting of the Garretts, General Manager Edward J. Loftus, and Plant Manager Jerry F. Hofberger, as late as February 10 or 11, when they allegedly decided on the layoff of February 16. The situation had become so desperate, according to Respondent, that President Garrett counseled abandoning this phase of the business. Introduc- tion of stricter quality control, however, as well as the design of a new cast iron coupling by Loftus and Hofberger, which was compatible with products which were invading the market, and a 7-percent price reduction to meet competition, reversed the trend of decline in sales. Nevertheless, in January, Respondent laid off 15 employ- ees, including the entire second shift in the clamp department and about 6 in the rubber department of the pressroom. It should be noted, however, that Respondent normally made seasonal layoffs in January, due to inclement weather, when building construction was usually curtailed. It was not shown to what extent the layoffs in January (5, 12, and 18) were due to seasonal factors. Respondent's exhibits, consisting mainly of the graphs previously mentioned, covered only the period from August 1971 to January 1972. Under cross-examination, however, Garrett admitted that by February, for which no actual figures were introduced, sales had at least doubled over the preceding month, and that between February and June, monthly sales of iron couplings averaged $80,000, as compared with $37,600, for January, and sales for February in previous years of between $75,000 and $80,000.14 It should be noted, too, that Respondent had reduced its price of cast iron couplings by January 15, and, though Garrett maintained that the actual price list was not in the hands of its customers until sometime in February, it is reasonable to assume that Respondent would not have delayed notifying its customers of the price reduction until that under instructions from Garrett Sr he could return to work only on condition that he refrain from signing cards for the Union. 13 According to graphs, introduced in evidence, and prepared from original company records, which were made available to' the General Counsel, the following represents the volume of sales of iron couplings from August 1971 to January 1972, with the corresponding number of production employees during that period Date Sales Employees 8/71 $128,787.25 86 9/71 89,912.07 77 10/71 132,917.28 83 11/71 79, 347.23 86 12/71 32, 729.22 84 1/72 37,611.70 52 14 Garrett's testimony that official sales reports were not available until the 10th of the succeeding month has not been overlooked He conceded, however, that he could approximate the volume of sales without awaiting actual figures MISSION RUBBER CO. it could supply them with official price lists. By February, Respondent had also introduced its newly designed, compatible coupling. The salutary effect of this program was soon reflected in the upsurge in sales of which Respondent must surely have been aware well before the February 16 layoff. Whether Respondent exercised good business judgment under the circumstances in deciding on the layoff is, of course, not the issue. It may well be that Respondent chose to reduce its inventory by curtailing production rather than speculate that the volume of sales would continue to be favorable. It was not shown to what extent the inventory had been depleted when Respondent first began recalling laid-off employees 2 weeks later. Since we are called upon to decide the complex issue of mo- tivation, we cannot ignore all the relevant factors. It is undisputed that there had been three previous layoffs in January 1972, the last, on January 18, all admittedly before the Union appeared on the scene. Whether these layoffs were seasonal or due to the exigencies of Respondent's operations, it can scarcely be contended that they were motivated by Respondent's opposition to the self-organizational activities of its employees, which did not begin until early in February. The February 16 layoff, however, because of its timing, stands on a different footing. At first impression, it would appear that since, with one or two exceptions, all the laid- off employees were recalled between March 3 and April 3, any inference of discriminatory motive in regard to the layoff would be negated. It may be argued that, if, as is contended, Respondent had laid off the employees in reprisal for their union affiliation, it is unlikely that it would have recalled virtually all the employees whom it knew to be in favor of the Union. On the other hand, as has been seen, the sharp increase in sales, which became evident in February, presumably necessitated increased production, and it is logical to assume that Respondent would have recalled its laid-off employees rather than attempt to recruit new and untested individuals. Manifest- ly, Respondent's decision was dictated by reasons of expediency. Moreover, Respondent could well have con- cluded that the layoff had served its purpose as an object lesson, and that the employees, sufficiently chastened, would renounce the Union. There are other circumstances tending to support a finding of discrimination. With regard to the layoffs in January, Respondent notified each of the employees individually several days in advance in each instance.15 In the February,layoff, Respondent, without prior notice to the affected employees, posted a list of those to be laid off, and attached individual notices to their timecards the very day of the layoff. In fact, the evidence establishes that the laid-off employees did not learn of the action until the end of their shift at 3:30 p.m. when they clocked out. Garrett's is According to the General Counsel's witnesses, Floorlady Morales called each of the employees in her department to her desk and notified them individually of the layoffs. 16 The list of employees was prefaced by the following statement: NOTICE RUBBER AND CLAMP DEPTS LAY OFF NUMBER 2 The demand for our products has decreased further since our first winter lay off of Jan 18. This requires that we lay off more people. The following persons are laid off effective Feb 16th: 39 explanation, that he deliberately refrained from giving the employees advance notice because of the adverse effect it might have on their production in the interim, fails to explain why the same reason did not obtain with regard to the January layoffs, when, it is undisputed, advance notice was, in fact, given. Nor does Garrett's explanation account for his failure to notify Floorlady Morales and Plant Manager Hofberger of the layoff until the morning in question, considering his testimony that the decision had been reached on February 10 or 11. Moreover, no reason was advanced for posting the names of the employees to be laid off, since each had been given an individual notice. This justifies the inference that Respondent utilized the posting as a warning to other employees of what union adherents might expect in the future. The fact that the list of names was prefaced by a self-serving statement that the layoffs were due to decline in sales does not, of course, establish this to be the fact.16 It is significant that, with the exception of 2 employees in the rubber department, the remaining 12 laid off were all clamp department employees. At the meeting the day before, Floorlady Morales learned for the first time that, contrary to her previous impression, the organizational activity had been initiated in her own department rather than in the rubber department. Leaving no doubt that she regarded this an act of personal disloyalty, she announced that she intended to notify Garrett Sr. that the clamp department employees had been responsible for bringing the Union into the plant. What is more significant, however, is that within a day or two after the layoff, Respondent hired three employees for the clamp department. According to the uncontradicted testimony of Minnie Madrigal, a spotwelder in the clamp department, who, incidentally, was not among those laid off,'7 Joyce Ray and Maria Cervantes were hired as "gun" operators and Yolanda Nerey as a spotwelder, all in the clamp department, the day after the layoff or soon afterward. Both Nerey and Cervantes had been previously employed by Respondent, Nerey having worked there until about 2 weeks before the February layoff. In addition, according to Madrigal, on about March 15, well before the last of the laid-off employees had been reinstated, Respondent hired two new employees, Pedro Piceno and Dolores Gonzales.18 • The record further discloses that, despite Respondent's position, that at the time of the February layoff its purpose was to curtail production and reduce its excessive invento- ry, it was actually urging the remaining clamp department employees to increase production. Thus, according to Kathy Macias, a spotwelder, about a week after the February layoff, Morales told her that she would have to speed up her production because output was lagging. In another discussion Morales told Macias that , as she was 17 Madrigal's length of service dated from July 8. 1968, some 6 months less than Assistant Floorlady Thompson, who had the longest service in the department. Since Respondent contends that it attempted to make the layoffs according to length of service, with exceptions related to its operating requirements , in view of Madrigal's experience and competence, it is not surprising that Respondent did not lay her off despite her known union sympathy. is The record does not disclose what jobs these two employees were hired to perform, but evidently they were assigned to the clamp department. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well aware, she, Morales, was in trouble because of the Union, and that she would have to assign Macias additional duties because she was earning more than the other girls. Macias reluctantly agreed. Morales returned later and told her that she was making her responsible for changing and setting tips on the welding equipment whenever necessary. Thereafter, Morales also assigned Macias to work on assembly, in addition to her other duties. There was also evidence that, following the layoff, employees in the clamp department were shifted around to vanousjobs. On March 2, before Respondent recalled any of the laid- off employees, Morales criticized Madrigal for not working hard enough, for slowing down production and urging the girls in the clamp department to do the same. Morales told her that if she did not convince the girls to get out production, she would "take further steps." Madrigal denied engaging in a slowdown or urging the others to do so, and defied Morales to fire her because she was not responsible for any slowdown. Madrigal protested that she had been working harder than ever, that the girls were being overworked, and called attention to the shortage of help, reminding her that one of the women had been disabled due to a back condition.19 Considering Respon- dent's contention that the layoff was caused by the drastic decline in sales and the corresponding increase in invento- ry, Morales' efforts to obtain increased production further impugns Respondent's motive for the layoff. It is of further significance that, although Respondent had never followed seniority in effecting layoffs prior to the February layoff, in the most recent layoff, on advice of counsel, it undertook to follow seniority as far as practical. Nevertheless, in instances where it decided that strict seniority might deprive it of its most experienced and versatile employees, such as machine operators, welders, and the like, it disregarded strict seniority. Yet, despite this policy, Respondent laid off Loera and Samaniego, both machine operators. Herrera, a spotwelder whose length of service in the clamp department dated from March 24, 1969, fifth longest in point of service, whom Morales had admittedly suspected of having instigated the union activity, was also among those laid off. Respondent's contention that she was merely an assembler, incapable of operating other equipment, is contradicted by the credible and mutually corroborative testimony of Herrera and Macias, her fellow-employee, as to the wide variety of jobs she actually performed. Ayala, initially hired on January 7, 1969, was the fourth longest in point of service and had never previously been laid off. Though working as a packer at the time of the layoff, she, too, had worked at a wide variety of jobs in the clamp department. On the other hand, Alfredo Rodriguez, a packer with less service than Ayala, was retained. Astorga, an experienced welder, who testified, without contradiction, that Morales had assured her long before the advent of the Union that she would never be laid off due to decline in production, was also laid off. She had been one of the outspoken union advocates at the meeting 19 During this encounter, Morales accused Madrigal and her husband of being "union leaders" and told her that she had witnesses to prove it When Morales named Eusebio Quintero as the source of her information, the day before. Although originally hired in May 1968, Astorga's employment was interrupted twice for maternity reasons. That Respondent, nevertheless, regarded her as one of its senior employees in point of service is suggested by the fact that Respondent had at first considered her to be eligible for 2 weeks' vacation but later reconsidered and denied her any vacation whatever. Finally, it seems more than coincidence that Francis (Aldarte) and Marquez, the two employees who indicated at the meeting the day before that they were not in favor of the Union, were not laid off. Mention should also be made of an incident which occurred about the first week in April, after most of the laid-off employees had been recalled. Eusebio Quintero, a mill room employee who had not been recalled , went to the plant and spoke to Walt Hansen , working foreman in the mill room. Hansen asked Quintero whether he was working and wanted to'return to the plant. Quintero said that he wished to return, and Hansen said that he would take it up with Garrett Sr. and let him know on Monday. On Monday, April 3, Quintero called Hansen to find out if a decision had been reached . Hansen told Quintero that Garrett had instructed him to reinstate Quintero only if he agreed not to sign up with the Union. Quintero agreed, stating that all he wanted was to return to work . Hansen told him to call next day to find out definitely whether he was to be reinstated. Next evening, Hansen confirmed to Quintero that Garrett had agreed to his reinstatement, and again warned him against signing up with the Union. Quintero was thereupon reinstated on Thursday, April 6. Although Hansen did not testify, and Quintero's testimo- ny stands uncontradicted, Respondent denies that Hansen was a supervisor within the meaning of the Act. The record establishes, however, that Hansen, though designated by Respondent as a working foreman, was in complete charge of the mill room and the highest paid employee in that department. Although he performs work himself, such as mixing ingredients, he assigns work to the employees in the department, responsibly directs them in their work tasks in more than a routine manner, has authority effectively to recommend hiring and discharge of employees and granting time off, and, according to General Manager Loftus, his recommendations are accorded great weight. It is found that Hansen was a supervisor within the meaning of the Act, and that his statements to Quintero are attributable to Respondent. The fact that Hansen inter- viewed Quintero about returning to work and, after conferring with Garrett, Sr., accomplished his reinstate- ment, is persuasive evidence of his supervisory status. It is, therefore, found that Hansen's remarks to Quintero, in which he exacted a promise from him to refrain from engaging in union activity as a condition of reinstatement, furnish additional support for the conclusion of unlawful motivation for the February 16 layoff. It is further found that, by such remarks, Respondent has also interfered with, restrained, and coerced employees in the exercise of rights guaranteed under the Act, in violation of Section 8(a)(1). On the basis of the foregoing findings of fact, and upon Madrigal challenged her to have Quintero confront her. Morales said that that would not be necessary, that Quintero had also given the information to Plant Manager Hofberger 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well aware, she, Morales, was in trouble because of the Union, and that she would have to assign Macias additional duties because she was earning more than the other girls. Macias reluctantly agreed. Morales returned later and told her that she was making her responsible for changing and setting tips on the welding equipment whenever necessary. Thereafter, Morales also assigned Macias to work on assembly, in addition to her other duties. There was also evidence that, following the layoff, employees in the clamp department were shifted around to various jobs. On March 2, before Respondent recalled any of the laid- off employees, Morales criticized Madrigal for not working hard enough, for slowing down production and urging the girls in the clamp department to do the same. Morales told her that if she did not convince the girls to get out production, she would "take further steps." Madrigal denied engaging in a slowdown or urging the others to do so, and defied Morales to fire her because she was not responsible for any slowdown. Madrigal protested that she had been working harder than ever, that the girls were being overworked, and called attention to the shortage of help, reminding her that one of the women had been disabled due to a back condition.19 Considering Respon- dent's contention that the layoff was caused by the drastic decline in sales and the corresponding increase in invento- ry, Morales' efforts to obtain increased production further impugns Respondent's motive for the layoff. It is of further significance that, although Respondent had never followed seniority in effecting layoffs prior to the February layoff, in the most recent layoff, on advice of counsel, it undertook to follow seniority as far as practical. Nevertheless, in instances where it decided that strict seniority might deprive it of its most experienced and versatile employees, such as machine operators, welders, and the like, it disregarded strict seniority. Yet, despite this policy, Respondent laid off Loera and Samaniego, both machine operators. Herrera, a spotwelder whose length of service in the clamp department dated from March 24, 1969, fifth longest in point of service, whom Morales had admittedly suspected of having instigated the union activity, was also among those laid off. Respondent's contention that she was merely an assembler, incapable of operating other equipment, is contradicted by the credible and mutually corroborative testimony of Herrera and Macias, her fellow-employee, as to the wide variety of jobs she actually performed. Ayala, initially hired on January 7, 1969, was the fourth longest in point of service and had never previously been laid off. Though working as a packer at the time of the layoff, she, too, had worked at a wide variety of jobs in the clamp department. On the other hand, Alfredo Rodriguez, a packer with less service than Ayala, was retained. Astorga, an experienced welder, who testified, without contradiction, that Morales had assured her long before the advent of the Union that she would never be laid off due to decline in production, was also laid off. She had been one of the outspoken union advocates at the meeting 19 During this encounter, Morales accused Madrigal and her husband of being "union leaders" and told her that she had witnesses to prove it. When Morales named Eusebio Quintero as the source of her information, the day before. Although originally hired in May 1968, Astorga's employment was interrupted twice for maternity reasons. That Respondent, nevertheless, regarded her as one of its senior employees in point of service is suggested by the fact that Respondent had at first considered her to be eligible for 2 weeks' vacation but later reconsidered and denied her any vacation whatever. Finally, it seems more than coincidence that Francis (Aldarte) and Marquez, the two employees who indicated at the meeting the day before that they were not in favor of the Union, were not laid off. Mention should also be made of an incident which occurred about the first week in April, after most of the laid-off employees had been recalled . Eusebio Quintero, a mill room employee who had not been recalled , went to the plant and spoke to Walt Hansen, working foreman in the mill room. Hansen asked Quintero whether he was working and wanted to return to the plant . Quintero said that he wished to return , and Hansen said that he would take it up with Garrett Sr. and let him know on Monday. On Monday, April 3, Quintero called Hansen to find out if a decision had been reached . Hansen told Quintero that Garrett had instructed him to reinstate Quintero only if he agreed not to sign up with the Union . Quintero agreed, stating that all he wanted was to return to work . Hansen told him to call next day to find out definitely whether he was to be reinstated. Next evening, Hansen confirmed to Quintero that Garrett had agreed to his reinstatement, and again warned him against signing up with the Union. Quintero was thereupon reinstated on Thursday, April 6. Although Hansen did not testify, and Quintero's testimo- ny stands uncontradicted, Respondent denies that Hansen was a supervisor within the meaning of the Act. The record establishes, however, that Hansen, though designated by Respondent as a working foreman, was in complete charge of the mill room and the highest paid employee in that department . Although he performs work himself, such as mixing ingredients, he assigns work to the employees in the department, responsibly directs them in their work tasks in more than a routine manner , has authority effectively to recommend hiring and discharge of employees , and granting time off, and, according to General Manager Loftus, his recommendations are accorded great weight. It is found that Hansen was a supervisor within the meaning of the Act, and that his statements to Quintero are attributable to Respondent. The fact that Hansen inter- viewed Quintero about returning to work and, after conferring with Garrett, Sr., accomplished his reinstate- ment, is persuasive evidence of his supervisory status. It is, therefore, found that Hansen's remarks to Quintero, in which he exacted a promise from him to refrain from engaging in union activity as a condition of reinstatement, furnish additional support for the conclusion of unlawful motivation for the February 16 layoff. It is further found that, by such remarks, Respondent has also interfered with, restrained, and coerced employees in the exercise of rights guaranteed under the Act, in violation of Section 8(a)(1). On the basis of the foregoing findings of fact , and upon Madrigal challenged her to have Quintero confront her. Morales said that that would not be necessary , that Quintero had also given the information to Plant Manager Hofberger. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTICE UNION MEN HAVE BEEN AROUND OUR PLACE TRYING TO GET CARDS SIGNED. DO NOT SIGN. YOUR COMPANY IS AGAINST IT. Upon learning of this, the General Counsel moved to amend the complaint to allege this conduct to be further violative of Section 8(a)(1). There was no evidence as to who had distributed the notices or of the circumstances under which this had been done . Although Respondent's counsel was evidently taken by complete surprise, and represented that he had not been consulted beforehand, had had no prior knowledge of this activity, and asserted that the principal management representatives had been present at the hearing, he, nevertheless, assumed full responsibility on behalf of his client for the action. While expressing some reservation as to the illegality of the conduct, he agreed to have Respondent repudiate the notice by appropriate means. In light of Respondent's other similar acts of interference, the notice can hardly be regarded as protected free speech . It is, therefore, found that, by the conduct described, Respondent has engaged in additional acts of interference , restraint, or coercion. Since there has been no showing that Respondent has taken any action to disavow or repudiate its conduct in this regard, it will be recommended that it be required to take appropri- ate action. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following conclusions of law: 1. Mission Rubber Company, Inc., Respondent herein, is, and at all times material herein has been, an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 585, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatonly laying off 14-employees, named in the complaint, on February 16, 1972, and thereafter failing to recall all said employees until various dates between March 3 and April 6, 1972, and by discriminatori- ly transferring Francisca Gutierrez on February 17, 1972, from her regular work area and position to another work 21 Respondent contends that, with one or two exceptions, all employees laid off on February 16 were recalled between March 3 and April 3 Direct evidence of the dates of reinstatement was offered only with regard to about area and position, and failing to restore her to her former work area and position, and thereafter on February 24, 1972, discharging said employee, all because of their union and concerted activities to discourage membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3), thereby interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. 4. By unlawfully interrogating employees concerning their union and concerted activities, threatening them with reprisals, engaging in and creating the impression of engaging in surveillance, and by the other acts and conduct, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent be required to cease and desist from such practices and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature and extent of the unfair labor practices in which Respondent has been found to have engaged, and to effectuate the policies of the Act, it will also be recommended that Respondent be required to cease and desist from engaging in any other unfair labor practices. Having found that the 14 employees named in the complaint, as shown in the appendix, were discriminatorily laid off on February 16, 1972, and were not reinstated until various dates between March 3 and April 6, 1972, it will be recommended that Respondent make each of said employ- ees whole for any loss of pay such employees may have sustained by reason of the discrimination against them from the date each such employee was laid off until the date of reinstatement, together with interest; that Respon- dent offer any of said 14 employees who have not already been reinstated21 immediate and full reinstatement to such employee's former job, or, if such job no longer exists to a substantially equivalent job without prejudice to such employee's seniority and other rights and privileges, and make any such employees whole for any loss of pay they may have suffered by reason of such discrimination from the date of said layoff on February 16, 1972, to the date of reinstatement or offer of reinstatement, as the case may be, and offer immediate and full reinstatement to Francisca Gutierrez to her former job, or if such job no longer exists, to'a substantially equivalent job, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her from February 24, 1972, the date of her discharge, to the date in June 1972, when half the laid-off employees The above provision is intended to cover any employees who may not actually have been previously reinstated MISSION RUBBER CO. 43 she was reinstated, without prejudice to her seniority or other rights and privileges, with backpay computed in accordance with the Board's formula in F. W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of 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: 22 ORDER Mission Rubber Company, Inc., a corporation, its officers, agents, successors and assigns shall: 1. Cease and desist from: (a) Discriminating in regard to the hire or tenure of employment or any term or condition of employment of any employee by discharging, laying off or in any other manner discriminating in regard to the hire or tenure of employment or any other term or condition of employment of its employees to discourage membership in a labor organization. (b) Interrogating employees concerning their union membership or affiliation or other protected concerted activities, threatening them with reprisal therefor, engaging in, soliciting them to engage in or creating the impression that it has engaged in surveillance of union or protected concerted activities of employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer any of the 14 named employees, who have not previously been reinstated, immediate and full reinstate- ment to their respective former jobs, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and offer Francisca Gutierrez immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges. (b) Make each of said 14 named employees, including any who have not been previously reinstated, whole for any loss of earnings such employees may have sustained by reason of Respondent's discrimination against them by payment of the sum of money each would have earned from the date of the discrimination against them on February 16, 1972, to the date of offer of reinstatement or to the date of actual reinstatement , as the case may be, less net earnings of each such employee during such period. Make said Francisca Gutierrez whole for any loss of earnings she may have suffered as a result of Respondent's discrimination against her as set forth in The Remedy section herein. Loss of earnings shall be computed in the manner set forth in the section entitled "The Remedy." (c) Rescind the notice distributed to employees on July 19, 1972, and notify employees of such rescission by written notices attached to their timecards. (d) Preserve and, upon request, make available to the Board, or its agents, for examination and copying all payroll records, social security records, timecards, person- nel records and reports, and all other records necessary or useful to determine or compute the amount of backpay due if any. (e) Post at its plant and office in Whittier, California, copies of the attached notice marked "Appendix." 23 Copies of the notice on forms provided by the Regional Director for Region 21, after being signed by a duly authorized representative of Respondent, shall be posted immediately upon receipt thereof and maintained by it 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 Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.24 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 12 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, andrrecommended 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. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 24 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 writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."