National Rawhide Manufacturing Co.

NATIONAL RAWHIDE MANUFACTURING CO. S. S. Surak and J. V. Surak d/b/a National Rawhide Manufacturing Co. and Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 13-CA-11198 and 13-RC-12624 April 4, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 15, 1972, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. 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, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, S. S. Surak and J. V. Surak d/b/a National Rawhide Manufacturing Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election conducted on February 8, 1972, in Case 13-RC-12624 be, and it hereby is, set aside and that Case 13-RC-12624 be, and it hereby is, remanded to the Regional Director for Region 13 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing her findings DECISION STATEMENT OF THE CASE 893 JENNIE M. SARRICA, Administrative Law Judge: Upon due notice, this consolidated proceeding under Sections 9 and 10(b) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), hereinafter referred to as the Act, was tried before me at Chicago, Illinois, on July 12, 1972. Hearing, was pursuant to a Supplemental Decision on Objections in Case 13-RC-12624 issued May 4, 1972, and an amended complaint in Case 13-CA-11198 issued June 1, 1972, based on charges filed February 11 and May 23, 1972, presenting allegations that the Respon- dent committed unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act, and Respondent's answer denying those allegations, both as amended at the hearing. All parties were present and participated in the hearing Based on the entire record, including my observations of witnesses and after due consideration of briefs, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Respondent, a partnership, is engaged in Chicago, Illinois, in tanning, manufacturing, and selling leather. Respondent admits that in the operation of this business during the preceding year goods valued in excess of $50,000 were sold and shipped to various locations outside the State of Illinois I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE UNION The Charging Party, Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union, which is also the Petitioner in the consolidated representation proceeding, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that Respondent violated Section 8(a)(1) of the Act by interrogating its employees concern- ing union adherence and activity, by threatening employ- ees with loss of employment, by telling an employee he was denied a pay raise because of the union activity, and by creating the impression of surveillance; and that Respon- dent also violated Section 8(a)(3) and (1) of the Act by discriminatorily affecting the job tenure of employee Albert Strong because of his union or concerted activity. Respondent denies engaging in any unlawful conduct. In timely objections filed by the Union, it is alleged that Respondent engaged in conduct which interfered with the 202 NLRB No. 130 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation election held by the National Labor Relations Board on February 8, 1972. B. Background Respondent processes skins beginning with receipt of the rawhide from the slaughter houses through the finished leather product, primarily on customer orders. Its plant is located on several floors of a small building and is equipped generally with one machine for each processing step The 9 to 12 employees, for the most part employed as unskilled labor, are trained in from one to several hours to operate the various machines and equipment used. Vlas- timil John Surak and Slavomir Steve Surak are both active working partners in the operation of their tanning business where they are known respectively as John and Steve. Matthew Surak, their 77-year-old father, has worked for them since 1965. Except for the father of the partners and three senior employees who are Blacks, Respondent generally hires Mexican nationals many of whom do not speak English. Employee turnover is substantial and some employment is of short duration, keyed to production demands. Respondent's employees have not been represented by a labor organization. In early October 1971, the Union began its organizational drive by appearing in front of the plant as employees reported to work and by soliciting signatures on union authorization cards. Employee Albert Strong second in seniority at the plant, having worked for Respondent since 1966, signed such a card on October 18, 1971. Other employees, including Kacey Morgan, who was employed in 1965, also signed cards around that time. On December 14, 1971, a petition for a representation election was filed with the National Labor Relations Board, and on January 11, 1972, the Board directed an election at Respondent's plant among all full-time and regular part-time production, maintenance, and warehouse employees of Respondent who were scheduled to work for 20 hours a week or more. On the day of" the election conducted February 8, 1972, there were approximately nine eligible voters The election resulted in a 4-to-4 tie and the Union filed timely objections on February 11, 1972, alleging conduct affecting the results of the election, including coercive interrogation of employees as to their union membership and desires, threats of plant closure, deportation and/or loss of work permits and other reprisals, suspension and/or discharge of union supporters, a captive audience meeting within 24 hours of the election, and other election irregularities of accompanying employ- ees to the vicinity of the polling place, and designating a nonemployee observer contrary to the provisions of the NLRB Field Manual, section 11310. After investigating the matter, the Regional Director for Region 13 determined that substantial and material issues raised by these objections could best be resolved on the basis of record testimony and/or other evidence developed at a hearing and referred all objections to the Administrative Law Judge for hearing, resolution of credibility of witnesses, findings of fact, and recommendations as to the disposition of the issues raised in the representation proceeding. C. The 8(a)(1) Allegations Albert Strong, after signing the union authorization card, urged fellow employees individually tojoin the Union. He engaged in conversations of this kind almost every day until the election Strong testified that one morning shortly after the Union passed out authorization cards John Surak approached him at his work and asked if he had signed a union card. Strong replied that when he came to work "all the Mexican boys was signing, and the Union asked me and so I . . . signed." Around the middle of November 1971, as Strong was working, John Surak approached him and inquired whether he was for the Union. Strong replied in the affirmative John asked, "What seems to be the problem?" Strong answered: "All the Mexicans was signing so I signed." Surak stated- "A Mexican boy should know better because I can get a new Mexican every day." Early in January 1972, John Surak rapidly approached Strong's work area, asked whether he signed a union card and, with Strong's affirmative reply, quickly walked away. Late in January after the date for the election was fixed John Surak came to Strong and, reminding him that the representation election was coming up on February 8, 1972, told him that if he voted for the Union he "would be out of ajob" and "for the sake" of both (Surak and Strong) "to vote No." Surak added that Strong was "supposed to get a raise in October," but "since the Union came in he would not get it." Strong testified that he had not known he was supposed to get a raise in October. Employee Kacey Morgan testified that in October when the Union passed out cards he took one and signed it. About 3 days later, John Surak came up to him while he was working and said, "God, they're passing out union cards." Morgan responded, "Yes, I didn't sign." Morgan testified this was all that was said and this was the only time John Surak mentioned the Union to him. John Surak testified that he knew nothing of the union activity until October 1971, when two men from the Union came to the plant claimed to "have all the employees signed up" and demanded recognition. He denied asking Albert Strong whether he had signed a union card and denied that he ever had a conversation with Strong about the Union. He testified to one conversation with Strong about a pay raise near the end of 1971, when Strong asked him for a raise and he replied, "Albert, I can't give any raise right now because we have business with the Union going on, and I would be in violation to give you any increase right now." He asserted that this was their only conversation with reference to a raise. With respect to the testimony of Morgan, an employee still employed by Respondent who appeared under subpena, John Surak denied that he mentioned the Union. Surak testified that Morgan just came up to him and said, "John, I didn't sign any card," and that he answered, "I can't tell you one thing or the other way. Whatever you want to do." John Surak also denied engaging in any campaign for a "No" vote in the representation election or mentioning the Union to any employee in any way, with the exception of Strong in connection with the raise. The testimony of both Strong and Morgan was consist- ent under repeated questioning and their answers were NATIONAL RAWHIDE MANUFACTURING CO. 895 responsive to the best of their ability to understand the questions. Each was firm, forthright, and direct, and showed no tendency to embroider on the situation or conversation. They impressed me by their demeanor as witnesses who were sincere and honest. I credit the testimony of both. On the other hand, for reasons later indicated, I do not find John Surak a credible witness generally, and do not credit his denials concerning the incidents related above. On the basis of the credited testimony, I find that John Surak engaged in interrogation violative of Section 8(a)(1) of the Act, by asking Strong in October 1971, and again in early January 1972 whether he signed a union card and, in November 1971, whether he was for the Union. The November 1971 comment by John Surak that a Mexican boy should know better, in the context made, was clearly a threat to discharge card signers and union adherents and replace them with new employees and, as such, was violative of Section 8(a)(1). Similarly the electioneering comments of John Surak to Strong in late January were violative of Section 8(a)(1) not only because they contained a threat of job loss if Strong voted for the Union, but also because they implied that Respondent was withholding a raise due Strong because of his part in the union activity. Although I accept employee Morgan's version of the October 1971 statement by John Surak, I do not view this comment as sufficient to support a finding that Respon- dent gave employees the impression of surveillance, and I conclude that the allegation in the amended complaint to that effect is not established by the record. D. The 8(a)(3) Allegations Albert Strong was employed by Respondent from March 8, 1966, through February 14, 1972. As employees were leaving the plant at 4:30 on Monday, February 14, John Surak called to Strong, "You come back Thursday." Surprised, Strong stopped, then replied, "Okay." On February 16, Strong received a telephone call from John Surak advising him not to come in the next day but instead to go and apply for unemployment . Strong testified Surak said he would let Strong know when to come back to work. John Surak testified he told Strong to call in once in a while-maybe something would come up. Strong has never been recalled. In his 6 years of employment, Strong had been laid off twice because of slow business , once during the 1960's for a week of two and in 1970 for 2 or 3 days. During the course of his employment, Strong has performed most of the various work functions in the plant with the exception of certain machine operations.' The functions he performed included unloading skins delivered by truck from the slaughter houses, packing and loading finished leather, hanging hides or skins for drying, loading or unloading the tanning mills, the vats, and the machines, and other types of moving and hauling of the product at various stages of I When he was first employed , and up until 1970 when the customers for such leather ' preparation withdrew their accounts from Respondent. Strong's primary job function was as a leather finisher This job encompassed dying and hand polishing of prepared leather in this work Strong also ran the buffing machine During 1971 and 1972. his major assignment was that of trimming hides and leather He continued to run the the operation . He also assisted at the takeoff end of the fleshing machine and the splitting machine and trimmed cowhide splits . Other functions Strong performed included building maintenance, such as cleaning, painting, and cleaning sewers . Machines Strong has never operated are those designated as staking, wringing, fleshing, and shaving. Respondent claims that Strong was laid off for economic reasons, specifically because there was no work for him due to a drop in business. Additionally, John Surak gave as a reason for laying off Strong- "We lost some employees, and they claimed that he was threatening them because they did not vote for Union. And the employees were Jose Martinez and Gasper Martinez ." Steve Surak testified that John mentioned they were losing some experienced machine operators and would have to lay off some people.2 After associating the need for a layoff with the Martinez brothers' leaving, Steve then testified, We discussed these attitudes . . . I would [have] fire[d] him. I was afraid of him... . John is his boss. He is not going to obey my orders. . [Y]ou don't lay off a person for just one reason, especially when he was maybe five years with you. You put into consideration all the pluses and minuses in the fellow , and if the fellow is too detrimental to the company and its policy, then he has to go . . . his attitude . . . was the main portion on why we laid him off.... We lost three good men around that time , sir, the ones that were the key men in the company. . . Jose Martinez, Gasper Martinez, and Javier Hernandez. They all were working on the machines. Now, when they quit our production went down until we could train new men for the particular work . . . one of them mentioned his [Strong's] name as the reason for leaving . . . . his attitude . . . was declining . from December on . . . he was just like [he] owned the place To support the asserted economic reason for Strong's layoff, Respondent presented testimony that the business has peak and slow periods and supplied statistical excerpts from its records for the 12 months from July 1971 through June 1972, giving hours worked and the number of employees weekly together with the total man-hours and sales monthly. Steve Surak, who handles the payroll, billing, and customers , as well as some of the work in the plant, testified that business changes were not on a day-to- day basis but rather that one could usually see business swings for a week or two ahead. John Surak testified that business was slow the second half of February through March and April, dropping in February from a first half of $15,000 to a second half of $6,700. Analysis of the records supplied shows that February 1972 sales were the second highest of the 12 months, topped only by June 1972, that March and April 1972 were substantially comparable to October through December 1971; and that the second half of the fiscal year far exceeded the first half, negating the allegation that buffing machine These duties did not lake up all of his working time and Strong was used to perform various other Jobs In February 1972. about half of his worktime was spent in buffing and trimming 2 I do not credit Steve's assertion that he and John did not discuss Strong's layoff in February His testimony shows him too conversant with the considerations which are advanced as the reason for terminating Strong 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was entering a business slump. Further, the highest number of hours worked per man was in the month following Strong's termination. In addition there appears no direct correlation between the total man-hours worked in a given month and the total sales for that month.3 The only pattern readily apparent from the business statistics presented would indicate that increases and decreases in man-hours precede rises and drops in sales, respectively, by about a month-but even this pattern is not consistent. The figures given do, however, suggest that Respondent was not entering a business stage which would normally require a layoff.4 For the foregoing reasons, I reject Respondent's contention that the layoff of Strong was necessitated by a drop in business. There is another economic factor which, although not specifically explicated, is implied in the testimony of Respondent's witnesses. This is that in a one-product operation where completion of any item requires sequential processing through various stages, the cessation of one or two stages will cut off the work for the succeeding operations, thus requiring layoffs at the end of the process until the stalled function is restored. If Respondent lost two of its experienced machine operators and had no working replacements for them, it would follow that leather was not available in a stage for buffing, trimming, or packing and shipping, major functions performed by Strong, until those operations were restored The testimony establishes that training a new operator for those machines takes only from 1/2 to 2 hours, thus any delay in resumption of the flow of the product was dependent only upon the speed with which new untrained employees could be hired, or present employees shifted and trained. Such circumstances might require an immediate layoff of a couple of days, which was the length of time initially given Strong by John Surak. The question, however, is not whether a case of economic justification for a short-notice short-term layoff can be made but whether this was Respondent's motiva- tion in deciding to lay off, then terminate, Strong. John Surak testified that Strong was not assigned to machine 3 Thus, for August 1971 there are reported approximately 1,250 man- hours, the least worked during any month in the entire fiscal year, with weekly payrolls of from 8 to 11 employees, but sales were the third highest in the year The highest total man-hours worked in any month is reported for July 1971, a near median month in sales 4 The February breakdown, standing alone, is meaningless in relation to Respondent's major premise of layoff necessitated by a general drop in business A breakdown for other months was not given Such a drop in the last half of the month could be a normal business phenomenon for any month It could also be related to failure to ship to, or bill, customers In the circumstances, if it is unusual, it would seem more reasonable to attribute the drop in sales to the events which were taking place at the plant The election was conducted on February 8, Jose Martinez, the wringing machine operator, quit, having last worked on Saturday, February 5, Gasper Martinez, also a machine operator, quit on February 12, Strong was laid off on February 14, and, Javier Hernandez, another machine operator quit on February 16 With such disruptions, and decrease in the working force it would seem logical that, in a small operation like Respondent's where production, as well as shipment and billing, is directly geared to customer requirements rather than placed in inventory production would suffer and this immediately would be reflected in the sales posted for that period 5 According to John Surak he offered Strong the staking machine job when Strong was hired, and thereafter every time somebody quit on that machine, or was absent from work, but Strong was not "interested to learn any work on any machine " John Surak later indicated he asked Strong to operation work which was available at the time of his layoff because he had in the past repeatedly refused to learn to operate any machme.5 Strong testified that early in his employment when an aged employee who was the staking machine operator did not report to work John Surak asked him to fill in and he declined. Again, once in 1968, after the position of staking machine operator became vacant and John Surak was having difficulty getting and keeping an operator, John said to him: "You are a steady worker, why don't you take this job?" Strong again declined. Surak asked him whether he was afraid of the machine and Strong replied, "Not really, I don't dig it." Strong testified that he was not "afraid" of the machine, but "maybe a little shy."6 Strong denied he was ever given an opportunity to learn any other machine although he would have been willing to learn others "but not the staking machine." He added he never asked for the opportunity to learn any of the other machines because he had too much other work to do. Indeed, just a month before he was laid off, Strong was told to train a new employee, Jose Enriquez, to run the buffing machine. Strong testified that, during his employ- ment, Surak never said anything to indicate his disapproval of Strong's work in any way. Occasionally, John Surak would say, "That is nice. . that is good." Here John Surak's tendency to build up his initial testimony is apparent in regard to both the frequency with which Strong was offered an opportunity to change to a machine operator and the number of different types of machines offered. I can credit only the testimony that operation of the staking machine was offered Strong. However, there is no credible evidence that this was offered to him at any time after his regular leather finisher work had ceased in 1970. Clearly, Strong's fear of operating this machine was well known to his employer, but that machine was not vacated at the time Strong was laid off 7 Moreover, Strong performed many duties in addition to buffing, trimming, packing, and shipping which learn to operate some machine "every month" "over a period of 7 years " He stated the last time he asked Strong was in October 1971, when Glan Woods quit the wringing machine The last time was changed to November or December 1971, then to December 14 when he asked Strong to take the shaving machine because the operator quit Again this date was changed to February 7, the Monday Martinez failed to show up, when assertedly John gave Strong an opportunity to learn the wringing machine Steve Surak testified that he had asked Strong several times why Strong did not want to run the staking machine and Strong once said he would rather quit than work on that machine 6 The staking machine is used to soften leather Strong stated "Your hands are right there," and he regarded it as a little more dangerous than other machines John Surak described the staking machine as being like giant jaws opening and closing and at the same time pulling the leather The operator has to hold the sheet of leather on the table and keep moving the leather while the jaws are opening and closing, coming close to the operator and going away Strong's "shyness" of this machine apparently was well known in the plant ' Respondent's records and John Surak's testimony disclose that George Sierra, employed November 6, 1970, was the staking machine operator and that he quit on December 14, 1971, that Angel Enriquez was employed December 16, 1971, to operate the staking machine, and that the latter learned the job in 30 minutes Angel Enriquez was still so employed at the time of the hearing Thus, clearly the staking machine was not one of those vacated during the crucial period in February 1972 NATIONAL RAWHIDE MANUFACTURING CO related to steps in the tanning process preceding the halted machine operation.8 To verify the asserted lack of regular work for Strong, Respondent claims that it had never hired a replacement to perform Strong's job;9 that Morgan is performing the buffing in addition to his regular work of operating the drying mills; and that Matthew Surak is doing the packing and, with various other employees, the leather trimming. John Surak's testimony indicates that Jose Florez, hired April 13, works primarily as a hide trimmer and as a helper in fleshing whenever two men are required to handle heavy hides; Jose Soto, employed May 1, works on "setting out," fleshing, staking, and wringing, and is used wherever he is needed; and Hermiho Perez, who was hired April 24 and quit just before the hearing, was primarily a hide trimmer who worked about 30 hours a week, helping with pulling hides out of the mills and vats, loading vats, and "all the work that has to be done." 10 In addition, Jose Enriquez, hired January 17, 1972, and a relatively new employee at the time Strong was laid off, performs work of the type generally assigned to Strong, including trimming, pulling and putting mills, and setting up machines. This employee trimmed most of the time until Nyola quit on April 24, when he went to flesher machine work. It is not clear whether this was as a machine operator or as a helper. It is clear from the testimony that from the time of Strong's layoff not only were employees with no seniority, as compared to Strong's standing, performing work of the type normally assigned Strong, but also new employees were hired and assigned duties which Strong had previous- ly performed. In view of the foregoing, including my resolution of credibility, I find that Respondent's economic defense is without substance, and not the reason for Strong's layoff or discharge. The other reason advanced for Strong's layoff and termination may be categorized generally as his "attitude " It was also characterized as the "main portion" of why Strong was laid off. Strong was blamed for the quits of the Martinez brothers. John Surak testified he had come upon Jose Martinez, at 7:30 on Thursday morning following the election, carrying his lunch presumably to another job. This would place the event as occurring on February 10, 1972. John attempted to persuade Jose to return to his job 8 There is no clear indication what machine Gasper Martinez and Javier Hernandez operated or whether they were regular or substitute operators However, the evidence shows that on February 21, Respondent hired Jose Gonzales to operate the wringing machine vacated by Jose Martinez and Gonzales quit on March 7 His replacement, Jose Luis Zuniga, was hired April 3, but quit on June 5 Davis Ledesma, employed February I, 1972, was the fleshing machine operator He did not quit until April 24 Maurio Nyola hired March 6 as a fleshing machine operator also quit on April 24 Henry Gardner was hired March 9 as a shaving machine operator As noted, supra, the staking machine was not vacated at the time of Strong's layoff It would appear, therefore, that Gasper Martinez was the regular shaving machine operator and that Hernandez, who quit after Strong's layoff, was the extra fleshing machine operator as Strong testified This information otherwise taken from John Surak's testimony contradicts his assertion that when Strong was laid off operators were needed for the staking machine and the fleshing machine 9 John Surak stated that on February 14 they had 12 employees, the highest they had since that date is I I However, Respondent's records in evidence reveal that the 12 employees worked during the week ending February 11, Jose Martinez had quit that week which had reduced the number going into the following week Gasper Martinez did not quit until February 12 which would have further reduced the number to 10 before 897 with Respondent and immediately to accompany him to his place of business. Jose Martinez refused reportedly saying only "Mucho trouble, Albert" which John interpret- ed as a claim that Strong was threatening the Martinez brothers "because they didn't vote for the Union." This conclusion was reached apparently despite the fact that the Union was not mentioned by Jose. John Surak explained, he just decided that Jose Martinez was scared; there must be a reason; and, the reason must be connected with the election because he had lost three experienced employees the week of the election.ii However, Respondent presented no information regarding any specific threat allegedly made by Strong and denied having knowledge as to how individual employees voted. ' The inability to explain how the statement "Mucho trouble, Albert" translated into the conclusion that Strong was threatening the Martinez brothers because they did not vote for the Union refutes the assertion that Respondent had no knowledge of Strong's prounion sentiments and activities until this case arose. The offensive attitude for which Strong was condemned to termination is otherwise identified only as acting "just like [he] owned the place" since December 1971. Signifi- cantly, this period encompasses events related to the election; namely, the filing of the petition on December 14, 1971, the issuance of a decision directing the election January 11, 1972, the election on February 8, which resulted in a tie vote, and the effort to have the election set aside by objections filed on February 11 and duly served on Respondent. Also significantly, this was the period during which Strong steadfastly adhered to his initial stand favoring union representation in the face of repeated interrogation, threats, and stated wage reprisal. On the basis of the foregoing, I find that Respondent had knowledge of Strong's preference for union representation and his activities on behalf of the Union and that this was the "attitude" for which he was laid off and then terminated 12 when it appeared the question concerning representation could be put to another vote. Such action is clearly violative of Section 8(a)(3) of the Act. Even if Respondent did postulate from the conversation with Jose Martinez that the latter did not wish to return to work because of Strong's union advocacy, absent a showing that Strong was laid off His termination reduced the complement to nine Javier Hernandez quit February 16, leaving eight employees going into Respon- dent's payroll week of February 19-25 This was precisely the number reported for that week and refutes the argument that the total number of employees on the payroll establishes Strong was not replaced 10 John Surak testified at first that Perez was primarily a trimmer, but on further examination testified that there was only about 2 hours a week of this work for him to do Elsewhere he testified that "Sometimes i have two men on trimming, other times I have three," and that the week before the hearing Jose Florez performed trimming every day because there was no occasion for him to help in fleshing 11 Jose Martinez quit before the election and would have been ineligible to vote Gasper Martinez last worked on February 12, after his alleged conversation with Jose Martinez, and Javier Hernandez last worked on February 16, 2 days after Strong's layoff, and presumably was still working when Strong received the call advising him to apply for unemployment benefits 12 Although Respondent apparently uses layoff and discharge inter- changeably on its records and in testimony, it appears that in the case of Strong the initial action was a 2-day layoff changed on the second day to termination However, the record would indicate that the motive for both actions was the same 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such advocacy took an unlawful form discharge for this reason is unlawful under Section 8(a)(1) of the Act.13 Although not specifically articulated as a reason to deny Strong reinstatement, Respondent presented testimony implying that Strong was an undesirable employee because he had a dangerous temper and a drinking problem. With respect to Strong's temper, all witnesses generally agree that a single incident took place in which Strong threat- ened Steve Surak with an iron bar normally used to operate the bailing machine. Various dates for this incident are given ranging from 1968 to early 1970, but all indicate that it occurred before the advent of the Union. The incident arose out of a dispute between the partners concerning Strong's work assignment. A composite of the testimony indicates that, upon losing the job assignment argument to his brother, Steve threw a skin over Strong's head, Strong reacted in anger and turned to Steve who had a large pair of hide trimming scissors in his hand. Strong grabbed the bailing bar and approached, or chased, Steve but was disarmed by John Surak and Morgan. Steve then fired Strong, but John rescinded this, telling Steve that Strong just lost control and would not do it again. Later that day Steve apologized to Strong excusing the incident on the ground that all three had hot tempers. Except for any personal rancor Steve has harbored which might cause him to feel particularly unsympathetic to Strong, this incident is clearly irrelevant to this proceeding, as Strong continued thereafter as a regular employee without any further occurrence of this nature which would warrant giving it weight in assessing his employability. With regard to Strong's alleged drinking problem, John Surak at first testified to a single incident of allegedly catching Strong on a Saturday in January 1972 in the dressing room having a drink from a bottle and comment- ing to him, "I see you are on the booze again." John indicated he sent Strong home at 10:30. Later he testified "we" sent him home about 11:30. At another point he indicated, "He [Strong] was going home" about 12. Finally, in answer to the question, "Who sent him home, if you know," John replied, "Who sent him home? My brother did, yes. My brother did." Also from this single incident in January, John's testimony expanded into the assertion that Strong reported drunk every Saturday he was called and Respondent had to send him home until it was decided not to call him again.14 Suffice it to say Steve Surak's testimony does not corroborate that of John in any detail Steve testified John had told him of catching Strong in the dressing room with a bottle, but significantly he relates nothing about his or John's sending Strong home. Steve testified his belief that Strong had a drinking problem rested upon Strong's reporting practically every Monday morning "not exactly drunk" but "smelling like a whiskey barrel," and that a year ago he spoke to Strong about the dangers of their work when one drinks, at which time Strong denied ever drinking on the job. '3 See N L R B v Burnup and Sims, Inc, 379 U S 21 14 Other inconsistent and self-contradictory statements on this and other subjects go far to discredit John Surak as a truthful and forthright witness Interestingly, John testified that Strong was the only employee working that January Saturday and that he was running the buffing wheel, work which John Surak indicated at another point was so scarce that it required only a couple of hours a week Also worthy of note is John Surak's testimony that Testimony of Strong and Morgan negate the charge that Strong ever drank on the job, ever came to work drunk, ever was sent home for drinking on Saturday or any regular workday, ever lost time from work because of drinking, ever was accused of having a drinking problem or of being drunk by either of the brothers, or ever received any indication that the Suraks thought he drank. Morgan testified he had never detected alcohol on Strong at work or anywhere else. Strong's reaction to the very idea of the drinking charge was one of amazement and righteous indignation which appeared most genuine and persuasive. On the basis of the credible testimony, I find the assertion that Strong had a drinking problem to be without merit, and that nothing has been presented which would affect Strong's employability. IV. RECOMMENDATION ON OBJECTIONS TO THE ELECTION Steve Surak testified that the polling place was across the street from the plant and that he walked his aging father across the street because of traffic, leaving him near the polling place. He admitted that another employee followed close behind. I find this evidence insufficient to sustain the objection that Respondent deprived employees of their right not to vote in the election. No testimony or evidence other than the foregoing and that relating to the unfair labor practices herein found was elicited to prove the substance of the other objections. As I have found that between December 14, 1971, when the petition was filed and February 8, 1972, when the election was conducted, Respondent engaged in unlawful interrogation, and threats of reprisal encompassed by Objections I and 2, I recommend that the election be set aside and a new election be ordered at the earliest date consistent with administrative convenience. In the absence of sufficient evidence with respect thereto, no recommendation is made as to the disposition of the other objections. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship 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. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A broad "Once we didn't pay him [Strong] overtime because he lost the time during the week, and he said that was the last time he would work on Saturdays, but then we paid him overtime every time he came on Saturday " Saturday work was voluntary It would seem most unusual that an employee who turned up drunk and unable to complete the day's work every Saturday he was called would nevertheless be called again and again and paid overtime whether or not he had performed his 40 hours that week NATIONAL RAWHIDE MANUFACTURING CO 899 cease-and-desist order is warranted, in view of the discriminatory discharge and other violations.15 In addition, I shall recommend that Respondent offer reinstatement with backpay to Albert Strong. In accord- ance with usual requirements, reinstatement shall be to Strong's former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges Strong shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the date of termination (February 14, 1972) to the date of a valid offer of reinstatement, less net earnings during such period, with backpay and interest computed under the established standards of the Board.16 It will be further recommended that the Respondent preserve and, upon request, make available to the Board all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the rights of reinstatement under the terms of these recommendations. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 The Respondent, S. S. Surak and J. V. Surak d/b/a National Rawhide Manufacturing Co., Chicago, Illinois, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union views, activities, adherence, or membership or other concerted activities for mutual aid or protection. (b) Threatening employees with reprisal by job loss or withholding of wage increase for their membership in, activities on behalf of, or voting for Warehouse and Mail Order Employees Union, Local 743, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization. (c) Discouraging membership in the aforesaid Union, or any other labor organization, by laying off or terminating employees, effecting other reprisals, or in any other manner discriminating against them in regard to their hire or tenure of employment or any terms or conditions of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Albert Strong reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his termination in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy." (c) Post at its plant copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 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. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Further, IT IS ORDERED that Case 13-RC-12624 be severed from this proceeding and remanded to the Regional Director for Region 13 for his disposition. 15 N L R B v Express Publishing Co, 312 U S 426. N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4) 16 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating Co, 138 NLRB 716 it In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 11 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice; and we intend to carry out the order of the Board, and abide by the following: WE WILL NOT ask you anything about your union activities in a manner which would coerce you regarding your rights under the Act. WE WILL NOT threaten you with loss of job or withholding of wage increases, or other benefits, to keep you from joining or supporting a union, or to influence you regarding your votes in a Board election. WE WILL NOT discourage membership in Warehouse and Mail Order Employees Union, Local 743, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by laying off, terminating, or discharging employees, withholding wage increases, or in any other manner discriminating in regard to their employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed employees in the National Labor Relations Act, which are as follows: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. Since it has been found that we unlawfully laid off and terminated Albert Strong, WE WILL offer to give him back his regular job or, if thatjob no longer exists, we will give him a substantially equivalentjob, and WE WILL pay Albert Strong for the earnings he lost because of the discrimination against him, plus 6-percent interest S. S. SURAK AND J. V. SURAK D/B/A NATIONAL RAWHIDE MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881, 219 South Dearborn Street , Chicago, Illinois 60604, Telephone 312-353-7572.