Pillows of California

PILLOWS OF CALIFORNIA 369 Pillows of California and Los Angeles Joint Board of the International Ladies' Garment Workers' Union, AFL-CIO. Case 21-CA-11375 November 15, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 26, 1973, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and the General Counsel 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. The complaint alleged that Respondent unlawfully refused to reinstate economic striker Florence Her- man after her unconditional offer to return to work. The Administrative Law Judge found no voilation in Respondent's not recalling Herman because Her- man's job had been absorbed by supervisors and other employees. He dismissed the 8(a)(3) allegation as to Herman, stating that the General Counsel had not met his burden of proving that Respondent was motivated by antiunion considerations while Res- pondent had advanced "a plausible case" for its conduct. The General Counsel excepted to the dismissal on the ground that the economic striker's right of recall is not dependent on a show of antiunion motivation and that it was Respondent's burden to prove substantial economic justification for failing to recall Herman, a burden that the General Counsel contends Respondent did not meet. We agree with the General Counsel as to the appropriate rationale for determining when an economic striker is entitled to reinstatement, but we find that Respondent has proved its economic defense. We therefore adopt the findings and conclusions of the Administrative Law Judge but do not wholly adopt his reasons therefor. i The findings and conclusions, particularly that Florence Herman was not a supervisor, are based, in part, on the credibility resolutions of the Administrative Law Judge, to which Respondent excepts. On the basis of our careful review of the record, we conclude that the Administrative Law Judge's credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing those The Administrative Law Judge found, crediting Respondent President Cole, that during the econom- ic strike, which began on September 20, 1972, and ended on October 30, 1972, Respondent hired some permanent striker replacements. He further found that Cole, Supervisor Spring, and the striker replace- ments divided up Herman's duties and. performed her work. These several people were continuing to perform the duties previously done by Herman as of March 2, 1973, the time of the hearing in this case. The hearing was, held 4 months after the strike ended. In effect, Herman's former job no longer existed because, prior to her offer to return to work, the job duties had been divided up and assimilated by others. Cole also testified that he had no job openings for Herman and that he has recalled other strikers but has not hired any new employees. As the Board stated in The Laidlaw Corporation,2 an economic striker after a strike retains his status as an employee and, in the absence of his having obtained substantially equivalent work, is entitled to reinstatement "absent substantial' business justifica- tion, and regardless of [a respondent's] union animus." The burden-of establishing the defense that the unreinstated striker was no longer necessary to the company rests with the employer. We find that Respondent Employer has met that burden in this case. 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, Pillows of California, Los Angeles, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. findings. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 185 F 2d 362 (C.A. 3, 1951). 2 171 NLRB 1366, 1369, enfd. 414 F 2d 99 (C.A 7, 1969), cert denied 397 U.S. 920 (1970) DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On March 1 and 2, 1973, 1 presided over a hearing at Los Angeles, California, to try issues raised by a complaint issued on December 15, 1972,1 on the basis of a charge and i Read 1972 after all future date references omitting the year 207 NLRB No. 55 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an amended charge filed by Los Angeles Joint Board of the International Ladies Garment Workers' Union, AFL-CIO,2 on November 7 and 16, respectively. The complaint alleged that Pillows of California3 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereafter called the Act), by hiring two new sewing machine operators after six striking sewing machine operators unconditionally offered to return to work, by failing to offer recall to a seventh striker, and by interrogating the seventh striker concerning union mem- bership, activities, and sympathies. The Company concedes it hired two new sewing machine operators after receipt of an unconditional offer by six striking sewing machine operators to return to work, but alleges it did so because the Company and the two employees reached agreement on their hire. as permanent replacements for the strikers prior to its receipt of the strikers' offer. The Company contends the seventh striker was a supervisor at all times pertinent, that she was not recalled because her duties were absorbed by other employees during the strike, that neither she nor eight other strikers have been recalled because there isn't any need for their services, and that it was not discriminatorily motivated in failing and refusing to call her. With respect to the alleged interrogation of the seventh striker, the Company,alleges she was a supervisor at the time of the alleged interrogation and denies she was interrogated concerning union membership; activities, and sympathies. The issues thereby joined by the parties and litigated at the hearing were: 1. Whether the seventh striker (Florence Herman) was a supervisor at times pertinent; 2. Whether the Company interrogated Herman concern- ing union membership, activities, and sympathies; 3. Whether the Company failed and refused to recall Herman because of her union membership, activities, and sympathies; and 4. Whether the two sewing machine operators who commenced work after the striking sewing machine operators offered to return to work were hired previous to the offer. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Compa- ny. Based upon my review of the entire record,4 observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find that the Company, at all times material, was an employer engaged in commerce in a business affecting commerce, and the Union' was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company is a manufacturer of decorative pillows. In August 1972, the Union commenced an organizational drive among the Company's nonsupervisory employees culminating in a petition for certification filed with Region 21 in early September (Case 21-RC-12874). At the time the petition was filed, the Company conducted its operations on two floors; the cutting and sewing department and operations were on the basement floor; the buttoning and finishing department, shipping department, blowing room, and closing machine opera- tions were on the first or main floor, as were the Company's offices. Harvey Cole, the Company's president, exercised general control, direction, and supervision of the Company's operations throughout; Max Spring exercised general supervision over the first floor production and mainte- nance employees and operations; Elias Landen exercised general supervision over the basement floor production and maintenance employees and operations. Cole, Spring, and Landen were salaried, were not paid overtime, and did not punch timeclocks 5 A recognition strike against the Company commenced on September 20 and lasted until October 30, when the Union made an unconditional offer on behalf of all the strikers to return to work. At the time the strike began the Company employed approximately 25 nonsupervisory employees, with approxi- mately 13 of the 25 working on the first floor. At the time the strike began, Maria Cervantes, Kittie Cosby, Alicia Moreno, Elvira Nunez, Maria Reyes, and Benita Torres were employed by the Company as sewing machine operators on the basement floor and Florence Herman was employed in the buttoning and finishing department on the first floor. All seven of these employees went on strike on September 20 and remained out on strike through October 30. B. The Supervisor Issue In defense to the allegations that Florence Herman was discriminately interrogated and not recalled, the Company alleges at all times pertinent she was a supervisor, as that term is defined in the Act. In support thereof, Cole testified Herman was in charge of the buttoning and finishing department for 3 to 4 years preceding the September 20 strike, that she hired, fired, laid off, disciplined, and directed the work of the employees in that department, was paid a correspondingly higher rate, was on a safety committee limited to supervisors, and only she and other supervisors used the telephone. Y Hereafter called the Union. 5 It is undisputed that Cole, Spring, and Landen were supervisors and 3 Hereafter called the Company agents of the Company acting to its behalf at all times pertinent and I so 4 The General Counsel's unopposed motion to correct the transcript is find. granted PILLOWS OF CALIFORNIA 371 Herman testified she did not lure, fire, lay off, or discipline department employees; that approximately I hour per day she turned, cleaned, buttoned, and bagged pillows and the balance of the workday kept a constant check of button inventories, set up the work for the buttoning employees and kept it flowing by placing buttons at the worktables matching pillows to be buttoned as -the pillows came through,6 placed orders by telephone with outside manufacturers for buttons, saw that the proper materials were supplied to such manufacturers and picked up by them, checked delivered buttons to see if they matched specifications, and made buttons at the plant when necessary.7 She testified she was unaware of any instructions only supervisors were to use the telephone and observed senior employees regularly use it without warning or discipline, namely, Gussie Morgan, Kittie Cosby, and Ron Tribble. This testimony was uncontradicted and is credited. She corroborated Cole's testimony that, following initial interviewing and testing by the office staff and Landen and hire, she showed new- employees in the department the work and answered Cole's questions concerning their abilities thereafter, but further testified other department employees in the department also showed new employees the work and answered Cole's inquiries regarding their abilities, particularly Spanish-speaking employees.8 Her testimony to this effect was corroborated by another departmental employee, Marina Arevalo, was uncontrad- icted, and is credited. Cole testified to one alleged specific discharge by Herman. He testified Herman discharged Atheree Wadley in March. Herman denied she did so. The November payroll printout supports Herman, inasmuch as it shows Wadley as currently employed from a hiring date of June 12; i.e., not from a date of rehire following an alleged August termination. Her denial is credited. Cole testified to one other specific instance wherein Herman allegedly exercised supervisory authority. He testified Herman came to him with a report that a janitor, Rivas, refused to sweep the floor in the department when told to do so by Herman; that he went with Herman to Rivas and told Rivas to sweep if Herman told him to do so; that Herman was his supervisor and if he refused to obey her again, he would be fired. Herman corroborated Cole's testimony in part, testifying she did go to, Cole with a complaint over Rivas' refusal to sweep the floor at her request and that Cole accompanied heir. to the floor and directed Rivas to comply with her request; she denied, however, that he told Rivas Herman was his supervisor and he was to take orders from her or risk discharge. Herman went on to testify that various departmental employees asked Rivas to sweep the floor when they noted an overabundance of tacks on the floor, particularly the Spanish-speaking employees in the depart- ment who could speak to Rivas in Spanish. Arevalo corroborated Herman's testimony to this effect, it was uncontradicted, and is credited. Herman testified at no time was she informed by Cole or Spring or any other management representative that she was a supervisor with power to hire, fire, lay off, or discipline employees but on the contrary was informed by both Cole and Spring that Spring was her boss and she was to take orders from Spring.9 Arevalo testified without contradiction that on one occasion Spring told her he was her boss and she was to take orders, from him, not Herman.1o While an employee called by the Company, Lindsey Rhone, testified that when she formerly worked in the buttoning and -finishing department (several years prior to the strike; she was employed for a substantial period immediately prior to the strike in the cutting and sewing department), she observed Herman passing out work and "bawling out" some of ` the employees. She was unable to cite any instances where she saw Herman hire, fire, transfer, lay off, or discipline any employees. Under cross- examination, she described her position in . the cutting room as a "floorlady" and her duties as similar to those she observed Herman perform on the first floor, namely, distribution of materials to keep the work flowing smoothly (she distributed welt, thread, zippers, etc.). While another employee, Ron Tribble, testified he held Herman's job some 6.years prior to 1972 and exercised supervisory functions, he failed to testify to any observance of Herman's exercise of such functions during her job tenure. Spring testified that Herman "ran" the buttoning and finishing department and he confined himself to the shipping room and the shipping function; he failed to recite any specific instances of Herman's conduct on the job other than following special orders through the department at his request and conceded he told Herman he was the boss. Insofar as Herman's rate of pay is concerned ($2.45), it is noted that Gussie Morgan, who is listed on the computer printout in the same department as Herman (103) received $3.00 and had a hiring date of 9/17/56; Johnny Stephens of the same department received $2.85 and had a hiring date of 8/7/58; Poli Hernandiz of the same department received $2.25 and had a hiring date of 10/ 12/72; Salvador Mendez of the same department received $2.10 and had a hiring date of 9/21/72; and Augustin Dominquez received $2.00 and had a hiring date of 10/16/72. Herman's hiring date was 4/18/61. It appears from the foregoing that Herman's rate is as readily attributable to her length of service vis-a-vis other employees classified in department 103 as to any alleged supervisory capacity. With reference to the safety committee, the record discloses Herman attended one meeting thereof, that Spring, Landen, Cole; and a Mr. Joseph Langendahl of the State Compensation Insurance Fund attended, and attend- ed no further meetings. The record further discloses that a nonsupervisory employee, Richard Haase, attended a subsequent meeting. 6 It is undenied that the employees also at tunes secured pillows and Spring after some attempts to evade the question confirmed that he matching buttons themselves. told Herman on several occasions he was her boss. 7 She also followed special orders through the department as directed by 10 Spring confirmed that he gave orders to all employees in the buttoning Spring from time to time and finishing department 8 The Company employed a large number of such employees 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On balance, I find and conclude that Florence Herman was a working leader within the buttoning and finishing department, charged with the duty of supplying materials and maintaining a smooth work flow, with the incidental duties of maintaining button inventories, making buttons, and ordering buttons from outside suppliers with little or no exercise of independent judgment. In the small workforce involved, supervisory authority was exercised by Cole and his two floor foremen, Spring and Landen. I therefore find and conclude that at times pertinent to this proceeding, Florence Herman was not a supervisor and agent of the Company acting on its behalf. C. The Alleged Interrogation Herman testified that on September 18, 2 days before the strike commenced, she was called from the floor into Cole's office at about 4:00 p.m. and questioned by Cole and his attorney, Wilson Clark," about, as she put it, "how did the Union get in." Cole and Clark confirmed the fact Herman was called into Cole's office on the date and at the time indicated. The interview was scheduled by Cole, at Clark's request, because Cole informed Clark (who had been retained to represent the Company in the representation case) that Herman was named as one of the members of the Union's organizational committee in a letter he received from the Union and he (Cole) considered her a supervisor. Clark wanted to interview Herman to ascertain whether she was a supervisor and, if so, whether her activities on behalf of the Union were sufficient to provide a basis for seeking dismissal of the Union's petition for certification.12 Cole introduced Clark to Herman when she appeared and Clark told Herman he wanted to ask her some questions.13 Clark explained to Herman that if a supervisor assists a union in its organizational drive among a company's employees, this may constitute grounds for dismissing that union's petition for certification as the exclusive collective- bargaining representative of that company's employees; he then showed her a book containing an analysis of the factors which constitute supervisory status14 and ques- tioned her concerning the factors listed; she replied in the affirmative to many of his questions and he informed her she was a supervisor; he next asked her whether she had solicited employees to sign cards authorizing the Union to represent the Company's employees and she replied that while she signed a card, because other employees also were signing them, she did not ask any other employees to sign cards. Clark closed the interview with a warning that Herman, as a supervisor, owed a duty of loyalty to the Company and should desist from any union activity; informing her any statements she made would have the effect of binding the Company and her participation in union activities 31 I find that Clark was an agent of the Company acting on its behalf at all times pertinent. 12 On the ground the Umon's showing of interest was tainted by virtue of such activities. 13 Clark prefaced his questions with a statement that Herman did not have to answer his questions, that no reprisals would be taken against her if she refused to answer, and that he did not want to know the identity of the Union's supporters or the union sentiments of the employees therefore would neither benefit the Company nor the Union. On the basis of the foregoing, I find and conclude that the Company, by Clark, interrogated Herman on Septem- ber 18 concerning her and other employees' union activities but that, in view of Clark's prefatory remarks and good-faith belief she was a supervisor, it would not serve the purposes of the Act to find that by such interrogation the Company violated Section 8(a)(1) of the Act. D. The Alleged Discrimination Versus Herman As set out heretofore, the Union notified the Company in September, in writing, that Herman was one of the members of its organizing committee. Herman participated in the strike from its inception on September 20 until its expiration on October 30 and was included in the Union's October 30 unconditional offer on behalf of all the strikers to return to work. Neither Herman nor eight other strikers had been recalled by the time this hearing occurred-on March 1 and 2, 1973. The General Counsel alleges the Company failed and refused to recall Herman because she engaged in activities on behalf of the Union and relies primarily on the interrogation described above as evidence of such motiva- tion. Cole testified that Herman is only one of nine employees who have not been recalled and that she has not been recalled because, in the course of the strike, her job duties were assigned to various supervisory employees and employees hired during the strike as permanent striker replacements. He testified he, Spring, and an employee hired during the strike named Betty Jean Smith plus other striker replace- ments, both during and since the end of the strike, have carried out Herman's job duties heretofore described. He stated no need had arisen for either the services of Herman or eight other strikers 15 since the strike ended. The General Counsel failed to develop any evidence that any vacancies have occurred and been filled in the buttoning and finishing department since the strike ended which Herman could have performed. In my judgment, the General Counsel failed to meet his burden to establish, by prima facie evidence, that Herman was not recalled to her former job prior to the hearing because she engaged in the strike and supported the Union prior thereto, while the Company has advanced a plausible case 16 for its failure to recall Herman at any time prior to the hearing. I therefore shall recommend that those portions of the complaint so alleging be dismissed. 14 The Labor Relations Expediter published by the Bureau of National Affairs. Herman conceded she was shown the book. 15 The record fails to disclose the job classifications or departments in which these eight strikers were employed prior to the strike, except to the extent it is undisputed that all sewing machine operators have been offered recall (see discussion in Sec. E) 16 Cole's testimony recited above is uncontradicted and credited. PILLOWS OF CALIFORNIA 373 E. The Alleged Discrimination Against Cosby, Nunez, Torres, Cervantes, Reyes, and Moreno It is undisputed that sewing machine operators Kittie Cosby, Elvira Nunez, Benita Torres, Maria Cervantes, Maria Reyes, and Alicia Moreno went on strike against the Company in September and that on October 30 the Union made an unconditional offer on their behalf to return to work. It is likewise undisputed that Herlinda and Ramona Martinez commenced work as new employees 17 (sewing machine operators) 4 days later, on November 3. It is further undisputed that with the Company's December 1 offer to recall Moreno, all of the Company's striking sewing machine operators were offered recall. Cosby was recalled on November 16; Nunez was recalled on November 22; Torres was recalled on November 27; Cervantes was recalled on November 30; Reyes was offered (and declined) recall on November 27; and Moreno was offered (and declined) recall on December 1. The General Counsel contends the hire of Herlinda and Ramona Martinez as new sewing machine operators following the unconditional offer by striking sewing machine operators Cosby, et al. to return to work delayed their recall and thereby violated Section 8(a)(3) and (1) of the Act. The Company contends that while Herlinda and Ramo- na Martinez commenced work after Cosby, et al. offered to return to work, the Company hired the two Martinez women as permanent strike replacements for the striking sewing machine operators on October 23, prior to the strike's end, thus the fact they reported for work after the strike ended did not delay the recall of Cosby, et al. and thereby violate the Act. The issue turns on whether or not the two Martinez women were hired as permanent employees on October 23. Both Herlinda Martinez and Cole agreed they spoke by telephone on two occasions prior to October 30 and once on October 31. They differed on the date of the first conversation, but this is immaterial as their testimony was in accord on the fact Cole's offer of employment as striker replacements was not accepted. They differed on another point which is of some consequence-Cole testified it was during the first conver- sation Herlinda informed him she and her mother were employed by an umbrella company while Herlinda testified she informed Cole of that fact in the course of the second (October 23) conversation. Martinez and Cole agreed the second conversation occurred on October 23, that Cole called the Martinez home, left word in Herlmda's absence to call him back, and that she called him back later in the day. They agreed Cole offered Herlinda and her mother jobs as sewing machine operators 18 and that Herlinda informed Cole she was ill with bronchitis and that, in response to Cole's inquiry regarding the possibility of her mother coming to work for him, Herlinda stated her mother was nervous about working anywhere without Herlinda (her mother spoke little English) and therefore would not work for Cole unless and until Herlinda did so. Their testimony differed with regard to the October 23 telephone conversation in the following significant re- spects: Herlinda testified it was in this conversation she told Cole she could not come to work for him because she had bronchitis, and because she and her mother were employed by an umbrella company and expected to return to work there; and that she responded to Cole's offer of employment by saying she and her mother would have to think about it; Cole testified the reference to employment at the umbrella company occurred in the first conversation, and that Herlinda promised she and her mother would come to work for him when she recovered from her bronchitis attack. Both Herlinda and Cole agree their third conversation took place on October 31, the day after the Union called off the strike and made the unconditional offer on behalf of the striking employees to return to work. They agreed that in the course of this conversation Cole informed Herlinda that the strike was over and renewed his offer of employment; that Herlinda informed Cole she was still suffering from bronchitis, was scheduled to see her doctor on Thursday, November 2, and that she and her mother were willing to report for work on the following Monday, November 6, if the doctor found her fit; that Cole suggested they report on Friday November 3, if the doctor permitted; and tat Herlinda agreed that she and her mother would report for work that day, the doctor permitting. As noted heretofore, Herlinda and her mother did report for work as sewing machine operators on Friday, Novem- ber 3, and have worked continuously for the Company since that date. Where the testimony conflicts, Herlinda's testimony is credited. She struck me as an earnest witness testifying to her best recollection. Any difficulties she experienced were, in my judgment, due to her difficulty in comprehending English (for that reason, I requested that an interpreter be utilized to ask her questions in Spanish and translate her replies into English). Based on the foregoing, I find and conclude that Herlinda and Ramona Martinez did not accept Cole's offers to come to work for the Company as sewing machine operators prior to October 31 and did accept his offer on October 31, the day after Cosby, et al., abandoned the strike and unconditionally offered to return to their jobs as sewing machine operators. Based upon the foregoing, I find and conclude that the hire of Herlinda and Ramona Martinez under these circumstances delayed the recall of Cosby, et al., and thereby violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. At all times material, the Company was an employer engaged in commerce in a business affecting commerce 17 While they were previously employed by the Company, it is undisputed that such employment terminated in 197Q. is Cole made both the first and the second offer at the urging of Maria Chavez, a close friend of Herlinda and her mother. Chavez was a longtime company employee (sewing machine operator). 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Union was a labor organization as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent, Florence Herman was not a supervisor of the Company as that term is defined in the Act. 3. By its October 31 hire of Herlinda and Ramona Martinez as new sewing machine operators, following the October 30 unconditional offer by striking sewing machine operators Cosby, Nunez, Torres, Cervantes, Reyes, and Moreno to return to work, the Company delayed the recall of the latter six employees and thereby violated Section 8(a)(3) and (1) of the Act. 4. The Company did not otherwise violate the Act. 5. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Company engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that the Company be directed to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. I have found that the Company unlawfully delayed the recall of six, striking sewing machine operators who were offered recall on varying dates between November 16 and December 1. In order to compensate these six employees for any loss of earnings they have experienced as a result of this delay, I shall order the Company to make those individuals whole by payment to them of a sum of money equal to that which they would have earned as wages from the date upon which they would have been recalled, but for the hire of Herlinda and Ramona Martinez, to the date upon which they were actually offered recall. It is difficult to calculate the actual sums owed, but a reasonable formula would be a direction for the Company to pay Cosby,, the first recall, the wages she would have earned had she been recalled on October 31, the date Herlinda Martinez was hired as a new employee. Applying the same formula to the second recall, Nunez, it would appear reasonable to direct the Company to pay Nunez the wages which she would have earned had she also been recalled on October 31, the date Ramona Martinez was hired as a new employee. It is reasonable to presume the earlier recall of Cosby and Nunez would have accelerated the recalls of the remaining four striking sewing machine operators (Tones, Cervantes, Reyes, and Moreno) in a like fashion to dates on which Cosby, Nunez, et al., were actually recalled. I shall leave the application of the above formula, however, to the enforcement stage of this proceeding. The loss of earnings referred to above shall be computed with interest on the amount due, computed at 6 percent per annum. The Company shall also be ordered to make available to the Board or its agents, upon request, payroll and other records to facilitate the computation of the amounts due, and to post the attached notice. Upon the foregoing findings of fact, conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER i9 Pillows of California, its officers, agents, successors, and assigns, shall: 1. Cease and desist form hiring new employees to fill vacancies in jobs performed by its employees who participated in the September 20 to October 30 strike until and .unless such strikers have been offered recall thereto. 2. Take the following affirmative action necessary to effect the policies of the Act: (a) Make whole Kittie Cosby, Elvira Nunex, Benita Torres, Maria Cervantes, Maria Reyes, and Alicia Moreno, in the manner set forth in the section of this decision entitled "The Remedy," for any losses in pay they experienced by reason of the delay in their recall due to the hiring of Herlinda and Ramona Martinez. ' (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, health and welfare payment records, pension payment records, personnel records, reports, and other records necessary to analyze the amount of money or other payments or benefits due under the terms of this Order. (c) Post at its place' of business in Los Angeles, California, copies,of the attached notice marked "Appen- dix."20 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Company's authorized representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuously located places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Company has taken to comply herewith. 19 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions, and Order , and all objections thereto shall be deemed waived for all purposes. 20 In the event the Board's Order is enforced by a Judgment of the 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT hire new employees as vancancies occur in jobs striking employees have unconditionally offered to return to until and unless those striking employees are all recalled. WE WILL make whole Kittie Cosby, Elvira Nunez, Benita Torres, Maria Cervantes, Maria Reyes, and Alicia Moreno for any loss of earnings they experi- PILLOWS OF CALIFORNIA 375 enced by our hire of new employees to replace them in This is an official notice and must not be defaced by their former jobs following their October 30, 1972 , anyone. - unconditional offer to return to work following a strike , This notice must remain posted for 60 consecutive days together with interest at 6 percent per annum on the from the date of posting and must not be altered, defaced, sums due to them. or covered by any other material. Any questions concerning this notice or compliance with PILLOWS OF CALIFORNIA its provisions may be directed to the Board's Office, (Employer) Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229. Dated By (Representative) (Title)