New Vision Display, Inc.

NEW VISION DISPLAY New Vision Display, Inc. and Ronald Hugar. Case 2-CA-12949 January 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MLMBERS JENKINS AND KENNEDY On September 24, 1973. Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 conclusions2 of the Administrative Law Judge and to adopt his 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, New Vision Display, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: In my view, Hugar was discharged for just cause (repeated lateness) at a time when Respondent had no union animus whatever. In fact, the only record evidence as to Respondent's attitude about unions at or prior to the discharge was that if the employees wanted a union, they should be sure they got a good one. Hugar, having been discharged for cause, went to this Board's office and charged, without foundation, as I see it and as Respondent's president saw it, that he had been discharged for union activity. The reaction of Respondent's president was (un- derstandably if perhaps not wholly rational) that Hugar must, all along, have been engaging in a personal vendetta against him, both in filing the baseless charges and in his attempts to organize a union, and he said so to Hugar when Hugar came to see him seeking reemployment. It is these remarks upon which the Administrative Law Judge relied to establish "animus." In my view, they show only that Respondent's president had been angered by Hugar's baseless charge, and fall far short of establishing that 127 Hugar had been discharged in an effort to quell the union activity. I Would dismiss the complaint in its entirety. i We hereby correct an inadvertent error in the first paragraph of the Administrative Law Judge 's Decision to reflect that the charge herein was filed on April 13, 1973 2 In adopting the Administrative Law Judge's conclusion that Respon- dent's discharge of Ronald Hugar was substantially motivated by union animus, we note that Respondent 's president, Weishar. gave particularly clear indication of such motivation in telling Hugar that he considered him to be irresponsible for taking on the activity of organizing the Union because he felt that Hugar was out to get him or on a personal vendetta and, also, in questioning Hugar as to why there had been so much secrecy in organizing the Union Furthermore , Respondent's president told Hugar at the outset of their conversation that he could not possibly begin to discuss Hugar's reinstatement because he had received a copy of the charge from the NLRB. The charge alleged that Hugar had been terminated because of his union activities DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge' of unfair labor practices filed by Ronald Hugar, an individual, on April 3, 1973, against New Vision Display, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board issued a complaint against Respondent on June 28, 1973, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer which, in relevant part, denied the filing and the service of the charge by Ronald Hugar; that it is an employer engaged in commerce: that the Union is a labor organization within the meaning of the Act; or that its discharge of employee Ronald Hugar was related to any unfair labor practices. A hearing in the above matter was held before me at New York, New York, on July 17, 1973. Counsel for Respondent elected not to submit a brief but a brief has been received from the General Counsel and has been carefully considered. The Alleged Unfair Labor Practices: Background and Sequence of Events During and prior to August 1972 and July 31, 1973, Joseph Weishar (Joe Weishar) was and is the chief stockholder and president of the corporate Respondent located at 155 East 23rd Street, New York, New York, which is engaged in the manufacture and design of merchandising display and promotional equipment (cloth- ing racks and graphic pieces which usually enhance the appearance and value of a product). Also during the subject year and the year prior thereto, Respondent's aggregate gross receipts from sales (services rendered) totaled $350,000. In October 1972, employee Ronald Hugar was employed by Respondent as a display carpenter until he was discharged and not reemployed by Respon- dent, allegedly for repeatedly reporting to work late. Prior i The pleadings place in issue the facts relating to the filing and service of the charge herein. However, the facts established that the charge was filed and properly served as set forth herein 208 NLRB No. 15 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Hugar's discharge, Respondent discharged a fellow employee allegedly for lateness and thereafter, Hugar alleges, out of the concern of fellow employees over that employee's discharge, he and other employees initiated an organizing campaign on behalf of the Union on or about Apnl 9, 1973, and as a consequence thereof, he was discharged and refused reinstatement by Respondent because of such union activity. The issues in this case are: 1. The jurisdictional status of the employer. 2. Whether the charge in this case was filed by the Charging Party and was properly served upon the Respondent. 3. Whether Respondent discharged employee Ronald Hugar on April 11, 1973, because of his union activities in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION A. The Filing and Service of the Charge The evidence concerning the issue relating to the filing and service of the charge in this case consists of a signed charge, dated April 13, 1973, an affidavit of service of said charge dated April 16, 1973, and a union card, all of which are signed by Ronald Hugar and credibly substantiated by Hugar at the hearing. In evaluating this evidence, it is clear that the signature on the charge is the same as the signature on the union card, as acknowledged by Hugar. Hence, considering the foregoing evidence and the presumption of regularities which attaches to the filing of the charge and the records of the Board, I conclude and find that the charge in this case was filed by Hugar on April 13, 1973, and was thereafter properly served upon the Respondent on April 16, 1973. B. The Business of the Respondent Respondent. a New York corporation with its principal place of business being located in the city and State of New York, herein called the plant, is engaged in the manufac- ture and design of merchandising display equipment and related products on order. It is admitted and stipulated that Respondent is a New York corporation which has at all times material herein maintained a business at 155 East 23rd Street, New York, New York, where it is engaged in the manufacture and design of merchandising display and promotional equip- ment. It was further stipulated at the hearing and I conclude and find that Respondent during the past year sold and shipped from its New York plant, goods valued in excess of $50,000 to destinations located outside the State of New York. Considering the foregoing, 1 conclude and find that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and subject to the Jurisdictional standards of the Board which warrants the Board asserting jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Anthony Prezioso credibly testified that he has been vice president of Local 2682 of the United Brotherhood of Carpenters for 5 years; that employees participate in Local 2682 organization; that said organization has a constitu- tion and bylaws; that said organization exists in whole or in part for dealing with employers on matters concerning employees' working conditions such as hours, sick leave, vacation and such other benefits; and that the constitution and bylaws provide for the election of officers and general membership meetings to be held periodically. The credible testimony of Prezioso and Hugar, and the exhibits in the record, clearly establish that Prezioso discussed and counseled with some of Respondent's employees with respect to their efforts to organize Respondent's employees into Local 2682 (the Union) and to secure representation rights for Local 2682. I note with respect to the foregoing findings of fact, the following excerpt from Prezioso's credited testimony: Q. And does this organization exist in whole or in part dealing with employees' working conditions such as hours, sick leave, vacation and other benefits such as those? A. Yes, sir. I further note that it is my recollection that the precise question to Prezioso was to the effect as to whether his organization existed to deal with employers concerning employees' working conditions. No motion to correct the record in this regard has been made. I find it unnecessary to correct the record in such regard since I find it clear that an inference is warranted from all the facts, and I draw such inference, that Local 2682 existed to deal with employers concerning employees' working conditions. I also note that the overall facts clearly show that the Respondent believed that Hugar was engaged in union activity, as will be subsequently established by the evidence. In view of the foregoing facts, I conclude and find that Local 2682 of the United Brotherhood of Carpenters is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issue Supervisory Status From a composite of the credible testimony of Joseph (Joe) Weishar, president of Respondent, and Tito Arroyo and Ronald Hugar, employees of Respondent, the follow- ing facts are established: Joseph (Joe) Weishar is president of Respondent and is in charge of the business. In March 1973,2 President 2 Hereafter all dates will be referable to the year 1973 unless otherwise specified NEW VISION DISPLAY 129. Weishar discharged employee Paula Chin for repeated lateness and/or complaining about poor ventilation; 3 and he discharged employee Hugar on April 11 for lateness. The record further shows that Tito Arroyo, foreman and production manager for Respondent for 5 years, makes work assignments to employees after consulting with President Weishar. He orders supplies, checks the time- cards or attendance of employees, calls them on the telephone if they are absent and are needed on the job, warns them about being late for work, and checks the products before they are shipped. If the products are not satisfactory, he returns them to the employees for correc- tion. Sometimes employees advise him they will be late or request permission from him to be absent. He has warned employees when they took too much time for lunch, and if they did not comply, he informed them that he would report them to President Weishar. He reports conditions of the plant to the president, and he hired a carpenter (Chris Devallier) with authorization from the president. Thus, it is clear from the foregoing, and 1 conclude and find that president Weishar and Arroyo, are supervisors within the meaning of Section 2(11) of the Act. B. Union Activity and Respondent's Knowledge Thereof A composite of the undisputed credited testimony of Ronald Hugar established that he was employed by Respondent along with four (and at later times as many as six) other carpenters in October 1972. Other employees of Respondent worked as either artists, packers and receivers, or clericals, for a total of 13 plant employees. There was a general problem of plant employees reporting to work late.4 In November 1972, Hugar reported to work 1 hour late and was asked by President Weishar, what was the problem. Hugar was warned about his lateness at this time. In an effort to reduce the problem of lateness, Respondent changed the reporting time from 8 a.m. to 9 a.m., but 2 weeks later changed the time back to 8 a.m., because it was proven unsuccessful. In mid-March, employee Paula Chin was discharged by Respondent for repeated lateness, although employee Michaela Grand testified that Chin was discharged because she complained to President Weishar about the ventilation in the plant, which was a concern of several employees.5 Recently after the discharge of Paula Chin, a notice was posted in the plant, which in essence provided that any employee who came in after 8 o'clock without special permission from President Weishar Or Tito Arroyo would be immediately dismissed. However, the timesheets show that several employees were nevertheless frequently late practically throughout the month of March (3-28). About the last part of March, Hugar returned to the plant from a specific job assignment and found Janice Conway, Tito 3 The evidence is not precise in this regard This fact is fut ther corroborated by the testimony of Michaela Grand, who had also been reprimanded for lateness, as well as by the testimony of Christopher Wilson, president Weishar and plant timcsheets 5 i credit the testimony of Respondent that Paula Chin was discharged for lateness, since the plant timesheets show Chin was frequently late and absent, and no other employee had actual knowledge as to why she was in fact discharged 6 Arroyo admitted that he was present with other employees of Arroyo, and Denicio discussing the dismissal (discharge) of Paula Chin. As a result of a general feeling of job insecurity amongst the employees and complaints about health conditions (difficulty breathing as a result of dust and fumes from dyes and paints) within the plant, the employees commenced discussing the need for a union.6 About 2 weeks later, Hugar contacted the Union and arranged for a meeting scheduled for April 9. He asked Arroyo to attend the meeting but was advised by the latter that he had a dental apppointment on that date; and that he did not trust unions but he would try to attend and listen. On Saturday, April 7, Hugar called Arroyo and requested permission to report for work at 9:30 a.m. (1-1/2 hours late) on Monday, April 9, in order to apply for a contractor's license at the Department of Consumer Affairs.? When he reported to work late on April 9, he was nevertheless warned about lateness by President Weishar. The meeting with the Union was held on the afternoon of Monday, April 9 as heretofore scheduled, but Arroyo was not in attendance. It is further established by the undisputed and credited testimony of Union Representative Prezioso that on April 9 he received a telephone call from Hugar who informed him that a majority of the employees at Respondent's plant wanted to be organized; that after work on the same day, Ronald Hugar and fellow employees Candyce Haspel and Janice Conway came to his office for a meeting during which he explained the advantages of the Union and suggested that they constitute the organizing committee. Since it was established that it would be difficult to identify and contact the other employees as they came out of the building after work, Hugar agreed to take the application cards into the plant and have the employees sign them. Hugar was designated chairman of the organizing commit- tee and he visited the union office for further discussion on April 10, when he submitted six union cards signed by employees Michaela Grand, Janice Conway, Ronald Hugar, Mary Didoardo, Christopher Wilson, and Candyce Haspel. Employee Grand's card was signed on April 9 and the other cards were dated April 10. The undisputed and credited testimony of Hugar further established that Hugar was late in reporting to work on Tuesday, April 10; and that he was summoned to the office of President Weishar and reprimanded for being late on April 8 and 10. He was further warned by Weishar that if he were late again, he would be discharged. Also reprimanded for lateness on the same days (April 9 and 10) was carpenter Christopher Wilson.8 During the lunch hour on April 10, Hugar, Haspel, and Conway held a meeting with plant employees, including Arroyo, in open plant view around Arroyo's table in the art shop, when Hugar explained what transpired at the Respondent when unionization of the plant was discussed in late March. after the discharge of Paula Chin Therefore, Hugar s undisputed testimony in this regard is corroborated by the undisputed and credited testimony of employee Michaela Grand 7 Iiugar's statement about his request to be late on April 9 is credited because it was not denied by Arroyo and Hugar did not impress me as being untruthful in this regard F Hugar s testimony was corroborated by the testimony of President Weishar in this regard 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting with the Union on April 9, and Haspel and Conway answered questions. Hugar distributed the union cards and asked the employees to sign them to assure a majority support for the Union. Later that afternoon, he (Hugar) met Arroyo in the men's room where the latter advised him that the Spanish-speaking people did not want a union and that he (Arroyo) had talked to Joe Weishar about it and he (Arroyo) had decided that the Spanish- speaking people did not want a union.9 Arroyo credibly admitted that he attended the employee meeting during the lunch hour on April 10 and that he had a conversation with Hugar later that afternoon, when he told Hugar that he did not like unions and that he had discussed the Union with Joe Weishar that same day after the meeting and was asked by Weishar, who was in charge of the union activities, and he told him Hugar and Conway were the employees who wanted the Union. Arroyo further advised Hugar that he had told Weishar that people (employees) were interested in a union and Weishar said if they wanted a union they should make sure they get a good one.10 Weishar did not say anything else about the Union but he said all employees were also going to be moved. Upon a composite of the foregoing undisputed and credited testimony, I conclude and find that Ronald Hugar, Janice Conway, Candyce Haspel, and other employees of Respondent were engaged in concerted or union activity from late March, following the discharge of Paula Chin, and especially on April 9, 10, and 11, when Hugar was ultimately discharged; that Respondent had actual, representative, and imputed knowledge of said union activity through President Joseph Weishar, Supervi- sor Tito Arroyo, and the small plant doctrine (13 employees), respectively; that President Weishar's sudden and severe ultimatum about lateness to Hugar on April 10 following the union meeting on April 9, and Arroyo's prior knowledge of that scheduled meeting and his negative statements about unionization on April 9 and 10, as well as President Weishar's and Arroyo's knowledge of the lunch hour meeting on April 10 followed by Hugar's discharge on April 11, all constitute animus by Respondent towards unionization of its plant and Hugar's leadership role therein. C. Discriminatory Discharge of Employee Hugar further testified that on Wednesday, April 11, he was experiencing difficulty breathing and he called the plant at 7:45 a.m.I I but received no response, so he decided to wait until 9 o'clock to call again and report that he was ill. About 8:45 a.m., he was awakened by a telephone call from Joe Weishar, and he testified that the following conversation ensued: He asked where I was. I told him I was ill on that particular day. He then stated he had warned me the day before for lateness. I tried to explain to him that particular time that this was a different circumstance. I was ill, unable to work, not late. At which case he said that he decided that he was going to have to let me go and I said if that is the way you want it, he said that the way it has to be and I told him he would be hearing from me and he said I'm sure I will, and hung up on me. Subsequently, Hugar called his physician, Dr. Genusi, who advised him to come to his office at 11:30 a.m.12 After seeing his doctor, Hugar called Respondent and requested him to mail his check to him. President Weishar's testimonial account of the telephone conversation which ensued between himself and Hugar at about 8:45 a.m. on April 11 differs from Hugar's as follows: Q. A. Q. him? Did you speak to Hugar? Yes, I did. What did he say to you and what did you say to A. I asked him why he hadn't come in. He said that he was sick. I then asked him if he had considered calling the shop. There was no response. And I said, in that case, I would suggest that we terminate our relationship, and Mr. Hugar said you will be hearing from me. And I said I am certain of that.13 Hugar has never been called at home by plant manage- ment even though he had been absent previously for an entire day due to illness. A week or two later Hugar went to the office of Weishar and talked with him as follows: I requested at that time if he would be willing to talk about reinstatement on the job. He said no because he had received the charge from the National Labor Relations Board, that he felt that he couldn't possibly begin to discuss reinstatement. 14 9 Arroyo corroborates Hugar's testimony by his admission that he was present at the lunch hour meeting on April 10 and he appeared to be truthful in his testimony 10 While I do not discredit Arroyo's testimony with respect to President Weishar's response that if the employees "wanted a union they should make sure they get a good one," I do not give any weight to it because the logical inconsistency of the evidence indicates that Weisharwas either not sincere in this regard, or that his attitude towards plant unionization had changed to one of animus subsequent to his discussion with Arroyo on April 10, as indicated by his discharge of Hugar on April 11. Ii I make no determination of the credibility of Hugar's testimony that he called the plant at 7 45 a.m. to report that he was ill because the events that followed make a resolution of this issue of fact unnecessary. 12 A note from Dr. Genusi indicating Hugar was seen by him on April 11 was presented at the hearing. 13 I credit the undisputed testimony of both Hugar and President Weishar that during their telephone conversation (at 8.45 a.m.) on April 11. Hugar advised Respondent that he was ill . However. I discredit President Weishar's testimony to the effect that Hugar did not respond when he asked Hugar why had he not called to advise that he was ill, because this contention does not coincide with the logical consistency of the evidence which preceded or followed that conversation . More specifically, it appears that since Hugar said he was ill, Respondent could not charge him with lateness so he prematurely concluded and charged him with failing to call the plant, hastily discharged him, and thereby precluded a possible or probable finding that Hugar was going to call the plant subsequent to 8 45 a.m. i i I credit Hugar's testimonial account of his visit to President Weishai's office about 2 weeks after his discharge to discuss possible reinstatement, because President Weishar admitted that Hugar visited him at this time, and he did not emphatically deny that he said there was no possibility for reinstatement since Hugar had filed a charge with the National Labor Relations Board against Respondent . Moreover, I received the impression, from the testimony of Hugar and Respondent, that Hugar was telling the NEW VISION DISPLAY Several things were said past that point. We discussed about my organizing the union, my union activities where he made the statement that he considered me irresponsible for taking on the activity of organizing the union because- Q. Can I ask you- A. He stated that I felt that he was irresponsible. and he said "he felt that I was out to get him or it was on a personal vendetta." He said Weishar also asked why all the secrecy and Hugar tried to explain that the employees were not acting secretly and that they had met openly in the plant. President Weishar testified that he feld compelled to come to the plant early on the morning of April 10 to severely warn Hugar and Wilson about their latenesses because he did not want to fire them, since he knew how his employees were dissatisfied about his discharge of Paula Chin.15 In view of the foregoing credited evidence, I conclude and fmd that although Respondent's (President Weishar's) discharge of Hugar on April 11 was probably based, in part, upon Hugar's probable lateness without permission or his possible failure to call the plant to advise that he would not be in, his discharge was substantially motivated by Respondent's animus for Hugar's union activity and was therefore discriminatory, in violation of Section 8(a)(3) and (1) of the Act; and that Respondent's failure and refusal to offer to rehire, or to rehire, Hugar because he filed an unfair labor practice charge against Respondent was likewise discriminatory in violation of Section 8(a)(4) of the Act. I do not credit the decision (G. C. Exh. 3, admitted in evidence) of the New York Unemployment Insurance Referee dated June 11, 1973, because it does not appear to be relevant or necessary for a decision in this matter. D. Analysis and Conclusion I find that Local 2682, United Brotherhood of Carpen- ters, is a labor organization within the meaning of Section 2(5) of the Act. This conclusion is amply supported by the credible testimonial account of Anthony Prezioso, vice president of Local 2682 (the Union) and his efforts to assist Respondent's employees in organizing a union. His testimony and all other testimony relating to the existence and activity of Local 2682 are undisputed in the record. I also find upon the undisputed and credible testimony of Hugar and Arroyo that concerted activity of Respon- dent's employees commenced in late March, and upon the testimony of Prezioso, Hugar, Wilson, and Respondent's supervisor, Arroyo, that an organizing campaign on behalf of the Union was commenced on April 9, 1973, and that Ronald Hugar spearheaded the Union's organizational drive. With respect to the crucial questions as whether truth in this regard. 15 I credit President Weishar's testimony regarding his reason for coming to the plant early on April 10 as an incidental part of the total reason, in view of the substantial evidence of his and Arroyo's supervisory role, their knowledge of Hugar's union activity, and animus on their part towards that activity. 131 Respondent had knowledge of the organizing campaign and Hugar's leadership role therein, the evidence is abundantly clear from the testimony of Hugar and Respondent's own supervisor, Arroyo, who verified his supervisory role and communicated his dislike and distrust of unions to Hugar on April 9 and 10. Arroyo was invited to the first organizing meeting on April 9. He attended the lunch-hour organizing meeting on April 10 and admitted he discussed the organizational efforts and Hugar's leadership role therein with Respondent (Weishar) on April 10. I credit the testimony of both Hugar and Arroyo on this issue of company knowledge and particularly note that Respondent Weishar, at no time throughout the record of evidence herein, ever denied that he had knowledge of the organizing efforts of the employees on and prior to April 11. Since supervisor Arroyo knew about Hugar's union activity, his knowledge is imputed to Respondent, who nevertheless received actual knowledge of said activity during his conversation with Arroyo on April 10.16 Moreover, knowledge of Hugar and other employees' concerted or union activity may also be inferred to Respondent from the following chain of circumstantial evidence: (1) the small number of employees at the plant (approximately 13); (2) the fact that Hugar had spoken in favor of the Union to other employees at a lunch-hour meeting the day before he was discharged; (3) Supervisor Arroyo's knowledge that Hugar was spearheading unioni- zation efforts and expressed his disagreement with the same ; and (4) Respondent's severe warning to Hugar about lateness on the day after the Union meetings on April 9 and 10.17 Since this severe warning to Hugar (who had been late about 80 percent of his working tenure with Respondent) occurred immediately following the two aforementioned organizing meetings and on the day before his discharge, it would appear, and I therefore find, that both the warning and discharge were motivated by animus on the part of Respondent. This conclusion is further supported by the following additional facts: (1) Respon- dent had demonstrated a rather tolerant attitude towards latenesses of Hugar and other employees until April 10; and (2) Respondent's statement to Hugar is to the effect that he could not consider reinstating Hugar since the latter filed a charge against Respondent with the National Labor Relations Board. Not only does this statement constitute evidence of union animus but it would also constitute a violation of Section 8(a)(4) of the Act, if it were in fact litigated. However, since I do not deem this statement to have been litigated, I will not make a finding of a violation of Section 8(a)(4) of the Act. Moreover, so precipitous was Respondent' s animus towards Hugar on April 11 that, anticipating Hugar was going to be late, he called Hugar at home at 8:45 a.m. and discharged him, allegedly for lateness on failure to call in, when in fact Hugar did not report for work but allegedly 16 Koller Craft Plastic Products, Inc, 1 14 NLRB 990. 17 Wiese Plow Welding Co, Inc, 123 NLRB 616, 618. 18 1 credit the undisputed testimony of Hugar with respect to Respon- dent's statement to Hugar weeks after his discharge , in declining to consider his reinstatement because he had filed a charge against Respondent with the National Labor Relations Board. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was going to call the plant at 9 a.m. to advise that he was going to remain home because he was ill.19 Under these circumstances it appears to he immaterial whether Hugar called the office of Respondent on April I I or whether he was in fact ill. Respondent's hasty discharge of Hugar precludes an actual determination as to whether Hugar was going to be late or was going to call the plant at a later hour; or whether he was going to be absent from work without calling the office on April 11. Such hasty action by Respondent in an anticipation that Hugar was going to be late or absent without reasonable cause appears to indicate how eager Respondent was to obtain evidence of that ultimate condition (lateness, or even assuming failure to call) which he had warned Hugar would constitute grounds for his dismissal. While the evidence is clear that Respondent, for a considerable period of time, had had a valid ground ("lateness") to discharge Hugar, it is equally clear that Respondent was tolerant towards Hugar's lateness until April 9 or 10, when he learned about Hugar's union or concerted activity and discharged him on April 11. The evidence does not unequivocally show that Hugar was going to be late or absent on April 11. However, assuming that he was going to be late, the record shows that other employees of Respondent were frequently late and that there does not appear to be much evidence of Respondent's diligence to enforce timely reporting to work until his severe warning to Hugar and Wilson on April 9 and 10. This observation is further amplified when it is noted that Wilson was late on a few occasions subsequent to Hugar's discharge but was not discharged until late May. Based upon the foregoing analysis and evaluation of the evidence, 1 am satisfied that it is amply sufficient to support the conclusion and finding that Respondent discriminatorily discharged Hugar for his union activity, in violation of Section 8(a)(1) and (3) of the Act; and that Respondent's contention that Hugar was discharged for lateness is merely pretextual in an effort to justify his discharge. Moreover, since Respondent's discharge of Hugar was in part, substantially, even if not entirely. motivated by Hugar's concerted or union activity, such discharge was nevertheless coercive and discriminatory, although for several months Respondent appears to have had valid grounds to discharge him. Thus, it becomes obvious that neither lateness nor failure to call in was the real, even if not the only, basis for Hugar's discharge, but rather, his concerted or union activity.20 IV. THE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations in section I, above, have a close, intimate, and substantial relationship to trade, traffic and commerce among the 10 f do not deem it necessary to credit or discredit Hugar's testimony that he had called Respondent at about 7 45 a in on April II to report that he was ill, since subsequent circumstances make such a determination immaterial 20 J P. Stevens & Co v. N L R B, 380 F 2d 292, 300 (C A. 2, 1967), N L R.B v. Ulbrich Stainless Steel, Inc , 393 F 2d 871, 872 (C A. 2, 1968) several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in an unfair labor practice warranting a remedial order, I shall recommend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discharged Ronald Hugar in violation of Section 8(a)(1) and (3) of the Act, the recommended Order will provide that Respondent offer reinstatement to his job, and make him whole for loss of earnings within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practice herein found, the recommended Order will provide that. Respondent cease and desist from in any manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R. B. v. Entwistle Mfg., Co., 120 F.2d 532, 536 (C.A. 4). Upon the basis of the above findings of fact and upon the entire record in this case, make the following: CONCLUSIONS OF LAW 1. New Vision Display, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 2682, United Brotherhood of Carpenters, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Ronald Hugar, thereby discouraging membership in the Union, a labor organization, Respon- dent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 Respondent, New Vision Display, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment because of their protected concerted activities. (b) In any other manner interfering with, restraining, or 21 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 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. NEW VISION DISPLAY 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 lawful agreements in accord with Section 8(a)(3) of the Act, 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to Ronald Hugar immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered by reason of the discrimination against him with interest at the rate of 6 percent, in the manner described in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of the recommended Order. (c) Post at Respondent's plant at New York, New York, copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 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 insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith. 22 In the event the Board's Order is enforced by a Judgment of the Lnited 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 " 133 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 in the United Brotherhood of Carpenters, Local Union No. 2682, or any other labor organization , by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Ronald Hugar immediate and full reinstatement to his former position, or if such position no longer exists, to a substantially equivalent one, without prejudice to the seniority and other rights and privileges enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of his discharge, with interest at the rate of 6 percent per annum. All our employees are free to become, remain or refuse to become or remain, members of said Local Union No. 2682, or any other labor organization. NEW VISION DISPLAY, INC. (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0330.