Fort Lock Corp.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fort Lock Corporation and Local 44A, Service Employees International Union, AFL-CIO-CLC. Cases 13-CA-13034 and 13-RC-13232 January 15, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On September 26, 1974, Administrative Law Judge John P. von Rohr 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 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, Fort Lock Corpora- tion, River Grove, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. [Direction of Second Election and Excelsior footnote 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 are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing such findings. 2 No exceptions were filed to the Administrative Law Judge's conclusion that the General Counsel has not established that Respondent discriminated against Socorro Cervantes. DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on February 5, 1974, the General Counsel of the National Labor Relations Board, by the Regional I Subsequent to the hearing, a brief on behalf of the Respondent was submitted by Adams, Fox, Marcus & Adlstein, of Chicago, Illinois. 2 The answer on behalf of Respondent was filed by Attorney Michael J. Rybicki, who was released by Respondent as its attorney prior to the hearing. On August 26, 1974, I received a motion to strike or in the alternative to reopen the record in this proceeding from Attorney Rybicki. Director for Region 13 (Chicago, Illinois), issued a complaint on April 30, 1974, against Fort Lock Corpora- tion, herein called the Respondent or the Company,' alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. This case was consolidated 'with a proceeding involving objections to conduct affecting the results of an election (Case 13-RC-13232). The Respon- dent filed an answer denying the allegations of unlawful conduct alleged in the complaint.2 Pursuant to notice, a hearing was held before Adminis- trative Law Judge John P. von Rohr in Chicago, Illinois, on July 10 and 11 , 1974. Briefs were received from the General Counsel and the Respondent on August 20, 1974, and they have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation maintaining a facility at River Grove, Illinois, where it is engaged in the manufacture of locks. During the calendar year preceding the hearing herein, Respondent received materials valued in excess of $50,000 directly from suppliers located outside the State of Illinois. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 44A, Service Employees International Union, AFL-CIO-CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues The Union commenced an organizing campaign among Respondent's production and maintenance employees in September 1973. Following a representation petition filed on November 6, 1973,3 an election was held on February 8, 1974. Losing the election by a vote of 52-10, the Union filed objections to the election on February 15, 1974, said objections subsequently being consolidated with the complaint herein. The complaint alleges that Respondent violated Section 8(aX3) of the Act by discharging employees Juanita Diaz, Ismael Diaz, and Rosario Padilla on February 18, 1974, and be refusing to recall Socorro Cervantes on or after February 1, 1974. It is also alleged that Respondent The motion to strike refers to certain testimony by Respondent's president, Sidney Falk, concerning alleged legal advice he received from Attorney Rybicki with reference to formation of an in -plant union. Inasmuch as I have not relied on any of this testimony (tr. p. 167, 11.21-25) in making any of the findings herein, I do not deem it necessary to pass on this motion. 3 Case 13-RC-13232. 216 NLRB No. 31 FORT LOCK CORPORATION 161 engaged in various other acts and conduct independently violative of Section 8(axl) of the Act. B. Interference, Restraint, and Coercion As background to certain conversations and meetings which were held between Sidney Falk, Respondent's president and its sole owner, it is preliminarily noted that copies of the following document, which bear the date of August 31, 1973, and copies of which were made in Spanish and English, were shortly thereafter distributed among the employees: 4 SINCE THERE WERE PRIOR UNION ACTIVITIES. IT IS SUGGESTED THAT AN INFORMAL UNION OF THE EMPLOYEES SHOULD BE FORMED. TO WHICH NO ONE WILL HAVE TO PAY DUES. IT WILL BE A COMMITTEE OF 6 PERSONS SELECTED BY THE EMPLOYEES OF THE COMPANY TO REPRESENT THEM ALL. THE COMMITTEE WILL BE ELECTED BY THE EMPLOYEES. THIS COMMITTEE WILL MEET TWO TIMES A MONTH TOGETHER WITH THE EMPLOYER AND SUPERVISORS OF THE COMPANY. THE MEETINGS WILL BE ON THE FIRST AND THIRD WEEKENDS OF EACH MONTH IN THE COMPANY CAFETERIA. AT THESE MEETINGS ALL THE EMPLOYEES MAY ATTEND WHO WISH TO DO SO. IN ORDER TO OPPOSE EVERY KIND OF DEMAND OR COMPLAINT WHICH THEY HAVE. employees to vote against the Union and that he should tell them "whatsoever I told you." 7 Employees Juanita Diaz and Socorro Cervantes testified about a series of meetings which Falk held with the employees in the company cafeteria during the months of September, October, and November 1973. According to their testimony, which I credit, at an October meeting Falk told the employees that they were to choose six employees to "represent" them. In this connection he stated that with representation of this type they would not have to pay dues, whereas they would be required to pay dues if they selected an outside union. It was at a subsequent meeting, according to Diaz, that Falk in fact selected the six employees who were to act as the employees ' representa- tive. In addition, Diaz and Cervantes credibly testified that at the latter meeting Falk told the employees that he did not want an outside union and that he would close the plant if the Union came in. Concerning any threat to sell the plant, Falk conceded telling his "executive staff" that he would sell the plant if the Union came in, but testified that "I didn't tell our people that." However, his testimony in this regard was rambling and confused, and also involved a conversation with someone he identified only as "this man." Since this testimony is revealing of Falk's entire attitude towards the unionization of his employees , I set it forth in his words as follows: THIS COMMITTEE SHOULD LAST 6 MONTHS TO BE RE- ELECTED OR TO CHANGE THE REPRESENTATIVES. Although the contents of the above message to the employees, as well as other conversations related below, reflect possible sponsorship by the Respondent of an internal-type employee bargaining representative, it should be made clear at the outset that there is no allegation in the complaint that Respondent violated Section 8(axl) or (2) of the Act by engaging in any such conduct5 Accordingly, and although I do consider this evidence as relevant background to the other allegations involved in this case,6 I will make no such finding. In or about the first week of October, President Falk came up to employee Ismael Diaz and spoke to him about the Union: He first asked Diaz which person or employee brought the Union into the plant. Diaz responded that he did not know. Falk then told Diaz that unions promise a lot of things but that they do not always keep their promises. He thereupon told Diaz that he would give him a 10-percent increase in salary if he voted against the Union, concluding with the statement that he should ask the other 4 Although Falk raised some question as to the accuracy of the English translation of the document received in evidence , an interpreter testified that except for one word relating to a matter of tense , the English was an accurate translation of the Spanish . In any event, Falk in effect conceded that a document of substantially similar content was prepared and distributed among the employees, for he testified, "I wrote the thing in English and the translation is in Spanish ." While the record does not reflect the precise date on which the documents were distributed , at least one employee, Rosario Padilla, tgstified that it first came to his attention in September. 5 In his brief the General Counsel asserts that Sec. 10 (b) precluded him This man was on his own . He said the excitement was too damn much for him and he walked away from it. There were statements made. I said I was going to sell the factory . . . . Some of my key personnel, men who have been with me 15 years or more, men who have large families who have responsible jobs, men who have something to do with the union couldn't cope with this. They said, "Boss, what's going to happen if the union gets in." I said, "I'm 67 years old. This rate raise is going along. I'm tired. If I can't run this thing my way, I will try to sell it." That's what I told him. If this thing had occurred and I had to sell it. I would have sold it .... If the union, if we had lost the election, I would have made an attempt to sell this thing , but I didn't tell our people that. A Christmas party was held at Respondent's plant on or about December 22, 1973. At this meeting Falk again spoke in favor of an inside union and against an outside union and again stated that he would close the plant if the Union came in -8 During this meeting he further stated that from alleging this conduct to be violative of the Act. Although this would be true as of the date of the document (August 31, 1973), I do note that the action therein proposed appears to have continued within the 10(b) period. 8 This is particularly true since reference to the formation of an "informal union" was included in conversations which Falk had with employees at times and concerning matters material hereto. 7 Diaz testified, and Falk denied, that during this conversation Falk referred to the Union with a four-letter word. However, Falk did not deny the main portion of this conversation , as related above. The alleged use of the four-letter word is not a material issue and need not be decided. 8 Credited testimony of Rosario Padilla and Orge Magna. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would give the employees a wage increase if they did not select an outside union.9 Employee Jose Lemon credibly testified concerning a conversation which he had with Falk a day or two before the election. He testified that Falk came up to him at this time and stated, inter alia, that if the Union got in he would have to cut out night work, overtime, and "people, too." Juanita Diaz, who acted as election observer for the Union at the February 8, 1974, election, testified that on the morning of the of the election Falk handed her a paper, whereupon he stated, "I know you are in favor of the union." She said that when he replied, "You don't know that," Falk stated, "Yes, I know you are in favor of the union." Concerning the paper which Falk gave her, Diaz testified that it stated, "I will give you a picnic the 4th of July. You can take all of your relatives with you. I will give you a bonus and you will vote `No' for the outside union; the union from the outside will give you three or four days of work a week." 10 Diaz testified that on this morning she also observed Oose Hyland, vice president of the Respon- dent, and Don Fidel, a former foreman of the Respondent, distributing papers to the employees. Concerning all of the foregoing, Falk testified only that Fidel was not at the plant on election day, and further that "we were told and instructed that there would be no election activities on that day; and, during certain hours we abided by that decision." Falk did not otherwise deny the testimony of Diaz concerning the conversation which she had with him on the morning of February 8 and the paper which he handed her at that time. I credit the testimony of Diaz as set forth above.1' In sum, and upon all the foregoing, I find that Respondent violated Section 8(axl) of the Act by the conduct of its president in threatening to close the plant if the Union came in, threatening to eliminate overtime and night work' if the Union came in, and promising to grant the employees an increase in wages and other benefits if they did not select the Union as the bargaining representa- tive, and by interrogating employees concerning their union activities and sympathies and the union activities and sympathies of other employees. C. The Termination of Juanita Diaz, Ismael Diaz, and Rosario Padilla 1. The General Counsel's case It is undisputed that on February 12, 1974, agents of the U.S. Immigration Service came to the plant, showed Falk a copy of the Excelsior list,12 and seized approximately 50 percent of Respondent's 80 production employees alleged- ly because they had entered the country unlawfully. Falk 9 Credited on substantially corroborative testimony of Rosario Padilla and Juanita Diaz. 10 Diaz testified that Falk took the paper from her after she had tead it. 11 Oose Hyland did not testify although she was present at the hearing. 12 The record reflects that the fist, which Respondent and General Counsel refer to in their brief as the so-called Excelsior list, was a duplicate of the list of employees which Respondent had furnished to the Board and to the Union prior to the representation election. 13 Diaz testified that during this conversation Falk also made the statement, "You don't feel ashamed to be working in my place after being in favor of the union." Whatever construction the General Counsel or Respondent would give to this remark, I find the remark to be ambiguous. testified that, when he asked the agent in charge where he obtained the list, the agent replied that he could not tell him, but that "usually this stuff comes from the union." It will be recalled that Juanita Diaz acted as the umon observer at the election held on February 8. This employee testified without contradiction that, on February 12, Falk came up to her, stated that she was for the Union, and thereupon accused her of having called the U.S. Immigra- tion Service. He further told her, she testified, that, if she wanted the Union, she should "go with the 'union." 13 According to the further uncontradicted testimony of Juanita Diaz, Falk came up to her again on the morning of February 14 and at this time spoke to her as follows: "Stop working, you brought to me a lot of problems, you call to the Immigration and besides that I am telling you, you are telling it to the union and beside that all the women from this place are mad at you because you are not representing them in the union." It appears that Diaz in fact did not stop working at this time, but Falk came up to her again at or about 11:30 a.m. This time, according to her undenied testimony, Falk told her that he did not want her working at his plant and that she should wait for her check. She thereupon left the plant.14 Upon arriving home she apprized her husband, Ismael Diaz, of what had happened. Ismael Diaz, also an employee of Respondent, was at this time off work due to an injury incurred at the plant. Upon being so advised, Mr. Diaz promptly called the plant and spoke to Jesse Godinas, the general foreman, and asked why his wife had been laid off. According to the unrefuted testimony of Diaz, Godinas responded that she had been laid off because she had brought "too many problems to the factory," and "because she was sitting at the table when the union was there" and because "all the women in the factory were mad at her." Diaz rejoined that his wife was "innocent," but that it was Rosario Padilla, a machine operator, who had brought the Union to his home. Godinas thereupon told Diaz that his wife could have her job back "if you can prove before Mr. Falk that your wife [is ] innocent." Godinas also advised that they should come to the plant the following Monday if they wished to prove that point. Mr. and Mrs. Diaz came to the plant early Monday morning, February 18. Juanita Diaz first went to the timeclock and observed that her card was missing. Not long thereafter she and Mr. Diaz were summoned to the vestibule of Falk's office. Rosario Padilla and an employee who acted as interpreter were also summoned there. Through the interpreter, Falk thereupon held a meeting with Juanita Diaz, Ismael Diaz, and Rosario Padilla. Each of these employees testified as to the conversation which ensued. While not in strict accord in every detail, in its In this regard it is noteworthy that all the employee witnesses testified in Spanish and that their testimony was translated into English by an interpreter. I shall not speculate whether the ambiguity was due to the manner of speech of the witness , whether it was due to possible error of the interpreter or the court reporter, or whether in fact it was an exact quotation of what was said. 14 Falk testified that on February 14 he told all the remaining employees to go home. Apparently they did so, since Falk also testified without contradiction that the plant from this time was closed until February 18. However, Falk did not deny the individual conversation with Juanita Diaz, as related above. FORT LOCK CORPORATION 163 entirety, however, their testimony was substantially corro- borative. Their version of what transpired may be synthesized as follows: Falk first brought up the raid which had occurred the preceding week, asking those present if they did not feel sorry for the employees who had been taken away in handcuffs. He mentioned that he had paid a certain sum of money "from each person from Mexico." He then stated that he was afraid of three employees, naming each of them ; Ismael Diaz, Juanita Diaz, and Rosario Padilla, because they had brought too many problems to the plant and because they had called Immigration. At or about this point he asked Padilla if he "had brought the union" to Juanita and Ismael Diaz. Padilla responded in the affirmative , adding that he and another employee (Charo) had brought the Diazes' cards to be signed. Padilla denied, however, that he had called Immigration. Falk thereupon told the three employees that he was laying them off for about 2 weeks or a month and that after that he would call them back. Falk concluded by stating that he did not want a union in the plant and that if they wanted a union they should go find a place with a union. It is undisputed that Respondent did not at any time thereafter call the three employees and ask them to return to work. They have not since worked for the Company. 2. Respondent's defense; conclusions as to the discriminatees The essence of Respondent's defense, according to Falk, is as follows: He (Falk) received reports to the effect that some of his employees were under the belief that the Union was responsible for calling Immigration and bringing about the raid. These reports further had it, he said, that these employees threatened to take bodily harm against Mr. and Mrs. Diaz and Padilla because they were the persons whom these employees believed to be "associated most closely with the union." Accordingly, Falk asserted, it was for their own protection that he decided to lay off the three alleged discriminatees for 2 weeks or a month until the situation quieted down, after 'which time they were to call him to see about returning to work. Concerning the conversation which he had with the Diazes and Padilla on the morning of February 18, Falk simply testified as follows: I called them all in and I said to them, there's so much excitement around here and there's threats now to your person. I have actually had people threaten if they got ahold of you, they would beat the daylights out of you. " I said ... "Why don't we do this, you take a two- weeks leave of absence ; and, if its quiet after two weeks, then fine, you can come back to work . If not, then you might have to stay out as long as a month, but get in touch with me and I'll let you know what the situation is." Tutning to my conclusions , upon the entire record I am convinced and find that the three employees whose cases are at issue were terminated from their employment for reasons proscribed by the Act. There are a number of reasons for my so finding, including, in the first place, the fact that Respondent's defense does not stand up under scrutiny. Thus, bearing in mind that the ultimate basis asserted by Falk for "laying off" these employees was predicated upon reports he had received from other persons, Falk testified on the first day of the 2-day hearing that these reports "came to me from not one or two but a half dozen people in the factory." When he was thereupon asked to identify these individuals, Falk responded, "I can produce them, sir. I don't recall their names. I'm very bad on names." The fact is, however, that Respondent failed to produce any employees to testify on this important point. The only testimony bearing on this subject at all was adduced through Jesse Godinas, the general foreman, who was called by Respondent on the second day; and as for Godinas, he was only able to testify concerning a conversation which he had with a nonemployee, one Sonja Jacome, who was the wife of another Respondent foreman. According to Godinas, Jacome came to the plant one day shortly after the raid to pick up some checks and at this time told him, "You know the people are very angry and are looking for the persons that cause this. They want to give them a lesson." When asked if Jacome named the persons who "the people" were looking for, Godinas responded that she named Ismael Diaz and Rosario Padilla. He did not say that she also named Juanita Diaz. Although Godinas testified that he reported the foregoing conversation to Falk, this was the entire extent of the evidence adduced by Respondent as providing the asserted basis for Falk's actions on February 18. Assuming that Godinas did report this matter to Falk, this hearsay information would hardly seem a sufficient basis for justifying Falk's action in kind. In any event, however, the evidence in this case leaves little doubt but that the reason advanced by Respondent for the terminations (i.e., the alleged threats) was at best but a pretext for discrimination. For the reasons below, I so find. To briefly recapitulate, it has been previously noted that Respondent was extremely hostile to the unionization of its employees. As the only observer on behalf of the Union at the representation election , it is obvious that Respondent knew Juanita Diaz to be a leading union supporter. Indeed, at the hearing Falk went so far as to say that he "resented the fact" that Juanita Diaz exercised her legitimate right in challenging several of the voters at the election. Moreover, that he also resented the fact that she was a union supporter is clearly evidenced by the fact that a few days after the election he told her that "if she wanted the union, she should go with the union." Two days later she was sent home because, according to the reasons given her by Falk, she had caused "a lot of problems" and because she had called Immigration. Significantly, when Mrs. Diaz' hus- band called the plant later that day and spoke to Foreman Godinas, Godinas told him that she was laid off because she had brought too many problems to the factory and because she was "sitting at the table when the union was there," the latter remark an obvious reference to her having acted as the union election observer. Furthermore, when Mr. Diaz protested that his wife was innocent , but that Padilla had brought the Union to them, Godinas stated 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she could have her job, back if he could prove to Falk that his wife was innocent. From the foregoing, it would indeed appear that Mrs. Diaz was unlawfully terminated on February 14 because she was a union supporter. But to continue, and adding to the plausibility of the testimony of the alleged discriminatees, it is noteworthy that Padilla was not brought into the picture until after Mr . Diaz told the general foreman that it was Padilla who had brought the Union to him and his wife . Thus, when Padilla was summoned to appear before Falk along with Mr. and Mrs. Diaz on the morning of February 18, Falk asked Padilla if he in fact had brought the Union to the Diaz's just as Mr. Diaz had informed Foreman Godinas on the previous Friday. It was then, upon Padilla's affirmative response to the question, that all three of the employees were terminated. Any remaining doubt as to the real reason for this action is dispelled by Falk's final statement to these employees, and one which clearly speaks for itself , that he did not want a union in the plant, but if they wanted a union they should go find a place that had one. In finding that Diaz and Padilla were terminated because they were union supporters , as I do, I am mindful that Falk and Refugio Gonzales, the individual who acted as interpreter on February 18, testified that the discriminatees were advised to call back after 2 or 4 weeks to see if the situation had calmed down sufficiently for them to return to work. However, the three discriminatees , and each of them, testified that Falk promised to call them. From my observation of the witnesses , I credit the testimony of the discriminatees on this point.15 Indeed, upon the entire record in this case, I am persuaded that Falk had no intention whatsoever of recalling these employees after he let them go on February 18, 1974. Except for the further factual situation with regard to Ismael Diaz, which I note immediately below, I conclude and find that these employees were effectively discharged as of that date. It will be recalled that Ismael Diaz was off work due to an injury at the time he brought his wife to the plant on February 18. He was, nevertheless, summoned by Falk to the above-described meeting which was held in the vestibule of Falk's office . Aside from the fact that Ismael's wife was known by Respondent to be a union supporter, Falk testified that, in the month or two preceding February 18, he observed that Ismael was "very active" in driving back and forth from the plant and that he therefore "really thought he [Ismael ] was under the employ of the union." Inasmuch as Ismael Diaz was known or suspected by Falk to be a union adherent, and inasmuch as he was fully included in the discussion held on February 18 (at which time he was still an employee, albeit on a leave of absence), it is clear that Falk's entire remarks were also applicable to him and that, in the context of the entire discussion, he was also terminated at that time.16 In sum, upon the totality of the evidence and for the reasons described above, I conclude and find that Juanita Diaz, Ismael Diaz, and Rosario Padilla were terminated by 15 With respect to Gonzales, the record clearly reveals that he did not have a reliable memory of the February 18 discussion wherein he acted as interpreter. Thus, whereas it is undisputed between all the parties , including the Respondent, that Padilla was present, Gonzales testified that only Mr. and Mrs. Diaz were present 16 However, and as noted in In. 19, infra, any backpay owing Diaz shall Respondent in violation of Section 8(a)(1) and (3) of the Act. D. Alleged Discrimination against Socorro Cervantes Socorro Cervantes is the wife of Rosario Padilla. The complaint alleges that on or about February 1, 1974, and thereafter, Respondent discriminatorily refused to recall her because she was Padilla's wife. Cervantes worked for Respondent from September 1972 until November 8, 1973. It is undisputed that on the latter date Cervantes quit her job to go to California. It is also undisputed that she did so without giving Respondent any advance notice and without giving any indication that she ever intended to return to her job. She simply sent a note to her foreman stating that he should "please send my check to California because I [am] going to California." 17 Cervantes returned from California on or about January 28, 1974. At no time thereafter did she personally apply for a position with Respondent. However, her husband, Padilla, testified that immediately after she returned from vacation he asked Foreman Godinas that she be returned to her job. According to Padilla, the foreman told him he should wait a week. Padilla testified that on several subsequent occasions he repeated this inquiry , but that each time the foreman told him to wait . Finally, Padilla testified, the foreman advised him that he was sorry that he could not give her a job. In addition to the foregoing, the General Counsel called Marie Escovar, the sister of Rosario Padilla . Escovar worked for Respondent from May 1973 to October 1973, at which time she left by reason of pregnancy. Escovar testified that she telephoned Godinas in April 1974 to see about returning to work. According to Escovar, Godinas responded, "You are losing your time because I am not giving more work for the family of Rosario." Concerning this conversation, she later testified that Padilla added to the foregoing statement "because your brother is giving me problems." Notwithstanding that the above testimony does raise some suspicion as to Cervantes' case, I am persuaded that the General Counsel has not established by a preponder- ance of the evidence that Respondent discriminated against Cervantes in violation of Section 8(a)(3) of the Act.ts There is no evidence that Cervantes was at all active in the Union or that she had even signed a union card. More importantly, and with particular regard to the General Counsel's theory of the case, it will be recalled that Respondent did not learn of Rosario Padilla's union activities until being so apprized by Ismael Diaz on February 14. With respect to the times that Padilla requested Foreman Godinas to put his wife back to work, Padilla's testimony was uncertain . Except for his testimony that he first spoke to Godinas on this subject "immediate- ly" after his wife returned from California, he did not pinpoint or identify any of the subsequent occasions when not commence until he was released by his doctor for resumption of work 17 Testimony of Cervantes. 18 In view of the General Counsel's apparent reliance on the testimony of Mane Escovar, one might speculate why she was not also named in the General Counsel's complaint. FORT LOCK CORPORATION 165 he repeated this request . In short, the General Counsel did not establish that Padilla requested , and that Respondent refused, to hire (or rehire) Socorro Cervantes at any time on or after February 14, the earliest date of any proven company knowledge. Any inference of discrimination against Cervantes that may be drawn from the testimony of Escovar is negated by the equally arguable inference that Respondent refused to hire Cervantes immediately upon her return from California because she quit her job without notice and therefore was not a reliable employee. Indeed, Falk testified that this was the second time that Cervantes had walked off the job and it was for this reason that the foreman did not rehire her again. Accordingly, in view of all the foregoing, it is recommended that the allegation as to Cervantes be dismissed. E. The Objections The Union offered no evidence in support of its objections 1, 5, and 7. These objections are, therefore, overruled. Objections 2 and 3 parallel the 8(axl) violations which I have previously found with respect to unlawful promises of benefits. These objections are, accordingly, sustained. Objection 4 parallels the 8(aX3) violations previously found. It is therefore sustained. Having found that objections 2, 3, and 4 have been sustained, it is recommended that the election held on February 8, 1974, be set aside and that a new election be held at such time as the Regional Director deems appropriate. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE discharge to the date of Respondent's offer of reinstate- ment. Backpay shall be computed in accordance with the formula in F. W. Woolworth, 90 NLRB 289 (1950), with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).19 In view of the nature and extent of the unfair labor practices herein found, it will be recommended that Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Juanita Diaz, Ismael Diaz, and Rosario Padilla, for the purpose of discouraging member- ship in a labor organization, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act by not rehiring Socorro Cervantes. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby make the following recommended: The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above , have a close, intimate, and substantial 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. V. 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. It having been found that Respondent discharged Juanita Diaz, Ismael Diaz, and Rosario Padilla, I shall recommend that Respondent be ordered to offer them full and immediate reinstatement to their former positions, or, if these positions no longer exist, to substantially equiva- lent positions without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered from the date of their i9 Ismael Diaz was released by his doctor for his previously noted injury on March 4, 1974. He called Foreman Godinas on March 5, 1974, to see about returning to his job but at that time was advised that no position was available for him . Accordingly, and although I have found that this employee was unlawfully terminated on February 18, 1974, any backpay owing him shall not commence until March 5, 1974. ORDER20 Respondent, Fort Lock Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 44A, Service Employees International Union, AFL-CIO-CLC, or in any other labor organization, by discharging employees, or otherwise discriminating against them in any manner, in regard to their hire or tenure of employment or any term or condition of employment because of their union activity. (b) Interrogating employees about union activities or sympathies or the union activities or sympathies of any other employee. (c) Threatening to close its plant or to eliminate overtime and night work if the above-named Union or any other labor organization succeeds in organizing its employees. (d) Promising its employees wage increases or other benefits during an organization campaign in order to adduce them to abandon the Union. 20 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. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purposes of collective bargain- ing or any other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Juanita Diaz, Ismael Diaz, and Rosario Padilla immediate and full reinstatement to their former positions, or, if these positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered as a result of the discrimination against them 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 for examination and copying, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due. (c) Post at its plant in River Grove, Illinois, copies of the attached notice marked "Appendix" 21 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized representative, shall be posted of the attached notice marked "Appendix." 21 Copies of said notice, 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 Respondent to insure that such 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 Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that (1) the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein; and (2) that the election be held at such time as the Regional Director deems appropriate. 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 WE WILL NOT unlawfully interrogate our employees with respect to their union activities or sympathies or with respect to the union activities or sympathies of other employees. WE WILL NOT threaten to close our plant or to eliminate overtime and night work if the employees select Local 44A, Service Employees International Union, AFL-CIO-CLC, or any other labor organiza- tion, as their bargaining representative. WE WILL NOT promise to grant our employees wage increases, bonuses, or any other economic benefits for the purpose of influencing them to abandon their union activities. WE WILL NOT discharge, lay off, or otherwise discriminate against our employees because of their union activities. WE WILL offer Juanita Diaz, Ismael Diaz, and Rosario Padilla immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges , and we will make them whole for any loss of earnings they may have suffered because of our discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist other labor organizations, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 21 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 FORT LOCK CORPORATION