Crest Door Co.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crest Door Company and Retail Clerks' Union, Local 373 Retail Clerks International Association, AFLr- CIO; Teamsters Local 490, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 20-CA-9096 July 29, 1975 DECISION AND ORDER On October 30, 1974, Administrative Law Judge E. Don Wilson issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed an an- swering brief and letter. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified here- in. We do not adopt the Administrative Law Judge's recommended Order to the extent that it provides that Respondent resume night-shift work. Respon- dent had operated night shift for less than 2 months. When it discontinued the shift, it transferred all night-shift employees to daytime work. No employee was terminated and none suffered any loss in pay. Employees in this plant needed no special skills, job assignments were interchangeable, and the same type of work was performed on both shifts.; Moreover, Respondent has moved part of its operation to its Riverside plant, more than 400 miles distant.4 Re- sumption of nighttime work could thus entail finan- cial hardship to Respondent. In these circumstances, ' We correct a reference in the paragraph following In. 16 as it appears in the body of the Decision (sec. III, Q. The paragraph gives an account of a conversation between Respondent's president Katz and employee Abbott on April 18, 1974. The record shows that the conversation was overheard by em2ployee Walters, and not Werner as reported. We do not affirm the conclusion of Administrative Law Judge that Respondent's foreman Pitz' March 1974 repetition to employees of Presi- dent Katz' statements about plant closure or reducing operations violated Sec. 8(axl). Counsel for the General Counsel expressly stated at the hearing that he was not alleging this conduct as an unfair labor practice , and the Administrative Law Judge stated that therefore he would not find it. Ac- cordingly, we do not find it. However, this should not be taken to mean that the Administrative Law Judge could not rely on these threats-as he did- together with his other 8(axl) findings to show Respondent's union animus motivating its 8(a)(3) conduct, particularly in light of the direct threats by Katz himself of plant closure and reduction of operations. 3 The only testimony respecting the comparative merit of the night shift was that of employee Darrell Walters . He testified that he volunteered to work the night shift because the plant was "awful warm" and "just to get away from Mr. Katz [Respondent's president) was one of the biggest rea- sons." The reasons given by Walters for preferring night work are hardly considerations that would weigh heavily in the Board's shaping an order to redress any injury done to employees. The General Counsel states, in his letter to the Board, that the work performed on the night shift was "the same type work" as that performed on the day shift. 4 Standard Highway Mileage Guide, Rand McNally & Co. (1973). where the employees have not been deprived of work or pay, we find that an order to Respondent to re- sume the night shift is inappropriate. In situations where employees have lost their jobs due to an employer's discriminatory change in its method of doing business and undue financial-hard- ship would not result to the employer, the Board has ordered the employer to return to its old way of doing business. The Board has been reluctant to or- der this, however, and it has not done so, where em- ployees have not lost work or pay or resumption of the discontinued operations could be unduly burden- some to the employer.5 Our molding of the remedy suits the needs of this case and is consonant with settled precedent. Moreover, since the Joint Peti- tioners were certified, the desirability or economic necesssity for reinstitution of the night shift can best be resolved by resort of the parties to the collective- bargaining process. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Crest Door Company, Vallejo, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: Delete paragraph 2(d) of the recommended Order and reletter subsequent paragraphs accordingly. MEMBERS FANNING and JENKINS, concurring and dis- senting in part: We agree with our colleagues in all respects except for their disposition of that portion of the recom- mended remedy ordering the reinstatement of the Respondent's night shift. In our view, the appropri- ateness of such an order is amply demonstrated in the circumstances of this case, and we are not satis- fied with our colleagues' reasons for denying it. We agree that the Respondent abruptly terminated the night shift in direct response to the Union's suc- cessful campaign. Indeed, shortly after the ballots were counted on election day, President Katz sud- denly announced that the night shift would be termi- nated because the "Union was coming in." More- s Howmet Corporation, 197 NLRB 471, 487 (1972); Weisman 's Furniture and Appliances, Inc., 187 NLRB 670, 677 (1971); Rodney Metals, Inc.. 160 NLRB 1419, 1420-21 (1966); Garwin Corporation, SAgaro, Inc., 153 NLRB 664,665 (1965), enfd. as modified 374 F.2d 295 (C.A.D C.), cert. denied 387 U.S. 942 ( 1967), on remand 169 NLRB 1030 (1968 ); Morrison Cafeterias Consolidated, Inc., 148 NLRB 139, 148 (1964), and 177 NLRB 591, 597 (1969); Square Binding and Ruling Co., Inc., 146 NLRB 206 (1964). See also Fibreboard Paper Products Corporation v. N.L R.B., 379 U.S. 203, 216, In. 10 (1964). { 219 NLRB No. 96 CREST DOOR COMPANY over, we agree that this and other unlawful activity (including the discriminatory discharges of 20 per- cent of the employees in the unit) was taken without "any economic justification ." In these circumstances, it is well settled that the Board, "having found a vio- lation, must issue a remedial order ." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. N.L.R.B., 427 F.2d 1330, 1332-33 (C.A. 6, 1970). See also United Steel- workers of America, AFL-CIO v. N.L.R.B., 386 F.2d 981, 983 (C.A.D.C., 1967); International Woodwork- ers of America, Local 3-10 v. N. L. R. B., 380 F .2d 628, 630-631 (C.A.D.C., 1967). Here, as the Administra- tive Law Judge recommended , the normal remedy requires the reinstatement of the night shift .6 The right of the employees to return to their former jobs (and to nightwork rather than daywork if they worked at night before the Respondent 's miscon- duct), and the Respondent's obligation to reinstate them in those jobs, is not reduced or eliminated merely because the discriminatory deprival of work embraced the entire shift rather than only a few em- ployees on the shift. Our colleagues are allowing Re- spondent to escape the usual and complete remedy solely because its violations were sweepingly broad, rather than limited to one or a few individuals. Yet the majority, claiming that it is "molding the remedy" to meet the need, rejects this appropriate remedy . And for what reason? According to our col- leagues the employees transferred to daytime work suffered not a whit of cognizable harm while the Re- spondent, if ordered to reinstate the night shift, could face financial hardship. We find it disconcerting in the extreme that our colleagues' solicitude for a wrongdoer is coupled in this case with indifference to the adverse conse- quences that could befall employees if this Board fails to remedy fully the Respondent's misconduct. Thus, for example, it is a commonplace of contempo- rary life that several working members of a family will seek, for a variety of reasons, to stagger their respective working hours. In other cases, employees may have to work the night shift in order to work at another job during the day. Such considerations may well have motivated employees of this Respondent to work the night shift.' To conclude, as our colleagues apparently would, that this Board's failure to order Respondent to reinstate the night shift will have no adverse effect on such employees is speculative at best, and in fact ignores those industrial realities which our putative expertise concerns. Finally, we note and reject the majority 's sugges- tion that the question of reinstating the night shift can best be left to the collective-bargaining process. We see no justification for shirking our statutory re- 649 sponsibility to remedy this Respondent's misconduct in accordance with our own precedent. Moreover, we do not see how collective bargaining is facilitated by additionally burdening it with a responsibility which, by statute, is ours to bear in the first instance. 6 See Les Schwab Tire Centers, Inc, 172 NLRB 164, 170 (1968); Trey Packing, Inc., 172 NLRB 291 (1968); see also Bruce E. Kronenberger and Herbert Schoenbrod d/b/a American Needle & Novelty Company, 206 NLRB 534 (1973); George Lithograph Company, 204 NLRB 431, 432 (1973); Jack• son Farmers, Inc v. N.L R.B, 457 F.2d 516 (C.A. 10, 1972) Accord- Fibre- board Paper Products Corp, v. N L. R B., 379 U.S. 203 (1964). 7 Nor, of course, are these the only legitimate considerations that could make night-shift work desirable or necessary to employees. DECISION STATEMENT OF THE CASE E. DON WILSON, Administrative Law Judge: Based on a charge filed by Retail Clerks Local 373, and Teamsters Local 490, herein the Unions or Union, on April 10, 1974,1 the Regional Director for Region 20 of the National Labor Relations Board, herein the Board, issued a complaint and notice of hearing on May 31, 1974. It was therein alleged that Crest Door Company, herein referred to as Respon- dent and sometimes as "Katz", committed various viola- tions of the National Labor Relations Act, as amended, herein the Act. Respondent timely denied it had violated the Act in any manner. Pursuant to due notice , a hearing in this matter was held before me in San Francisco, California, on July 16 and 17, 1974. The parties fully participated. General Counsel and Respondent filed excellent briefs which have been fully considered by me. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material, Respondent has been a California corporation with an office and place of business in Vallejo, California, where it has been engaged in the manufacture of mirrors and sliding closet mirror-doors. During 1973, it sold and shipped products valued in ex- cess of $50,000 directly to customers located outside the State of California. 11. THE LABOR ORGANIZATIONS At all material times, the Unions have been labor organi- zations within the meaning of the Act. 1 All dates are within 1974, unless otherwise stated. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE UNFAIR LABOR PRACTICES 2 A. The Issues 1. An issue concerns when Anthony Camacho became a supervisor and an agent of Katz within the meaning of the Act. I find in agreement with the parties that he became such supervisor and agent no later than March 14, 1974. 2. Whether, since on or about March 1, 1974, Respon- dent interfered with, restrained, or coerced its employees in exercising their rights as guaranteed by the Act by creating the impression of surveillance of the employees ' union ac- tivities ; by threatening employees with reprisals by telling them that employees responsible for bringing in a union would be laid off; by interrogation of employees concern- ing the union interests of themselves and of other employ- ees; by warning employees that Katz' plant at Vallejo, Cal- ifornia, would be relocated, unless the employees ceased union activities; by warning employees of a discontinuance of a work shift because the employees were assisting the Union; and by threatening employees that they would lose work if they continued to assist and support the Union. 2 The primary witnesses in this case are Frank Pitz , herein Pitz, and Mr. Lawrence Katz, herein Katz. Admittedly Pitz was convicted of the felony of auto theft in 1958 and he served time in prison therefor. There is no sugges- tion that he either prior thereto or thereafter committed other felonies. i, of course, have considered his admitted commission of a felony in evaluating his credibility. Such consideration has involved the obvious fact that it oc- curred more than 15 years ago . In light of this finding, I further find that his demeanor impressed me most favorably . I found his testimony to be most frank and forthright . I have further considered the fact that he was dis- charged by Katz about the middle of March 1974. Whether or not his discharge was justified is not properly within my purview, as I consider these proceedings. I find that Katz, having become well aware of the admit- ted felony of Pitz, nonetheless continued him in his employ as an agent, supervisor, and foreman. As indicated, I credit entirely the testimony of Pitz. I have also considered the fact that there were hard feelings between Pitz and Katz as of the time of discharge. Katz presents a different picture to me. His demeanor impressed me most unfavorably. According to him , he had been through seven other Board elections and he apparently wished me to find that on this set of facts it would be unreasonable for me to find that he had engaged in any unfair labor practices. Names of cases involving such elections , how they turned out, and his activities in connection with the same are unknown to me I can conclude that from such a wide experience, Katz learned , as he apparently would urge me to believe , that he knew better than to commit any unfair labor practices, or I could conclude that he became or learned how to be an experienced and clever violator of the rights of his employees as guaranteed by Sec_ 8(bX7) of the Act. The fact is that Katz did not testify , for the most part, in a narrative or direct fashion , but rather limited himself to a repeti- tious rote of denials. Although I have been a member of the Bar for more than 40 years, I recall no instance where a witness obviously sought, while under oath, advice from his attorney as to how he should testify . Consider- ing the demeanor of Katz and the nature of all of his testimony , I find no hesitancy on my part in rejecting his testimony in its entirety , unless it has been corroborated by otherwise credited testimony or documentary evi- dence. I particularly observe that I in nowise credit his claims of complete lack of knowledge as to matters which he should have known from the very nature of running his business, solely because he allegedly had no "docu- mentary evidence" as to what were the facts. Unless otherwise noted, having carefully considered the nature of their testimony and having been impressed by their respective demeanors , I cred- it the testimony of Boyce A Smith , Don O'Hara, John Shaver, Darrell Walters, Angel Chavarria , Dan Clark, Charles Werner, and Don Miller. To the extent that I have had any problem in connection with their respective testimony, such shall be pointed out by me in the body of this Decision This extra long footnote may be concluded by my noting that the entire transcript has been read by me at least several times and portions thereof, particularly in comparison with other portions thereof , have been meticu- lously studied. 3. Beginning towards the end of March and continuing into early April, did Katz terminate five named employ- ees,3 in the latter part of March and early part of April, because of their union or other protected concerted activi- ties? 4. About the middle of April, did Katz cause the trans- fer of employee Charles Werner from one work station to another because of his union or other protected concerted activities? 5. Did Katz discontinue a work shift because of his em- ployees' Union or other protected concerted activities? B. Background Katz, who operates as a California corporation, has two facilities, one located in Vallejo, California, and the other in Riverside, California. The Riverside facility was estab- lished about 1 year before Katz established his plant at Vallejo. At Riverside, the work involved merely the assem- bling of mirrors and vinyl wardrobe door products and their delivery. Parts were not manufactured. Supplies were purchased and assembly was done there. When Katz origi- nally opened his plant at Vallejo, the same functions were performed. However, about December 1973, Katz pro- cured a mirroring or silvering machine and it was installed and put into full production some couple of months there- after. When first purchased, this mirroring machine was operated during the day in Vallejo, but, for a variety of reasons, Katz decided to operate it at night and he estab- lished a swing shift in early March. Late in February, Katz obtained an edge polisher machine which he also located in Vallejo. He used this machine until about March 29, at which time, according to Katz, he found the machine was "unprofitable" and he discontinued its operation for this reason .4 As counsel for Katz states in his brief, "The four employees who worked on the machine were terminated. Of these, Angel Chavarria and Emmanuel Reeves are al- leged to be 8(a)(3)s." Again, according to the brief of the most intelligent and able attorney for Katz, it is claimed that Katz, on or about March 29, laid off 10 men, having found he could not ob- tain sufficient inventory for both Vallejo and Riverside S with respect to the production line assembly of doors and that, since the supplier of metal and vinyl production for Katz, at Vallejo, necessary in the assembly of doors, was located in Los Angeles, much closer to the Riverside facili- ty, the production line assembly of doors was shifted en- tirely to the Riverside facility of Katz 6 Katz claims that it was about this time that six employ- ees were terminated, including Don O'Hara, John Shaver, and Dan Clark, who had worked in the production line assembly of doors. In his brief, the most able attorney for Katz stated that it was concurrent with the discontinuance of the production line assembly of doors at Vallejo, that i Emmanuel Reeves, Angel Chavarria, Dan Clark, Don O'Hara, and John Shaver. 4 No books, records, nor any other documents were submitted in support of this bare statement as to what he did and what the economic situation was in the very middle of a union organizing campaign 3 Where he initially and thereafter had a plant 6 I have found that I do not credit the unsupported testimony of Katz. No books and no records and no corroborating testimony were submitted to support this uncredited testimony of Katz in this regard. CREST DOOR COMPANY the mirror machine operation was changed back to the day shift and the swing shift was terminated, the swing shift employees being transferred to days. He contends that no mirror machine employees were laid off because of the change in shift, because the mirror machine was operated on one shift only at all times. C. Facts Plant Foreman Frank Pitz, in November and December 1973, with some employees at the Vallejo plant, installed a mirror-conveyor machine and spent more than 500 man- hours in so doing. The purpose of the machine is to cut glass and convert it into mirrors. By February and March there were 7 to 10 men doing 8 to 12 hours of work on manufacturing glass into mirrors. Doors containing the mirrors were produced pursuant to invoices. After the mirror production became established, the plant had a door department, a metal department, and a mirror production and edging machine. Normally, 7 to 10 men worked in connection with the handling of mirrors. The glass doors were placed in a metal frame . With a rare exception, employees needed no special skills and job as- signments were interchangeable. Most newly hired employ- ees came from the Human Resources Development. It may be noted that Katz denied almost every word of testimony either by a former agent or a former or present employee. As I observed him, and as I have read the transcript, his denials have been pro forma.7 An employee named Brown spoke to Pitz in late January in the parking lot. He stated he was attempting to get the Union into the shop and he was distressed about the way things were going in the shop and felt that some of those matters could be changed by the employees "going union." In Katz' office, Katz and Pitz spoke about union organiza- tion. Katz told Pitz, "To lay off whoever was responsible for such organization at this time." Pitz replied that he would "find out" and that was about the extent of the conversation. Crediting Charles Werner as I do, I find there was con- siderable discussion about the Union in the plant prior to the election, as early as the middle of February and the end of February. In any event, many months before union ac- tivity began, there was a lot of "talking about bringing a union in," in the plant. The first union meeting was Febru- ary 25 when about 12 to 18 employees showed up. There- after, there was considerable talk in the plant about the Union, but only during lunch hours. It had been agreed to by the employees at the union meeting that they should not talk union during working hours and that there might be adverse consequences for them if they talked about any- thing other than work, when they were at work. I recognize and I find that Pitz and employees Werner and Clark were on a very friendly basis and that it was not uncommon for them to meet in a social atmosphere. It was not long after the union meeting, to which refer- ence has been made above, occurred that Pitz met with Werner and Clark at Werner's home. Pitz told Werner and 7 Please refer to Respondent 's brief for most of the above. 651 Clark that Katz knew of the union activities and that he had been told to "lay off whoever was responsible for said activities." Pitz truthfully testified that he has been in- structed "to lay off employees who were responsible for bringing in the Union," and he so indicated to Werner and Clark. Clark truthfully testified that at Werner's house Pitz told him and Werner that Katz told him he should find out about the Union and find out who the union organizer was and to fire him or lay him off. Werner truthfully testified that Pitz told Dan Clark and Werner that Katz knew about the union proceedings and was not happy about it and that Katz had given Pitz orders to find out who was responsible for the union activities and to lay off anybody who was a union organizer .8 Early in March, about the time Respondent began to have a "swing shift" operation, while continuing to operate its mirror machine days and evenings, Camacho was placed in charge of the swing shift. I have noted that there is no question but that he was a supervisor for and an agent of Katz at least as early as March 14. He may well have been such supervisor and agent prior to March 14, but, in any event, I find there is no question but that early in March Camacho and Pitz agreed that about 95 percent of the employees would vote for the Union .9 Early in March, Katz inquired of Pitz as to how many employees he thought would cross the picket line should one be estab- lished by the Union. Pitz replied that he knew of no one who would cross the picket line other than Camacho and Jesse Abbott. Pitz told Katz that he figured that those two would be loyal to the Company. He told Katz on this occa- sion that he believed the employees would vote the Union in. He mentioned no names other than Abbott and Cama- cho as being persons who would be loyal to Katz. In a letter bearing March 6 as its date, the Unions ad- vised Katz that they represented a majority of his employ- ees at Vallejo and they requested immediate commence- ment of bargaining negotiations. On the same date, they filed a petition for certification as bargaining representa- tive of Katz' employees at Vallejo. On March 7, Katz again spoke to Pitz about his union problems. Katz discussed the letter from the Unions and the contents thereof and then discussed the possibility of running the shop only in the evening, adding, "He'd get out there and work himself." Katz stated that he had run a shop with a couple of employees in the past, and then he brought up the question of who would be loyal to the Com- pany. Katz stated that "He knew the Union was coming." He added that it was merely a matter of time, but he won- dered who would cross a picket line or come in to work. On the next evening, Pitz again talked to Clark and Wer- ner at Werner's home. This time he spoke to them about how Katz felt about the Union's March 6 demand for bar- gaining. Pitz told these employees that Katz would shut the s Pitz, Clark, and Werner may have been on the most friendly terms and may have been meeting in a purely social atmosphere at the time Pitz made these statements, but, nonetheless, I find that they tended to interfere with, restrain, and coerce the employees of Katz in violation of Sec. 8(a)(1) of the Act. They were not merely a statement of threats by Pitz, they also were a statement that union activities were under surveillance Friendship among Pitz, Werner, and Clark does not detract from these conclusions. 9 Camacho was never called as a witness in this case by Katz. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant down or would work at night if the Union came in.10 He told the men Katz said he would close down the shop and work with two or three men , including himself. About March 8, Pitz again met with Werner and Clark at Werner's home. Pitz then again threatened them in vio- lation of Section 8(a)(1) of the Act," by telling them that Katz, having received the Unions' request to bargain, said he would shut the plant down and work a night shift, rath- er than the usual two shifts if the Unions came in. He added that Katz had threatened to work with only two or three men, including Katz. This statement also violated Section 8(a)(l) of the Act. Pitz was fired on March 14. 12 A Board election at Respondent's Vallejo plant was held on April 18. The Unions won and were certified on April 26. A consent-election agreement was approved on March 27. With no advance notice, Chavarria, who had engaged in union activities, was laid off with half a dozen other em- ployees about the time of the consent agreement. Again, with no advance notice , Reeves was terminated on March 26 or 29. Allegedly, they were terminated be- cause Katz was discontinuing "edging work." I find no evidence that Chavarria performed "edging work" in March. Respondent terminated Shaver and O'Hara on March 29, and terminated Clark on April 3. They were terminated ostensibly because the production of doors was discontin- ued. Camacho told each of these employees he was laid off because there was not sufficient work for them. Each had signed an authorization card . Camacho told some of them that door production was being transferred to Riverside, down South. Katz' recollection as to door production in March and April was unbelievably poor. Respondent claimed to have no documentary evidence as to such pro- duction for March and April. Katz had no "idea" as to the number of truckloads of doors shipped from Vallejo in April 1974. 13 He testified that shipments were made pur- suant to "order." What happened to the "orders"? Katz didn't know how many doors were in any truckload, or whether there were as many as 15 or more truckloads. He didn't know whether doors shipped from Vallejo in April were produced at Vallejo in April." Shortly after the discharges above discussed, Camacho, in violation of Section 8(a)(l) of the Act, asked employee Walters how he was coming on with getting union authori- zation cards.15 Certainly an impression of continued sur- veillance or apparent surveillance was here created by Ca- 10 At that time, he was operating two shifts. 11 Even though they were friends. 12 Perhaps for good reason Perhaps not. It appears immaterial to me. I do not find Pitz bore animus toward Katz for his termination when he testified. The circumstances of the termination may have been acrimonious. I still completely credit Pits. 13 One would reasonably expect that there would be records of some na- ture, checks, invoices, payroll records, etc 14 He testified within 3 months thereafter. There must have been records of some kind. He impressed me as a most intelligent person . He would have had some records of shipments of doors from Vallejo. He, in my view, would personally have had some independent recollection. 15 Camacho, Respondent's agent at the time of the hearing, did not testi- fy, and no explanation for his absence was offered. macho, as well as interrogation. This violated Section 8(a)(1) of the Act. About the time of the election , Katz violated Section 8(axl) of the Act by calling employee Miller to his office, telling him there was going to be an election, and asking Miller if he knew who was behind the Union.16 Werner was the observer for the Union on the day of the election. Very shortly after it was over, Katz, within the hearing of Werner, told employee Abott they would do away with the night shift because the Union was coming in. This was a violation of Section 8(a)(1) of the Act. On the day after the election, in response to Werner's question, Camacho told him there were no plans to replace him on the "regenerating machine" because of his union activities, and that Werner was the only one who would be able to handle the responsibility of it. Very shortly there- after Werner saw Katz talk to Camacho. Camacho then came to Werner and told him Werner had been taken off the "regenerating machine." Camacho said Katz had given no reason, and Katz simply didn't want Werner involved in the mirror department, at all. When Werner first started working on this job he was told he'd be trained to run the entire mirror machine . This transfer, because of union ac- tivities, was a violation of Section 8(a)(3) and ( 1) of the Act. So was the almost immediate transfer of the swing shift to day work about the time of the election. I find no explanation of such transfer other than the victory of the Unions in the April 18 election. The virulent union animus of Katz had long been evident. Some of his antiunion state- ments have been set forth , along with his illegal threats. The nonunion Abbott replaced Werner, the observer, on the morning hours that the regenerating machine worked)) We again came to Miller with the admittedly bad memo- ry as to dates. I also often had difficulty in grasping the full significance of his testimony. I find I was substantially and sufficiently successful . I find his testimony was inherent with truth and honesty. In no way was he dishonest. After the election, and probably in late April, Katz asked Miller how long it would take him to tear down and reassemble Katz' machinery. Miller gave a rough guess, Katz having mentioned that Miller knew Katz had "labor problems" at the plant. Miller said he could probably tear the machinery down in about 30 days, and reassemble it. Having had his recollection legitimately refreshed, Miller truthfully testis fied that Katz, in response to Miller's questions, said he was not going to move the machinery "south," and when Miller asked if it would be moved "north," Katz, as I ob- served Miller, just shrugged his shoulders and lifted his arms and hands, sideways, indicating to Miller and to me, that Katz "didn't know." While Miller, because of what I find was scrupulosity, had much difficulty in putting his thoughts and memories into words, I find the substance of the above conversation occurred as I have found. I find Katz referred to his "labor problems" and wanted to find out from Miller how long it would take Miller to dismantle 16 Miller's memory, particularly as to dates, etc , was admittedly not very good. It was bad. Where he testified that something happened or was said, I am convinced the testimony was truthful He impressed me as determined to tell nothing but the truth to the extent he had a recollection . I am con- vinced he succeeded. 17 Abbott did not testify. CREST DOOR COMPANY and reassemble the basic substance of this needed machin- ery and, in response to Miller's questions , stated he did not know whether he would move the plant north, but would not move it south) It is plain to me that Katz, having remarked to Miller about his "labor problems," almost si- multaneously indicated a wish to move the plant from where the Unions had just won an election. Katz, in this conversation with Miller, violated Section 8(a)(1) of the Act. Katz would have me believe these questions were ad- dressed to Miller in anticipation of the expiration of his lease, which had 6 more years to run. I find his explanation absurd. Miller had every reason to believe that Katz would imminently move the plant because of his "labor prob- lems." 19 This was because of Katz' questions and state- ments, which in combination, especially in light of timing, constituted violations of Section 8(a)(1) of the Act. Katz made it clear to Pitz from the outset , that he was keeping the union activities of his employees under surveil- lance and wanted them to be so kept. Pitz violated Section 8(a)(1) of the Act by conveying these statements to em- ployees even though they were on the best of friendly terms. The latter may well have emphasized the seriousness of the situation. Katz' statements followed upon the heels of the first union meeting, and clearly indicated surveil- lance, since the source of knowledge was not revealed. So, too, did Pitz' reports to employees, that Katz wished him to seek out and discharge those responsible for union activi- ty, violate Section 8(a)(1) of the Act. All interrogations by Pitz or Katz about employees' union activities , as found above, violated Section 8(a)(1) of the Act. Respondent violated Section 8(a)(1) of the Act by Camacho's interrogation of an employee as to union activi- ties. Katz' established union animus, his threats and the tim- ing unmistakeably demonstrate that Katz violated Section 8(a)(1) of the Act by his telling Abbott, about an hour after the election, that he would eliminate the night shift because the Unions were coming in. So did Katz violate Section 8(a)(1) of the Act by talking to Miller about the movement of machinery, obviously in an effort to dissipate union support. There is no question about it. Reeves, Chavarria, O'Hara, Shaver, and Clark engaged in union activities. This is why Respondent, in violation of Section 8(a)(3) and (1) of the Act, discharged them. Obviously, Katz was well aware of union activities in the plant. He knew there was almost unanimous support for the Union? He didn't have to fire all, to show he wanted none, and wanted to coerce all. These alleged 8(a)(3)'s, I find, were discharged as part of Katz' effort to eliminate the Union which was obviously odious to him. The five dischargees were a selected symbol and token of union supporters. They were to be the "horri- ble example." They were almost 20 percent of those he believed to be union supporters. Katz had told Pitz of his plans to close the plant, or operate with two or three employees, or use only a night 18 Even in Vallejo, there is East and West or variations. 19 A 6-year lease was not mentioned. 20 95 percent? 653 shift. He was pervaded with antiunionism. The five dis- chargees were dispensed with in an unsuccessful effort to destroy union support about the time the consent election agreement was approved. Thereafter Respondent contin- ued interrogation, in violation of Section 8(a)(1) of the Act, almost until the date of the election. Right after the elec- tion, Respondent, in violation of Section 8(aX3) and (1) of the Act, transferred the union observer from a preferred job to one less desirable, and discontinued the swing shift. Katz did not keep his preelection threats free from fulfill- ment, but rather, with Miller, threatened, rather obviously I find, to move the plant. It must be remembered that Respondent kept up a steady increase in its employee enrollment until the Union made its demand for recognition. Respondent's almost complete lack of records, according to it, is not credited. As I have found, Katz was a highly intelligent busi- nessman. As such, accurate business records must have been most important to him. I find Katz' claims of eco- nomic necessity for the discharge of the five alleged 8(ax3)'s to be without basic substance, concocted fabrica- tions, and pretexts emphasizing the unlawful reasons for their discharge. They were union activists, discharged for no established lawful reason, by an employer who by threats, etc., had made manifest his antiunion motivation and determination not to have the Union in the plant and eradicate union supporters. The "timing" is substantially to labor law what is res ipsa loquitur to the law of negligence. Claims of economic justification find no substance herein, and absence of obvious records is inexplicable. Respon- dent has been singularly unconvincing in answering the prima facie case of General Counsel. I have not heard, nor have I read a word, or sentence, or paragraph, that this employer, so filled with antiunion animus, had any eco- nomic justification for any of the activities it engaged in, in violation of the Act. It had no concern for the require- ments of the Act. General Counsel has established by a preponderance of the probative and substantial evidence, that Respondent has violated the Act as alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of "Respondent set forth in section III, above occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, 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, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that in late March or early April Respon- dent terminated Emmanuel Reeves, Angel Chavarria, Dan Clark, Don O'Hara, and John Shaver and has thereafter 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed and refused to reinstate them, because of their union and other protected concerted activites, I shall recommend that Respondent make them whole for any loss of wages or pay any one may have suffered by reason of Respondent's discrimination against them, or him, in violation of Section 8(a)(3) and (1) of the Act, in the manner set forth in F. W. Woolworth Company, 90 NLRB 298 (1950), with interest on backpay computed in the manner described in his Plumb- ing & Heating Co., 138 NLRB 716 (1962), and reinstate them to their former or substantially equivalent positions. Also, employee Charles Werner, an employee of Re- spondent as of the dates of the hearing herein, is to be reinstated to his former work station in view of the fact that his transfer therefrom was caused by his engaging in union and other protected concerted activities. I shall further recommend an order that Respondent re- instate the work shift it discontinued because of the em- ployees' membership in or activities on behalf of the Unions or because they engaged in other protected con- certed activities. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Unions are labor organizations within the mean- ing of the Act. 3. By discharging Reeves, Chavarria, Clark, O'Hara, and Shaver and thereafter failing and refusing to reinstate them because of their union and other protected concerted activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By transferring Charles Werner from one work sta- tion to another because of his union and other protected concerted activities, Respondent violated Section 8(a)(3) and (1) of the Act. By discontinuing a work shift because of the employees' union or other protected concerted activ- ities shortly after the election, Respondent violated Section 8(a)(3) and (1) of the Act. 5. By creating the impression of surveillance of the em- ployees' union and other protected concerted activities, by threatening them with reprisals and by interrogating them about their union activities and the union activities of other employees, and by warning employees that they would lose work and that the plant would be relocated and that a work shift would be discontinued, Respondent by such and other similar activities interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 6. Camacho was a supervisor and agent of Respondent at all material times, at least since March 14, 1974. 7. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the entire record, including the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER21 Respondent, Crest Door Company, Vallejo, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against any of its employees because of their support for or assistance to any union or unions or because they engaged in any concerted activities protected by the Act. (b) In any manner interfering with, restraining, or coerc- ing any employee in his right to join, assist, or support the Unions herein or any other labor organization or engage in any activities protected by the Act, or to refrain from so doing. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make Reeves, Chavarria, Clark, O'Hara, and Shaver whole for any loss of earnings any one of them or all of them may have suffered by reason of Respondent's unlaw- ful discrimination against them in the manner set forth in the Remedy section of this Decision, and reinstate them to their former or substantially equivalent positions. (b) Preserve and, upon request, make available to the Board or any of its agents all records necessary or useful to determine or compute the amount of backpay due to each one of the discharged employees above named, if any. (c) Reinstate Charles Werner to the work station from which he was removed about April 19 because of his union and other protected concerted activities. (d) Reinstate and reestablish the work shift which Re- spondent unlawfully discontinued about April 19, 1974. (e) Post at its Vallejo, California, facility, copies of the attached notice marked "Appendix.- 22 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 20, after being duly signed by Lawrence Katz, Respondent's president, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 21 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. 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CREST DOOR COMPANY 655 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, in any way or manner or form, dis- criminate against any of our employees because of their support for or assistance to Retail Clerks' Union, Local 373, Retail Clerks International Association, AFL-CIO; Teamsters Local 490, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, or because they engage in any union activities or any other activities protected by the National Labor Rela- tions Act, as amended. WE WILL NOT, in any other manner interfere with, restrain, or coerce any of our employees in their rights to join, assist, or support the above-named Unions, or any other labor organization, or to engage in any other activity protected by the Act, or to refrain from so doing. WE WILL make Emmanuel Reeves, Angel Chavarria, Dan Clark, Don O'Hara, and John Shaver whole for any loss of earnings any one of them may have suf- fered because of our unlawful discrimination against them in that we discharged them because of their union and other protected concerted activities. WE WILL reinstate them to their former or substantially equivalent positions. CREST DOOR COMPANY