American Lumber Sales, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Lumber Sales, Inc. and Los Angeles County District Council of Carpenters, United Brother- hood of Carpenters and Joiners of America, AFL- CIO. Case 21-CA-14452 May 2, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 7, 1976, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, 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 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 the Respondent, American Lum- ber Sales, Inc., Pomona, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommmended Order. 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 his findings. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Los Angeles, California, on August 3, 1976.1 On April 30, the Regional Director for Region 21 of the National Labor Relations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on March 4, alleging violations I Unless otherwise stated, all dates occurred in 1976. 2 While the complaint alleged that, in April, Kenneth Bergman, an acknowledged supervisor and agent of Respondent, had offered employees increases in pay to induce them to reject the Union, no evidence was adduced regarding such an allegation other than Leber's testimony that he had been aware that such a conversation had taken place, but was not "aware of much that was said there." Bergman denied making such 229 NLRB No. 66 of Section 8(aX1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C., § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, the briefs filed on behalf of the parties, and my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material, American Lumber Sales, Inc., herein called Respondent, has been a California corpora- tion engaged in the manufacture of decorative wood products at its facility located in Pomona, California. In the normal course and conduct of its business operations, Respondent annually sells and ships goods and products valued in excess of $50,000 directly to customers within the State of California, each of whom either annually sells and ships goods valued in excess of $50,000 directly to customers located outside the State of California, or annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. Therefore, I find, as admitted by Respondent at the hearing, that at all times material, Respondent has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 2 I. Whether Respondent, through President and Gener- al Manager David Fred Leber,3 violated Section 8(a)(1) of the Act by threatening to withhold promised wage increases and to reduce employees' working hours because they engaged in union activities; by informing employees that stricter discipline would be imposed because they had engaged in union activities; by directing employees to elect a steward in an attempt to solicit grievances to discourage them from engaging in union activities; by interrogating employees concerning their own and their fellow employ- ees' union sympathies and activities; and by threatening and attempting to expel a union representative from Respondent's premises, in the presence of employees, during a Board election proceeding. promises and no argument concerning this allegation is advanced in the brief filed on behalf of the General Counsel. Accordingly, I grant Respondent's motion, in its brief, to dismiss this allegation of the complaint. I At the hearing, Respondent acknowledged that Leber has been a supervisor within the meaning of Sec. 2(11) of the Act and an agent of Respondent within the meaning of Sec. 2(2) and (13) of the Act. 414 AMERICAN LUMBER SALES 2. Whether Gary Wenger and Stan Mago have been supervisors and/or agents of Respondent and, if so, whether they threatened employees with plant closure should the Union be selected as the bargaining representa- tive of Respondent's employees, thereby causing Respon- dent to violate Section 8(aX I) of the Act. 3. Whether Respondent violated Section 8(aX3) and (1) of the Act by reducing employees' working hours because they engaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. 4. Whether Respondent violated Section 8(aX3) and (1) of the Act by discharging employee Gary Flynt and by refusing thereafter to reinstate him, because Flynt had engaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Conduct Attributed to Leber i. Facts On Friday, February 13, the Union filed a petition for election among Respondent's employees with the Board's Regional Office. On Monday, February 16, having re- ceived the petition, Leber convened a meeting of Respon- dent's employees. Admittedly, he told them that he thought that they had been unfair for wanting a union and that they should go to work for a union shop, if that was what they wanted. Admittedly, he told them that he did not intend to implement the wage increases which had previously been announced "because the deal I had received from the NLRB had specifically said not to promise or grant wages to employees, something to the effect of to solicit their vote or something to that effect." 4 Moreover, Leber admittedly directed the assembled employees to select a steward and he conceded that there "were several things said, but I don't remember what all they were." Accordingly, he did not deny having also told the employees that as he had worked in a union shop and knew that employers got in trouble if they forced employees to do more than one job, he intended to assign each employee to a single position at which they would work until their tasks were completed, at which point they would be sent home. 5 Nor did he deny having said that as part of operating like a union shop, 4 A notice on which specific increases. taking into account length of employment and job classification, were listed had been posted prior to February 16. Leber then destroyed it upon receipt of the petition, claiming that he "felt it was a promise of wages and it would be misconstrued as trying to buy their vote at the election then." However, while he conceded that he later had been told that he could in fact grant the raises, he never posted a similar notice. Apparently, the wage increases were subsequently granted to the employees for there is no allegation that they were actually withheld and, aside from Flynt, the General Counsel requests that employees be made whole only for the effects of being sent home early pursuant to a practice discussed infra. 5 Leber did testify that at a meeting on Friday, February 13, before learning about the Union's campaign, he had announced this policy of placing a single employee on each machine with employees then to be sent home whenever the work for their machines was completed. Yet, while three employees placed this announcement as occurring during the February 16 meeting, not one witness was called to corroborate Leber's version that the Respondent would no longer tolerate absences and tardiness, but would fire employees for such matters. Following the meeting, the employees selected Gary Flynt to serve as their steward and, later that same day, he attempted to act in that capacity by going to Leber to protest the fact that some employees were being sent home early, while new employees had been hired that day. In response to his complaint, testified Flynt, Leber had said that it was legal to do this and then had pointed out that he did not think that the employees had been fair in contacting the Union. Flynt testified that Leber had then asked both why the employees had "started the Union" and why "we didn't come talk to him," to which Flynt replied that the employees contacted the Union because their conversations with Respondent's supervisors had done them no good and that long-term employees were working without raises and benefits. Although Leber generally denied that he had ever interrogated employees, he did not deny participating in this conversation with Flynt nor did he dispute the specific statements which Flynt attributed to him in the conversation. Flynt was not the only employee to attribute statements regarding the Union to Leber during conversations. David Abbott, who had worked for Respondent from August 1975 until March 1, testified to two such conversations. During the first, 6 testified Abbott, Leber had inquired why Abbott had signed a union card, and when Abbott denied having done so, had then retorted that someone had done so. According to Abbott, Leber had then asserted that it had not been "fair for us to bring in the union when he was a nonunion shop already and that if it had to go so far that he'd go back, too, like, he started-just two or three men." 7 Abbott testified that the second conversation had occurred on the morning of February 17, when Leber had been walking through the yard and had stopped long enough to ask if Abbott had learned anything at the Union's meeting of the preceding evening, to which Abbott replied "not really." Corroboration for Abbott's testimony in the latter regard is derived from that of James Arizpe who described Leber walking through Respondent's facility on the morning of February 17, asking employees questions about the Union, one of which was what they had learned at the Union's meeting. Michael Reed, who worked for Respondent for a I-year period ending in June, testified that Leber had spoken with him regarding the Union on a number of occasions in February, appealing on each occasion for Reed's support announcement had been made on February 13. Indeed, the only reference to a meeting on February 13 was that of former employee James Arizpe and he described that meeting as merely "a little pep talk" given because Leber felt that the employees "had been fooling around a lot." Moreover, while Leber asserted, at one point during his testimony, that the employees had requested job titles and classifications, his testimony in this regard was quite vague and at no point did he advance a specific economic reason which would have led him to institute such a policy, either on February 13 or on any other date. I do not credit Leber's testimony that this change was announced on February 13. a Initially, Abbott testified that this conversation had occurred on a Friday, payday, prior to the February 16 speech. When this matter was probed on cross-examination, however, Abbott conceded that he was not really sure about the date. I There is no allegation that Leber threatened a reduction in the employment complement nor has the General Counsel sought a remedy for such a violation. Medicine Bow Coal Company, 217 NLRB 931, fn. 2 (1975). 415 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and promising that "when the Union situation was over, he knew I deserved [a raise] and that he wouldn't forget me."8 During those conversations, Reed testified, Leber had continually asked "if I made up my mind about supporting the Union or not" and, on several occasions, had inquired if Reed "would cross a picket line if it came down to a strike." On the day of the election, Business Representative James Flores appeared at Respondent's premises as one of the Union's representatives at the election. Flores testified that when he had requested that sticker fitter George Soto serve as the Union's observer, Leber had retorted: "You can't call him, god damn it, he's not on your payroll. He's on mine." Flores further testified that he had then suggested that Leber speak to the Board agent in charge of the election, but that Leber had continued to insist that Soto was under his control, in the process accusing Flores of being a "shit stirrer" 9 for causing the election to be held. These comments were not disputed by Leber. Upon walking to the polling place, testified Flores, Leber then insisted that Flores "get [his] ass off [his] property" and when Flores suggested that Leber speak to the Board agent, the latter responded by threatening to "knock [his] god damned teeth out" if Flores did not depart. According to Flores, when Leber began shaking his fist and repeating his threat, the Board agent and other officials of both parties intervened and separated the two men. Leber acknowledged that he had not felt that Flores should be in the plant that day. However, he claimed that the source of his disgruntlement had been the fact that several represen- tatives had been present for the Union and that some of them had been talking to employees, interrupting their work. Leber testified that he first raised the matter with the Board agent, who replied that he could not do anything about it, but who pointed out that Leber could ask anyone to leave the premises. According to Leber, this request went unheeded. There was no contradiction to Flores' testimony that the observers for both parties had been present at the polling place during the incident. Only Soto testified concerning the matter and he testified that he could not hear clearly the words which Leber and Flores had exchanged. 2. Analysis Based on the above-recited facts, the General Counsel argues that Respondent violated Section 8(aXl) of the Act by threatening to withhold promised wage increases and reduce employees' working hours because they had engaged in union activities; by informing employees that stricter discipline would be imposed because they had engaged in union activities; by directing employees to elect a steward in an effort to solicit grievances to discourage them from engaging in union activities; by interrogating employees concerning their own and their fellow employ- ees' union sympathies and activities; and by attempting to expel from its premises and threatening a union representa- tive in the presence of employees. In opposition to most of K There is no allegation that Leber made promises of benefit nor has the General Counsel sought a remedy for such a violation. Id. " I hereby grant what is in essence a motion to correct transcript included in the General Counsel's brief. these matters, Leber denied, in essence, that any of his comments on February 16 had been intended to constitute reprisals against employees for their union activities. Yet, even assuming that this were true, "the test of interference, restraint, and coercion under §[a](l) of the Act does not turn on the employer's motive...." N.LR.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946). Rather, the test is whether the employer's conduct and words reason- ably tend to interfere with the exercise of employee rights. Id; see also Munro Enterprises, Inc., 210 NLRB 403 (1974). Consequently, even were Leber not to have designed his remarks so that they would interfere with, restrain, and coerce Respondent's employees, if they reasonably tended to do so, Respondent violated Section 8(aXl) of the Act. Furthermore, it is difficult to conclude that Leber did not intend his February 16 remarks to be coercive. He made it quite clear during the speech that he was hostile toward the Union by accusing the employees of being unfair for wanting a union and by suggesting that they work elsewhere if they wanted to work in a union shop. This latter comment quite clearly evidences Leber's opposition to "dealing with his employees through their chosen representative," B. J. Provenzale Company, Inc. d/b/a B.J.P. Painting and Decorating Co., 206 NLRB 800 (1973), enforcement denied 512 F.2d 599 (C.A. 6, 1975), and "could reasonably be interpreted by [the employees] that union employees were unwelcome in the plant." Ramar Dress Corp., et al., 175 NLRB 320, 327 (1969). Against this background, Leber announced a change in Respondent's prior willingness to permit employees to continue working when work at their machines was finished, by transferring them to other duties, and announced that absences and tardinesses would lead to termination. No economic reason was advanced by Leber to justify the institution of these policies o and, obviously, the meeting had been called in response to receipt of the Union's petition for election. In these circumstances, there simply is no alternative to finding that Leber fully intended to penalize the employees by instituting these policies in retaliation for their support for the Union's campaign. While Respondent claims that the changes were effected merely to conform to "union shop" practice, there has been no showing that such policies have been in effect at firms where the Union serves as the employees' representative nor has it been shown that Respondent had undertaken any effort to ascertain the nature of the policies prevelant at firms where the Union serves as the representative of the employees. Moreover, it is noteworthy that Respondent's effort to conform its practices to those in union shops extended only to instituting changes which were adverse to its employees; no effort was made to institute "union shop" policies which would improve the conditions of employ- ment of Respondent's employees. Therefore, I find that on February 16, Respondent, through Leber, did violate Section 8(aX l) of the Act by threatening to reduce employees' hours and by informing t0 While Leber did testify to adverse economic conditions, at no point did he specifically advance them as the reason for his decision to institute these policies and, in any event, no financial documentation was produced to support his testimony in this respect. 416 AMERICAN LUMBER SALES employees that it would impose stricter discipline because those employees had sought representation by the Union. During the same speech, Leber also stated that the previously announced wage increase would be rescinded, as a notice from the Board had directed him "not to promise or grant wages to employees . . . to solicit their vote or something to that effect." Yet, Respondent never produced this notice and, consequently, it is not possible to ascertain what it did state. Presumably, however, it was consistent with the Board's own pronouncements concern- ing withholding benefits pending an election. "It is well established that during an organizational campaign an employer must decide whether or not to grant improve- ments in wages and benefits in the same manner as it would absent the presence of a union." Diamond Motors, Inc., 212 NLRB 820 (1974). Consequently, an employer is not free to grant nor withhold benefits simply on the basis of the prospect of an election, although the Board has countenanced such withholding in situations where the benefit has not been fully formulated at the time of withholding, The Great Atlantic & Pacific Tea Company, Inc., 192 NLRB 645 (1971), enfd. per curiam 463 F.2d 184 (C.A. 5, 1972), and where it has been made clear to the employees that the benefit would be forthcoming but is being withheld only to avoid the appearance of election interference. Montana Lumber Sales Inc., 185 NLRB 46 (1970); see also The Singer Company, Friden Division, 199 NLRB 1195, 1196 (1972), enfd. 480 F.2d 269 (C.A. 10, 1973). These conditions have not been met in the instant case. The wage increases had been specifically established both as to amount and as to date of institution. A notice reciting these facts had been posted prior to receipt of the petition. Clearly, the increases were fully formulated and promised to Respondent's employees. Furthermore, so far as the record discloses, "Respondent's cancellation announce- ment was unaccompanied by any assurance of future consideration or predicated on any economic considera- tions." Pacific Southwest Airlines, 201 NLRB 647 (1973). The employees were well aware that the increases had been announced prior to receipt of the petition by Respondent. As they had been announced prior to Respondent's receipt of the petition, the employees could perceive the patent transparency of any charge that increases were being conferred solely to influence their vote in a representation election and, consequently, would have been cognizant of the equally transparent excuse being advanced by Leber for cancelling the increases. If anything, Leber's reference to the Board in announcing the cancellation of the increases appears to have been no more than an effort to transfer the onus to the Board for the deprivation of these increases. 1" As pointed out in fn. 4, above, Leber testified that he later learned that he could grant the raises and, apparently, then did so. I have considered the possible argument that this tends to support Leber's innocence in initially announcing the cancellation. Yet, as is also pointed out above, the test for violations under Sec. 8(a)( I) of the Act does not encompass consideration of an employer's intent. Consequently, at the very least, the announcement would be a violation because it reasonably tended to lead the employees to believe that the cancellation was occasioned by their support for the Union, given the context in which it was uttered. Moreover, this very context supports the conclusion that Leber was acting in anything but innocence when he made this announcement. His other statements and conduct quite "[A n employer acts at his peril when he grants or withholds increases in economic benefits during the pendency of a union organizational campaign." Pacific Southwest Airlines, supra. Here, Respondent failed to satisfy either of the principal requirements for withholding benefits pending an election. The increases had been fully formulated and no assurances were afforded the employees that they would ultimately be forthcoming. The reason advanced by Leber during the speech for the cancellation was pretextual on its face. The announcement of the cancellation was made during the course of a speech in which Leber expressed strong displeasure with the employ- ees' efforts to obtain representation and in which he announced the institution of retaliatory practices against them for having done so. In these circumstances, "employ- ees would rightly have assumed that management had not rejected the increase on economic grounds, but that the Union's presence was the only obstacle to realization of these benefits," Ring Metals Company, 198 NLRB 1020, 1021 (1972), enfd. by unpublished order (CA. 8, April 17, 1973), and, further, that "but for their support of the Union there would be no fear of an unfair labor practice and hence, they would be receiving their wage increases." Diamond Motors, supra. Therefore, I find that on February 16, Respondent, through Leber did violate Section 8(aXl) of the Act by announcing that a promised wage increase was canceled because the employees had engaged in union activity." The final facet to Leber's February 16 speech was his directive to select a steward or spokesman. The only justification advanced for such a direction was that, based on experience with "union shops," Leber was commencing operation as a union shop. Yet, as pointed out in connection with the single-job limitation, Leber's conduct extended only to instituting conditions of employment that would be adverse to Respondent's employees. Moreover, his assertion of opposition to the Union and his invitation to those who supported the Union to work elsewhere hardly support Respondent's portrayal of Leber as one who, by his direction to select a steward, was adjusting operations to the inevitable consequences of unionization. I reject any such argument and, instead, find that the source of Leber's motivation for this direction must be located elsewhere. In Wolverine World Wide, Inc., 193 NLRB 441 (1971), when an employee expressed dissatisfaction with his conditions of employment, the employer inquired if such dissatisfaction were general and if formation of departmen- tal committees would help. This was followed by a discussion of the composition of such committees. In concluding that this conduct had violated Section 8(a)(1) of the Act, the Board noted (id): clearly demonstrate that he was hardly concerned with avoiding commission of unfair labor practices. In fact, his failure to describe the circumstances under which he assertedly learned that he could grant the increases, viewed in light of his other unfair labor practices, leads to a contrary inference - that he later learned that the rescission of the increases was an obvious unfair labor practice. Viewed in this light, his subsequent conferral of these increases would be no more than an effort to undo the harm which he had already caused. That, of course, would not be sufficient to cure the effects of his prior announcement, particularly in light of the other unfair labor practices found in this matter. 417 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the context of the Respondent's unlawful opposition to the Charging Union, these statements not only indicated the Respondent's preference for such an arrangement, but, also, employees would rightfully, tend to assume that assent to Respondent's suggestion could lead to more favorable disposition of their grievances. In the instant case, Leber's direction to select a steward was uttered as part of a speech in which he both expressed hostility to the Union and announced unlawfully motiva- ted changes - cancellation of a previously announced wage increase, institution of a one-job only policy, and imposition of strict discipline for absences and tardinesses - which clearly would give rise to employee dissatisfac- tion. In this context, and absent credible evidence of a valid reason for the direction, I find that Leber's purpose in directing the employees to select a steward was to suggest an alternative path for dealing with Respondent and for securing rescission of the announced changes in conditions of employment which resulted from Respondent's hostility to the Union. In other words, Respondent created conditions of employment that would lead to employee dissatisfaction and then offered, as an alternative to the Union, a means whereby the employees could deal directly with Respondent to, at the very least, obtain cancellation of the announced adverse changes. That the employees clearly so understood Leber is demonstrated by Flynt's effort to discuss the single-job policy with Leber that same evening. Therefore, I find that Respondent, through Leber, did violate Section 8(a)( ) of the Act by directing employees to select a steward for the purpose of providing an alternative means to unionization for resolving employee dissatisfac- tion and grievances. A protracted discussion of the questioning conducted by Leber is not warranted. Following the February 16 speech, during a conversation in which he renewed his pique at the employees for seeking representation, Leber asked Flynt why the employees had "started the Union" and why they had not first "come talk to him." Similarly, Abbott was asked his reason for signing a card during a conversation in which Leber complained about the employees contacting the Union and threatened to reduce the employee comple- ment. On one morning, Leber roamed the facility inquiring about the Union's meeting of the prior evening and he pressed Reed throughout the month of February, continu- ally seeking to ascertain the latter's attitude regarding the Union and continually seeking to garner Reed's support through promises that he would not be forgotten. No valid purpose has been advanced for such questioning. Nor could one be advanced. The questions were not accompa- nied by any assurances against reprisal. To the contrary, they were accompanied by both threats and promises and, moreover, occurred in the context of other unfair labor practices, occurring separately from the conversations in which the questioning took place. Therefore, I find that Respondent, through Leber, did violate Section 8(a)(1) of the Act by interrogating employees concerning their union membership, sympathies, and activities and the union membership, sympathies, and activities of their fellow employees. Finally, there was the incident occurring on the morning of the election when, it is uncontroverted, Leber threatened to knock out Business Representative Flores' teeth if the latter did not leave Respondent's premises. While Leber testified that this had occurred because Flores and other officials of the Union had been interrupting the work of employees by talking to them, no other witness - official of Respondent or employee - corroborated that descrip- tion of the conduct of the Union's agents. Further, Leber did not deny having heatedly objected to Flores' selection of Soto as an observer and having expressed hostility toward Flores for having caused an election to be held. Consequently, I do not credit Leber's description of the incident which had precipitated his conduct, but rather find that he had been motivated by dissatisfaction with the fact that an election was being conducted, an attitude which he had earlier made manifest to his employees, and with the added fact that Soto's work would have to be interrupted to comply with the Board's rules regarding observers. As Soto and Respondent's observer both were present when the incident occurred, though Soto's percep- tion and recollection of the event were quite dim, and as it would not be unlikely for word of such conduct to circulate through Respondent's relatively small employee comple- ment, I find that the effect of Leber's conduct would tend to restrain and coerce employees. See Sullivan Surplus Sales, Inc., 152 NLRB 132, 148-149 (1965). Therefore, I find that Respondent, through Leber, did violate Section 8(aX1) of the Act by threatening and attempting to expel a union representative from Respondent's premises, in the presence of employees, during a Board election proceeding. B. The Status of Stan Mago and Gary Wenger and the Conduct Attributed to Them The complaint alleges that, in March, Stan Mago and Gary Wenger each threatened that Respondent's plant would be closed should the employees select the Union as their bargaining representative. Mark Milbauer, a lumber handler with Respondent until April, testified that Mago had made such a statement to him and both Milbauer and Soto described separate incidents when such a statement had been made to each of them by Wenger. Neither Mago nor Wenger appeared as witnesses and, accordingly, there is no dispute concerning the fact that such statements had been made. However, Respondent does contend, contrary to the General Counsel, that Mago and Wenger were neither supervisors nor agents of Respondent. Although the General Counsel points to a number of items in the record which, he urges, tend to support the conclusion that Wenger, who became a leadman following Leber's February speech, has been a supervisor, careful examination of each of these matters leads to the conclusion that Respondent has the better of this particular argument. For example, Plant Superintendent Bergman testified that Wenger had become responsible for maintain- ing the flow of production in the area near the finish line where approximately 12 to 18 employees work. Yet, Wenger did not become leadman until after the single-job policy had been instituted and each employee works on a different successive facet of Respondent's production line. Consequently, there is simply no latitude for him to have 418 AMERICAN LUMBER SALES exercised any discretion in determining employee assign- ments to machines, when employees were to leave for the day, and the manner in which production would progress. In fact, Wenger's primary functions in this regard were to be certain that sufficient materials were available in the area, to avoid interruptions in production due to momen- tary shortages, and to check the machines so that they would continue to be operational. Consequently, the fact that Wenger maintains the flow of production does not establish that he is a supervisor. See Bank of America National Trust and Savings Association, 196 NLRB 591, 594 (1972). Arizpe testified that it had been Wenger who had selected the sequence in which customer orders were to be produced. Yet, there is no evidence that this involved any significant degree of judgment or, more significantly, that the sequence in which orders were produced had any appreciable effect on the manner in which employees discharged their duties. In this regard, the matter appears to rise no higher than the simple "lining out" of routine work. While routineness of the work would not, of itself, preclude a finding of supervisory status, Dunkirk Motor Inn, Inc., d/b/a Holiday Inn of Dunkirk-Fredonia, 211 NLRB 461, 462 (1974), there must be a showing that independent judgment is being exercised in directing the performance of such work. The mere arrangement of the order in which jobs are to be completed, particularly where each employee has already been assigned the specific function that he is to perform, has not been held to rise to that level. See Medicine Bow Coal Company, supra, and cases cited therein. Similarly, while Wenger only occasion- ally worked himself and, Bergman testified, told employees "what to do and how to do it and kept an eye on how to grade, how it was supposed to come out, more or less as leadman," such activity partakes more of an inspection function by a more experienced employee than of a supervisor. In this regard, it should be borne in mind that the transfer of Wenger to leadman accompanied the hiring of a number of newer employees, as discussed infra. Consequently, there was, in all probability, a greater need for instruction and guidance of employees than had formerly existed when a stable cadre of employees rotated positions, filling in wherever needed. Consequently, Wen- ger's duties in this regard appear to have been no more than those of an experienced employee providing instruc- tion and guidance for the performance of routine work. Pervel Corporation, 119 NLRB 497, 499 (1957). Nor has it been shown that Wenger exercised indepen- dent judgment in disciplining employees. He could tell them to "get back to work" if they were not working. Yet, there is no element of independent judgment in determin- ing when an employee is not working and, more important, there is no evidence that Wenger could, or ever did, take disciplinary action to enforce such an order.t2 To like effect is Arizpe's accusation that as a leadman, Wenger had become a "snitch." There is no evidence that any reports of 12 Nor would such admonitions, of themselves, be construed as "discipline" within the meaning of Sec. 2(1 I1) of the Act, for it is settled that verbal reprimands do not rise to that status. Wim P. McDonald Corporation, 97 NLRB 1471, 1472, fn. 4 (1952): see also Greenfield Components Corporation, supra. 1a There is no allegation that these statements by Leber regarding the employee misconduct made by Wenger were ever accom- panied by a recommendation of disciplinary action or that any employee was ever disciplined on the basis of any recommendation, without an independent investigation of the matter. Greenfield Components Corporation, 146 NLRB 757, 759 (1964); Yellow Cab, Inc., 131 NLRB 239 (1961); Pepsi-Cola Bottling Company of Merced-Modesto, et al., 154 NLRB 490 (1965). Finally, Soto described two specific incidents pertaining to Wenger's authority. The first involved a conversation which he had overheard in which employee Ramon Estrada complained of being "pushed" by Wenger and in which Leber had replied: "Yes, because I push Gary. Gary is the leadman." The second involved an announcement by Wenger that Soto was to receive a wage increase. With regard to the second of these two incidents, one description advanced by Soto on direct examination left the impression that Wenger had been speaking prospectively - that he intended to speak with Bergman about obtaining a wage increase for Soto since the latter was a good worker. However, this was pinned down during cross-examination and Soto made clear that Wenger had told him that he had learned from Bergman that the decision to grant Soto an increase had already been made. Since Bergman testified that he used Wenger as a conduit for messages to employees, this incident is consistent with that practice and, in any event, as it occurred after the decision had already been made, will not support an inference that Wenger played any role in the decision to grant the increase. Similarly vague are the comments exchanged by Estrada and Leber: At no point is it clear precisely what Estrada meant by being "pushed" and, considering Wenger's role as a conduit, it is not clear whether he was carrying out specific instructions given to him by Leber or whether he had simply been telling Estrada to "get back to work." In any event, such an isolated instance would not support a finding of supervisory status in view of the record as a whole. Commercial Fleet Wash, Inc., 190 NLRB 326 (1971). Therefore, I find that the General Counsel has failed to show by a preponderance of the evidence that Gary Wenger has been a supervisor within the meaning of Section 2(11) of the Act. This, however, does not end the matter for there remains the allegation that Wenger, as well as Mago, were agents of Respondent. Regarding the latter, shortly before the election Leber delivered a speech to the employees in which he concededly told them that in view of everything that had occurred, including a recent theft of numerous personal items, he intended to sell the business and that Mago, who had been a frequent visitor of Leber at Respondent's premises, would be taking over.13 It was on the following morning that Mago then told Milbauer that Respondent would remain open unless the employees selected the Union as their representative. On the succeed- ing day, it is uncontroverted that Milbauer asked if he purported sale of Respondent violated the Act. Leber did not explain why he had chosen this point in time, shortly before the election, to announce the sale of the business. In fact, the negotiations with Mago for the sale of the business ultimately terminated without any change in ownership of Respondent. 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should take orders from Mago and that Leber replied: "Yes. I don't do anything out here any more. You listen to him." For an employer to be responsible for the conduct of nonsupervisory personnel which interferes with the rights of employees under the Act, there need not be express authorization for the acts committed. "The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible." International Association of Machinists; Tool and Die Makers Lodge No. 35, etc. [Serrick Corporation] v. N.LR.B., 311 U.S. 72, 80 (1940). In making that determi- nation, "the crucial question is whether, under all the circumstances, the employees could reasonably believe that [the nonsupervisor] was reflecting company policy, and speaking and acting for management...." Aircraft Plating Company, Inc., 213 NLRB 664 (1974). In the instant case, that test seems amply satisfied by both Mago and Wenger. Leber, Respondent's sole shareholder, had intro- duced Mago to the employees as the new owner of Respondent on the day prior to his threat to Milbauer. On the day following that threat, Leber reaffirmed his announcement during a conversation in which Milbauer, the object of Mago's threat, questioned whether Respon- dent's employees should take orders from Mago. In thse circumstances, Respondent is fairly charged with responsi- bility for Mago's threat. While I have found that Wenger is not a supervisor within the meaning of Section 2(1 1) of the Act, many of his duties are such that it is clear to employees that he occupies a special position. Thus, he is the one who distributed the work to a significant number of Respondent's employees, it is he who serves as the conduit for the delivery of messages from Respondent to the employees, and it is he who occupies the position of leadman. See N.LR.B. v. Dayton Motels, Inc., 474 F.2d 328, 331 (C.A. 6, 1973). Moreover, the comments made by Wenger to Milbauer and Soto were identical to the one which Milbauer had heard from Mago and the antiunion tenor of the remarks "reflected the attitude" which Leber had expressed during his February 16 speech. N.LR.B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (C.A. 8, 1961). Consequently, both the position occupied by Wenger and the message which he conveyed to Milbauer and Soto support a conclusion that these two employees "could reasonably believe that [Wenger] was reflecting company policy, and speaking and acting for management .... "Aircraft Plating, supra. Therefore, I find that Gary Wenger and Stan Mago have been agents of Respondent at all times material herein and that Respondent violated Section 8(a)(l) of the Act by virtue of their threats of plant closure should the employees choose to be represented by the Union. C. The Reduction in Working Hours As found above, on February 16, Leber announced institution of a policy of restricting each employee to a 1 While Abbott and Arizpe left Respondent's employment at approxi- mately the same time as Flynt, they apparently quit and, in any event, there is no evidence that they - unlike Flynt - had engaged in any siginficant conduct to obtain representation. Nor is there any evidence that Leber single job, with the employee to be sent home whenever work was completed at that work station for the day. Also, as found above, that announcement was made as part of a retaliatory campaign against the employees for desiring representation by the Union. It is undisputed that, prior to February 16, Respondent had pursued a practice of transferring employees to other jobs whenever work was completed on the job where they had been working. Respondent concedes that, on and after February 16, the policy announced by Leber that day was implemented with the result that employees were sent home early because work at the jobs to which they had been assigned had been completed for the day, even though there was work to be performed at other locations for which they were qualified and at which they had worked in the past. Respondent further acknowledges that, following the speech, a number of additional employees were hired, thereby insuring a complement sufficient in number to permanently assign a single employee to each job performed in Respondent's facility. No evidence was adduced that would supply a valid business reason for this change in operations. Therfore, in view of Leber's hostility toward the Union and in light of his announcement attributing this change in operations to the employees' desire for representation, I find that Respondent did reduce employees' working hours on and after February 16 and, further, that it did so as a means of retaliating against the employees for selecting the Union as their bargaining representative. By such conduct, Respondent violated Section 8(a)(3) and (1) of the Act. D. The Termination of Gary Flynt Gary Flynt worked on the resaw from July 1975 until March 2, when he was discharged. Flynt had been the employee who had initially contacted the Union in January regarding the possibility of obtaining representation for Respondent's employees. It had been Flynt who had circulated the authorization cards which the Union then used to secure a representation election. Although there is no evidence that Respondent had been aware of Flynt's activities at the time that he had been soliciting signatures on the cards, Leber - whose hostility toward the Union has been detailed above - admitted that he had been aware of Flynt's support for the Union prior to his termination. Moreover, within 10 days after Flynt's discharge, Leber participated in another of his ongoing conversations with Reed. It is uncontroverted that during this conversation, Leber pointed out that he knew who had instigated the Union and then added, "That sone [sic] of a bitch doesn't work here any more." 14 Leber denied that Flynt had been discharged because of his sympathies and activities on behalf of the Union and, instead, claimed that the discharge had been occasioned by Flynt's habitual tardiness and absence from work and had come at a point in time when Flynt's conduct in this regard had already led to the issuance of three warning notices to him. Thus, Leber testified that, on February 1, Respondent had instituted a policy of issuing notices to employees for would have viewed them as union instigators. Indeed, he did not even claim that he thought that they had been involved in activities on behalf of the Union. Accordingly, I find that Leber's comment pertained to Flynt and not to either Abbott or Arizpe. 420 AMERICAN LUMBER SALES tardiness and failure "to show up for work." There was no evidence, however, regarding the reason for initiating such a policy nor was any evidence proffered concerning the substance of such a policy. Consequently, while Respon- dent makes much of the fact that Flynt had received purportedly three warning notices, there is no evidence that it was Respondent's policy to terminate an employee upon repetition of conduct which had previously led to issuance of three warning notices. Conversely, there is evidence of Respondent's intent to use absences and tardinesses as a means of retaliating against the Union's supporters, for, as found above, Leber so announced at a speech given approximately 2 weeks prior to Flynt's termination. In any event, assuming that Respondent's policy did mandate termination for the repetition of conduct which had been the subject of three warning notices, the evidence is simply not sufficient to establish that Flynt had received a total of three such notices. Notwithstanding Leber's testimony to that effect, Respondent produced but two notices - one dated February 3 ("Failure to show up for work Monday 2/2/76") and the other dated February 20 ("For being late to work").'5 A compilation of Flynt's attendance record was produced, and penciled thereon is a notation of a second warning for an absence on Tuesday, February 10, when Flynt, according to the compilation, "Called in sick." The notice itself was never produced and no explanation was advanced for failing to do so. Nor was any testimony adduced concerning the circumstances of the issuance of this purported notice. In these circumstanc- es, it is fairly inferable that no such notice existed. "The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause." 2 Wigmore, Evidence, § 285, p. 162 (3d ed. 1940). See also International Association of Bridge, Structur- al and Ornamental Ironworkers, Local 600 (Bay City Erection Company, Inc.), 134 NLRB 301, 306, fn. 11 (1961). Accordingly, I find that the credible evidence is not sufficient to establish that a warning notice was issued to Flynt for his absence of February 10 and, therefore, assuming that Respondent's rule does mandate termination for conduct which had previously been the subject of three warning notices, such a rule has not been shown to have been applicable to Flynt's situation on March 2. His "discharge is not supportable on the basis of the Respon- dent's disciplinary system .... " Mission Valley Mills, a subsidiary of West Point Pepperell, 225 NLRB 442 (1976). The event which purportedly precipitated Flynt's dis- charge was his absence on March 1. Most of the events which transpired that day were not disputed by Respon- dent. The windshield wipers on Flynt's automobile became inoperative and, as it was raining, he telephoned Respon- dent to report he would not be coming to work until the wipers were repaired. Though he spoke with both Leber and Bergman, no objection was posed to his failure to 15 In his brief, the General Counsel argues that the circumstances under which this notice - the one of February 20 - was issued are suspect. Indeed. there does appear to be merit in that argument. However, there is no allegation in the complaint regarding that notice and, in his bnrief, the General Counsel does not seek a remedy for issuance of the February 20 notice. Medicine Bow Coal Comparen,, supra. Consequently, I make no finding regarding its legality under the Act. report for work, although Leber mildly rebuked Flynt for not calling earlier that morning at the normal starting time.16 Their failure to object is understandable in light of what had occurred earlier that morning at Respondent's facility, for, due to the inclement weather, Respondent sent home over half of its work force. In fact, in order to be permitted to work for half that day, Soto had to threaten to quit and seek employment where he would regularly receive income. Moreover, it is not disputed that the resaw, which Flynt operated, was not used that day, even though there were four employees experienced in its operation who were retained to work on March 1. Accordingly, it has not been shown that Flynt's presence was necessary for Respondent to conduct operations on March 1. In these circumstances, the record clearly supports the General Counsel's assertions that Respondent agreed to Flynt's absence on March I and that there was no work-related need for him to be present on that day. Finally, it is abundantly clear that Flynt's attendance record was anything but that of a model employee. Since September 1975, he had been absent on the average of once a month, had been late 20 times, and had left early on 8 other occasions. Yet, other than the warning notices of February 3 and 20, Respondent had tolerated his conduct, so far as the record shows, without complaint and without at any time warning him that his conduct might lead to his discharge. Not until the Union appeared on the scene and at a time when Leber was aware of Flynt's activities on its behalf did Respondent choose to terminate Flynt for this longstanding practice of absences and tardiness. "LA]n employer who freely tolerates such conduct may not suddenly find it offensive only when committed by an employee who exercises his rights to engage in concerted activity." Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernardino, 212 NLRB 280 (1974), enfd. as modified 512 F.2d 1171 (C.A. 9, 1975). See also Shasta Fiberglass, Inc., 202 NLRB 341 (1973). In sum, on March 1, Respondent discharged the most active proponent of the Union for an absence which not only had been excused, but which occurred on a day when Respondent operated on a partial basis with no showing of need for Flynt's services. This discharge occurred shortly after the Union's campaign had become known to Respondent, at a time when Respondent was admittedly aware of Flynt's role in that campaign, and following a lengthy period of toleration of Flynt's absences and tardinesses. Respondent had repeatedly made clear its opposition to the Union and had announced employment policies designed to retaliate against its employees for supporting the Union. One of these retaliatory policies formed the basis for the reason advanced for Flynt's termination. Moreover, in restricting employees to single jobs, Respondent demonstrated that it was not averse to depriving them of income in reprisal for their activities on behalf of the Union. The discharge of Flynt is simply '6 There is no assertion that the time of Flynt's call influenced Respondent's decision to terminate him. Nor could there be, for the termination notice reads merely: "Failure to show up for work. Called in asking about work, at which time he was told to come in and work." There is, of course, no evidence to support the latter statement which is, in fact, clearly controverted by Flynt's testimony. 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another manifestation of Respondent's willingness to deprive employees of earnings, in this case depriving Flynt of all earnings by depriving him of continued employment. Therefore, I find that Respondent did discharge Gary Flynt and thereafter refused to reinstate him because he had engaged in union or other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection, thereby violating Section 8(aX3) and (1) of the Act. v. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with Respondent's operations 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, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW I. American Lumber Sales, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to reduce employees' hours and by informing employees that stricter discipline would be imposed because they sought representation by the Union; by announcing cancellation of a promised wage increase because employees had engaged in union activity; by directing employees to select a steward for the purpose of providing an alternative means to unionization for resolv- ing employee dissatisfaction and grievances; by interrogat- ing employees concerning their union membership, sympa- thies, and activities, and the union membership, sympa- thies, and activities of their fellow employees; by threaten- ing and attempting to expel a representative of the Union from Respondent's premises in the presence of employees during a Board election proceeding; and by threatening to close the plant should the employees select representation by the Union, I find that Respondent violated Section 8(a)(1) of the Act. 4. By reducing employees' working hours because they engaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, and by discharging and refusing to reinstate employee Gary Flynt because he had engaged in union or other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, I find that Respondent has discriminated in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organi- zation in violation of Section 8(a)(3) and (1) of the Act. 17 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. 5. The evidence is not sufficient to establish that Respondent, through Kenneth Bergman, offered employ- ees increases in pay to induce them to reject representation by the Union in violation of Section 8(aXl) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Respondent will be required to offer Gary Flynt immediate reinstatement to his former position of employ- ment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been assigned or hired to perform the work which Flynt had been performing prior to the time that he was terminated on March 2, 1976. Additionally, Respon- dent will be required to make Flynt and all employees who were deprived of income by being sent home early on and after February 16, 1976, pursuant to the implementation of Respondent's unlawfully motivated single-job policy, whole for any loss of earnings that they may have suffered by reason of the discrimination against them, with backpay to be computed on a quarterly basis, making deductions for interim earings and with interest to be paid at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), enforcement denied on different grounds 322 F.2d 913 (C.A. 9, 1963). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 The Respondent, American Lumber Sales, Inc., Pomona, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to rescind promised wage increases and to reduce employees' working hours because they engaged in union activities; informing employees that stricter discipline would be imposed because they had engaged in union activities; directing employees to select stewards or spokesmen in an effort to provide an alternative means for resolving employee grievances; interrogating employees concerning their union membership, sympathies, and activities and the union membership, sympathies and activities of their fellow employees; attempting to expel and threatening representatives of the Union when they are on Respondent's premises for a valid, lawful purpose; and threatening employees with plant closure should they select a collective-bargaining representative. (b) Reducing working hours, sending employees home without considering their ability to perform other duties, and discharging or otherwise discriminating against em- 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. 422 AMERICAN LUMBER SALES ployees in regard to hire or tenure of employment or any term or condition of employment for engaging in union or concerted activities protected by Section 7 of the Act. (c) Applying and implementing the single-job policy. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Gary Flynt immediate and full reinstatement to his former position of employment, dismissing, if neces- sary, anyone who may have been hired, retained, or assigned to perform the work which he had been perform- ing prior to the time that he was terminated on March 2, 1976, or, if his former position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for the loss of pay he may have suffered as a result of his discharge, in the manner set forth above in the section entitled "The Remedy." (b) Make whole all employees who were deprived of income by being sent home early on and after February 16, 1976, pursuant to the implementation of Respondent's unlawfully motivated single-job policy, in the manner set forth above in the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to compute the backpay and reinstatement rights as set forth in the section of this Decision entitled "The Remedy." (d) Post at its Pomona, California, facility copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent violated the Act through the conduct of Kenneth Bergman. is In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' bargain- ing representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT threaten to withhold wage increases from you because you engage in activities on behalf of a labor organization. WE WILL NOT threaten to reduce your working hours because you engage in activities on behalf of a labor organization. WE WILL NOT inform you that stricter discipline will be imposed because you engage in activities on behalf of a labor organization. WE WILL NOT direct you to select stewards or spokesmen in an effort to provide an alternative to a labor organization as a means for resolving your grievances. WE WILL NOT interrogate you concerning your union membership, sympathies, and activities, nor concerning the union membership, sympathies, and activities of your fellow employees. WE WILL NOT threaten nor attempt to expel represen- tatives of a labor organization from our premises when those representatives are on the premises for a valid, lawful purpose. WE WILL NOT threaten you with plant closure should you select a labor organization as your collective- bargaining representative. WE WILL NOT reduce your working hours, send you home early without considering your ability to perform other duties, discharge you, or otherwise discriminate against you for engaging in activities on behalf of Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or on behalf of any other labor organiza- tion. WE WILL NOT continue to apply the policy of restricting you to only a single job and refuse to consider you for other assignments. WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act. WE WILL offer Gary Flynt immediate and full reinstatement to his former position, dismissing, if necessary, anyone who may have been hired or retained to perform the work which he had been performing prior to his discharge, or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and make him whole for any loss of pay he may have suffered as a result of our discrimination. WE WILL make whole all employees who were deprived of income by being sent home early on and after February 16, 1976, pursuant to the implementa- tion of our policy of assigning employees to one job only. AMERICAN LUMBER SALES, INC. 424