Studio 44, Inc.

STUDIO 44 597 Studio 44, Inc. and Noah A. Kfiligstein and Jour- neymen's and Production Allied Services of America and Canada International Union, Local 157. Cases 22-CA-12893 and 22-CA-13037 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 3 January 1985 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified.2 The Respondent repairs electronic equipment at its Jersey City, New Jersey facility on contract for certain retailers or for resale to its own customers. The Respondent recognized the Union in 1979 as bargaining representative for its production and maintenance employees. The Respondent and the Union have at all relevant times been parties to a collective-bargaining agreement providing for a grievance procedure and arbitration and prohibit- ing strikes or lockouts during the term of the agreement. 1. The judge found that the Respondent violated Section 8(aX3) and (1) of the Act by discriminatori- ly reassigning Union Steward Chi Yao Chang to more onerous work 27 October 1983.3 We agree, but only for the following reasons. The Union generally maintains two stewards in the Respondent's facility, representing approxi- mately 20 packing department employees and 35 technicians. Employee Chi Yao Chang, a techni- cian, was elected as the technicians' steward 25 Oc- tober. For approximately 8 months before Chang's election, the technicians had no steward. On 26 October a probationary employee identi- fied as "Mr. Hu" told Chang the Respondent in- tended to discharge him because Hu had "too many rejects." Hu asked Chang to speak to Super- visor Andrew Kim and Chang agreed to do so. 1 We adopt the judge's factual findings except as specifically discussed below. We have, however, added additional facts to our decision from uncontradicted testimony or from testimony the judge specifically cred- ited.2 We shall substitute an Order in lieu of the judge's to conform more closely to the violations found, and for the reasons set forth below. All dates are 1983. Chang checked Hu's production record and dis- covered Hu had only one unit rejected. When Chang spoke to Kim on 27 October, Chang told Kim that Hu was upset because Kim had "lied." Kim told Chang the Respondent had the right to replace Hu. About 10 minutes later, the Respond- ent's plant manager, Ike Anteby, called Chang into his office, acknowledged that Chang was the new shop steward, and read to Chang from that portion of the collective-bargaining agreement which per- mitted the Respondent to discharge probationary employees for any reason, without recourse. That same day, the Respondent assigned Chang to a different job.4 Chang's new job, fixing "Walk- man"-type radios, caused Chang "a lot" of prob- lems, was more tedious, and required less skill than his former job. The Respondent claimed it had a "tremendous number of Walkman radios in stock," but its witness, Plant Manager Ike Anteby, did not testify the Respondent reassigned Chang for this reason. Although Anteby stated that the Respond- ent maintained a monthly inventory of the number and type of merchandise on hand, the Respondent did not offer these records into evidence to support its claim. The judge found the General Counsel established prima facie that the Respondent violated Section 8(a)(3) and (1). The judge relied on the fact that the Respondent suddenly and inexplicably assigned Chang to more onerous work immediately after Chang vigorously pressed the Respondent to re- consider its decision to discharge Hu. While Chang's activity on behalf of Hu occurred on the same day that the Respondent changed Chang's work assignment, there is no evidence demonstrat- ing that Chang's union activity preceded his reas- signment. Thus, contrary to the judge, we do not find that Chang's having represented Hu was a mo- tivating factor in the Respondent's decision to reas- sign Chang. We nevertheless agree that the General Counsel established a prima facie case. The Respondent re- assigned Chang to more onerous work only 2 days after he was elected shop steward. For approxi- mately 8 months before Chang's election, the Union had no steward for the Respondent's techni- cians. Finally, as we find below, the Respondent demonstrated a strong animus toward its employ- 4 Chang had previously performed "return and repair" work, fixing small electronic devices such as clock radios and tape recorders for re- tailers who have returned the items for repair. He was reassigned to "production repair" work, fixing only one type of unit for resale to the Respondent's customers. The Walkman-type radios that Chang was as- signed to repair were delivered to Chang disassembled, and Chang testi- fied it took him a "long tithe" to locate all the pieces. He also was re- quired to use "junk" parts, evidently from discarded devices, which he said took "a lot of time." 284 NLRB No. 67 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ees' protected conduct, including Chang's later ef- forts as steward on behalf of other employees. We thus infer the Respondent was hostile to the rebirth of the technicians' grievance machinery, represent- ed by Chang's election to steward, and that this was a substantial motivating factor in the Respond- ent's decision to reassign Chang. We also agree with the judge's conclusion that the Respondent failed to rebut the General Coun- sel's case. As discussed above, while the Respond- ent claimed it had a "tremendous number of Walk- man radios in stock," Plant Manager Ike Anteby did not testify this was the reason the Respondent reassigned Chang. Nor did the Respondent intro- duce its monthly inventory records to support its assertion that an unusually high number of Walk- man-type radio repairs necessitated Chang's trans- fer. We thus infer that, had the records been pro- duced, they would have been unfavorable to the Respondent's position.5 Accordingly, we fmd the Respondent violated Section 8(a)(3) and (1) by reassigning Chang. 2. On 1 November the Respondent was late in delivering paychecks to its employees. Chang thereafter presented a grievance petition signed by 25 employees to Plant Manager Ike Anteby pro- testing the incident. On 8 November Supervisor Kim told Chang his production was "very low" as Kim handed Chang his paycheck. The next day Anteby gave Chang a written warning stating Chang's work was "[s]ubstandard" and that he would be suspended if his productivity did not im- prove. Chang's work had never before been criti- cized. When Chang asked Supervisor Kim for the Respondent's production standard for repairing Walkman-type radios, Kim replied, "[D]o [the] best you can do." The Respondent's production records show that Chang's productivity on the Walkman- type radio was lower than that of other employees. Chang testified without contradiction, however, that the work required for each radio varied. Anteby, who claimed he relied on the production figures in deciding to warn Chang, testified he had no expertise in repairing electronic equipment. The judge found, and we agree, that the General Counsel established prima facie that the Respond- ent's warnings to Chang were in response to his union activity and that the Respondent failed to rebut the General Counsel's showing. 6 The judge 5 See Auto Workers v. NLRB, 459 F 2d 1329, 1336 (D.C. Cir. 1972) See also Nor-Cal Security, 270 NLRB 543, 552 (1984); Interstate Circuit v. U.S., 306 US. 208, 225-226 (1939). 6 In adopting the Judge's conclusion, we do not rely on his findmg that no prior lawful warnings had ever been given any employee. The evi- dence does not support that finding further found Kim's oral warning to Chang was tainted because it was based on Chang's discrimina- tory work assignment. We agree, and find Anteby's written warning to Chang similarly tainted. Ac- cordingly, we find the Respondent violated Section 8(a)(3) and (1) by its warnings to Chang. 3. On 14 November Chang approached Supervi- sor Kim to discuss employee Allen Chu's com- plaint that he had been paid less than the contrac- tual rate. Kim told Chang, "[D]on't talk to me about a contract" and "[The] Union cannot help anything." Kim further told Chang, "[Y]ou guys pay $2.00 every week [in union dues], that's one hundred and four dollars per year but you can get nothing." Kim told Chang that, "Only I can help you," and that he could raise Chang's pay anytime he wanted to. Kim then told Chang to "say no more" and to "[g]o back to work." There was no further discussion. The judge found, and we agree, that Kim's state- ments to Chang tended to undermine the Union's representative status and discourage employee sup- port by suggesting that grievance filing was futile. We further find that Kim's unwillingness to discuss a possible grievance constitutes a refusal to bargain particularly since the Respondent showed no pre- disposition to discuss the grievance with Chang at a later date.7 Accordingly, we agree with the judge that Kim's conduct was violative of Section 8(a)(5) and (1) of the Act. 4. In mid-November Chang received 27 written grievances which he forwarded to the Respondent and the Union on 21 November. On 29 November Chang and eight of the grievants were laid off, out of seniority and in the middle of a workweek. None of the Respondent's packing department em- ployees were laid off. Plant Manager Ike Anteby claimed at the time that the Respondent laid off the employees because "business is no good." At the hearing Anteby testified that the employees were not laid off for financial reasons but instead because the Respondent did not have enough electronic equipment on hand for the technicians to repair. The Respondent did not produce its monthly in- ventory records to support Anteby's claim. Anteby also testified that he asked Supervisor Kim for a list of technicians to lay off based on "productivity probably" but the Respondent did not produce the list or relevant production records for the laid-off employees. The judge found that the General Counsel estab- lished prima facie that the layoff was in retaliation for the employees' protected activity and that the 7 Redway Carriers, 274 NLRB 1359, 1396-1397 (1985). STUDIO 44 599 Respondent's effort to rebut the prima facie case was weak, confused, and tended to reinforce the conclusion that the layoff was unlawful. We agree and find the layoffs violative of Section 8(a)(3) and (1).8 5. About 25 technicians met on the evening of 29 November and discussed the layoffs. They decided the Respondent "violat[ed] [the] union contract all the time," and that a supervisor, apparently Kim, "did not want [to] obey [the] contract." They agreed that Chang's layoff caused them to lose "protection" and decided to strike. The judge found, and we agree, that the strike which began 30 November and involved 27 technicians was caused by the Respondent's unfair labor practices. The Respondent argues that, even if it commit- ted the Unfair labor practices as the General Coun- sel alle ed, the violations were not serious. Thus, accordi g to the Respondent, the technicians' strike was su ect to sanction pursuant to the contract's no-strik provision. We disagree. In M stro Plastics Corp. v. NLRB, 350 U.S. 270 (1956), he Supreme Court held that a general no- strike, o-lockout provision did not waive the em- ployees' right to strike in response to the employ- er's un 'r labor practices. The Board, in Arlan '5 Department Store, 133 NLRB 802 (1961), has re- jected a broad interpretation of Mastro Plastics, holding that "only strikes in protest against serious unfair labor practices should be held immune from general no-strike clauses." 9 An unfair labor prac- tice is "serious" if it is "destructive of the founda- tion on which collective bargaining must rest."" This determination requires a case-by-case ap- proach based on experience, good sense, and good judgment." The Respondent, citing Arlan 's, contends that its conduct was not destructive of the parties' collec- tive-bargaining relationship because it did not dis- courage union membership, disrupt the employees' relationship with the Union, or undermine the Union's authority. The Respondent also contends that the technicians' complaints should have been resolved through the contractual grievance proce- dure. In Arlan 's, the Board found unprotected a walk- out by 39 employees to protest a union steward's unlawful discharge, The Board reasoned that, 8 In adopting the Judge's conclusion, we do not rely on his finding that the Union handled the grievances in an "unusual" manner as there is no evidence to support that finding. 9 133 NLRB at 807. Accord: DOW Chemical Co. v. NLRB, 636 F.2d 1352, 1360-1361 (3d Cir. 1980), cert. denied 454 U.S. 818 (1981); NLRB v. Northeast Oklahoma City Mfg. Co., 631 F 2d 669, 675 (10th Cir 1980). 1° Arlan's, supra, 133 NLRB at 808 (quotmg Mastro Plastics, supra, 350 U.S. at 281); Caterpillar Tractor Co. v. NLRB, 658 F.2d 1242, 1247 (7th Cit. 1981). 11 Arlan's, supra, 133 NLRB at 807. while a dismissal is "always a serious matter to the person discharged," it does not follow that every discharge, even if an unfair labor practice, is so serious from the point of view of the union and the other em- ployees, as to excuse compliance with the con- tract grievance procedure as a means for the settlement of the dispute.12 The Board found that the discharge was "the very kind of dispute, although constituting an unfair labor practice, which the employees, rather than striking could and should have submitted to the contract grievance procedure." 13 In reaching its conclusions, the Board specifically relied on the judge's finding in that case that the respondent did not intend that the discharge warn employees against changing their collective-bargaining repre- sentative and that the discharge evolved in large part from a "clash of personalities."14 In this case, by contrast, the unlawful layoffs were numerous, tended to discourage employees from filing grievances, and frustrated Union Stew- ard Chang's attempt to invoke the parties' contrac- tual grievance procedure. In addition, the layoffs here, contrary to Arlan 's, followed closely other unfair labor practices also designed to undermine the Union's authority and to discourage employees from filing grievances. Thus, the Respondent un- lawfully assigned Chang to more onerous work on 27 October in response to his 25 October union- steward election; issued Chang unlawful oral and written warnings on 8 and 9 November for present- ing it with an employee grievance petition; and un- lawfully rebuffed Chang's attempts to discuss an- other employee grievance on 14 November, indi- cating the futility of the contractual grievance pro- cedure. The combined effeat of the Respondent's unfair labor practices was to deny employees access to the grievance procedure. We find that conduct "destructive of the foundation on which collective bargaining must rest" and therefore con- clude that the Respondent's unfair labor practices were serious enough to make the technicians' 30 November walkout protected activity, despite the no-strike provision." 12 133 NLRB at 808. 13 Id. 14 Id 15 See Servair, Inc., 265 NLRB 181 (1982), enfd. 726 F 2d 1435 (9th Cir. 1984). Although we agree with the judge that the "magnitude and sudden- ness" of the 29 November layoffs is a factor to consider in decidmg whether the technicians' strike violated the contract's no-strike provision, we do not rely on his citation to the Board's decision in Dow Chemical Co., 244 NLRB 1060 (1979), enf. denied 636 F.2d 1352 (3d Cir. 1980), cert. denied 454 U.S. 818 (1981), followmg remand from Steelworkers v. NLRB, 530 F.2d 266 (3d Cir. 1976). 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6. The Respondent contends that, even if the technicians' walkout was protected activity at its inception, the strike lost its protected status when the strikers refused the Respondent's offer of rein- statement with backpay and other assurances short- ly after the strike commenced. When Union Representative Peter Scalza arrived at the Respondent's facility on 30 November, Chang told him about the 29 November layoffs." Scalza testified he discussed the problem with Re- spondent President Al Anteby and Plant Manager Ike Anteby, advising them that the layoff was not in accordance with the contract's seniority provi- sion, and urged them to take the strikers back and review the outstanding grievances with the Union. According to Scalza, the Antebys stated they were willing to take all the strikers back with backpay for time lost, abide by the contract's seniority pro- vision in effectuating any future layoffs, and discuss any employee grievance in accordance with the contractual grievance procedure. Scalza informed the strikers of the offer, told them the Union would review the 27 grievances with the Respondent until they were "resolved," and instructed them to go back to work. Chang testified that, after discussing the matter among themselves, the technicians told Scalza that they wanted the Respondent to promise "these things will not happen again," evidently referring to the layoffs, the Respondent's failure to pay them for 5 minutes' overtime allegedly owed, and the Respondent's assigning them to floor-cleaning re- sponsibilities. The technicians also told Scalza they wanted the Respondent to assure them that, if the Respondent wanted time to discuss the grievances, it would not "lay off or fire people this time." Scalza testified the technicians told him that they wanted to wait for Union President Vincent Gulino to arrive to resolve the grievances and that they wanted an assurance that they would not be laid off for "any reason" until "all this was re- solved." Scalza told the employees Gulino would not return from out of town for at least a week and advised the strikers to return to work. They re- fused. Scalza then conveyed the technicians' concerns to the Respondent's managers and, on returning, told the strikers the Respondent could promise only to follow seniority in effectuating any future layoffs and urged them to go back to work. The technicians again refused, concluding that they "still [had] no protection" and that "if [they went] back to work, then the next day [the Respondent could] still do this and [the Union] cannot do noth- 16 No one disputes that the Union did not learn that the employees decided to strike until the morning of 30 November. ing about this"; they again insisted on waiting for Gulino to arrive. When Gulino arrived at the picket line on 5 De- cember, he told the employees the strike was ille- gal and persuaded them to offer to return to work unconditionally. According to Gulino's testimony, he met with Al Anteby and stated that he wanted the strikers put back to work. Gulino testified Anteby refused to take them back, claiming that after the employees refused to return to work the previous week he had decided to close the depart- ment and no longer needed technicians. Gulino tes- tified he called Al Anteby later the same day and at other times during the rest of the week to re- quest the strikers' reinstatement, but that Anteby refused to reinstate them. At the time of the hear- ing, the Respondent continued to repair electronic items and had after 5 December hired technicians other than those who struck to perform repair work. The judge found that, while the Respondent's re- instatement offer and the Union's admonitions to employees to return to work were "consider- ations," they were "hardly dispositive" as evidence the strike was unprotected. The judge stated the strikers "had good reason from the statements ut- tered by Respondent itself to believe that the Union lacked authority" and that they were pro- testing not a mere economic decision but egregious unfair labor practices. The judge also found that the Respondent's offer was merely a "tactical with- drawal" and not a "guarantee against renewed dis- crimination." The judge concluded that the Re- spondent's 5 December discharge of the 27 strikers because they engaged in an unfair labor practice strike and refused to defer to the Respondent's overtures to end the strike violated Section 8(a)(3) and (l)." We disagree. As noted, the Board in Arlan 's1 8 emphasized the strong policy favoring resort to the contractual grievance-arbitration process where the respond- ent's unfair labor practices are not so serious as to render the process futile. The Board stated: A contract grievance procedure with ac- companying no-strike, no-lockout clauses, con- stitutes the contracting parties['] self-created judicial machinery for resolving the inevitable frictional disputes arising from the day-to-day administration of labor relations. It represents a civilized substitution for force in the settle- 17 The complaint alleged both an unlawful discharge and an unlawful refusal to reinstate. The judge found the employees had already been dis- charged at the time of their unilateral offer to return, and concluded "no useful purpose" would be served by finding the latter conduct independ- ently violative 18 Supra, 133 NLRB 802. STUDIO 44 601 ment of such disputes beneficial to all parties involved in such disputes. We believe that resort to such machinery for the settlement of labor controversies should be encouraged by a public agency. We can perceive no public policy served by a holding that the kind of dis- pute involved in this case is exempt from the coverage of the contract grievance procedure and may properly be resolved by a test of eco- nomic strength.19 Similarly, in NLRB v. Laborers Local 721, 20 the court stated: National labor policy encourages dispute reso- lution without resort to industrial strife, espe- cially arbitration. See, e.g., Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 377-82 [85 LRRM 2049] (1974); Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 250-53 [74 LRRM 2257] (1970). Wooden application of a rule jus- tifying strikes would completely vitiate the ef- forts of the parties to minimize disruptions by establishing mechanisms to resolve disputes through collective bargaining. Mastro Plastics contemplates strikes to protest unfair labor practices which threaten the integrity of the collective bargaining relationship. Permitting such strikes in defiance of no-strike provisions when the unfair labor practice is not so seri- ous, however, would also undermine the col- lective bargaining relationship.21 Consistent with the strong labor policy favoring resort to the grievance-arbitration process to re- solve labor disputes, we find it necessary to consid- er whether the Respondent's reinstatement offer and other assurances may have remedied its unfair labor practices to such a degree that they were no longer destructive of the parties' collective-bargain- ing foundation. In particular, we deal with the question whether, in view of the Respondent's rein- statement offer and other assurances, it appeared reasonably likely that the dispute could be resolved through the parties' grievance and arbitration pro- cedure. We consider the Respondent's 30 November offer to the technicians an unconditional pledge to remedy substantially the unfair labor practices that caused the walkout. By agreeing to take the strik- ers back and reimburse them for their lost work- time, the Respondent showed its willingness to remedy the fmancial effects of the unlawful 29 No- vember layoffs and to restore employees to the po- iS at 808. 20 649 F 2d 33 (1st Cir. 1981), enfg 246 NLRB 691 (1979). 21 Id. at 35. Accord: Dow Chemical Co. v. NLRB, supra, 636 F.2d 1352; Atlantic Richfield Co., 199 NLRB 1224, 1225 (1972). siiions they had occupied before the layoffs. Indeed, by agreeing to reimburse for lost wages the 18 strikers not previously laid off, the Respondent provided for relief not available to unfair labor practice strikers before they have unconditionally offered to return to work. 22 The Respondent as- sured the technicians that the means used to effec- tuate the 29 November layoffs (i.e., layoffs out of seniority) would not again be invoked in the event of future layoffs. Finally, by pledging to discuss the technicians' grievances with the Union in accord- ance with the parties' recognized grievance proce- dure, the Respondent demonstrated its willingness to discuss employee grievances with the Union and to abide by the parties' agreed-on method for re- solving pending and future employee grievances. These assurances, accompanied by the Respond- ent's offer of reinstatement and backpay were suffi- cient, in our view, to mitigate any impressions left by Supervisor Kim's statements or the Respond- ent's other unfair labor practices that employees or their union steward would be rebuffed and/or pun- ished for filing or pursuing grievances, that the grievance process was futile, or that the Union lacked authority to resolve their grievances. There is no record evidence that the assurances and offer were made in bad faith or in a deceptive manner, or that the Union objected to the offer's terms. Indeed, we fmd that Union Representative Scalza's almost verbatim communication of the Respond- ent's offer to the technicians accompanied by his repeated admonitions to the strikers to return to work showed that the Union approved of the offer." We further find the technicians' stated reasons for refusing the Respondent's reinstatement offer are lacking in merit. Concerning the demand that the Respondent promise not to "lay off or fire em- ployees this time" if it wanted to address the out- standing grievances, it is unclear from the testimo- ny whether the technicians were asking for immu- nity from termination solely for the period during which the grievances were being resolved or for an 22 It is well settled that unfair labor practice strikers are not entitled to reinstatement and backpay until they have made an unconditional offer to return to work See Pecheur Lozenge Co., 98 NLRB 496 (1952), enfd. as modified 209 F.2d 393 (2d Qr. 1953), cert denied 347 U S 953 (1954). Accord . Central Mack Sales, 273 NLRB 1268, 1274-1275 (1984); Struthers Wells Corp., 262 NLRB 1080 (1982), enfd. m relevant part 721 F 2d 465 (3d Cir 1983) 23 As the rest of this decision and our Order itself make clear, we are in no way holding that the Respondent's offer constituted an adequate remedy for the violations that preceded it Obviously that offer did not constitute a "cure" so as to obviate the instant proceeding and remedy We hold only that the offer brought the parties' relationship back within the ambit of Arlan k, i e., the continuing effect of the violations was not so serious as to immunize a choice to violate the no-strike clause rather than submit the disputes to the contractual gnevance-arbitration proce- dure. 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD indefinite longer period. In any event, we find the demand inappropriate as it would require the Re- spondent to surrender its right under the Act to terminate or layoff employees at any time for lawful reasons. The technicians' additional assertion that they had no "protection" because of the layoff of their union steward and the Union's lack of authority also lacks merit in view of the Respondent's pledge to abide by the contract and to discuss employee grievances with the Union in accordance with the Union's procedures. Further, as noted, the techni- cians were not entitled to any protection against layoffs effectuated for lawful reasons and the Union implicitly endorsed the Respondent's offer to resolve the disputes. The technicians' insistence to Scalza that the walkout continue until Union President Gulino ar- rived was unreasonable, as Scalza had informed them that Gulino would not be available for a week and that Scalza was the Union's representa- tive. We cannot conclude that the Respondent's unfair labor practices continued to be "destructive of the foundation on which collective bargaining must rest," following the Respondent's 30 November re- instatement offer. The technicians' continued walk- out protesting the layoffs and other Respondent conduct was therefore unprotected and in breach of the collective-bargaining agreement's no-strike provision. 24 Under such circumstances, it is clear that "an employer is free to pick and choose whom he will fire and whom he will reinstate after the strike, so long as the basis for the selection is not discriminatory."25 In this case the judge made no finding of discriminatory selection and none was al- leged. We therefore dismiss the complaint allega- tions that the Respondent violated Section 8(a)(3) and (1) by discharging and refusing to reinstate the 27 striking technicians on 5 December. In light of our partial reversal of the judge, we shall issue an Amended Conclusion of Law, an Amended Remedy, and a new Order and notice to employees. AMENDED CONCLUSION OF LAW Delete Conclusion of Law 3(c). 24 As we find the Respondent's offer sufficient to render the techni- cians' continued walkout "unprotected," we need not pass on whether the employees' refusal to obey Union Representative Scalza's admonitions to return to work also rendered the technicians' activity unprotected 26 Chrysler Corp., 232 NLRB 466, 474 (1977) (citations omitted), affd. mem. sub nom. Smith v. NLRB, 85 LC 11,074 (D C. Cir. 1979). Accord: Goodie Brand Packing Corp, 270 NLRB 451, 452 (1984), re- manded sub nom. Sanchez v. NLRB, 785 F.2d 409 (2d Cir. 1986). AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall, inter alia, order the Respondent to make those employees whom it discriminatorily laid off on 29 November 1983 whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them for the period 29 November until the Respondent offered them reinstatement and backpay on 30 November. Backpay for the stated period shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that the Respondent, Studio 44, Inc., Jersey City, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Assigning any employee to more onerous work because of the employee's union activities. (b) Issuing any employee oral or written warn- ings because of the employee's union activities. (c) Refusing to bargain with the Union, Journey- men's and Production Allied Services of America and Canada International Union, Local 157, as the exclusive bargaining representative of the employ- ees in the bargaining unit, set out below in para- graph 2(a), by refusing to discuss grievances with the Union, and by telling employees that filing grievances is futile. (d) Laying off or otherwise discriminating against any employee for filing grievances or en- gaging in other union activities. (e) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain concerning grievances with the Union as the exclusive representative of employees in the following appropriate unit: All employees of Studio 44, Inc., excluding ex- ecutives, watchmen, professional employees and supervisors as defined by the Act. (b) Make whole those employees whom it discri- minatorily laid off on 29 November 1983 for any loss of earnings and other benefits suffered as a result of the unlawful layoffs, in the manner set forth in the amended remedy. STUDIO 44 603 (c) Remove from its files any references to the unlawful work assignment, warnings, and layoffs and notify the employees in writing that this has been done and that the unlawful acts will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (e) Post at its Jersey City, New Jersey facility copies of the attached notice marked "Appen- dix..26 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER JOHANSEN, dissenting in part. Unlike the majority, I find the Respondent failed to cure its unfair labor practices and that its techni- cians' strike, which began as a protected unfair labor practice strike, remained one. The Respond- ent, despite its offer to reinstate the technicians it unlawfully laid off, failed to provide them with an assurance that it would not discriminatorily lay them off in the future. The Respondent in fact re- buffed the employees' effort to secure such an as- surance. Accordingly, I fmd that the technicians remained engaged in a protected unfair labor prac- tice strike through 5 December 1983 and that the Respondent, by refusing to reinstate them after they unconditionally offered to return to work on 5 December, violated Section 8(a)(3) and (1). Following several other aggravated unfair labor practices, set out in detail in the majority opinion, the Respondent on 29 November 1983 1 laid off Union Steward Chi Yao Chang and eight employ- ees who had recently filed grievances. The layoffs were out of seniority, implemented in the middle of 26 If dna Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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," 1 All dates are 1983 a workweek, and the Respondent offered conflict- ing reasons to justify them. The majority and I agree that the Respondent implemented the layoffs because of the employees' grievances and that the Respondent thus violated Section 8(a)(3) and (1). On 29 November about 25 technicians met and discussed the layoffs. They decided that the Re- spondent "violate[d] [the] union contract all the time," and that one of the Respondent's supervisors "did not want [to] obey [the] contract." The tech- nicians agreed that Chang's layoff caused them to lose "protection" and they decided to strike. Their strike commenced 30 November and, as my col- leagues and I agree, the strike was at the outset an unfair labor practice strike. Because the unfair labor practices that precipitated the strike were "destructive of the foundation on which collective bargaining must rest," my colleagues and I also agree that the strike was a protected strike despite that it otherwise violated a contractual no-strike provision. Where we part is on the question wheth- er the Respondent later cured its unfair labor prac- tices, thus robbing the strike of its protection from the contractual no-strike provision. As indicated, the technicians' strike began on 30 November. When Union Representative Peter Scalza arrived at the Respondent's facility that day, Union Steward Chi Yao Chang told him about the 29 November layoffs. Scalza testified he discussed the problem with Respondent President Al Anteby and Plant Manager Ike Anteby, advising them that the layoff was not in accordance with the con- tract's seniority provision, and urged them to take the strikers back and review the outstanding griev- ances with the Union. According to Scalza, the Antebys stated they were willing to take all the strikers back with backpay for time lost, abide by the contract's seniority provision in effectuating any future layoffs, and discuss any employee griev- ance in accordance with the contractual grievance procedure. Scalza informed the strikers of the offer, told them the Union would review the griev- ances with the Respondent until they were "re- solved," and instructed them to go back to work. Chang testified that, after discussing the matter among themselves, the technicians told Scalza that they wanted the Respondent to promise "these things will not happen again." The technicians also told Scalza they wanted the Respondent to assure them that, if the Respondent wanted time to dis- cuss the grievances, it would not "lay off or fire people this time." Scalza testified the technicians told him that they wanted to wait for Union Presi- dent Vincent Gulino to arrive to resolve the griev- 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ances and that they wanted an assurance that they would not be laid off for "any reason" until "all this was resolved." Scalza told the employees Gulino would not return from out of town for at least a week' and advised the strikers to return to work. They refused. Scalza then conveyed the technicians' concerns to the Respondent's managers, and, on returning, told the strikers the Respondent could promise only to follow seniority in effectuating any future layoffs and urged them to go back to work. The technicians again refused, concluding that they "still [had] no protection" and that "if [they went] back to work, then the next day [the Respondent could] still do this and [the Union] cannot do noth- ing about this"; they again insisted on waiting for Gulino to arrive. On 5 December Gulino, Scalza, and some of the technicians spoke with Al Anteby and Ike Anteby. Gulino asked the Antebys to put the technicians back to work. Al Anteby refused, stating either that he was going to "revamp" his business and "move all [his] stuff up to Canada," that he did "not need the people no more," or that he had "nothing to give them to do there." Gulino later that day, and at other times during the rest of the week, again asked the Antebys to put the techni- cians back to work. On at least these occasions, Gulino placed no conditions on the technicians' re- turning to work. Despite Anteby's statements to the contrary, the Respondent continued to repair electronic equipment at its Jersey City, New Jersey facility. It hired additional technicians, but never reinstated any of the technicians who struck. Unlike the majority, I agree with the judge that the Respondent failed to cure its unfair labor prac- tices because it gave the employees no assurances on which they could reasonably rely that it would not again discriminatorily lay off its technicians. To the contrary, when the employees sought an assur- ance that "these things will not happen again," the Respondent rebuffed them and stated that it could promise only to follow seniority in implementing future layoffs. What the employees sought, and what the Respondent refused to provide, forms an essential part of the Board's customary remedy for a discriminatory layoff, i.e,, a promise by the em- ployer, conveyed to employees in a notice, that it will refrain from further discrimination. Under these circumstances, and in light of the extent and severity of the Respondent's unfair labor practices, the employees could reasonably conclude that the Respondent could not be trusted, and that its 30 November offer to reinstate the employees was a tactical withdrawal, not a guarantee against re- newed discrimination. Accordingly, I find that the technicians' strike remained a protected unfair labor practice strike, despite the Respondent's offer. I also do not find that the technicians' strike lost its status as a protected unfair labor practice strike because the technicians sought an assurance that the Respondent would not "lay off or fire people this time" or that the Respondent would not lay the technicians off for "any reason" until "all this was resolved." This request was, of course, in re- sponse to the Respondent's having laid off Union Steward Chang and eight grievants in violation of Section 8(a)(3) and (1). The request also followed the Respondent's offer to review the grievances for which Chang and the other employees were un- lawfully laid off. Contrary to the majority's sugges- tion, I find that the technicians' request, in context, was not an economic demand unrelated to the Re- spondent's unfair labor practices. Rather, I find that the employees sought a remedy reasonably tai- lored to the Respondent's aggravated violations. While I would not require that the Respondent necessarily agree to the demand in order to cure its unfair labor practices, I nevertheless do not agree that the demand converted the strike to an eco- nomic strike or otherwise caused the strike to lose its insulation from the contractual no-strike clause.2 Accordingly, I find that the technicians' 30 No- vember strike remained a protected unfair labor practice strike. The Respondent therefore was not "free to pick and choose whom [it would] fire and whom [it would] reinstate. . . so long as the basis for the selection [was] not discriminatory." Rather, the Respondent was obligated to refrain from dis- charging the strikers because of the strike and to reinstate them upon their unconditional offer to return to work. The judge's finding is well support- ed that Respondent President Al Anteby falsely 2 The Respondent contends that the strike also was unprotected be- cause it was an unauthorized wildcat strike and contrary to Union Repre- sentative Scalza's instructions to return to work. By choosing the Union to represent them, however, the employees did not waive all rights to protect themselves from the Respondent's unlawful conduct. Jones & McKnight v NLRB, 445 F.2d 97, 105 (7th Cir 1971). "Unless . . a wild- cat strike is called for the purpose of asserting a right to bargain collec- tively in the union's place or is likely, regardless of its purpose, to impair the union's performance as exclusive bargaining representative, section 9(a) does not put the strikers beyond the pale of section 7." East Chicago Rehabilitation Center P. NLRB, 710 F.2d 397, 402 (7th Cir. 1983), cert. denied 465 U.S. 1065 (1984). The employees here struck in support of the Union's role as bargaining representative, not to undermine it: They struck because the Respondent's conduct denied them representation through the contractual grievance procedure. Although the employees failed to heed Seal7a's instructions to return to work, they did so in the face of the Respondent's refusal to assure them that "these things will not happen again." Accordingly, I find the striking employees did not intend to undermine the Union and that their strike did not impair the Umon's performance as exclusive representative. STUDIO 44 605 told Union President Gulino on 5 December that he was going to "revamp" his business and "move all [his] stuff to Canada," that he did "not need the people no more," or that he had "nothing to give them to do there" because the employees main- tained their strike. The Respondent in any event failed to reinstate the strikers after Gulino's uncon- ditional offer on their behalf to return to work that day and at other times during the rest of the week. I find the Respondent thus violated Section 8(a)(3) and (1).3 3 The fact that the strikers on 30 November insisted on waiting for Uruon President Guhno to return from out of town is irrelevant. Gulmo in fact returned on or before 5 December when he first offered on the striking technicians' behalf that they would unconditionally return to work. Since backpay would not have commenced before their uncondi- tional offer to return, the fact that the strikers had earlier insisted on waiting for Guilt-10 to return would not render the Respondent liable for backpay to those who struck for any period during which they main- tained their strike for reasons other than the Respondent's unfair labor practices and its refusal to provide an assurance that "these things will not happen again" I am not convinced in any event that the technicians would have maintained the strike—even if the Respondent had provided the assurance they sought—only to wait for Gulino to return. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT assign any of you to more oner- ous work because of your union activities. WE WILL NOT issue any of you oral or written warnings because of your union activities. WE WILL NOT refuse to bargain with Journey- men's and Production Allied Services of America and Canada International Union, Local 157 as the exclusive bargaining representative of those of you in the bargaining unit set out below by refusing to discuss grievances with the Union, and by telling you that filing grievances is futile. WE WILL NOT lay off or otherwise discriminate against any of you for filing grievances or engaging in other union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain concerning griev- ances with the Union as the exclusive representa- tive of those of you in the following bargaining unit: All employees of Studio 44, Inc., excluding ex- ecutives, watchmen, professional employees and supervisors as defmed by the Act. WE WILL make whole those of you whom we discriminatorily laid off on 29 November 1983 for any loss of earnings and other benefits resulting from your layoff, less any net interim earnings, plus interest. WE WILL notify each of the employees affected by our unlawful work assignment, warnings, or layoffs that we have removed from our files any references to our unlawful acts and that our unlaw- ful acts will not be used against him or her in any way. STUDIO 44, INC. Hope Singer, Esq., for the General Counsel. Chuck Ellman, Esq., of East Orange, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge. The consolidated complaint in these cases alleges that Studio 44, Inc. (Respondent) violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act. The specific issues raised by the pleadings are: 1. Whether Respondent, in October 1983, changed work assignments of its employee Chi Yao Chang, be- cause he engaged in protected concerted activities? 2. Whether Respondent, about November 8 or 9, 1983, issued warnings to Chang because he engaged in protect- ed activities? 1 Whether Respondent, about November 14, 1983, in- formed employees that it would be futile to process grievances through their collective-bargaining represent- ative? 4. Whether Respondent, about November 14, 1983, re- fused to bargain collectively respecting grievances filed with it? 5. Whether Respondent, about November 29, 1983, discharged nine employees in retaliation for their having engaged in protected concerted activities? 6. Whether a strike by Respondent's employees was caused or prolonged by unfair labor practices committed by Respondent? 7. Whether Respondent, since about December 5, 1983, has refused to reinstate its striking employees on their unconditional offer to return to work or discharged them on that date? 8. Whether Respondent, about December 5, 1983, threatened employees with partial plant closure in retal- iation for their having engaged in protected concerted activities? In addition to these issues, another was submitted by Respondent by way of argument at the hearing, i.e., whether the "no strike" clause in the collective-bargain- 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing agreement rendered the strike, referred to above, un- protected. The hearing was held before me in Newark, New Jersey, on June 5, 6, and 7, 1984. On the entire record, including my observation of the demeanor of the wit- nesses, and after due consideration of the briefs filed by the General Counsel and by the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION STATUS The pleadings establish and I find that Respondent is a New Jersey corporation that repairs and sells electronic equipment and that, in its operations annually, it meets the Board's standard for the assertion of jurisdiction over nonretail enterprises. The pleadings further establish and I find that Jour- neymen's and Production Allied Services of America and Canada International Union, Local No. 157 (the Union) is a labor organization as defined in Section 2(5) of the Act. IL THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is managed by three brothers. Its president is Al Anteby; its plant manager is Ike Anteby; the third management official is not involved in the incidents dis- cussed herein. Respondent began operations in 1977. Its business has consisted of its buying defective electronic items (e.g., car stereos), from retailers, repairing those items, remov- ing the labels from them and then selling the remanufac- tured items to Respondent's own customers; it also has performed repair services for retailers and returned the repaired items to them. At one time, several years ago, Respondent had ware- houses in California and Illinois and facilities in Georgia and New York, in addition to the facility involved in the instant case, located in Jersey City, New Jersey. About 2-1/2 or 3 years ago, because of financial problems, Re- spondent closed down permanently all its facilities except the Jersey City plant. At Jersey City its employees were laid off then for a 2-week period while it revamped its product lines. Prior to that 2-week layoff and since, Re- spondent has laid off no employees at Jersey City until November 23, 1983, as discussed in further detail below. In 1979 Respondent recognized the Union as the ex- clusive collective-bargaining representative for its pro- duction and maintenance employees and, until the events in this case occurred as discussed below, it had no labor relations problems. In late 1983 there were about 35 technicians employed by Respondent. They were mostly Mandarin speaking with little or no understanding of English. They per- formed the repair work referred to above. Respondent also has had about 20 other employees who pack and ship the finished products. The packing department em- ployees have had their own union steward. They are not involved in the issue in this case. The technicians did not have their own steward for about 8 months in 1983 until Chi Yao Chang, as dis- cussed below, was elected steward in October 1983. (All dates hereafter are for 1983 unless specified otherwise.) The technicians for the most part understand only the Mandarin language. Chang has a limited ability to com- municate in English. He started working for Respondent in February 1981 and had been on a leave of absence from March 1982 to May 1983 when he was in Taiwan. B. Alleged Discrimination in Chang's Job Assignments Chang testified that, in September, he observed a white person walking through Respondent's plant and, on inquiry, learned from a coworker that that individual was Vincent Gulino, the Union's president. Chang testi- fied also that in that same month Union Representative Peter Scalza gave him a copy of the current contract be- tween Respondent and the Union. In October, the Union's president, Vincent Gulino, came to Respondent's plant and conducted an election among the technicians for the purpose of choosing a shop steward. Chang got 20 votes to a total of 13 for the other two candidates. On the day after Chang was elected shop steward, a probationary employee, Hu, told Chang that Respondent did not want him in its employ because of "too many re- jects." Hu asked Chang to intercede with his supervisor, Kim, on his behalf. Chang later spoke to Kim and in- formed him that he, Chang, had checked Hu's produc- tion record with a quality control employee and learned that Hu had only one reject. Chang then told Kim that Hu was very upset because Kim had "lied." Kim replied that Respondent has the right to hire another technician in place of Hu. Chang testified further that about 10 min- utes later Respondent's plant manager, Ike Anteby, called him to an office, acknowledged that Chang was now the shop steward, and read to Chang the portion of the collective-bargaining agreement pertaining to Re- spondent's right to discharge a probationary employee. Chang told Anteby that he had checked Hu's production record and found that Hu had only one reject. Anteby told him Respondent did not want Hu in its employ. Chang testified that on the second day after he had been elected shop steward, his supervisor, Kim, changed his job assignment. For many months prior to that change Chang had been regularly assigned to repair items returned by Respondent's customers. However, after his discussion with Kim and Anteby, as related above, Chang was assigned to perform production repair work and, in particular, to work on a Walkman model that, he said, gave him a "lot" of problems. It thus ap- pears to me that Chang viewed the Walkman work as more onerous than the varied work he had performed previously on a wide range of items. His testimony also indicates that regular production work calls for fewer skills than are required in repairing a range of different items. Kim did not testify for Respondent. Plant Manager Ike Anteby testified for the great part about asserted defi- ciencies in Chang's work on the Walkman items, as dis- cussed in further detail below. The production records STUDIO 44 607 Respondent placed in evidence disclose no entries along- side Chang's name for October 24, 25, and 26, and that, from October 27 on, he was assigned to a model desig- nated by a code number on the report that pertained to Walkman repairs. The General Counsel has made out a prima facie showing of unlawful discrimination about the change in Chang's assignment by having offered credible evidence that Chang was suddenly and inexplicably assigned to more onerous work immediately after he, in his capacity as shop steward, vigorously pressed Respondent to re- consider its decision to discharge Hu. Respondent's own production records confirm that Chang's duties were abruptly changed. Respondent did not call any witnesses to offer an explanation for having effected the change. Instead, it suggests by way of argument that I should infer that his reassignment was necessitated by the "tre- mendous number of Walkman radios in stock." Surmise should not be substituted for testimony otherwise readily available but not proferred. As Respondent has not come forward with any evi- dence to neutralize the prima facie showing of discrimi- nation, I find that Respondent assigned Chang to more onerous work on and after October 27 because Chang has engaged in protected activities as the Union's stew- ard. See Dillon Co., 241 NLRB 579, 581-582 (1979). C. The Alleged Discriminatory Warnings to Chang Chang testified without contradiction that, until he became shop steward, his work had never been criti- cized. He also testified that on November 1, Respondent was late in delivering paychecks to employees and that he then prepared a petition to protest that delay, had it signed by over 25 of his coworkers, and delivered it to Anteby. On the very next payday while he and other employees were waiting as a group to receive their pay- checks, his supervisor, Kim, told him that his production was very low. On the next day, November 9, Ike Anteby came to his workplace and gave him a written notice that stated that his work was "substandard" and in- formed him that he would be suspended if his productiv- ity did not improve. That notice also discloses that Chang had received no prior oral or written warnings. Chang testified, also without contradiction, that he asked Kim, on receipt of the November 9 warning notice, what was the production standard set by Re- spondent for the model on which Chang was assigned to work and that Kim responded that the standard simply was to do the "best you can do." Respondent's production records as explained by its plant manager disclose that Chang's production on the Walkman model was less than other employees also as- signed to repair that model. Ameby testified that he was no expert himself in repairing electronic equipment but that based on the production figures furnished him, he had decided to issue the written to Chang_ Chang testi- fied without contradiction that the repairs to a Walkman can be simply to complex depending on the extent of the damage to each. The evidence above discloses that Supervisor Kim issued a very obvious oral warning to Chang while Chang and others were waiting for their paychecks. When that evidence is coupled with uncontroverted evi- detiCe that no warnings had ever been issued previously, and also with the fact that the petition Chang had just presented to Respondent, signed by over 25 coworkers, related to a delay in receiving the previous week's pay- checks, I conclude from the timing, the place, and the other circumstances of the oral warning by Kim that the warning was given in retaliation for Chang's having pre- sented the petition protesting late receipt of employees paychecks. Respondent offered no evidence in rebuttal. I find that Kim's oral warning was issued for discriminato- ry reasons. More importantly, however, the oral warning was based on a work assignment that had been discrimin- atorily given Chang, as found above. On that premise, the warning itself is similarly tainted. Respecting the written warning of November 9, I note again that the assignment of Chang to the Walkman repair work on and after October 27 was discriminatorily motivated and perforce the written warning to him ema- nating from the unlawful assignment is itself unlawful. Independently of that consideration, I find that the Gen- eral Counsel's evidence established a prima facie showing of discrimination in that the written warning was issued in close proximity to Chang's activities as union steward, in that no prior lawful warnings had ever been given any employee, in that Chang was never told of any produc- tion standard, and where in fact the standard set by Kim was simply to do one's best (a standard apparently met by Chang) and in that Respondent's other conduct in this case exhibits union animus. Respondent has not offered any credible evidence in rebuttal. I place no significant value on the bare numbers on the production records placed in evidence based on Anteby's testimony. Anteby conceded he has no expertise in electronic repair work. Chang's unrebutted testimony reflects that repairs on Walkmans can be simple or complex, depending on the extent of the damage to each. In the absence of any pro- bative evidence, I infer that Chang was doing the best he could and, on that basis, met the standard set by Supervi- sor Kim. Anteby's testimony that he himself has given oral warnings to Chang is not credited as the November 9 notice itself clearly shows that no such prior oral or written warnings had been given Chang. Moreover, it is absurd to charge an employee for "substandard" produc- tion when no objective standard exists and when the only standard that does exist, according to the direct evi- dence thereon, is one that is tied solely to one's best ef- forts. Anteby's summary presentation to Chang on No- vember 9 of the written notice suggests to me that he was more interested in issuing the warning than in reme- dying any production problem and that, in turn, con- vinces me that Respondent's motivation in issuing the notice was discriminatory. As the General Counsel's case makes it clear, and as Respondent's evidence fails to rebut that prima facie showing, I fmd that the warning notice served by Respondent's plant manager on Chang on November 9 was aimed at discouraging Chang and other employees from filing or presenting grievances or engaging in other union activities. See Keller Mfg. Co., 237 NLRB 712 (1978). 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D. The Alleged Refusal to Bargain The complaint in this case alleges that about Novem- ber 14 Respondent refused to bargain collectively and that it informed employees of the futility of their filing grievances. In support thereof, the General Counsel of- fered the uncontroverted testimony of Chang, summa- rized as follows. In mid-November, one of the techni- cians, Allen Chu, talked to Chang about his rate of pay that he believed was less than what was provided for in the collective-bargaining agreement. Chang informed him that he would discuss the matter with Respondent's supervisor, Kim. The next morning, Chang talked to Kim about Chu's complaint. In response, Kim told Chang that he was not to talk about the contract and that "the Union cannot help anything." Kim further told Chang that the employees were paying $2 a week, "that's $104 per year" but "get nothing." Kim told Chang that only he can help Chang and that he can raise Chang's pay anytime he wants to do so. Kim ended the discussion by telling Chang that he wanted Chang to "say no more" and to go back to work. I credit Chang's uncontroverted testimony as to his conversation with Kim. Respondent characterizes Kim's statements to Chang as isolated and innocuous. The facts speak otherwise. When Chang presented Kim with the first grievance in his very brief tenure as union steward, Kim issued him a discriminatory warning, as found in the preceding sec- tion. On Chang's second grievance, he was told by Kim in essence that the Union can do nothing, that he should keep quiet, and depend only on Respondent's largesse. Further, and as discussed in more detail below, Kim's re- marks played a significant role in the decision of the technicians to engage in a strike. All those factors out- weigh the consideration Respondent views as of primary significance. Respondent points to the fact that until Chang was elected steward there had been no labor rela- tions problems in its plant. It argues, in that context, Kim's remarks were isolated and an aberration. It could be more easily argued that Kim's remarks were deliber- ately aimed at ensuring that there would continue to be no grievances and no labor relations problems. In any event, it is now well settled that statements, such as Kim made, undermine the Union's representative status and discourage employee support for the Union. See Holland American Wafer Co., 260 NLRB 267 (1982), and Hutchi- son-Hayes International, 264 NLRB 1300, 1304 (1982). E. The Events in Late November and in December 1. The layoffs, strike, alleged discriminatory discharges, threat, and refusals to reinstate In the 1-week period ending November 21, approxi- mately 27 technicians filed grievances with Chang that were reduced to writing. Copies were sent to Respond- ent and to the Union on November 21. Between that date and November 29, Chang called the Union's office two or three times to inquire about the status of those grievances and was told by an office employee there that the Union's president, Gulino, and its representative, Scalza, were not in. Gulino and Scalza testified before me but they did not refer to Chang's inquiries or to any effort on their part to make contact with Chang. They related simply that they referred the grievances to their attorney's office for handling. Parenthetically, I note that their handling in this manner of 27 separate written grievances received at one time appears to be unusual, especially as these were the first grievances any of Re- spondent's employees ever filed. The next word that Chang received respecting his job came instead from Respondent. On November 29 he and eight other technicians were laid off. All were among those who filed the grievances. None of Respondent's packing employees were laid off. About 25 of the technicians met on the evening of No- vember 29 in a church in the Chinatown section of New York City. They discussed the layoffs that apparently were not done in order of seniority as provided for in the contract; one of the laid-off employees had been em- ployed for more than 4 years, but Respondent had kept in its employ one who had "seniority only one month, two month." They discussed their perception that Re- spondent "violated [the] union contract all the time" and that a supervisor "did not want to obey the contract" (an obvious reference to Kim's statements to Chang dis- cussed above). They discussed also the layoff of their steward and the consequent loss to them of "protection." The technicians decided unanimously to engage in a strike beginning the next day and they prepared signs to be used on the picket line. On the morning of November 30, 27 technicians were on the picket line. Union Representative Peter Scalza came to Respondent's plant about 10 a.m. that day and learned that Respondent had laid off nine technicians. He went inside the plant and spoke to Respondent's officials. He returned to the picket line and reported that Re- spondent would take back the laid-off employees and that it would pay the striking technicians for the time they lost from work. The technicians discussed the matter and informed Scalza that if Respondent wants time to discuss the grievances, Respondent should prom- ise not to layoff employees. Scalza conveyed that mes- sage to Respondent and then informed the technicians that Respondent could promise only to follow seniority in layoffs. He urged the striking technicians to "go back inside now" and that the grievances will be resolved later. The technicians refused to return as they conclud- ed that "if [they] go back to work, then the next day [Respondent] still can [layoff] and [the Union] cannot do [anything] about this." They told Scalza that they wanted to meet with the Union's president, Vincent Gulino. Gulino arrived at the picket line on the morning of December 5. The General Counsel called three witnesses who testified about the events of that day. They were Union President Vincent Gulino, Union Representative Peter Scalza, and Steward Chang. Their respective ac- counts vary and are set out below. Gulino testified as follows. He met with the techni- cians on the morning of December 5 and persuaded them to go back to work unconditionally. He, Scalza, and sev- eral of the strike technicians then went inside the plant STUDIO 44 609 and spoke with Al and Ike Anteby. Gulino stated to the Antebys that he wanted the strikers put back to work. Al Anteby threw a newspaper at Gulino and said, "Look what they said about me." Anteby also told Gulino that he would not put the striking technicians back to work and that he would revamp all his business and move it to Canada. Gulino asked Al Anteby later that day, when speaking with him on the telephone and at other times during the rest of that week, to take the employees back, but Anteby refused as his mind was set. Scalza's account as to the events of December 5 fol- lows. He and Gulino chose the shop steward and three other technicians as a committee to accompany him and Gulino. They went in to speak with Al Anteby and Ike Anteby. Gulino stated he wanted them to put everybody back to work with backpay and that if there were any problems with any of the 27 grievances, they would be discussed one at a time. Gulino also mentioned that the technicians wanted a letter signed by Respondent guar- anteeing that, on their return, nobody would be laid off. Al Anteby stated that he could not take the technicians back at that time, that he was going to have a close up that department and that he did "not need the people no more." Union Steward Chang's account is as follows. Gulino came to the picket line on December 5 and asked the striking employees to select several to go with him to talk to Respondent. Chang and two others were chosen and they accompanied Gulino and Scalza to the meeting. The technicians had brought a tape recorder to the meet- ing. Al Anteby became angry and said he did not want "those things inside." Gulino asked Al Anteby whether he wanted the technicians to go back to work. Anteby said that he did but that the contract was canceled and that he has nothing for the technicians to do. Al Anteby said that he had called the technicians back to work in the previous week but they refused to return. Gulino stated that Anteby had spoken then to Scalza and that Mow Galin° was asking, as the Union's president, to put the technicians back to work. Anteby replied that he spent $6 to buy an item and $6 to repair it, and that he could buy an "already repaired" machine for $12. Anteby said he did not need the technicians and was going to close the shop in 2 or 3 months. Respondent has continued to repair electronic items at its Jersey City facility, and has, since December 5, hired technicians, but none of the striking technicians have been returned to work. In February 1984 Respondent filed a petition for bank- ruptcy. 2. Respondent's reasons Respondent's plant manager testified as follows re- specting the layoffs on November 29. For several years, Respondent lost money. The decision about those layoffs was based on his request, made to Supervisor Kim, that a list of names of those Respondent "should discharge" should be submitted, and that list should be based on "productivity probably." (No list or productivity figures were offered in evidence. Kim did not testify.) On cross- examination, Respondent's plant manager testified that Respondent's longstanding adverse financial situation was not the reason why employees were discharged on November 29; Respondent's reason was that Respondent did not have enough items on hand to keep all the tech- nicians busy. Although Respondent has records showing the numbers of items it receives, it did not offer any in evidence. Regarding the events on December 5, Respondent's plant manager testified on his direct examination that he and his brothers had decided since December 5 to pur- chase finished products and to sell these to its customers instead of buying and repairing defective items for resale. Respondent thus has asserted that it no longer needed the technicians. On cross-examination, Respondent's plant manager testified that there had been no such deci- sion, that decisions "sometimes [are] made hour by hour" and that he could not understand why he was being cross-examined "about [Respondent's] business." On fur- ther cross-examination, he related that the decision to change Respondent's operations to "importing-jobbing" was made on December 2. When the General Counsel asked how the "importing-jobbing" operation works, he replied that nobody understands how it works. He testi- fied that he does not know what steps Respondent's president took to buy new merchandise (in lieu of buying defective merchandise and repairing it), and that he him- self does not have any personal knowledge about any of Respondent's purchases of new merchandise. I find the testimony of Respondent's plant manager about Respondent's reasons for the November 29 layoffs and its actions on December 5 to be worthless. His ac- count was conclusional, unsupported by available docu- mentary evidence, and uncorroborated by any testimony from its own supervisor, Kim, contradictory and given in an argumentative and evasive manner; in short, it has none of the attributes of credible testimony. 3. The no-strike clause The collective-bargaining agreement between Re- spondent and the Union contains the following provi- sions: XIX STRIKES & LOCKOUTS Section I—There shall be no strikes or lockouts during the term of this Agreement. As noted above, Union Steward Chang had been given a copy of the contract in September. He testified that he was unaware of the express provision of article XIX, quoted above. It appears too that until Respondent's counsel raised the issue at the hearing before me, Re- spondent itself did not allude to that article, particularly during the November-December time frame discussed above. 4. Analysis The General Counsel has made out a clear prima facie showing that the layoffs on November 29 were discri- minatorily motivated and that the 27 employees were discriminatorily discharged on December 5. The evi- dence demonstrates that beginning with Chang's election as steward for technicians, the employees in that depart- 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment became increasingly militant as union members. The evidence, described above, discloses also that Re- spondent, from virtually the onset of the activity, had moved in various directions to suppress that activity. Thus, it had given discriminatory warnings to Chang in the presence of his coworkers and, through Kim, made it clear that any further efforts on their part respecting their rights as union members under the contract would be ignored and that their only hope for better working arrangements lay in their keeping quiet and depending on Respondent's largesse., Their response was quick and vir- tually unanimous. Twenty-seven technicians filed written grievances that were mailed to Respondent and the Union on November 21. The credited testimony discloses that Scalza referred to those grievances in his discussion with Respondent on the morning of November 29 and I infer from the context of the discussion that Respondent knew what he was referring to. I infer therefrom, and from the fact that the grievances were mailed a week previously, that Respondent was aware of the existence of those 27 written grievances when it laid off Chang and eight other technicians. The summary manner in which the layoffs were effected, the fact that they took place during the workweek, the size of the layoff itself, the obvious disregard of the seniority provisions of the contract, the lack of any prior indication that layoffs were imminent, the fact that none of the packing em- ployees were laid off, and the fact that there had never been such a layoff before in the plant's history, are addi- tional factors that point to Respondent's discriminatory motivation. Respondent's attempt to rebut this prima facie case was weak and confused. Its efforts, instead, re- inforced the showing of unlawful motivation. The same observations pertain to the evidence respect- ing the December 5 discharges of the striking employees. Respondent made it clear to Gulino that the strikers were discharged because they persisted in the strike. Re- spondent's attempts to show an economic basis therefore boomeranged; the mangled account of its plant manager in fact buttressed the evidence supporting a finding that the discharges were discriminatorily motivated. The complaint alleges that Respondent had unlawfully failed and refused to honor an unconditional application made on December 5 on behalf of the striking techni- cians to return to work. The evidence offered by the General Counsel to establish such a unconditional appli- cation was contradictory, confused, and unpersuasive. I find that the General Counsel has failed to persuade me that such application had been made in the December 5 meeting. There is uncontroverted evidence in the record that later on December 5, and on other occasions later that week, Gulino unconditionally asked Al Anteby on the telephone to reinstate the strikers. On that evidence, I fmd such applications were made. However, as Respond- ent had already discharged these employees, no useful purpose is served by finding separate violations based on Respondent's failure to honor those requests. Cf. Abilities & Goodwill, 241 NLRB 27 (1979). The complaint also alleges that Respondent unlawfully threatened to close down its Jersey City plant on De- cember 5. The statements of Al Anteby did not consti- tute a threat as it is evident that he was then rationaliz- ing Respondent's having discriminatorily discharged the technicians and was not in any way seeking to induce them to forego their support for the Union or to refrain from other concerted activities. At the hearing, Respondent's counsel presented for consideration a defense based on legal considerations, that is, that the employees lost the protection of the Act by having struck in the face of article XIX of the con- tract between Respondent and the Union. The strike ob- viously was caused by Respondent's discriminatory lay- offs on November 29 and its earlier unfair labor prac- tices, discussed above. The strike was obviously pro- longed by Respondent's insistence that it would reserve to itself future decisions about layoffs, especially as it made no effort on which the striking employees could reasonably rely whereby they could be assured that there would be no recurrences of discriminatory layoffs. Indeed, the totality of the evidence in this case indicates that the striking technicians could reasonably conclude that Respondent could not be trusted. Respondent's unfair labor practices were the very cause of the strike and prolonged its existence. It effectively had discrimina- torily "locked out" about a third of its force of techni- cians. To use the no-strikes no-lockouts provision of the collective-bargaining agreement to insulate itself from the natural consequences of that very action is basically unfair. The U.S. Supreme Court some years ago noted the inherent inequity in such an argument and rejected it. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). The magnitude and suddenness of the layoffs cannot be overlooked in considering whether the technicians were bound to the literal contract provisions. See Dow Chemi- cal Co., 244 NLRB 1060 (1979). Respondent contends that its offer on November 29 to recall the laid-off em- ployees to work effectively removed any reason for the technicians to continue to strike and it cites Scalza's ad- monitions to the technicians and their persistence in striking as evidence that the strike was unprotected. Those are considerations but they are hardly dispositive. The strikers had good reasons from statements uttered by Respondent itself to believe that the Union lacked au- thority and they were protesting, not a mere economic decision, but egregious unfair labor practices. The evi- dence indicates that they viewed the November 29 offer as a tactical withdrawal by Respondent and not as a guarantee against renewed discrimination. I therefore find that Respondent laid off 9 technicians on November 29 and that it, on December 5, discharged those 9 and 18 other technicians who have been engaged in an unfair labor practice strike since November 30. See Schnabel Associates, 272 NLRB 1022 (1984). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. Respondent, in violation of Section 8(a)(1) and (3) of the Act: STUDIO 44 611 (a) Changed the work assignment of its employ- ee, Chi Yao Chang, in October 1983 from return repair work to production repair work and issued warnings to him because of his activities as union steward. (b) Laid off Chang and eight other technicians on November 29, 1983, to discourage them from en- gaging in filing grievances and otherwise engaging in union activities. (c) Discharged 27 technicians on December 5, 1983, because they engaged in unfair labor practice strike and because they refer to defer to Respond- ent's overtures to end the strike. 4. Respondent, in violation of Section 8(a)(1) and (5) of the Act, refused to bargain collectively with the Union when Supervisor Kim rejected Union Steward Chang's attempts to discuss a grievance and when Kim informed Chang instead that such efforts are futile and that Respondent would adjust complaints when made di- rectly to it by the unit employees. 5. Respondent did not unlawfully threaten on Decem- ber 5, 1983, that it would close part of its Jersey City plant. 6. The acts of Respondent set forth in paragraphs 3 and 4 above are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaged in unfair labor practices, it is appropriate to order it to cease and desist therefrom and to take certain affirmative action, including reinstating and making whole 9 employees laid off on November 29 and the 27 whose employment was terminated on December 5, 1983, to rescind the warnings issued to Chang and to ex- punge from its records all references to those layoffs, dis- charges, and warnings. Loss of pay and interest thereon are to be computed in the manner prescribed in E W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977), and consistent with Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.]