Curtis Manufacturing Co., Inc.

National Labor Relations Board - Board DecisionsJul 9, 1968

172 N.L.R.B. 1094 (N.L.R.B. 1968)

1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curtis Manufacturing Co., Inc. and Amalgamated Clothing Workers of America , AFL-CIO. Case 12-CA-3955 July 9, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS , AND ZAGORIA On April 22, 1968, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, ' con- clusions,2 and recommendations3 of the Trial Ex- aminer , as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Cur- tis Manufacturing Co., Inc., Tampa, Florida, and its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Delete from paragraph 1(c) of the Trial Ex- aminer 's Recommended Order that part thereof which reads "In any like or related manner" and substitute therefore "In any other manner." 2. Delete from the sixth-indented paragraph of the notice marked "Appendix" the words "in any like or related manner"and substitute therefor "in any other manner." Additionally, in reciting employee Heller's testimony regarding Pre- sident Blake's conversation with her, the Trial Examiner was apparently under the impression that " Union Pants " referred to the union When we read Heller's testimony , we find that the Union Pants of which Blake was speaking was another company rather than the Union This finding in no way modifies our conclusion that in that conversation Blake made threats of discharge , layoff, plant closure, and withdrawal of benefits to discourage union activities ' The Trial Examiner found that the first discharge of employee Dykes was unlawful We disagree In the first place, the July 19 discharge of Dyke-, was not alleged to be discriminatory Secondly, the Trial Examiner observed at the hearing that only the August 3 discharge was being litigated However, we have considered the discriminatory motive in the July 19 discharge as background in concluding that the August 3 discharge was unlawfully motivated ' Although he found that the Respondent had violated Sec 8 ( a)(3) and (I ) of the Act, the Trial Examiner recommended a narrow cease -and-desist order However, it has been the Board's policy to issue broad orders where Respondent 's discrimination goes to the very heart of the Act In view of the nature of Respondent 's violation here, we shall order the Respondent to cease and desist from in any manner infringing upon the rights of em- ployees as guaranteed by Sec 7 of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B LIPTON, Trial Examiner: Upon a complaint by the General Counsel' alleging that Respondent violated Section 8(a)(1) and (3) of the Act, a hearing was held before me on December 21 and 22, 1967, in Tampa, Florida. All parties ap- peared at the hearing and were afforded full oppor- tunity to present relevant evidence and to argue orally on the record. A brief filed by Respondent has been duly considered. Disposition is made of Respondent's motion to dismiss and its proposed findings and conclusions consistent with the treat- ment below. Upon the entire record in the case, and from my observation of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Curtis Manufacturing Co., Inc., herein called the Respondent, maintains a plant in Orlando, Florida, where it is engaged in the manufacture of men's trousers. During the year preceding issuance of the complaint, Respondent had a direct inflow in in- terstate commerce of purchased goods and materi- als valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor or- ganization within the meaning of the Act. ' In fn I of the Trial Examiner's Decision, the Trial Examiner stated that the Union's charge was filed November 12, 1967 We hereby correct this inadvertent error and note that the Union's charge was filed September 12, 1967 ' Complaint issued on November 6, 1967, based upon the Union's charge filed on November 12, 1967 All dates hereinafter are 1967 unless otherwise shown 172 NLRB No. 112 CURTIS MFG. CO., INC. 1095 III. THE UNFAIR LABOR PRACTICES A. Essential Questions Alleged and litigated are various issues of coer- cive conduct, including interrogation, creating the impression of surveillance, threats of discharge, plant closure, and economic reprisals. The major portion of the record involves alleged discrimina- tions in the discharge of Connie C. Dykes on July 19, and following her reinstatement on July 20, in her further and final discharge on August 3. Respondent denies all such allegations and asserts that Dykes was discharged for cause. Virtually all questions are factual and pose credibility conflicts. B. Introductory Facts About 75 female employees are employed in the plant, principally in machine sewing and related work in the production of men's trousers. Most are pieceworkers guaranteed a minimum hourly rate and others are paid a straight hourly rate. The per- tinent events took place generally from latter May through August. Fom June 23 to July 10, the plant was shut down for the annual "vacation"(without pay). Union organizational activity effectively com- menced during June when International Represent- ative Eva Lafever spoke with and visited the homes of employees. It is particularly evident that in early June, Eddie Brown at his home was thus approached by Lafever to sign a union authoriza- tion card. They discussed extraneous matters relat- ing to the union and, inter alia, Lafever indicated that several employees had expressed desire for representation. When Brown disclosed that he was a supervisor, it became apparent that she had visited him by mistake. Brown advised Lawrence Blake, Respondent's president, about his visit from the Union.' Nell Rea Cobia was also solicited by Lafever, presumably without initial knowledge that Cobia was a supervisor. In latter June, five em- ployees were specifically invited to attend a scheduled organizational meeting with the Union. On July 6, such a meeting was held, attended by Union Agents Lafever and Leonard Sydney, em- ployees Myra Heller, Nellie F. Rodgers, Irene Trail, Addie Wilson, and the alleged discriminatee, Dykes. These five employees constituted an or- ganizing committee and were distributed lists of other employees to approach for card signatures. Dykes received a list of 10-12 names, but actually spoke to 18 or 19 employees beginning July 10, after the vacation period. The remaining four women on the committee were divided into two "teams," each pair giver 10 names. Dykes made her solicitations during "breaks," at lunchtime in the shop, and after work in the plant parking lot. On September 15, an election was conducted among the employees, resulting in Board certification of the Union on September 25. C. Restraint and Coercion On or about May 30, Supervisor Cobia asked Rodgers, at her machine, if she had a visitor. Cobia said a woman was going around to the employees and "had come to see her," Cobia, by mistake. Rodgers inquired as to how she should "vote" if the woman came to her. Cobia replied, "I don't know about you, but I need my job, and before Mr. Blake will run a plant with a union in it , he'll close and lock the doors." She then asked Rodgers to try to find out from this woman "who the ringleaders of the union were," and to inform Cobia, but not to tell anyone else she knew of the Union.3 On a day in the third week of June, at 9 a.m., Cobia came to the work station (in the cutting room) of Myra Heller and Billie Earwood. She held out a union card, which she said she obtained from one of the girls on the floor. She remarked, "Look girls , I found out who the two girls are on the floor that's passing these out." However, she refused to reveal their identity, stating, "You'll know when they get fired." Cobia then walked into the cutting room toward Louis Fields, a cutter, and Supervisor Brown, and was observed showing them the Union card.4 On the same date in mid-June, at 10 a.m., Pre- sident Blake delivered a speech to all employees as- sembled in the plant. Displaying a union card, he said, inter alia , he was informed there was a union movement in the shop and that cards were being passed around. He strongly advised them against signing , and if any employees had signed a card he strongly advised them to try to get it back.' This evidence, not alleged as a violation, is taken as in- dicative of Respondent's awareness of and opposi- tion to the Union. About June 20, Dykes asked Cobia if she would like to wear her "union bow." (In their spare time, some of the operators made little bows which they called "union bows," and pinned them on their blouses or hair.) Cobia told her to "go to hell," and following Dykes into the restroom, pointedly Based on specific testimony of Lafever Brown persistently testified that he could not recall the date and was unable to approximate whether the conversation with Lafever occurred before or after the vacation shut- down It is most plausible , and I find, that Blake was informed by Brown shortly after the incident , and not in mid-August after the Union 's recogni- tion demand , as Blake testified Based on Rodgers ' testimony Cobia denied this conversation or that she ever spoke to Rodgers concerning the Union Cobia testified to a conversation in July, after the vacation, with Rodgers, Earwood, and Fields She stated that she and Fields were "kidding around" on the subject of signing a union card She also dis- closed she had a card but refused to tell Heller and Earwood where she got it Fields recalled a conversation with Cobia in mid-June in which she showed him a union card. Brown denied recollection of such conversa- tion Heller and Earwood are credited ' Testified by several employee witnesses For Respondent, Blake disputed only the date, which he placed in mid-July Blake also denied that he ever received a union card from Cobia, but testified that he obtained the card and his first knowledge of the union drive from a friend whose firm is organ17ed by the Union in another city in Florida, following which he de- cided to make the speech 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD added, "Connie, that word `union' is gonna get you in trouble. 116 About June 21, President Blake informed Heller that he wanted to see her at the 10 a.m. break. When she reported, he told her, "I'd better tell my big mouth sister [Irene Trail] to stop blowing her horn ... or she would be on the outside looking in, and I'd be with her." He said that he found his way clear to give the employees a vacation this coming year "and a few other little benefits," but "her and that damn Union woman was going to ruin it all." He had 30 girls on the floor who were not making production and, if the Union got in, he would either have to lay them off or close down, which would have to be for a period of 6 weeks. If he called "Union Pants" (i.e., the Union) and asked for more money, they would tell him "to go [obscenity] him- self."He added that the Union is nothing "but com- munists and gangsters that has been kicked out of New York, anyway." He is not going to listen to that bunch of women given him "a lot of ..."; he will "throw a padlock on the front door."' Accordingly, in view of the foregoing findings, it is concluded that Respondent committed violations of Section 8(a)(I ), in summary as follows: (a) In her conversation with Rodgers, Supervisor Cobia threatened closing of the plant, and requested that Rodgers ascertain and inform Respondent on the identity of the ringleaders of the Union. However, the allegation of coercive interrogation is without substantial support. (b) In her conversation with Heller and Earwood, Cobia engaged in conduct creating the impression that union activities of the employees were under surveillance, and impliedly threatened discharge of employees for passing out union cards. (c) In the incident involving "union bows," Cobia impliedly threatened Dykes with reprisal because of her union activities. (d) In his discussion with Heller, President Blake made threats of discharge, layoff, plant closure, and withdrawal of benefits to discourage union activi- ties. In early August, Heller and Earwood had a con- versation in the cutting room with Supervisor Brown . He was asked why Dykes got fired (on Au- gust 3) for spending time in the restroom, although seven or eight other girls were in the restroom with Dykes at the time and none of these girls were fired. Brown replied, "Well, you know that she didn't get fired for being in the bathroom, or the time she was in the bathroom.... You know and I know that it was because of the Union.... Now, if this goes any further ... I didn't say it. I'll deny it."' Within a day of the above incident , Heller over- heard or was present during a conversation between Mary Pelvin and President Blake . Pelvin "had said something about losing her job, or wouldn't have a job, and Mr. Blake says `Well, I don't think now I'm going to have to close down .. . because I got rid of the leader of this mess."' ' Concerning these postdischarge comments of management , the limited question here, apart from the veracity of the content, is whether the impact upon the employees was coercive within the mean- ing of Section 8(a)(1). It is manifest , and I find, that the statements of Brown and Blake constituted violations. D. Discharge of Dykes As earlier shown, she was terminated on July 19, rehired on July 20, and again released on August 3. One of the grounds which was litigated at length and which Respondent appears principally to rely upon, although with some obscurity, relates to the use of the restroom by Dykes. In Respondent's answer , at the hearing and in its brief, various reasons for the discharge are advanced, e.g., that "she constantly ignored and violated long established company work rules ," after receiving repeated warnings, that she "assaulted Blake with hostile language in the presence of other em- ployees," and that she "had some difficulty in ad- justing to her work and to her fellow employees." From the outset, it appeared that Respondent was asserting an enforced policy restricting the use of the restrooms. However, as the record developed to completion, no such policy or rule, generally ap- plicable to the employees, was defined by Respon- dent, or shown as ever having been promulgated. Basically, the employees worked an 8-hour day, starting at 8 a.m., with a half hour for lunch at 12, and with two official 10 minute "breaks" at 10 a.m. and 2:30 p.m. Of the three restrooms in the plant, the female employees apparently utilized only two, one in the lunchroom and one near the cutting room. During their breaks the employees in large groups repaired to the restrooms for smoking,'° conversation, etc. At these times , usually about ten employees occupied each restroom (in which there were three commodes). Testimony was given in detail by numerous employees as to the actual prac- tice in taking breaks, with full knowledge of Respon- dent. In substance, it was effectively adduced that, on a widespread scale throughout the plant, the em- ployees customarily took breaks of 10 minutes ap- ^ Testimony of Dykes. with Jacqueline Pittman corroborating that the statement took place in the restroom Cobia stated that the incident oc- curred after the vacation period, with no part taking place in the restroom, and that she said. "you're going to let these boys get you in trouble " Else- where Cobia testified, and is not credited, that she had no conversation at all concerning the Union before the vacation, and that she first heard about a union around the plant in August, after Dykes'second discharge Credited testimony of Heller Blake made denials to general questions of Respondent's counsel, but was not asked to state the substance of the conversation 8 Brown testified that Heller and Earwood asked him why Dykes was fired He answered that they would have to ask Blake. Earwood said he knew as well as they did that it was because of union activities He countered that he did not know this I accept the version of Heller and Earwood. ® Blake simply denied having had such a conversation 10 It is presumed that smoking was not permitted in the work areas CURTIS MFG. CO., INC. 1097 proximately after each hour of work, i.e., about 9 a.m., 10 a.m., 11 a.m., 1:30 p.m., 2:30 p.m., and 3:30 p.m. Many employees were identified in the record as regularly pursuing such practice over the years, continuing even at the time of the hearing. These witnesses all testified, on their individual be- half and with knowledge of others, that at least until Dykes' first discharge on July 19, Respondent gave no instructions, reprimands, or warnings to refrain from the hourly breaks taken in addition to those at 10 a.m. and 2:30 p.m. In seeking to establish that a restrictive "policy" existed concern- ing these breaks, Respondent resorts to the fact that a no-smoking sign?"' had been posted in two of the restrooms. Suffice it to note that this evidence falls far short of its mark and, more especially, that Dykes was not discharged for violating a no-smok- ing rule . Cobia's testimony would alone defeat these various contentions of Respondent. She stated she knew that a "lot of girls" fi equented the restooms every day before and after regular breaks, that they were not restricted from doing so, and that they were smoking. She said that when the signs were put up, in 1966, Blake told the girls they were not to smoke except on breaks, but he did not attempt to confine them to their two regular breaks in going to the restroom. While there is conflict as to how long the no-smoking signs remained posted, it is clear that they had been removed some time before the employees returned from vacation on July 10.12 Cobia's testimony was confused and unpersuasive in her replies to questions of Respondent's counsel as to the "warnings" given employees, including Dykes. Of 71 women under her supervision, she re- called that there were "maybe four" employees in 1966 and 1967 whom she "warned" that they were "staying in there too long." Similarly, Blake said he gave " warnings" to four employees other than Dykes "concerning the possible abuse of the privilege of going to the bathroom at times other than break times ."t3 He ostensibly told them "they were taking advantage of the situation." Signifi- cantly, in a preelection speech to the employees on August 16, Blake enumerated as employee benefits: a lunch break, a rest period in the morning and in the afternoon, and "many of you leave your machines during the day in order to catch a smoke." As described by several employee wit- nesses , Blake told them on this occasion that they had "breaks between breaks." I do not credit Blake, nor Cobia in like effect, that they had given "warnings"to Dykes as a "constant thing" before her July discharge. I incline rather to accept the testimony of Dykes, consistent with the experience of other employees, that she received no such warnings. Indeed, Respondent failed to show a sin- gle instance of discharge or discipline of any em- ployee for violation of the long-established com- pany work rule which it alleges. Blake stated that from early June until August 314 (Dykes' second discharge), he made a real effort to determine which employees were using the restroom "between breaks." He also admitted awareness that "many girls"were following such practice, but ambiguously commented that "he knows the smokers and the nonsmokers." While among all 'these factory employees over a period of time there were possibly some abuses of privilege, the pertinent point is clear that Respondent at least tacitly allowed the practice of "breaks between breaks," and in a later speech held it out as an em- ployment advantage. As I find, on July 19 the termination of Dykes was effected in the following circumstances: Upon emerging from the ladies room, she was accosted by Blake and told, "I want you girls to stay out of that bathroom and quit gossiping and smoking." She asked why he was just telling her when there were other girls in there. He responded, "why should you ask that? You don't even make produc- tion ." She said he could not expect her to make production when he moves her from one job to another; if he would give her one certain job to do, she would make production. At this point they were yelling at each other, and she "hollered at him to get off her back." Cobia had just walked in the door, and Blake then instructed her to clock Dykes out.15 That evening Union Representative Lafever ad- vised Dykes, "on behalf of the girls that' s in the plant for the Union," to go back the next morning and try to get her job 'back. Lafever told her if she got her job back "to not give him another reason to fire her again." The next morning, July 20, Dykes returned to the plant and asked Blake to reinstate her. She said she wanted to apologize for yelling at him the day before. He replied that he did not fire her for yelling at him. He told her he wanted the "girls to stop gossiping and going to the restroom, because he couldn't fight all of us." Dykes was restored to her job. Thereafter, she continued her activities in speaking to the employees and getting union cards signed. On August 3, about 3:30 p.m., Dykes was again discharged. She had been in the restroom for less than 5 minutes when Cobia opened the door and told her, "Mr. Blake has clocked you out. You can go home."" Dykes found Blake and asked him why " Cobia described the sign as stating "No Smoking in Sewing Area," while the employees referred merely to a " no-smoking" sign in the restroom " The testimony is uncontradictcd that two employees quit their jobs when the signs were put up, following which the signs were removed by an unidentified source, whereupon one of the quit employees returned to work The signs have not since been restored " Counsel's query The commencing and effective period of organizational activity Dykes' credited testimony In Blake's version, he told her that this was going to be the last warning about her going to the restroom , and she re- torted, "Who the hell do you think you are" Get off my back and stick thejobup " "' Corroborated by two employees who were in the restroom at the time 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he had fired her this time. He said, "I told you girls I was going to stop this gossiping and smoking in the bathroom." She tried to explain she was sick and "had gone a couple of other times that day." She said that if he was using her being in the bathroom as an excuse, he had better fire the whole plant. He answered that he would fire the whole plant when he got good and ready. Cobia testified that, after July 20, Dykes was "real good" for at least 2 weeks, but then she started "even worse" in going to the restroom and staying there longer than she did before. However, Cobia could only specify Dykes' conduct on August 3, in substance: About 9 a.m., Dykes went to the bathroom and stayed 10 minutes, "she'd come back, and it goes on and on and on." Questioned for precise facts, Cobia related that Dykes again returned to the restroom before 10 a.m., and then took her 10 o'clock break, each time for 10 minutes. At 2 p.m., she went to the restroom and informed Dykes that Blake wanted her, that she had been in there too long. She heard the last part of the discharge interview in which Blake told Dykes "he had warned her and warned her, and that was the last try." Later, Cobia admitted the possibility that she told Dykes she had been clocked out." Blake testified that on July 19 he was "watching the clock," i.e., as to Dykes' use of the restroom, but did not specify how long's or how often she had been in. After she was rehired on July 20, he watched her "pretty closely." He stated he had no conversation with Dykes after July 19, but then described that about "the first of August" he told her that she had been spending too much time in the restroom and that she was "warned and fired once for the same thing." In his version, he never spoke to Dykes at all on August 3. He gave the precise times that Dykes was in the restroom that day, indicating seven occasions." At 3:20 p.m., he sent Cobia to tell Dykes she was through. He was not aware of Dykes' union activities when she was fired on August 3.20 It was only after Respondent was formally approached by the Union, on August' 9, that he had suspicions that Dykes had been using the ladies room for the purpose of discussing the Union.21 Carole DeVlugt testified, on August 3, she was in the restroom with several other girls when Cobia notified Dykes that Blake had clocked her out. Cobia said nothing to the other girls . Later, " 1 can accord little credence to this testimony of Cobia, as internally conflicting, careless, and plainly confused " Dykes stated it was 4-5 minutes on the occasion preceding her discharge " Employee Dorothy Swartz, called by Respondent, also testified that she timed Dykes' absences from her machine on the morning of August 3 Swart7 made highly exaggerated statements, without basis of knowledge, her testimony is rejected as unreliable "'2In his affidavit given to a Board agent, reiterated in his testimony, Blake stated, "I don't remember if Louis Fields told me that [Dykes] had asked him to sign a card " DeVlugt was summoned and reported to Blake, in Cobia's presence. He asked her not to go into the ladies room and smoke any more, explaining that "he was losing a lot of money by the girls going in there and smoking so much." During her employ- ment of 1-1/2 years, this was the first such request she received. ". . . he was asking me not to smoke any more, this time, and he said in a joking way, that if he started demanding it, I'd better watch out ...." For about 3 days, she did not go into the ladies room because of Blake's request. But all the other girls kept going and they told her that Blake had not spoken to them. Thereupon, she started going back and smoking again, and since then has had no complaints. In all the circumstances, it is reasonable to infer that Respondent was directly aware or strongly suspected the leadership activities of Dykes in the Union. Substantial evidence of Respondent's animus and coercive intent, and conduct relating to union activity has earlier been described. Prior to the first discharge of Dykes, in his speech to the employees Blake referred to the card solicitations, and he urged them to rescind their authorizations. In view of the relatively small plant, as well as the factional opposition to the Union shown in the record, the probabilities are high that Respondent obtained information concerning the employees en- gaged in proselytizing for the Union. In my view, Respondent's suspicion that Dykes was utilizing the restroom breaks to advance the union cause existed before her discharge and not, as Blake testified, only after the Union's recognition demand. Super- visor Cobia early revealed an intent to learn the identity of the "ringleaders" in the Union and about June 20, she told Dykes that the word "u- nion" was going to get her into trouble. Long known and accepted by Respondent, the practice prevailed for the employees regularly to take "breaks between breaks." In this regard, Dykes conducted herself no differently from the other employees. She was not shown to have abused the practice. The record reflects insharp outline that, in the developing union campaign, Dykes was singled out for enforcement of a pur- ported, but vaguely defined, company rule concern- ing use of the restrooms.22 Other incidents and as- serted reasons for dismissal are plainly without sub- stance and appear as afterthoughts dredged up by Respondent. 2 Lending support to the alleged viola- tions are the post facto admissions of Supervisor 11 In significant degree, Blake was vague, evasive, and gave changing testimony " See, e g . N L R B v Yale Mfg Co, 356 F 2d 69, 74 (C A 1), enfg 150 NLRB 1 102 21 Presumably the assertion that Dykes had "difficulty in adjusting to her fellow employees" pertained to an incident described by Cobia, viz On a date unspecified, Dykes and Peggy Gregory got into an argument, and both had to be pulled apart Peggy screamed that she did not have to have the job, Cobia told her to "clock out" and told Dykes to go back to work and forget it CURTIS MFG. CO., INC. Brown that Dykes was discharged "because of the Union" and of President Blake that he "got rid of the leader of this mess." As to both instances of her discharge, my findings are that the grounds ad- vanced by Respondent were merely pretexts and that the real reason was her known or suspected union activities. More specifically, I conclude that the first discharge of Dykes on July 19 was unlaw- ful; that she was reinstated on July 20 because the discriminatory purpose was too obvious and Respondent planned to watch her closely to find more substantial justification for dismissal; and that her subsequent discharge on August 3 contained the same unlawful motivation. Accordingly, the violations of Section 8(a)(3) are sustained. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with operations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act.24 It has been found that Respondent violated the Act by discharging Connie C. Dykes on July 19, and after reinstating her on July 20, by discharging her again on August 3. It will therefore be recom- mended that Respondent offer Dykes immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of her unlawful terminations, by payment to her of a sum of money which she normally would have earned from the date of her discharge to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the " There is no merit in Respondent 's request that a cease-and-desist order is unwarranted by reason of the fact that it has entered into a collective- bargaining contract with the Union This circumstance, however, has been 1099 amount of backpay due and the right of reinstate- ment under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Connie C. Dykes, thereby discouraging membership in the Union, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, and by other acts and con- duct interfering with, restraining, and coercing em- ployees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case , it is recommended that Respondent, Curtis Manufacturing Co., Inc., Orlando, Florida, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: - (a) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization, by discharging employees, or in any other manner discriminating in regard to hire or tenure of employment, or any term or con- dition of employment. (b) Threatening employees with discharge, clo- sure of the plant, withdrawal of economic benefits, or other reprisals to discourage union sentiments or activities; requesting or instructing employees to engage in surveillance or to act as informers regard- ing the union activities of other employees; engag- ing in conduct to create among the employees the impression that their union activities are under sur- veillance; or informing employees that the discharge or discipline of any employee was for reasons relating to union membership or activity. (c) In any like or related manner interfering with , restraining , or coercing employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Connie C. Dykes immediate and full reinstatement to her former or substantially considered in not recommending a broad order, usually issued in cases in- volving discriminatory discharge 1 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings, as set forth in "The Remedy" section of the Trial Examiner's Decision. (b) Notify the above-named individual if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Trial Examiner's Decision. (d) Post at its Orlando, Florida, plant, copies of the attached notice marked "Appendix."25 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.26 ss In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words " a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " S° In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " WE WILL NOT threaten employees with discharge, closing of the plant, withholding of economic benefits, or other reprisal to discourage union sentiments or activities. WE WILL NOT request or instruct employees to engage in surveillance or to act as informers regarding the union activities of other em- ployees. WE WILL NOT engage in conduct to create among the employees the impression that their union activities are under surveillance. WE WILL NOT inform employees that we have discharged or disciplined any employee because of union membership or activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Connie C. Dykes immediate and full reinstatement to her former or sub- stantially equivalent position, without preju- dice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay she may have suf- fered by reason of the discrimination against her. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization of their choice. CURTIS MANUFACTURING CO., INC. (Employer) Dated By (Representative ) (Title) APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization, by discriminating in regard to hire or tenure of employment or any term or condition of em- ployment. Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711, Extention 257.