Fun Striders, Inc.

National Labor Relations Board - Board DecisionsJul 10, 1980

250 N.L.R.B. 520 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fun Striders, Inc. anid Miscellaneous Warehouse- men, Drivers and Helpers Local 986, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 31- CA-8336 July 10,1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MF.MHBIRS JENKINS AND PENF I.IO On December 31, 1979, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief answer- ing Respondent's exceptions and in support of his cross-exceptions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and motions' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Fun Striders, Inc., Los Angeles, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(c): Respondent filed with the Board a motion foir Iea;e o file a menlO- randum of additional authority based on a copy of all Advice Memoral- dum from Ihe General Counsel's Office pertaining to Somerver Kiiltgi,, Mill., Case 4-RC-10295 (September 24, 1979). on which it places prece- dential value The General Couisel filed an oppositiln to Respondent's motion, and, in Ihe allernative, moved for special leave to file a reslponse if Respondent's motlion is granted We hereby grant Responldenl's moltiln to file a memorandum of additional authorily. deny the General Coun- sel's motion in oppposiion Io Respondent's motion, arnd grant the General Counsel's motion to file a response Contrary lo Respondent, an "Advice Memoirandunm" frnom the Gieneral Counsel is nol precedenlial authority hibinding upon (he oard Moireoser. Sormervet Kitii,,ng Millk, lupra, is factually distilguishahle frorn the instalt case 2 In view of the substanlial iumhber if Responldenl', employees wI tho are Spanish-speaking. we finld nleril ih the Geineral Counsel's request that Respondent be required to post the ltice to enmployees inl Spanish as well as in English, aid we shall modify the Administraive I ;aw Judges recommenlded Order accordingly 250 NLRB No. 87 "(c) Post at its Redwood Plant, in Los Angeles, California, copies of the attached notice marked 'Appendix.' t 7 Copies of said notice in English and Spanish, on forms provided by the Regional Direc- tor for Region 31, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material." DECISION S I AI .Mt N I Ol Tilt- CASI JAMEIS S. JI.NSON, Administrative Law Judge: This case was heard before me in Los Angeles, California, on May 8, 9, and 10, 1979. The complaint issued on Febru- ary 8, 1979, pursuant to a charge, first amended and second amended charges filed on September I and 5, and November 3, 1978, respectively, and alleges that on August 24, 197 8,i certain of the Respondent's employees, including Jose M. Carranza, Gilberto Castro, Juan Marin, and Ranulfo Ruiz, went out on strike in protest of their terms and conditions of employment; that the four above-named employees were discharged on August 25; that on August 30 they unconditionally offered to return, but that the Respondent failed and refused to reinstate them because they had joined or assisted the Union or engaged in other protected concerted activities and/or because they participated in the strike. The Respondent contends the four alleged discriminatees quit their em- ployment on August 24 when they engaged in an unpro- tected sit-in strike, and were refused reinstatement on August 30 because of further unprotected activities in- volving their advocacy of violent revolution. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross-examine witnesses. Briefs were filed by the General Counsel and the Re- spondent and have been carefully considered. Upon the entire record in the case, including the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINI)IN;S 01 FACI I. JURISI)IC I ION The Respondent is engaged in the manufacture of shoes and handbags in Los Angeles, California, and an- nually sells and ships goods or services valued in excess of $50,000 directly to customers located outside the State of California. It is admitted and found on these facts that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. i All dales hereafter are in 11978 unless otherwise slaled 520 FUIN STRIDERS, INC. II. I'Hi IAHOR ORGANIZA IION INVOI VIl) It is admitted and found that Miscellaneous Ware- housemen, Drivers and Helpers Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALL EGED UNFAIR L ABOR PRACI'ICES A. The Setting The Respondent is engaged in the manufacture and sale of shoes and handbags in three plants located in the Los Angeles area. The only facility involved herein is the Redwood Avenue Plant which employs approximate- ly 750 employees. The Redwood Plant is composed of several departments, including the stitching department which has about 275 employees in various classifications including approximately 75 cementers. Jack Atkins is the director of manufacturing and in overall charge of the operation. Frank MacNichol is the plant superintendent and directly responsible to Atkins. Lloyd MacNichol is the foreman in the stitching department and is responsi- ble to his brother Frank. Luis Montes described his title as management assistant in the stitching room. Most of the stitching department employees are Spanish-speaking. Montes, who speaks Spanish, assists Lloyd MacNichol who does not. The "floor" people, including Trini Ibarra, are responsible to Montes. The Respondent admits that Atkins and Frank and Lloyd MacNichol, hereafter called Frank and Lloyd, respectively, are su- pervisors, but denies Montes is a supervisor.2 Jose Car- ranza, Gilberto Castro, Juan Marin, and Ranulfo Ruiz are the alleged discrimintees. All were employed in the stitching department. Most of Respondent's employees are paid on a piece rate basis, the rate being established by a timestudy. However, when a new shoe is substantially identical to a shoe already in production, the piecework rate on the shoe in production is applied to the new shoe. The times- tudy program was not initiated until about March fol- lowing one of several work stoppages that occurred be- cause of a dispute over the piecework prices. The March work stoppage lasted several days. Sometime in the early part of the year, the employees decided to organize. Car- ranza, a member of the Committee Against Racism, herein called CAR, arranged for a meeting of several employees at the office of The Social Alliance on Valen- cia Street in Los Angeles, for the purpose of deciding how they should organize. The Valencia Street address is also used by CAR and the Progressive Labor Party, herein called PLP.3 The employees present decided to contact the Teamsters Union. Accordingly, Castro, Car- ranza, and Manual Tapia spoke to Teamsters officials and obtained authorization cards which they distributed over a period of several months. A second meeting of some of the employees was held at the same location a couple of In his post-hearing brief. the (General Counlsel uconceded it is not inc- essary to make a finding regarding Monies' alleged supervisory status :' As is made clear by its literaturc. the PI' is a revolutioniary cnommu- nist organization which adsocates the o,scrthrow, b.h siolenl means, of the capitalist system. and the establishmenl of kocialism months later. Sometime in either June or July, Carranza was terminated for refusing to work overtime, and the Respondent found it necessary to call the police since Carranza refused to leave the premises. Lloyd testified that during an exchange of words with Carranza regard- ing his refusal to work overtime or to leave the premises, Carranza alluded to the fact that the laws of this country meant nothing to him. 4 A general work stoppage fol- lowed Carranza's discharge. After several other employ- ees interceded on his behalf, Atkins agreed to rehire Car- ranza on the condition he apologize to Lloyd for the remark he had made about his disregard for the laws of this country. ' Having done so, and having agreed to work overtime, Carranza was rehired. B. The August 24 Work Stoppage On the morning of August 23, about 75 percent of the cementers stopped working in protest over the piece rate set on a new style of shoe. After learning of the work stoppage, Lloyd met with five of the cementers' spoke- spersons, which included Socorro Velasquez (the wife of Juan Marin) and four other women. He explained that the new style shoe was comparative to another already in production and that, contrary to the contention of the cementers, the piecework rate was not too low. After Lloyd agreed to do a timestudy the following day, the employees agreed to return to work; however, the five spokepersons asked to talk with Frank. After meeting with the women, Frank asked that Lloyd make the time- study right away, which he did. After completing the timestudy, Lloyd met with the five spokespersons again and informed that that, although the piece rate on the disputed shoe should be 1-1/2 cents lower than the rate they were already being paid, the Company would con- tinue to pay the higher rate.6 Later that day, the ce- menters' spokespersons asked for another meeting with Frank. Lloyd and Atkins were also present. The em- ployes were still dissatisfied with the piecework rate but indicated a willingness to accept the set price if a part of the operation was changed from cementing to stitching. Atkins informed them that the engineering of the shoes was a company prerogative and not subject to negotia- tion. The timestudy was explained to them and they went back to work, apparently satisfied. The stitching room employees work on staggered 8- hour shifts, the first shift from 7 a.m. until 3:30 p.m. Shortly after 9 o'clock on the morning of August 24, Lloyd learned that the cementers and some of the stitch- ing section employees had stopped working again. Lloyd went to the department and observed that most of the 4 While Carranza denied he made the statement attributed Io him. I am con'illced that he did. and therefore credit Lloyd' tesiimony A, will be seen hereafter. Carranza gase false information in affindasit to a Board agent While he changed his story to reflect the truth in a later affidasit, hi' attempt to explain the matter was weak Rather. he had been caught ill telillg a falsehood and there ual nothing he could do but tell the truth the second time aroulnd Accordingly. I did not credit him wv.here his, cs- finlnol) is in cllflicl with others s Atkins spcnl scvcral months during 197h in P'oland ad d ungary. as the captainl as a "know'.-how" team. flr the express purpose of leachitng melthds in shoe makinig As a result of that experience, he has a strong antlormmmulsl sI tnllmenll ` All fisve spokespersollns are still emplosed hb the Responlldellt 521 I)ECISI()NS O()F NA TIONAI. l AIOR RELATIONS 13()ARD employees were milling around. A few employees trying to work were encountering difficulties because someone kept shutting off the conveyor system. In addition to the four alleged discriminatees, at least seven other employ- ees were trying to persuade those working to stop. 7 Lloyd told the employees to either go back to work or punch out and go home. The employees were then asked to select representatives to talk with management. Pres- ent from management at the meeting which followed were Atkins, Frank, and Lloyd. Whether Hector Paz or Luis Montes acted as the Company's interpreter is in dis- pute, Atkins and Frank contending it was Paz, Lloyd contending it was either Paz or Factory Superintendent Ortiz, and Marin, Castro, and Carranza contending it was Montes. While there is also a disagreement as to who represented the employees, there is little doubt that Carranza, Castro, Marin, and an employee nicknamed Chiang-Kai-Shek were among them.8 There is also sub- stantial disagreement as to what was said, the employee representatives claiming various threats of discharge were made, and the management personnel denying the threats. There is little doubt that the employees asked management to reconsider the piece rate on the shoe in dispute, and that they were told a timestudy had already been made which confirmed the price set. Carranza testi- fied he brought up for discussion other work related problems. Marin testified that during the course of the meeting, Atkins stated "that it was the last meeting that would be held .... And anyone who would attempt to make another meeting or would come downstairs, would be fired." Castro claimed that Atkin stated "that one person was going to be fired that had taken part in the strike, and that he did not want any more representatives like us of the workers." He testified further that "They said for us to go back to work; and that in case we did not want to go back we would be fired." On cross-exam- ination he testified Atkins "told us that he did not want any more representative of the workers coming into the meeting. He said he didn't want any more discussions about the problems, that if one more person were to come into the meeting talking about the problems or strike or making any more objections, that that person would be fired .... That he did not want [w]hat oc- curred on the 24th to be repeated; that if it were repeat- ed, that these people would be fired." As noted earlier, Atkins, Frank, and Lloyd denied any of the above-relat- ed threats were made. While the complaint does not allege such statements violated Section 8(a)(1) of the Act, and the General Counsel has not requested a remedy relating to those statements, he does point out that Paz, whom the Respondent claims was the interpret- er during the discussion, was not called as a witness, nor was any explanation offered for not handling him. He also argues that although Montes was called as a witness by the Respondent, the Respondent also failed to solicit I Employees in other departments were not immediately affected by the work stoppage I Marin and Frank testified that Marin was an employee representa- tive. and Lloyd that he might have been. Lloyd testified Ihat Brazuela. Luis Rangel, and several others were present. and Frank thought Tapia might have been Castro and Carranza testified that Jose Lotna and So- corro were also present any testimony from him regarding the meeting. He there- fore argues that it is appropriate to draw the inference that either Paz' or Montes' testimony would be unfavor- able to the Respondent. While it may be appropriate to draw the requested inference with respect to Paz' testi- mony since it was the Respondent who contended Paz was the interpreter during the meeting, Montes was a witness at the hearing and both the Respondent and the General Counsel had the chance and failed to elicit any testimony from him regarding the meeting which would have been corrobative of their respective witnesses. I conclude, therefore, that the issue was not fully litigated and decline to make a credibility or unfair labor practice finding with respect thereto. In any event, the complaint failed to allege, and the General Counsel did not con- tend, either at the hearing or in his brief, that the pur- ported threats violated the Act. Moreover, a finding with respect thereto is not critical to resolving the issues alleged in the complaint. It is not disputed that Atkins told the employees at the meeting to return to work or leave the plant. Following that meeting, the employees returned to the stitching de- partment and reported what had occurred to the striking employees. Atkins and the two MacNichols went up to the work area and observed that almost all of the em- ployees were still not working and that some were inter- fering with the few who were trying to work. Several requests to either go back to work or leave were made but went unheeded.9 Atkins then issued the order to shut off the power and advise the employees "that everybody is stopped working at 10 o'clock." The employees re- mained in the plant until the 11:30 a.m. breaktime, when they went outside where they remained until 3:30 at which time Castro, Carranza and "many others" went to the Teamsters office and obtained a number of authoriza- tion cards which were passed out at the picket line the next day. Members of the PLP appeared outside the plant in the afternoon selling their newspaper. They also asked questions to the strikers and offered to assist them by providing them with leaflets which the PLP would prepare. Carranza testified he accepted the PLP's offer of assistance and that evening went to the Social Alli- ance Office to assist in the preparation of a leaflet which was to be distributed at the plant premises the following day. C. Events of August 25 On Friday, August 25, Atkins observed Carranza pass- ing out leaflets to employees coming into the plant. ° He had one of the leaflets which was printed in Spanish and translated into English. The leaflet recited that the PLP is a revolutionary communistic organization fighting to ' Ruiz testified that Luis Castillo told the employees that if they did not htgini working within 5 minutes, they would he fired It wila not al- leged nor shown that Castillo was a supervisor or agent of the Respond- ent "' Lloyd lestified he also observed Carrania and Castro distributing leaflets on two separate days While Carranza. in hi, first of two affida- vits given a Board agent during the inestigation of the case, denied handing out the leaflet. in the second affidasit he admitted having done so Castro denied passing out leanflts 522 FLIN STRIDERS, INC organize the working class in order to destroy the ex- ploitation by bosses by a means of a violent revolution and to establish socialism, which means liberation for the working class, the destruction of all bosses, and a society of abundance and full employment for workers; an end to racism, fascism, and the hostile products of capitalism. It then lists four examples of problems in the Respond- ent's factory, including the "unjust firing" of an employ- ee who had rebelled against "maltreatment" and "bad pay"; the firing of another (Carranza) for refusing to work overtime; a strike resulting form "low price of a job"; and the cementers strike for a pay increase which came about because "These workers were not given the opportunity to talk and were threatened by those pig., Jack, Frank, and Eloy [Lloyd] who said-from from now on the workers will not be permitted any employee representation, no discussion will be had regarding unjust prices by the employer for our work, the persons or sec- tion that try to strike will not be permitted any employee representation, no discussion will be had regarding unjust prices by the employer for our work, the persons or sec- tion that try to strike will be immediately fired." The leaflet concludes as follows: Fellow workers, it is time to convert these struggles of resistance into offensive struggles directed toward the destruction of the causes of the prob- lems that we, the workers, are suffering, that is to say the bosses and their capitalist system, by means of an armed revolution of all the working class. A means of beginning this is to declare a com- plete strike of the factory in order to demand union- ization which will aid us in obtaining better eco- nomic benefits and also in order to fight against whatever form of divisiveness that the bosses use, like racism. Fight for unconditional amnesty for the undocumented workers and the crushing of fascist groups like the KKK and the Nazis. Support our brother workers who are on strike- everybody strike-long live the strike. Unite with the communist faction in the factory Fun Striders, Inc. Communist Factions of the P.L.P. The complaint alleges that Carranza, Castro, Marin, and Ruiz were discharged on August 25. While Marin testified that Atkins told the four discriminatees on that date, through Tapia as the interpreter, and in the pres- ence of both Frank and Lloyd, that they could not work in the plant any more, Ruiz testified he was not told that until August 30. Castro and Carranza testified it was Montes who told them that they, along with Guzman and Marin, were fired. While Montes testified he gave two of the men their checks on August 25, he did not learn until August 30 that they could not come back. Atkins, Frank, and Lloyd also denied the men were ter- minated on August 25. Rather, Atkins testified he told the four alleged discrimintees on August 30 that they were no longer welcome to work for the Respondent. I conclude, therefore, that Marin, Castro, and Carranza were confused over dates and it was August 30 instead of August 25 that they were told that they were not wel- come to return. D. The Events oJ' August 28. 29, and 30 On August 28, a second, and on August 29, a third leaflet was distributed at the gate. Both leaflets contained inflammatory rhetoric directed against capitalism, bosses, rascism and fascist organizations, and talk of unspecified revoluntionary activity. Like the first leaflet, these two discussed the fight for better pay and working conditions and exhort employees to unionize and to create commu- nist factions. Atkins testified that he observed Carranza and Castro handing out both leaflets, and that the saw Ruiz holding a stack of them. Lloyd testified he had seen both Carranza and Castro passing out leaflets on 2 days, and Frank had seen Carranza handing out the literature on one occasion. While Carranza admitted at the hearing that he had distributed some of the leaflets, as noted ear- lier, in his first investigatory affidavit to a Board agent he denied having done so, but admitted it in a second af- fidavit. Castro denied having passed out leaflets, or having seen any other employee do so, and the record does not disclose that either Marin or Ruiz did so.'' The evidence convinces me that Carranza handed out the leaflets on all three occasions and Castro did so twice, but that neither Marin nor Ruiz was involved in that ac- tivity, other than the fact that Ruiz was seen holding a stack of unidentified papers. By the afternoon of August 29, most of the striking employees had returned to work and the remaining strik- ers agreed to return to work the following morning. On the morning of August 30, all employees were permitted to return with the exception of Carranza, Castro, Ruiz, and Marin who were either told they were fired or no longer welcome as employees. Atkins testified he made the decision they should not return because of his antipa- thy for communism and since he believed the four had distributed communistic literature and were therefore communists. The four men then called the Teamsters Union, and within an hour several Teamsters union representatives appeared at the plant and spoke to Atkins. They report- ed back to the employees that they had not been re- ceived "politely." Atkins testified this was the first knowledge he had that the employees had contacted the Union. The content of the conversation between the union representatives and Atkins was not revealed on the record, other than the fact they stated they wanted to talk about a contract.'2 E. Positions of the Parties and Discussion The General Counsel contends the work stoppage that commenced on August 24 was of a concerted nature and was prompted by the employee's displeasure over the piece rate put into effect the day before. He argues that II Carralnza and Castro impressed me as ilinevscs whho had coordinat- ed their stories in certain respects and were cosering up for each other It is incolnceivable that each did not kno, tha Ithe other had passed out leaflets '2 ()n Ocltober 4. and again nll Nos emn hr g, Calrr;illzil passed out sili- lar inflammnllor material 523 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the four employees were not discharged for engaging in an in-plant work stoppage, but rather because of their leadership role in meeting with management on behalf of other employees and for their efforts in getting the strik- ers to sign union authorization cards. He argues that even if they were not discharged for the reasons stated above, they were discharged for passing out the leaflets, which was a protected concerted activity. The Respondent contends the work stoppages on August 23 through August 30 were unprotected since the objective of the sit-ins was not one of wages, hours and working conditions, but rather one of controlling the factory and production, thus leaving the Company "free to refuse to reinstate whoever it chose." It contends fur- ther that the distribution of the inflammatory leaflets was unprotected and otherwise sufficient support the decision not to reinstate the four men. Turning first to whether the work stoppage which commenced on August 24 was protected, I am con- vinced, and therefore find, that it was. It is clear from the testimony surrounding the meeting between manage- ment and the employees on August 24, that the work stoppage took place because of a dispute over the piece rate being paid for a particular shoe. The Respondent had set the rate, and the employees wanted a higher rate. The fact the employees proposed that the method in put- ting the shoe together be changed if the piece rate were to remain as set by management does not change the pic- ture. That was obviously an alternative bargaining posi- tion which was promptly rejected by management and it does not appear the employees made a further issue of it. That the dispute and resulting work stoppage was really over wages is further made clear through reading the leaflets which were passed out on the succeeding days, which, in addition to containing politically inflammatory material, also speak of wages and other terms and condi- tions of employment. The Respondent does not contend that it terminated all of the employees who participated in the work stop- page. Rather, it contends they quit their employment, and it was therefore free to take back and reject whom it pleased. However, this position ignores the wording of the Act and the teachings of the Supreme Court. Section 2(3) of the Act provides, in pertinent part, that the term "employee" includes "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute . . . and who has not obtained any other regular and substantially equivalent employment .... " In N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347 (1938), the Supreme Court stated "if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employees for the remedial purposes specified in the Act." According- ly, I reject the Respondent's contention that the employ- ees who engaged in the work stoppage on August 24 and thereafter, relinquished their status as employees, and that the Respondent was free to reemploy only those whom it chose. All of the employees who engaged in the work stoppage were strikers and retained their status as employees. This is not a case like N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939), involving the seizure of a plant, violence, damage to property, or other conducts such as would convert the work stoppage into an unprotected activity nor can the Respondent convert a protected in-plant work stoppage into an unprotected trespass by merely telling the employees to either get back to work or go home. See, for example, Crenlo. Divi- sion of GF Business Equipment. Inc., 215 NLRB 872, 878 (1974), quoting from N.L.R.B. v. Pepsi-Cola Bottling Company of Miami, Inc., 449 F.2d 824 (5th Cir. 1971), enfg. 186 NLRB 477 (1970), cert. denied 407 U.S. 910 (1972). Turning next to the question of the reason for the re- fusal to reinstate Carranza, Castro, Marin, and Ruiz on August 30, it has been found previously that the prepon- derance of the evidence does not sustain a finding that they were terminated on August 25 as alleged. Rather, the record establishes they were denied reinstatement on August 30 when the remaining strikers returned to work. The General Counsel has two theories regarding the dis- charges or refusals to reinstate, first they were brought about because of the leadership role the men held in meetings with management on behalf of other employees and for their efforts in getting the strikers to sign author- ization cards, and secondly for passing out the leaflets which was a protected concerted activity. While the record does indeed show that the four men were active in presenting grievances to management on behalf of other employees, it also shows that a number of other employees were similarly active in presenting grievances to management on behalf of other employees. Thus, the record shows that Chiang-Kai-Shek (Jose Vedilla), Luis Rangel, Brazeula, Tapia, Carlos, Socorro (Teresa Marin), Salvador Guzman, 13 Jose Lona, Consuelo Vasquez, Juana Barroso, Ignacio, Dora, Guadalupe, Luisa, and Trinidad Ibarra were all active in presenting employee grievances to management, yet the record fails to dis- close any discriminatory conduct direct against them. Further, the record fails to show any evidence of union animus on the part of the Respondent, nor does it show the employer had knowledge that any of the four men were active in distributing authorization cards on behalf of the Union prior to their termination on August 30. Accordingly, I conclude they were not terminated or re- fused reinstatement because of the leadership role they held in meetings with management on behalf of the other employees, or for their efforts in getting the strikers to sign authorization cards. The General Counsel's next contention, that the four men were terminated for passing out the politically in- flammatory leaflets, is admitted by the Respondent. The General Counsel and Respondent disagree over whether the distribution of the leaflets was a protected concerted activity, the General Counsel contending it was. In Firestone Steel Products Company, a Division of Fire- stone Tire and Rubber Company, 244 NLRB No. 148 (1979), the Board, in holding that the "purely political : While the General Countsel coniends that Guzman was alo termi- tiated. he coimplaint fails Io allege him as a discriminatee. and there was unrefuied telimllty hal he was not terminated hut had requested a layoff. 524 1-LIN STIRID)ERS. INC tract[s]" did not "relate to employee problems and con- cerns as employees," and therefore not protected, st. 'ed: The distribution of literature by employees in an employer's plant during nonworking times and in nonworking areas has long been recognized as a protected concerted activity provided that the lit- erature sought to be distributed falls within the scope of the "mutual aid or protection" clause of Section 7 of the Act. It is also clear that the "mutual aid or protection" clause is to be interpret- ed with regard to the relationship of the employees' working conditions. In its decision in Easlex. Inc.,2 the Supreme Court noted, however, that "some concerted activity bears a less immediate relation- ship to employes' interests as employees than other such activity." stating that it was the task of the Board initially to delineate the boundaries of the "mutual aid or protection" clause on a case-by-case basis, and cited with approval our decision in Ford Motor Company,3 wherein we held that "purely po- litical tract[s]" were sufficiently removed from the employees' interests as employees so as to remove such distribution from protection under the "mutual aid or protection" clause. ' ur e't, . Inc. v N.' R. B, 437 LI S 556 197I) 2 Supra at 567. 568, andJi. /18 ' 221 NLRB 663 (1975), cnfd 546 F.2d 418 (3d Cir 197l). An examination of the leaflets in issue here clearly es- tablishes that, while they do indeed contain inflammatory material of a political nature, they also refer to such items as: (1) the unjust firing of an employee because of rebellion against maltreatment, bad pay, and other impo- sitions; (2) the firing of an employee for refusing to work mandatory overtime; (3) low piecework rates; (4) the strike in support of a higher piecework rate; (5) forma- tion of a union to represent the employees; (6) a mini- mum hourly wage and an end to piecework; (7) 30 hours work for 40 hours pays in order to create more jobs for unemployed workers; and (8) better pay and benefits, all of which are related to employment and all of which are properly the subject of negotiations and grievances. Therefore, the distribution of the leaflets was concerted activity. Whether the distribution of leaflets with a strikingly similar theme was also a protected activity was consid- ered by the Board in Veeder-Root Company, a Division of Western Pacific Industries, Inc., 237 NLRB 1175 (1978). There the Board affirmed the decision of Administrative Law Judge George F. Mclnerny who found that while the literature distributed by the employees was harsh, in- flammatory, and intemperate, it was not disruptive of company discipline, and since it related to wages, hours, and conditions of employment, was protected. Such is the case here. The distribution of the leaflets, although politically inflammatory, was protected since they also relate to wages, hours, and conditions of employment. Accordingly, I find that by refusing reinstatement to Carranza, Castro, Marin, and Ruiz on August 30, either because they distributed the inflammatory leaflets, or be- cause Respondent either rightly or wrongly believed they did, Respondent violated Section 8(a)(I) of the Act. 4 CON iSIO()NS o( L sw 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By terminating and refusing to reinstate Jose M. Carranza, Gilberto Castro, Juan Marin, and Ranulfo Ruiz on August 30, 1978, for engaging in protected con- certed activities, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE RILM i i) Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Having found that the Respondent unlasfully termi- nated and refused to reinstate Carranza, Castro, Ruiz. and Marin on August 30, 1978, I shall recommend that Respondent be required to offer Jose M. Carranza and Gilberto Castro immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of such discrimination, by payment to each of them of a sum of money equal to that which they nor- mally would have earned as wages from the date of their discharges on August 30 to the date of said offer of rein- statement, less their respective net earnings during such period. As Juan Marin and Ranulfo Ruiz were reinstated in February 1979. 1 shall recommended that the Re- spondent be required to make them whole for any' loss of earnings they may have suffered by reason of such dis- crimination, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from August 30 to the date of their rein- statement, less their respective net earnings during such period. Loss of earnings for all four individuals shall be computed as prescribed in F W Woolworth Comiapny 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). It is also recommend, that upon request, the Respond- ent make available to the Board, all payroll and other records to facilitate checking the amount of backpay due. ' The recoird %hok thII;Il R ui' ;Illad iarIll a crt rcrnlpllccd h' Rc- splondcln in F:chruar? 1 979 ' ha rh rened) nicce,,ar! tio effccltlc the poll.cits of he Act in thi, case I, i ntletitcal Ii a'll g(a)(1) rellncic l 525 DI)}tCISI()NS ()' NATI()NAI. I AH()R R:IA'I I()NS BO)ARI) Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '" The Respondent, Furl Striders, Inc., Los Angeles. California, its officers, agents, successors, and assigns, shall: 1,. Cease and desist from: (a) Discharging or refusing to reinstate our employees. or in any other manner penalizing our employees for en- gaging in protected concerted activities for their mutual aid and protection. (b) In any like or related 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 which will ef- fectuate the policies of the Act: (a) Offer Gilberto Castro and Jose M. Carranza imme- diate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights previously enjoyed and make them, along with Juan Marin and Ranulfo Ruiz. whole for any loss of pay suffered by reason of their discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Redwood Plant copies of the attached notice marked "Appendix. " ' 7 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an authorized representative of the Respondent, shall be posted by the 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 the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. '' In the event no exceptions are filed as provided by Sec 10)2 46 of the Rules and Regulations of the Nalional Labor Relations Board. the findings. conclusions, anld recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. bc adopted by the Board and become its findings, conclusions, and Order, and all objectionls thereto shall be deemed waived for all purposes I In the event that this Order is enfirced by a Judgment of a United States Court of Appeals, the words ill he notice reading "Posted b, Order of the Natiolal l.abor Relations Hoard" shall read "PIostcd I'ursu- ant to a Judgment of the Ulnied Stales Court of Appeals enfircing an Order of the National tabor Relations Board " APPENDIX NoilCI l 10 ENMIOYI:i-Ss POS I I) HY ORMI)I-K 01F Il NA I IONAI. LABOR RI.A I IONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection 1To refrain from the exercise of any or all such activities. Wi wiIt Not discharge, refuse to reinstate, or in any other manner penalize our employees for en- gaging in protected concerted activities for their mutual aid or protection. WI: Wil. I NOt' in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. We wIl.l. offer Gilberto Castro and Jose M. Car- ranza immediate and full reinstatement to their former jobs or, if those jobs no longer exist to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and wt- wit t reimburse them for any loss of earnings suffered as a result of their unlawful discharge, less interim earnings, plus interest. Wti wi li reimburse Juan Marin and Ranulfo Ruiz for any loss of earnings they may have suf- fered as a result of their unlawful discharge on August 30, 1978, until they were reinstated in Feb- ruary 1979, less interim earnings, plus interest. FUN STRIDERS, INC. 526