Rogers Brothers Co. of California

National Labor Relations Board - Board DecisionsFeb 15, 1968

169 N.L.R.B. 830 (N.L.R.B. 1968)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rogers Brothers Company of California and Winery, Distillery and Allied Workers Union, Local No. 186, Distillery , Rectifying, Wine and Al- lied Workers International Union of America, AFL-CIO. Case 20-CA-4177 February 15, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 21, 1967, Trial Examiner James R. Hemingway issued his Decision in the above-en- titled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. He further found that Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the Respondent and General Counsel filed exceptions and cross-exceptions, respectively, to the Trial Examiner's Decision with supporting briefs. The Respondent also filed an answering brief to the General Counsel's 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-exceptions, and briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. 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 and hereby or- ders that the Respondent, Rogers Brothers Com- pany, Livingston, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from paragraph 2(e) of the Trial Ex- aminer's Recommended Order the words "to be furnished" and substitute therefor "on forms pro- vided." 2. Add the following immediately below the signature line at the bottom of the notice attached to the Trial Examiner's Decision: Note: We will notify Ben Taylor, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: The com- plaint in this case, issued on March 23, 1967, is based on charges filed by Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine and Allied Workers International Union of America, AFL-CIO, herein called the Union, against Rogers Brothers Company of California, herein called the Respondent. The original charge, alleging violations of Section 8(a)(1) and (5) of the Act, was filed on August 1, 1966. An amended charge filed on November 2, 1966, al- leged violation of Section 8(a)(1), (3), and (5) of the Act. The asserted violation of Section 8(a)(5) was based on al- leged bad-faith bargaining. The asserted violation of Sec- tion 8(a)(3) of the Act was based on the alleged dis- criminatory discharge, on August 12, 1966, of one Ben Taylor. On March 8, 1967, a second amended charge was filed. This charge alleged violations of Section 8(a)(1) and (3) of the Act only. In addition to the alleged discrimina- tory discharge of Ben Taylor, this charge alleged also a violation of Section 8(a)(3) of the Act by Respondent's al- leged refusal to reinstate four "unfair labor practice strikers" (Opal Foursha, Lupe Guzman, Fannie Harris, and Katherine Ponder) notwithstanding their alleged un- conditional offer to return to work. The complaint, which is based on the second amended charge, alleges as an independent violation of Section 8(a)(1) of the Act the interrogation of an employee (Ben Taylor) concerning his union interests and activities on August 12, 1966. As violations of Section 8(a)(3) of the Act, the complaint alleges (1) the discharge of Ben Taylor on August 12, 1966, because of his interest in, or activi- ties on behalf of, the Union and (2) the refusal to reinstate the aforesaid four employees (following their requests on August 29 and 30, 1966, to return to work) because of their activities on behalf of the Union or other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Respondent's answer, filed on April 11, 1967, de- nied the alleged unfair labor practices and affirmatively pleaded that the alleged violation of Section 8(a)(1) of the Act (interrogation) and the allegations of refusal to rein- state the aforesaid four-named strikers were barred by Section 10(b) of the Act. Pursuant to notice a hearing was held before the Trial Examiner at Turlock, California, on June 6, 7, and 8, 1967. At the opening of the hearing, the General Counsel moved to amend the complaint with regard to the descrip- tion of the Respondent as a corporation, and the motion was granted. The Respondent then made a motion to strike the allegations of the complaint which alleged a 169 NLRB No. 124 ROGERS BROTHERS COMPANY violation of Section 8(a)(3) in the refusal to reinstate the aforenamed strikers, and the alleged independent viola- tion of Section 8(a)(1). Following argument of counsel, in which the General Counsel argued that the strike, follow- ing which the four employees requested reinstatement, was, or became, an unfair labor practice strike, at least in part, as a result of the discharge of Ben Taylor; the Trial Examiner denied the Respondent' s motions . However, the Trial Examiner indicated that he would reconsider the motion upon the filing of briefs. Such briefs have been received. I find no reason to change my ruling on the Respond- ent's motion to dismiss because of the lapse of more than 6 months between the dates of initial refusal to rein- state returning strikers and the date of the filing of the second amended charge. Had there been no basis for con- tending that the unfair labor practices mentioned in the second amended charge related back to the first amended charge (as might be the case if the General Counsel had contended that the strike was an unfair labor practice strike but was not caused by, nor prolonged by, the discharge of Taylor) there might have been possible merit to the Respondent's motion based on Section 10(b) of the Act. But because of the contention of the General Coun- sel that it was so related, an issue of fact was raised as to whether or not the strike was an unfair labor practice strike caused or prolonged by Taylor's discharge. This could not have been disposed of without hearing evidence. Hence, the Respondent's motion could not have been granted on legal contentions alone. Respond- ent's motion, insofar as it extended to the four strikers allegedly denied reinstatement, might have had to be con- sidered as a part of the complaint had the General Coun- sel advanced an alternative theory that there was dis- crimination against returning strikers even if the strike was economic and unrelated to Taylor's discharge, but the General Counsel did not so contend. He specifically stated that he was making no claim based on the theory that the strike was an economic strike., My ruling on Respondent's motion concerning the Section 10(b) limita- tion, therefore, stands.' I. THE BUSINESS OF RESPONDENT The Respondent, a California corporation, with its principal office in Turlock, California, is engaged in the processing of food products at Turlock and Livingston, California. It is wholly owned by a corporation of the same name, a Delaware corporation, which has its prin- cipal office in Idaho Falls, Idaho. During the past year, Respondent sold and shipped merchandise from its California operations valued in excess of $50,000, directly outside the State of California. Jurisdiction is ad- mitted, and I find that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union, which is conceded in the Respondent's answer to be a labor organization within the meaning of the Act, was certified as the collective-bargaining See transcript, pp. 262, 339-340 z With respect to my denial of Respondent's motion to dismiss as to the 831 representative of the employees of the Respondent fol- lowing a consent election held on December 9, 1965. III. THE UNFAIR LABOR PRACTICES A. Background Negotiations between the Union and the Respondent terminated in early August 1966, without any agreement having been reached. On about August 3, the Union held two meetings for Respondent's employees and there re- ported the lack of progress in negotiations. Mario Ricci, the Union's president, told the employees that it would probably be necessary to strike one or both of the Respondent's plants. The Union's strength was prin- cipally at the Turlock plant and I deduce that its lack of strength at Livingston was the main deterrent to the Union's striking both plants at once. Whatever the reason, Ricci and the Union's negotiating committee de- cided that it would, in fact, strike the Turlock plant alone, at least at the outset. The strike at Turlock began on Au- gust 11, 1966. A picket line was established there. The Livingston plant was not struck until August 17, 1966. B. Discrimination 1. Employment and discharge of Taylor a. Facts Respondent hired Ben Taylor as a cleanup man at its Livingston plant on August 10, 1966, the day before the strike started at the Turlock plant. On Friday, August 12, about 10 a.m., Taylor asked his foreman, Bobby Logan, if he could get his check or an advance on his pay as he needed it for milk for his children, for food, and for gasoline to get to and from work. Logan told Taylor that it was against the Company's rules. Later, Taylor asked 'Superintendent Allen Spence, when the latter was passing by, if he could have an advance. Spence also told Taylor that this was against the rules of the Company. Despite Logan's answer to Taylor, Logan later that morning spoke with Spence to see if it would be possible to get Taylor an advance. Spence thereafter requested Audrey Sabin, the personnel clerk, to call the Turlock ,plant to see if an advance would be approved. The testimony of Logan and Spence differed to some degree from that of Taylor with regard to the manner in which the request was made by Taylor. Logan testified that, when Taylor asked for the advance and when he had replied that it was against the rules, Taylor had remarked that the Respondent would have to pay him if it discharged him. Taylor denied having said this. Spence (who testified before Logan) testified that Logan and Taylor both came to him about the matter and that Logan had told him that Taylor wanted to be discharged so that he could get paid, that he had asked Taylor whether or not he wanted to continue to work if he got an advance, and that Taylor had replied that he did. I find no cor- roboration of Spence's testimony that Taylor'was a party to such a conversation and I do not credit Spence's allegations of paragraphs 6(a) and (b) of the complaint (8(a)(1) allegations) see the Singer Company, Wood Products Division, 158 NLRB 677. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that he was.3 Spence testified that it was after this interview with Logan that he requested Sabin to call the Turlock plant about the advance. Whether or not Taylor did make the statement to Logan as quoted by Logan, I find that Taylor did not ask to be discharged. In any event, however, Spence knew that Taylor did not want to be discharged before he told Sabin to try to get Taylor an advance. Taylor's hours did not-coincide with those of the other employees. His hours on August 12 were from 8 a.m. to 4:30 p.m. However, for the production workers, there was a change of shift at 3 p.m. Shortly before that time, Taylor overheard some employees, who were passing by, say something about pickets outside. When Mary Molles, a quality control employee on the first shift, was returning to her post from the place where she had cleaned up her equipment before setting it up for the employee on the next shift, Taylor spoke to her and said that he had heard there were pickets outside. Molles stopped and replied, according to Taylor, "No, they are just passing out pamplets today." Taylor's testimony as to what was said in this conversation differed somewhat from that of Molles, but I deduce that the difference between them was based on their recollection of different parts of the same conversation. Taylor's memory was somewhat more complete. I have reconstructed the conversation as I find it occurred by relying on some of the testimony of each. Taylor either knew that the Turlock plant was on strike or he learned it from Molles in this conversation, and he asked Molles if "they" were going to strike "here." Taylor asked Molles if she was going to work if they did strike. She answered that she had no complaint and that she would continue to work. Taylor asked Molles what the strikers were asking for, and Molles replied that they were asking for seniority and more money. Taylor commented that the "seniority bit" sounded good to him. Molles told Taylor that she had been with the Respondent for 7 years and that she had been well treated. Taylor commented that when em- ployees reached 50 years of age they could be dropped and younger people put in their places and that this could happen to Molles. Molles said that she would worry about that when she was 50 years old. She told Taylor that she knew a number of employees who were 50 years of age and who were still working. Taylor said that he knew of some that had been "kicked out."4 Molles testified that she told Taylor that she knew of one case but that there were probably other reasons. Taylor testified that Molles said, "Well, I did know of one case like that ... only me and the bosses know about that." I am skeptical about the literal accuracy of Taylor's final quotation. According to Molles, the conversation wound up with Taylor's saying, "You mean you would work back of the picket line" or "go through the line"; accord- ing to Taylor, this statement had been made earlier in the conversation. Whatever the ending, Molles testified that 3 The Trial Examiner asked Logan whether or not Taylor was present when he had spoken with Spence about an advance for Taylor. Logan first answered, "From what I heard in the courtroom, yes." The question was repeated and Logan 'answered , "It is very possible." Counsel for the General Counsel called Logan's attention to the fact that Logan had not mentioned that Taylor was present at the aforesaid conversation between Logan and Spence in his preheating affidavit He then asked Logan if he had any independent recollection that Taylor was present. Logan an- swered that he did not. This finding is based on Molles ' testimony. Presumably Taylor was not speaking of Respondent's employees but of those that he had heard of she was upset by Taylor's words and attitude. She left and returned to her station to set up her equipment. Dur- ing the foregoing conversation, Superintendent Spence had walked past and had been seen by Molles. Spence acknowledged having seen them talking.5 When Molles left Taylor she sought to follow Spence, but he had al- ready gone into the dehydrater and Molles decided that she could not overtake him. After Molles had finished her chore of setting up her equipment before quitting, she set about looking for Spence. She went first to the cafeteria, where she saw her husband and told him that something had happened and that she had to find Spence to report it to him. Then she went to the office and asked Sabin if she knew where Spence was. According to Sabin, Molles told her that she wanted to report an incident to Spence and that Molles "was upset and furious about some man in the plant who had been bothering her ... that he was talking union to her." Molles omitted this from her testimony. Seeing Spence through the office window, Molles went outside to talk with him. As she went through the door, according to her testimony, she hesitated when she saw two union men who were handing out leaflets not far from where Spence was standing, but she testified that she thought, "Well, I have to report it," so she went to Spence and had a conversation with him. She testified that she said, "You have a good man out there." According to Spence, Molles had commented on "what kind of fellow we had working back there." Spence asked Molles what man she was talk- ing about, and Molles described Taylor, whom she did not know by name, and she told Spence that Taylor had been bothering her. According to Molles, this was all that she told Spence, and she testified that she later told her husband that she had not explained everything to Spence because "the union men were out there and I didn't know what to say." I find that Molles' memory at times failed as to details that might have adversely affected the Respondent. I find good cause to believe that she said more to Spence than she reported. Spence, himself, testified that he had asked Molles why she had not just gone on her way to work (presumably without permitting Taylor to detain her in conversation so long) and she had said that Taylor had been "kind of blocking her way."s Spence's testimony was biased, and he gave evidence of concealing and distorting the facts, a conclusion that I reach in part from the fact that Spence had given a prehearing affidavit to an investigator for the General Counsel which differed in certain, material respects from his testimony at the hearing. Some of the discrepancies he explained by testifying that, after having given his af- fidavit, he had refreshed his recollection by going over the events with Logan and Sabin (who had on the same day, but independently of each other, given affidavits). From Molles' testimony, I infer that, because of the presence of the men distributing union literature, Molles was guarded in her statements to Spence and probably was not as elsewhere. 6 It occurred to the Trial Examiner that Molles might have been embar- rassed by having been seen there in conversation with Taylor and that this influenced Molles in her subsequent actions He suggested this to Molles, who quite willingly accepted the suggestion . However, I am not con- vinced that it had anything to do with it. Molles would have volunteered this had it been true . Her amenability to suggestion was one reason I have found Molles' testimony only partly credible. 6 On all the evidence, I find that Molles was in no way restrained by Taylor. She could have left at any time ROGERS BROTHERS COMPANY complete in her recitation of the conversation with Taylor as she might have been, but I am convinced that she told Spence more than either revealed at the hearing. Following his conversation with Molles, Spence went to the office and told Foreman Logan, in Sabin's presence, to discharge Taylor at the end of the shift (meaning Taylor's quitting time). Spence testified that, at the time he told Logan to discharge Taylor, he was under the impression that Taylor "had been bothering her [Molles], making a pass at her, or something to that ef- fect, and that is one of the reasons, along with him requesting to be fired earlier, earlier that day, that I de- cided I might as well grant his wishes." Spence conceded that Molles had not told him that Taylor had "made a pass at" her. In his prehearing affidavit, Spence had stated, "I did not understand that Taylor touched her or molested her in any way." Although the word "molest" kept turning up in the testimony, it was always withdrawn and the word "bothering" was substituted. On all the evidence, I find that Taylor did not, by word or act, do anything to Molles that could appropriately be called of- fensive, and I find that Spence knew this. At 4:30 p.m., Logan summoned Taylor to the office and preceded him there. At that time Floorlady Trulie Skaggs was getting a pair of work gloves from a room ad- joining the office, and she overheard Logan ask Sabin what Taylor had been doing to Mary Molles.7 Sabin replied, "Oh, just agitating her, I think." At this time, Taylor came into the office with his timecard and Logan said, "Well, this is it. You are through." Taylor replied, "I suppose I am. This is the end of my shift, isn't it?" Logan said, "That isn't what I mean. You are finished; you won't be working here any more." According to Taylor, Logan said, "I guess you know why ... Now, that's the way you wanted it isn't it?" Taylor told Logan he was not "following him." Logan told Taylor that he was ter- minated and could pick up his check at 6 p.m. Taylor asked the reason, and Logan replied that Taylor had been bothering one of the women. According to Taylor's testimony, Logan used the word "molesting;" when Logan was testifying to this incident, he used the word "molesting," but retracted it and substituted the word "bothering." Taylor asked whom he meant, and Logan said, "I think you know who." Taylor told Logan to bring that woman Molles in. Logan said that she had already gone home. At this point, Skaggs remarked to Logan that she had worked near Taylor the first night he was there, and that she had not seen or heard anything wrong out of him The testimony of the witnesses is somewhat at vari- ance as to what was said next. According to Skaggs, Sabin said, "Weren't you talking about a certain something?" Taylor quoted Sabin as saying, "Wasn't you saying little things about the Union?" Sabin testified that, when Logan told Taylor that he had bothered one of the women, Taylor had said, "You mean the woman who talked to me about the Union," and that he had said, "I think you had that in reverse." Skaggs testified that, when Sabin asked if he were not talking about a certain something, Taylor had said, "If you mean we were talking about the Union, yes." And Sabin said, "That is what I meant." To the extent that there is a difference in the testimony, I credit Skaggs' version, which was similar to that of Taylor. Taylor testified that, if talking about the Union was what Logan meant by "bothering" Molles ' I have qiade findings of this interview based on parts of the testimony of Taylor and Skaggs 833 (whom he did not then know by name), he guessed he was. Logan did not consult Spence again but carried out Spence's order to discharge Taylor.8 Taylor went home but returned at 7 p.m. and went to Spence, who gave him his check. Taylor quoted himself as saying, "I'm sorry the way things came out" and that Spence had said, "Well, you just better find yourself another job." There is no evidence that Logan had meanwhile reported the discharge interview to Spence. b. Conclusions regarding Taylor's discharge Respondent offered evidence that supervisors had been instructed to maintain a neutral attitude toward the Union. Other than the discharge of Taylor, the slant of some of Respondent's supervisor's testimony, and the refusal of Respondent to allow supervisors who had refused to cross the picket line to return to work after the picket line was removed, there was little or no evidence of any union animadversion on the Respondent's part. However, Respondent failed to show that Taylor's discharge followed the usual pattern. The only justification offered by the Respondent for Taylor's discharge was that Taylor had asked to be discharged in order to be paid and that Taylor had "bothered" a female employee. With regard to the first, I am persuaded that the testimony of Spence and Logan (to the effect that Taylor had asked to be discharged) was based not on fact but sprang from rationalization, possibly advanced as argument by Logan when he spoke to Spence about an advance for Taylor, and that this argu- ment was later incorporated into a story as a statement by Taylor. But even if, contrary to my finding that Taylor had not asked to be discharged, it be assumed for the sake of argument that Taylor had made such a statement (as was attributed to him by Logan) in advancing an argu- ment for getting an advance in pay, the fact is that Spence assured himself that Taylor did not wish to be discharged, and Spence actually took steps to provide an advance for Taylor. Logan testified that he was under the impression that the advance had been approved, that Taylor's check for his advance would be ready that evening, and that he had so told Taylor. Taylor denied having been so in- formed. Sabin testified that, after Logan had discharged Taylor, she had called the Turlock plant 'to request Taylor's final check instead of the one for the advance. But Sabin's memory failed frequently when being questioned about the advance. She was under the impres- sion that the question of an advance had not proceeded further than the payroll clerk's having to check with the home office in Idaho. I am not fully persuaded by Sabin's uncorroborated testimony that the Respondent had not given Taylor the very check that had been prepared for him as an advance. The Respondent produced no record to show that the check delivered to Taylor was different in form from a check for an advance, and it did not call as a witness, the payroll clerk at the Turlock plant who had been requested by Sabin to prepare the check. With respect to the Respondent's attempted justifica- tion of Taylor's discharge on the ground that Taylor had bothered a female employee, I find that this fails to bear scrutiny. There was no plant rule against talking during working time, and the only case where a man had been discharged for "bothering" a woman was one where the 8 Both Logan and Sabin were conceded supervisors. Logan had authori- ty to discharge without instructions from Spence 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guilty male employee had, on the first offense been warned not to do it again . It was only thereafter when he violated the warning that he was discharged. The evidence discloses that that man had been unduly forward in his attention to a female employee and that his offense was not limited merely to speaking to a female employee, as Taylor had done. Respondent sought to fortify its defense by Molles' testimony that Taylor had frightened her when he had asked if she really intended to go to work through the picket line because his voice rose somewhat decibelwise, and she testified , in effect, that she was sensitive to a possible threat therein , because a female employee, Avenal Nelson, about 5 days earlier, had made a remark, when Molles and a group of women were discussing a possible strike at the Livingston plant , that "you have a choice; either you don 't go to work or you get hurt." This remark of Nelson was reported to Spence, although he could not recall by whom. No disciplinary action was shown to have been taken because of this remark . Spence did not testify that he thought Taylor had threatened Molles, and there is no reason to assume that he thought so. He testified that the details of what Taylor had said to Molles were unknown to him when he instructed Logan to terminate Taylor. s But even after he learned all the details, he never advanced , as an excuse for his actions, that he believed Taylor had made a threat to Molles. The only credible excuse that Spence offered for his hasty decision to discharge Taylor was that he had had only 1 hour 's sleep in the prior 24-hour period and, by this, I presume , he was suggesting that he was not thinking clearly, an excuse which fails to justify the disparate treatment afforded Taylor, or to justify Taylor's discharge for engaging in protected union activities. It may be conceded that Spence , perhaps because of loss of sleep, forgot his instructions to be neutral , but he was the Respondent 's agent , and the Respondent was neverthe- less bound by his action. From evidence that employees openly discussed the Union in the plant and generally knew how each one felt about it , from the evidence that Spence knew of Nelson's ominous remark , above quoted , from the absence of evidence that Nelson had suffered any chastisement for her remark , and from all the evidence , I find that the real explanation of Spence's decision to discharge Taylor was not revealed by Spence . From Molles ' furtive air in re- porting the Taylor incident to Spence, furtiveness, ap- parently induced by the presence of union agents, and from Spence 's testimony that Molles had commented on "the kind of man" Taylor was, there is a suggestion that Molles and Spence might have suspected Taylor of hav- ing been planted by the Union to serve the Union's in- terest in preparing for a strike. However, even if Spence had entertained such a suspicion , it would not have suf- ficed as a justification for Taylor' s discharge . Taylor was engaged in permissible activity, protected by the guaran- tees of Section 7 of the Act, in voicing his opinion about union issues . I do not here pass upon the question of what the Respondent might have been justified in doing to Taylor if the Union had , in fact , planted him with the Respondent to advance the cause of the Union. In this case, there was no proof that Taylor was conniving with the Union , and certainly Spence ' s bare suspicion of such a fact alone is no justification in law for Taylor's discharge . 1° I conclude and find , therefore , that, by discharging Ben Taylor for talking about the strike and about collective -bargaining issues with Molles, the Respondent unjustifiably discriminated against Taylor and thereby discouraged union membership and activity in violation of Section 8(a)(3) and ( 1) of the Act. 2. Refusal to reinstate strikers The right of the returning strikers to their jobs upon ap- plication regardless of the fact that replacements had been hired during the strike depends upon whether the strike was an economic or an unfair labor practice strike. If the former , the returning strikers whose jobs had been filled were entitled only to be treated without discrimina- tion and to be given jobs when work was available. The General Counsel asserts no claim of any unfair labor practice if the strike was an economic one, and, on the evidence , I should find no basis for one, since the evidence indicates that Respondent not only offered jobs to applicants when jobs were available but restored seniority to returning strikers when they were rehired. The General Counsel's theory is that the strike at Livingston was, at least in part, based on Taylor's discharge . It is undisputed that Taylor's discharge not only occurred before the commencement of the strike at the Livingston plant but that it became known to Ricci within a couple of days1' when he was with some of the pickets at the Turlock plant. After interviewing Taylor, according to Ricci : " I assembled a number of the pickets and other people who were on strike at the Turlock Plant under the shade tree ... and advised them of the seri- ousness of this act committed by the company. I told them that this was definite grounds for an unfair labor practice charge, which we would file in due time. I also advised them that this would enhance our position in striking the Livingston Plant ." Ricci testified that "we began to make plans for the strike at the Livingston Plant but no conclusive date was arrived at at the time." Ricci testified that on Monday, August 15, he went to the Livingston plant and discussed the Taylor discharge with "the people ." He told them , he testified , that this was an unfair labor practice and that "if we should call a strike'at the Livingston Plant their jobs would be guaranteed by an agency of the Federal Government ." Ricci was unable to identify any employees with whom he might have discussed this because he "was never that acquainted with the people of Livingston.. ." At one point he testified that he spoke with 30 to 40 employees at each change of shift . But he testified that he did not tell all of them about the Taylor incident , but he could not estimate the number he did inform . He suggested that it was very difficult to speak with employees going in and out because the Respondent always made it a point to have two or three supervisory employees standing 5 or 10 feet from him. On the night of August 16, Ricci testified , he met with three members of the negotiating committee and "decided In view of Spence ' s failure to act in an equally precipitous manner in respect to reports about other employees, I do not fully credit this testimony . I find that Spence had enough information to know what Taylor was talking about. 11 See N . L.R.B. v. Burnup and Sims , Inc., 379 U.S. 21. I I Ricci had heard something about the discharge of a man by August 13. Taylor had received a union handbill with Ricci's name on it and had sought Ricci out and recounted the details of his discharge on August 14. Ricci first fixed his talk with Taylor as on August 13 but later decided that it was on August 14. ROGERS BROTHERS COMPANY that the time was ready for us to strike the Livingston Plant." Asked if he would have struck the Livingston plant even without knowledge of Taylor's discharge, Ricci replied, "I would not have struck the Livingston Plant . at that time." There is no evidence that a general membership meeting was called to vote on a strike at the Livingston plant. If a strike vote had been taken before even the Turlock plant strike, it was not revealed. On August 13, Ricci had written a letter to em- ployees at the Livingston plant saying, inter alia: "We ap- preciate the interest and concern of the Livingston work- ers. We would like to comply with your many requests for a strike at Livingston, as well. However, as we said in our earlier notice, we want to give the Company an op- portunity to make a request for negotiations before we strike at Livingston," and that they should not strike until pickets appeared at the plant gate. The pickets, with their signs, were posted at the Livingston plant at the change of shifts late on the night of August 16. The picket signs were general in language, saying that the Respondent was "unfair." On August 16, 1966, Ricci prepared a letter in- tended for employees at the Livingston plant. There is no word in it of the discharge of Taylor. The tenor of the letter is, rather, that "the Company [at Turlock] has been trying to resume production. ..."12 and that: "We ask you to demonstrate your protest against Rogers Brothers. We ask you to join the brave workers at Turlock. We ask you to STRIKE."13 Ricci explained the failure to men- tion Taylor's discharge in any of the letters to the Living- ston employees as because "We did not want to alert the company that we were planning to file charges, the 8(a)(3) charges, for the discharge of Ben Taylor, so that the com- pany would not have advance notice and be able to coach Mary Molles." He gave the same reason for not filing an amended charge, to include Taylor's discharge, before October 31, when he signed the amended charge. No employee was produced who had heard that Taylor's discharge had been given as a reason for the strike at Livingston. 14 In fact few who were not con- nected in some way with Taylor's discharge even knew about it, so far as the evidence shows. At the time of the strike at Livingston, the original charge was still being in- vestigated. The Union still expected that its charge of refusal to bargain in good faith would be found to have merit and that this would make the strike an unfair labor practice strike which would assure the strikers of their jobs even if replacements were hired during the strike. Taylor's discharge did not, from 'the Union's point of view, at that time have to be publicized or claimed to be the cause, or even a cause, for the strike at Livingston. It would not have been until after the Union learned that the General Counsel had found no merit in the 8(a)(5) charge that Taylor's discharge would have loomed as significant. I am not convinced that Ricci's testimony of his talks with Livingston employees about Taylor's discharge can be credited, taking the evidence as a whole. His testimony gives evidence of exaggeration. All things con- sidered, I am convinced and find that Taylor's discharge was not even a cause of the strike at Livingston. I find, therefore, that the strike at Livingston was an economic strike. Since the General Counsel makes no claim of un- fair labor practices in connection with rehire of strikers 13 The Turlock plant was completely closed by the strike on August 11, but on August 14 it opened to hire replacements. According to a letter written by the Respondent to employees at the Livingston plant on Au- gust 17, the Turlock plant was operating on a three-shift basis at that time 835 on the hypothesis of an economic strike, I find that the Respondent has not committed unfair labor practices in regard to reemployment of strikers whose jobs had been filled before application for reinstatement by the return- ing strikers. C. Interference, Restraint, and Coercion The complaint alleges as an independent violation of Section 8(a)(1) of the Act, the questioning of Taylor "concerning his union interests and activities" by Sabin. This alludes to her question at the time she was attempt- ing to identify the conversation which Taylor had had with Molles, in order to evoke Taylor's recollection. I do not interpret her question as one designed to get informa- tion about Taylor's attitude toward the Union. Rather I consider it as a fragment of the picture disclosing a viola- tion of Section 8(a)(3) of the Act. I make no finding, therefore, of an independent violation of Section 8(a)(1) of the Act. By a telegraphic amendment to the complaint, dated May 22, 1967, the General Counsel added an allegation that, Respondent, by Audrey Sabin, threatened an em- ployee that Respondent's striking employees would lose their seniority if they did not abandon the strike and return to work before the strike was over. The evidence on this is conflicting. Employee Retha Davis, who had not worked the first few days of the strike at the Living- ston plant, testified that on August 19, 1967, she had telephoned Spence and made arrangements to return to work. When she returned, she testified, she had had a conversation in the lunch room with Sabin in the presence of several other named employees. Davis testified that she had asked Sabin, "Have I lost my seniority?" and that Sabin had said, "No, you came back before the strike was over." Davis testified that she then asked about the other girls who had not returned and that Sabin had an- swered, "If they don't come in before the strike is over they will lose their seniority and they will have to be replaced." Sabin testified that when Davis had asked her if she had lost her seniority she had replied that she had not, because the letter that was circulated to the em- ployees stated something to the effect that if they came back within 3 days they would not lose their seniority, and Davis had come back within 3' days. The letter referred to was one sent by the Respondent to Livingston plant employees under date of August 17, 1966. It notified employees that the plant would continue to operate and that work was available for those who desired to work. Then it stated: "For those employees who do not wish to work and do not return to work by Friday, August 19, we will have no choice but to hire replacements." Sabin denied that she had made a state- ment such as that quoted by Davis, with reference to what she allegedly had said about other employees not returning during the strike and losing seniority. No wit- nesses to the conversation between Davis and Sabin were called by either side. The aforementioned letter referred employees to Sabin to answer their questions, if any. I am not convinced that Sabin would not have been thoroughly informed of the employees' rights under the circum- stances. I believe that Davis, who probably understood 13 The strike at Livingston ran from August 17 to 28 14 A stipulation was received as to what would be testified by several employees if they were called as witnesses None of them had heard of Taylor's discharge. 350-212 0-70-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less about the employment operations than Sabin, could readily have reversed the order of Sabin's words in her quotation or otherwise have confused them and that, in- stead of Sabin's saying that employees who did not return would lose their seniority and be replaced, Sabin probably had said that, if employees did not return in 3 days, they would be replaced and if replaced, they would lose their seniority. I credit Sabin's denial,15 and I find no independent violartion of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Rspondent set forth in section III, above, occurring in connection with the operations of the Respondent set out in section I, above, have aclose, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY There is some indication in the record that Ben Taylor was rehired by the Respondent sometime early in 1967, but it does not appear that he was reinstated or that the ef- fect of the unfair labor practice was completely dis- sipated. In addition to the customary cease-and-desist order, therefore, I shall recommend that the Respondent offer to Ben Taylor immediate and full reinstatement to his former or substantially equivalent position and make him whole for any loss he may have suffered as a con- sequence of the unlawful discrimination against him, by paying him a sum of money equal to that which he would have earned in the Respondent's employ (but for his dis- criminatory discharge) between August 12, 1966, and the date of the offer of reinstatement, less his net earnings else- where, together with interest at the rate of 6 percent per annum on the net amount due until paid (Isis Plumbing & Heating Co., 138 NLRB 716), the total amount to be computed in accordance with the Board's customary practice (F. W. Woolworth Company, 90 NLRB 289). Because the Respondent's personnel records for Ben Taylor undoubtedly show that Taylor was discharged for cause on August 12, 1966, I shall recommend that, if such be the case, the Respondent shall correct his person- nel records to show the true facts and shall include in his personnel files a copy of this Decision and Recom- mended Order. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce 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 discriminatorily discharging Ben Taylor on Au- gust 12, 1966, the Respondent has discouraged, and is discouraging, membership in a labor organization within the meaning of Section 8(a)(3) of the Act. 4. By the unfair labor practices mentioned in para- graph (3), above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, thereby violating Section 8(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Rogers Brothers Company, Livingston, California, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by discharging or otherwise discriminating against any employee because of his membership in, or activity on be- half of, any labor organization or because of any activity guaranteed in Section 7 of the Act. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine and Allied Workers In- ternational Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activity, except to the extent that membership in a labor organization may be required as a condition of employ- ment by the terms of a contract made in accordance with the provisions of Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Ben Taylor immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss he may have suffered by reason of the Respond- ent's discrimination against him by paying him a sum of money computed in the manner described in the section above entitled, "The Remedy." (b) Correct the personnel records of Ben Taylor to show that he was discriminatorily discharged and was or- dered reinstated. (c) Notify Ben Taylor if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its place of business in Livingston, Califor- is Although I have found that Sabin's memory was sometimes less than vivid, I do not find that she deliberately falsified any of her testimony. ROGERS BROTHERS COMPANY 837 nia, copies of the attached notice marked "Appendix. `16 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by a representative of the Respondent, be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 17 Is 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." 'I 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 Respond- ent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership in, or sup- port of, Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying, Wine and Allied Workers International Union of America, AFL-CIO, or any other labor organization. WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations , to join or assist Winery, Distillery and Allied Workers Union, Local No. 186, Distillery, Rectifying , Wine and Allied Workers International Union of America, AFL-CIO, or any other labor or- ganization , to bargain collectively through represen- tatives of their own choosing , and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that membership in a labor organization may be required as a condition of employment by the terms of a collective -bargaining agreement made as authorized in the provisions of Section 8(a)(3) of the Act. WE WILL offer to Ben Taylor i mmediate and full reinstatement to his former or substantially equivalent position without loss of seniority , or other rights and privileges , and we will make him whole for any loss of pay he may have suffered as a result of the discrimination against him. ROGERS BROTHERS COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.