The Greif Bros. Cooperage Corp.

National Labor Relations Board - Board DecisionsMar 10, 1965

151 N.L.R.B. 521 (N.L.R.B. 1965)

THE GREIF BROS. COOPERAGE CORP., ETC. 521 Employees may communicate directly with the Board' s Regional Office, 1700 Bankers Securities Building, Walnut & Juniper Streets , Philadelphia , Pennsylvania, Telephone No. 735-2612 , if they have any question concerning this notice or com- pliance with its provisions. The Greif Bros . Cooperage Corp. (Seymour & Peck Division) and United Steelworkers of America , AFL-CIO. Case No. 1-CA-4489. March 10, 1965 DECISION AND ORDER On September 30, 1964, Trial Examiner Sidney Sherman issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown, and Jenkins]. 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 and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order the Order recom- mended by the Trial Examiner, and orders that Respondent, The Greif Bros. Cooperage Corp. (Seymour & Peck Division), its officers, agents , successors , and assigns, shall take the action set for in the Trial Examiner's Recommended Order, with the follow- ing addition : Add the following to paragraph 2(a) of the Trial Examiner's Recommended Order : "Notify the employees entitled to reinstatement, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the 151 NLRB No. 61. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The instant charge was served upon the Respondent on February 19, 1964, the complaint issued on April 3, and the case was heard before Trial Examiner Sidney Sherman on May 6 and 7, and August 18. The issues litigated were whether Respond- ent had violated Section 8(a)(1) of the Act by threats of reprisal for concerted, or union, activities, and Section 8 (a) (3) and (1) by discharging or laying off employees because of such activities. After the hearing briefs were submitted by Respondent and the General Counsel. Upon the entire record 1 and my observation of the witnesses, I adopt the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS The Greif Bros. Cooperage Corp., herein called Respondent, is a Delaware corpora- tion, based in Ohio, with a branch plant in Worcester, Massachusetts, where it manu- factures and sells containers and wire reels. During the 1963 calendar year Respond- ent received at its Worcester plant from out-of-State points material valued in excess of $50,000. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The pleadings The complaint, as amended at the hearing, alleges that Respondent violated Section 8(a)(3) and (1) of the Act (1) by discharging five employees for discriminatory reasons, on September 13, 1963, and (2) by laying off six employees on January 14 and 17, 1964, because of their union activities The complaint further alleges that Respondent violated Section 8(a)(1) of the Act by various threats of reprisal for union activity. The answer alleges, in effect, that the five employees referred to above were dis- charged on September 12 because of their refusal to work overtime, and were later recalled when they agreed to accept overtime assignments in the future. As to the six employees laid off in January 1964, the answer asserts that such layoffs were for economic reasons, and that two of them have been recalled. The threats of reprisal are denied. B. The sequence of events At its Worcester plant, here involved, Respondent manufactures plywood and Masonite reels for winding electric wire, and the plant is divided into a plywood and Masonite department. This plant, which is 1 of about 80 operated by Respondent throughout the country, is under the management of Moss, who reports to English, whose office is in New Jersey, and to Wilson, Respondent's vice president, whose office is in Chicago. On the morning of September 12, 1963, Moss advised employees LeClair, Wash- burn, Alton Chase, Pigeon, and Goulet that they would have to work overtime that evening to meet an emergency. After consulting together, the five men decided to refuse the overtime assignment and so apprised their foreman, Szewerenka, who promptly told LeClair that he was discharged because of his "poor attitude" and notified the other four, in effect, that they were not to work the next day. When Moss 1 At the hearing, ruling was reserved on the admission of General Counsel's Exhibits Nos 17a, 17b, and 17c They are hereby received in evidence On September 15 I Issued an order to show cause why certain corrections should not be made in the record. In Its response to that order, Respondent concurred In the proposed corrections, except for two proposed changes, which are hereby adopted. THE GREIF BROS. COOPERAGE CORP., ETC. 523 later in the day returned to the plant, he had to work considerable overtime, himself, to complete the emergency job. The next morning, the five men came to the plant and submitted to Moss a list of demands for improvements in their working conditions. After glancing at the list, Moss declared that he would not be dictated to. When the men thereupon asked whether they were suspended or discharged, Moss referred them to their foreman, who in turn referred them back to Moss. Moss then stated that he was undecided about their status and directed them to return about 4 o'clock that afternoon. When they returned, Moss, after taxing them with insubordination, dis- charged them. However, on September 16, Moss granted Chase's request that he be allowed to return to work, and Moss recalled the other four within the next 4 days. The Union first entered the scene about 2 months later, when employee Fitton con- tacted Sullivan, a union representative, and on December 12 the initial union meeting was held, which was attended by Fitton, Pigeon, and LeClair. At this meeting Sulli- van announced that the next meeting would be held the following week and urged that those present bring with them to that meeting "any others they thought they could trust who wouldn't go back and tell the Company." The second meeting was attended by Washburn and Hintlian, besides the three named above. In addition, Goulet at- tended one or both of these December meetings.2 A third meeting, held on January 9, was limited to the same group and such others as they might wish to invite.3 By January 13, 10 of the Respondent's 17 nonsupervisory employees had signed cards for the Union, and on that date the Union (1) filed a representation petition with the Board and (2) sent the Respondent a letter stating that a majority of its employees had authorized the Union to represent them and requesting a bargaining meeting. Moss received this letter in the morning of the next day and at noon of the same day laid off two of the three full-time employees in the Masonite department-LeClair and Washburn-and transferred the third such employee, Goodell, to the plywood depart- ment, displacing Hinthan.4 On January 16 the Union held its first meeting which was open to all Respondent's employees, notice thereof having been mailed to them on January 14 and distributed in the plant. This meeting was attended by 12 or 13 employees. On January 17 Moss laid off three more plywood employees-Fitton, ^Goulet, and Pigeon. None of the foregoing six employees was recalled until shortly before the instant hearing (on May 6 and 7). C. Discussion 1. The 8(a)(1) issue The complaint alleges that Respondent violated Section 8(a) (1) by threats of reprisal for union or concerted activities, which were allegedly uttered by Moss on September 13 and 18, 1963, and on January 14, 1964. These will be considered chronologically. a. September 13 threats According to Washburn, in the morning of September 13, after the other four employees had left the plant, pursuant to Moss' instructions to return in the afternoon for advice as to their job status, Moss remarked to Washburn, who had remained behind, "I know what you guys are trying to do. You aie trying to get a union in here and before you will do that I will put a padlock on the door and lock the place." According to Pigeon, when the entire group of five employees met with Moss again on the same afternoon, he stated that it appeared to him that they were trying to organ- ize a union, and he would padlock the doors of the plant to prevent this. The testi- mony of Goulet and LeClair was to like effect. Moss did not deny the threat to padlock the doors of the plant on the foregoing occasions, but insisted that he did not relate the threat to the employees' union activity but only to their attempt to "dictate" to him. However, as such attempt constituted, 2 The foregoing findings as to the identity of those attending the December meetings are based on a synthesis of the testimony of Sullivan and the six employees involved 3 The record does not show who, if anyone, attended this meeting other than the original six employees. ^ Respondent's brief, relying on some ambiguous testimony by Moss, asserts that, in closing down the Masonite operation, Moss laid off two part-time employees, in addition to Washburn and LeClair However, it appears from General Counsel's Exhibit No 18, the accuracy of winch was not disputed by Respondent, that the only tii o part-time employees on Respondent's payroll on January 14 continued to work until at least April 11 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in essence, a concerted demand for improvements in working conditions, even such a threat would violate Section 8(a)(1) of the Act, as it would be a threat of reprisal for protected, concerted action. Moreover, I do not credit Moss' version of his threat, since the contrary testimony of General Counsel's witnesses was mutually corroborative, and I was more favorably impressed by their demeanor and candor.5 Accordingly, I find that Moss threatened to shut the plant to combat union activity, and that Respondent thereby violated Section 8(a)( I) of the Act. b. September 18 According to Goulet, when Moss met with the witness and Pigeon on September 18 to discuss their return to work, Moss, after apologizing for his hasty action in discharg- ing the men on September 13, explained that he had had to work overtime because of the employees' refusal to do so and that he had "thought that we might have been starting up a union and asked us why we came to him in a group." Goulet, as he testified, explained to Moss that the employees had resorted to group action only because individual complaints had proved futile. Pigeon corroborated Goulet as fol- lows on this point: "He said the way we stood up against him it looked like we were organizing or starting a union. He said he couldn't have it...." Moss denied that he had told any employee on that occasion that he had thought that the group action of the five employees on September 13 represented union activity.6 For the same reasons as are noted above with regard to Moss' September 13 threat, I do not credit Moss and find that he intimated to Goulet and Pigeon on September 18 that his action in discharging them on September 13 was due at least in part to his belief that they were attempting to organize a union. I find further that Respondent thereby violated Section 8(a) (1) of the Act. c. The January 14 incident Washburn testified that on January 14, after being notified of his layoff, Moss told him that it might last "for a week or a month, it all depends on you." Moss disputed this testimony.? However, I credit Washburn and find that in the context of the cir- cumstances under which the foregoing remark was made it was reasonably calculated to be understood as meaning that the duration of Washburn's layoff depended on his renunciation of his union activity.8 I find therefore that by such remark Respondent violated Section 8(a)( I) of the Act. 2. The 8(a) (3) issue a. The September 13 discharges The General Counsel does not contend that the Respondent's action on Septem- ber 12 in ostensibly discharging LeClair and directing the four other employees not to report for work the next day was unlawful. It is clear that such action was due solely to the employees' refusal to work overtime and it is well settled that an employer may discipline employees for such refusal. The General Counsel does contend, however, that Moss' ultimate decision on September 13 to discharge all five men was prompted, not by their refusal to work overtime, but by their concerted action in presenting to him a list of grievances, which led him to believe that they were attempting to form a union. The General Counsel cites Moss' admitted, open resentment on September 13 of the employees' efforts to "dictate" to him, his repeated statements to the employees, according to their credited testimony, that he believed they were attempting to organize a union and that he would shut down the plant as a countermeasure,,) and, perhaps even more significant, 5 As to Moss' candor, see discussion in the text, below, of his explanation for the January layoffs 8 See Trial Examiner's Exhibit No 1 7 See Trial Examiner's Exhibit No. 1. 8Indeed, there is no basis in the record for assuming that Moss' remark had any other meaning. The statement that the length of his layoff depended on Washburn necessarily implied that the reason for his layoff was not the one announced by Moss (lack of work) but some misconduct on Washburn's part, correctible by him, the exact nature of which Moss preferred not to disclose So far as appears from the record, the only conduct by Washburn immediately preceding his layoff which could have been offensive to Moss (whose union animus had already been demonstrated) was Wash- burn's union activity Note, moreover, Moss' admission, discussed below, that the layoffs of January 14 were "accelerated" because of the Union's bargaining demand BAs already noted, Moss admitted the threat to shut down in reprisal for the em- ployees' concerted activities. THE GREIF BROS. COOPERAGE CORP., ETC. 525 his admission to Pigeon and Goulet on September 18, in explaining the reasons for their discharge , that he had inferred from the concerted nature of their action on the 13th that they were seeking to organize a union. Respondent , on the other hand, points to the testimony of Moss that he decided to discharge the men on September 13 solely because of their refusal to work over- time. I have no doubt that Moss was displeased with the men for that reason, and was irked at the personal inconvenience he had suffered as a result thereof, but, in view of his repeated threats of reprisal against the men for their supposed union activities , and his admission on September 18, in effect, that the discharge action had been motivated at least in part by his belief that the men were organizing a union, the inference is warranted that such belief was a significant factor in Moss' decision to terminate the men. This inference is reinforced by the fact that, as found above, in the rehire interview with Goulet and Pigeon , Moss sought reassurance that their group action on September 13 had no relation to union activity. Accordingly , I find that the discharge of the five 10 employees on September 13 was prompted , at least in part, by their concerted activities , and that Respondent thereby violated Section 8 ( a)(1) of the Act . As the remedy would be the same, there is no need to determine whether such mass discharge also violated Section 8 ( a)(3) of the Act. b. The January layoffs As already related , on January 14 Respondent laid off Washburn , LeClair, and Hintlian, and on January 17 laid off Fitton , Goulet, and Pigeon. All of these employ- ees had signed union cards and they constituted the nucleus of the union movement, having attended the "closed " union meeting in December and early January. More- over, four of these six ( Washburn , LeClair, Goulet , and Pigeon ) were among the five 11 employees who were discharged on September 13 by Moss because of their supposed involvement in union activity . The foregoing layoffs followed close upon the heels of the Union 's request for recognition , and, indeed , the initial layoffs occurred only a few hours after the receipt of that request by Moss. The January 14 layoffs stemmed from the curtailment of operations in the Masonite department . (Washburn and LeClair worked in that department and while Hintlian worked in plywood , his layoff on January 14 resulted from the transfer of Goodell from Masonite to plywood .) The January 17 layoffs were confined to the plywood department. Each of these two groups of layoffs will be separately considered. (1) The January 14 layoffs These layoffs were effected at noon in the middle of the workshift . Moss gave the following three , apparently conflicting , versions of the reasons for the layoffs: 1. In a pretrial statement , 12 after referring to the excessive size of his Masonite inventory on January 14, Moss continued: I had been pressured by my higher -ups to close this Department down-I had stalled on doing so until this date-It had to be done and I suppose with the union letter I decided to do it right then and there . I had gone on longer building up the inventory than I should have and I just took the bull by the horns and did it that very day. 10 As already noted, LeClair had already been "discharged" by his foreman on Sep- tember 12 , whereas the others had on that date been given only a 1-day suspension However, Moss admitted that he did not know why LeClair had been singled out for discharge and, when all five men inquired about their status in the morning of the 13th, Moss treated them all alike, indicating that he had not yet reached a decision as to any of them and directing all of them, including LeClair , to return that afternoon It is thus clear that, although LeClair 's foreman termed his disciplinary action against LeClair a "discharge ," that circumstance did not affect Moss ' treatment of LeClair , but that Moss regarded all five eniplocees as in the same situation , and that the same considera- tions which prompted him to convert the suspension of the other four employees into a discharge caused him to refuse to rescind the "discharge " of LeClair . Accordingly, I reject the contention in Respondent ' s brief that LeClair should be found, in any event, to have been discharged for cause between September 12 and 19 ( when he returned to work). "The fifth , Alton Chase, was absent from work due to Illness from the beginning of -November to early January Accordingly , there was no reason for Moss to believe that he was involved in any union activity during that period. 'a This statement was in the form of a report , prepared by a Board agent, of an interview with Moss , in the presence of Respondent 's industrial relations director. This report was read and adopted by Moss. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, according to this statement, although Moss had been subjected to pressure prior to January 14 to curtail his Masonite operations because of excessive inventory, he ignored such pressure until he received the Union's bargaining demand, whereupon he "took the bull by the horns" and decided to close the Masonite department imme- diately. The foregoing constitutes, in effect, an admission that the Union's bargaining demand precipitated the layoffs of January 14, and the clear implication of the state- ment that Moss took "the bull by the horns" is that he acted on his own initiative, and the decision to shut down was entirely his own. 2. Under direct examination by Respondent, Moss acknowledged that prior to January 14 he had had no intention of curtailing operations and that it was the events of that day which prompted him to change his mind. Up to this point his testimony was consistent with his pretrial statement However, there were the following apparent discrepancies between his direct testimony for Respondent and his pretrial statement: 13 (a) Contrary to the pretrial statement, the decision to shut down the Masonite department was attributed not to the Union's letter, but only to excessive inventory. Indeed, in Moss' direct testimony, no reference was made to the Union's letter as a factor in the decision. (b) Such decision was alleged to have been reached, not (as the pretrial statement implies) immediately upon receipt of the Union's letter, but a few hours later, after consultation by telephone between Moss and Wilson, Respondent's vice president in Chicago. (c) The closing of the Masonite department was asserted by Moss to have been effected, not pursuant to a decision reached by Moss alone, but pursuant to, and' because of, an "explicit order" by Wilson to take "immediate steps" to that end. 3. After Moss' attention was drawn by General Counsel to the substance of the excerpt from his pretrial statement, quoted above, he attempted to reconcile his fore- going direct testimony with that statement by acknowledging that the Union's letter did cause him to accelerate the closing of the Masonite operation,14 but insisting that he would have closed that operation, in any event, on January 17, in view of Wilson's: instructions to take immediate action, in the alleged telephone conversation of Janu- ary 14. Thus, taking the view most favorable to Respondent,'5 Moss' final position was in effect that, but for the Union's letter, he would have delayed until January 17 carrying out Wilson's order to close down the Masonite department immediately, and it was the Union's letter that caused him to act precipitately. It is impossible to recon- cile this position with Moss' prior testimony, cited above, which makes no reference to the Union's letter as a factor in the layoffs, and attributes the abrupt closing of the Masonite department in the middle of the day solely to Wilson's directive to take immediate action. To that extent, therefore, his prior testimony must be deemed to have been repudiated by Moss. Respondent contends, however, that Moss' final version should be credited because of his candor in acknowledging that the Union's letter played some part in the layoffs, if only to the extent of accelerating them. However, by the same test, there is even more reason to credit his pretrial statement, which appears to be the most candid and least self-serving of the three versions, as it is clear from this statement, in conjunction with Moss' own admission at the hearing, noted above, that despite any pressure he may have been subjected to from above, and despite his excessive Masonite inventory, Moss had no intention of curtailing his Masonite operations, or at least had not fixed upon any date for doing so, until he received the Union's letter, and this event alone caused him to close the Masonite department immediately. The clear import of the pretrial statement, considered as a whole, is that but for the Union's letter Moss to That statement was not drawn to Moss' attention until he was cross-examined by General Counsel. 14 At this point , Respondent 's counsel conceded that to this limited extent Respondent had violated Section 8(a) (3) of the Act 15 Even in stating his final position, Moss "backed and filled" as to the role that Wilson's alleged instruction of January 14 played in the layoff action, at one point, as in his prior testimony, attributing the timing of the layoffs to Wilson's demand for im- mediate action ("I was under instruction of Mr. Wilson to act immediately and I took him at his word"), and elsewhere asserting that he did not mention Wilson's Instruc- tion in his pretrial statement because he did not regard it as important , and that such instruction played no part in the layoff action. THE GREIF BROS. COOPERAGE CORP., ETC. 527 would have continued his Masonite operations, at least until such time as further accumulation of inventory might eventually induce him to retrench.16 Respondent's effort to construe Moss' pretrial statement as an admission that the Union's letter merely accelerated the layoffs of January 14 is predicated on the credi- bility of Moss' testimony on redirect that the layoffs would have occurred in any event on January 17 in view of Wilson's insistence in the alleged telephone conversation upon immediate action. However, as already noted (footnote 15, above), elsewhere in his redirect testimony Moss made contradictory statements as to the signifi- cance of Wilson's role in the matter. Moreover, if one disregards these final self- contradictions, the most that can be made of Moss' testimony is that, because of the Union's letter, he decided to close the Masonite department, but that even if be had not done so, Wilson's reaction to the size of the Masonite inventory, as expressed on January 14, would have induced Moss to close down in any event by January 17. However, if, as I have found, Moss decided to close his Masonite operation because of the Union's letter and independently of any subsequent instructions from Wilson, Moss' version of his telephone conversation with Wilson becomes patently incredible.17 If one is to credit such version, Moss made no mention to Wilson of his decision to effect layoffs because of the Union's letter, even though the reason for Moss' call to Wilson was that very letter, and even though the conversation turned to the need for reducing the Masonite inventory, and Wilson ordered immediate action to that end. It defies belief that under all these circumstances Moss would have withheld from Wilson the fact that, as found above, Moss had already decided upon a step, prompted by the Union's letter, which would effectively solve the inventory problem- namely, the closing of the Masonite department.li If there was in fact a discussion between Moss and Wilson on January 14 regarding the Masonite department, it is far more likely that it took the form of a statement by Moss that he had decided to close the department and lay off three employees because of the Union's letter, thereby rendering redundant any instructions by Wilson to effect such layoffs for economic reasons. The credibility of Moss' account of his telephone call to Wilson is further impaired by his self-contradictory testimony about Wilson's reaction to Moss' report concerning the Union's letter. Although, according to Moss, the sole purpose of his call was to apprise Wilson of that letter, although Moss, as found above, had already decided to retrench because of that letter, and although Moss had no apparent difficulty in recalling other matters discussed in that call, he at first professed inability to recall what Wilson had said about the letter. However, under cross-examination his memory gradually revived, passing within a few moments from nonrecollection to certainty that Wilson had made an innocuous comment.19 is Even if it be assumed that it is now Respondent's contention that had there been no layoffs on January 14 the Masonite inventory would have accumulated by January 17 to such an extent as to force Moss to close the Masonite department on that date, in any event, the record does not support that contention. In fact, the record is clear that during the week of January 13 to 17 there was a substantial reduction in the Masonite inventory, for Moss admitted that on January 13 he received an order for 3,000 Masonite reels, representing 11/2 weeks' production, which he filled from inventory (thereby reducing his inventory by 30 percent). Moss acknowledged, moreover, that the size of his Masonite inventory on January 14 was not unprecedented. 17 Wilson did not testify although he was at the time of the hearing still in Respond- ent's employ. "If it be assumed to be the Respondent's position that the layoff decision was reached by Moss after, rather than before, the call to Wilson, the short answer Is that it strains credulity to suppose that If he had reached such decision after an order by Wilson to cut down the inventory, Moss would, as he did, attribute his layoff action to the Union's letter rather than to such order. 11 The relevant colloquy was as follows: Moss: I told him . . . that I had received a letter saying the Union was going to represent us. Well, I don't know what his reaction was to that ! Y t i ► y p Q. And you don't recall his response to that) A. I think he probably said he would get in touch with Mr. Bobula [Respondent's, industrial relations director]. Q. Do you now specifically recall he said that? A. Yes. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I do not credit Moss' final testimony that Wilson, in effect, ordered him on January 14 to curtail or discontinue his Masonite production immediately, and that, in view of such instruction, Moss would have terminated such production on January 17, for economic reasons, had he not already done so for discriminatory reasons. Accordingly, I find no support in the record for Respondent's position that the Union's letter merely accelerated by 3 days the timing of the layoffs. (2) The January 17 layoffs As already related, on January 17 Moss laid off Fitton, Goulet, and Pigeon in the plywood department. According to Moss, in his conversation with Wilson in the morning of January 14, the latter (in addition to ordering, as related above, the immediate shutdown of the Masonite department because of excessive inventory) remarked that the plant had lost $3,800 in 2 months, and that Respondent had just lost the General Electric account, which normally took about 25 percent of its plywood output, and advised Moss to consult with English, who was due to arrive at Worcester that afternoon, regarding what action to take to put the plant on a profitable basis. Moss added that he did consult that afternoon with English who counseled curtailment of plywood production in view of the loss of the General Electric account, and that Moss accordingly effected the foregoing layoffs on Janu- ary 17. English did not testify, although he was still in Respondent's employ at the time of the hearing. I have already refused to credit Moss' testimony as to that portion of his alleged telephone conversation with Wilson relating to the Masonite department . For reasons stated below, I also do not deem to be credible his account of Wilson's discussion of the plywood operations, and find rather that the curtailment of such operations was prompted by the same discriminatory considerations as had led to the shutdown of the Masonite department 3 days earlier 1. In connection with the January 17 layoffs, as in the case of the January 14 layoffs, Moss' pretrial statement makes no reference to the alleged conversation with Wilson on January 14. In fact, that statement, in explaining the plywood layoffs, contains the following rather obscure sentence: I was told by Charles English District Manager Hampton, [sic] New Jersey 20 had instructed me to get things in better shape. This appears to say that instructions to improve the plant 's profit position came from English or from his headquarters in Hampden, New Jersey, and significantly omits any reference to a similar instruction by Wilson. Under all the circumstances, Moss' failure to refer in his statement to his alleged consultation with Wilson is no more understandable in the case of the instant layoffs than in the case of the January 14 layoffs.21 2. Moss did not dispute Pigeon's testimony that on January 11 Moss told him that the loss of the General Electric account would be offset by new business and that there should not be "any layoff in the near future, if anything, a small cut in over- time." 22 I find, therefore, that on January 11 Moss felt that the situation created by the loss of the General Electric account could be dealt with, even if no new business materialized, by merely reducing overtime work. Moss failed to explain why he (or he and English) ultimately rejected this course and chose instead the foreseeably more costly 23 procedure of working longer hours with fewer men. 3. The timing of these layoffs in relation to the earlier layoffs, which were admittedly triggered by the Union 's letter , is a circumstance tending to indicate that 21 English's office was in Hampden, New Jersey. aLAs noted above, in the case of the Masonite layoffs, Moss attributed the omission to the fact that he did not deem Wilson's order important. as Moss laid the men off because of the Union's letter and not because of Wilson's order. However, even this explanation was not available in the case of the plywood layoffs, as Moss did not concede that the Union's letter was a factor therein, but contended at the hearing that the only factor was the pressure exerted upon him by Wilson and English to retrench. In its brief, Respondent attributed this remark to the desire of Moss to improve employee morale. However, in his testimony, Moss did not so characterize the January 11 statement. 23 At the hearing, Moss admitted that after January 17 the number of total overtime hours in the plant was as high as, or higher than, before. See General Counsel's Exhibit No. 15. THE GREIF BROS. COOPERAGE CORP., ETC. 529 the instant layoffs were for the same reason as the earlier ones 24 That Moss regarded all six layoffs in the same light is, moreover, confirmed by the fact that in mid- February Moss admittedly told the remaining employees that the six laid-off employ- ees would never return. Moss attempted at the hearing to explain this prediction by stating that he did not at that time foresee any prospect of sufficient new business to make up for the loss of the General Electric account. However, such pessimism in February regarding the effect of the loss of that account contrasts strangely with Moss' aforenoted optimism on January 11 as expressed to Pigeon, before receipt of the Union's letter. There is no evidence of any worsening in Respondent's economic position after January 11 such as would account for Moss' more pessimistic outlook. Moreover, apart from this unexplained reversal of his views, it is significant that Moss admitted that the volume of his orders had in the past fluctuated substantially, new accounts replacing at least in part those that had been lost. Accordingly, even assum- ing that, as Moss testified, he did not in February see any immediate 25 prospect of replacing all the business lost with the General Electric account, that circumstance does not suffice to explain why he flatly predicted that none of the laid-off employees would ever be recalled. While Moss subsequently apparently took the more extreme position that at the time of his foregoing prediction he could not foresee any new busi- ness at any time in the future that would require calling back even one employee, one would have to be more naive and inexperienced in business affairs than Moss appeared to be to believe that because there was no present prospect of new business none would ever materialize, even to the extent of requiring the addition of a single employee. Accordingly, I do not credit these explanations, and I conclude that Moss' prediction in February reflected the fact that all six employees had been laid off for reasons unrelated to any fluctuations in economic conditions-namely, their union activities-and that Moss was for that reason determined at that time 26 never to recall any of them. In view of all the foregoing, I find that whatever pressure he may have been sub- jected to by his superiors to curtail operations , Moss, as he admitted at the hearing, did not, prior to January 14, have any intention of reducing his work force, despite the loss of the General Electric account, but, as he told Pigeon on January 11, expected that such loss of business would necessitate, at the most, only a reduction in overtime , and that his decision between January 14 and 17 to lay off three more men was prompted by the same discriminatory considerations as motivated the lay- offs of January 14.27 It having been found that Respondent's decision to effect the six layoffs in January was precipitated by the Union's bargaining request, it follows that such layoffs were Z* Indeed , toward the close of his testimony Moss answered the following question in the affirmative : "The call from Mr. Wilson , the letter, and the visit from Mr. English motivated your layoffs of the 17th?" [Emphasis supplied.] By so answering , Moss seems to have admitted that the Union 's letter played a part in the January 17 layoffs, as well as the earlier ones. However, I do not rely on this seeming admission, as I am convinced from the context that it was not intentional. 'a At one point , Moss asserted that he could foresee no increase in business "for a month or two ," sufficient to offset the loss of the General Electric account. ZB The fact that Moss did several months later recall some of them, after acquiring two new accounts , does not suffice to vitiate this finding . This change in attitude is suf- ficiently accounted for by such intervening events as the filing of the instant charge and issuance of a complaint thereon, thereby posing a threat of backpay liability. in While Respondent operated with its reduced force until shortly before the instant hearing, the weight of this circumstance as proof of Respondent ' s economic motivation in making any of the layoffs must be evaluated in the light of the following considerations: (a) The issue here is not whether Respondent's action , viewed from hindsight, was economically justified, but whether such action was economically motivated at the time it was taken. The mere fact that Respondent did not find it necessary to replace or recall any of the laid-off employees for more than 3 months cannot , standing alone, establish economic motivation in the face of the cogent evidence, related above, as to what actually precipitated Moss' decision to reduce his force. (b) Moreover , it has been found that Moss had planned before January 14 to adjust to any decline in business by working less overtime with the same number of men. The fact that he chose instead to adopt the more costly procedure of incurring, as he admitted , the same or greater amount of premium time with fewer men tends , if any- thing, to support the General Counsel 's contention that factors other than economic considerations were here involved. 783-133-66-vol . 151---35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminatory, regardless of the method of selection employed. Thus, even if Moss did not know which, if any, of the six employees were union adherents and selected them for layoff solely on the basis of their relative ability or seniority, such layoffs would still be unlawful.28 It suffices that, as has been found, Moss intended his action as a reprisal for the employees' union activity; and the coercive effect of his action on the employees could not fail to be heightened by the coincidence in timing between such action and the receipt of the Union's letter, and by the further coinci- dence that the six employees selected for layoffs were the first ones to adhere to the Union, and that no nonunion employees were laid off 29 I find, therefore, that by the layoffs on January 14 and 17 Respondent violated Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent violated Section 8(a) (1) and (3) of the Act, it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent (1) on September 13, 1963, discriminatorily discharged Washburn, LeClair, Goulet, Pigeon, and Alton Chase, (2) on January 14, 1964, discriminatorily laid off Washburn, LeClair, and Hintlian, and (3) on Janu- ary 17 discriminatorily laid off Pigeon, Goulet, and Fitton. I will recommend that, to the extent it has not already done so,30 Respondent be required to offer the fore- going employees immediate reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges. It will also be recommended that Respondent be required to reimburse the fore- going employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by paying to them a sum of money equal to the amount they would normally have earned as wages from the date of their dis- charge or layoff to the date of Respondent's offer of reinstatement, less their net earnings during that period. Backpay shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Co., 90 NLRB 289, and interest at the rate of 6 pei cent per annum shall be added to net backpay, in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the violations found herein, particularly the discrimina- tory discharges, a potential threat of future violations exists which warrants a broad cease-and-desist provision. 28 Ellis and Watts Products , Inc., 130 NLRB 1216, 1220 , Emma Gilbert et at., d/b/a A. L. Gilbert Company, 110 NLRB 2067. 29 If it were necessary to make a finding on this point, the following factors are persuasive that the selections were based on union activity. (a) Included In the layoffs were all the employees involved in the concerted activities on September 13 (except for Alton Chase, who was on leave throughout the month of December). As already noted, Moss had suspected them of desiring to organize a union even before one was actually formed. They would therefore be the logical targets of suspicion when Moss learned on January 14 that a union had in fact been formed among the employees (b) Moss' remark to Washburn on January 14, related above, the admittedly dis- criminatory motivation for the January 14 layoffs, and Moss' prediction In February that the six would never return, as well as the fact that they represented the entire nucleus of the union movement, point to a selection on the basis of known or suspected union activity rather than work performance. so At the hearing, Goulet, among others, was offered reinstatement He at first asked for "a day or two" to consider the matter, but when asked whether he could give an immediate answer , declared that he could , and rejected the offer In his brief, Gen- eral Counsel contends that such offer should not be deemed to toll backpay, because Goulet was allegedly not given sufficient time to consider It. While I have grave doubt as to the merit of this contention , I do not pass on It, as the issue may best be resolved at the compliance stage of this proceeding. THE GREIF BROS. COOPERAGE CORP., ETC. 531 CONCLUSIONS OF LAW 1. By threatening employees with reprisals and discharging them for their union or other concerted activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 2. By laying off employees on January 14 and 17, 1964, for union activity, the Respondent has violated Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the entire record in the case and the foregoing findings of fact and conclu- sions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, The Greif Bros. Cooperage Corp. (Seymour & Peck Division), Worcester, Massachusetts, its officers, agents, succes- sors, and assigns, shall be required to: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or in any other labor organization, or any other concerted activities of its employees, by discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees that it will visit reprisals upon them because of their union, or other, concerted activities (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above- named Union or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right is affected by the pro- visos in Section 8(a) (3) of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) To the extent that it has not already done so, offer to Raymond Hintlian, Roger LeClair, Donald Washburn, Richard Fitton, Ronald Goulet, and Roger Pigeon immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, in the man- ner prescribed in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Make whole the said employees, together with Alton Chase, in the manner set forth in the section of said Decision entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its plant in Worcester , Massachusetts , copies of the attached notice marked "Appendix A." 31 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Respondent's represen- tative, be posted by the Respondent immediately upon receipt thereof, and main- tained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that such notices are not altered , defaced , or covered by any other material. (e) Notify the Regional Director for Region 1, in writing , within 20 days from the date of receipt of this Decision , what steps the Respondent has taken to com- ply herewith.32 If 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 Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "If 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 the Respondent has taken to comply herewith." 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor organization , or any other concerted activities of our employees , by discriminating against them in regard to their hire or ten- ure of employment or any term or condition of employment. WE WILL NOT threaten our employees with reprisals for union , or other, con- certed activities. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to form , join, or assist United Steelworkers of America , AFL-CIO, or any other labor organiza- tion , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a) (3) of the Act. To the extent that we have not already done so, WE WILL offer Raymond Hintlian , Roger LeClair , Donald Washburn , Richard Fitton, Ronald Goulet, and Roger Pigeon immediate and full reinstatement to their former or substan- tially equivalent positions , and make them whole , together with Alton Chase, for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become , remain , or refrain from becoming or remaining , members of United Steelworkers of America , AFL-CIO, or any other labor organization. THE GREIF BROS. COOPERAGE CORP. (SEYMOUR & PECK DIVISION), Employer. Dated------------------- By------------ -------------------------------( Representative ) ( Title) NoTE.-We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948 , as amended , after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, 24 School Street , Boston , Massachusetts , Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. Franke 's, Inc. and Hospital-Hotel -Motel , Restaurant Employees Union, Local 200, Hotel & Restaurant Employees and Bartend- ers International Union, AFL-CIO. Case No. 26-CA-1821. March 10, 1965 DECISION AND ORDER On December 7, 1964, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) and (5) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, 151 NLRB No. 62.