United Merchants and Manufacturers, Inc.

National Labor Relations Board - Board DecisionsApr 6, 1976

223 N.L.R.B. 689 (N.L.R.B. 1976)

UNITED MERCHANTS AND MANUFACTURERS, INC. United Merchants and Manufacturers , Inc. and Rose- mary P. Mendoza . Case 21-CA-13555 April 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On November 3, 1975, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief answering Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 2 and to adopt his recommended Order, as modified be- low.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, United Merchants and Manufacturers, Inc., Los Angeles, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified. 1. Substitute the following for paragraph 1: "1. Cease and desist from: ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board 's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. In the absence of exceptions thereto, we adopt pro forma the Administra- tive Law Judge 's finding that Respondent did not violate Sec. 8(a)(1) of the Act by its attorney 's interrogation of employees Dungca and Villaneuva. 2 In view of the Administrative Law Judge 's inadvertent failure to attach a Board notice to his Decision, Respondent shall be required to post the attached Notice to Employees in accordance with the Administrative Law Judge's recommendation. 3 Because the discharge of employees in reprisal for engaging in protected concerted activity strikes at the very root of employee rights safeguarded by Sec. 7 of the Act, we find that a broad order, requiring Respondent to cease and desist from infringing in any manner upon the rights guaranteed by Sec. 7 of the Act, is warranted . Versatube Corporation , 203 NLRB 456, 463 (1973). 689 "(a) Threatening to terminate and terminating the employment of employees who engage in protected, concerted activities for their mutual aid and protec- tion within the meaning of Section 7 of the Act. "(b) In any other manner interfering with, re- straining, or coercing our employees in the exercise of their rights under Section 7 of the Act." 2. Post the attached notice in accordance with the Administrative Law Judge's recommendations. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to terminate or termi- nate the employment of any of our employees who engage in protected, concerted activities for their mutual aid and protection within the meaning of Section 7 of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. WE WILL offer to Edgar Basallo, Ester Carin- gal, Lolita Deduyo-Navalta, Anita Dungca, Josefina Ereso, Clair Garcia, Thelma Goleco, Emma Lomboy, Linda Ortega, Amelia Sando- val, Myrna Solis, Julie Ungos, Lucy Valencia, Mercedes Vergara, and Bayani Villanueva im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of their April 8, 1975, terminations from employment, with interest. UNITED MERCHANTS AND MANUFACTURERS, INC. DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Administrative Law Judge: This matter was heard before me on August 6, 7, and 8, 1975, upon a charge filed on April 14, 1975, and a complaint, as amended, issued on May 28, 1975, alleging that the Re- spondent, United Merchants and Manufacturers, Inc., dis- charged 15 named employees and coercively interrogated employees in violation of Section 8(a)(1) of the Act. The Respondent's answer denied that it discharged the 15 223 NLRB No. 102 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD named employees or that it engaged in any unfair labor practices. The parties were given full opportunity at the hearing to introduce relevant evidence , to examine and cross-examine witnesses, and to argue orally . Briefs filed by the General Counsel and by the Respondent have been carefully con- sidered. Upon the entire record in this proceeding , and from my observation of the witnesses and their demeanor , I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The pleadings establish , and I find , that the Respondent is a New York corporation engaged in the manufacture and sale of textile goods with a facility located at 742 South Hill Street , Los Angeles , California . In the normal course and conduct of its business operations, Respondent annu- ally purchases and receives goods, supplies, and materials directly from suppliers located outside the State of Califor- nia valued in excess of $50,000, and is and has at all times material herein been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues On April 8, 1975, 15 of the Respondent's employees en- gaged in a brief work stoppage and then walked off the job to protest the discharge of two of their fellow employees. The General Counsel contends that the employees who en- gaged in the work stoppage and walked out were engaging in protected concerted activity and that the Respondent terminated them at the instant of their walkout , and there- by violated Section 8(axl) of the Act. The Respondent defends on the ground that the work stoppage was unpro- tected and also on the ground that it did not terminate the 15 employees but merely replaced them on the following day, April 9, 1975. B. The Course of Events It had been the practice for years of the approximate 35 to 40 office clerical employees, all Filipinos , in the coding section of the Respondent, to sign out the timecards of one or more fellow employees when work ended usually at 9 or 10 o'clock on the evening shift which began at 5 p.m. It was the practice of the supervisor to announce that work was ended for the night and he would tell the employees what quitting time to write on their timecards . This prac- tice of the employees in the coding section to sign out for one another was open and notorious and in full view of the chief clerks in that section, and because it had extended over such a long period of time , I find, based on the over- whelming credible testimony of seven of the employees called as witnesses by the General Counsel, that the Re- spondent was aware of this practice. It is also established without dispute by the testimony of the General Counsel's witnesses, and I find, that the signing out of other employ- ees' timecards was not intended to and did not cheat the Respondent out of any money or thing of value. The em- ployees in the coding section would enter the same quitting time as instructed by the supervisor, whether the employee made the entry on his own timecard or some other employee's timecard. On April 8, 1975, shortly after employee Rosemary Men- doza began her work in the coding section at 5 p.m., she was called by Supervisor Donald Beska into his office where he discharged her because, as she was told, she had "falsified a document"; namely that on the previous eve- ning, April 7, she had asked another employee, Aida Val- buena to "sign out" her timecard. Miss Mendoza told Mr. Beska that this was not falsification as she did not steal a minute of the Company's time . Mendoza told Beska she would not accept her termination and she returned to her desk to resume her work . Mr. Beska went to Mendoza's desk and took her work away from her and told her she was no longer connected with the Respondent . Other em- ployees overheard the conversation between Beska and Mendoza in Beska's office and observed Beska's conduct in removing the work from Mendoza. When Mendoza came out of Beska 's office to her desk, she asked Clarita Garcia if she heard the conversation in Beska's office . Garcia told Mendoza it was a "shock to her-it was unfair"-"it had been the practice." Garcia then spread the word to other employees in the coding section that "Rosemary Mendoza and Aida Valbuena had been fired." About nine employees in Garcia's group agreed that they would ask for a chance for the two dis- charged employees because "it was unfair." Mendoza told Beska that she wanted to talk to Mr. Wronski I and Beska told her to go ahead. Wronski upheld Beska's decision to discharge Mendoza, who then returned to the office where , Mendoza testified , "everybody was standing." When Garcia heard Mendoza tell Beska that she wanted to see Mr . Wronski, Garcia told the people in her group that before appealing to Beska to retract the discharge, they should wait, because.Mr. Wronski might also give the two discharged employees another chance. The other peo- ple agreed to this. Garcia testified credibly that in the meantime , while the employees waited on what Wronski would do on Mendoza's appeal to him, they continued working "while they waited for Rosemary [Mendoza]." When Rosemary Mendoza returned from Wronski's of- fice and told them her discharge was final , Garcia was se- lected by the group to "appeal to Beska-to show him it is very unfair." Speaking for the group, Garcia told Beska that the em- ployees wanted the Respondent to give the two discharged employees a chance, "because the termination was very unjust-because we were doing it also [signing out for one another] every night." Beska replied, "No it is final." Gar- 1 Wronski holds the position of accounts receivable manager and was Beska's immediate superior. In this connection it is noted that Beska had been employed by the Respondent in his supervisor's position only since February 1975 , and it would appear that his unannounced policy on signing out differed from that of previous supervision. UNITED MERCHANTS AND MANUFACTURERS, INC. cia then told Beska that the group wanted to see Wronski. Beska then went to Wronski's office and shortly returned and told Garcia that Wronski did not want to see the whole group. Garcia replied, "how come-we are working as a group-we are appealing as a group." Garcia said that she would be the one to talk for the group-she said, "we want to show Mr. Wronski that everybody is appealing." Beska then went back to see Wronski again and upon his return told the employees that they could see Wronski one by one, that they were hired individually and that Wronski would see them individually. Beska ordered the group to go back to work, and told them they were paid to work, not to stand . Most of the group ignored Beska 's order. The group asked Garcia to go in first to see Wronski. In Wronski's office, Garcia told Wronski that she felt bad about the termination of Rosemary-that there might be a walkout. Garcia also complained about the new supervisor ( Beska). Garcia testified credibly that she told Wronski that Aida and Rosemary need a chance to go back to work-their termination was unjust. Wronski replied, according to Garcia's credible testimony, that it was the policy of the Company to fire employees if they let others sign out their timecards. Garcia then pointed out to Wronski that all the employees go home at the same time-that the two dis- charged employees did not steal anything from the Compa- ny. According to Garcia's credible testimony, Wronski said, "you are not affected, why don't you go back to work." During the discussion, Garcia informed Wronski that the employees were discussing the possibility of a walkout. Then, according to Garcia's credible testimony, Wronski asked her if she would go out with the group and she replied that she didn't know. At this point, Beska en- tered Wronski's office while Garcia was still there. Garcia credibly testified, and I find, that Wronski told Beska, "Take the cards of those who walk out and terminate them." 2 At this point Garcia left Wronski's office. Garcia returned to the employee group and told them "it was final-there would be no use going in there one by one." She suggested that the employees take a break to discuss what final decision should be made as to their course of action. Garcia then asked Beska for a break. Bes- ka agreed to this but told the people the time spent in the break would be deducted from their pay. The employees agreed. All of the Filipino employees, in the coding section num- bering about 35, went to the cafeteria to discuss the prob- lem. Garcia told the employees about her conversation with Wronski. She told them, "Let's still show them what they are doing to Rosemary and Aida is unfair. Let's just walk out tonight and then come back tomorrow." While the people were in the cafeteria taking the break agreed to by Beska, Beska entered the cafeteria and told them the breaktime would not be deducted from their pay. At this time, according to Garcia's credible testimony cor- roborated by several other witnesses, "we had already fi- nalized that we would walk out." All of the 35 employees 2I do not credit Wronski's denial that he instructed Beska to terminate those employees who walked out. All of the circumstances which I will discuss later herein convince me that Beska was authorized to terminate the employees who walked out. 691 present in the cafeteria except 1 agreed to walk out that night and to return to work the following evening. Shortly after Beska left the cafeteria, the employees started gather- ing their purses and personal effects preparatory to walk- ing out. As some of the employees in the group started to leave for the elevator, according to the credible testimony of Garcia, substantially corroborated by six other employee witnesses , Beska kept repeating to them that once they walked out they would be terminated and "don't come back." The 15 employees named in the complaint were the only employees to walk out. It is reasonable to conclude, and it appears from the record, that notwithstanding the decision to walk out reached in the cafeteria, Beska's threats to terminate those who walked out frightened many who then decided to remain at work rather than walk out 3 After they reached their homes, a number of employees contacted each other by phone and agreed that they would go to the building where they worked on the following eve- ning and that Anita Dungca, who they agreed was a very good worker, would enter the office alone to return to work. On the following evening, April 9, Dungca returned to the office at about 4:15 p.m. and went directly to Beska 's office. Dungca credibly testified that she asked Beska if she could work just individually-Beska replied, "No, he was sorry" and he showed Dungca the list of names of those who walked out with Dungca the night before. Dungca credibly testified that Beska told her he was very sorry, but that effective last night, April 8, she was terminated because she was one of the group that walked out. Beska told Dungca he was sorry, but it was an order from Mr. Wronski. Dungca then left the building and waited outside for the other employees and saw about 9 or 10 of them in front of the building. She told the employees that since Beska did not let her work, and had told her that she had been termi- nated last night (April 8), there was no use of the others coming back, telling them "you are terminated too." Dungca told the others that Beska had shown her the list of names of those who walked out, so there was no use com- ing back .4 C. Analysis and Conclusionary Findings From the time that Rosemary Mendoza and Aida Val- buena were discharged by Beska and their discharge up- held by Wronski, it clearly appears that the emotions aroused in the other employees in the coding section and their group action to persuade the Respondent to withdraw Rosemary's and Aida's discharges resulted in group discus- sions and a cessation of work while some employees stood up at their desks or sat on them while discussing the matter or awaiting the result of employee conferences with Beska 3 In view of the overwhelming testimony of the employees presented by the General Counsel that Beska repeatedly warned employees that those who left would be terminated, I do not credit Beska's testimony that he told them that if they walked out and didn't return to work, they were risking their jobs. In this connection, it is noted that Beska testified he was not sure what words he used. Dungca and three other employees were subsequently rehired by the Respondent some time on or before June 30, 1975, and at the time of the hearing in this matter, Dungca was still employed by the Respondent. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Wronski . This action I find was spontaneous concert- ed activity fully within the protection of Section 7 of the Act. This conduct lasting about 25 minutes prompted Bes- ka to tell them to get back to work . Subsequently, it is noted that Beska , with Wronski's approval, granted the group a break "to further discuss the problem ." The evi- dence is clear that the termination of the 15 employees on April 8 was based solely on their walkout , and was not based on the temporary work stoppage which I find , never- theless, was as much protected by Section 7 as the walkout itself. See American Truck Stop, Inc., 218 NLRB 1038; Pep- si-Cola Bottling Co. of Miami, Inc., 186 NLRB 477 (1970); Cone Mills Corp., 169 NLRB 449,67 LRRM 2976 (1968); Leprino Cheese Co., 424 F.2d 184 (C.A. 10, 1970), enfg. 170 NLRB 601; Pioneer Plastics Corp., 379 F.2d 301 (C.A. 1, 1967), enfg. 159 NLRB 1052; Serv-Air, Inc., 401 F.2d 363 (C.A. 10, 1968), enfg. 162 NLRB 1369; N.LR.B. v. Ken- nametal, Inc., 182 F.2d 817 (C.A. 3); Union Electric Co., 219 NLRB 1081; Golay & Co., Inc., 156 NLRB 1252 (1966). The brief work stoppage during direct negotiations of the employees' grievance with management cannot, as con- tended by the Respondent , be analygized to the sitdown strike that was condemned as illegal in N.LR.B. v. Fansteel Metallurgical Corp., 306 U.S. 240, where it appeared that the striking employees seized the factory of their employer and, without authority of any kind , evicted their foremen and barricaded the doors , denying the righful owner ad- mission to his own property. See also Pepsi-Cola Bottling Co. of Miami, Inc., 186 NLRB 477 (1970) and N.LR.B. v. Kennameta4 Inc., supra, which support my finding that the temporary work stoppage was protected. Even though it was the intention of the 15 employees to walk out only for that evening to protest the discharge of Mendoza and Valbuena, and to return to work the follow- ing evening, the walkout of April 8 was fully protected under Section 7 of the Act. Leprino Cheese Co., 424 F.2d 184 (C.A. 10, 1970), enfg. 170 NLRB 601; First National Bank of Omaha v . N.LR.B., 413 F.2d 921, 925 (C.A. 8, 1969); N.LR.B. v. Washington Aluminum Co., 370 U.S. 9 (1962). Contrary to the position of the Respondent that Beska, an admitted supervisor within the meaning of the Act, was nevertheless without authority to terminate the employ- ment of the 15 strikers, I find that Beska acted within the scope of his authority in notifying the employees that they would be terminated if they walked out on the evening of April 8.5 Circumstances which persuade me to this conclu- sion are : ( 1) that Respondent's management at no time repudiated Beska's terminations of Rosemary Mendoza and Aida Valbuena on April 8 which led to the walkout on that same date, nor did management repudiate Beska's ter- mination of the 15 employees who walked out; (2) that Wronski , Beska's immediate superior, expressly directed Beska in Garcia's presence on the evening of April 8 to "take the cards of those who walk out and terminate them"; and (3) that on the evening following the April 8 5The testimony overwhelmingly shows that Beska kept repeating that those employees who walked out would be terminated . This threat caused many of the employees who had agreed to walk out in the cafeteria meeting to change their minds and not join the walkout. walkout, Beska refused to permit Dungca to return to work, telling her that she had been terminated because she was one of the group that walked out. Beska also told Dungca that "he was sorry but it was an order from Mr. Wronski. " 6 Respondent's contention that the 15 employees were permanently replaced and not terminated does not impress me. I am satisfied that Respondent's action was vindictive and in reprisal against these 15 Filipino employees who dared to press a meritorious grievance with concert of ac- tion. These employees were well educated and well quali- fied to perform the office clerical work assigned to them in the coding section.7 Yet the Respondent with undue haste replaced these 15 highly qualified and experienced employ- ees with 25 new and untried employees on April 9, notwith- standing the fact that they intended to return to work that evening. The fact that the Respondent carried these 15 terminat- ed employees on the April payroll does not persuade me that the 15 were not terminated on April 8. In this connec- tion, it is noted that the April payroll was prepared in May, several weeks after the unfair labor practice charge filed in this case on April 14, 1975. The charge put the Respond- nent on notice of the claimed violation. Payroll records prepared after the fact to bolster the Respondent's position lack that degree of reliability which is carried by the oppos- ing and overwhelming testimony of the General Counsel's witnesses to the effect that those employees who walked out on April 8 were terminated and told not to return to work. It is significant that the Respondent was unable to present even one employee witness of the 20 who changed their minds and did not walk out to contradict the General Counsel's witnesses concerning the remarks made by Beska to the effect that those employees who walked out were to be terminated. This failure of the Respondent to produce even one rank-and-file employee witness to contradict the General Counsel's witnesses is especially noteworthy in view of the fact that about 20 of the approximate 35 em- ployees who attended the April 8 cafeteria meeting changed their minds and did not walk out in the face of Beska's admonition that those who walked out were termi- nated. Surely Respondent's counsel, in the course of his most thorough investigation, must have interviewed some of these 20.8 In sum, I find that on the evening of April 8, 1975, the 15 6 This finding is based on the credible testimony of Anita Dungca, con- sidered one of the Respondent 's best employees, who had been employed by the Respondent 5 years and who was eventually rehired several months after her termination on April 8. Dungca 's current employment by the Re- spondent reinforces the credibility of her testimony against the Respondent. Federal Envelope Company, 147 NLRB 1030, 1036 (1964); Bush Hog, Inc., 161 NLRB 1575, 1580 ( 1966). 7 For example , Clarita Garcia had been employed by the Respondent 6 years ; Anita Dungca had 15 years of schooling and had been employed by the Respondnet 5 years; Erlinda Ortega was employed by the Respondent 4-1/2 years; Emma Lomboy was employed by the Respondent 2-1/2 years; Lucita Valencia employed 1-1/2 years; Bayani Villanueva employed by Re- spondent 4 years. All had been schooled in English in the Phillipines which is the medium of instruction from the elementary grades through college. 9 1 do not credit Chief Clerk Linda Holmes' testimony that, at the time of the walkout, Beska said "go back to work, the work has to be done"-and "sign out and leave ." It is incongruous that Beska would simultaneously tell the employees to work and to leave . Even Beska himself gives a much different version of what was said. UNITED MERCHANTS AND MANUFACTURERS, INC. employees walked out to protest the unjust discharges of 2 fellow employees ; the Respondent terminated these 15 em- ployees on April 8 because they walked out; by walking out to protest the discharges of the 2 fellow employees, the 15 were engaging in concerted activities for their mutual aid and protection within the meaning of Section 7 of the Act; and by terminating the 15 employees on April 8, the Respondent coerced and restrained employees and en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. Although the terminations of the 15 were not based on the brief work stoppage which preceded the walkout , I find , nevertheless , that this brief work stop- page by most employees in the coding section was also concerted activity within the protection of Section 7 of the Act. The Pretrial Interrogation of Employees by Respondent's Counsel At the outset of the hearing in this matter which began on August 6, 1975, the General Counsel amended the com- plaint to allege that Respondent by its counsel, Mr. Clark, violated Section 8(a)(1) of the Act by Clark's coercively interrogating employees on August 5, 1975. In support of his contention , counsel for the General Counsel elicited testimony from two of the employees who had walked out on April 8 but who had since been rehired by the Respon- dent. Anita Dungca testified that shortly after she reported for work on August 5, 1975 , she was taken by her boss to a room and introduced to Respondent 's attorney, Mr. Clark. Dungca testified that Mr. Clark introduced himself and then asked if he could get some information from her. Dungca was agreeable and then Clark asked what hap- pened on the night of April 8. When asked by counsel for the General Counsel, "Did he [meaning Clark] tell you that there would be no reprisals for you talking to him, that nothing would happen to you if you talked to him." Dungca replied, "nothing was told; he didn't tell me any- thing." When asked, "Did he tell you that you didn't have to talk to him if you didn't want to?" Dungca replied, "He didn' t tell me nothing ." On cross-examination , Dungca agreed that Mr. Clark did not mistreat her the previous evening when he interviewed her, that he was pleasant, and she did not get the idea that the Respondent would take action against her if she did not cooperate . Dungca agreed that Attorney Clark told her that he would appreciate it if she would cooperate and answer his questions ; however, she denied that Clark told her that she was not required to give the information . Dungca also denied that Clark told her that the Respondent would not take any action with regard to how she answered Clark's questions . Dungca agreed , however, that she did not feel that Clark was trying to pressure her or that he was in any manner threatening her or her job. Bayani Villanueva , having been returned to work several months after his termination on April 8, was likewise inter- viewed by Attorney Clark on the evening of August 5, 1975. Mr. Wronski ushered Villanueva into an enclosed office where he met Mr. Clark who introduced himself. Villanueva testified that Clark told him that he was repre- 693 senting the Respondent "for the trial tomorrow, and I would like to have some information , or some facts, from you, if you don't mind." Villanueva said, "Okay." Villa- nueva testified that Clark then asked him if he was one of those who had been given a subpena , and when Villanueva replied , "yes," Clark asked , "what do you recall on the night of April 8th," and Villanueva told him . Villanueva testified that Clark showed him "the list of names of those that had been terminated-and he showed it to me, for me to tell him the names of those who were getting a subpoe- na." On cross-examination by Mr. Clark, Villanueva agreed that he did not feel in any way threatened by Clark and that Clark was "very nice ." Villanueva denied, among other things , that Clark told him that his job would not be affected , whether he talked or not ; and that he was not required to talk . Villanueva did admit that Clark , in asking for the information , said to Villanueva, "I hope you don't mind," and Villanueva answered , "No, I don 't mind." Vil- lanueva agreed that he had no objection to talking to Clark on August 5. Subsequently in the cross -examination, Vil- lanueva conceded that although he did not recall that Clark told him that even if he did not talk to Clark, that would have no bearing on his job , he could have said it but he did not remember it. Mr. Clark testified that in the course of his prehearing investigation of this case , he suggested to Respondent's controller, Mr. Stuart Smith , that he wanted to interview the four employees whom the Respondent had returned to work subsequent to the April 8 walkout . When Mr. Smith demurred to this procedure , Mr. Clark assured him it was permissible and that he had done this in many cases in the past. Mr. Clark testified that Mr. Wronski was present dur- ing all employee interviews conducted by himself with the exception of the first witness interviewed ; namely, Anita Dungca . Mr. Clark testified that his procedure in inter- viewing these four people , inclusive of Dungca and Villa- nueva , was routine and followed his past practice in the many instances he has interviewed employee witnesses. Clark testified that he interviewed the four employees indi- vidually, first introducing himself as an attorney for the Respondent in an unfair labor practice case scheduled to go to trial on the following day, then telling them that he was seeking information if they wanted to talk to him, that they were not required to talk if they didn't want to, and their job would not be affected . They were asked if they had any objection to talking with him and each of them said "no." Mr . Clark testified that in the course of the in- terviews with the four people , including Dungca and Vil- lanueva, he did not get the impression that they were un- comfortable or in the least way coerced-that they seemed very relaxed, and that he tried to make it as pleasant for them as he could. Mr. Clark testified that during the course of the discussion , he asked each of them if they had in any way been mistreated by the Respondent , and each told him they had not. Mr. Wronski 's testimony concerning Mr. Clark 's prelim- inary remarks in the course of his interviews with the peo- ple substantially corroborates Clark with the exception of Clark's testimony that the interviewed employees were told that they were not required to talk if they didn't want to, 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and their jobs would not be affected. In respect to this last point, Wronski's testimony as elic- ited by Mr. Clark was as follows: Q. (By Mr. Clark) Was there anything said with re- spect to it having no impact on your job. A. (By Wronski) I don't recall your choice of words, but-and I don't recall it for all four people, but I do recall, and you may have said it for all four people, but I don't know, but I do recall that in one case with Mr. Villanueva , that he seemed to be some- what hesitant when he first walked in, like he didn't know what was happening. You specifically said to him. Q. Okay-Do you-strike that. Mr. Clark: That is all I have at this time, your Hon- or. Analysis and Conclusionary Finding In Johnnie's Poultry Co., 146 NLRB 770, 774-775 (1964), the Board held that the respondent had gone beyond the permissible limits in the interrogation of employees in preparation of its defense to unfair labor practice charges in the event a complaint issued on the pending charges which the Board was then investigating. The Board held that the respondent's interrogation of employees constitut- ed interference, restraint, and coercion of employees in the exercise of their Section 7 rights and therefore violated Sec- tion 8(a)(l) of the Act. The Board stated its policies con- cerning such pretrial investigation by the respondent as fol- lows: Thus, the employer must communicate to the employ- ee the purpose of the questioning , assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organi- zation and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose of prying into other union matters, eliciting information concerning an employee 's subjec- tive state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. The Board's policy stated in Johnnie's Poultry, supra, has found substantial support from courts of appeals . Thus in Consolidated Rendering Co., d/b /a Burlington Rendering Co., 386 F.2d 699 (C.A. 2, 1967), an employer was held to have violated the Act by interrogating employees for the purpose of determining the union's majority status without advising employees of the employer 's reason for question- ing. In Heck's, Inc., 387 F.2d 65 (C.A. 4, 1967), it was held that the employer violated the Act by polling its employees to determine if the union had attained a majority, without giving assurances that there would be no reprisals against employees regardless of their answers , and in Neuhoff Bros. Packers, Inc., 375 F.2d 372 (C.A. 5, 1967), the court held that the Board was warranted in finding that the employer violated the Act through the action of its attorney in inter- viewing employees as part of the investigation of charges, since circumstances justified the Board in requiring the em- ployer to communicate the purpose of the questioning, to assure employees against reprisals, and to obtain voluntary participation, and interviews were conducted in the pres- ence of management representatives without the employees having been advised of the purpose of the interviews or of their right to remain silent. [Emphasis supplied.] On reviewing the testimony of Dungca, Villanueva, Clark, and Wronski relating to the pretrial interviews of Dungca and Villanueva, I have concluded that Clark did not explicitly tell Dungca and Villanueva that they were not required to talk to him and that they could leave the conference room without reprisal from the Respondent. However, the entire tenor of the testimony by Dungca and Villanueva shows that they gave their information to Clark freely and voluntarily without feeling coerced; that Clark was pleasant; and they had no feeling that the Respondent would take reprisals against them if they did not cooperate. It seems obvious that any employee claimant against an employer, such as Dungca and Villanueva occupied in this case, by the very nature of their position as a claimant, would naturally feel some degree of coercion in being sum- moned by the Respondent to be interviewed on the day before the trial by Respondent's counsel. This inherent fear was demonstrated by Villanueva's testimony concerning his reluctance to tell Attorney Clark the names of those 15 employees who, Mr. Clark inquired, had been subpenaed by the General Counsel. It is clear, however, that the Re- spondent may legitimately interrogate an employee in a noncoercive atmosphere within the limits announced by the Board in Johnnie's Poultry, supra. While I am satisfied that Mr. Clark did not emphasize to Dungca or Villanueva that they did not have to talk to him and could leave the room without fear of reprisal, I find that inquiry was made whether they had any "objection" to talking or did they "mind" talking to Clark, and both said, "no." Note is made of the fact that Mr. Stuart Smith, the Respondent's control- ler, questioned the permissibility of interviewing these four employees who occupied the position of claimants in this case , and that Attorney Clark quieted his doubts with as- surances that it was proper. Under all of the circumstances, namely (1) that the unfair labor practice is charged against the Respondent and not against Clark who in fact initiated the interrogation notwithstanding the feeling of Respondent's management that it might be improper, (2) the testimony of Dungca and Villanueva that they did not feel intimidated by the interview, and (3) that there was reasonable but not strict compliance with the standards set forth in Johnnie's Poultry, supra, I do not find that Clark's interrogation of Dungca and Villanueva constituted a vio- lation of Section 8(a)(1) of the Act by the Respondent. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among UNITED MERCHANTS AND MANUFACTURERS, INC. the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices warranting a remedial order, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent, in violation of Section 8(a)(1) of the Act, interfered with, restrained, and coerced the 15 employees, named hereinafter in the Order, in the exercise of their Section 7 rights for their mutual aid and protection by terminating them on April 8, 1975, the recommended Order shall provide that the Re- spondent offer the 15 employees immediate reinstatement to their jobs, if they have not already done so, and make them whole for loss of earnings within the meaning and in accord with the Board's decision in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and conclusions, and upon the entire record in this case, I hereby make the following: CONCLUSIONS OF LAW 1. The Respondent, United Merchants and Manufactur- ers, Inc ., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By the brief work stoppage of employees in the cod- ing section on the evening of April 8, 1975, such employees engaged in protected concerted activities for their mutual aid and protection within the meaning of Section 7 of the Act. 3. By the April 8, 1975, walkout of the 15 employees hereinafter named in the Order, such employees engaged in protected, concerted activities for their mutual aid and pro- tection within the meaning of Section 7 of the Act. 4. By terminating the employment of the 15 employees on April 8, 1975, because they walked out on that date, the Respondent interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed by Section 7 of the Act, and the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The Respondent did not violate Section 8(a)(1) of the Act by reason of its attorney's pretrial interrogation of em- ployees Dungca and Villanueva on August 5, 1975. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, 695 and the entire record in this proceeding , and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDERS The Respondent, United Merchants and Manufacturers, Inc., shall: 1. Cease and desist from threatening to terminate and terminating the employment of employees who engage in protected, concerted activities for their mutual aid and pro- tection within the meaning of Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Edgar Basallo , Ester Caringal, Lolita Dedu- yo-Navalta, Anita Dungca, Josefina Ereso, Claire Garcia, Thelma Goleco, Emma Lomboy, Linda Ortega, Amelia Sandoval, Myrna Solis, Julie Ungos, Lucy Valencia, Mer- cedes Vergara, and Bayani Villanueva immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions with- out prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of their April 8, 1975, terminations from employ- ment with interest at the rate of 6 percent, in the manner described in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of the recommended Order. (c) Post at Respondent's offices at Los Angeles, Califor- nia, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. 9In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading."Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."