Crest Door Co.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 648 (N.L.R.B. 1975)

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crest Door Company and Retail Clerks ' Union, Local
373 Retail Clerks International Association, AFLr-
CIO; Teamsters Local 490, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case 20-CA-9096
July 29, 1975
DECISION AND ORDER
On October 30, 1974, Administrative Law Judge E.
Don Wilson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief. The General Counsel filed an an-
swering brief and letter.
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 2 of the Administrative Law Judge and
to adopt his recommended Order, as modified here-
in.
We do not adopt the Administrative Law Judge's
recommended Order to the extent that it provides
that Respondent resume night-shift work. Respon-
dent had operated night shift for less than 2 months.
When it discontinued the shift, it transferred all
night-shift employees to daytime work. No employee
was terminated and none suffered any loss in pay.
Employees in this plant needed no special skills, job
assignments were interchangeable , and the same type
of work was performed on both shifts.; Moreover,
Respondent has moved part of its operation to its
Riverside plant, more than 400 miles distant.4 Re-
sumption of nighttime work could thus entail finan-
cial hardship to Respondent . In these circumstances,
' We correct a reference in the paragraph following In. 16 as it appears in
the body of the Decision (sec. III , Q. The paragraph gives an account of a
conversation between Respondent 's president Katz and employee Abbott
on April 18, 1974. The record shows that the conversation was overheard by
em2ployee Walters , and not Werner as reported.
We do not affirm the conclusion of Administrative Law Judge that
Respondent's foreman Pitz' March 1974 repetition to employees of Presi-
dent Katz' statements about plant closure or reducing operations violated
Sec. 8 (axl). Counsel for the General Counsel expressly stated at the hearing
that he was not alleging this conduct as an unfair labor practice , and the
Administrative Law Judge stated that therefore he would not find it. Ac-
cordingly , we do not find it. However , this should not be taken to mean that
the Administrative Law Judge could not rely on these threats-as he did-
together with his other 8(axl) findings to show Respondent's union animus
motivating its 8(a)(3) conduct, particularly in light of the direct threats by
Katz himself of plant closure and reduction of operations.
3 The only testimony respecting the comparative merit of the night shift
was that of employee Darrell Walters . He testified that he volunteered to
work the night shift because the plant was "awful warm" and "just to get
away from Mr. Katz [Respondent 's president) was one of the biggest rea-
sons." The reasons given by Walters for preferring night work are hardly
considerations that would weigh heavily in the Board 's shaping an order to
redress any injury done to employees . The General Counsel states, in his
letter to the Board, that the work performed on the night shift was "the
same type work" as that performed on the day shift.
4 Standard Highway Mileage Guide, Rand McNally & Co. (1973).
where the employees have not been deprived of work
or pay, we find that an order to Respondent to re-
sume the night shift is inappropriate.
In situations where employees have lost their jobs
due to an employer's discriminatory change in its
method of doing business and undue financial-hard-
ship would not result to the employer, the Board has
ordered the employer to return to its old way of
doing business. The Board has been reluctant to or-
der this, however, and it has not done so, where em-
ployees have not lost work or pay or resumption of
the discontinued operations could be unduly burden-
some to the employer.5 Our molding of the remedy
suits the needs of this case and is consonant with
settled precedent. Moreover, since the Joint Peti-
tioners were certified, the desirability or economic
necesssity for reinstitution of the night shift can best
be resolved by resort of the parties to the collective-
bargaining process.
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 Crest
Door Company, Vallejo, California, its officers,
agents , successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
Delete paragraph 2(d) of the recommended Order
and reletter subsequent paragraphs accordingly.
MEMBERS FANNING and JENKINS, concurring and dis-
senting in part:
We agree with our colleagues in all respects except
for their disposition of that portion of the recom-
mended remedy ordering the reinstatement of the
Respondent's night shift. In our view, the appropri-
ateness of such an order is amply demonstrated in
the circumstances of this case, and we are not satis-
fied with our colleagues' reasons for denying it.
We agree that the Respondent abruptly terminated
the night shift in direct response to the Union's suc-
cessful campaign. Indeed, shortly after the ballots
were counted on election day, President Katz sud-
denly announced that the night shift would be termi-
nated because the "Union was coming in." More-
s Howmet Corporation, 197 NLRB 471, 487 (1972 ); Weisman 's Furniture
and Appliances, Inc., 187 NLRB 670, 677 (1971); Rodney Metals, Inc.. 160
NLRB 1419, 1420-21 (1966); Garwin Corporation, SAgaro, Inc., 153 NLRB
664,665 (1965), enfd . as modified 374 F.2d 295 (C.A.D C.), cert . denied 387
U.S. 942 ( 1967), on remand 169 NLRB 1030 (1968 ); Morrison Cafeterias
Consolidated, Inc., 148 NLRB 139, 148 (1964), and 177 NLRB 591, 597
(1969); Square Binding and Ruling Co ., Inc., 146 NLRB 206 (1964). See also
Fibreboard Paper Products Corporation v. N.L R.B., 379 U .S. 203, 216, In. 10
(1964).
{
219 NLRB No. 96
CREST DOOR COMPANY
over , we agree that this and other unlawful activity
(including the discriminatory discharges of 20 per-
cent of the employees in the unit) was taken without
"any economic justification ." In these circumstances,
it is well settled that the Board , "having found a vio-
lation, must issue a remedial order ." International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America v . N.L.R.B., 427 F.2d
1330, 1332-33 (C.A. 6, 1970). See also United Steel-
workers of America, AFL-CIO v. N.L.R.B., 386 F.2d
981, 983 (C.A.D.C., 1967); International Woodwork-
ers of America, Local 3-10 v. N. L. R. B., 380 F .2d 628,
630-631 (C.A.D.C., 1967). Here , as the Administra-
tive Law Judge recommended , the normal remedy
requires the reinstatement of the night shift .6 The
right of the employees to return to their former jobs
(and to nightwork rather than daywork if they
worked at night before the Respondent 's miscon-
duct), and the Respondent 's obligation to reinstate
them in those jobs, is not reduced or eliminated
merely because the discriminatory deprival of work
embraced the entire shift rather than only a few em-
ployees on the shift . Our colleagues are allowing Re-
spondent to escape the usual and complete remedy
solely because its violations were sweepingly broad,
rather than limited to one or a few individuals.
Yet the majority, claiming that it is "molding the
remedy" to meet the need , rejects this appropriate
remedy . And for what reason? According to our col-
leagues the employees transferred to daytime work
suffered not a whit of cognizable harm while the Re-
spondent , if ordered to reinstate the night shift, could
face financial hardship.
We find it disconcerting in the extreme that our
colleagues ' solicitude for a wrongdoer is coupled in
this case with indifference to the adverse conse-
quences that could befall employees if this Board
fails to remedy fully the Respondent 's misconduct.
Thus, for example, it is a commonplace of contempo-
rary life that several working members of a family
will seek, for a variety of reasons , to stagger their
respective working hours . In other cases , employees
may have to work the night shift in order to work at
another job during the day. Such considerations may
well have motivated employees of this Respondent to
work the night shift .' To conclude, as our colleagues
apparently would , that this Board 's failure to order
Respondent to reinstate the night shift will have no
adverse effect on such employees is speculative at
best , and in fact ignores those industrial realities
which our putative expertise concerns.
Finally, we note and reject the majority 's sugges-
tion that the question of reinstating the night shift
can best be left to the collective -bargaining process.
We see no justification for shirking our statutory re-
649
sponsibility to remedy this Respondent's misconduct
in accordance with our own precedent. Moreover, we
do not see how collective bargaining is facilitated by
additionally burdening it with a responsibility which,
by statute, is ours to bear in the first instance.
6 See Les Schwab Tire Centers, Inc, 172 NLRB 164, 170 (1968); Trey
Packing, Inc., 172 NLRB 291 (1968); see also Bruce E. Kronenberger and
Herbert Schoenbrod d/b/a American Needle & Novelty Company, 206 NLRB
534 (1973); George Lithograph Company, 204 NLRB 431, 432 (1973); Jack•
son Farmers, Inc v. N.L R.B, 457 F.2d 516 (C.A. 10, 1972) Accord- Fibre-
board Paper Products Corp, v. N L. R B., 379 U.S. 203 (1964).
7 Nor, of course , are these the only legitimate considerations that could
make night-shift work desirable or necessary to employees.
DECISION
STATEMENT OF THE CASE
E. DON WILSON, Administrative Law Judge: Based on a
charge filed by Retail Clerks Local 373, and Teamsters
Local 490, herein the Unions or Union, on April 10, 1974,1
the Regional Director for Region 20 of the National Labor
Relations Board, herein the Board , issued a complaint and
notice of hearing on May 31, 1974. It was therein alleged
that Crest Door Company, herein referred to as Respon-
dent and sometimes as "Katz" , committed various viola-
tions of the National Labor Relations Act, as amended,
herein the Act. Respondent timely denied it had violated
the Act in any manner.
Pursuant to due notice , a hearing in this matter was held
before me in San Francisco, California, on July 16 and 17,
1974. The parties fully participated. General Counsel and
Respondent filed excellent briefs which have been fully
considered by me.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
At all times material, Respondent has been a California
corporation with an office and place of business in Vallejo,
California, where it has been engaged in the manufacture
of mirrors and sliding closet mirror-doors.
During 1973, it sold and shipped products valued in ex-
cess of $50,000 directly to customers located outside the
State of California.
11. THE LABOR ORGANIZATIONS
At all material times, the Unions have been labor organi-
zations within the meaning of the Act.
1 All dates are within 1974, unless otherwise stated.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE UNFAIR LABOR PRACTICES 2
A. The Issues
1. An issue concerns when Anthony Camacho became a
supervisor and an agent of Katz within the meaning of the
Act. I find in agreement with the parties that he became
such supervisor and agent no later than March 14, 1974.
2. Whether, since on or about March 1, 1974, Respon-
dent interfered with , restrained , or coerced its employees in
exercising their rights as guaranteed by the Act by creating
the impression of surveillance of the employees ' union ac-
tivities ; by threatening employees with reprisals by telling
them that employees responsible for bringing in a union
would be laid off; by interrogation of employees concern-
ing the union interests of themselves and of other employ-
ees; by warning employees that Katz' plant at Vallejo, Cal-
ifornia, would be relocated , unless the employees ceased
union activities; by warning employees of a discontinuance
of a work shift because the employees were assisting the
Union; and by threatening employees that they would lose
work if they continued to assist and support the Union.
2 The primary witnesses in this case are Frank Pitz , herein Pitz , and Mr.
Lawrence Katz , herein Katz . Admittedly Pitz was convicted of the felony of
auto theft in 1958 and he served time in prison therefor . There is no sugges-
tion that he either prior thereto or thereafter committed other felonies. i, of
course , have considered his admitted commission of a felony in evaluating
his credibility. Such consideration has involved the obvious fact that it oc-
curred more than 15 years ago . In light of this finding, I further find that his
demeanor impressed me most favorably . I found his testimony to be most
frank and forthright . I have further considered the fact that he was dis-
charged by Katz about the middle of March 1974. Whether or not his
discharge was justified is not properly within my purview, as I consider
these proceedings . I find that Katz , having become well aware of the admit-
ted felony of Pitz , nonetheless continued him in his employ as an agent,
supervisor, and foreman . As indicated, I credit entirely the testimony of
Pitz. I have also considered the fact that there were hard feelings between
Pitz and Katz as of the time of discharge.
Katz presents a different picture to me. His demeanor impressed me most
unfavorably . According to him , he had been through seven other Board
elections and he apparently wished me to find that on this set of facts it
would be unreasonable for me to find that he had engaged in any unfair
labor practices . Names of cases involving such elections , how they turned
out, and his activities in connection with the same are unknown to me I can
conclude that from such a wide experience, Katz learned , as he apparently
would urge me to believe , that he knew better than to commit any unfair
labor practices , or I could conclude that he became or learned how to be an
experienced and clever violator of the rights of his employees as guaranteed
by Sec_ 8(bX7) of the Act. The fact is that Katz did not testify , for the most
part, in a narrative or direct fashion , but rather limited himself to a repeti-
tious rote of denials . Although I have been a member of the Bar for more
than 40 years, I recall no instance where a witness obviously sought, while
under oath , advice from his attorney as to how he should testify . Consider-
ing the demeanor of Katz and the nature of all of his testimony , I find no
hesitancy on my part in rejecting his testimony in its entirety , unless it has
been corroborated by otherwise credited testimony or documentary evi-
dence . I particularly observe that I in nowise credit his claims of complete
lack of knowledge as to matters which he should have known from the very
nature of running his business , solely because he allegedly had no "docu-
mentary evidence" as to what were the facts.
Unless otherwise noted , having carefully considered the nature of their
testimony and having been impressed by their respective demeanors , I cred-
it the testimony of Boyce A Smith , Don O'Hara , John Shaver , Darrell
Walters, Angel Chavarria , Dan Clark , Charles Werner , and Don Miller. To
the extent that I have had any problem in connection with their respective
testimony , such shall be pointed out by me in the body of this Decision
This extra long footnote may be concluded by my noting that the entire
transcript has been read by me at least several times and portions thereof,
particularly in comparison with other portions thereof , have been meticu-
lously studied.
3. Beginning towards the end of March and continuing
into early April, did Katz terminate five named employ-
ees,3 in the latter part of March and early part of April,
because of their union or other protected concerted activi-
ties?
4. About the middle of April, did Katz cause the trans-
fer of employee Charles Werner from one work station to
another because of his union or other protected concerted
activities?
5. Did Katz discontinue a work shift because of his em-
ployees' Union or other protected concerted activities?
B. Background
Katz, who operates as a California corporation, has two
facilities, one located in Vallejo, California, and the other
in Riverside, California. The Riverside facility was estab-
lished about 1 year before Katz established his plant at
Vallejo. At Riverside, the work involved merely the assem-
bling of mirrors and vinyl wardrobe door products and
their delivery. Parts were not manufactured. Supplies were
purchased and assembly was done there. When Katz origi-
nally opened his plant at Vallejo, the same functions were
performed. However, about December 1973, Katz pro-
cured a mirroring or silvering machine and it was installed
and put into full production some couple of months there-
after. When first purchased, this mirroring machine was
operated during the day in Vallejo, but, for a variety of
reasons, Katz decided to operate it at night and he estab-
lished a swing shift in early March. Late in February, Katz
obtained an edge polisher machine which he also located in
Vallejo. He used this machine until about March 29, at
which time, according to Katz, he found the machine was
"unprofitable" and he discontinued its operation for this
reason .4 As counsel for Katz states in his brief, "The four
employees who worked on the machine were terminated.
Of these, Angel Chavarria and Emmanuel Reeves are al-
leged to be 8(a)(3)s."
Again, according to the brief of the most intelligent and
able attorney for Katz, it is claimed that Katz, on or about
March 29, laid off 10 men, having found he could not ob-
tain sufficient inventory for both Vallejo and Riverside S
with respect to the production line assembly of doors and
that, since the supplier of metal and vinyl production for
Katz, at Vallejo, necessary in the assembly of doors, was
located in Los Angeles, much closer to the Riverside facili-
ty, the production line assembly of doors was shifted en-
tirely to the Riverside facility of Katz 6
Katz claims that it was about this time that six employ-
ees were terminated , including Don O 'Hara , John Shaver,
and Dan Clark, who had worked in the production line
assembly of doors. In his brief, the most able attorney for
Katz stated that it was concurrent with the discontinuance
of the production line assembly of doors at Vallejo, that
i Emmanuel Reeves , Angel Chavarria , Dan Clark , Don O'Hara, and John
Shaver.
4 No books, records, nor any other documents were submitted in support
of this bare statement as to what he did and what the economic situation
was in the very middle of a union organizing campaign
3 Where he initially and thereafter had a plant
6 I have found that I do not credit the unsupported testimony of Katz. No
books and no records and no corroborating testimony were submitted to
support this uncredited testimony of Katz in this regard.
CREST DOOR COMPANY
the mirror machine operation was changed back to the day
shift and the swing shift was terminated, the swing shift
employees being transferred to days. He contends that no
mirror machine employees were laid off because of the
change in shift, because the mirror machine was operated
on one shift only at all times.
C. Facts
Plant Foreman Frank Pitz, in November and December
1973, with some employees at the Vallejo plant, installed a
mirror-conveyor machine and spent more than 500 man-
hours in so doing. The purpose of the machine is to cut
glass and convert it into mirrors.
By February and March there were 7 to 10 men doing 8
to 12 hours of work on manufacturing glass into mirrors.
Doors containing the mirrors were produced pursuant to
invoices. After the mirror production became established,
the plant had a door department, a metal department, and
a mirror production and edging machine. Normally, 7 to
10 men worked in connection with the handling of mirrors.
The glass doors were placed in a metal frame . With a rare
exception, employees needed no special skills and job as-
signments were interchangeable. Most newly hired employ-
ees came from the Human Resources Development. It may
be noted that Katz denied almost every word of testimony
either by a former agent or a former or present employee.
As I observed him, and as I have read the transcript, his
denials have been pro forma.7
An employee named Brown spoke to Pitz in late January
in the parking lot. He stated he was attempting to get the
Union into the shop and he was distressed about the way
things were going in the shop and felt that some of those
matters could be changed by the employees "going union."
In Katz' office, Katz and Pitz spoke about union organiza-
tion. Katz told Pitz, "To lay off whoever was responsible
for such organization at this time." Pitz replied that he
would "find out" and that was about the extent of the
conversation.
Crediting Charles Werner as I do, I find there was con-
siderable discussion about the Union in the plant prior to
the election, as early as the middle of February and the end
of February. In any event, many months before union ac-
tivity began, there was a lot of "talking about bringing a
union in," in the plant. The first union meeting was Febru-
ary 25 when about 12 to 18 employees showed up. There-
after, there was considerable talk in the plant about the
Union, but only during lunch hours. It had been agreed to
by the employees at the union meeting that they should not
talk union during working hours and that there might be
adverse consequences for them if they talked about any-
thing other than work, when they were at work.
I recognize and I find that Pitz and employees Werner
and Clark were on a very friendly basis and that it was not
uncommon for them to meet in a social atmosphere.
It was not long after the union meeting, to which refer-
ence has been made above, occurred that Pitz met with
Werner and Clark at Werner's home. Pitz told Werner and
7 Please refer to Respondent 's brief for most of the above.
651
Clark that Katz knew of the union activities and that he
had been told to "lay off whoever was responsible for said
activities ." Pitz truthfully testified that he has been in-
structed "to lay off employees who were responsible for
bringing in the Union," and he so indicated to Werner and
Clark.
Clark truthfully testified that at Werner's house Pitz told
him and Werner that Katz told him he should find out
about the Union and find out who the union organizer was
and to fire him or lay him off.
Werner truthfully testified that Pitz told Dan Clark and
Werner that Katz knew about the union proceedings and
was not happy about it and that Katz had given Pitz orders
to find out who was responsible for the union activities and
to lay off anybody who was a union organizer .8
Early in March, about the time Respondent began to
have a "swing shift" operation, while continuing to operate
its mirror machine days and evenings, Camacho was
placed in charge of the swing shift. I have noted that there
is no question but that he was a supervisor for and an agent
of Katz at least as early as March 14. He may well have
been such supervisor and agent prior to March 14, but, in
any event, I find there is no question but that early in
March Camacho and Pitz agreed that about 95 percent of
the employees would vote for the Union .9 Early in March,
Katz inquired of Pitz as to how many employees he
thought would cross the picket line should one be estab-
lished by the Union. Pitz replied that he knew of no one
who would cross the picket line other than Camacho and
Jesse Abbott. Pitz told Katz that he figured that those two
would be loyal to the Company. He told Katz on this occa-
sion that he believed the employees would vote the Union
in. He mentioned no names other than Abbott and Cama-
cho as being persons who would be loyal to Katz.
In a letter bearing March 6 as its date, the Unions ad-
vised Katz that they represented a majority of his employ-
ees at Vallejo and they requested immediate commence-
ment of bargaining negotiations. On the same date, they
filed a petition for certification as bargaining representa-
tive of Katz' employees at Vallejo.
On March 7, Katz again spoke to Pitz about his union
problems. Katz discussed the letter from the Unions and
the contents thereof and then discussed the possibility of
running the shop only in the evening, adding, "He'd get
out there and work himself." Katz stated that he had run a
shop with a couple of employees in the past, and then he
brought up the question of who would be loyal to the Com-
pany. Katz stated that "He knew the Union was coming."
He added that it was merely a matter of time, but he won-
dered who would cross a picket line or come in to work.
On the next evening, Pitz again talked to Clark and Wer-
ner at Werner's home. This time he spoke to them about
how Katz felt about the Union's March 6 demand for bar-
gaining. Pitz told these employees that Katz would shut the
s Pitz, Clark, and Werner may have been on the most friendly terms and
may have been meeting in a purely social atmosphere at the time Pitz made
these statements, but, nonetheless , I find that they tended to interfere with,
restrain , and coerce the employees of Katz in violation of Sec. 8(a)(1) of the
Act. They were not merely a statement of threats by Pitz, they also were a
statement that union activities were under surveillance Friendship among
Pitz, Werner, and Clark does not detract from these conclusions.
9 Camacho was never called as a witness in this case by Katz.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant down or would work at night if the Union came in.10
He told the men Katz said he would close down the shop
and work with two or three men , including himself.
About March 8, Pitz again met with Werner and Clark
at Werner's home . Pitz then again threatened them in vio-
lation of Section 8(a)(1) of the Act, " by telling them that
Katz, having received the Unions ' request to bargain, said
he would shut the plant down and work a night shift, rath-
er than the usual two shifts if the Unions came in. He
added that Katz had threatened to work with only two or
three men, including Katz . This statement also violated
Section 8(a)(l) of the Act.
Pitz was fired on March 14. 12
A Board election at Respondent 's Vallejo plant was held
on April 18. The Unions won and were certified on April
26. A consent-election agreement was approved on March
27.
With no advance notice, Chavarria, who had engaged in
union activities , was laid off with half a dozen other em-
ployees about the time of the consent agreement.
Again , with no advance notice , Reeves was terminated
on March 26 or 29. Allegedly, they were terminated be-
cause Katz was discontinuing "edging work ." I find no
evidence that Chavarria performed "edging work" in
March.
Respondent terminated Shaver and O'Hara on March
29, and terminated Clark on April 3. They were terminated
ostensibly because the production of doors was discontin-
ued. Camacho told each of these employees he was laid off
because there was not sufficient work for them . Each had
signed an authorization card . Camacho told some of them
that door production was being transferred to Riverside,
down South . Katz' recollection as to door production in
March and April was unbelievably poor. Respondent
claimed to have no documentary evidence as to such pro-
duction for March and April. Katz had no "idea" as to the
number of truckloads of doors shipped from Vallejo in
April 1974 . 13 He testified that shipments were made pur-
suant to "order." What happened to the "orders"? Katz
didn't know how many doors were in any truckload, or
whether there were as many as 15 or more truckloads. He
didn't know whether doors shipped from Vallejo in April
were produced at Vallejo in April."
Shortly after the discharges above discussed, Camacho,
in violation of Section 8(a)(l) of the Act, asked employee
Walters how he was coming on with getting union authori-
zation cards .15 Certainly an impression of continued sur-
veillance or apparent surveillance was here created by Ca-
10 At that time , he was operating two shifts.
11 Even though they were friends.
12 Perhaps for good reason Perhaps not . It appears immaterial to me. I do
not find Pitz bore animus toward Katz for his termination when he testified.
The circumstances of the termination may have been acrimonious. I still
completely credit Pits.
13 One would reasonably expect that there would be records of some na-
ture , checks, invoices , payroll records, etc
14 He testified within 3 months thereafter. There must have been records
of some kind . He impressed me as a most intelligent person . He would have
had some records of shipments of doors from Vallejo. He, in my view, would
personally have had some independent recollection.
15 Camacho , Respondent 's agent at the time of the hearing, did not testi-
fy, and no explanation for his absence was offered.
macho, as well as interrogation. This violated Section
8(a)(1) of the Act.
About the time of the election , Katz violated Section
8(axl) of the Act by calling employee Miller to his office,
telling him there was going to be an election, and asking
Miller if he knew who was behind the Union.16
Werner was the observer for the Union on the day of the
election . Very shortly after it was over , Katz , within the
hearing of Werner, told employee Abott they would do
away with the night shift because the Union was coming
in. This was a violation of Section 8(a)(1) of the Act.
On the day after the election , in response to Werner's
question , Camacho told him there were no plans to replace
him on the "regenerating machine" because of his union
activities, and that Werner was the only one who would be
able to handle the responsibility of it. Very shortly there-
after Werner saw Katz talk to Camacho. Camacho then
came to Werner and told him Werner had been taken off
the "regenerating machine ." Camacho said Katz had given
no reason , and Katz simply didn't want Werner involved
in the mirror department, at all. When Werner first started
working on this job he was told he'd be trained to run the
entire mirror machine . This transfer , because of union ac-
tivities , was a violation of Section 8(a)(3) and ( 1) of the
Act. So was the almost immediate transfer of the swing
shift to day work about the time of the election. I find no
explanation of such transfer other than the victory of the
Unions in the April 18 election . The virulent union animus
of Katz had long been evident . Some of his antiunion state-
ments have been set forth , along with his illegal threats.
The nonunion Abbott replaced Werner, the observer, on
the morning hours that the regenerating machine worked))
We again came to Miller with the admittedly bad memo-
ry as to dates. I also often had difficulty in grasping the full
significance of his testimony. I find I was substantially and
sufficiently successful . I find his testimony was inherent
with truth and honesty. In no way was he dishonest. After
the election, and probably in late April, Katz asked Miller
how long it would take him to tear down and reassemble
Katz' machinery. Miller gave a rough guess, Katz having
mentioned that Miller knew Katz had "labor problems" at
the plant. Miller said he could probably tear the machinery
down in about 30 days, and reassemble it. Having had his
recollection legitimately refreshed, Miller truthfully testis
fied that Katz , in response to Miller's questions , said he
was not going to move the machinery "south," and when
Miller asked if it would be moved "north," Katz, as I ob-
served Miller, just shrugged his shoulders and lifted his
arms and hands , sideways , indicating to Miller and to me,
that Katz "didn't know." While Miller, because of what I
find was scrupulosity, had much difficulty in putting his
thoughts and memories into words, I find the substance of
the above conversation occurred as I have found. I find
Katz referred to his "labor problems" and wanted to find
out from Miller how long it would take Miller to dismantle
16 Miller's memory , particularly as to dates , etc , was admittedly not very
good . It was bad . Where he testified that something happened or was said,
I am convinced the testimony was truthful He impressed me as determined
to tell nothing but the truth to the extent he had a recollection . I am con-
vinced he succeeded.
17 Abbott did not testify.
CREST DOOR COMPANY
and reassemble the basic substance of this needed machin-
ery and , in response to Miller's questions , stated he did not
know whether he would move the plant north, but would
not move it south) It is plain to me that Katz, having
remarked to Miller about his "labor problems," almost si-
multaneously indicated a wish to move the plant from
where the Unions had just won an election. Katz, in this
conversation with Miller , violated Section 8(a)(1) of the
Act. Katz would have me believe these questions were ad-
dressed to Miller in anticipation of the expiration of his
lease , which had 6 more years to run. I find his explanation
absurd. Miller had every reason to believe that Katz would
imminently move the plant because of his "labor prob-
lems." 19 This was because of Katz' questions and state-
ments , which in combination , especially in light of timing,
constituted violations of Section 8(a)(1) of the Act.
Katz made it clear to Pitz from the outset , that he was
keeping the union activities of his employees under surveil-
lance and wanted them to be so kept. Pitz violated Section
8(a)(1) of the Act by conveying these statements to em-
ployees even though they were on the best of friendly
terms. The latter may well have emphasized the seriousness
of the situation . Katz' statements followed upon the heels
of the first union meeting, and clearly indicated surveil-
lance, since the source of knowledge was not revealed. So,
too, did Pitz' reports to employees, that Katz wished him to
seek out and discharge those responsible for union activi-
ty, violate Section 8(a)(1) of the Act.
All interrogations by Pitz or Katz about employees'
union activities , as found above , violated Section 8(a)(1) of
the Act.
Respondent violated Section 8(a)(1) of the Act by
Camacho's interrogation of an employee as to union activi-
ties.
Katz' established union animus , his threats and the tim-
ing unmistakeably demonstrate that Katz violated Section
8(a)(1) of the Act by his telling Abbott, about an hour after
the election, that he would eliminate the night shift because
the Unions were coming in.
So did Katz violate Section 8(a)(1) of the Act by talking
to Miller about the movement of machinery, obviously in
an effort to dissipate union support.
There is no question about it. Reeves, Chavarria,
O'Hara , Shaver, and Clark engaged in union activities.
This is why Respondent, in violation of Section 8(a)(3) and
(1) of the Act, discharged them. Obviously, Katz was well
aware of union activities in the plant . He knew there was
almost unanimous support for the Union? He didn't have
to fire all, to show he wanted none, and wanted to coerce
all. These alleged 8(a)(3)'s, I find , were discharged as part
of Katz' effort to eliminate the Union which was obviously
odious to him. The five dischargees were a selected symbol
and token of union supporters. They were to be the "horri-
ble example ." They were almost 20 percent of those he
believed to be union supporters.
Katz had told Pitz of his plans to close the plant, or
operate with two or three employees , or use only a night
18 Even in Vallejo, there is East and West or variations.
19 A 6-year lease was not mentioned.
20 95 percent?
653
shift. He was pervaded with antiunionism. The five dis-
chargees were dispensed with in an unsuccessful effort to
destroy union support about the time the consent election
agreement was approved. Thereafter Respondent contin-
ued interrogation, in violation of Section 8(a)(1) of the Act,
almost until the date of the election. Right after the elec-
tion, Respondent, in violation of Section 8(aX3) and (1) of
the Act, transferred the union observer from a preferred
job to one less desirable, and discontinued the swing shift.
Katz did not keep his preelection threats free from fulfill-
ment, but rather, with Miller, threatened, rather obviously
I find, to move the plant.
It must be remembered that Respondent kept up a
steady increase in its employee enrollment until the Union
made its demand for recognition. Respondent's almost
complete lack of records, according to it, is not credited.
As I have found, Katz was a highly intelligent busi-
nessman . As such, accurate business records must have
been most important to him. I find Katz' claims of eco-
nomic necessity for the discharge of the five alleged
8(ax3)'s to be without basic substance, concocted fabrica-
tions, and pretexts emphasizing the unlawful reasons for
their discharge. They were union activists, discharged for
no established lawful reason, by an employer who by
threats, etc., had made manifest his antiunion motivation
and determination not to have the Union in the plant and
eradicate union supporters. The "timing" is substantially to
labor law what is res ipsa loquitur to the law of negligence.
Claims of economic justification find no substance herein,
and absence of obvious records is inexplicable. Respon-
dent has been singularly unconvincing in answering the
prima facie case of General Counsel. I have not heard, nor
have I read a word, or sentence, or paragraph, that this
employer, so filled with antiunion animus, had any eco-
nomic justification for any of the activities it engaged in, in
violation of the Act. It had no concern for the require-
ments of the Act.
General Counsel has established by a preponderance of
the probative and substantial evidence, that Respondent
has violated the Act as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of "Respondent set forth in section III,
above occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate , and substantial relationship to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has- engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that in late March or early April Respon-
dent terminated Emmanuel Reeves, Angel Chavarria, Dan
Clark, Don O'Hara, and John Shaver and has thereafter
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failed and refused to reinstate them, because of their union
and other protected concerted activites, I shall recommend
that Respondent make them whole for any loss of wages or
pay any one may have suffered by reason of Respondent's
discrimination against them, or him, in violation of Section
8(a)(3) and (1) of the Act, in the manner set forth in F. W.
Woolworth Company, 90 NLRB 298 (1950), with interest on
backpay computed in the manner described in his Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and reinstate
them to their former or substantially equivalent positions.
Also, employee Charles Werner, an employee of Re-
spondent as of the dates of the hearing herein, is to be
reinstated to his former work station in view of the fact
that his transfer therefrom was caused by his engaging in
union and other protected concerted activities.
I shall further recommend an order that Respondent re-
instate the work shift it discontinued because of the em-
ployees' membership in or activities on behalf of the
Unions or because they engaged in other protected con-
certed activities.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Unions are labor organizations within the mean-
ing of the Act.
3. By discharging Reeves, Chavarria, Clark, O'Hara,
and Shaver and thereafter failing and refusing to reinstate
them because of their union and other protected concerted
activities, Respondent has violated Section 8(a)(3) and (1)
of the Act.
4. By transferring Charles Werner from one work sta-
tion to another because of his union and other protected
concerted activities, Respondent violated Section 8(a)(3)
and (1) of the Act. By discontinuing a work shift because
of the employees' union or other protected concerted activ-
ities shortly after the election, Respondent violated Section
8(a)(3) and (1) of the Act.
5. By creating the impression of surveillance of the em-
ployees' union and other protected concerted activities, by
threatening them with reprisals and by interrogating them
about their union activities and the union activities of other
employees, and by warning employees that they would lose
work and that the plant would be relocated and that a
work shift would be discontinued, Respondent by such and
other similar activities interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
6. Camacho was a supervisor and agent of Respondent
at all material times, at least since March 14, 1974.
7. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the entire record, including the foregoing findings
of fact, and conclusions of law, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER21
Respondent, Crest Door Company, Vallejo, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against any of its employees because
of their support for or assistance to any union or unions or
because they engaged in any concerted activities protected
by the Act.
(b) In any manner interfering with, restraining, or coerc-
ing any employee in his right to join, assist, or support the
Unions herein or any other labor organization or engage in
any activities protected by the Act, or to refrain from so
doing.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Make Reeves, Chavarria, Clark, O'Hara, and Shaver
whole for any loss of earnings any one of them or all of
them may have suffered by reason of Respondent's unlaw-
ful discrimination against them in the manner set forth in
the Remedy section of this Decision, and reinstate them to
their former or substantially equivalent positions.
(b) Preserve and, upon request, make available to the
Board or any of its agents all records necessary or useful to
determine or compute the amount of backpay due to each
one of the discharged employees above named, if any.
(c) Reinstate Charles Werner to the work station from
which he was removed about April 19 because of his union
and other protected concerted activities.
(d) Reinstate and reestablish the work shift which Re-
spondent unlawfully discontinued about April 19, 1974.
(e) Post at its Vallejo, California, facility, copies of the
attached notice marked "Appendix.- 22 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being duly signed by Lawrence Katz,
Respondent's president, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
21 In 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.
22 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
CREST DOOR COMPANY 655
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in any way or manner or form, dis-
criminate against any of our employees because of
their support for or assistance to Retail Clerks' Union,
Local 373, Retail Clerks International Association,
AFL-CIO; Teamsters Local 490, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization,
or because they engage in any union activities or any
other activities protected by the National Labor Rela-
tions Act, as amended.
WE WILL NOT, in any other manner interfere with,
restrain, or coerce any of our employees in their rights
to join, assist, or support the above-named Unions, or
any other labor organization, or to engage in any
other activity protected by the Act, or to refrain from
so doing.
WE WILL make Emmanuel Reeves, Angel Chavarria,
Dan Clark, Don O'Hara, and John Shaver whole for
any loss of earnings any one of them may have suf-
fered because of our unlawful discrimination against
them in that we discharged them because of their
union and other protected concerted activities. WE
WILL reinstate them to their former or substantially
equivalent positions.
CREST DOOR COMPANY