East Island Swiss Products, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1975

220 N.L.R.B. 175 (N.L.R.B. 1975)

EAST ISLAND SWISS PRODUCTS
East Island Swiss Products , Inc. and Robert Doyle,
James Schuppel, and Jack Tracht. Cases
29-CA-3817-1, 29-CA-3817-2, and 29-CA-
3817-3
September 10, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 28, 1975, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs.
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 to the
extent consistent herewith and to adopt his recom-
mended Order, as modified herein.
REMEDY
We agree with the Administrative Law Judge's
conclusion that Respondent discharged Tracht in vi-
olation of Section 8(a)(3). However, for the reasons
set forth below, we disagree with the Administrative
Law Judge's recommended remedy to the extent that
it orders Respondent to reinstate and give full back-
pay to Tracht.
The record shows that when Tracht applied for
work as a machine operator with Respondent in ear-
ly 1973, he had already been suspended by his previ-
ous employer, the Post Office, for suspicion of mis-
appropriating funds. Although he did fill in the
space on his job application with Respondent asking
"former employer," he left blank the space request-
ing "reason for leaving former employer." 2 In early
1974, after having been in Respondent's employ for
almost a year, Tracht was prosecuted for misappro-
priating Post Office funds, was convicted on that
1 We find no merit in Respondent's exceptions to the Administrative Law
Judge's refusal to adjourn the hearing temporarily and to disqualify himself
on the grounds of bias and prejudice because he declined to approve
Respondent 's proposed settlement and ruled the hearing should proceed.
Nor do we find any merit in Respondent 's contention that the Administra-
tive Law Judge improperly rejected said settlement.
2 On his job application , Tracht listed three previous employers; he gave
the reason for leaving the first two, but omitted the reason for leaving the
third.
175
charge of a misdeameanor , and was sentenced to 3
months in prison and a $500 fine . When he took
leave of absence to stand trial , he told Respondent
that he was merely hunting for a job in Brazil; and
when he took leave of absence to be sentenced, he
told Respondent he was taking off for personal rea-
sons . Respondent did not learn of Tracht 's suspen-
sion, prosecution , or conviction until cross-examina-
tion at the hearing on August 29, 1974.
The hearing of this matter was in recess from Au-
gust 29 to October 7 , when upon resumption, Re-
spondent offered Tracht reinstatement without back-
pay if he would return within a week 's time. But
Tracht could not do so since he was then still in pris-
on serving the sentence that began for him shortly
after testifying on the 29th.
The Administrative Law Judge recommended that
Tracht be reinstated with full backpay on the
grounds that he has served his sentence and thus
paid his debt to society ; that he listed the Post Office
as a former employer on his job application and thus
gave Respondent full chance to discover his prior of-
fense ; that his job with Respondent as machine oper-
ator involves no substantial degree of trust and thus
presents no opportunity for repetition of his prior of-
fense ; and that Respondent refused to introduce any
evidence at the hearing and thus furnished no basis
for an inference by us that it would have refused to
hire Tracht if it had known of his prior offense. Al-
ternatively , the Administrative Law Judge recom-
mended that the entire question of remedy be post-
poned for resolution until the compliance stage of
this case if the Board concluded that the record pres-
ently offers insufficient evidence to determine the ap-
propriateness of a reinstatement with backpay reme-
dy
-We disagree with the Administrative Law Judge's
proposed remedy .' It is , of course , well established
that the Board has broad discretion in determining
an appropriate remedy best suited to effectuate the
purposes of the Act and restore the status quo ante.
While ordinarily in a discriminatory discharge case
such as the present one , we do order a full backpay
and reinstatement remedy , there are counterbalanc-
ing considerations in this case which we think strong-
ly weigh in favor of ordering something less than
such a full remedy.
It seems clear here that but for Tracht's participa-
tion in union activities , he would have continued in
Respondent's employ at least until such time as Re-
spondent acquired information of his prior employ-
ment-related misconduct . It is therefore appropriate,
3 Member Fanning would adopt the remedy recommended by the Ad-
ministra tive Law Judge , for the reasons set forth in the attached Decision,
and would order that Tracht be reinstated with full backpay.
220 NLRB No. 26
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in remedying Respondent's unlawfully motivated
discharge of Tracht, to order Respondent to make
Tracht whole from the date of his discharge to the
date it acquired this information (which as previously
noted was the date of the hearing in this case). On
the other hand, it is not at all clear that Respondent
would have voluntarily retained Tracht after it ac-
quired such information. And it is also true that
Tracht was responsible for concealing such informa-
tion by failing to complete the appropriate space in
the application form, thereby making it impossible
for Respondent to establish that it would have never
hired Tracht had it known of his prior misconduct
from the outset .4 Under these circumstances, and
particularly considering the seriousness and employ-
ment-related nature of Tracht's criminal offense, we
do not believe that Respondent should have the bur-
den of establishing that it would not have continued
Tracht upon obtaining this information.5 According-
ly, we will not order Respondent to offer Tracht rein-
statement to his former job, nor will we order Re-
spondent to make Tracht whole since the time it
learned of Tracht's misconduct on his prior job.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent East Is-
land Swiss Products , Inc., Deer Park , New York, its
officers, agents, successors, and assigns , shall take
the action set forth in the said recommended Order,
as modified:
1. Substitute the following for paragraph 1(c):
"(c) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
2. Substitute the following paragraph for para-
graph 2(a):
"(a) Make whole Jack Tracht for his lost earnings
from the date of his discharge , April 26, 1974,
through August 29, when Respondent first learned of
National Packing Company, Inc., 147 NLRB 446, 458 (1964).
5 We recognize that, as noted earlier , Respondent offered Tracht rein-
statement at the hearing if he agreed to give up any right to backpay he
might otherwise have However , that offer of reinstatement in an effort to
settle the case cannot be fairly equated with a free and voluntarily made
determination by Respondent that Tracht 's prior misconduct was not of
such a serous nature as to warrant his immediate termination. Indeed, con-
sidering the employment-related nature and seriousness of Tracht's previous
misconduct-in addition to the fact that he concealed it, as well as lying to
Respondent as to why he needed a leave of absence to complete his sen-
tence-it would not have been at all unreasonable for Respondent to have
discontinued his employment , apart from his union activities and also the
legal considerations injected into the situation by the complaint herein.
his serious misconduct with his prior employer, the
computation to be made according to the manner set
forth in the `Remedy."'
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise punish
employees because they have engaged in union
activities or concerted activities for their mutual
aid or protection.
WE WILL pay backpay to Jack Tracht for earn-
ings he may have lost from our unlawful dis-
charge of him.
WE WILL NOT promise our employees benefits
or other improvements in their terms and condi-
tions of employment to induce employees to
abandon their membership or activities on be-
half of a labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights.
All our employees are free to engage in union ac-
tivities on behalf of United Brotherhood of Industri-
al Workers, Local 424, or any other labor organiza-
tion, or to engage in concerted activities, for the
purpose of collective bargaining or other mutual aid
or protection.
Our employees are also free to refrain from any
and all such activities, except to the extent that such
right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the
Act, as amended.
EAST ISLAND SWISS PRODUCTS, INC.
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: These
consolidated cases were tried at Plainview, Long Island,
New York, on August 29 and October 7 and 8, 1974.1
The charges in Cases 29-CA-3817-1 and 29-CA-3817-2
were filed by James Schuppel and Robert Doyle, re-
spectively, on April 17. The charge in Case 29-CA-3817-3
was filed by Jack Tracht on May 2. The issues, as raised by
i All dates are in 1974 unless otherwise stated.
EAST ISLAND SWISS PRODUCTS 177
the complaint, are whether the Respondent unlawfully
threatened employees and promised them wage increases
and other benefits to refrain from unionization, which
promise was later withdrawn , and discriminatorily dis-
charged the three individual Charging Parties because of
their union sympathies and activities. No briefs were filed
in this matter . Respondent filed an answer which denied
the unfair labor practices alleged in the complaint.' Upon
the entire record , including my observation of the demean-
or of the witnesses , and after due consideration of the argu-
ments of counsel , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a New York corporation maintaining its
principal office and place of business at 509 Commack
Road, Deer Park, county of Suffolk, State of New York,
where it is engaged in the manufacture, distribution, and
sale of machine parts . During the past year , a representa-
tive period, Respondent in the course and conduct of its
business operations , manufactured , sold, and distributed at
its Deer Park plant products valued in excess of $50,000,
which were shipped in interstate commerce directly to
points outside the State of New York. The Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
If. THE LABOR ORGANIZATION INVOLVED
United Brotherhood of Industrial Workers, Local 424,
herein called the Union, is, and has been at all times mate-
2 The hearing of this case was divided into two sessions . The first session
on August 29 was solely for the purpose of taking the testimony of Jack
Tracht prior to his incarceration by Federal authorities . At the outset of the
second session on October 7, 1 refused to approve a joint Company- and
Union-sponsored out-of -Board adjustment of this matter, opposed by the
General Counsel, which I deemed inadequate concerning both the reinstate-
ment and backpay aspects of the proposal. Respondent then filed with the
Board a request for special permission to appeal the ruling rejecting the
proposed adjustment , and objected to my ruling that the hearing would
proceed in the interim . Respondent next modified its adjustment proposal
to offer reinstatement to the three Charging Parties provided they report for
work by the following Monday, October 14, 1974, on which date Tracht
remained imprisoned . Charging Parties Robert Doyle and James Schuppel
then stated their desire to forego reinstatement . Charging Party Doyle re-
fused to resume the stand to begin cross -examination . Charging Party
Schuppel announced that he would not testify. General Counsel stated that
he would not seek enforcement of subpenas which had been served on
Doyle and Schuppel . He moved to strike James Schuppel from pars. 11, 12,
and 13 of the complaint for failure to cooperate with the Board and, in
addition , moved to strike par . 9 as entirely dependent on their testimony.
Counsel for Respondent moved that the Administrative Law Judge disqua-
lify himself on the grounds of bias and prejudice because he declined to
approve the proposed adjustment and ruled that the case should proceed.
Respondent 's motion was denied , and General Counsel's motion was grant-
ed. Robert Doyle's case was also dismissed for refusal to cooperate with the
Board . In writing this Decision , I have not considered his direct testimony.
General Counsel completed the remainder of his case and rested Respon-
dent refused to offer any evidence but declined to rest its case, although
advised that adherence to this position would result in the closing of the
hearing . Respondent's motion for a continuance was denied , and the hear-
ing was closed.
rial herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Discharge of Jack Tracht and the Evidence of
Interference, Restraint, and Coercion
Jack Tracht began working for Respondent on or about
May 1, 1973, as an automatic screw machine operator. In
approximately September or October 1973, Respondent
moved its plant to Deer Park, Long Island, at which time
Tracht began working in the secondary machine depart-
ment as an operator. In December 1973, Tracht was pro-
moted to foreman under the direct supervision of Compa-
ny Secretary and Foreman Lou Israel, under an
arrangement whereby if, after 6 weeks, both Tracht and the
Company were satisfied with Tracht' s new status , he would
then receive a raise and continue in the foreman's position.
At the end of the trial period, approximately January 15 or
20, Tracht inquired about his raise and was told by Israel
and Vice President Gorenstein that they would respond
shortly. A week or so later, Tracht was told the Company
could not afford to give him the increase, whereupon
Tracht announced that he was returning to his former sta-
tus as machine operator in the secondary machine depart-
ment. Tracht held this job until he was terminated on April
26.
During the latter part of February, for reasons which
will be discussed further below, Tracht took a leave of ab-
sence from his employment at Respondent, returning to
work sometime during the first week in March. Shortly
thereafter, he heard from his fellow employees that they
were attempting to organize a union. A few days later,
Tracht was approached by Israel who stated that while
Tracht had been away someone had gone into his locker
and found some papers containing demands for improved
working conditions. Israel asked if these were union papers
containing union demands. Tracht answered that these
documents had nothing to do with the Union and were
simply his ideas for better working conditions which he
had desired to institute as foreman. Israel replied he be-
lieved Tracht but that Gorenstein thought they were union
papers. Later the same day, or possibly the next day,
Tracht discussed this matter with Gorenstein in his office.
Tracht assured Gorenstein that he had nothing to do with
the Union, and that the papers found in his locker were the
same papers that he had shown to Gorenstein in December
when Tracht became foreman, which simply contained
ideas for changes in working conditions he desired to bring
about in that capacity. Then Tracht again repeated that he
did not have anything to do with the Union, and did not
know anything about it until he returned after his 3 weeks'
leave of absence. Gorenstein ended the conversation by
remarking that if the people in the plant wanted a union
they could have it, because he was not worried about it,
stating, "they'll wind up with less than they have now."
On March 20 or 21, Tracht attended a union meeting at
a restaurant across from the plant. Present were about 12
or 13 employees and Joe Shiereck, a representative of the
Union, who answered questions and explained what he
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought were the benefits of having a union. Then the
cards were distributed, at which time Tracht signed a card.
On the following day, Tracht was approached by employee
Charles Murphy, who asked Tracht to accompany him into
the office for the purpose of having a talk with manage-
ment . Tracht agreed, whereupon he, Murphy, and Michael
Preble went to the office and discussed the Union with
Irving Beyer and Lou Israel. Murphy, acting as spokesman
for the group, said that the employees had petitioned for a
union , and then listed various benefits the employees want-
ed, including vacations, pay raises, sick leave, hospitaliza-
tion, coffeebreaks, a lunchroom, and speakers. Beyer an-
swered that he could give them almost all of the things for
which they were asking if they would vote out the Union.
Then Beyer qualified this statement by saying that maybe
he could not give them exactly everything, but at least 80
percent of it, he thought. Murphy then asked Beyer to put
this assurance in writing, and Beyer refused, to which Mur-
phy responded that there was no sense in going on with the
meeting . As the discussion ended, Beyer stated that he
would talk with his lawyer, and see what could be done.
Later the same day, in the late afternoon, Beyer called the
three employees back to the office . Again Lou Israel was
present. Beyer said that he had spoken with his lawyer who
informed him that what he had told them earlier was ille-
gal, since the Union had filed a petition, but that the em-
ployees should keep in mind what he had said at the earlier
meeting about giving them 80 percent of what they were
demanding. Tracht's testimony concerning these two meet-
ings with management is corroborated by that of Michael
Preble. A week or two following the meetings with Beyer
and Israel, Tracht again went to talk with Gorenstein
about persisting rumors circulating in the plant , to the ef-
fect that Tracht was the employee leader of the union
movement. These rumors emanated from a group of an-
tiunion employees who were friends and relatives of an
employee named William Betke (hereafter referred to in
the Decision as the Betke group). These employees were
former friends of Tracht who developed an animosity to-
ward him when Tracht became a foreman over them.
Tracht told Gorenstein that he had signed a card, but that
he did not "institute the Union." Tracht assured Goren-
stein that if he had started the Union he would not be
afraid to tell him. Gorenstein did not reply.3
On April 25, Tracht was approached by William Betke
in the shipping department. Betke stated that he wanted to
ask a question about the Union, to which Tracht replied he
would rather not talk about it. Betke insisted that he had
just one question, stating that he had heard that he could
be fired if he did not join the Union. Tracht replied this
was not true, and that what Betke had probably heard was
that if the Union were voted in, and there was a closed
shop, Betke would have to join a union or be terminated.
Tracht also cautioned Betke that he had a whole family
3 Tracht testified that on a previous occasion during a conversation with
Lou Israel Tracht had stated that his brother was the president of the Letter
Carriers for Nassau and Suffolk Counties. Tracht also testified that he had
had a number of conversations with Israel on the plant floor about the
Union.
working in the plant, and that they did not get along too
good with him. Tracht said that if Betke repeated what he
had said to anyone, to be sure to tell it as he had said it.
Betke responded that he understood. A couple of hours
later Tracht was approached by Gorenstein on the work-
room floor, in the presence of Israel, and asked, "What's
this I hear about you telling people they had to join the
union or else they'd be fired?" Tracht denied that he had
said this, but Gorenstein insisted that he could prove it,
whereupon he produced Betke. Tracht asked Betke if he
had ever spoken to him about the Union before that day.
Betke replied, "No." Then Tracht asked if Betke had come
to him and asked him a question about the Union, and
Betke agreed that he had. Tracht asked if he ever told Bet-
ke he would be fired if he did not join the Union, and
Betke responded affirmatively. Immediately, Gorenstein
retorted, "There, you did tell him he would be fired," and
walked away. After Gorenstein had left, Tracht became
angry with Betke, yelling that he and his family caused
Tracht trouble, after he had answered Betke's question
about the Union, by going to the office and telling them a
bunch of lies. After berating Betke, Tracht went to Goren-
stein and said that he had not told Betke that he would be
fired if he did not join the Union, but had stated that if
there was a closed shop Betke would have to join the
Union or be terminated. Gorenstein answered, "Those
people out there don't understand anything about this
Union. Why didn't you explain to him about the right
thing?" Tracht answered that Betke had said he under-
stood it, to which Gorenstein remarked, "You might as
well explain everything to all these people, because nobody
knows anything out there." Tracht asked, "Well, are you
giving me permission to answer these questions for the peo-
ple?" Gorenstein answered, "You might as well , they're
getting all the wrong information." The conversation end-
ed with Gorenstein making a remark that Tracht was a con
artist like him.
On the morning of April 26, Tracht obtained permission
from his foreman, Richard Mano, to leave the automatic
screw department temporarily, with the purpose in mind of
finding Betke to apologize for the incident the previous
day. Upon locating Betke, Tracht explained he was sorry
for "blowing off steam yesterday," and for yelling about
his family. Tracht stated, "I just want to explain to you
what you didn't understand yesterday, that when I said the
closed shop, it meant you didn't have to join at the begin-
ning or be fired-it meant if it was voted in." Betke replied
he understood. About this time they were interrupted by
Donald Smith, another of the Betke group, who came run-
ning over yelling at Tracht to get out of the department or
he would break Tracht's legs . Tracht replied, "I'm talking
to Bill, you have nothing to do with our conversation."
Smith kept advancing on Tracht, angrily insisting that he
was in charge of the department and that Tracht would
have to leave. About this time, Foreman Mano arrived,
stepping between the two irate employees. Just as the inci-
dent was breaking up, and Tracht was walking away, Gor-
enstein arrived and asked Tracht what had happened.
Tracht explained the reason for his conversation with Bet-
ke, and how Smith had interrupted them and threatened
EAST ISLAND SWISS PRODUCTS
Tracht with physical violence." At this point, Smith again
interrupted, in Gorenstein's presence, saying, "If you don't
get him out of here, I'll break his legs." Then Gorenstein
turned to Tracht and said, "Jack, I'm going to have to let
you go." Tracht insisted that he worked for Lou Israel, and
that if anyone was going to fire him Israel would fire him.
Gorenstein agreed that Tracht could wait in the office until
Israel arrived. About 8:15 a.m., Israel received Tracht in
Gorenstein's office. After Tracht explained his version of
the incident, Israel instructed him to wait outside while he
talked to Gorenstein alone. Five or 10 minutes later, Israel
called Tracht back in the office, and asked if Tracht threw
any punches at Donald Smith. Tracht replied that he had
not, after which Israel left the office to check Tracht's ver-
sion against that of Donald Smith. When Israel returned,
he told Tracht that Smith had confirmed that there were no
punches thrown. However, Israel stated, "Jack, you might
as well quit." Tracht replied that he was not quitting. Israel
responded, "Look, if you stay here, these people-the old-
timers-are so dead set against you, that they'll make it
tough for you." Tracht replied, "I don't care, they have
nothing to do with me." It is clear from the testimony that
Tracht understood Israel to be talking about the Betke
group. Tracht then asked if Israel was firing him, and Israel
answered that he was going to let Tracht go for his own
good. After receiving his pay, Tracht said goodbye to a few
people, left the plant, and did not return except to vote in
a subsequent NLRB election.
Since, as discussed earlier in this Decision, Respondent
refused to call any witnesses or present any evidence in this
matter, the only indication concerning Respondent's de-
fense to the allegations of discriminatory conduct alleged
with respect to Tracht's discharge are contained in counsel
for Respondent's cross-examination of Tracht. Therein, it
is asserted that one of the reasons Tracht was discharged
was the omission on Tracht's employment application of
his reason for leaving his previous employer. Tracht signed
the application on April 24, 1973, immediately below
wording on the form which states, "I authorize investiga-
tion of all statements contained in this application. I un-
derstand that misrepresentation or omission of facts called
for is cause for dismissal." As explained in his testimony, at
the time Tracht applied for employment with Respondent,
he was suspended while under investigation for unlawfully
taking money from his previous employer, the United
States Postal Service. Tracht was formally charged with
this crime in Federal court on February 19, a fact he con-
cealed from Respondent. The leave of absence referred to
above, which Tracht obtained in February ostensibly to
hunt for a job in Brazil , was actually for the purpose of
obtaining time off for his trial. Tracht also continued to
conceal from his employer his conviction at that trial, even
after sentencing, for which additional appearance in court
he obtained time off for "personal business."5
Respondent's cross-examination also suggests the proposi-
tion that Tracht was discharged because he could not get
Tracht admitted that he responded, "You're not going to do anything
like that," to Smith , but denied that he threatened Smith in any manner.
5 Tracht was sentenced to a $500 fine and incarceration in Federal prison.
At the time of his testimony in this matter, his appeal had been denied and
his incarceration was imminent.
179
along with his fellow workers, which condition was totally
divorced from any union animus by reason of Tracht's
disavowal to Gorenstein of his purported leadership in the
Union.
I find that by discharging Jack Tracht under the circum-
stances presented in this record, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act. It is clear from Tracht's
admissions while testifying that he deliberately omitted
from his employment application, submitted April 24,
1973, the reason for leaving the employment of the U.S.
Postal Service, and that he thereafter deliberately and suc-
cessfully concealed his legal difficulties and subsequent
conviction from Respondent until after his discharge.
There is no suggestion that Tracht was ever confronted by
any of Respondent's supervision with assertions that Re-
spondent knew of Tracht's difficulties with the Postal Ser-
vice or of his deceit in obtaining time off from work, even
though Tracht listed the Freeport Post Office as his previ-
ous employer. Under these circumstances it appears, and I
find, that Tracht's difficulties with the Federal authorities
were learned by Respondent and became a factor in this
case only after Tracht was discharged. General Counsel
has presented a strong prima facie case that, despite
Tracht's denials of having initiated the Union, he was in
fact discharged because of his union activism and because
Gorenstein suspected that he may have initiated the Union
at Respondent. Respondent clearly demonstrated its union
animus by Israel's interrogation of Tracht about finding
union papers in the locker, and by Beyer's promise to grant
80 percent of the employees' demands if they rejected the
Union, which latter statement I find to constitute an un-
lawful promise of benefit in violation of Section 8(a)(1) of
the Act, since it was never actually repudiated or with-
drawn, even at the second meeting. There is strong evi-
dence that the antiunion Betke group did in fact cause
trouble for Tracht with his employer over the subject of a
closed shop. Against this background, it appears that Re-
spondent discharged Tracht in the face of evidence that he
was not at fault in the terminal incident. Since Respondent
chose not to offer evidence for reasons I consider insuffi-
cient under the circumstances presented (although advised
that nevertheless a decision would issue in this matter) I
find and conclude that the General Counsel has estab-
lished that Tracht's discharge was unlawful.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Jack Tracht on April 26 because of his
activities on behalf of the Union, Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
4. By promising employees that 80 percent of their de-
mands would be granted if they rejected the Union, Re-
spondent interfered with, restrained, and coerced employ-
ees in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act in any respects
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other than those specifically found.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order that
Respondent cease and desist therefrom, and to take certain
affirmative action designed to effectuate the policies of the
Act.
I have found that Respondent unlawfully discharged
Jack Tracht on April 26. I find it necessary to order the
Respondent to make him whole for any loss of pay he
incurred by reason of the discrimination practiced against
him, backpay to be computed on a quarterly basis plus
interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), from the date of
discharge to the date of reinstatement, omitting from the
computation any period during which he was not available
for employment. I am aware of Board precedents; namely,
Southern Airways Company, 124 NLRB 749, 752-753
(1959); and National Packing Company, Inc., 147 NLRB
466, 458 (1964), which hold that the remedy of reinstate-
ment and backpay may be withheld, in appropriate cases,
where the discriminatee has failed to furnish his employer
information, which if known would give rise to a reason-
able assumption that the employer would not have hired
him or retained him in his employ. Considering the status
of the record here, created by Respondent's choosing not
to introduce evidence, it is difficult to assess the applicabil-
ity of the test specified by the Board in these decisions. I
am also mindful that by this time Jack Tracht has paid his
debt to society for the offense for which he was convicted
and that his record should not forever deny him the oppor-
tunity to lead a useful self-supporting life. Additionally, I
note that on his employment application Tracht did in fact
furnish to Respondent the name and location of his previ-
ous employer, and thus Respondent might have learned of
Tracht's status with a minimum of investigative effort.
There is no contention that Tracht was an incompetent
worker or that his job involved a substantial degree of
trust. Thus, without condoning Tracht's conduct in con-
cealing events surrounding his conviction and sentencing
from Respondent, I find, in accordance with the precepts
of modern penology and current trends in other areas of
the labor law field, insufficient reasons, under the circum-
stances presented, for denying Tracht reinstatement to his
secondary machine operator's job. In the event the Board
should disagree with this conclusion, I would recommend
that the question of reinstatement in backpay be left for
determination during the compliance stage of this case as
has been done in other cases where for one reason or an-
other the evidence with respect to the appropriateness of
reinstatement and backpay has been deemed insufficient
for an earlier determination. R. G. LeTourneau, Inc., 200
NLRB 425, 444 (1972).
I further recommend that Respondent post appropriate
notices at its premises.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER6
Respondent, East Island Swiss Products, Inc., Deer
Park, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting United Brotherhood of Industrial
Workers, Local 424.
(b) Promising employees improvements in benefits or
other terms and conditions of employment in return for
their rejection of a union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
(2) Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Jack Tracht immediate and full reinstatement
to his former job or, if his job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and make him whole
for his lost earnings in the manner set forth in the "Reme-
dy ."
(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 records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Deer Park, county of Suffolk,
State of New York, copies of the attached notice marked
"Appendix."' Copies of the notice, on forms provided by
the Regional Director for Region 29, after being duly
signed by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt there-
of, and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
6 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
7In 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."