Goshen Litho, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1972

199 N.L.R.B. 769 (N.L.R.B. 1972)

GOSHEN LITHO, INC. 769
Goshen Litho, Inc. and New York Paper Cutters and
Bookbinders Union Local No. 119 , International
Brotherhood of Bookbinders, AFL-CIO and Juan
Madera Santos . Cases 2-CA-12407, 2-CA-1240
7-2 and 2-CA-12453
October 17, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 8 , 1972, Administrative Law Judge 1
Herzel H . E. Plaine issued the attached Decision in
this proceeding . Thereafter , the General Counsel,
Charging Party and the Respondent filed exceptions
and supporting memorandums.
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
attached Decision in light of the Respondent's excep-
tions and memorandum and has decided to affirm the
rulings , findings , and conclusions have and to adopt
his recommended Order , as modified herein.
The General Counsel and the Charging Party
except to the Administrative Law Judge 's failure to
provide in his Order that employee Matthew Babula
be offered an unconditional offer of reinstatement by
Respondent to his former position in the Re-
spondent' s camera department or a substantially
equivalent job without prejudice to his seniority and
other rights and privileges . The Administrative Law
Judge in his Decision , while finding that Babula was
discriminatorily laid off by Respondent for discrim-
inatory reasons the second time on or about October
27, 1971, as alleged in the complaint , failed to provide
for his reinstatement by the Respondent . In the ab-
sence of any evidence on the record that Respondent
made an offer of reinstatement and that Babula, if
offered such reinstatement would reject such offer or
that Babula , in any other manner has affirmatively
waived reinstatement, we shall amend the Adminis-
trative Law Judge's recommended Order to provide
for Babula's reinstatement by Respondent?
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 and hereby
orders that Goshen Litho, Inc., Goshen, New York,
its officers , agents, successors , and assigns , shall take
the action set forth in the Administrative Law Judge's
recommended Order, as modified below: -
1. Amend the Administrative Law Judge's rec-
ommended Order by substituting for paragraph 2(a)
the following:
"(a) Make employees Paul Schaefer and Mat-
thew Babula whole in the manner set forth in the
section of the Decision entitled `The Remedy,' for any
loss of earnings incurred by each as a result of the
layoff of Schaefer on June 25, 1971, and the layoff of
Babula on July 2, and October 27, 1971. Offer to
employee Matthew Babula immediate and full rein-
statement to his former job in the camera department,
or if the job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or oth-
er rights and privileges."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Heinrich Motors, Inc., 166 NLRB 783.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated the National Labor Rela-
tions Act:
WE WILL NOT lay you off or discharge you for
appearances to testify, or for testifying, adversely
to us before the National Labor Relations Board
(the Board).
WE WILL NOT discourage you from support-
ing any union with your testimony, or discourage
interest or membership in any union, by discrim-
inatory layoff, discharge, or other discriminatory
action affecting your tenure and conditions of
employment, because of your testimony.
WE WILL NOT wain you or voice displeasure
about the kind of testimony you give before the
Board.
WE WILL NOT in any other way interfere with
your rights to belong to or to be active for a labor
union or to refrain therefrom.
Because the Board found that we unlawfully laid
off Paul Schaefer and Matthew Babula and unlawful-
ly discharged Juan Madera Santos, because they ap-
peared and gave testimony before the Board under
the National Labor Relations Act,
199 NLRB No. 120
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL give Schaefer and Babula backpay
with interest for their loss of earnings in the peri-
ods of layoff, and
WE WILL offer to Babula his former position
or like position without loss of seniority, or other
rights and privileges; and
WE WILL offer to Santos his former or like
job and give him backpay with interest for his
loss of earnings since the discharge.
GOSHEN LITHO, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately Juan Madera Santos, if
presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon applica-
tion after discharge from the Armed Forces, in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 36th Floor, Federal Building, 26 Fed-
eral Plaza, New York, New York 10007, Telephone
212-264-3311.
TRIAL EXAMINER'S DECISION
HERZEL H. E. PLAINS, Trial Examiner: The question
presented is whether Respondent, a printing company, vio-
lated Section 8(a)(4), (3), and (1) of the National Labor
Relations Act (the Act) by layoff or discharge of three em-
ployees who testified adversely to it before the Board in a
previous trial involving commission by the Respondent of
unfair labor practices. The previous case was Goshen Litho,
Inc., 196 NLRB No. 139 (May 9, 1972), tried in June and
July 1971 by Trial Examiner Sidney Sherman, decision is-
sued November 3, 1971.1
The present case was tried in Goshen, New York on
March 7 and April 3-5, 1972, on a consolidated complaint
issued November 12, 197 1,2 and Respondent's answer deny-
ing any wrongdoing. Respondent defended on the ground
that there was no work for the three employees and that the
layoffs and discharge had nothing to do with their testifying.
General Counsel and Respondent have filed briefs.
Affirmed in all respects by the Board decision, with one exception not
pertinent here The case is referred to hereinafter as Goshen Litho I.3 The complaint consolidated charges filed by the Charging Party Union
(the Union) July 12 and 19 , 1971, on behalf of employees Schaefer and
Babula, and a charge filed by Charging Party Santos on September 16, 1971,
for himself.
Upon the entire record of the case, including my obser-
vation of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent is a New York corporation engaged in the
printing of books, magazines , and other printed materials at
its plant in Goshen, New York. In the year prior to issuance
of the complaint, Respondent received at its plant in New
York goods valued in excess of $50,000 transported in inter-
state commerce from places outside New York, and sold
and distributed in interstate commerce in excess of $50,000
of its products to places outside New York.
Respondent is engaged, as it admitted, in commerce
within the meaning of Section 2(6) and (7) of the Act.
The Union is, as Respondent also admitted, a labor
organization within the meaning of Section 2(5) of the Act.
Two other unions are, and are conceded by Respon-
dent to be, labor organizations within the meaning of the
Act, Local 1 of the Lithographers Union, and Local 318 of
the Paper Mill Workers. However, while they were directly
involved in the previous case, they have not participated in
the present case.
II THE UNFAIR LABOR PRACTICES
A. Discrimination Against Employees
Shaefer and Babula
Respondent operates its business of printing books,
magazines, and other literature at the plant in Goshen with
about 100 employees, according to its vice president, Morris
Weintraub, who uses and prefers the name Murray Traub.
He and his brother Harry, who is president of Respondent,
are, the principal officers and are in overall charge of the
business.
Beginning in 1968 the employees have been the subject
of, and involved in, union organizing activities by three
competing unions. Two elections have been held and set
aside, and a third has been ordered by the Board in Goshen
Litho I.
In Goshen Litho I, Respondent was found to have viola-
ted Section 8(a)(1), (2), and (3) of the Act, comprehending
discriminatory discharges and layoffs of employees, threats
of reprisal and promises of benefits, and other interference,
largely designed to persuade or coerce its employees to sup-
port and favor one of the unions , Local 318 (see heading I,
supra), for whom the Traub brothers and Respondent's su-
pervisors were found to have solicited employee support.
Testimony, that was relied upon in Goshen Litho I for
finding interference by the Traub brothers and by Supervi-
sor Tom Corday with employee rights and with the 1970
election, was given by two senior skilled employees, Paul
Schaefer and Matthew Babula . Both gave their testimony in
early June 1971.
In the present case, employee Schaefer testified without
contradiction, that when he returned to work after testifying
in June 1971, neither Harry nor Murray Traub, who had
theretofore talked with him as a social friend, stopped talk-
GOSHEN LITHO, INC.
ing to him and wouldn't even say "good morning" to him.
Shortly thereafter, on June 25, 1971, President Harry Traub
told employee Schaefer there was no work, that Respondent
had lost all its magazines, and that he was laid off.
Employee Babula testified that when he returned to
work, after testifying at the trial in June 1971, his supervisor,
Corday, told him that (vice president) Murray Traub was
very unhappy with his testimony, and sounded very serious
about it .3 While Corday dewed saying this, I credit Babula's
testimony, which has support in the course of events. A few
days later, contrary to a prior arrangement for a later and
different type of vacation, and over his protest on this score,
employee Babula was told by President Harry Traub that
he was being put on a 2-week vacation (for the last two
weeks in June); and, while on vacation, Babula was notified
not to report back for work until further notice.
Employee Schaefer began his employment with Re-
spondent in 1957, when it was known as Chester Litho.
Before his hiring he had had 6 or 7 years experience in color
stripping and platemaking, and he was hired as a stripper
and platemaker. He worked steadily and without interrup-
tion for the Respondent, continuing when the Traubs took
over the management as Goshen Litho (the current name),
until the layoff following his testifying in June 1971. Even
the temporary closing of the business years back, because
of a fire, cost him only the loss of a day, since he was put
to work in a temporary location in New York City. His pay
rose steadily to the rate of $5 per hour (at the time of layoff)
through some 15 raises, and he was told at one point by Vice
President Murray Traub that he (Schaefer) was a key man
in their business. His work covered stripping, platemaking,
and composing. In the Spring of 1971 he was largely doing
color stripping, which calls for a high degree of skill, in
contrast to the lesser skill for black and white stripping. He
was the employee with most seniority in the stripping de-
partment.
Employee Babula began his work for the Respondent
in 1959, first for Chester Litho and later for Goshen Litho.
He came to Respondent with 14 years' experience as a
professional photographer and 5 years' experience in dot
etching and color separation. He was hired as a camera man
and dot etcher. In 1971 he was doing the largest part of the
dot etching, which not only requires skill but artistry, ac-
cording to Vice President Murray Traub. Babula had gone
through successive raises to his rate of $5 per hour at the
time of the June 1971 vacation and layoff, and had worked
steadily for Respondent except for a brief loss of time, years
ago, because of the fire and an interruption during the
change of management from Chester Litho to Goshen Litho
in 1966. Babula had the most seniority among the employ-
ees in the camera department.
In the case of both employees, the performance of their
work had been favorably commented upon in the course of
their employment, and their capabilities and performance
was not in issue.
Following the layoff of June 25, 1971, employee Schae-
fer called in early July to inquire if there was work and was
told no. At the end of September he was recalled and re-
3 Corday was found to be a supervisor within the meaning of Act in Goshen
Litho I, and there was no evidence of any change in status warranting any
different finding here.
771
commenced work September 27, 1971. He was working for
Respondent at the time of the trial in April 1972.
In employee Babula s case, following the two-week
forced vacation from June 21, 1971, and the layoff, which
would appear to have been on July 2 (but shown on
Respondent's books as July 5, 1971, apparently because of
the intervention of the July 4 weekend holiday), Babula
came to the plant to ask about the layoff and saw Supervisor
Corday and President Harry Traub. Traub said he didn't
know if the layoff was permanent or temporary but would
call Babula if work came in. Like Schaefer, employee Babu-
la was recalled on September 27, 1971, but was laid off again
October 27, 1971. Sometime thereafter he took another job
elsewhere, where he was employed at the time of the trial.
The Defense
Respondent claims that following the trial of Goshen
Litho I it had no work for employees Schaefer and Babula
and laid them off.
Respondent does an annual business of about $3.5 mil-
lion, using as typical the monthly sales of calendar 1971.
While called sales, these are actually billings for work done
and delivered. Vice President Murray Traub characterized
these monthly figures (listed in exhibit R-3B and supple-
mented at Tr. 339-340), a good barometer of the business.
The totals fluctuate from month to month, frequently by as
much as $50,000, $75,000, or $100,000, and sometimes
more.4
It is therefore quite significant that during the 12 to 14
years, prior to July 1971, that these two skilled employees,
Schaefer and Babula, worked for Respondent, despite the
fluctuations of monthly sales , they were never laid off. And,
in 1971, while July turned out to be the low point in sales
for the year, August, September, and October showed a
rapid rise by $140,000.5
More important, however, is the fact that the manage-
ment judgment on staffing or layoff of the kind of skilled
employees involved here is not ordinarily a spot judgment
but, as Vice President Morris Traub indicated, one calcu-
lated well in advance, based upon business in hand. Indeed,
Traub testified that the decision to lay off both employees
was made on business in hand and billings. Nonetheless he
provided no evidence of the business or orders on hand,
using the June and July billings (sales) as also representing
the orders on hand in June and July. But Traub also testified
that he knew the business that was on hand, 4 months in
advance. He therefore was well aware at the end of June and
early July that while June sales and July sales would be
lower than previous months, the sales in August, September,
and October would go up, as they did (fn. 5, supra). To
suggest, as Respondent now does, that the decision to drop
two important people from among the relatively few skilled
people, was made at the end of June and early July based,
in effect, on the low June and July sales, is to suggest that
a motive other than an economic motive figured in the
decision.
For example (using rounded numbers), January 1971 , $335,000 dropped
by well over $100,000 for February 1971, to $228,000; March 1971 rose by
$50,000 to $279,000, and April 1971 jumped over $100, 000 to $380,000.
5 The figures were (in round numbers), July, $204,000; August $290,000;
September, $300,000; October, $345,000.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact is that the sales figures, which are the total
monthly billings for literature printed and delivered, repre-
sented hindsight and not the • foresight-the orders in
hand-needed and used ordinarily by this Respondent in
making economic judgments regarding staffing. In this con-
nection it is worth noting that in the peak billing month of
April 1971, which showed sales of $380,000, there was testi-
mony provided by Respondent that it laid off the whole
night shift of the bindery (eight employees), indicating that
the orders or "business in hand" would reflect declining
sales in the next several months after April, as turned out
to be the fact.6
Respondent was asked by General Counsel to produce
the record of its orders. Respondent replied that it did not
keep a record of orders. I find this difficult to believe for a
company grossing $3.5 million annually from printing or-
ders for a wide variety of literature from a fairly large assort-
ment of customers.
Respondent contended that its loss of publication of
nine magazines (exhibit R-3A, showing last publication of
two magazines in March, four in April, one in May, and two
in June 1971) led to the layoff of employees Schaefer and
Babula. However, General Counsel provided testimony that
the dropping of these magazines was part of a changeover
by Respondent from publication of so-called "girly" maga-
zines to commercial types, that took place. Respondent of-
fered no contradiction of this evidence, and the sales figures
beginning with August 1971 would bear out General
Counsel's contention that the loss or dropping of the nine
magazines was made up by acquisition of other publica-
tions.
The Section 8(a)(4), (3) and (1) Findings
The close relationship in time between the layoffs of
employees Schaefer and Babula, and their testifying before
the Board, and the abrupt manner of effectuating the lay-
offs of these two most senior employees in their respective
departments, after each had served Respondent well for 14
and 12 years, respectively, without layoff through previous
dips and rises in business, indicate that Respondent was
motivated if not entirely, at least in part, by a desire to
retaliate for the two employees having given testimony ad-
verse to Respondent in the previous unfair labor practice
case.
Theprima facie indication of unlawful motive was forti-
fied by the failure of Respondent to support its contention
that the layoffs were due to lack of work for the two employ-
ees, either with adequate records or by the import of the
evidence it did produce. Respondent's decisions to lay off
employees Schaefer and Babula were made in late June and
early July 1971, respectively, after they testified in early
June. Respondent stated it selected these two for layoff
upon business or the lack of it in the shop, and the billings
for work done and delivered . Billings in June and July
showed a downward dip from previous months. However,
Respondent testified it had 4 months' advance knowledge
of the business in hand, which, from the only evidence
6 In round numbers the sales were : April $380 ,000; May $314,000, June
$279,000; July $204,000.
available (the billings thereafter) ,7 showed that Respondent
had business in hand to produce, and did produce, a
steadily increasing rise in sales (billings) through August,
September, and October 1971, resembling the upward trend
and dollar amounts of early 1971.
Respondent recalled employees Schaefer and Babula
on September 27, 1971, and laid off Babula a second time
on October 27, 1971, notwithstanding the fact that orders
(again using the billings) indicated a downward followed by
an upward tilt in November, December (1971), and January
(1972) sales.
Respondent 's claim that it lacked business in the sum-
mer and fall of 1971 to continue the steady employment of
Schaefer and Babula thus has the appearance of pretext. In
this connection, Respondent's violations of the Act in Gosh-
en Litho I aid in explaining the real and discriminatory
reason for the layoffs, Paramount Cap Mfg. Co. v. N.L.R.B.,
260 F.2d 109, 112-114 (C.A. 8, 1958); N.L.R.B. v. Reed and
Prince Mfg. Co., 205 F.2d 131, 139-140 (C.A. 1, 1953), cert.
denied 346 U.S. 887; and even if the layoffs were only
partially motivated by the discriminatory reason, they were
in violation of the Act, N.L.R.B. v. Park Edge Sheridan
Meats, Inc., 341 F.2d 725, 728 (C.A. 2, 1965).
The layoff of employee Schaefer on June 25, 1971, and
the layoff of employee Babula on July 2, 1971, and again on
October 27, 1971, were violations by Respondent of Section
8(a)(4), (3), and (1) of the Act, N.L.R.B. v. Vacuum Platers,
Inc., 374 F.2d 866, 867 (C.A. 7, 1967). In addition, the
warning by Supervisor Corday to employee Babula that
Respondent was displeased with his testimony, was an inter-
ference with the Section 7 rights of the employees in viola-
tion of Section 8(a)(1) of the Act.
B. Discrimination Against' Employee Santos
Juan Madera Santos began work for Respondent July
1, 1969, according to his employment record, exhibit GC-8,
and worked steadily with Respondent until April 7, 1971,
except for a 6-week layoff (April-May 1970), an absence for
ajob-connected injury (he was on workmen's compensation
January-February 1970), and a short absence in December
1970. Santos started at $2.125 per hour, and received succes-
sive raises to $2.50 per hour. According to his testimony, he
worked at various physical labor jobs throughout the shop,
and in the eight months preceding April 7, 1971, he worked
under the pressroom foreman, Alfred Burgi, baling waste
paper.
Employee Santos became ill in April 1971, and as Fore-
man Burgi acknowledged, got word to Burgi that he would
have to stay out and was going to Puerto Rico. Burgi found
a replacement for employee Santos in the baling room.
When Santos came back at the end of May 1971 asking if
there was a job for him, Foreman Burgi told Santos some-
one else was doing the baling job and he had nothing for
him in the pressroom, but inquired on his behalf of the
foreman of the bindery, Werner Dubacher. Foreman Du-
bacher said he had a job for Santos.
There was a dispute in the testimony, as between Du-
7 The best evidence would have been Respondent's orders. Although Re-
spondent did about $3 5 million worth of business in 1971, it made the
incredible claim that it had no record of its orders, which were for a wide
variety of publications from an assortment of customers.
GOSHEN LITHO, INC. 773
bacher and Burgi , on the one hand, and employee Santos,
on the other hand, as to whether Santos was to report the
next day or on June 1, and whether or not he was told and
shown in advance the precise nature of the job, and whether
or not he was told the job was for a limited duration. In any
event, it was agreed that Santos reported for work in the
bindery, and worked, on June 1, 1971, lifting and moving
heavy bundles of a hymnal book. On June 2, Santos, and
a considerable number of other employees whose testimony
was required by the, General Counsel in Goshen Litho I,
went to court. Santos was not reached to testify until Friday,
June 4. His testimony related to signing a union authoriza-
tion card in April 1970 and being laid off a few days later.
After giving his testimony, employee Santos returned
to the shop, and found that his card had been pulled. He
talked to Foreman Dubacher, who told Santos that he had
pulled the card, that Santos had been absent 3 days, and
there was no more work. Dubacher's words were, according
to Dubacher, that the job was finished and that I didn't need
him anymore. Santos protested that Dubacher knew he was
at the trial, because Harry and Murray Traub knew it. Du-
bacher replied he was sorry there was no more work.
Santos came by the plant several times thereafter, Fore-
man Dubacher testifying that he saw Santos possibly two
more times talking with his "buddies" in the baling room.
Santos testified, without contradiction from Foreman Bur-
gi, that at the end of June he went back and asked Foreman
Burgi for work and was told no, there was nothing for him.
The fact is there was plenty of work for employee San-
tos, if Respondent had wanted to keep him or rehire him.
Witness Joseph Price, a college student, testified he was
hired (a few days after Santos was discharged) and worked
thereafter all summer doing physical labor in the pressroom.
Employee Regie Bradshaw, who had 6 years' expe-
rience working for Respondent, described a number of jobs
that required physical labor in the bindery and pressroom
that were available and performed by others needed for
other things at the time of, and immediately following, the
discharge of Santos . The hymnal job that Santos had toted
on June 1 was also run again later in June and toted by
someone else.
Foreman Burgi admitted that he regularly hired un-
skilled labor that walked in off the street looking for jobs.
And, Vice President Murray Weintraub testified that Re-
spondent usually advertises to obtain unskilled labor.
Santos could have qualified. Respondent then restated its
defense to be that Santos had not been discharged (on June
4, 1971), that he had been hired for one job which ended
while he was testifying, and that he never applied again and
Respondent had no obligation to look for him
The Section 8(a)(4), (3), and (1) Findings
I find the defense an obvious sham . Respondent's
claim , that it told Santos he was being rehired only for a
specific job of moving certain bundles for a few days and
would then be terminated , is completely out of keeping with
his 2-year work record of all around physical labor for
Respondent , and Respondent's obvious great and contin-
uing need for his kind of work throughout the shop.
Not only did employee Santos deny being told that he
was being rehired for only a few days , but Foreman
Dubacher 's claim that he so informed Santos is not worthy
of credit . Dubacher testified that he informed the office girl,
Joyce Bleha , he was putting Santos on the payroll, when he
came to work June 1 . Dubacher did not claim telling her of
any time limitation or other condition , and the employment
record, exhibit GC-8, does not show any . Indeed it shows
only that Santos worked June 1 , 1971, and was "layed off."
Nor did Dubacher testify that he informed the Traubs or
communicated with them concerning Santos . It would ap-
pear therefore that Foreman Dubacher got his orders from
the Traubs , as announced in court on June 2, and that he
informed Santos accordingly on June 4 when Santos was
released from his court obligation and reported back to
work.
The fact that these were orders from above, not to
employ Santos further, is also reflected in Foreman Burgi's
changed attitude toward Santos thereafter , telling Santos
untruthfully that there was no work for him when he applied
for work again later in June.
Respondent was clearly visiting reprisal upon employ-
ee Santos , because of his appearance in court to testify
adversely to Respondent, with the aim to discourage other
employees from so doing . Such conduct violated Section
8(a)(4), (3), and (1) of the Act, N.L.R.B. v. Vacuum Platers,
Inc., supra, 374 F.2d 866 , 867 (C.A. 7, 1967).
CONCLUSIONS OF LAW
The Defense
In Goshen Litho I, on the first day of the trial, June 2,
1971, Respondent announced in open court, thru its coun-
sel, that it noted the presence of Santos among the witness-
es, that he had just been rehired for a specific job of moving
some bundles, and that he had been told when the job was
finished, and it would be finished in a few days, there would
not be a job for him and he would be let go.
Respondent offered this statement (exhibit R-1) as its
defense here. After employee Bradshaw enumerated from
the witness stand the jobs that had been contemporaneously
available for Santos to fill (supra), Respondent stipulated
that there were job opportunities in at least the press and
bindery departments, on and after June 1, 1971, for which
1. By discriminatory layoffs of employees Schaefer
and Babula for giving testimony before the Board adverse
to Respondent, and by discriminatory discharge of employ-
ee Santos for appearing before the Board to give, and there-
after giving, testimony adverse to Respondent, with the
purpose of retaliating against such employees and discour-
aging others from similarly or otherwise supporting unions
opposed by Respondent, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(4), (3),
and (1) of the Act.
2. By warning an employee that his testimony before
the Board displeased Respondent, Respondent has engaged
in an additional unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
It will be recommended that the Respondent:
(1) cease and desist from its unfair labor practices;
(2) make employees Schaefer and Babula whole for the
loss of pay suffered by reason of their layoffs, and offer to
reinstate employee Santos with backpay from the time of his
discharge. The backpay in all three cases shall be computed
on a quarterly basis as set forth in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up
Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent
per annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), approved in Philip Carey Mfg. Co. v.
N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S.
888; and
(3) post the notices provided for herein.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the Act,
and because there appears from the manner of the commis-
sion of this conduct an attitude of opposition to the pur-
poses of the Act and a proclivity to commit other unfair
labor practices, it will be recommended that the Respon-
dent cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941,;
N.L.R.B. v. Bama Company, 353 F.2d 323-324 (C.A. 5,
1965); P. R. Mallory and Co. v. N.L.R.B., 400 F.2d 956,
959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, there is hereby issued the following recommended:
ORDERS
Respondent, its officers, agents , successors, and assigns
shall:
I. Cease and desist from:
(a) Layoff or discharge of employees for appearances
before the Board to testify, or for testifying, adversely to
Respondent.
(b) Warning employees that testimony given by them
before the Board was displeasing to the employer.
(c) Discouraging employees from supporting unions
with their testimony, or discouraging interest or member-
ship of its employees in unions by layoff or discharge or
a In the event no exceptions are filed as provided be Sec . 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and 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
other discrimination affecting tenure and conditions of em-
ployment of employees who appear and testify before the
Board in support of such unions.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make employees Paul Schaefer and Matthew Babu-
la whole, in the manner set forth in the section of the deci-
sion entitled "The Remedy," for any loss of earnings
incurred by each as a result of the layoff of Schaefer on June
25, 1971, and the layoff of Babula on July 2, and October
27, 1971.
(b) Offer to employee Juan Madera Santos immediate
and full reinstatement to his former job or, if the job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges; and
make him whole, in the manner set forth in the section of
the decision entitled "The Remedy" for any loss of earnings
incurred as a result of his discharge on June 4, 1971. Notify
him, if serving in the Armed Forces of the United States, of
his right to full reinstatement upon application after dis-
charge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to ascertain the backpay due under the terms of this Order.
(d) Post in its plant at Goshen, New York, copies of the
attached notice marked "Appendix."9 Immediately upon
receipt of copies of said notice, on forms to be provided by
the Regional Director for Region 2 (New York, New York),
the Respondent shall cause the copies to be signed by one
of its authorized representatives and posted, the posted cop-
ies to be maintained for a period of 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.
(e) Notify the Regional Director of Region 2, in writ-
ing, within 20 days from the date of the receipt of this
decision, what steps the Respondent has taken to comply
therewith.10
9 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 "
10 In the event that the recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director of Region 2, in writing , within 20 days from the date
of this Order, what steps Respondent has taken to comply therewith."