Great Northern Development Co., Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1970

184 N.L.R.B. 679 (N.L.R.B. 1970)

TREASURE LAKE, INC. 679
Treasure Lake , Inc., a subsidiary of Great Northern
Development Co., Inc . and International Union of
Operating Engineers , Local Union 66, A, B, & C,
AFL-CIO. Case 6-CA-4646
July 28, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On January 28, 1970, Trial Examiner Ivar H.
Peterson issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a brief in support of its ex-
ceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent with our Decision and Order.'
As part of the Respondent's plan to develop a
large tract of land as a recreation-resort area, it em-
ployed a brush or woods crew consisting of 25 or
30 men engaged in operating powersaws and clear-
ing and burning trees and brush in order to prepare
the site for actual construction. Most of this crew
was hired in April and May 1969. Bundy, the
foreman of this crew, hired most of these men. Ac-
cording to the credited testimony of several witnes-
sess Bundy told them that they would be hired at
the hourly wage of $2 and would receive a 25-cent
raise in pay after 30 days. They were also told that
there was plenty of work since the whole project
would be going on for at least 15 years.
After the expiration of the 30-day period, several
men asked Bundy about the 25-cent raise which
I On June 3, 1970 , the General Counsel made a motion to the Board to
reopen the hearing The Respondent filed an answer requesting that the
motion be denied In light of our present decision we, at this time, will not
pass on the merits of the General Counsel's motion
they had been promised at the time of their hire. At
first Bundy said there would not be any raises, but
later told them that they had the alternative of ac-
cepting a 12-1/2-cent raise with no overtime or
continue without a raise but with overtime. The
men chose to continue their present pay with over-
time . Shortly thereafter, however, Bundy informed
the crew that there would be no more overtime.
The members of the brush or woods crew, frus-
trated by the denial of the promised pay raise and
loss of overtime, began to discuss organizing a
union.
Shortly thereafter, it appears, Bundy told at least
three employees one morning that he was tired
because he and other foremen had been patrolling
the premises the preceding evening because they
heard the Union was coming in. The Trial Ex-
aminer found that this incident did not constitute a
violation of Section 8(a)(1) since there is no affirm-
ative showing that any union activities were being
conducted at the time. We disagree. It is clearly
evident that the remarks of Bundy were made at a
time when these employees were preparing to or-
ganize a union after Respondent had refused to give
them the promised pay raise. The statements by
Bundy gave employees the distinct impression that
the Respondent was vehemently against union or-
ganization and that their union activities or any
possible future activities were being kept under sur-
veillance, thus violating Section 8(a)(1).
About the same time, members of the crew,
George Gould and Gerald Miller, contacted a union
representative for the Operating Engineers, who
told them to get the names and addresses of those
interested in a union to see whether there was suffi-
cient support for a union. Accordingly, the next
morning, June 20, 1969, while part of the brush or
woods crew was awaiting assignment, George
Gould placed a blank sheet of paper on the hood of
his car and asked those who were interested in a
union to sign the paper. Fourteen signed it.
Duggins, Respondent's coordinator of construc-
tion on the site, discovering that Gould was obtain-
ing signatures for a union, directed that he be fired
immediately. Foreman Bundy carried out Duggins'
directive that morning. The Trial Examiner con-
cluded that George Gould had been discharged in
violation of Section 8(a)(3) and (1) of the Act.
We adopt this determination, to which no party
has filed exceptions.
That same afternoon, a meeting of the entire
brush or woods crew was called by Duggins. At this
meeting it was suddenly announced that there
would be a cutback in the work force and that 13
employees would be laid off. Of those laid off 10
had signed Gould's list.
184 NLRB No. 74
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although acknowledging that the circumstances
raised strong suspicions of a casual connection
between the events of that morning and the layoff
of most of the employees who indicated their in-
terest in the union in the afternoon, the Trial Ex-
aminer concluded that the layoffs were not dis-
criminatory. The Trial Examiner accepted the
testimony of Duggins that he had prepared a list of
14 employees, including the discharged Gould, to
be laid off before he arrived on the jobsite that day
and that an afternoon meeting had been scheduled
the preceding week for this day.
The Trial Examiner has given considerable
weight to the testimony of Duggins in making his
decision. We think this emphasis is misplaced and
find that Duggins' testimony should be discounted.
Duggins states that he prepared the above-men-
tioned list prior to the morning of June 20 but there
is no evidence in the record to corroborate this self-
serving testimony and no tangible evidence, i.e., the
list itself or other documentation, was introduced at
the hearing. He further testified that he had de-
cided to call the meeting to lay off employees the
preceding week. However, there is no evidence that
any of the Respondent's employees knew or were
told that there was to be a layoff prior to June 20.
In fact, uncontroverted testimony showed that up
until a couple of weeks before the layoff the brush
or woods crew was doing considerable overtime
work. Moreover, it defies coincidence that the
Respondent just happened to choose for layoff the
same number of employees (not counting Gould,
who had already been dismissed) as had signed
Gould's list that morning. Finally, there is no ex-
planation as to why Duggins would have summarily
discharged Gould in the morning if he had thereto-
fore planned to lay him off in the afternoon.
Far more revealing in ascertaining the Respon-
dent's true motivation than Duggins' efforts to justi-
fy the layoff are the activities and comments of
Duggins and Bundy, supervisor of the brush or
woods crew, that day. Charles Weilacher, a
member of the brush or woods crew, testified that
later in the morning after Gould had been fired,
Bundy told2 Weilacher that he would find out who
else had signed the paper. And, still later that
morning, Bundy informed Donald and Raymond
Anthony, also members of the crew, that Gould had
been discharged for getting names for a union, and
that in the afternoon there was going to be a meet-
' Foreman Bundy did not testify at the hearing We accept the uncon-
troverted testimony of Charles Weilacher and, to fra, the Anthony brothers,
as properly describing what transpired that morning between Bundy and
themselves
The Trial Examiner concluded that these remarks of Bundy as related
above by the Anthony brothers did not constitute a violation of 8(a)( I )
We disagree The context in which the remarks were made, immediately
ing at which "there are going to be 14 men that get
it that evening."' Further, Duggins, according to
several General Counsel witnesses, stated in a
speech before announcing the layoffs4 at the after-
noon meeting, that the Respondent did not want to
have a union organized and that Gould had been
discharged because of his attempt to organize the
Union.
Upon the entire record, we conclude that the
Respondent discharged 13 employees on the after-
noon of June 20 because of their known or
suspected union adherence.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Treasure Lake, Inc., a subsidiary of Great
Northern Development Co., Inc., DuBois, Pennsyl-
vania , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in International
Union of Operating Engineers, Local Union 66, A,
B, & C, AFL-CIO, or any other labor organization,
by discharging employees or otherwise discriminat-
ing in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Threatening its employees with discharge if
they engage in union activity.
(c) Engaging in or creating the impression of
surveillance of the self-organizational activities of
its employees.
(d) In any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action which
will effectuate the policies of the Act.
(a) Offer to George Gould, Marlean Anderson,
Donald Anthony, John Anthony, Raymond
Anthony, Arthur Bair, Charles Johns, Lara Joiner,
Clifford Limrick, Gerald Miller , Charles Rishel,
after informing the employees that Gould had been discharged for trying to
organize the Union, could only create the impression that this was a threat
of discharges or layoffs related to the morning attempt to begin the or-
ganization of a union
4 As it turned out, three Anthony brothers who were laid off did not sign
Gould's list
TREASURE LAKE, INC. 681
Charles Weilacher, Delbert Weilacher, and James
Weilacher immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and
make them whole in the manner set forth in the
section of the Trial Examiner's Decision entitled
"The Remedy" for any loss of earnings suffered by
reason of the discrimination against them.
(b) Notify the said George Could, Marlean An-
derson, Donald Anthony, John Anthony, Raymond
Anthony, Arthur Bair , Charles Johns, Lara Joiner,
Clifford Limrick, Gerald Miller, Charles Rishel,
Charles Weilacher, Delbert Weilacher, and James
Weilacher if presently serving in the armed forces
of the United States, of their right to full reinstate-
ment upon application in accordance with the
Selective Service act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports.
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its place of business in Dubois,
Pennsylvania, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 6, after
being duly signed by an authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it 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 al-
tered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing,
within 10 days from the date of this Order, what
steps Respondent has taken to comply
herewith.
' In the event that the Board's Order is enforced ny a Judgment of a
United States Court of Appeals , the words in the notice reading " Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in or,
activities on behalf of Intenational Union `of
Operating Engineers , Local Union 66, A, B, &
C, AFL-CIO, or any other labor organization,
by discriminatorily discharging any of our em-
ployees or by discriminating in any other
manner in regard to our employees ' hire or
tenure of employment or any term or condition
of employment.
WE WILL NOT threaten our employees with
discharge if they engage in union activity.
WE WILL NOT engage in or create the impres-
sion that we are engaging in surveillance of the
self-organizational activities of our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations , to join or assist the
above-named Union or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any
and all such activities.
WE WILL offer to George Gould, Marlean
Anderson, Donald Anthony, John Anthony,
Raymond Anthony, Arthur Bair , Charles
Johns, Lara Joiner, Clifford Limrick, Gerald
Miller, Charles Rishel, Charles Weilacher,
Delbert Weilacher, and James Weilacher im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and make them whole for any loss
of earnings they may have suffered as a result
of the discrimination against them.
WE WILL notify the above-named employees
if presently serving in the Armed Forces of the
United States, of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
All our employees are free to become or remain,
or to refrain from becoming or remaining , members
of the above-named or any other labor organiza-
tion.
682
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TREASURE LAKE, INC., A
SUBSIDIARY OF
GREAT NORTHERN
DEVELOPMENT CO., INC.
(Employer)
(Representative ) (Title)
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 com-
pliance with its' provisions may be directed to the
Board's Office, 1536 Federal Building, 1000
Liberty Avenue, Pittsburgh, Pennsylvania 15222,
Telephone 412-644-2977.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H . PETERSON , Trial Examiner : Upon charges
and amended charges filed by International Union
of Operating Engineers , Local Union 66, A, B, &
C, AFL-CIO, herein called the Union , the Acting
Regional Director for Region 6, on behalf of the
General Counsel, issued a complaint on September
4, 1969, against Treasure Lake , Inc., a subsidiary of
Great Northern Development Co., Inc ., herein
called the Respondent, alleging that the Respon-
dent had engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act.' As amended
at the hearing , the complaint alleged that the
Respondent, by its foreman, Glenn Bundy, gave
employees the impression that their union activities
were being kept under surveillance and threatened
employees with loss of employment because of
their assistance and support of the Union ; it further
alleged that George Gould was unlawfully
discharged, and that 14 other employees were un-
lawfully laid off or discharged .' In its answer, the
Respondent denied the commission of any unfair
labor practices.
Pursuant to notice , I heard the case on October
21, 1969 , at DuBois, Pennsylvania . The General
Counsel and the Respondent were represented by
counsel and participated in the hearing . Thereafter
the General Counsel filed a brief.
Upon the entire record in the case and from my
observation of the witnesses and their demeanor, I
' The original charge was filed June 30, 1969, the amended charge was
filed August 8
2 In his brief, counsel for the General Counsel dropped his contention
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Pennsylvania corporation, is
engaged in the retail sale and development of real
estate in the vicinity of BuBois , Pennsylvania. Dur-
ing the 12-month period preceding issuance of the
complaint the Respondent 's gross volume of busi-
ness was in excess of $500,000, and during that
period it received goods valued in excess of
$50,000 from points outside the Commonwealth of
Pennsylvania . The Respondent admits , and I find,
that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
In commenction with its real estate development
operations the Respondent employed a brush or
woods crew consisting of 25 or 30 men engaged in
operating powersaws and clearing and burning trees
and brush. Most of them were hired in April and
May 1969,3 at an hourly wage of $2. Barney Dug-
gins, the coordinator of construction, was in charge
of all construction operations. Although the
Respondent in its answer denied that Glenn Bundy
was a foreman with supervisory authority, the un-
contradicted evidence shows that he hired men, as-
signed work, and supervised employees in their
daily tasks; I find that Bundy occupied a superviso-
ry position within the meaning of Section 2(11) of
the Act. Bundy was not called as a witness.
George Gould, Donald Anthony, and Gerald
Miller credibly testified that when they were hired
by Bundy they were told that after 30 days they
would receive a 25-cent raise in pay. After expira-
tion of the 30-day period, and not receiving a raise,
they inquired of Bundy and were told there would
be no raise. Also, Bundy stated that overtime would
be reduced. In view of these developments, George
Gould, Miller, and other employees began
discussing at the jobsite during lunch periods and
other occasions the posibility of joining a union. On
June 19, as a result of these discussions, George
Gould spoke by telephone to Lester Smiley, busi-
ness agent of the Union. Smiley advised Gould to
get the names, addresses, and telephone numbers of
that Charles Conway, originally named in the complaint , had been dis-
criminatorily laid off on June 20
Unless otherwise indicated , all dates refer to the year 1969
TREASURE LAKE, INC.
the employees interested in the Union and a meet-
ing would thereafter be arranged. At the start of the
workday on June 20, between 7 and 7:15, Gould
spoke to a group of employees who were waiting
for work instructions and for a man to tie back
some trees to clear a powerline before actually
starting work. He told them of his talk with Smiley,
and produced a blank piece of paper which he
placed on the hood of his car and asked the men in-
terested in the Union to sign their names , addres-
sers , and telephone numbers. A total of 14 em-
ployees, including Gould, signed the paper.4
The place where Gould and the others who
signed the paper were working was known as Bay
Road and was a little less than 2 miles from the
main gate of the development. Duggins testified
that he entered the main gate shortly after 7 o'-
clock and, as he proceeded toward Bay Road, he
met Norman Smith, Sr., an employee, who in-
formed him that Gould had signed up a group of
men for the Union and had tried to sign him
(Smith) also. It is Duggins' testimony that, when he
found Gould "was in the process of signing names
for a union" he immediately went to the office and,
at approximately 7:30, called Attorney Smith for
advice. Thereafter, he gave Gould's check to
Foreman Bundy and told Bundy to discharge
Gould.
Gould testified that as Bundy handed him the
check Bundy said he was fired for signing up 14
men for the Union. Gerald Miller, another em-
ployee, testified that he was standing close to Gould
as Bundy came with the check and heard Bundy tell
Gould that the latter signed up 14 men for a union
and, to Gould's inquiry whether that meant he was
fired, answered in the affirmative. After being
discharged, Gould was escorted out the main gate
by a security guard.
Donald Anthony testified that about 9:30 in the
morning Bundy came to where he and his two
brothers, Raymond and John, were working at a lo-
cation some distance from where Gould had signed
up employees. They had not participated in the
paper signing. Bundy stated he had fired a man,
and, when asked who, replied that it was Gould and
that Gould had been getting names to start a
union .' Also during the morning of June 20, after
the discharge of Gould, Bundy came to where
Charles Weilacher was working and stated, with
reference to the paper signing, that he had gotten
the ringleader and would find out who the other
signers were.
At the conclusion of the workday on June 20
Duggins held a meeting of the entire woods crew.
At the meeting, which had been scheduled the
preceding week, Duggins distributed several cases
' These are John Gould, William Gould , Delbert Weilacher, James
Weilacher, Clifford Limrick, Charles Johns, Lara Joiner, Charles
Weilacher, Charles Conway, Arthur Bair, Charles Rishel , Marlean Ander-
son, Gerald Miller, and George Gould Three others-William White,
Robert Rager, and William Dow- signed the night of June 20
' Donald Anthony further testified that Bundy said there would be a
683
of beer to the employees and spoke to them about
the events of the morning and the need to reduce
operations . According to the undenied and credited
testimony of Donald and Raymond Anthony, Dug-
gins mentioned that the men had been " talking
union " and said that he did not want any union.
Duggins also stated that it was necessary to have a
cutback in the woods crew as it was caught up with
the surveying crew which was behind schedule.
Duggins gave a prepared list of those to be laid off
to Foreman Bundy who read off the names and
passed out the checks . A total of 13 were laid offs
Of these, all except the three Anthony brothers
were told the layoff was permanent ; the Anthony
brothers were merely told they were laid off. Ex-
cept for Anderson , who was recalled on July 14,
none of those laid off on June 20 have been
rehired . No new employees were hired for the
woods crew after the June 20 layoffs.
B. Concluding Findings
1. The discharge of Gould
The evidence is uncontradicted that Duggins
determined to discharge Gould immediately after
he learned from employee Smith that Gould had
signed up a number of employees for the Union.
Nor is there any dispute that Foreman Bundy told
Gould when he gave Gould his check that he was
being discharged for signing up employees for the
Union. After the discharge Bundy told Donald and
Raymond Anthony that Gould had been discharged
for signing up 14 men for the Union, and he told
Charles Weilacher that he had fired the ringleader
of the movement to recruit union adherents.
Although Gould engaged in his activity a few mo-
ments after the start of the working day, rather than
on his own time, the record is clear that the men in
the group were awaiting work instructions and the
arrival of a man to tie back a tree near a powerline
before they could begin work. The testimony of
Duggins makes clear that he decided to terminate
Gould because Gould had signed up employees for
the Union rather than because Gould engaged in
such activity on company time when he should
have been working. I conclude and find that the
Respondent discharged Gould because he solicited
employees to sign a paper indicating their interest
in the Union and that thereby the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
2. The June 20 layoff
Counsel for the General Counsel contends that
the 13 employees laid off at the close of the work-
meeting after work and, in Anthony's words, "said there are going to be
fourteen men that get it that evening , the same Friday "
6 Marlean Anderson, Donald Anthony, John Anthony, Raymond
Anthony, Arthur Bair, Charles Johns, Lara Joiner, Clifford Limrick,
Gerald Miller, Charles Rishel , and Charles, Delbert, and James Weilacher
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day on Friday, June 20, were laid off because they
had signed , or the Respondent believed they had
signed , for the Union that morning . On the other
hand , the testimony presented by the Respondent is
that the layoff was caused by lack of work and that
the selection of those to be laid off was based on
merit . Although the circumstances raise strong
suspicions , I am not persuaded that a preponde-
rance of the evidence establishes that the Respon-
dent was discriminatorily motivated in effecting the
layoff.
The timing of the layoffs, coming the afternoon
of the same day that most of the employees laid off
had indicated their interest in the Union by signing
the paper, is a circumstance which suggests a causal
connection between the two events. However, Dug-
gins testified that when he came to the jobsite that
morning he had a prepared list of employees to be
laid off at the end of the workday, that George
Gould was on the list, and that the "major portion"
of the others in the group with Gould were "slated
to be laid off." Duggins further testified that the
meeting held the afternoon of June 20 had been
scheduled the preceding week, for the purpose of
announcing a reduction in force. Moreover, the
record establishes that no new men were hired for
the brush or woods crew following June 20. Marle-
an Anderson, one of those laid off who had signed
the paper, was rehired on July 14 for a job in the
maintenance department. Duggins impressed me
favorably as a witness and I find nothing in the
record that would warrant me in discrediting his
testimony that the selection for layoff had been
made before he became aware of Gould's activity
the morning of June 20.
Also tending to negate an inference of dis-
criminatory motivation is the fact that three em-
ployees in Gould's group who signed the paper
(John and William Gould and Conway) were not
laid off, whereas three others who were not in
Gould's group and who had not signed the paper
(Donald, John, and Raymond Anthony) were in-
cluded in the layoff. There is no indication in the
record that the Anthony brothers had in any way
participated in the unionization movement or that
the Respondent thought they were involved therein.
Although the matter is not free from doubt, I
conclude and find that the General Counsel has not
adduced sufficient evidence to establish that the
Respondent discriminatorily laid off the 13 em-
ployees on the afternoon of June 20. Accordingly,
it will be recommended that this allegation of the
complaint be dismissed.'
3. Alleged Section 8(a)(1) violations
Counsel for the General Counsel contends that
r 1 have concluded that the decision to effect the layoff and the selection
of employees to be laid off had been made by Duggins prior to his arrival at
the jobsite on June 20 Foreman Bundy later that morning told Charles
Weilacher he would find out who else had signed the paper and told
Donald and Raymond Anthony that 14 employees would be terminated
Foreman Bundy's statement to Donald and
Raymond Anthony, during the morning of June 20,
to the effect that "there are going to be fourteen
men that get it that evening," constitutes a threat to
discharge employees for their support of the Union
and is therefore violative of Section 8(a)(1). I think
the statement is equally susceptible of meaning that
14 employees were scheduled to be laid off at the
end of the workday. I am persuaded that this state-
ment was not a threat of reprisal, and I shall recom-
mend dismissal of this specific allegation.
The complaint alleged that Foreman Bundy in
June gave employees the impression that their
union activities were being kept under surveillance.
The only evidence adduced in support of this al-
legation is to the effect that about 2 weeks before
June 20 Bundy, in conversation with employees, in-
dicated that he was tired because he and other
foremen had been patrolling the premises the
preceding night because "they" had heard the
Union was coming in . Donald Anthony , one of the
employees, responded that he had not heard
anything about a union . I am of the opinion, and
find, that the evidence in support of this allegation
is too insubstantial to warrant a finding that the
Respondent created the impression employee union
activities-and there is no specific showing that any
activities of a union nature were then being con-
ducted-were under surveillance. The allegation
will be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent found to con-
stitute unfair labor practices as set forth in section
III, above, occurring in connection with the
Respondent's operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship 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 the Respondent has engaged
in certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take ap-
propriate affirmative action in order to effectuate
the policies of the Act.
Since I have found that the Respondent dis-
criminatorily discharged George Gould, I shall
recommend that the Respondent offer him im-
mediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges, and
that afternoon These statements, which I find were made by Bundy, have
been considered but they do not alter my conclusion that a preponderance
of the evidence fails to support the allegation that the layoffs were violative
of the Act
TREASURE
make him whole for any loss of earnings he may
have suffered from the date of the discriminatory
discharge to the date of the Respondent 's offer of
reinstatement . The backpay shall be computed in
accordance with the formula approved in F. W.
Woolworth Company, 90 NLRB 289, with interest
at the rate of 6 percent per annum , as provided in
Isis Plumbing & Heating Co., 138 NLRB 716. 1 shall
also recommend that the Respondent preserve and,
upon request , make available to the Board , payroll
and other records to facilitate the computation of
backpay due.
As the unfair labor practices committed by the
Respondent are of a character striking at the root
of employee rights safeguarded by the Act, I shall
recommend that the Respondent cease and desist
from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, I make the
LAKE, INC. 685
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 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 George Gould on June 20,
1969, the Respondent violated Section 8(a)(3) and
(I) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
5. In other respects alleged in the complaint the
Respondent has not violated the Act.
[Recommended Order omitted from publica-
tion. )