Root-Carlin, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1951

92 N.L.R.B. 1313 (N.L.R.B. 1951)

In the Matter of ROOT-CARLIN, INC. and VINCENT LORETTO, AN
INDIVIDUAL
Case No. 3-CA-237.-Decided January 15, 1951
DECISION AND ORDER
On September 26, 1950, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate 'Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial Ex-
aminer with the following corrections; additions, and modifications :
The Trial Examiner found, as do we, that the Respondent dis-
charged employee Vincent Loretto because of his efforts to form a
labor organization' in the Respondent's plant .3 However, we do not
adopt the Trial Examiner's recommendation that because the Inter-
national Union, United Automobile, Aircraft and Agricultural Imple-
ment'Workers of America, C. I. 0.,4 is not a party to this proceeding,
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this proceeding to a three-member panel [Members Houston,
Murdock, and Styles].
The Trial Examiner inadvertently referred , to Ester Jung as vice president when, in
fact, Jung was the Respondent 's assistant treasurer . The Intermediate Report is corrected
accordingly.
3 The Respondent excepts to the Trial Examiner's finding that Gundy, Loretto's super-
visor , did not recommend Loretto's discharge. We concur in the Trial Examiner's findings
in this connection. We find further, as the record shows, that on cross-examination
Gundy affirmed the truth of the sworn statement he had made to the Board field examiner,
that. Loretto's discharge had been suggested not by him but by Vice-President. Carlin
and President Root. We therefore find no merit in the Respondent's exception.
We attach no significance to the Trial Examiner ' s findings that the posted notice relative
to working hours did not specifically ban card playing or that Loretto did not see the
notice. It .is sufficient that the Respondent had tolerated, prior to Loretto' s discharge,
the common practice of its employees to wash up and play cards before the official
quitting time.
4 We find, as the complaint alleges and the answer admits , that the International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0.,
hereinafter referred to as the Union, is a labor organization within the meaning of Section
2 .(5) of .the Act.
92 NLRB No. 203 1313
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because Loretto's efforts at organizing the Respondent's employees
were not conducted under the auspices of the Union, the complaint
should be dismissed insofar as it alleges that the Respondent dis-
charged Loretto for assisting the Union in violation of Section 8 (a)
(3) of the Act. As set forth in the Intermediate Report, Loretto, in
urging fellow employees to form a labor organization in the Respond-
ent's plant, specifically referred to the Union. We therefore find that
Loretto's organizational efforts were in assistance of the Union and
that the Respondent, by discharging Loretto, discriminated in regard
to his hire and tenure of employment, thereby discouraging mem-
bership in a labor organization, in violation of Section 8 (a)- (3) of
the Act.
Moreover, Loretto's discussions with fellow employees relative to
the need for union organization constituted concerted activity for
their mutual aid or protection within the meaning of Section 7 of
the Act. Manifestly, the guarantees of Section 7 of the Act extend
to concerted activity which in its inception involves only a speaker
and a listener, for such activity is an indispensable preliminary step
to employee self-organization.-5 Accordingly, we find that Loretto
partici pa' ed in concerted activity, and that the Respondent, by dis-
criminat ; llg against Loretto because of this activity, interfered with,
restrained, and coerced its employees in the exercise of their rights
under Section 7.of the Act, thereby violating Section 8 (a) (1) of
the Act. We further find that the remedy of reinstatement and back
pay e is appropriate and necessary to remedy the unfair labor practices
involved herein without regard to 'whether the discrimination against
Loretto be deemed a violation of.Section. 8 (a) (1) or 8 (a) (3) of
the Act or both?
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Root-Carlin, Inc.,
5 See, for example, N. L. R. R. v. Hymie Schwartz, d/b/a Lion Brand Manufacturing
Company, 146 F. 2d 773, 774 (C. A. 5) ; N. L. R. B. v. Central Steel Tube Co., 139 F. 2d
489 (C. A. 8) ; N. L. R. B. v. Phoenix Mutual Life Ins. Co., 167 F. 2d 983, 998 (C. A. 7),
cert. den., 335 U. S. 845; N. L. R. B. v. Austin & Co., 165 F. 2d 592, 595-596 (C. A. 7).
Where one employee discusses with another the need for union organization, their
action is "concerted" within the meaning of the statute, for it involves more than one
employee, even though one be in the role of speaker and the other of listener.
6 The Trial Examiner found that it was not necessary for Loretto to request reinstate-
ment because he learned for the first time after his discharge that he was discharged for
union activities. We do not adopt this finding. Having been discharged in violation of
the Act, Loretta was under no obligation to request reinstatement either before or after
he learned of the real reason for his discharge.
T Dant & Russell, Ltd., 92. NLRB 307; Duro Test Corporation, 81 NLRB 976; Sandy
Hill Iron & Brass Works, 55 NLRB 1, enfd. 145 F. 2d''631 (C. A. 2).
ROOT-CARLIN, INC. 1315
Buffalo, New York, and its agents, officers, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, C. I.-0., or in any other labor organization, by discharging, laying
off, or refusing to reinstate any of its employees, or by discriminating
in any other manner in regard to their hire or tenure of employment
or any term or condition of employment;
(b) Interrogating its employees concerning their membership in or
activity on behalf of any labor organization, or in any other manner
interfering with, restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor organizations, to join
or assist International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, C. I. 0., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that. such right may
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative-action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Vincent Loretto immediate and full reinstatement to
his former or 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 Intermediate Report entitled
"The Remedy" for any loss of pay he may have suffered by reason of
the Respondent's discrimination against him;
(b) Upon request, make available to the- Board, or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(c) Post at its Buffalo, New York, plant, copies of the notice at-
tached hereto marked Appendix A ." Copies of said notice, to be fur-
nished to the Respondent by the Regional Director for the Third
Region, shall, after being duly signed by the Respondent, be posted by
it immediately upon receipt thereof, and be maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
8 In the event - this. Order is enforced - by a decree-of-_a United States. Court of Appeals,
there shall be inserted in the notice before the words, "A Decision and Order ," the words,
"A Decree of the United States Court of Appeals Enforcing."
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that : .
WE WILL NOT discourage membership in INTERNATIONAL UNION,
UNITED AQTOMOBILE, AIRCRAFT AND 'AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, C. 1. 0., or any other labor organization of
our employees, by discharging any of our' employees, or in any
other manner discriminating as to their hire or tenure of employ-
ment or any term or condition of employment.
AVE WILL offer to Vincent Loretto immediate and full reinstate-
ment to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges ; and we
will make him whole for any loss of pay suffered as a result of the
discrimination against him.
WE WILL NOT by means of interrogation, or in any other manner,
interfere with, restrain,. or coerce our employees in the exercise of
the right to self-organization, to form labor organizations, to join
or assist INTERNATIONAL UNION7 UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTUI AL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain.from any or all such activities
except to the extent that such right may be affected by an agree-
ment requiring membership, in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization.
ROOT-CARLIN, INC.,
Employer.
Dated ---------------------- B3'-------------------------------
(Representative ) . ( Title)
ROOT-CARLIN, INC. 1317
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Milton Pravitz, Esq., and Ralph E. Kennedy, Esq., for the General Counsel.
Davis, Townsend, McElvein & Potter, by Harold V. Potter, Esq., of Buffalo,
N. Y., for the Respondent.
STATEMENT OF THE CASE
Upon a charge filed November 3, 1949, by Vincent Loretto, herein called the
Complainant, the General Counsel of the National Labor Relations Board, on
behalf of.the National Labor Relations Board, herein called the Board, by the
Regional Director "for .the Third Region (Buffalo, New York), as agent for the
Board, issued a complaint dated April 25, 1950, against Root-Carlin, Inc., Buffalo,
New York, herein called the Respondent, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
charge and the complaint together with a notice of hearing were duly served
upon the Respondent and the Complainant.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent (a) on or about September 30, 1949, discriminatorily dis-
charged and at all times since refused to reinstate the Complainant herein for
the reason that he joined or assisted the International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America, C. I. 0., or
engaged in other concerted activities for the purposes of collective bargaining or
other mutual aid or protection; (b) interrogated employees concerning their
union activities, threatened employees with discharge because of their union
membership or activities, and coerced employees from assisting, becoming, or
remaining members of the above-named Union, or engaging in or continuing
to engage in concerted activity ; and (c) that the above alleged acts and con-
duct are violative of the Act more particularly Section 8 (a) (1) and (3)
thereof.
On May 5, 1950, the Respondent filed an answer in which it admitted the juris-
diction of the-Board, denied that it had engaged in any of the unfair labor prac-
tices alleged in the complaint, and averred that it had discharged the Complain-
ant for cause.
Pursuant to notice a hearing was held at Buffalo, New York, on June 6 to 8,
inclusive , before Louis Plost, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were
represented'by counsel, who are'herein referred to in the name of their-principals.
The parties participated in the hearing, and were afforded full opportunity to
be heard , to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, to argue orally on the record, and to file briefs, proposed findings
of fact, and conclusions of law with the undersigned.
At the close of the General Counsel's case-in-chief the Respondent moved to
dismiss the complaint. The undersigned denied the motion . The Respondent
renewed the motion at the close of the hearing and it was again denied. The
undersigned granted a motion by. the General Counsel to conform the pleadings
to the proof with respect to spelling, names, dates, and similar matters.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties waived their right to argue orally. A date was set for the filing
of the briefs, findings of fact, and/or conclusions of law with the undersigned.
On the request of the Respondent made after the close of the hearing, the Chief
Trial Examiner extended the time for such filing to August 7.' Briefs have been
received from the General Counsel and the Respondent.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The parties stipulated as follows :
Root-Carlin, Inc., hereinafter referred to-as Respondent, has a franchise
to sell and distribute Nash automobiles, accessories, parts, supplies and
equipment, and purchases and sells used automobiles and trucks, and other
parts, accessories, supplies and equipment.
Respondent, in the course and conduct of its business operations, for
each of the calendar years 1948 and 1949, purchased new and used automo-
biles, parts, accessories, supplies, materials and equipment in an amount
in excess of $350,000, of which approximately 75 percent was purchased,
delivered and distributed in interstate commerce from and through states
of the United States other than the State of New York, to its Buffalo, New
York, place of business.
During each of the calendar years 1948 and 1949, the Respondent sold
automobiles, parts, accessories, supplies and equipment in the amount in
excess of $600,000, of which approximately one percent was sold and dis-
tributed in interstate commerce from and through states of tpe United
States other than the State of New York, to its Buffalo, New York, place
of business.
During each of the calendar years 1948 and 1949, the Respondent sold
automobiles, parts, accessories, 'supplies and equipment in an amount in
excess of $600,000, of which approximately one percent was sold and dis-
tributed by it as a part of its business operations, to be delivered and dis-
tributed in interstate commerce to and through states of the United States
other than the State of New York, from its Buffalo, New York, place of
business.
Respondent, in the course and conduct of its business operations, sells,
delivers and supplies automobiles, parts, accessories, supplies and equip-
ment to various firms, corporations and business establishments which are
engaged in manufacturing, selling or distributing goods which are sold and
shipped in interstate commerce, and the businesses of which affect interstate
commerce.
Respondent acknowledges that it is engaged in interstate commerce within
the meaning of the Act for the purpose of this proceeding only.
Upon the basis of the above stipulation the undersigned finds that the opera-
tions of the Respondent constitute and affect commerce within the meaning of
Section 2 (6) and (7) of the Act .2
1 The request for extention of time to file was made because the attorney for the Respond-
ent suffered a severe injury occasioning hospitalization shortly after the close of the
hearing.
2 For weight to be given a stipulation see Providence Public Market Company, 79
NLRB 1452.
ROOT-CARLIN, INC.
II. THE ORGANIZATION INVOLVED
1319
The complaint alleges that the Respondent discharged and thereafter refused
to reinstate Vincent Loretto for the reason that he joined or assisted the Inter-
national Union, United Automobile, Aircraft and Agricultural Implement Work-
ers of America, C. I. 0., a labor organization within the meaning of the Act
(hereinafter called UAW).
Loretto testified that he urged fellow employees to organize a union, for
the purpose of collective bargaining with respect to working conditions and
wages but he further testified, (a) that he was not then nor is he now a
member of the UAW, (b) that he had no contact with UAW or any of its officials
or representatives, (c) that the UAW did not engage in any organizing activity
among the Respondent's employees, and (d) that no application cards were
signed for the UAW.
The only relevant reference to the UAW appears in the following testimony :
By Mr. PRAVITZ :
Q. Did you mention any particular union when you were discussing the
union with these people?
A. United Automobile Workers Union of the CIO.
Under the circumstances it is the opinion of the undersigned that the UAW
has no interest in the instant matter which involves it as a party to the proceed-
ings. The undersigned will therefore recommend that the complaint be dismissed
insofar as it alleges that the Respondent did discharge and fail or refuse to
reinstate Vincent Loretto for the reason that he joined or assisted the UAW.
However it is not necessary that a union as such be involved in a proceeding
in order to sustain a charge involving a violation of Section 8 (a) (3) of the
Act, the Board having said :
We are of the opinion and we find that, irrespective of whether such con-
certed activity resulted from any interest or activity in a labor organiza-
tion such discrimination has the effect of discouraging the formation of and
membership in a labor organization, which is the customary instrument
utilized by employees in exercising the right to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed by Section 7 of the Act and constitutes an unfair labor
practice within the meaning of Section 8 (3) of the Act.3
The undersigned therefore finds that the absence of a definite union already
selected to accept membership as one of the objectives of an attempt at self-
organization of employees is not a defect toward a complaint alleging violation
of Section 8 (a) (1) and (3) of the Act.
The complaint also alleged that the Respondent unlawfully discharged Loretto
because he engaged in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. The undersigned therefore finds
that a determination of the evidence with respect to 8 (a) (1) and (3) may be
made under this allegation.
8 Worthington Creamery and Produce Company , 52 NLRB 121. See also Morristown
Knitting Mills, Inc., 80 NLRB 731.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharge of Vincent Loretto
Vincent Loretto, the Complainant herein, was first employed by the Respondent
sometime in April 1946 and was discharged September 30, 1949.
Loretto testified that during his employment with the Respondent he came
to the conclusion that a union organization would be beneficial to the Respond-
ent's employees and that accordingly between September 15 and 30, 1949, he
spoke to various fellow employees urging their cooperation in forming a union.
He testified :
I tried to explain to them the benefits of the union as far as safety condi-
tions were concerned, about living standards and what they could do for
us, and about the different benefits you can derive from the union.
Loretto further testified that on September 15 or 16, he asked his wife to
call the UAW, that she did so and was referred to an official whom she did not
reach. Other than this call Loretto apparently attempted to make no contact
with the UAW. The undersigned has found that the UAW is not involved in
this proceeding.
Of the eight employees named by Loretto as being those whom he sought to
inoculate with the union idea, Willie F. Morris, who was at the time but is
not now in the employ of the Respondent, testified in response to a question by
the General Counsel that :
... He talked to me and Whitehead about the union. He said he was
thinking about getting a union in there and asked me what I think about
it, and I asked him if he had said anything to the other fellows about it.
He was going to go around and see them all about it.
Sam Abramo, who was at the time a mechanic but is now the Respondent's
service manager, called as witness by the Respondent, testified :
Q. What did he [Loretto] say to you about the union?
A. He said we ought to have a union in there.
Q. What did you reply?
A. I didn't reply. I just didn't make any comment. I didn't have much
time to talk to him.
William Helwig, also called by the Respondent, testified that Loretto never
mentioned a union to him.
None of the others named by Loretto were called to testify.
Loretto further testified that at quitting time September 30, 1949, which was
Friday and a regular payday :
I went to my time clock, punched out my card, and I received my
pay envelope and in my pay envelope I noticed an exceedingly large en-
velope. To what the contents were, I didn't know. I opened it up, and.
there I found all my bills that I had owed to the company for stuff that
I had purchased there, and I also noticed that there was a statement from
Mr. Carlin telling me that due to the fact that there was a work shortage
or lack of work, as you would say, they no longer required my service ;
that they were cutting down on expenses and that they were sorry I had
to be discharged or laid off because of lack of work... .
I
ROOT-CARLIN, INC. 1321
Loretto had received no previous intimation that he would be discharged,
nor had there ever been any criticism of his work by the Respondent.
According to Loretto's testimony, after he received the dismissal notice he
went to Jerome F. Gundy , the then service manager for the Respondent and
Loretto's immediate superior . Loretto testified :
. . . I asked him if I couldn ' t back my car into the place and load up. my
tools, most of them so I could take them home . He said I could . He asked
me, what was the matter . I said "Evidently , I am laid off." He said,
"What?" I said "Well here it is Jerry. I am laid off." He said , "I know
nothing about it."
Loretto also testified that on the following morning he called at the Respond-
ent's office and called on Robert E. Carlin, the Respondent 's vice president and
general manager , whom he asked "the real reason" for his discharge and was
again told that it was "because of the work shortage and because of cutting
expenses ." Loretto then said to Carlin , "I thought it was because Mr. Gundy
thought I was a dago , that was the real reason I was laid off. Mr. Gundy
didn ' t like me." According to Loretto , he was again told by Carlin that the
only reason for his discharge was lack of work and curtailment of expenses
but that Carlin did tell him Gundy recommended the discharge . Loretto tes-
tified.that :
I told Mr. Carlin that due to the fact that Mr. Gundy had laid me off and
recommended my lay-off, that I was surprised , because Mr . Gundy and
myself never had any differences that I know of. . . .
Loretto testified further that Carlin then told him that he would be glad to
recommend him for another job "any time ," and that he and Carlin parted
with a handshake . On cross -examination Loretto admitted that at the time he
spoke to Carlin and asked for the "real reason" for his discharge the latter
also told him that the discharge was partly for the reason that (a) Loretto
had been quitting early, ( b) had been bringing personal work to the shop on
which he worked on company time, (c) did not "get along well with Gundy and
had not co-operated with Gundy," and that (d) he had been coming in late in
the morning.
Loretto also testified that Carlin told him, at the time, that he had not in-
tended to reveal these reasons but that he did so because Loretto asked for the
"real reasons."
Also on cross-examination, Loretto testified 'that when he left Carlin's office
he went into the shop where he met Gundy, whom he had talked to the night
before, • and that he now told Gundy , who was talking to the Respondent 's assist-
ant manager , that "he [Gundy ] was lower than a snake."
Robert Carlin testified that when in mid-July 1949 he became the Respondent's
vice president and general manager, he found the Company to be in bad finan-
cial condition and improperly managed. On or about August 15, Carlin held
a meeting of the Respondent 's supervisory staff. and told them "that we were
running at a loss and that we would have to make some curtailments in ex-
penses , that we would have to find out where the dead weight more or less
was in the organization and I would stand on their , recommendations.",
Carlin testified that "about two or three weeks later " Jerome Gundy, head
of the service department, reported that Vincent Loretto "was uncooperative
and arrogant and didn't cooperate mostly," and that Gundy "said he had a
recommendation to make and that was to let Vincent Loretto go ." However
- 929979-51-vol. 92-85
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at another point in his testimony Carlin testified that Gundy "didn 't exactly
say at that time that he wanted to let him [Loretto ] go. He was a little uncer-
tain but he was getting caught up with him."
Carlin testified that his reply to Gundy was "that we would take it under
consideration."
Loretto was not then discharged or in any manner reprimanded or warned..
According to Carlin 's further testimony , fully a month later, Gundy again.
came to him with a report on Loretto and a specific recommendation that
Loretto be discharged for the reason that he was uncooperative , arrogant, and
"not the type of mechanic and the type of cooperative employee that he should
be.,,
Carlin testified that he had no personal knowledge of Loretto or his work but
acted accordingly on Gundy ' s recommendation . Carlin testified that he inter-
preted Gundy 's report to mean that Loretto was uncooperative because he quit
early, that "uncooperativeness " constituted "arrogance" and that Loretto's "un-
cooperativeness and arrogance" together with the effort to curtail expense was
the basis for his discharge , plus the further fact that Loretto brought personal
work into the shop during September and worked on it on the Respondent's
time. Carlin testified that Gundy identified this personal work as having
"something to do with a washing machine or something like that ." ... It
was something of an electrical nature."
Carlin testified that Gundy complained that "Loretto just ignored " his orders
but that the report did not specify which of Gundy's orders "Loretto just
ignored," or wherein he was specifically uncooperative. But that after recall-
ing to Carlin that he had spoken to him about Loretto before Gundy reiterated his
previous complaint and said, "now it has come to a point I have got to let the
fellow go."
Jerome P. Gundy, who was the Respondent 's service manager in September
1949, but is not now employed by the Respondent, testified that he became the
Respondent 's service manager sometime late in February or early in March 1949,
and that he then discovered that some of the men were in the habit of playing
cards in the lunchroom. Gundy testified:
At every noon period and every evening after work. This thing became
that I had to break the games up and I had to stop them from quitting
early and going in there to play cards. That was the thing that made me
post a notice . In fact, this bulletin board was alongside of our time
clocks, which are located in the shop, and I had this put in this lunch room.
I posted on there the working hours that all men were supposed to work,
starting time, lunch period, noon period :and quitting time, and also stipulated
on there that five minutes would be allowed for washing and gathering up
their tools preparing to go home.
Gundy testified that this notice was posted "approximately 30. days" after
he became service manager , which would fix the time as April 1949.
Gundy further testified that six or eight of the employees customarily engaged
in the card game; that Loretto "was the first one in to play cards and about
the last one out"; and that Loretto was cleaned up and ready to go in to the
card game "a quarter after 5: 00" that others would go in with him the same
time; that one of these was the Respondent 's sales manager.
Gundy testified that the notice he allegedly posted contained nothing about
card playing, he did not testify that he ever spoke to Loretto personally regard-
r
ROOT-CARLIN, INC. 1323'
ing the card playing, or that he warned any of the card players on more than
one occasion. Gundy testified :
Trial Examiner PLOST. Did you ever speak to him about playing cards?
The WITNESS. Well, I recall going in the lunch room one day and told
,these boys that they would have to play cards at their lunch period or else
we'd just have to break the whole thing up.
Trial Examiner PLOST. When was this?
The WITNESS. This was in the summer months, I'd say June or July-
something like that.
Trial Examiner PLOST. Did you ever talk to him after June and July
about playing cards?
Mr. POTTER. You mean quitting early and playing cards.
Trial Examiner PLOST. No, I mean playing cards.
The WITNESS. Well, I don't recall offhand.
Gundy also testified that he spoke to Loretto once, either in July or August,
regarding his quitting early but could not recall what he said to Loretto and
testified that he could not remember speaking to Loretto about this type of
infraction a second time.
Gundy further testified that sometime in mid-August, "I went in to see Mr.
Carlin. I complained against Mr. Loretto."
Q. What were your complaints against Mr. Loretto?
A. Well, the thing that irked me and caused me to make this complaint
was that one night just shortly before quitting time, I would say probably
15 minutes before, I had to get a car. It had to be picked up . . . Oh,
approximately I'd say five or six blocks away.
Q. About 15 minutes before quitting time. About what time is that?
A. About 5: 15, and upon calling Mr. Loretto he was all ready cleaned
up, overalls off and all ready to go home.
According to Grundy, Loretto then "flatly refused" to go for the car and he
and Loretto "had a few heated words."
By Mr. POTTER.
Q. What did you say to him and what did he say to you, in effect, if
you don't recall the exact words. You say heated words. Now tell us just
exactly what was said, to the best of your recollection.
A. I said, "Well after all, you get paid until 5: 30 and you should be on
the job.
Q. And what did he say?
A. I said, "That is all right, go right ahead. Just forget about everything.
We will take care of this thing later."
It should be noted that Gundy did not answer the question regarding any-
thing Loretto said during the "heated discussion."
Another employee was sent for the car.
According to Gundy, the next day he made his second complaint to Carlin
regarding Loretto, and definitely requested Loretto's discharge..
Without directly testifying that he so told Carlin during his conversation with
him, Gundy testified to the reasons for his dissatisfaction with Loretto in such
a manner as to create the impression with the undersigned that he was seeking
to corroborate Carlin's reasons for Loretto's discharge. ' Gundy testified that
he recommended Loretto's discharge apparently for Loretto's refusal to go for
the car the previous day, the fact that Loretto came in late, and quit ahead of
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, violated a posted rule that mechanics should be at work until 5: 25 p. in.;
that Loretto played cards with others in the lunchroom and complained to Carlin
that Loretto "spent too much time leaning on the stock room window," testify-
ing that :
Well, every time I looked for him he was leaning on the stock room window.
Gundy also testified that he told Carlin that "I didn't think he (Loretto) was a
first class mechanic."
In answer to questions by the Respondent, Gundy testified that prior to his
recommendation that Loretto be discharged he had no disputes or differences with
Loretto and could recall no incident other than Loretto's refusal to go for the car
the previous day wherein Loretto had. ever refused to take his instructions.
Gundy did not testify to any incidents of inferior workmanship by Loretto.
Corroborating the testimony of Vice-President Carlin, Gundy testified that late
In September, a few days before Loretto's discharge, and fully a month after his
first complaint about Loretto, he again recommended to Carlin that Loretto be
terminated. This second and final recommendation was made in Carlin's office,
however Gundy could not recall how it came about that he went to the office at the
time. He testified :
. . . I don't remember, whether I just walked in or whether I was sent for or
whether I had another occasion to go in.
He also testified that he did not remember whether or not he went in to talk
about Loretto, nor how the matter of discharging Loretto came up, but did testify
that he did at that time recommend Loretto's discharge to Carlin.
Regarding his conversation with Carlin regarding this second recommendation,
Gundy testified :
Q. What did you say to Mr. Carlin then?
A. I don't recall, outside of the fact that I think we were discussing the
work and that he had been doing some work of his own.
At a later point in his testimony Gundy testified :
Well, I said he was hard to manage, and due to expense that he would be the
likely one that I would release.
He testified further that he also told Carlin :
Well, I went back and said he spent too much time in the parts department
window and he was hard to manage and about doing some work of his own
there.
Gundy identified the personal work Loretto brought into the shop as being "some
filters from the furnace."
Gundy could recall no difficulties with Loretto during the month of September,
which covered the period from his first alleged recommendation that Loretto be
tlischarged to his second and final recommendation.
'Gundy also gave a quite different version of the conversation between Loretto
.and himself immediately following the discharge.
According to Loretto he was told by Gundy at the time, "I know nothing about
it" (the discharge). .
According to Gundy, Loretto opened the envelope containing his discharge
and "said it was all right, that something was going to happen sooner or later."
Gundy also admitted- that during the second conference between,Carlin and
:himself, Carlin asked if Gundy knew of any union activity in the shop.
ROOT-CARLIN, INC. 1325
Concluding Findings on Respondent' s Reasons for Loretto's Discharge;
The Respondent's answer avers that Loretto was discharged (a) for the
reason that curtailment was necessary because of lack of business in the de-
partment in which he was employed, (b) because of Loretto's repeated failures to
abide by rules after being warned several times, (c) because Loretto was
arrogant, uncooperative, did work of poor quality, arrived late, quit early, and
did personal work on company time, and (d) that Loretto was discharged in
accord with an established seniority policy.
The Respondent sought to establish its contention by the testimony of Vice-
President Carlin and its then Service Manager Gundy.
Carlin testified that he had no personal knowledge of Loretto's work or con-
duct and "only saw the man" when he was leaving at the close of the day.
Gundy assigned various reasons for the discharge, which are substantially
those given in the answer for the discharge.
Regarding the contention that Loretto was discharged as part of a curtail-
ment program : Statements submitted by the Respondent and admitted in
evidence show that the Respondent's service department operated at a loss
during the time material herein. Carlin testified that during `this period some
employees quit and were not replaced and one transfer was made. However
none of these employees did work similar to that performed by Loretto. Nor
did the Respondent offer any evidence that it took any other steps to overcome
a• loss in its service department amounting to approximately $10,000 from
January to October, other than to discharge one mechanic whose salary was
$76 per week.
Regarding Loretto's alleged failure to observe shop rules, after being warned
to do so, arriving late and quitting early, and being uncooperative and arrogant :
"Uncooperative and arrogant" were defined in Carlin's testimony hereinbefore
cited. The failure to obey shop rules and early quitting apparently stem from
the same alleged infraction. The Respondent admitted that its time cards do
not show that Loretto arrived late or quit early. Gundy testified that because
of the time wasted in card playing he posted a notice forbidding employees from
washing up, preparatory to leaving, before 5: 25 p. in. -However, he admitted
that this notice made no mention of card playing. Loretto freely admitted that
he had washed and changed to his street clothing shortly after 5:15 p. in. and
that he played cards with other employees at noon and after washing before
quitting time, but testified also that he was never told by the Respondent how
much time was allowed for cleaning up but understood that it was "company
policy" to take what time was required after 5: 15 for that purpose. He also
testified that he never saw a posted notice regarding time to begin work, and
when to quit.
It is clear that other employees also cleaned up and prepared to go home at the
same time as Loretto, and that other employees, including an official of the Re-
spondent , played cards together on noon hour and between cleaning up for the
day and actually leaving the plant.
Sam Abramo, who worked with Loretto as a mechanic and is now the Re-
spondent's service manager, testified that he 'saw Loretto ready to leave for
home before 5: 30 p. in. on "6 or 7" occasions within a period of a year.
It is clear that none of the other card players were discharged nor was any
other employee discharged for quitting work early, nor was Loretto ever per-
sonally reprimanded for either of these alleged offences . The only serious -in-
cident involving early quitting by Loretto is the one occasion on which he failed
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to go for a car after 5:15. Loretto freely admitted the incident, he testified
that sometime in mid-September he was asked to go for a car by Gundy's
assistant. The request was made at 5: 20 p. in. Loretto testified :
A. I asked Mr. Gundy-I am sorry, I asked Mr . Sikinoff, who is Mr.
Gundy's assistant, couldn't he send the night mechanic as my wife and I were
going out for a dinner date that evening, and if it was all right for Mr. -
I don't know what the name of the man was-the evening mechanic, if he
couldn't go. The assistant service manager went up to Mr. Grundy and that
is all I heard until he said Mr. Grundy wanted to see me.
Q. Then did you see Mr . Gundy?
A. I did.
Q. What transpired then?
A. Mr. Gundy says, "Vince, you know-" he looked at his clock-he says,
"It is 5: 20, Vince. In other words, you have got to cooperate if you want
to get along." I said , "All right, Gerry." I told him my wife was waiting and
I'd like to go on a dinner date that night.
Q. What else did Mr. Gundy say?
A. That is all he said.
Q. Nothing else whatsoever?
A. Not that I recall.
If as Gundy testified it was this incident which moved him to first recommend
Loretto's discharge to Carlin, the latter could hardly have considered it such a
serious breach of discipline in view of his testimony that he waited fully a
month, and until another recommendation for Loretto' s discharge before he
acted.
With respect to the contention that Loretto did not give sufficient time to his
work, was not a first-class mechanic, and spent too much time "leaning on the
parts department window," Gundy did not testify to any faulty work per-
formed by Loretto, or that he was ever reprimanded for inefficiency. The Re-
spondent called William Helwig, a fellow mechanic, who testified that he knew
of two of Loretto's jobs which "came back." One was a valve ; however Helwig.
was vague as to the time this actually occurred . The other was a pulled tooth in
a. gear , and as to this latter failure Helwig admitted "it could happen to anyone
regardless who did the job" and testified that all mechanics, including. himself,
had jobs returned as imperfect.
Both Carlin and Gundy testified that the alleged fact that Loretto brought in
personal work was raised only at the time of the second recommendation that
'Loretto be discharged. The Respondent contended only that work so brought in
during August and September entered into the discharge.
Carlin testified that Gundy reported to him that the work was "an electric
washing machine." Gundy testified the work consisted of "filters from a fur-
nace." Abramo testified that Loretto brought in some article which he could
not recall and that he (Abramo) welded it for him.
Loretto admitted that he brought in a part from his car in 1947, but denied
that he brought in any personal work in August or September of 1949.
Abramo, who testified that he welded a personal article for Loretto, was not
discharged but replaced Gundy as service manager.
Regarding the contention that Loretto was discharged in accord with a general
seniority policy, Carlin testified :
ROOT-CARLIN, INC. 1327
I had all the men at a meeting at the Markeen and had films and told
them just what our policy was in regard to their standing in the organization
and that we had a seniority policy.
Trial Examiner PLOST. Was that before Mr. Loretto was discharged?
The WITNESS. That was after.
Gundy testified that when he made his first recommendation that Loretto be
-discharged he went to Carlin for that express purpose and recommended the
discharge. Carlin testified that Gundy told him "that he had a recommendation
to make and that was to let Vincent Loretto go," but at another point in his
testimony, with respect to the same incident, Carlin testified that Gundy "didn't
exactly say at that time he wanted to let him go. He was a little uncertain
but he was getting caught up with him."
The undersigned is mindful that Loretto at that time had worked under Gundy
from February until August.
Carlin testified that the second time Gundy came to him and recommended
Loretto's discharge he "reiterated" all his former complaints and asked for the
discharge because "that riow it has come to a point that I just got to let the
fellow go."
Gundy testified that he did not know how he came to go to Carlin's office at
the time he made his second and final recommendation that Loretto be dis-
charged ; did not know how the subject of Loretto's discharge arose at the time ;
.and testified that he then told Carlin that Loretto was hard to manage and "due
to expense he would be the likely one I would release," also adding that Loretto
had brought in personal work.
Loretto impressed the undersigned as an honest, forthright witness whose
testimony was reliable and worthy of credence. Neither Carlin nor Gundy
made such an impression upon the undersigned. Upon the entire record con-
sidered as a whole and upon his observation of the witnesses the undersigned
does not credit the testimony of Carlin and Gundy with respect to the two
meetings they allegedly had in which they discussed the discharge of Loretto.
'The undersigned is persuaded and finds that Gundy at no time recommended
Loretto's discharge, as he testified, and further finds that the testimony relating
to the two meetings or conferences between Carlin and Gundy in which Loretto's
-discharge was recommended, as set forth in their testimony, does not describe
actual happenings. The undersigned therefore finds that in fact Gundy did
not recommend Loretto's discharge, nor did Carlin act upon Gundy's recommen-
dation at the time he discharged Loretto.
The undersigned credits Loretto's testimony and in so doing finds that Loretto's
account of his conversation with Gundy immediately following his discharge, in
which Loretto in substance was told by Gundy that he (Gundy) had no knowl-
edge of the discharge or the reasons therefor, is the accurate version thereof.
In so finding the undersigned sees added support for his finding that Gundy made
no recommendation for Loretto's discharge.
Upon all the evidence in the record, considered as a whole, and from his observa-
tion of the witnesses the undersigned further finds that none of the reasons ad-
vanced by the Respondent for Loretto's discharge were the real cause therefor
but that the reasons so advanced were in fact a mere pretext and that the dis-
charge of Vincent Loretto by the Respondent was for entirely different reasons
.than those set out in the answer or given in the testimony of the Respondent.
Having found that the reasons advanced by the Respondent for the discharge
of Loretto are a mere pretext there remains only the reason advanced by the
'General Counsel to be examined in the light of the record.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Loretto testified that on October 10, he visited the Respondent's plant in order
to return some borrowed tools to a fellow workman and while in the plant he met
George Root, the then assistant service manager. George Root is the brother of
Floyd A. Root, the Respondent's president. Loretto testified that he then entered
into a conversation with George Root during which he told Root that he had
been discharged because:
Jerry [Gundy] didn't like me, he got me out.
According to Loretto, George Root then said to him :
Why no Vince, my brother told me that you were instigating a union, that is
why they relieved you.
George Root denied making the statement.
Loretto also testified that Root's above-related statement was the first intima-
tion he had that his discharge was caused by his attempt to interest the Re-
spondent's employees in forming a union.
Esther Yung, who at the time of Loretto's discharge had been in the Re-
spondent's employ for more than 8 years, and was at the time the Respondent's
assistant treasurer and in charge of the office, testified that she was away on
vacation on September 30, 1949, the day Loretto was discharged. She returned
to the office on October 3, and was then informed by the payroll clerk that Loretto
had'been discharged. The clerk did not know the reason for the discharge nor
was there any notation on Loretto's time card. Yung then went to Floyd A.
Root, the Respondent's president, and asked why Loretto had been discharged.
Yung testified that Floyd A. Root then told her that Loretto "had talked about
a union and that was just one thing they didn't want."
Floyd A. Root denied making the above-related statement to Yung, and further
testified that Yung was discharged for incompetency in November 1949, after
more than 8 years' service.
The Respondent argues in its brief that Yung's testimony should not be cred-
ited as she is moved by animus toward the Respondent.
Yung impressed the undersigned as a credible .witness.
It seems entirely natural to the undersigned that an office manager in charge
of all books and records on noting an unexplained discharge after failing to ob-
tain the reason from the payroll clerk would seek the reason from the com-
pany's president, especially so in a plant with as few employees as the Respond-
ent's. It would also be expected that the Respondent's president would give a
full and frank explanation to an employee who bore the title "vice president" and
had been associated with the enterprise for more than 8 years.
The undersigned is persuaded that Yung's testimony, regardless of any mo-
tive she may have had in offering it, accurately discloses an actual happening.
The undersigned therefore credits Yung as against Root and finds that on October
3, 1949, Floyd A. Root, the Respondent's president, in effect told Esther Yung,
its then assistant treasurer, that Vincent Loretto had been discharged because
be "had talked about a union."
Under all the circumstances in the case the undersigned also credits Loretto's
testimony with respect to his conversation with George Root on October 10,
1949, and finds that George Root, then a supervisor of the Respondent, told Lo-
retto that President Floyd A. Root, who is George Root's brother, had made the
statement to him that Loretto had been discharged because he was "instigating
a union."
ROOT-CARLIN, INC. 1329
Willie Morris , formerly employed by the Respondent , testified that "about a
week before" Loretto's discharge George Root asked Morris "if I knew who
it was going to get a union up in there." Root denied the incident.
Upon all the evidence considered as a whole and from his observation of the
witnesses the undersigned credits Morris.
The undersigned is further persuaded that Carlin 's inquiry regarding the
existence of union activity as made to Gandy and George Root's inquiry of Mor-
ris, both as hereinabove found , show that the Respondent sought knowledge of
union activity among its employees , and Floyd A. Root's statement to Yung, as
well as George Root 's statement to Loretto , as herein found, disclose that the Re-
spondent obtained such knowledge.
The undersigned finds that George Root ' s inquiry of Willie Morris regarding
the union activity of the Respondent 's employees constitutes a violation of the
Act chargeable to the Respondent and that thereby the Respondent has inter-
fered with, restrained , and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act , more particularly Section 8 ( a) (1) thereof.
The Briefs
In his brief the General Counsel argues that the United Automobile , Aircraft
and Agricultural Implement Workers of America, C . I. 0., is involved in these pro-
ceedings because the parties stipulated that this organization was a labor organ-
ization within the meaning of Section 2 (5) of the Act . The stipulation was
made at the opening of the hearing before any evidence was received. The
undersigned has found that the evidence disclosed the organization had no
interest whatever ; for this reason and for the further reason that an erroneous
stipulation does not bind the trier of fact the undersigned finds no merit in the
General Counsel 's contention.
The Respondent in its brief seems to argue . that the charge filed by Loretto
was an afterthought , inasmuch as he made no claim to the Respondent that
his discharge was occasioned by his union activity but contended only that he
was discharged because of racial prejudices.
The Respondent also seems to contend that Loretto 's admitted failure to request
reinstatement precludes any order of reinstatement.
The undersigned finds no merit in either contention.
Loretto's ignorance of the real cause of his discharge at the time he talked
to Carlin , at most shows him to be naive , later he learned the cause of his dis-
charge in his conversation with George Root, and thereafter it was not necessary
for him to make the futile gesture of requesting reinstatement.'
The Respondent further argues:
Nor did Loretto engage in any "concerted " activities , etc. All he did was
talk about a union . . . There is no evidence any other employee did any-
thing about the union with or without Loretto except listen to him talk or
talk with him.
If the above is an argument that the complaint does not lie for the reason
that there could have been no interference with rights guaranteed in the Act,
because the right allegedly interfered with was never exercised , the contention
is without merit.
4 See Morristown Knitting Mills, 80 NLRB 732.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has long been settled that one employee's effort to interest his fellows in
the formation of an organization for the purpose of bargaining with their em-
ployer constitutes concerted activity within the meaning of the Act. It is much
too late to seek a different interpretation by engaging in an exercise in semantics.
Conclusion
Upon the entire record, considered as a whole, the. undersigned is convinced
that General Counsel's contention that Loretto was discharged by the Respondent
because of his concerted activity is well supported by the evidence. The record
is clear that as soon as the Respondent learned of the move toward self-organiza-
tion among its employees it acted promptly to counteract it. It cannot be said
that the Union was "nipped in the bud," rather the Respondent removed the
employee who sought to scatter the seed before the. seed could fall on either
fertile or stony soil.
On the basis of his findings in Section III, above, the undersigned finds that the
Respondent discharged Vincent Loretto on September 30, 1.949, because of his
attempt to interest the Respondent's employees in the formation of a labor
organization for the purpose of collective bargaining with the Respondent with
respect to their wages and working conditions and has thereby discriminated
in regard to his hire and tenure of employment, discouraged membership in a
labor organization, and has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in Section 7 of the Act, more par-
ticularly Section 8 (a) (3) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent, described in Section I,
above, have a close, intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminated with respect to the
hire and tenure of employment of Vincent J. Loretto, by discharging him
because of his concerted activities. It will, therefore, be recommended that
Respondent offer Vincent J. Loretto immediate and full reinstatement to his
former or substantially equivalent position ° without prejudice to his seniority
or other rights and privileges and make him whole by payment to him of
a sum of money equal to that which he normally would have earned as
I In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position" is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equiva-
lent, position." See The Chase National Bank of the City of New York, San Juan, Puerto.
Rico, Branch, 65 NLRB 827; Crossett Lumber Co., 8 NLRB 440-; Republic Steel Corpora-'
Lion v. N. L. R. B., 311 U. S. 7.
ROOT-CARLIN, INC. 1331
wages from the date of discrimination to the date of the Respondent's offer
of reinstatement, less his net earnings .0
Inasmuch as the discharge of employees for union or concerted activity is
regarded by the Board and the courts as one of the most effective methods
of defeating the exercise by employees of their right to self-organization, there
is danger that the commission of unfair labor practices generally . is Af6 i b6
anticipated from Respondent's unlawful conduct in the past.; It will, there-
fore, be recommended that Respondent cease and desist from in any manlier
interfering with, restraining, or coercing its employees in the exercise of 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, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Root-Carlin, Inc. (Buffalo, New York) is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the' Respondent has
engaged in, and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. By discriminating with regard to the hire and tenure of ^ (employment
of Vincent J. Loretto, thereby discouraging membership in a labor organizatiolk
of its employees, the Respondent has engaged, and is engaging, in, unfair labor
practices within the meaning of Section 8 (a) (3) 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.
[Recommended Order omitted from publication in this volume.]
. ° Consistent with the policy of the Board the loss of pay shall 'be computed ,on the basis
of each separate calendar quarter or portion thereof during the period from Respondent's
discriminatory action to the date of a proper offer of reinstatement. The quarterly periods
hereafter called "quarters" shall begin with the first day of January, April, July, and
October. It will be further recommended that Respondent make available to the Board
upon request payroll and other records to facilitate the checking of the amount of back'
pay due.' F. W . Woolworth Company, 90 NLRB 289.