Smedberg Machine & Tool, Inc.

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smedberg Machine & Tool, Inc. and Joseph P. Mayer. Case 13-CA-18285 May 15, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 24, 1980, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Smedberg Machine & Tool, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a) of the recommended Order: "(a) Make Joseph Mayer whole for any loss of earnings incurred from December 11, 1978, to April 13, 1979, in the manner set forth in the sec- tion entitled 'The Remedy."' 2. Substitute the attached notice for that of the Administrative Law Judge. ' Respondent has excepted to certain credibility findings made by the Administrative .aw Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vilces us that the resolutions are incorrekt Standard Dry Hall Products. inc.. 91 NRII 544 (1950), eifd 188 2d 362 (3d Cir 1951) We have carefully examined he record ad find no basis for reversing his findings. I In his Decision, the Admilistratise I.aw Judge specifically found that employee Mayer was unequivocally recalled to his psition effective April 13, 1979, that any backpay to which he was entitled should be tolled as of that (late, and that the parties had stipulated that Meyer waived reisltatemenl. However, in the remedy portion of his )ecision and i his recommenrded Order, the Administrative L.aw Judge reconm- metndcd that Rcspondent be ordered to offer Mayer inlinediate and full reillstatement ith full backpay W'e shall modify the recomnmelided ()rder to require only that Mayer he made whole for ally lss of earnings ilcurred from the date lof his discharge to April 13, 1479, iad shall ubsti- tute a nuc.'. notice 249 NLRB No. 76 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT layoff or terminate employees for engaging in concerted or union activities. WE WILL NOT interrogate employees about such activities. We will not threaten reprisals to employees for such activities WE WILL NOT threaten to close the plant be- cause of such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in ex- ercising rights guaranteed by Section 7 of the Act. WE WILL pay Joseph Mayer for loss of earnings with interest from December 11, 1978, to April 13, 1979. SMEDBERG MACHINE & TOOL, INC. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: The larger issue in this case is whether Smedberg Ma- chine & Tool, Inc. (Respondent), laid off machinist Joseph Mayer because he was no longer needed or be- cause he promoted unionism among the employees. Sub- sidiary issues which relate to the larger question are whether Respondent interfered with employee rights by threats and interrogation. As set out below, I find that the threats and interrogation occurred, and that the motive for the layoff was discrimination. The case arises from unfair labor practice charges filed on December 11, 1978,1 by Mayer as an individual l All dates herein are in 1978 unless olherw ise indicated SMEDBERG MACHINE & TOOL, INC. 535 1979, a complaint based on these charges issued alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (the Act), by discharging Mayer on December I I and thereafter not reinstating him. The complaint, as amended, also alleges that on December 12 Respondent's plant superintendent, by implication, threatened employees engaged in union activity with reprisals, that sometime in December he in- terrogated an employee about Mayer's starting a union movement in the shop, and that on December 13 Re- spondent's president threatened to close the plant unless the employees ceased their union activity, all in violation of Section 8(a)(1) of the Act. Respondent answered the complaint admitting essential jurisdictional facts, but denying the unfair labor practices alleged. The issues were heard before me in Chicago, Illinois, on September 13, 1979. Based on the entire record, including my observation of the witnesses and consideration of the briefs filed by the General Counsel and Respondent, I make the follow- ing: FINDINGS OF FACT I. THE EMPLOYER Respondent, an Illinois corporation, is engaged in Chi- cago, Illinois, in the operation of a job shop for the man- ufacture and wholesale of machine parts. It annually sells and ships such products valued at over $50,000 from its shop directly to enterprises located outside Illinois. Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. R. E. Smith and Florence B. Smith, a partnership, d/b/a South- ern Dolomite, 129 NLRB 1342 (1961). Company management includes Herbert Smedberg, president, his son Kenneth Smedberg, vice president, and Charles Svesas, plant superintendent. The complement of employees varies from 20 to 40. At the time of the events involved herein, between 20 and 25 workers were employed. Employee turnover is high.2 The work involves operation of lathes, drill presses, manually operated milling machines, and numeri- cally controlled milling machines. Historically the oper- ation has been nonunion. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Employment of Mayer 1. The hiring In answer to a newspaper advertisment of Respondent seeking machinist, Mayer applied on October 23 at Re- spondent's shop and was interviewed by Superintendent Svesas. They discussed Mayer's background in the ma- chinist trade, he describing himself as a specialist on mill- ing machines and capable of performing his own setups, and more particularly as having experience on the verti- cal, horizontal, and convertible Cincinnati and Bridge- port machines used by Respondent. Svesas explained to 2 During 1977, 25 new employees were hired, of which only 2 re- mained in September 1979. During 1978, 48 were newly hired, of which 10 remained in September 1979 him that the normal workday was 11 hours, beginning at 6:30 in the morning and ending at 6 in the evening, and that the normal workweek was 5 days with voluntary overtime work on weekends. He offered Mayer a job at $8 per hour working on the Cincinnati and Bridgeport machines.3 Mayer reported for work the following Monday, October 30. He continued in Respondent's employ until December 11, when he was let go. 2. Mayer's performance Respondent had three Cincinnati and two Bridgeport machines located in the same section and operated by Mamilla and by Mayer. In an adjacent section three nu- merically controlled papertape milling machines were operated by Patrick Bala, who had been with the Com- pany longer than Mayer, but who did not possess the qualifications of a journeyman-machinist able to indepen- dently operate either the Cincinnati or Bridgeport ma- chines. Although in general Mayer divided his time be- tween the Cincinnati and the Bridgeport machines, he more frequently worked on the Bridgeports. 4 Mamilla undoubtedly was the more competent of the two milling machine operators, possessing more recent in-depth experience and receiving the highest pay in the shop. Although not as qualified as Mamilla, Mayer nev- ertheless was competent. As pointed out by Svesas, Mayer needed help from Mamilla in performing some setups because he had been away from this type of work for a time. But even respecting setups, he was sufficient- ly qualified to set up the machines for less qualified em- ployees to operate, and he did so on numerous occasions. Svesas testified that Mayer was slow. However, this evaluation is suspect. I find that Mayer was slower than Mamilla but proficient enough to perform adequately. He was never criticized for being slow. Svesas gave him some special assignments which would not have been given to an employee who was not proficient. The casual observation of fellow employee Hurley was that Mayer was careful but not slow. Patrick Bala also observed that both the quality and quantity of Mayer's work was good. Finally, when Svesas let Mayer go, he made no mention of slowness as a reason for terminating him. B. The Protected Activity A few days after Mayer came to work, Hurley, who operated lathes not far from the milling machines, went over to Mayer's work station to borrow some tools. He asked Mayer what they could do about getting a union in the shop. Mayer replied there was a lot they could do if they all pulled together. It was a custom in the shop for employees to take lunch in groups at one or another machine or in good weather to gather outside the shop door. During No- vember and continuing until he was let go, Mayer regu- a This was Respondent's usual starting rate for an experienced journey- man operator of those machines. The only other employee regularly as- signed to those machines was Bronco Mamilla, who received 9.50 an hour. 4 Svesas testified that Mayer divided his time equally between the two types of machines The observation of Floyd Hurley, who worked about 25 feet away. was that Mayer worked more on the Bridgeports. I credit Hurley as the more disinterested witness. 536 DECISIONS OF NAT IONAL LABOR RELATIONS BOARD larly joined five or six others for lunch near his machine. The group varied from day-to-day, but, in addition to Mayer, often included Mamilla, Hurley, Vago Bobic, Bala, Kenneth Venstrum, and Ramon Challa. They en- gaged in general conversation and also talked about working conditions and the possibility of a union. The long I l-hour workday was one matter complained of by many, including Mamilla, Bala, Hurley, and Venstrum. Another complaint was disparate pay for the same type of work. Another was the presence of excessive waste and oil on the floor. Venstrum and Hurley complained that the pay was inadequate. Bobic said a company promise to institute profit sharing had not materialized. There was general objection to the lack of overtime pay when more than 8 hours was worked in a day but less than 40 hours in the week. They also talked about addi- tional holidays and shorter tenure for entitlement to holi- day pay. At some point during November, Hurley raised a question whether it was possible to form a union. Mayer commented to the group that he had previously worked in a union shop and was of the view it would be benefi- cial to have a union. Whether they formed their own or- ganization or called in an outside union was up to them. In early December, and specifically on December 6, the group, including Mayer, Mamilla, Bobic, Hurley, Bala, Venstrum, and Challa, talked about collective-bar- gaining agreements. Mamilla in particular was interested in starting a union as soon as possible because he felt the Company's failure to implement profit sharing was cost- ing him money and a union might negotiate such a plan. Mayer indicated his willingness to prepare a rough draft of contract proposals if those present would indicate what they desired in a contract. With this in mind they discussed various proposals about overtime, equal pay for equal work, and plant cleanliness. The next day, De- cember 7, they continued their discussion during lunch- time. Mayer suggested that some of them find out what others in the shop thought about having a union in order to reach some estimate of the prospects of successful or- ganization. Bobic, Mamilla, Bala, and Hurley all agreed to inquire among their fellow workers and report back the next day. On December 8 the group again convened near Mayer's workplace and reported on the results of their inquiries. It appeared that about 80 percent of the shop employees would favor a union. Mayer then agreed to bring in on Monday a rough draft of contract propos- als for purposes of negotiation. That he should have un- dertaken this seems logical. From his participation in the hearing in this matter it is obvious that he is intelligent, articulate, and well educated. It is clear, and I find, that the discussions among the employees, including Mayer, about conditions of employment and the steps taken toward collective action respecting them were both con- certed and union activities within the meaning of the Act. As detailed hereinafter, Mayer was laid off on Monday, December 11. After being told of this, he had his toolbox checked and went to the locker room to change clothes. While he was there, two Spanish-speak- ing employees came in to wash. They asked him what had happened, and he replied that he had been fired for trying to start a union in the plant. They then asked if it were still possible to have a union, and he replied he be- lieved so and would do what he could to help organize the plant. According to Mayer, they conversed in Span- ish rather than in English because Company President Herbert Smedberg was within earshot outside the locker room door. This incident shows further protected activi- ty among the employees, including Mayer. This does not establish company knowledge of such activity because there is no evidence Smedberg understood the conversa- tion in Spanish even if he overheard it. Company knowledge of Mayer's protected activity is shown by the unlawful interrogation of Bobic found in the following section hereof. In addition, such knowl- edge is inferrable from the post layoff threats of reprisal and plant closure found hereinafter. Other surrounding circumstances also provide a basis for inferring employer knowledge of Mayer's protected conduct. These circum- stances include the situs of the employee activities in the workplace, the small size of the work force and the shop, and the occasional luncheon conversations of Ken- neth Smedberg with employees. Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959). C. The Interrogation At the hearing counsel for the General Counsel amended the complaint to allege that in December Plant Superintendent Svesas unlawfully interrogated employee Vago Bobic regarding Mayer's efforts to start a union. Respondent denied the allegation. To support the allegation, the General Counsel relies upon the testimony of Bobic, a witness who has difficul- ty speaking English. He testified that, at 9 a.m. on Mayer's last day of work (Monday, December 11), Svesas spoke to him at his machine and asked him, "Is Joe (Mayer) the one who would like to put the union in?" Bobic replied he did not know. Bobic was asked by counsel for the General Counsel what happened next. His responses are not entirely clear, a difficulty I attribute to his lack of facility with English. The sense of his testimony in response to questions from both counsel for the General Counsel and counsel for Respondent is that, about 20 minutes after his conversa- tion with Svesas, Mayer was laid off, and that somewhat later, when he asked Svesas why Mayer was fired, Svesas stated he was not being fired, that he was laid off. Svesas' testimony is somewhat inconsistent with that of Bobic. Although he confirms that, subsequent to Mayer's termination Bobic asked him why, he placed the conversation in the morning immediately after Mayer left, while Bobic placed it 2 or 3 hours later. Svesas' ver- sion is that Bobic called him over to his machine and asked, "What is Joe being let go for?" Svesas replied, "For lack of work." According to Svesas, Bobic then asked, "Well, he's not being laid off because of the Union?" Svesas replied, "No." Svesas further testified that he said he did not know anything about the Union. To the extent that the testimony of Bobic and Svesas is inconsistent, I credit and rely on the testimony of Bobic. His demeanor was forthright. At the time of the hearing he was still employed by Respondent, and his testifying as part of the General Counsel's case was con- SMEDBERG MACHINE & TOOL, INC. 537 trary to his apparent best interest. Svesas, on the other hand, was a member of management, who testified vol- untarily and in accordance with his own best interest. I further note that Svesas attributed to Bobic statements couched in language patently beyond his verbal abilities, which raises a question as to the accuracy of Svesas' re- porting. I find that on the morning of December II, about 20 minutes prior to the layoff of Mayer, Svesas unlawfully asked Bobic whether Mayer was the one who would like to put the Union in. Considering that Svesas was Bobic's superior, that the conversation occurred in the shop, and that it dealt with union activtiy in the shop, I find the inquiry was coercive and interfered with Bobic's statu- tory rights in violation of Section 8(a)(l) of the Act. The incident further demonstrates that immediately prior to the layoff Svesas knew there was a movement among shop employees to organize a union and suspected that Mayer was the key man in that movement. D. The Termination of Joseph Mayer On Monday morning, December 11, Mayer began work at 7. At or about 9:30 a.m. Svesas approached him at his machine, told him to turn it off, and said, "Joe, I'm going to have to let you go because of lack of work." He handed him two checks, paying him through 10:30 a.m. of that day. He told him to have his toolbox checked, to collect his belongings, and to leave the plant, and that it was unnecessary for him to complete the job he was doing at the time consisting of 14 pieces of bronze of which only 2 were completed. Respondent's normal payday is Wednesday. No expla- nation is offered as to why Mayer was suddenly laid off without notice in the middle of the pay period. Svesas did testify that laid off employees are given at least 4 hours' pay on the day of layoff. This appears to have been complied with in Mayer's case because he was paid through 10:30. Kenneth Smedberg testified that good machinists are extremely hard to find and that, if there is any way Re- spondent can keep one on its payroll, it makes an effort to do so. He further testified that the decision to lay off Mayer was made by his father, Herbert Smedberg. In this connection Svesas testified that on the prior Saturday (December 9) the senior Smedberg informed him that insufficient work was coming into the shop and asked Svesas what could be done about it. Svesas testi- fied he replied as follows: I told him, well, we have a choice. We can layoff the new machinist in there and cut down that way over there, and he asked me, he said, "How is he doing over there," and I said, "Well, he's slow. He hasn't picked up on the setups and everything on it," and he said "Well, go ahead then and save on that." Regarding whether Mayer was slow, it should be noted that no one, including Svesas, ever informed him in any fashion that he was slow or not performing setups adequately. No other machinist in the shop other than Mamilla and Mayer was able to do setups. It is apparent that Mayer was in the middle of the job of 14 bronze pieces which had to be completed by some- one else after his layoff. No explanation is offered as to why, even assuming insufficient new work was coming in, he could not have compeleted that particular job al- ready in hand before being laid off. After having his tools checked and changing his clothes, Mayer left the plant for his car in the company parking lot. He found the lot locked, so he returned for someone to unlock it. Svesas came out and opened the gate. As he did so he told Mayer, "I want you to know that I don't hold anything against you." He then held out his hand. If in fact Mayer was laid off because business was down, there was no reason for this remark. And if Mayer's work was inadequate, Svesas certainly would not have made it. The comment, considered with other circumstances surrounding the layoff, suggests that Svesas harbored some guilt feelings regarding the layoff. E. The Threat of Reprisal The complaint alleges that on December 12, the day after Mayer was laid off, Svesas implied a threat of repri- sal to employees engaged in union activities, and that this threat violated Section 8(a)(1) of the Act. Following Mayer's layoff, various employees speculat- ed as to whether his interest in the Union had precipitat- ed his departure. Floyd Hurley testified that on Decem- ber 12 he and fellow employee Kenneth Venstrum were talking in this vein at Hurley's work station. Venstrum said Mayer had been fired for trying to get a union in. While the two were talking about it being unfair that he had been fired, Svesas walked up and said, "I hope you guys aren't involved in this union thing." He then walked away. Svesas denied that he ever threatened employees for engaging in union activities. As between this general denial and the account of Hurley, I credit Hurley as the more disinterested witness. The circumstances described by Hurley strongly sug- gest that Svesas overheard some of the conversation of the two employees. In any event, involvement of the two in the union movement was a matter in which Svesas could not meddle without risking violation of Section 8(a)(l). He spoke with the authority of a supervi- sor, and, in expressing the hope that they were not in- volved with the Union, following as it did by 1 day the layoff of the prime promoter of unionism, he pointedly conveyed to them that the same could happen to them if they were involved. I find, therefore, that Svesas com- mitted an unfair labor practice prohibited by Section 8(a)(l) of the Act. I further find that the layoff of Mayer was founded on management's desire to nip unionism in the bud. F. The Threat of Plant Closure The complaint also alleges, and the answer denies, that on December 13 Herbert Smedberg threatened an em- ployee with plant closure if the employees did not cease their union activities. To support this allegation, the General Counsel relies on the testimony of Patrick Bala, an operator of numeri- 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cally controlled milling machines who was still em- ployed by Respondent at the time of the hearing. He re- called that, a day or two following Mayer's layoff, Her- bert Smedberg approached him at his work station to in- quire what he was working on and, in the conversation which followed, emphasized the importance of produc- tion in relation to profits. Smedberg continued talking as Bala worked and, at a point when Bala was setting his micrometer to check parts, asked him what he was doing. Bala replied that he was trying to make sure the work was done right. Smedberg then stated, according to Bala, "You guys seem to have time to stand around and talk about unions but you don't seem to have time to work." Bala just shrugged his shoulders. Smedberg began to leave, then turned back and said, "You know, you guys want to bring a union here, you know what I'll do, 'll lock the - door, that's what I'll do." When he was called to testify, Herbert Smedberg, in answer to a leading question, denied in general terms that in December 1979 he told employees that if they got a union in he would shut the place down or words to that effect. He was not asked whether he had a conver- sation with Bala. I credit Bala as the more disinterested witness. He was still employed by Respondent at the time of the hearing and testified contrary to his own best interest. Smedberg, on the other hand, was an interested party. Further, his testimony was much less specific than that of Bala. As company president, Herbert Smedberg was respon- sible for the decision to lay off Mayer. The above com- ment to Bala, made a day or two after Mayer's layoff, indicates strong animosity toward the concerted and union activity and supports the above finding that the layoff of Mayer was unlawful discrimination intended to discourage unionism. In addition, the president's declara- tion that because employees desired a union he would lock the shop door unlawfully threatened retaliation against them for engaging in their union and concerted activities in violation of Section 8(a)(1) of the Act. G. Business Reasonsfor the Layoff In its brief Respondent urges two business reasons for the layoff; namely, (a) a slowdown in business, and (b) the breakdown of one of the Cincinnati machines. 1. The slowdown in business At the time he laid off Mayer, Svesas gave lack of work as the reason. Whatever the larger picture actually was, it is clear that at the time Mayer had work to do. He was then on a job involving 14 pieces of bronze of which only 2 had been completed. Following his depar- ture other employees finished the work he had begun. Thus, at the time of layoff Mayer had not run out of work, and it does not appear that his immediate work sit- uation (as distinguished from the larger work picture) re- quired his layoff. The timing of his layoff also has some bearing on the economic defense. Mayer received no advance notice. If he were to be laid off he might logically have expected it to occur on Friday at the end of the workweek or Wednesday at the end of the pay period. But Svesas laid him off in midmorning on Monday, without notice, and in the middle of a job. In these circumstances a lack-of- work defense holds water only if it appears that the larger business picture dictated the layoff. Respondent's sales journal for 1978 does not show any particular downturn in business at the time of the layoff. Accounts receivable were highest in April and lowest in September. Mayer was hired in late October. Sales in November and December were neither particularly high nor particularly low. These records do not specifically show the situation in the milling machine area where Mayer worked. Presumably the workload in that area at the time of layoff could have been demonstrated by busi- ness records. Yet none were offered. Thus, the record is left with the generalized testimony of management wit- nesses that work was slack and the contrary testimony of several fellow employees of Mayer that work did not slack off. Management witnesses included Vice President Ken- neth Smedberg, who testified that in late November and early December they were not particularly busy, and that Haulomatic Corporation, one of their regular cus- tomers whose work generally involved use of the milling machines, was giving them less work. This testimony was not keyed to any business records available at the hearing. The witness merely explained he was able to tell that business was slow at that time because, from his constant review of current sales records and current jobs in the shop, he knew sales were down. He testified that he, his father, Herbert Smedberg, and Svesas made such periodic reviews on Monday. But Mayer was laid off early Monday morning, and Svesas testified that the de- cision to lay him off had been made the previous Satur- day. Thus, it would appear that the decision did not result from a routine weekly business evaluation, but rather was a special decision. Svesas corroborates Kenneth Smedberg in the general observation that at the end of November and beginning of December milling machine work was starting to slow down, not much new work was coming in, and work from Haulomatic was diminishing. But again no business records touching on those conclusions were offered in connection with his testimony. Herbert Smedberg, the president, did not testify on the subject. Certainly Svesas and Kenneth Smedberg were better able to observe the work flow in the entire shop than were the rank-and-file employees who testified there was no drop in milling machine work. But is it strange that no documentation substantiates the management position. Records which were offered were subpenaed by the General Counsel and tend to indicate there generally was no downturn in business. Testimony respecting the nature of the job shop business tends to show that the sales journal is a reasonably accurate reflection of the state of the business at any particular time. Considering that neither Kenneth Smedberg nor Svesas were disinter- ested witnesses, that the employees who testified on this subject were less interested, and that the documentation in the record, although not conclusive, fails to indicate any marked downturn in business around the time of Mayer's layoff, I find that a preponderance of the evi- dence fails to establish that a downturn in business war- SMEDBERG MACHINE & TOOL, INC. 539 ranted the layoff as a matter of prudent business judg- ment. 2. Shutdown of the Cincinnati machine Respondent's second point of economic defense is the breakdown of one of the five milling machines. As al- ready noted, the milling machine area contained three Cincinnati machines and two Bridgeport machines. These were operated by Mamilla, the most senior and most qualified machinist, and by Mayer. Both men were qualified not only to operate the machines, but also to set them up. Mamilla and Mayer operated all five machines. Various other machinists in the shop who were not com- petent to set up were able to operate one of the Bridge- ports if either Mamilla or Mayer set it up. Respondnet urges that Mayer's layoff was justified be- cause the machine on which he principally worked broke down and was taken out of service. The defense is falla- cious on several grounds. Respondent's brief asserts there were two Cincinnati machines in the shop, one of which broke down. The record shows there were three. When consideration is given to the testimony of Mayer, as well as that of Svesas and other employees in the shop, it can not be said that Mayer spent a significantly greater amount of time on the Cincinnati machines than on the Bridgeports. Finally, the troublesome Cincinnati machine was not shut down prior to or at the time of the layoff. Svesas testified that, while Mayer was still employed, "We had started having a little trouble with that ma- chine," that from the time of his layoff until the follow- ing April it was operating off and on but not regularly, and that it was taken out of service and remained out for 3 or 4 months. The fact is that at the time of Mayer's layoff it was still being used. Only after his layoff and as the result of an OSHA inspection and direction to shut it down was it taken out of service and then it remained out for 3 or 4 months. There is no evidence that Re- spondent anticipated this shutdown. The only fair con- struction of this record is that the condition of the ma- chine did not figure in the decision to lay off Mayer. The shutdown was an adverse development which occurred later and supplies no basis for explaining the reason for his layoff on December 11. 3. Other points In his brief counsel for the General Counsel treats of certain other possible defenses which Respondent does not assert in its brief. I have considered these and con- clude that they afford no meritorious defense. Counsel for the General Counsel anticipated (errone- ously) that Respondent would argue that Mayer per- formed defective work which was returned by custom- ers. The record does not demonstrate that Mayer did faulty work. Another point anticipated by counsel for the General Counsel is that Mayer was slow and further could not set up the milling machines for some jobs. As noted ear- lier herein, Mayer was careful but he was never criti- cized for being slow, and slowness was not mentioned to him at the time of his layoff. I find it was not a factor in his layoff. As to his ability to set up the milling machines, the evidence indicates that Mamilla was more competent. But to say that another employee was more competent is not to say that Mayer was inadequate. He was never criticized on that ground, nor was he faulted for occa- sionally having sought the assistance of Mamilla. According to Svesas, Herbert Smedberg decided on the layoff on Saturday, December 9, during a discussion in which Svesas spoke of Mayer as being slow and unable to set up the machines in all circumstances. Her- bert Smedberg was not asked to corroborate Svesas re- garding that conversation. And Svesas' statement regard- ing Mayer's slowness is contradicted by the credible tes- timony of both Hurley and Bala. The record contains substantial evidence of Mayer's competence in setting up jobs for other machinists. Finally, Svesas told Mayer the reason for the layoff was lack of work, and, as already found hereinabove, the record does not support a finding that a work shortage existed. Counsel for the General Counsel also anticipated that Respondent might justify the layoff by asserting that Mayer was not able to work after sundown and on Sat- urday because of religious convictions. There is no basis for finding that Mayer held such convictions or that Re- spondent's officials reasonably believed he did. H. Offer of Reinstatement The complaint alleges as part of the unlawful discrimi- nation engaged in by Respondent that since December 11 it has failed to reinstate Mayer to his former position, and that it has done so because of his union and protect- ed concerted activities. Respondent denies the allegation. As already noted hereinabove, Mayer filed charges on December 11, and they were served on Respondent on December 13. The complaint issued January 22, 1979. On Monday March 26, 1979, Kenneth Smedberg sent Mayer a letter as follows: Please be advised you are being recalled from layoff and are hereby being offered immediate rein- statement to you [sic] job as a [machine operator] at $8.00/hour. Please contact me as soon as you re- ceive this letter so that we can arrange a time when you can return to work within the next 2 weeks. We want it to be clear that by making this offer of reinstatement we are not admitting that we vio- lated the law or that we discriminated against you in any way when we laid you off on December 15 [sic], 1978. Mayer received the letter a few days later and responded by his own letter indicating he would be happy to dis- cuss reinstatement. Apparently he and the Company never got together to discuss the matter. On April 11, 1979, Smedberg sent him the following mailgram: "You are hereby unconditionally recalled to your former posi- tion. Report to work Friday, April 13, at 6:30 a.m." The parties stipulated that as of April 19, 1979, Mayer waived further right to reinstatement. On these facts I find that Mayer was specifically and unequivocally recalled to his former position effective 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apirl 13, 1979. Any backpay to which he may be enti- tled is tolled as of that date. I. Conclusions Regarding Discrimination Considering all of the circumstances surrounding the layoff of Mayer, particularly its timing in relation to the protected activities, and in relation to the workweek and the pay period, as well as the unlawful interrogation by Svesas preceding it, his implied threat of reprisal the day after, and Herbert Smedberg's threat of plant closure a day or two later, which demonstrate company animus toward employee efforts to organize, I find that a pre- ponderance of the evidence supports the conclusion that Mayer was laid off because he was the key figure in the discussions and the organizing. I further find that the layoff discouraged employee membership in any organization which might represent the employees. This discrimination continued in effect until the effective offer to reinstate Mayer on April 13, 1979. The layoff and failure to reinstate him were unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act. Iii. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations de- scribed 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 dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act by: (a) Plant Superintendent Charles Svesas' interrogating an employee on December 11, 1978, as to the union and concerted activities of another employee. (b) The same plant superintendent's impliedly threaten- ing employees with reprisals on December 12, 1978, if they continued with concerted and union activities. (c) Company President Herbert Smedberg's threaten- ing to close the plant on or about December 13, 1978, if employees continued with their union activities. 3. Respondent committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by laying off Joseph Mayer on December 11, 1978, and thereafter and until April 13, 1979, failing to reinstate him. 4. The unfair labor practices found above affect commcere within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent enaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectu- ate the policies of the Act. I shall recommend that Re- spondent be ordered to offer Joseph Mayer immediate and full reinstatement to his former position or, if that position is not available, to a substantially equivalent po- sition, without prejudice to his seniority or other benefits and privileges, and that he be made whole for any loss of earnings incurred as a result of his being laid off on De- cember 11, 1978. Loss of earnings shall be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). I shall further recommend that Respondent be required to preserve and make available to Board agents, upon request, all perti- nent records and data necessary in analyzing and deter- mining whatever backpay may be due. I shall also rec- ommend that Respondent be required to post appropriate notices at its plant in Chicago. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondent, Smedberg Machine & Tool, Inc., Chicago, Illinois, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Laying off or otherwise terminating employees for engaging in concerted or union activities. (b) Interrogating employees about concerted or union activities. (c) Threatening employees with reprisals for engaging in concerted or union activities. (d) Threatening employees with plant closure if they continue with concerted or union activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist a labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Joseph Mayer immediate and full reinstate- ment to his former position or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in the section of this Decision en- titled "The Remedy." (b) Preserve and, 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- 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. SMEDBERG MACHINE & TOOL, INC. 541 ords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Chicago plant copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's authorized rep- 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Cou-t of Appeals Enforcing an Order of the National Labor Relations Board." resentative, shall be posted by it immediately upon re- ceipt 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 Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.