Connecticut Chemical Research Corp.

OF NATIONAL LABOR RELATIONS BOARD 160 DECISIONS Schedule B W. E. Rule, Jr. V. L. Aldermanll A. E. Herchman Schedule C Lucians Rodriquez W. B. McCreary Francisco Valenzuela W. A. Cates Jose Gonzales T. B. Henderson Lewis R. Tucker C. L. Morrow J. R. Urista V. L. Smith Acie Henderson W. E. Rule L. M. Smith C. L. Reavis John Mullins Miguel Franco M. C. Powell Frank Drummond James Price R. L. Walker N. F. Roberson F. H. Welling M. C. Bell F. F. Coughran H. L. Jones J. A. Bettis A. M. Coplen Eugene Allison V. H. Lindsey J. I. Chappell CONNECTICUT CHEMICAL RESEARCH CORPORATION and KATHERINE CLEVELAND, GEORGIA DECLEMENT, ANTOINETrE GALLANT, ELEANOR JASTER, ANTHONY KRAFTCHICK, MARY KRAFTCHICK, MORRIS KRONISH, ROSE KUBIC, CORA LALUNA, MARY PANICCIA, ROSE PETRO, DOROTHY PRIMROSE, MILDRED SHEMETH, DORA VAN GELDER, AND OTHERS SIMILARLY SITUATED. Case No. 2-CA-590. February 20, 1952 Decision and Order On August 13, 1951, Trial Examiner Stephen S. Bean 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Respondent also requested oral argument. This request is hereby denied, as the record, exceptions, and brief, in our opinion, adequately present the issues and the positions of the parties. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Styles]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- 1 The Respondent, in its brief , contends that prejudicial error and denial of due process resulted from the Trial Examiner's refusal to compel the General Counsel to produce affidavits of Edward Helfer, a former official of the Respondent who testified for the 98 NLRB No. 33. CONNECTICUT CHEMICAL RESEARCH CORPORATION 161 mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommen- dations of the Trial Examiner, with the following additions : 1: The Trial Examiner found that Plant Manager Luth's promises of benefits to the employees on December 13, 1949, were violative of Section 8 (a) (1) of the Act. He refused to base a finding of viola- tion of this section of the Act upon alleged acts of interrogation by the Respondent because this conduct was not alleged as unlawful in the complaint and as such was not litigated. In the absence of exceptions to these determinations, we hereby adopt them without further comment. 2. For the reasons fully set forth in the Intermediate Report, we find, as did the Trial Examiner, that the Respondent violated Section' 8 (a) (1) and (3) of the Act by its discriminatory layoff of '39 employees on December 8, 1949, and its refusal thereafter to rein- state 23 of those employees. In so finding, we rely, like the Trial Examiner, on the credited testimony of former Vice-President Helfer. We find without merit the Respondent's exceptions to this and other credibility determinations by the Trial Examiner. The Board will not overrule a Trial Examiner's resolution of credibility unless a clear preponderance of all the relevant evidence convinces the Board that the Trial Examiner was in error.3 No such conclusion is here war- ranted, and we therefore adopt the Trial Examiner's credibility deter- mination and the findings based thereon .4 General Counsel The Respondent ' s attorney desired to use the affidavits in cross -examin- ing Helfer . Helfer did not use the affidavits on the stand , nor were they referred to by the General Counsel We find that the Trial Examiner's ruling was not an abuse of his discretion , and that there was neither prejudicial error nor denial of due process. Fulton Rag & Cotton Mslls, 79 NLRB 939 . enforced 180 F. 2d 68 ( C. A 10 ) ; N. L. R. B. v Quest- Shon Malk Brassiere Co, 185 F. 2d 285 (C. A 2), cert. den. 342 U. S. 812; N. L. R. B. v Globe Wireless, Ltd, 193 F . 2d 748 ( C. A. 9). Cf. Goldinan v. United States, 316 U. S. 129. 2 The Intermediate Report contains certain minor misstatements of fact or Inadvertences which affect neither the Trial Examiner's ultimate conclusions nor our concurrence therein. In this connection we note , for example : (a) Employee Salvatore Ciatto , who was a union member, was inadvertently omitted from the lists and computations of employees laid off on December 8 and reinstated on December 13; (b) employee Edith Dixon was incor- mectly found by the Trial Examiner to have been at the December 9 meeting; and (c) the 90-percent figure referred to by the Trial Examiner in his final conclusions on Section 8 ( a) (3) violations relates not to the percentage of union members who were discharged and not reinstated , but to the percentage of union members among the employees discharged and not reinstated 8 Standard Dry Wall Products, Inc., 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3). 4 The Respondent also excepts , inter alia, to the Trial Examiner 's conclusion that Runyon and Beauregard were representatives of management whose actions and knowledge are attributable to the Respondent . We agree with the Trial Examiner's conclusion. In any event, we note that other factors fully set out in the Intermediate Report, such as the small size of the plant, the observation by admitted management representatives of employees at the December 9 meeting , and the disproportionate number of union members selected for layoff and not recalled , establish the Respondent's knowledge of union activities and membership even without. finding Runyon and Beauregard to be management repre- sentatives. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Connecticut Chemical Research Corporation, Bridgeport, Connecticut, its officers , agents successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its employees by discriminatorily discharging and laying off or failing to reinstate any of their 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) By means of promises of improvements in terms and conditions of employment or by promises of wage increases , or in any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self -organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes 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 agreement requiring membership in a labor organization 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 the employees listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to- their seniority and other rights and privileges. (b) Make whole the employees listed in Appendix B, attached hereto, for any loss of pay each may have suffered by reason of the dis- crimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post at its plant in Bridgeport, Connecticut, copies of the notice attached hereto and marked "Appendix C." 5 Copies of such notice, to be furnished by the Regional Director for the Second Region , shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CONNECTICUT CHEMICAL RESEARCH CORPORATION 168 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) 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 records necessary to analyze the amounts of back pay due, and the right of reinstatement under the terms of this Order. (e) Notify the Regional Director for the Second Region, in writing, within ten (10) days from the date of this Order, what steps the `Respondent has taken to comply herewith. Katherine Cleveland Georgia De Clement Hazel Gagne Antoinette Gallant Eleanor Jaster Anthony Kraftchick Mary Kraftchick Morris Kronish Rose Kubic Cora La Luna Leona Lowe Ann Muchand Appendix A Mary Paniccia Rose Petro Dorothy Primrose Emma Ray Mildred Shemeth Susie Smart Jennie Szerch Rose Tarezely Grace Thebault Dora Van Gelder Blanche Wasnerowicz 9 Helen Babey Mary Beauregard Katherine Cleveland Georgia De Clement Edith Dixon Lillian Donagher Mary Downing Henry Faison Hazel Gagne Antoinette Gallant Eleanor Jaster Anthony Kraftchick Mary Kraftchick Morris Kronish Rose Kubic Cora La Luna Martha Long Leona Lowe Edward Mulvaney Appendix B Ann Muchand Mary Paniccia Rose Petro Dorothy Primrose Emma Ray Rose Rice Genevieve Romanoski Florence Runyon Inez Saucier Katherine Scully William Sheehey Mildred Shemeth Susie Smart Jennie Szerch Rose Tarezely Grace Thebault Stella Ulatowski Dora Van Gelder Blanche Wasnerowicz 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix C 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 any labor organiza- tion of our ' employees by discriminatorily discharging, laying off, or failing to reinstate any or our employees, or by discrimi- nating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT by means of promises of improvement in terms and conditions of employment or by promises of wage increases, or in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE WILL offer to the following named employees immediate and full reinstatement to their former or substantially equilavent positions, without prejudice to any seniority and other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them: Katherine Cleveland Mary Paniccia Georgia De Clement Rose Petro Hazel Gagne Dorothy Primrose Antoinette Gallant Emma Ray Eleanor Jaster Mildred Shemeth Anthony Kraftchick Susie Smart Mary Kraftchick Jennie Szerch Morris Kronish Rose Tarezely Rose Kubic Grace Thebault Cora La Luna Dora Van Gelder Leona Lowe Blanche Wasnerowicz Ann Muchand WE WILL make whole the following named employees for any loss 'of pay suffered as a result of the discrimination against them : CONNECTICUT CHEMICAL RESEARCH CORPORATION 165 Helen Babey ' Rose Rice Mary Beauregard Genevieve Romanoski Edith Dixon Florence Runyon Lillian Donagher Inez Saucier Mary Downing Katherine Scully Henry Faison William Sheehey Martha Long Stella Ulatowski Edward Mulvaney All our employees are free to become or refrain from becoming members of any labor organization, except to the extent that the right to refrain may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. CONNECTICUT CHEMICAL RESEARCH CORP., Employer. By -------------------------------------------- (Representative) (Title) Dated -------------------- 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 and Recommended Order STATEMENT OF THE CASE Upon 14 charges duly filed on January 18, 1949, by Katherine Cleveland, an individual, and 13 other individuals also named in the heading of the case, herein called the Complainants, the General Counsel of the National Labor Re- lations Board' by the Regional Director for the Second Region (New York, New York), issued his complaint dated March 12, 1951, against Connecticut Chemical Research Corporation, herein called the Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, herein called the Act. Copies of the charges, the complaint, and a notice of hearing, and order postponing the date of hearing, were duly served on Respondent and the Complainants. With respect to unfair labor practices, the complaint alleged in substance that Respondent discriminated against 38 named employees, including the 14 Com- plainants, because of their union interest, membership, and activities in violation of Section 8 (a) (1) and (3) of the Act, and engaged in independent violations of Section 8 (a) (1) of the Act by specifically enumerated acts and conduct. Respondent filed an answer on May 8, 1951,2 in,which it admitted the juris- dictional allegations of the complaint, expressed insufficient knowledge or in- ' The General Counsel and his representatives at the hearing will be called herein the General Counsel ; the National Labor Relations Board, the Board. 2I overruled objections of the General Counsel to the filing of the answer and denied his motion, based on Section 102.20 of the Regulations of the Board, that the allegations of the complaint shall be taken as proved and be deemed to be admitted to be true because of Respondent's failing to file its answer within the time prescribed by the regulations Cf. Maryland Dry Dock Company, 88 NLRB 1305. In the event I exceeded a Trial Exami- ner's authority in allowing late filing, it is recommended that the Board allow Respondent to file its answer late. 99846-vol. 98-5:1-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formation upon which to form a belief as to whether District 50, United Mine Workers of America,' is a labor organization within the meaning of Section 2 (5) of the Act, and denied the commission of the Alleged unfair labor practices. Thereafter on May 14, 1951, Respondent presented and was allowed to file a "More Particular Statement." in response to an oral request made at the hearing by the General Counsel, asseverating that plans necessitating a temporary layoff of employees had been made prior to the time representatives of the Union ap- peared-at its plant on December 8, 1948, and that pursuant to such plans all but a few production employees were laid off temporarily on said date and a large number recalled on December 13, 1948, without reference to union membership, of which Respondent had no knowledge, and without discriminatory intent. Pursuant to notice a hearing was held at Bridgeport, Connecticut, from May 8 through May 22, 1951, before Stephen S. Bean, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented at the hearing where full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs and/or proposed findings of fact and conclusions of law, were afforded them. On May 10, 1951, it appearing during the cross-examination of one Edward R. Helfer called as a witness by and on behalf of the General Counsel that Helfer had talked with a Board field examiner and had signed a statement in May or June 1949, counsel for Respondent asked the General Counsel if he had the 1949 statement. Upon the declination of General Counsel to answer, counsel for the Respondent requested me to direct that the General Counsel make such statement available for examination. before my having ruled on the request and after a colloquy between counsel and the Trial Examiner, counsel for Respondent brought out in further cross-examination of Helfer that he had also talked with the Board field examiner and another employee of the Board in June or July 1950 and at that time signed a second statement which he delivered to the field examiner. Thereupon counsel for Respondent renewed his request with respect to the 1949 statement and asked me to direct General Counsel to make both statements available for examination. I denied the requests of Respondent after General Counsel had declined to turn over the statements Subsequently on the same day, counsel for Respondent addressed a request to the General Counsel in Washington for permission for the production of the documents in question and on May 15, 1951, while the hearing was still in progress, a denial of permission was received. Counsel for Respondent then moved that I request the General Counsel to produce the documents. This motion was denied. At the request of counsel a view was taken of the premises of Respondent. After taking the evidence, the General Counsel's unopposed motion to conform the pleadings to the proof was granted. General Counsel and Respondent argued the case orally. A date was fixed for the filing of briefs and/or proposed findings of fact and conclusions of law. This date was later extended at Respondent's request. A brief was received from Respondent on June 19, 1951, and has been considered. Upon the entire record of the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is and has been since October 3, 1947, a corporation duly organized under and existing by virtue of the laws of the State of Connecticut, maintaining 8 Herein District 50, United Mine Workers of America, is referred to as the Union. CONNECTICUT CHEMICAL RESEARCH CORPORATION 167 its principal office and place of business in Bridgeport, Connecticut, where it has continuously been engaged in the manufacture, sale, and distribution of aerosol and related products. During the year 1950 Respondent, in the course and conduct of its business operations, caused to be purchased, transferred, and delivered to its plant, chemicals, metal containers, cartons, and other materials valued in excess of $250,000,,of which approximately 75 percent was transported to said plant in interstate commerce from States of the United States other than the State of Connecticut During the same year Respondent, in the course and conduct of its business operations, caused to be manufactured products valued in excess of $1,000,000, of which approximately 75 percent was transported from its plant in interstate commerce to States of the United States other than the State ,of Connecticut The Respondent admits that it is engaged in commerce within the meaning of the Act, and I so find. II THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Nature of Respondent's business and extent of its operations In December 1948, the officers of Respondent were Lawrence Valenstein, president, Abe O. Samuels, executive vice president, Herbert R. Shepard, vice president in charge of research, Jack Schenberg, vice president and sales manager, and Edward R. Helfer, vice president in charge of production, procurement, and processing. About December 1, 1948, Lawson Luth entered Respondent's employment and took over the production functions that had previously been performed by Helfer and the latter was assigned to engineering work. Luth remained with Respondent for 6 or 7 months. Helfer's connection with the Company terminated in October 1949. The business was formed in the latter part of 1947. The first product man- ufactured after considerable experimentation was a low pressure insecticide bomb labeled "Hep" which began to be manufactured in February948 From May 1, 1948, to July 3, 1948, total sales of this product amounted to $131,524 75 During the spring of 1948, experimentation commenced on a low pressure fire extinguisher labeled "Hero" first sold in October 1948. The sales of this product increased from $21,262.38 in October to $75,673.19 in November. In December 1948 the sales of "Hero" were $56,924.59; in January 1949, $49,149.29; and in February 1949, $66,371.76. The sales of "Hep" decreased from $62,63022 in July 1948 to $27,040.75 in August, to $25,861.30 in September, to $16,956.40 in October, and $9,978.54 in November 1948. Starting with December 1948, the sales of "Hep" increased from $22,118.70 to $29,244 87 in January 1949 and $44,733.88 in February 1949. Beginning in July 1948, Respondent commenced selling other products which it manufactured in amounts the dollar value of which is is not shown in the evidence (except for August 1948 when it sold a plastic spray to the value of $10,631.71). These products consisted of a plastic spray, an air-conditioner, and a moth proofer. The total dollar value of the Company's sales for the periods indicated below was as follows : 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 4, 1948, to October 30, 1948____________________________ $37,971.87 November 1, 1948, to December 4, 1948_________________________ 113, 629.85 December 6,1948, to January 1,1949___________________________ 63,139.22 January 3, 1949, to January 29,1949___________________________ 78,383. 36 January 31, 1949 to February 26, 1949_________________________ 106, 529. 53 February 28, 1949, to April 2, 1949_____________________________ 237, 586.71 April 4, 1949, to April 30, 1949______________________________ 264, 363. 44 The dollar volume of sale of products after July 2, 1949, was not shown' Between the weeks ending March 6, 1948, and December 4, 1948, the number of persons employed by the Respondent had gradually increased, except for periods in April and May and in July and in September, from 12 to 40. During the week ending December 11, 1948, the we.;k with which we are particularly concerned in considering this case, 46 people were on Respondent's payrolls The following week the number of employees was actually 23 although General Counsel's Exhibit No. 4 indicates 16 Thereafter the number increased steadily with some weekly variations until the week ending November 9, 1949, with a peak of 82 indicated by General Counsel's Exhibit No. 4 during the week end- ing September 24, 1949. During the latter part of November and the month of December 1949, only 15 or 16 names of employees appeared on the payroll. This number was gradually increased with weekly variations until the week ending September 9, 1950, with a maximum employment of 157 during the week ending April 15, 1950. During the latter part of September and the first half of October 1950, the number of employees varied from 14 to 18. There is no evidence as to the number employed weekly subsequent to November 14, 1950, and January 13, 1951. During the period from February 1948 to March 1949, of 180 people employed by Respondent, 109 had worked for 4 or more weeks. The total man hours worked from November 11 to December 4, 1948, was 9383 50; from December 6, 1948, to January 1, 1949, 4033.75; from January 3, 1949, to January 29, 1949, 4713.75; from January 31, 1949, to February 26, 1949, 5632.75; from February 28, 1949, to April 2, 1949, 9765.50; and from April 4, 1949, to April 30, 1949, 10886. Thereafter the total number of man hours worked decreased from May 2, 1949, down to May 28, 1949, to 8200 and to 6918 during the period May 30, 1949, to July 2, 1949. No evidence respecting the number of man hours worked subse- quent to July 2, 1949, was offered. During the period from the latter part of 1947 when the business was formed, to the latter part of 1948 it proceeded on a combined experimental and produc- tion basis with a reduction of emphasis on the experimental features of opera- tions as the early complexities of financing and creating novel products necessi- tating new types of containers and appliances and the use of improvised 4 A paper prepared by Respondent setting forth total sales for three periods covering approximately April, May, and June, 1949, was handed the General Counsel and the Trial Examiner. Schenberg testified as to its contents but the paper did not become an exhibit. 5 The findings concerning the number of individuals in Respondent's employment before December 1948 adverted to in this paragraph are based upon General Counsel' s Exhibit No. 4 prepared by and procured from Respondent, which exhibit was admitted without objection. There is an insoluble inconsistency in the figure of 37 as given in this exhibit as the number of people who were on Respondent's payroll during the week ending December 11, 1948, which casts doubt on the accuracy of the figures supplied for other weeks. As appears elsewhere in this Report, 38 employees were laid off on December 8, 1948, none of whom was reinstated before December 13 and, in addition, Respondent retained, exclusive of a shipper, 8 persons, 2 of whom exercised some supervisory functions, who worked on December 9 and 10, thus establishing the figure of 46. - However, I believe that the exhibit in question fairly reflects the trend and flux of employ- ment, and whatever misstatement of fact it may contain in no way affects my ultimate conclusions. CONNECTICUT CHEMICAL RESEARCH CORPORATION 169 machinery and the attendant mechanical problems, became gradually although not completely to be solved. B. Union activities and alleged resultant discrimination On December 6, 1948, Katherine Cleveland, who had entered Respondent's employ as an assembler under Foreman Lowell Daniels on October 25, 1948, and who learned from fellow employees that they were interested in joining a union, communicated with William J. Foley, national representative of the Union. Foley was acquainted with Mrs. Cleveland's husband, Robert Cleveland, who had formerly been a union organizer. The following morning Foley drove Cleveland and her husband to the plant where Foley met and handed employee Dorothy Primrose a number of union membership application cards, gave her instructions with respect to procuring signatures, and arranged to meet Cleve- land, Primrose, and as many other employees as it might be possible to interest, at Liptak's restaurant, near Respondent's plant, at noon the same day, Decem- ber 7, 1948. Several women employees, signed the cards during a morning rest period and at noon, 10 to 15 female employees met at the restaurant with Foley and John W. Mannes, also a representative for the Union. The employees voiced complaints concerning their work and stated that practically all of the production workers were ready to join the Union. Foley and Mannes addressed those present and announced that another meeting would be held the same day in the same room in the restaurant at the close of work after 3: 30 p. m. at which time the remainder of those interested in joining the Union might appear and an account taken of the number of application cards actually signed. Present in the room at noon, and within hearing distance of the group who attended the first meeting, was Mary Beauregard, another employee whom Cleveland and Primrose had regarded as a supervisor because she worked in the capacity of a floorlady and had abstained from approaching. After 3: - 30, the second meeting was attended by 8 or 10 additional employees as well as by many who had been present at noon. Thirty signed union application and authorization cards were delivered to Foley. The Union's regional director, Walter Brock, was present at this meeting and the employees were informed by the union representatives that they then knew the Union had been designated by a majority of Respondent's employees as their collective bargaining representative and that they would seek recognition the following morning, December 8, 1948. At about 10 a. in., Wednesday, December 8, 1948, Foley and Mannes went to Respondent's plant to request recognition. They were informed that Executive Vice President Samuels was in Chicago. Upon reflection they decided to seek a meeting with whoever was in charge in Samuel's absence and gained admission to Vice President Schenberg's office where they informed him of the purpose of their visit. Schenberg, whose manner was described with alliterative keenness by Mannes, as "cordial but confused," stated he did not know (what to do) about it and said he would send for Lawson Luth whom he described as superintendent. Schenberg left the office for.a brief period and returned with Lutb. Foley and Mannes explained to the latter who they were and what they wanted. Luth stated he did not know anything about a union coming in, that he had dealt with unions before and that he was against unions and did not like them. Schenberg said he had no authority to grant recognition and that Foley and Mannes would have to await Samuel's return to Bridgeport. Foley and Mannes asked Schenberg and Luth to refrain from antiunion measures and discrimination and not to lay off any employees pending Samuel 's return at the end of the week. Luth then said he had been thinking of laying off six 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to eight employees because of tardiness and absenteeism and waved a sheet of paper he held in his hand without indicating its contents. Foley and Mannes requested Luth to retain the people he had been thinking of laying off on: a probationary basis and to warn them against tardiness and absenteeism. Luth made no definite promise in this regard. After the meeting Foley told one of Respondent's employees, Luth had mentioned laying off six or eight people. After noon on December 8, Foreman Daniels ° told Cleveland and employee Inez Saucier with whom he was friendly that the plant was going to be shut down. Just after lunch, Foreman George Lichac' told a number of employees while standing in front of a bench where Primrose worked that 8 or 9 employees were going to be laid off and that they were going to be called back later. Shortly before the usual 3: 30 quitting time, Vice President Shepard told the girls wprking on the same assembly line with Cleveland that the plant was being shut down and handed them their pay. That afternoon, December 8, 1948, 38 employees were laid off. The 15 following employees were reinstated on De- cember 13, 1948: Helen Babey, Dorothy Beauregard, Edith Dixon, Lillian Donagher, Mary Downing, Henry Faison, Martha Long, Edward Mulvaney, Rose Rice, Genevieve Romanoski, Florence Runyon, Inez Saucier, Katherine Scully, William Sheehy, and Stella Ulatowski. None of this group signed charges. Of the 15, the 7 who had signed union cards were Babey, Dixon, Donagher, Faison, Rice, Romanoski, and Saucier. The 23 following employees who were also laid off on December 8, 1948, have not been reinstated : Katherine Cleveland, Georgia De Clement, Antoinette Gallant, Eleanor Jaster, Anthony Kraftchick, Mary Kraftchick, Morris Kronish, Rose Kubic, Cora La Luna, Mary Paniccia, Rose Petro, Dorothy Primrose, Mildred Shemeth, Dora Van Gelder, Hazel Gagne, Leona Lowe, Ann Muchand, Emma Ray, Susie Smart, Jennie Szerch ((Szuch) , Rose Tarezely, Grace Thebault, and Blanche Wasneowicz. Of this group all but 9, to wit : Gagne, Lowe, Muchand, Ray, Smart, Szerch, Tarezely, Thebault, and Wasneowicz, signed charges on December 13, 1948. All of these 23 had signed union cards with the exception of Muchand and Ray. Employees not laid off were Marilyn Meyers, Madie Rogers, Florence Thibeault (not to be confused with Grace Thebault), Carmen Biazzo, Edward Hall, Harold Heavey, George Lichac, and Lowell! Daniels. Of this number Hall was the sole signatory to a union membership application and authorization form. Upon learning of the layoff during the early evening of December 8, Foley with assistance from union members notified all the employees it was possible to reach, to meet in front of Respondent's plant early the following morning. Starting at about 6: 45 a. in. and continuing until about 9: 30 a. in. on December 9, 20 employees together with Foley, Brock, and Robert Cleveland gathered on the sidewalk in front of the main entrance to the factory, leaving from time to. time in groups for coffee and to visit Thebault's home in the vicinity and returning to the sidewalk. Of the 8 of the 15 employees who were called back to work on December 13 and did not sign union cards, none were observed to have been present at this assemblage; of the 7 in this group of 15 who were recalled on December 13 and who did sign cards Dixon, Donagher, and Romanoski were in attendance at the gathering in front of the plant on December 9. All of the 14 employees who were not called back to work on December 13, and who signed charges on that date, were present at this meeting on the e Daniels was not a witness. He was primarily a production worker without power to hire, fire, discipline, or effectively to recommend such action. It was not shown that he- was a supervisory employee within the meaning of the Act. 4 Lichac did not testify. He was a chief mechanic but was not shown to have been a. supervisory employee within the meaning of the Act. CONNECTICUT CHEMICAL RESEARCH CORPORATION 171 morning of December 9. Of the total of 7 who did not sign charges but who had signed union cards on December 7, out of the entire number of 23 who were laid off on December 8 and not reinstated , Lowe, Thebault , and Wasneowicz were noted among the employees who met in front of Respondent 's plant on the morning of December 9. During the time its employees were congregating outside the factory they were seen by various officials, foremen, and office workers , in the employ of Respondent , including Vice President Helfer, and Luth and Foreman Daniels who entered the building together. Don Gaffney,' Respondent's head shipper and traffic manager, came to the front door , stood on the step, asked employees what was going on and was told that they were having a union meeting . Gaffney replied that the people had no business there, that they were no longer employees of Respondent, and threatened to call the police and engaged with Robert Cleveland in an argument that stopped just short of violence . Foreman George Lichac came outside and stood talking with some of the employees and Foley and Brock for a while. Two secretaries employed in Respondent 's office were driven up in a car to a point near the front door of the plant and were caused by the employees who were outside to use the rear entrance . A near fist fight took place between their driver and some of the crowd. As Foreman Daniels passed through the employees who were grouped together , he remarked that he did not think they would ever do that to him. On January 13, 1951, Respondent wrote "a number of people" who were laid off on December 8, 1948 , and not reinstated on December 13, 1948 ( as previously pointed out, none who were not reinstated on December 13, 1948, were reemployed at any time thereafter ), the following letter. Our sales have been steadily increasing. As you know , it is our practice, if possible, to attempt employment of former employees of the Company . If you are available to accept employ- ment be good enough to apply at the factory in person for a reemployment interview Please ask for the writer between 9 and 10 a. in . on Wednesday, January 17 in the factory 6ffice. If for any reason you cannot accept employment , please be good enough to fill in the enclosed return card . If you do not appear or do not return the enclosed card we will automatically remove your name from our potential list of employees. Very truly yours, F. Zrauri, Personnel Department. Note: In accordance with our employment practices, all prospective em- ployees must pass necessary health examination before entry to our employment rolls. The returned card enclosed with the letter contained the following printing. I have received your letter of January 13. I cannot accept your offer for employment for the following reasons. Then provided, were two boxes for checking, opposite one of which appeared the words, "Presently employed at __________" and the other of which the words "Cannot because (indicate reason) --------------------- 11 8 Gaffney was not a witness. He could effectively recommend the hiring of people who he thought knew the shipping end of the business and had brought in one or two people who had been hired on his recommendation . I find he was a supervisory employee within the meaning of the Act. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Union negotiations with Respondent concerning the alleged disorinvinatary discharges On Monday, December 13, 1948, Foley and Mannes interviewed Executive Vice President Samuels and repeated the request for recognition previously made on December 8. Samuels stated he had no fundamental dislike for unions but the time for recognizing a union would not arrive until the plant got into full pro- duction in about a month and that he would be ready to discuss the subject about the middle of January 1949. Mannes told Samuels he was convinced that the employees were fired on December 8 because of union activities . Samuels said that such was not the case, that they were layoffs which were out of his jurisdic- tion, that purely something had gone wrong but there was no connection between the layoffs and the Union . Samuels added that all these employees including the 6 or 8 referred to as being considered for layoff by Lath on December 8 would be rehired and brought back when openings occurred. Foley told Samuels that he thought Respondent was only going to lay off 6 or 8 people and that Luth had said everything would remain in status quo pending Samuels' return from Chicago. Samuels disclaimed any responsibility. Foley informed Samuels that Respondent's conduct in discharging 38 employees on December 8 was a deliberate antiunion move, that he and Mannes had come in for the purpose of procuring recognition for the Union and the same day Respondent closed down the plant. Samuels said the employees would be called back on a seniority basis. There was some discussion regarding an election but no progress was made, the Union not at that time having been in compliance with Section 9 (g) of the Act. Another meeting attended by Foley and one Landino, also a representative of the Union, Samuels, and Luth was held on March 9, 1949. Foley drew attention to the fact that some new girls had been hired since December 13 and that Sam- uels had previously promised he would call people back according to seniority. Samuels first said that he had been out of town a lot that he was both plant sales- man and plant head and that he knew nothing about hiring. He later said that it was his business , he would hire as he pleased and would have no union dictat- ing to him. Samuels further stated that some of those rehired on December 13, 1948, may have been union members and Foley replied that their rehiring on that date was a cover-up ; that when Samuels realized the hasty action he had taken, he rehired some people since the reason for Respondent 's conduct would have been too obvious if he had not recalled some union members. Samuels said as for the question as to whether people want to affiliate themselves with any kind of an organization , whether it be a lodge or any other society, that is entirely up to them, as far as he was concerned , he felt his people were happy and he would not use any pressure to have them affiliated with any organization. 4. Respondent's inquiries into and attitude toward employees' union interests Mary Beauregard and Florence Runyon were known as floorladies or lead girls. Beauregard did the same work as employees on "the conveyor" but also gave orders. In December 1948, they had no authority to discipline or to hire or fire or effectively recommend such action. It does not appear that either occupied a position involving authority to direct other employees in their work in a manner requiring the exercise of independent judgment. On occasion, when Foreman Vice President Helfer and Foremen George Lichac and Lowell Daniels were absent they would take over supervisory work , issue routine instructions to other employees as to the mode of work performance and were in a strategic position to translate desires and policies of management to those employees. Although they were thus identified with management, it is not alleged by the CONNECTICUT CHEMICAL RESEARCH CORPORATION 173 General Counsel or claimed by Respondent that Beauregard or Runyon were supervisory employees within the meaning of the Act and I find out they were not.* On December 7, after seeing a union application card in the rest room, Beauregard asked Primrose if she knew anyone who was passing out union cards. Beauregard also asked La Luna who had union cards or who had started the Union. On December 13, Vice President Helfer asked Beauregard and Runyon if they had anything to do with the Union, if they knew who was in the Union and who had started it. Runyon, who had noticed the cards going around and had seen different girls with them, had made inquiries of Katherine Scully and possibly of other employees about the Union. Scully stated that Beauregard and Runyon were not supposed to know about the Union because floorladies or group leaders were not allowed to join. Because of the close identification of Beauregard and Runyon with management and the fact that their inquiries of Primrose, La Luna, Scully, and possibly others who obviously regarded Beauregard and Runyon as supervisors and looked to them for guidance respect- ing Respondent's policies, was followed by Helfer asking them if they knew who was in the Union and who had started it, I consider that their conduct was attributable to and acquiesced in by Respondent" On December 13, Luth, undisputably a supervisory employee, called together in the toolroom the employees who had been reinstated on that day and told them in the presence of Samuels and Foreman George Lichac that he had dealt with unions before; that he did not care for them and he did not think he wanted to bother with them ; that the employees did not need any union ; that the girls would have better working conditions ; that a lunch would be provided, and that he was going to hold a Christmas party. At the Christmas party, Donagher and other girls, during a conversation with Samuels and Shepard, were told by Samuels that he had not visited them in the shop because there had been a little trouble there with other men telling him what to do about a union and that he felt better now that it was all over. Further testimony respecting Respondent's attitude toward the Union will be outlined in the following subdivision of this Report. E. Reasons asserted by Respondent for the layoffs and failure to recall: Conflicts in testimony - There is but little dispute concerning the facts set forth in the foregoing paragraphs A, B, C, and D of this Section III." 9 It appears from the evidence that several months later these two employees attained the stature of supervisors. 'a See Sioum City Brewing Company, 82 NLRB 1061, 1063. "Up to this point the principal and the only fundamentally material denials are those of Luth, who testified he did not say to Foley and Mannes, as they claimed, that he was against unions and did not like them, and those contained in evidence offered by Respondent to the effect that before being approached by Foley and Mannes it had already planned a temporary shutdown of its production line to be followed by only a partial recall of production workers and that the list of employees to be involved in such layoff and recall was incomplete at the time of the December 8, 1948, visit of the Union's representatives. In the face of the testi- mony of Foley and Mannes as well as the not specifically denied testimony of Donagher and of Romanski, both of whom were recalled to work on December 13, 1948, and the latter of whom was called as a witness by Respondent, to the effect that Luth made essentially similar statements concerning his attitude toward unions at the time the returning employ- ees were called together, not to mention the testimony, later to he discussed, of Helfer relative to the position of Luth and Respondent's officers toward the Union, I am satisfied that Luth did state in substance that he disliked unions, was against them, and that he did not care to bother or deal with them. The contention that the decision to lay off and later recall but part of the production employees was a fait accompli before the Foley, Mannes, Schenberg,-Luth session will subsequently be considered. 174- DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony concerning the reasons for Respondent's conduct in laying off 38 employees on the afternoon of December 8, 1948, and thereafter calling back 15 on December 13, 1948, and either failing or refusing to rehire the remaining 23 or to communicate with them before January 13, 1951, with respect to their availability for employment and applications for a reemployment interview, is in sharp conflict. On one side we find arrayed 5 former employees and a former vice president of Respondent, and 2 union representatives, and on the other side, the executive vice president, 2 vice presidents of Respondent, and its superintendent. In addition, 1 present supervisor, 1 former supervisor, and 2 former employees 12 of Respondent gave testimony which either tended to support in part and refute in part both the General Counsel's case and the Respondent's case or was of no probative value. Evidence seeking to impeach the credibility of Respondent's former vice president who testified adversely to Respondent was given by the seventeenth and remaining witness. Respondent generally adduced evidence in support of its "more particular -statement." Samuels testified that during 1948 clue to the complexities involved in the experimental nature of the business and the attendant mechanical prob- lems, the plant on occasion had to be shut down and employees laid off sometimes for' i/2 day, sometimes for 2 or 3 days and once probably for a couple of weeks in April or May, that recognizing the need of more experienced plant manage- ment he called in Luth to make a survey in October 1948, and received a prelimi- .nary report, and that he hired Luth as plant manager about December 1, 1948. Samuels further testified that he left Bridgeport on a western trip on December 2, 3, or 4, 1948; that before he left Luth made recommendations on Decem- ber 2 or 3, and it was decided that on no specific date within a few days or -just as quickly as Luth could figure out how to make corrections in unbalance,of raw material components, in sorting out defective parts, in physical working -conditions, and in the condition of equipment, production should be stopped, in order to make such corrections and to select people enabling more efficient -operation. He also testified that Schenberg telephoned him in Chicago stating union representatives had informed him the plant was basically 100 percent unionized ; that Schenberg was concerned about laying off any people and did not -know what action to take in lieu of Samuels' arrangements with Luth and that he told Schenberg whatever might be in the union picture should have no effect on proceeding with the things concerning which he had instructed Luth. Samuels also testified that on December 11, he was satisfied that enough had been done so that assembling fire extinguishers on a limited scale could be started up and decided to get hold of some 14 or 15 people by telephone or telegraph, which people were needed in addition to the basic employees who had not been laid off, .and that the policy of recall was based upon seniority and regularity, but most importantly on capability and efficiency. Subsequently, in two talks with rep- resentatives of the Union, testified Samuels, primarily about whether Respondent was going to take back the employees that had been laid off, he told them Re- spondent would call back those that were capable and regular in their attendance -and would only call back people culled out for capability and reliability. Samuels still further testified that in January 1949 and maybe before, Respondent started to bring in more production employees, that he knew of no efforts made before January 1951 to rehire those employees included in the December 8 layoff who were not taken back on December 13, 1948, and that Respondent had an indica- tion that newly hired employees would be more efficient than employees working "' There is some doubt as to whether one of these, Katherine Scully, is actually a former employee, inasmuch as she was still on the pay roll during the first week of the hearing. CONNECTICUT CHEMICAL RESEARCH CORPORATION 175 for the Company at any particular time only to the extent of more careful :selection of new people. Schenberg testified that Sunday evening, December 5, 1948, Luth told him The would let him knowwhen he wanted to make a layoff in connection with improving plant conditions and on Tuesday, December 7, Luth told him he wanted to start making "these implementations" on Thursday ; that about 10: 30 to 10: 45 a. m. Wednesday Foley and Mannes were shown in to his office and .requested recognition of the Union ; that he called Luth and introduced him to Foley and Mannes ; that Luth said Samuels was the man to contact and that he had just come from a meeting wherein he was making a list of employees to be laid off ; that he thought Luth mentioned that he had six or eight up to that time and he had not nearly completed it, the list ; that there was no reference to whether these people were being temporarily or permanently laid off; that the union representatives advised Luth not to lay off anybody until they had talked to Samuels, that there was no reference to what it was planned to do that day ; that after Foley and Mannes left he discussed with Luth and Shepard the question of checking with Samuels, taking into account the Union's warning about laying people off, that he telephoned Samuels who said he saw no reason for not going ahead with the plan, and that the layoffs would be based ,on absenteeism, length of service, etc. Luth testified that during the course of 21/2 days he spent at Respondent's plant in October 1948, he observed inefficient and disorderly conditions ; that he entered Respondent's employ December 1, 1948, and consumed his first few -days at the plant going from operation to operation, making time studies, observing mechanical operations ; that he noted the two assembly lines were conflicting with one another and improper tooling, and that he observed pipes in dangerous positions and a check valve installation with an ununiform flow ; that during the period of the layoff he got safety valves installed as safety -measure in controlling freon under pressure, attached a new composition gasket to one of the measuring meters and changed the location of the conveyor and punch press on the fire extinguisher line, and made a new punch and die to cor- rect the irregular piercing of lines ; that a few days after December 1 he recom- mended to Samuels ceasing operations for 4 or 5 days, if necessary , to make a physical layout and get rid of deadwood, that Samuels accepted the recommenda- tion and suggested his talking with Schenberg to see if there were any orders that would have to be filled before operations ceased, that on Tuesday, December 7, he told Schenberg he was going to close the production line for 2 working days between Wednesday night and Monday morning; that on the morning of December 8, be started to go over with Foreman George Lichac a list of employees which in Lichac's opinion and upon Luth's observation would not be recalled after the general layoff. Luth further testified that about 9: 30 a. m., December 8, while Lichac and Runyon were furnishing him names of employees which he wrote on a list "for the purpose of the fact (he) didn't think that these people would be recalled," he was called to Schenberg's office and met Foley and Mannes whom he told he was in the process of preparing for a layoff and that he had a list of some seven or eight names in his hand at the time; that it was a partial list of some who probably would not be recalled. No names were mentioned to Foley and Mannes. Luth testified at the hearing that on the list was Kronish who had poor eyesight and of whose safety he was afraid, the two Kraftchicks who were constantly away from work, Primrose whose name appeared because of her inefficiency and quarrelsomeness, Cleveland whose rating from his observation was probably the lowest he had ever given an operator, Kubic, the reason for the appearance of whose name he did not remember, 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD La Duna whom it seemed to him was in difficulty with some of the other girls at different times and Gallant ; that the names of other employees discussed were not on the list because they were going to be recalled" Luth still further testified that with Lichac, Harold Heavey, and 6 other men and women who worked 10 hours a day for 4 days including Sunday " he effected mechanical changes, painted, took an inventory, and. separated rejects ; that on Saturday, December 11, he told Samuels he would be ready to resume opera- tions on Monday the 13th; that he thinks 14 were called back," upon the basis of seniority and efficiency ; that he had no records of employees' seniority and efficiency as of that time ; that he called them together, informed them he had made changes in the production line and in the ladies' room ; that he expected a fair day's work for a fair day's pay ; that he contemplated establishing price rates which he hoped would enable the employees to increase their earnings, that in reply to a question he stated he did not care or know who belonged to the Union, and that he talked about picnics and parties and the possibility of a Christmas party, and that he was going to provide a lunch room and a place for the changing of clothes. Shepard testified that Luth was very concerned about the repercussions that might ensue if employees were laid off and considered the idea of not going ahead with the plans that were apparently already made, that he paid off the employees and made the statement that the production line was being shut down and people would be called back in the next week or so; that he did not know until after the union men had been in that it was proposed to shut down the production line and that he really did not know what was done in the plant between December 8 and 13. Romanoski, testifying in behalf of Respondent, gave evidence that she was present in front of the plant on the morning of December 9 arriving at 6:30, leaving at 8: 30 or 9, going for coffee at a nearby diner and to Thebault's house with Van Gelder and a few other girls and staying there for quite some time in the meantime, that she did not recall seeing Schenberg, Helfer, and Shepard go into the plant but did see Daniels out in front and that on December 13, Luth said to an assembled group of employees who were called back to work that day that he had dealt with unions before and did not think he wanted to bother with them. Scully, who testified she signed a union card on December 81" "after it was practically all over with" and who was not in the group which congregated is No explanation was offered for the appearance of the name of Gallant. The attempted explanation of the nonappearance of the names of De Clement. Jaster, Paniccia, Petro (which stand alphabetically ahead of Primrose), Shemeth, Van Gelder, Gagne, Lowe, Muchand, Ray, Szerch, Tarazely, Thebault, and Wasneowiez who also were not recalled, although not made entirely clear, was apparently that the list was incomplete at the time. Nor does it appear how their worth was subsequently assessed. There is no evi- dence comparing their capabilities and regularity of attendance with those of the persons who were reinstated. If this is the explanation , it seems inconsistent with Luth's testi- mony that their names did not appear because they were going to be recalled. 14 The regular working week was 8 hours a day for 5 days a week totalling 40 hours a week Respondent's time records do not show that either Lichac, Heavy, or any other named employee worked over 40 hours during the weeks ending December 11 and December 18, 1948, or that more than four others including Foreman Daniels worked a full 40-hour- week for the week ending December 11. It was stipulated, how,ver, that the total amount of overtime hours put in by all employees of the Company was 27.75 and 127.50 hours for the weeks ending December 11, 1948, and December 18, 1948, respectively. Szerch's time record of 40 hours for the week ending December 11, obviously seems to be erroneous inasmuch as she was laid off December 8 and never reinstated. "The actual number was 15. 16 All other employees whose signatures were procured signed on December 7. CONNECTICUT CHEMICAL RESEARCH' CORPORATION 177 outside the plant on December 9 although requested to appear, called as a witness by Respondent i' testified that on December 8, Foreman Daniels told her they were closing the plant down for a few days and Respondent would notify her when to return, that on December 13, Luth called together the girls who returned to work that day and said the employees had to work together, talked about coffee and doughnuts and something about a union; that she had diffi- culty in doing her work because of Cora La Luna ; that she noticed either one of the Kraftchicks were absent from work about twice and that she recalled a few layoffs previous to that of December 8, 1948. Runyon, who it will be recalled was a lead girl in December 1948, and later became a supervisor and is still in Respondent's employ, was called as a witness by both the General Counsel and Respondent. She testified on May 8, 1951, in her first appearance on the witness stand at the call of General Counsel that Helfer made inquiries of her concerning union activities ; that she was aware of the fact that they were being carried on; that she spoke to girls about the Union and Scully had told her she was not supposed to know about the Union because floorladies and group leaders were not allowed to join. On May 8, Runyon was cross-examined thrice by Respondent. On her second appearance on the stand at the call of Respondent 2 weeks later Runyon testified that on the day before December 8, Lichac said there would be a layoff and requested her to grade according to the ability of the employees-in her group ; that in the middle of the morning of the next day she went over with Luth what Lichac had asked her and that no mention of any specific number of people to be laid off was made. Former Supervisor Beauregard, called by the General Counsel, as has been found was not a supervisory employee in December 1948. She is now in the employ of a corporation conducted by Helfer, a witness called by the General Counsel. Her evidence was of no great Significance. It confirmed Runyon's testimony that Helfer made inquiries as to who had started the Union. She also testified she observed tardiness coming to work on Primrose's part ; that she did not know the basis upon which employees were reinstated on December '3, 1948; that she did not know if an inventory was taken ; that she did not recall any changes having been made in the layout of the line or in the rest room or lavatories between December 8 and 13; that before the shutdown she saw a union card lying on a bench and thought she asked Dorothy Piimrose if she knew anyone who was passing out cards. Before having arrived at this stage in discussion of the case, it has of course become obvious that the main conflict is whether in fact Respondent, ignorant of or oblivious to its employees' union activities which had their inception on December 7, carried out subsequently to its interview with the union officials on December 8, a predetermined plan to lay off all of its production workers and not to reinstate a majority of them, or whether in fact Respondent con- ceived and perpetrated the scheme after recognition had been requested, in an attempt to avoid dealing with or recognizing the Union and to prevent its employees from exercising full freedom of association for the purpose of nego- tiating the terms and conditions of their employment or other mutual aid and protection. We have seen that of a working force of 46, Respondent laid off 38 employees on December 8 within a few hours of the Union's demand for recog- nition and that thereafter it reinstated 15 employees on December 13, with the result that on that date exactly one half of the workers who had been employed on December 8 were on the payroll and one half were out of employment. Of " I am satisfied on the testimony of Foley and the fact that all signed union cards were offered as exhibits that Scully did not sign a card. Scully testified she left Respondent'e employ on May 15, 1951. This hearing started May 8, 1951. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 23 working on December 13, 7 had signed union cards. Of the 23 working on December 13, 20 had not been noted at the "protest" meeting on December 9. Of the 23 not employed on December 13, 18 had been noted at the meeting. Of the 3 working on December 13 who had been seen outside the plant on, December 9, Donagher had not worked on December 8 and did not know that she had been laid off. Of the 23 working on December 13, 16 had neither signed, union cards nor had been noted at the December 9 meeting. Of the 23 not employed on December 13, 21 had either signed union cards or had been noted. at the December 9 meeting. It is in the light of these facts and a subsequent discussion of the evidence that we must consider the testimony of two witnesses which has hitherto not been, outlined. Edward R. Heifer, who as appears above was Respondent's, vice president ins charge of production, procurement, and processing in December 1948, and whose. connection with the Company terminated in October 1949, was called as a witness- by the General Counsel. He testified that about a day after he returned to the plant after an absence of 3 weeks on account of illness about the first of December 1948, he had a discussion with Luth, the substance of which was that Respondent had an excess of employees and should get rid of about six or seven as soon as it could be decided who they should be, and that to his knowledge the decision was never effectuated ; that it had been considered that some of the employees regarded as being superfluous would be rehired but undoubtedly some would never be called back, that the proposed layoff would possibly have been made in accordance with seniority and degree of efficiency and that Lichac had drawn up a list but he recalled no names thereon ; that the Union appeared about a week after his return to, the plant, that he personally had no discussion with the representatives of the Union but after they left following their talk with Schenberg and Luth on the morning of December 8, 1948, a conference was held between Schenberg, Shepard, Luth, and himself and a number of discussions were held concerning the Union's request for recognition and what to do about it, that the upshot of the discussions was a decision to shut down the plant immediately thus providing time to think out what Respondent's action in relation to the Union should be ; that in his presence Schenberg telephoned Samuels in Chicago with the result that Samuels verified the decision to shut down the plant immediately as a measure of coping with the Union to gain time in order to decide what to do with the Union's request for recognition, that Samuels was the final authority and confirmed the decision to shut the plant down ; that there had been no previous consideration of shutting the plant down ; that the plant was shut down as a result of Samuels' verification of Schenberg's Shepard's, Luth's, and his decision ; that the substance of the conversations among Respondent's officials was that Respondent was faced with a union threat ; that they felt they wanted to obviate the union threat and that the best thing to do was to shut down the plant to gain time to think over what course of action should be followed ; that Samuels, Schenberg, Shepard, Luth, and he were opposed to the Union and wanted to keep the Union out of the plant. Helfer further testified that the plant was shut down 1 or 2 hours after the telephone conversation with Samuels ; that on December 9 he saw a group of seven or eight employees gathered around the entrance to the plant when he went in ; that he recognized some of the employees ; that there were people outside at other times than when he went in ; that he talked about the gathering with Foreman Daniels, that after the December 8 discussions with Schenberg, Shepard, and Luth, and the December 9 meeting of employees outside the plant, he had several further CONNECTICUT CHEMICAL RESEARCH CORPORATION 179 discussions almost continuously with officials and supervisors ; that the officers decided to retain some of the shipping personnel to send out material and for the purpose of taking an inventory ; that they decided to reopen the plant on December 13, 1948, and hired some who had been laid off, and did not rehire others on several bases, including length of employment , efficiency , type of persons, the employees were, employees' attitude toward the Company, and their possible. relation with the Union ; that the extent to which employees ' relationship with the Union entered into Respondent 's decision to rehire was that stories that came to its officers about employees were rehashed . For instance, and by way of_ illustration , they had been told that Katherine Cleveland's husband was a union organizer and accordingly by not rehiring Cleveland they could reach the_ focal point and she would not have a chance of being rehired ; that a primary reason for not rehiring was inefficiency which generally needs union protection; that what he and the other officers were trying to do was to get the plant running, to obviate the Union, and not make what they were doing too obvious; that in_ selecting for rehire, the officers were guessing as to who might be involved with the Union and picked , chose, and hired some individuals they knew might have a relation with the Union , figuring that when the whole thing died down they could get rid of them ; that Respondent was faced with the Union and wanted to get rid of it but did not want to make that fact too obvious so it had to make its action in laying off employees look like a shutdown ; that the presence of employees in front of the plant certainly was a factor in their selection for reinstatement. Helfer further testified that keeping the Union out was the principal object of shutting down the plant and that no consideration had been given to shutting down the plant up to the time of the advent of the Union ; that between December 8 and 13, no substantial changes were made in the machinery in the plant ; that only minor repairs and maintenance work- that went along continuously any way was done, and that in an effort to find out just what union activity was going on, he talked to one or two of the plant personnel he felt could be trusted. In cross-examination , Helfer testified that probably around December 4 or 5 Lichac had a selected list of six or eight least desirable employees ; that primarily Lichac was requested to report concerning employees' qualifications ; that the predominating and principal subject under discussion after the Union's request for recognition was what to do in order that Respondent would not end up, with a Union in its plant, that Respondent's officers did not want the Union in the plant and decided to shut down in order to gain time so they could sit down for a couple of days, decide what to do and what move to make and that the purpose in shutting down was to break the Union; that the general feeling of all the Company's officials was that they did not want a union in the plant ; that Respondent was pretty sure with respect to some people being in the Union and not so sure regarding others ; that when the plant was closed no decision as to the reopening date had been made but had been left to Samuels' subsequent decision; that one of the reasons for the December 8 layoff was that it was a device to gain some time pending Samuels' return ; that between December 8 and 11 there were discussions concerning who would be called back and an effort was made to find out who were in the Union that the only way he could find out who was in the Union was to make inquiries of one or two trustworthy people, to consider rumors and the cases of people who Were in front of the plant on December 9, that voluntary information as to employees' union proclivities or manifestations was given by Gaffney for one and by several others, that Schenberg had told him the Union claimed to represent a majority of Respondent's employees; that if the officers listened,- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to some stories practically all of the employees were union members and if they listened to other stories practically all were innocent in the sense of not having signed union membership application cards or having been, active in the formation of the Union ; that he asked Beauregard and Runyon whether they could find out or already knew who were or might be members of the Union ; that his main inquiry was directed to those who were most active rather than to those who just talked and signed. Helfer further testified that the most definite piece of information Respond- ent's officers could hang their hats on was that concerning Cleveland but there were also other determinative factors such as stories or rumors that were carried back to the Company and the observation of people who gather around the plant five or six of whom he could personally identify, and whom lie mentioned in conference with other officers. Respondent strongly urges that Helfer's evidence should be completely dis- credited, points out that Helfer admitted he had an intense dislike for Samuels for whom he would not go out of his way to do any good, and argues that he is biased and 'prejudiced and as a competitor has a personal interest in doing everything he can to harm Respondent. In support of this position, Respondent relies heavily on the testimony of Edmund Bennett, engaged in a contract aerosol and liquid products filling business, who employed Helfer for a period beginning the latter part of 1949. Bennett who resides in New Jersey testified Helfer told him after three or four conversations starting immediately after he started to work that he felt Respondent had taken him for a ride and he did not get everything that was justly coming to him; that Samuels was "just about the world's worst so and so" but he thought he had several things up his sleeve to get even ; that at a later time Helfer told him he had received word from the Board and that he "had the bunch of birds" involved in Respondent's operation 18 pretty much in a position where he could give them plenty of trouble ; that with Bennett's help or desire, Helfer could or would work this thing around to do Respondent plenty of damage ; that Helfer "put it to him" that it was pretty much in his hands or in his jockeying or maneuvering ; that he could soi t of vindicate himself and requested permission to go to New York and talk. In cross-examination, Bennett testified that Helfer left his employ under constant observation of which he was aware ; that he supposed Helfer knew that his phone was being tapped or being listened in on; that he probably had listened in on Helfer's conversations for 2 months ; that once he heard Helfer tell a supplier he was sorry he had placed an order with him as Bennett's concern had no intention of paying, that the supplier should seek court action and do everything possible quickly to get his invoice paid, and that Helfer's last overheard conversation was his telling his wife he would be home early, for the reason he thought "they're all wise to me here now . . . . The jig is up." Bennett further testified that court litigation with Helfer is taking place; that while in Chicago he met Shepard who brought him abreast of some action that was taking place and following a conversation about Helfer, Shepard said he thought some of Bennett's testimony might be helpful ; that he had a strong feeling against Helfer personally; that he disliked him for his business conduct ; that he was resentful about the way he felt Helfer treated him and that the reason for his coming to the hearing to testify was that he felt it was his duty to be helpful and instrumental in a case of this sort. 18 Respondent is sometimes referred to as Bostwick Laboratories. CONNECTICUT CHEMICAL RESEARCH CORPORATION 181 F. Discussion 1. Preliminary findings a. Seniority as a factor in the layoffs and failures to reinstate Respondent's contention that its determination not to reinstate certain em- ployees was based in part upon the element of seniority requires consideration. Two of the eight employees u ho were 'lint laid off occupied positions of some authority , not shone n, liouu ever, to have been of sufficient extent to place theca in the cateatory of supervisory employees Rather naturally their seniority would be expected to be greater than that of the rank and file of employees who had come into the plant during the period of its expansion, from a concern emplo>ung 12 people in March 1948 to one employing 43 in December of the same year. Even so, I of these individuals, Lichac. was not hired until dining the week ending November 13, 1948, and the other, Daniels was not hired until the v.eek ending November 27, 1948 Of the remaining 6, 1 was employed less than 2 days before the end of the week or during the week endm't October 23, 1948, 1 durini the week ending October 30, 1948, 2 during the week ending November 6, 1948, and 2 during the week ending Novembei 27, 1948. It thus becomes apparent that none of them had acquired, while in Respondent's employ, any experience or aptitude in any specialized line of work not possessed by those of the 38 employees laid off on December 8, who had worked for Respondent for equal or longer periods. The mesne (late of their employment is the first part of the week ending November 13. Of the 21 employees w ho were laid off on December S and were not reinstated and had either signed cards or had been noted outside the plant on the morning of December 9, 5 had as much seniority as or more seniority than any of the persons not diMhaiged and 14 had as much as or greater seniority than the mesne seniority of the group which were not discharged. The 2 lead girls, Beauregard and Runyon, were among the first employees to be hired by Respondent Representative of the 13 other employees who were recalled with them are Ulatowski, who neither signed a union card nor was noted atAhe gathering on December 9, and Saucier, who signed a card but whom no one remembered as having been in the assemblage They entered Respond- ent's employ on November 8 and 9, 1948, respectively. Three in the same group went to work on November 15, 17, and 19, 1948, respectively. The other 7 who were recalled, exclusive of the lead girls and Scully who enter ed Respondent's employ on July 30, 1948, all went to work on dates between October 4 and Octo- ber 26 Of the 21 employees who were laid off on December 8 and not recalled to work on December 13 and had either signed union cards or been observed by wit- nesses to have formed a part of the crowd outside Respondent's plant on the early morning of December 9, 1948, 15 had seniority equal to or greater than that possessed by the 2 representative rank-and-file employees who were recalled. In addition , Mary Kraftchick had more seniority than 2 and at least as much seniority as had recalled employees Faison or Mulvaney or Romanoski, and Szerch's seniority was equal to that of Romanoski and greater than that of em- ployees Rogers and Biazzo 's who were never laid off. 1e All of the 23 employees who were laid off on December S. with the exception of Paniccia and Thebault , possessed greater seniority than Rogers and Biazzo I am of course mindful of Respondent's contention that the December 8 layoff applied solely to production emploj- ees and was undertaken only as an economic measure Reference to the 8 employees whom It is asserted were retained for purposes of taking hrventory , shipping, housekeeping, rehabilitation , and plant improvement is considered important however. in connection with a complete appraisal of General Counsel 's allegation that the reason for the layoff of 38 employees and the failure to reinstate 23 of them was that they joined or assisted the 998666-vol. 98-53--13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Inefficiency as a factor in the layoffs and failure to reinstate Respondent's contention that its determination not to reinstate certain em- ployees was based in part upon the element of their lack of efficiency also requires consideration. A mere 9 of the 38 emploN ees named in the complaint and its appendix testified at the hearing. The remainder linger invisibly behind their names. There is testimony regarding the efficiency or capabilities of 6 only among the 23 em- ployees who were not reinstated. Insofar as the factor of efficiency is concerned it is as to these alone that any finding with respect to the question as to whether or not Respondent's conduct in laying off or not recalling them was discrimi- natory can be made. If one can arrive at a conclusion respecting the motivation behind the failure to reinstate the remaining 17, other reasons than their efficiency must be ascribed. Lath's testimony that Cleveland was inefficient was not corroborated by either of the lead girls. Cleveland was never criticized for any reason. Lath's testi- mony that he gave her one of the lowest time-study ratings of his career was not supported by the introduction of records he testified he keeps2° Luth also testified he had observed no inefficiency on Primrose's part but had been informed by Lichac that she was quarrelsome?' Beauregard testified she observed late- ness or tardiness on the part of Primrose in coming to work. Primrose testified she sometimes had difficulty driving on a road near her home more than 7 or 8 miles from the plant and that she occasionally was unavoidably late to work. making up the time at the end of the day. The payroll record discloses that the hours Primrose worked per week compares favorably with those of Florence Thibeault who was not laid off and those of Babey, Donagher, Mulvaney, Roman- oski, and Sauciers who were reinstated There is no evidence that Primrose was ever criticized for reporting to work late. The only evidence respecting Kronish's efficiency is that he-had poor eyesight, that Luth was afraid of his safety and did not want him around the plant. Kronish had worked regularly and for a full quota of hours since entering Respondent's employment No evidence was offered tending, by way of incident, to explain why Respondent's concern respecting Kronish's safety arose or hap- pened to manifest itself in action on December 8, 1948. Luth's naked char- acterization of La Luna as "incompatible" receives no support in other evidence. Mr. and 1Irs. Kraftchick, according to Luth, were constantly away from work and according to Scully were frequently absent. It does not appear, if such were the case, that they were reprimanded or warned that discharge or layoff might be a penalty for the absenteeism. The husband had worked for 4 weeks including the week ending December 4, 1948. The wife had worked for 3 weeks or less depending upon what day she commenced employment, up through the week ending December 4. Neither had scarcely worked for Respondent long enough to have clearly established any symmetrical pattern of assiduity. During the 4 weeks ending December 4, Mr. Kraftchick worked a full complement of Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection and his contention that there was such disproportion between the number of laid-off employees and employees who were not reinstated who were union adherents and employees who were not laid off and reinstated employees who were not union - adherents, as to compel the conclusion that the layoffs and failuies to reinstate were violative of the Act. 10 Samuels and Schenberg stated they would not know whether these records were avail- able. In direct examination Lath at least inferred that he made a stop-watch study. In cross-examination it appeared that some of the studies were made "just mentally." ' 21 Upon consideration of Scully's testimony regarding Primrose, I have 'concluded it is' unsubstantial and have disregarded it. - CONNECTICUT CHEMICAL RESEARCH CORPORATION 183 hours 2 weeks , and more hours than 14 others 1 week , and more hours than 8 others a fourth week. During the 3 weeks Mrs. Kraftchick had worked for Re- spondent up through the week ending December 4, she "put in" less hours than most employees. Nevertheless , she did work more hours than 5 others the first week, than 2 others the second week, and than 2 others the third week, There is no narrative testimony that any of the remaining 17 employees who have not been recalled to work, all but 2 of whom either joined the Union or attended the December 9 meeting, were more quarrelsome and incompatible or presented a greater safety hazard or were more frequently tardy or absent 25 than were any of the 23 employees who were either not laid off or were reinstated on December 13, 1948, only 8 of whom signed union cards and only 3 of whom appear to have assembled in front of Respondent 's plant on the morning of December 9, 1948. c. S'uperflwity of employees as a factor in the layoffs and failmies to reinstate Luth testified there was dead wood around the plant, that some of the girls were not producing 25 percent or 35 to 40 percent of the amount they were supposed to, that it looked to him like Respondent was employing 3 people to do 1 person's work and that after resumption of operatiohs the Company got more production out of 15 production employees than it had gotten out of 43 or 44 23 production employees before December 8. Seven new employees were hired between the weeks ending January 8 and January 22, 1949. By the week ending March 26, 1949, more than 23 new employees had been hired. Thirty more new employees were brought in the following week. Clearly none of these was employed on the basis of seniority upon which Samuels and Luth testified they decided to call back employees. Apparently none of these was employed in preference to at least 17 people who were laid off and not reinstated in December on the other main basis, to wit, efficiency, upon which standard Samuels and Luth testified they decided to call back employees , there being no testimony that the new employees were more efficient than those 17 and there having been no explanation of any manner in which those newly hired after December 13, 1948, were more carefully prescreened than those hired before December S. The total dollar value of the Company's February 1949 sales, which Schenberg testified closely reflected the quantity of production due to a basically static inventory, was almost double the December 1948 total. By March 1949 the dollar value of sales more than tripled that of December 1948 and in April was more than two times as great as in any month in the company's history before 1949. I find that independently of any antiunion motivation, Respondent had planned before December 8 to lay off no more than 8 employees whom it considered excess personnel Disregarding, for the moment, any considerations that may have been related to the appearance of the Union on the scene, not all of these persons, had the plan to lay them off been effectuated, might have been rein- stated until the middle or latter part of January 1949, by which time we have seen 7 new employees had been hired , or possibly even until the middle or latter part of March 1949, by which time we have seen more than 23 new eiii- ployees had been hired and the quantity of production as disclosed by the total 22 Nor is it likely that decocting, exti acting and digesting , and regurgitating upon the pages of the report already growing too long, the marrow of Respondent 's time records, would ieveal any significantly probative divergencies in work repoiting and attendance regularity 13 The correct number is 38. if one is to take the number of production workers enrploye& on December 8, 1948, or q, if one is to believe Respondent's records of the number eiuplut (d 2 moritha'earlier 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dollar value of sales was more than three times that of December 1948 Ac- cordingly, the failure to reinstate by March 26, 1949, at the latest, any employees whom Respondent might have planned before December 8, 1948, to lay off as not needed at that time, was obviously not due to the fact that they continued to be superfluous after new Wrings began and production so markedly increased. d. The timing and purpose of the decision to lay off and not reinstate The testimony that the decision to shut down the plant had been made before and was in the process"of imple}nentation at the time the Union requested recog- nition was given by Samuels, Schenberg, and Luth. Shepard, the other officer of the Company who was called as a witness by Respondent, testified he was unaware of such plan. There is little doubt, and I have found, that shortly before December 8, thought had been given to laying off some people. There is grave doubt respecting the crucial question whether any such step as a com- plete shutdown of all production work involving a complete and permanent sep- aration of approximately 60 percent of all production workers had been decided upon before Foley and Mannes had their conference with Schenberg and Luth. Samuels testified that on occasion other similar shutdowns had taken place. The time records show that there was a period of 2 weeks in April 1948, when 8 employees who worked the week before and the week after are not listed as having worked during any part of such 2 weeks. The records also indicate that 4 employees who had worked up to the 2 weeks in question and did not work during any part of`such 2 weeks, also did not work for Respondent there- after. There is no evidence as to why these 4 did not return after the shut- down. Luth recalled a 6-hour shutdown around Christmas 1948 due to electri- cal failure. After the April 1948 shutdown, the only 2 weeks during which none of the employees worked a full 40 hours were those ending July 12, 1918 (maximum hours worked by any 1 employee, 37%; Sunday was July 4), and November 27, 1948 (maximum hours worked by any one employee, 33; pre- sumably Thanksgiving week). Luth greatly exaggerated the number of hours worked between Thursday and Sunday inclusive by the eight employees who were not laid off on Wednesday In- stead of their having labored 10 hours a clay for 4 days, i e.: 40 hours apiece for a total of 320 hours as Luth would have me believe, Sclienherg's testimony and the time records show that Myers worked 17% hours ; Rogers 201/2; Thibeault 16; Biazzo 121/r ; Hall 141/1; Heavey 211/-. ; Lichac 17; and Daniels 13, for an aggregate of only 1321/2 hours. During the week ending December 11, 1948, the total overtime amounted to 273!1 hours. It is apparent that only 21/_2 hours of overtime were "put in" be- tween December 9 and 12 by the eight employees whose hours of work are listed above and who were the only employees working during this period. It follows that 251 of these 273/ overtime hours were worked between December 6 and 8, the clay of the layoff. There is a striking contrast between the 4151/2 overtime hours worked during the week ending December 4, 1948, and those worked during the last 3 days of the week ending December 11, 1948, after the produc- tion worker layoff, when we find that instead of the employees remaining in the plant each having worked 10 hours a day for 4 days as claimed, all but three worked less than an average of the normal 8 hours a day for 2 days and the three worked less than an average of 7 hours a day for 3 days. I cannot but conclude that there was a similar exaggeration on Lath's part with respect to the amount of plant rehabilitation undertaken during this period. Beauregard testified that some changes in the layout of the line might have been made over the week end, that she had not recalled any other changes made CONNECTICUT CHEMICAL RESEARCH CORPORATION 185 in the plant, and that she did not recall any work having been done in the rest room and lavatories ; Shepard testified that he could not tell specifically what was done during the period of the shutdown in the plant; that:heiknew.. leaky valves were corrected and the packing wag'changed but he was not sure about the details ; Donagher testified that they built just a little wooden addition to and (lid a little bit of painting on the ladies' room; that it looked a little cleaner and Luth said it looked a little bit better and Helfer testified that from D. cember S to 13 no substantial changes were made in the machinery and only Inlnol repair and maintenance work that went along continuously anyway, was undertaken. I believe the conclusion that not much, if any. more than a normal amount of work in the nature of inventorying stockhousekeeping, repairing, refurbish- ing, and making improvements in the continuing experimental and expanding process of production was performed during this period, is inescapable. Assuming, ur gneado, that as much was done as Luth claims, a natural in- quiry as to why these things could not have been done without serious inter- ference with production, after the 3: 30 p. in closing time on Wednesday, Thurs- day, and Friday, and during Saturday and Sunday, arises. Certainly, it would not have been unprecedented or unexpected that a concern, which for reasons best known to itself. had worked its employees 415% hours overtime during the week ending December 4, 1048, should not also during the following week hare arranged to•have the desirable iiirproven5ents asserted to have been under- taken, made at times other than (luring the regularly scheduled working hours Much was nude of the fact that frequently from the inception of operations Respondent had been obliged at great expense to engage the services of J. P. Salmini Company, manufacturers and installers of refrigeration and ducting equipment, to perform installation, correction, and repair work in the plant. Samuels testified he had available at the hearing some figures, but not at all a complete record, indicating changes in machinery and repairs and so on in Respondent's business for the month of December 1948; that there were avail- able records not at the hearing relatipg to changes of machinery, repairs, and installations performed during that month; that the records at the hearing were not precise in relation to the dates of December 8, 9, 10, 11, and 12, that the records were of work orders requested from Salnnm Company and he would not know whether they would indicate whether Salmini Company had performed any work during the shutdown. The Salmini Company work orders were not produced and although at one stage of the case it would seem to have been sought to have it inferred that whatever was done between December 9 and 12 was of sufficient magnitude to have required the. services of outside re- frigeration and ducting installers, it was not finally contended that Salmini Company performed any,%w ork during the 2- to 4-day shutdown. Had the altera- tions effected during this time been nearly as extensive as Respondent would have one believe they were and of such proportions as to require a shutdown, it is strange indeed that Respondent would not follow its customary practice of having them made by Salmini. All of these considerations lend weight to the General Counsel's contention that the timing of and the motivation actuating the decision to lay off and not reinstate was coincident with and predicated upon Respondent's desire to dis- embarrass itself of the Union, rather than upon any real need to close down for alterations and stock-taking. Foley and Dlanne5 were unshaken in their testimony that on December - 8 Luth mention l only that it was his intention to Jay off six to eight employees and that nothing was said to the effect that any consideratfin had been given- by 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nianagemcnt to laying off any more than this number or that there had been prepared a list of employees who were not to be recalled after a general layoff which was to take place the very same day. There is no evidence to support Respondent's contention in its brief that Luth told Foley and Mannes about previous plans for a shutdown.2i Obviously if Luth had planned to shut down the plant and lay off all production employees there would be no occasion what- soever for preparing a layoff list. If, busy as he apparently was, he had been so previous as to feel he needed to prepare in advance of layoff, a list of employees whom he did not plan to recall after a shutdown of then uncertain duration, there was no reason for his not having told Runyon and Lichac 2' in whom he confided to the extent of asking for names of inefficient employees, the entire reason for his inquiries. It is apparent that Luth told Runyon during the early morning of December 8 that there would be a layoff and that it was not until well after the departure of Foley and INIanues that she first learned that there was to be a shutdown It does not appear that Runyon was told during the morning when a layoff alas to take place, if it was to occur that day, or how many were to be involved. Even after lunch on December 8, several hours after Luth had talked with him concerning the capabilities of various employees, Foreman Lichac told a num- ber of employees that 8 or 9 people were going to be laid off and that they were going to be called back later. If, as Luth claims, he was going over a list of those who probably would not be called back following a shutdown, it scarcely seems probable that Lichac would have announced, not that there was to be a shut- down, but as he did, that a layoff of a few employees who would be recalled was imminent. The far greater likelihood is that Luth had informed Lichac that he was contemplating laying off a few employees; that he did not tell Lichac whom he called upon to assist in working out the details of a layoff, that a shut- down was in the offing and that Luth had no thought of closing down production and laying off 38 employees until after the Union's request for recognition at sometime during the ensuing conferences with Schenherg, Shepard, and Helfer. If management had by mere coincidence planned a shutdown before its em- ployees circulated union cards, talked about the Union in its small plant and procured signatures to cards in and outside the plant and had held two meetings,, one of which undeniably was conducted in the presence of, and within the hear- ing of, one of Respondent's lead girls, and before being requested to recognize the Union, no conceivable occasion for it having withheld so vitally significant a fact from Foley, Alannes, Shepard, Helfer, Lichac, and Runyan would seem to have existed. 14 The evidence was flatly to the contrary as appears from the direct examination of Luth, tin:: - Q. Did you say the plant was going to shut down? A. No. 25 Respondent argues since Lichac, Daniels, and Gaffney were not called by the General Counsel. the Trial Examiner is at liberty to conclude their testimony would have been adverse to the General Counsel's case and to infer that employees who gathered outside the plant on December 9 were not identified to the Respondent. The burden of proving every essential element in the case, of coarse, rests upon the General Counsel. Where, as here, however prima facie showings have been made, the burden of going forward with evidence which may refute, control, or rebut unexplained or uncontradicted testimony rests upon Respondent. E B Law and Son, 92 NLRB 826. This was a long case. The General Counsel presented the evidence of 10 witnesses Some limit beyond which a party should not go in seeking to establish a case or set forth its defense is appropriate. The Admin- istrative Procedure Act, 60 Stat. 240, requires the exclusion of unduly repetitious evidence as a matter of policy. I have drawn no inferences from the failure of either General Counsel or Respondent to call Lichac, Daniels, or Gaffney. CONNECTICUT CHEMICAL• RESEARCH •CORPORATION e. The weight to be given Helfer's testimony 187 Helfer admittedly has an intense dislike for Respondent's executive vice presi- dent, obviously left Respondent following a dispute,,and is presently engaged in a business which to some slight extent is in competition with Respondent's busi- ness Because of the rather unusual situation in cases of this character, where we find a person testifying adversely to a party of-which he was a former officer -and the vigorous attack on him by Fable counsel, I feel it incumbent upon me even at the risk of redundancy 28 and boredom to treat Helfer's testimony with more than ordinary circumstantiality. I start with the proposition that all witnesses who have sworn to tell the whole and nothing but the truth are to be deemed worthy of full credence unless or until it appears that their power, and opportunity of accurate observation, their ability to express themselves, their, faculty of recollection, their self-interest, friendships and personal relations, their biases, dislikes, rivalries and prejudices, their appearance and attitudes as witnesses, their past records of behavior, probity, and reliability, and a multitude of minor criteria give cause for doubt. I find nothing in the power and opportunity for accurate observation, the ability for self-expression, the faculty of recollection or the past record of behavior, probity, and reliability of either Samuels, Schenberg,,Shepard, or Luth on the one hand, or Helfer on the other to warrant the drawing between them of any sharp line of discriminating distinction. To what extent, then, may one con- elude-that the self-interest of Samuels, Schenberg, Shepard, and Luth affected their testimony, the bias of Helfer affected his? Is the urge to exist a motive more or less impelling than the desire to destroy? Were the conduct and ap- pearance, the mannerisms and attitudes of these men, all equally impalpable, imponderable? Was testimony of the three corroborated more or less than the testimony of the one? Whose story had the ring of greater plausibility, more reasonability? The answers must be given and, I believe it will be agreed, may best be given, by him who heard the testimony, saw the witnesses, and has lived with and pondered over the case, while not otherwise engaged, these several weeks since May 8 of this year. Respondent urges in substance that Helfer should he regarded as a figuratively adulterous apostate beyond the realm of belief. In support of this contention it ,argues that Helfer denied having any conversation with Bennett regarding the Respondent, although Bennett testified he did. Actually Helfer did not deny conversing with Bennett about the Respondent and its labor problems and ad- mitted that he might have, although lie did not recall such discussion, and that he did not remember making any statement to the effect that he was in a posi- tion to "get" Connecticut Chemical Research and Mr. Samuels if he wanted to. Respondent's next argument that Helfer was untruthful is that he testified "there is no difficulty looking out the second story office windows." At the view, I observed that -although there is no difficulty looking out these windows, they are located so far above the floor-that a tall person without aid could not see persons on the sidewalk close to the building line and that only a,tall person could without aid see the heads of persons standing close to or on the curbing or in the street near the sidewalk. I do not consider that Helfer intended to imply that anyone could readily see people on the sidewalk upon looking out of the second floor office windows. The very words of his testimony carry no such import. But`it is clear from my view, that anyone who was so disposed (and there was no testimony that anyone undertook to do so) could readily by ze Section 8 (b) of the Administrative Procedure Act requires a statement of the reasons and basis foi conclusions upon all the'material issues of fact. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means of standing on a chair or other object look out the window and observe below a gathering of proportions sufficiently alarming to cause employees to telephone Luth inquiring whether to call the police. Respondent further argues that Helfer's testimony was inconsistent because at one point he testified Respondent's officers did not know for a fact who the union members might be and were guessing as to who might be involved and at another point testified Respondent hired people who it knew might have a rela- tion with the Union. (Helfer in using the word "hired," obviously was refer- ring to employees who were recalled on December 13.) I can see no logical incompatibility in evidence that since it did not know and was guessing who were union members the Respondent knew it was reinstating employees who might have union affiliations. Respondent still further argues that Helfer attributes a motive to Respondent which is contrary to the fact and in support of this argument contends that in direct examination he testified that keeping the Union out was the principal object of the shutdown and in cross-examination testified that the principal object of the conference of junior executives was to gain time until Samuel's return. This argument overlooks the distinction between the basic object of the Respond- ent and the purposes for which a meeting was held. Apparently Respondent desires to have it appear that Helfer shifted 'his ground between direct and cross-examination. That this is not so is apparent from the fact that not only in cross-examination did Helfer refer to the gaining of time as a factor in arriving at the decision to shut down, but also in direct examination testified at length that the decisions to shut down the plant immediately was made as a measure of coping with the Union to gain time in order to decide what to do in connection with the request for recognition, in order that a course of action could be planned and that the substance of conversations with his fellow officers was that they were faced with a union threat ; that they felt they wanted to obviate that union threat and the best thing to do was to shut clown the plant to gain time to think over what course of action should be followed. That Helfer did not shift his ground is also apparent from the fact that not only did he testify in direct examination that keeping the Union out was the object of the shutdown but also reiterated well along in cross-examination, when first asked the question, that the purpose in shutting down'the plant was to break the Union and upon further cross-examination testified that the purposes of gaining time and obviating the Union were interrelated and that`the primary purpose was to gain time in which to reopen the plant and obviate the Union. A study of this and all of Helfer's testimony leads me to the conclusions that Respondent's argument does not withstand scrutiny. Respondent's main attack on Helfer's credibility is based on Bennett's testi- mony, previously adumbrated in the last part of Section III, E. Bennett and Helfer are presently engaged in litigation Bennett's animosity toward Helfer is, I gun convinced, at least as great as Helfer's toward Samuels I am satisfied, in the absence of evidence of any other inducement, that Bennett's action in voluntarily coming to Connecticut from New Jersey to testify in behalf of Respondent was prompted in substantial part by his animus against Helfer. His demeanor, attitude, and bearing as a witness created an unfavorable impres- sion of unreliability. In depending upon Bennett to discredit Helfer, Resliond- ent leans on a macilent reed I do not believe Bennett jour"ifeced from Belle- ville to Bridgeport and testified in response to any sense of moral obligation. His statement he felt it his duty to be helpfuf-is equivocal. I do not suppose Bennett wants me to believe he considers it his duty to crusade in behalf of CONNECTICUT CHEMICAL RESEARCH CORPORATION 189 opponents to the principles of collective bargaining, and I do not so find. His testimony about the telephone conversation he overheard between Mr. and Mrs. Helfer strikes me as being little less than absurd.' Even if there were occasion to say that all were "wise" to him and "the jig is up," and I can conceive of none, I cannot believe from my observation of Helfer that he said any such thing to his wife over a telephone whether or'not he knew (and Bennett testified he sup- posed Helfer knew) his calls were being monitored. I do not pretend to have perceived all of Helfer's traits while he was under my observation but I am sure that they do not include assininity. Cautioning a creditor with respect to one's employer's willingness to pay an invoice may be considered an act of disloyalty by many but'does not prove the warning unfounded or the warner a liar. It would be most natural for Helfer to have talked with Bennett about his past business and events as extraordinary as those which took place in December 1948. Helfer, who testified and left the hearing room 6 days before Bennett appeared and testified, and did not return thereafter, did not deny that he had talked to Bennett about occurrences arising during his last emplo}- ment. I believe and find, although Helfer was unable to remember any such talks in detail, that the two men did have some conversation about Respondent's involvement with the Union. I also believe that Helfer probably indicated that if he were called to testify, agreed to testify, and should testify in a pend- ing case, his evidence would be damaging to his former associates But I also believe that his talks with Bennett carried no such connotation as those placed upon them by Bennett and I find Helfer did not say to Bennett, as claimed by Respondent, that lie could work around and maneuver and jockey to harms Respondent. Helfer's appearance on and testimony fnonn the witness stand, confronted by his three equally personable former coofficers, required either sotue courage or extreme effrontery. He remained imperturbable and exhibited neither sign of sU air nor lack of candor Frankly admitting his extreme dislike of Samuels, his outward appearance disclosed no vindictiveness, his testimony no immoderate- ness, his demeanor no brashness. As we have seen, Luth, upon whom Respondent chiefly relies, has been found to have over stated the amount of work done as well as the number of hours em- ployees of Respondent were engaged in working, during the shutdown His testimony to the effect that the scheme completely to shut down production was conceived before December 8 was obscure, such plan, if any, was not revealed to key employees, let alone to two of the three officers of the Company who were on the ground; admittedly he told neither Foley nor Mannes that such it decision had been made. I have concluded from the analysis contained in Section III, F 1 (a) that, con- trary to Luth's assertion, seniority was not a factor of any substantial significance in the determination of what employees were to be laid off and what employees were not to bc`recalled : we.,have Siren from the analysis contained in Section III, 1' (b), that contrary to Luth's assertion, efficiency was not a factor of any sub- stantial significance in the determination of what employees were to be laid off and what employees were not to be recalled, and it has been found in the analysis contained in Section III, F 1 (d) that, contrary to Luth's assertion, the decision to lay off and not reinstate was coincident with and predicated upon Respondent's desire to disembarrass itself of the Union, rather than upon any real need to close down all production. Having thus pointed out the inconsistencies, inaccuracies, distortions, improb- ab,lities, and implausibill ties inherent in Luth's testimony, let us pause to examine in what respects, if any, Helfer's testimony was corroborated by that of other 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses and consistent with likelihood. Manifestly, Helfer's testimony in general was supported by that of Foley and Mannes that Luth mentioned only 6 or 8 unnamed people as being considered for layoff and said he was against unions ; by that of Primrose that Lichac informed employees 8 or 9 were to be laid off; by that of many employees that they were conspicuously present in front of the plant on December 9; by that of Beauregard and Runyon that Helfer in- terrogated them concerning the Union and union.activities ; by that of Donagher and Romanoski that Luth told the returning employees on December 13 not to bother with the Union and that he did not care for and did not think he wanted to bother with unions; by that of Schenberg that Luth mentioned 6 or 8 people to Foley and Mannes and that no reference was made to whether these people were being temporarily laid off ; 27 and that there was no reference as to what the plan was that day; by that of Shepard that he did not know until after the union men had been in that it was proposed to shut down the production line; by that of Scully that Luth called together the girls who returned to work December 13 and said something about the Union ; by that of Runyon that she spoke to girls about the Union and that on December 7 Lichac informed her there was to be a-layoff and requested her to grade employees, and on December 8 she went over with Luth what Lichac had asked her and no mention of any specific number of people to be laid off was made ; and by that of Beauregard that she did not know the basis upon which employees were reinstated on December 13; that she did not recall any changes having been made in the layout line or in the rest rooms 28 or lava- tories between December 8 and 13 and that she thought she asked Primrose if she knew anyone who was passing out cards. Helfer's testimony in particular, that Respondent' s purpose in shutting down the plant and in not recalling a majority of the employees who were laid off on December 8 was to gain time to lay plans and to get rid of the Union, receives support from the facts that, of the 23 employees working on December 13, only 7 had signed-union cards and of the 23 people who were not reinstated on that date 21 had signed cards ; that, of the 23 working on December 13, 20 have not been shown to have been noted at the December 9 meeting and of the 23 people who'were not reinstated on December 13, 17 have been shown to have been observed at the meeting; that, of the 23 working on December 13, 16 had neither signed union cards nor have been shown to have been observed at the December 9 meeting and of the 23 employees who were not reinstated on December 13, 21 had either signed union cards or have been shown to have been present at the December 9 meeting ; that of the 21 em- ployees who were laid off on December 8 and were not reinstated on December 13 and had either signed cards or had been noted outside the plant on the morning of December 9, 5 had as much seniority as or more seniority than any of the persons not discharged and 14 had as much as or greater seniority than the mesne seniority of the group which was not discharged ; and that there was no showing whatsoever that any of at least 17 employees who were not recalled, all but 2 of whom either joined the Union or attended the December 9 meetings were less efficient than were any of the 23 employees who either were not laid off or were reinstated on December 13, only 8 of whom signed cards and only 3 of whom appear to have assembled in front of the plant on December 9. In view of all these facts, reasons, circumstances, and probabilities I am impelled to disbelieve the testimony of Luth insofar as it is in conflict with the material testimony of Helfer. As a corollary, I must also discredit, insofar as it may be in disaccord 27 The testimony of Schenberg, generally a witness uttering positha assertions , that he thought Luth mentioned that he had a list of employees to be laid off up to that time and had not nearly completed it, I regard , in view of all the circumstances , as insubstantial. 28 It does not appear that the plant contained any rest rooms as distinguished from lavatories in December 1948. CONNECTICUT CHEMICAL RESEARCH CORPORATION 191 with Heifer's, the testimony of 3 equally intelligent and astute persons, having an interest of great magnitude in the outcome of the case-Samuels, a man of re- markable self-assurance ; Schenberg, highly allegiant to his associates ; and Shepard, a person of cautious scientific approach whose testimony and unaware- ness of any plan to shut down production, in final analysis, strengthens my belief that Respondent's conduct on December 8 was actuated by its desire to defeat its employees' statutory right of collective bargaining. Final Conclusions A. The 8 ( a) (3) violations All the testimony on the subject of the reasons prompting the Respondent's action on December 8, 1949, needs no review. I find that Respondent had planned to lay oft no more than 8 employees before it became aware of its employees' union activities and before the Union requested recognition. This decision was not effectuated The unconsummated plan to lay off employees considered to be superfluous (as distinguished from the decision, which aids put into effect, to lay off all of its production employees and thereafter select employees for return or separation), was not in itself violative of the Act. Except for testimony general in content or unpersuasive in character, Respondent offered no evidence that employees chosen either for layoff or for separation were selected only because they were not as efficient as, or because they possessed less seniority than, those not laid off or those who were reinstated. Respondent apparently takes the position that it offered in a form letter 2° which was sent to a number of people, to reemploy Primrose and La Luna,S° 2 among the only 6 of the 23 non- reinstated employees concerning whose qualifications it offered any evidence whatsoever. Presumably it would not have done so if either Primrose or La Luna, as it contended at the hearing, were not qualified. In several instances employees chosen for separation possessed greater seniority than those not laid off or those who were reinstated, thus showing that the as- sertion of use by Respondent of its claimed formula for selection for layoff and discharge on the basis of seniority is without foundation in fact. Over 90 per- cent of the employees who had designated the Union were discharged and never recalled. Only 341/•3 percent of those who were either never laid off or who were laid off and reinstated after 4 days had designated the Union. Only 40% per- cent of those who were laid off on December 8 and who were recalled on Decem- her 13 had designated the Union Any one of an extensive set of mathematical comparisons based on degree of conspicuity, extent of activity, and the like, that could conceivably be made, if one's penchant for the odious were inexhaustible and this report to excurse interminably beyond the limits of judicial or adminis- trative endurance, would prove equally insidious. It should be sufficient to point out, and I find, that by this disproportion in the selection of employees for layoff and by this disproportion in the selection of employ ees it failed to reinstate, Respondent, whose opposition to the Union has been established and whose awareness of the union allegiance of a majority of its'employees is undenied, demonstrated its purpose to avoid the unionization of its plant." "This letter was received in evidence for the limited purpose of explaining statements in a card received from Primrose and not as evidence of any other substantive fact. 30 General Counsel admitted that La Luna received the same letter that Primrose received. 21 F TV. Woolworth Co. v. N L R. B., 121 F. 2d 658 (C. A. 2). In that case, 70 percent of the employees were union members , while 95 percent of the employees laid off were members of the Union. The court found that this "tell-tale" disproportion, coupled with 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends that any interference of a discriminatory motive for laying off 38 and refusing to reinstate 23 employees is eliminated by the fact that it did reemploy on December 13 some people without knowing whether or not they were union members but who they supposed were because of Foley's and Manses': assertion that the Union represented practically all of the employees I find no merit in this contention "Although 7 -employees (Babey, Dixon, Donagher, Faison, Rice, Romanoski, and Saucier) among the 15 who were recalled, had signed union cards, the record does not show that any of them had been prominent in the Union or that Respondent be- lieved, once it had impressed upon all employees by its conduct on December 8 its fixed determination to prevent unionization of the plant at all costs, that they would risk penalty of becoming active in an apparently lost cause. Thus Babe, , Faison, Rice, and Saucier, friendly with Foreman Daniels who ex- pressed his disapproval of union activity, had not taken any active part in union affairs even to the extent of appearing in front of the plant on December 9. The record is silent as to any activity on the part of Dixon, Donagher, or Romanoski other than their appearance at the December 9 gathering. Of these, Respondent knew Donagher had not worked on December 8, had not been notified of the layoff, and might naturall3 be expected to report for work as usual on the 9th If Respondent's assertion that no particular attention was paid to the identity of the employees composing the assemblage is even partly true, it could well be that Dixon's and Romanoski's presence among 23 people (20 employees and Foley, Brock, and Robert Cleveland) escaped its notice on December 9 or its advertence on December 11 or 12 when it decided to notify 15 employees selected from 38 that they might return to work on December 13. Moreover, the Act forbids an employer from discriminating against aIlp of his employees even if lie shoes lie bao,cingllt retrained from discriminating against others It has often been held that no inference of in- nocence may be derived from the fact that an employer did not discharge all or did reinstate some employees who were members of n labor organization. Moo Test Corp., 81 NLRB 976; V. L R 11 v Pennsy7ravw Uieilhoicnd Limes, 303 U S 261. Respondent failed to divulge the names of the 6 or 8 employees it had decided to lay off before Foley and, Mannes conversed with Schenbeig and Luth fly such failure Respondent has negatived the possibility of determining whether any or which of any of the 38 employees alleged in the complaint to have been discriminatorily discharged and refused reinstatement would have been discharged in the absence of discrimination "It must bear the consequences of such action, for it rested upon the tort-feasor to disentangle the consequences, for which it was chargeable, from, those which it was immune." See AY L R B. v. Renarngtoe Rawl Inc., 94 F 2d 860 (C. A 2) cert. den, 304 U. S. 576. In final summary, upon the entire record before me in this case,3R including the employers' knowledge of the identity of many of the union members, amply supported the inference that antiunion discrimination was shown in the discharge See _lfontgonier'j Ward and Co v N L. R. B, 107 F. 2d 555 (C A 7) ; IV C Nabors Company, 89 NLRB 5:18; Differential Steel Car Company, 75 NLRB 714 N L H R. N Carolina Milk. Inc, 190 F. 2d 675 (C A 4) In the latter case, the Company in Selecting the employees to be laid off, without regard to semonty and lacking production or efficiency records, laid off 49 pei cent of the union members employed. although only 27 5 pei cent of all employ ees lit the plant were union members Cf H C H Manofaeturmg Company, Inc, 87 NLRB 1373 a The entire course of Respondent 's conduct must be considered in determining whether the selection of the employees for layoff was a violation of the Act. N. L R. B. V Vail btannfactnriny Company, 158 F. 2d 664 (C. A. 7) CONNECTICUT CHEMICAL RESEARCH CORPORATION 193 the unexplained layoff of and failure to r1instate, and the unsatisfactory ex- planations for selection either for layoff or d1sgharge of such a disproportionate number of union Inembers,q find-"Reslxmident diSc!i-fiininated against all employees laid off on December 8, 1fi°4S, A. lridhig tho^'Wreinsfhted on December 13, 1948, in violation of Section 8'*(a) '(1) andhS'fat) , (3)1 of the Act. B. Tine independent S (a) (1) violations It is alleged that Respondent interfered with, restrained, and coerced its employees by offering , promising , and granting wage increases and other bene- fits to its employees for the purpose of discouraging membership in or assistance to the Union . On December 13 Luth stated to assembled employees that Respondent would have enough work for all the girls ; that they did not need a union ; that they would have lunchrooms and would not have to eat in the ladies room ; that he wanted everybody to be happy as members of a happy family and work together and not to bother with the Union , that better wages would be paid if business improved , and that a Christmas and other parties would be held. There is no doubt that these statements contained at least conditional promises of wage increases and other benefits The question whether the fulfillment of the promises was conditional upon employees refraining from continuing to remain members or them withholding assistance to the Union , is easily answered in the affirmative . This talk emphatically pointed out what the employees must in all probability have suspected . that the layolt of December 8 immediately following upon the Union 's request for recognition was imposed upon them by way of a penalty for engaging in, and a warning to them of the disastrous consequences attendant upon , union activities . The entire tenor of Luth 's speech at the particularly significant time he delivered it , imported a thinly veiled promise that if the employees , who had been taught a lesson and punished by haying 2 days' work and pay taken away and who had now been forgiven and brought back into the fold, would behave themselves in the future and avoid undesirable associations , they could not only count on not losing any more pay but could reasonably expect to receive more pay, and surely have more comfort and enjoy more conveniences and good times in a happy family circle. I have no hesitan't' in finding on the undisputed testimony regarding Luth's talk and upon all the surrounding circumstances , that in violation of Section 8 (a) (1) of the Act, Respondent restrained and coerced its employees by promising them benefits for the purpose of discouraging membership in or assistance to the Union, thereby engaging in interference and coercion of its employees in the exercise of the rights guaranteed by Section 7 of the Act. , The General Counsel has argued that Respondent is guilty of a per se viola- tion of the Act because of its interrogation of employees with respect to their union 'membership and interests . Since this conduct is not alleged as a violation in the complaint and because the point , as such, was not litigated, I make no finding in the premises. IV. THE EFFEGr OF THE UNFAIR LABOR PRACTICES UPON CO M MERCE The activities of Respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing conuiience aiid the free flow of commerce. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action which I find is necessary to effectu- ate the policies of the Act. By promising employees benefits for the purpose of discouraging membership in or assistance to the Union, Respondent has evinced a purpose and disposition to thwart self-organization of its employees and deprive them of their rights under the Act. In view of this, and of the other unfair labor practices herein found, there is, in my opinion, a likelihood not only that such acts may be re- peated but that other unfair labor practices may be resorted to by Respondent in an effort to prevent self-organization of its employees. To minimize the likelihood of recurrent unfair labor practices and to assure the employees the enjoyment of their statutory rights, it will be recommended that the Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization. Having found that Respondent discriminated against 38 employees, listed in Appendix A and Appendix B attached hereto, by selecting them for layoff and by laying them off, it will be recommended that Respondent make them whole for any loss of pay each may have suffered by reason of such discrimination, and that said loss of pay shall be computed on the basis of each calendar quarter or portion thereof during the period from December 8, 1948, to the date of his or her reinstatement or a proper offer of reinstatement, the quarterly periods, hereinafter called "quarters," to begin with the first day of January, April, July, and October, loss of pay to be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, net earnings, if any, in other employment during that period, earnings in one particular quarter to have no effect upon the back-pay liability for any other quarter, and that Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the determination of the amount of back pay due. Having found that Respondent discriminated against 23 employees listed in Appendix B attached hereto, by selecting them as persons not to be reinstated and by refusal and failure to reinstate them, it will be recommended that Re- spondent offer each of them immediate and full reinstatement to his or her former or a substantially equivalent position without prejudice to his or her seniority and other rights and privileges. It may well be that no more than 8 of those named in the complaint and in Appendix A would have indiscriminatorily been laid off on or about December 8, 1948, for legitimate business reasons and not reinstated until the time Re- spondent began hiring new employees about January 8 and 29, and March 5, 1949, but as previously found, it is incumbent upon Respondent to disentangle the consequences for which it was responsible from those from which it was immune and this it has failed to do. In view of this possibility, however, it is recommended that it be taken into consideration in determining the amounts of back pay due these employees, should their identity become established. On January 17, 1951, Dorothy Primrose and Cora La Luna returned post cards they had received enclosed with a form letter from Respondent stating in substance that they could not accept an` offer of employment until after disposition had been made of these proceedings, following which time they would gladly return to work. This form letter and the enclosed card have been de- scribed and a statement of the limited purpose for the reception of the letter CONNECTICUT CHEMICAL RESEARCH CORPORATION 195 in evidence has been set forth . The letter contains no offer of employment, much less an unconditional offer of employment . It is no more than an in- quiry of availability . Yet the presence of the words "offer of employment" adroitly supplied by Respondent in the accompanying card was sufficient to delude Primrose and La Luna into the belief they actually had been offered work. Nevertheless , these two employees definitely informed Respondent they did not wish employment on January 17, 1951. Consequently , I am of the opinion that , and recommend that, regardless of their reason for not desiring to work at the time , Primrose and La Luna should be denied back pay subse- quent to January 16 , 1951. However, since no actual offer of reinstatement has been made to them and since their'lack of desire to work for Respondent was conditional and temporary , I believe that it would effectuate the purposes and policies of the Act to order Respondent to offer Primrose and La Luna reinstatement and I so recommend. In the event that there is insufficient work for all of 23 employees listed in Appendix B who desire work, I recommend that Respondent be ordered to dismiss a l l or as many persons newly hired after December 8, 1948 , as it may be necessary to dismiss in order to provide employment to which the employees named in said appendix are entitled . Since many changes in the status and situation of the employees involved have probably taken place during the past 2%; years, it does not seem necessary at this date to recommend that Respond- ent be ordered to establish a preferential hiring list . However, it is recom- mended that the Board expressly reserve the right to modify any back pay and reinstatement provisions that may become necessary by reason of change of conditions and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to any particular set of circumstances not now appearing. Having also found that Respondent engaged in interference , restraint, and i oercion , pf its employees in the exercise of the rights guaranteed in Section 7 of the Act by promising them benefits for the purpose of discouraging mem- bership in and assistance to the Union , I shall recommend that Respondent to be ordered to cease and desist from such conduct. Upon the -basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1 District 50, United Aline Workers of America is a labor organization within the meaning of Section (5) of the Act. 2 By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , 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 in regard to the hire and tenure of employment of employees, thereby discouraging membership in a labor organization , Respond- ent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) and 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. [Recommendations omitted from publication in this volume.]