Brady Aviation Corp.

BRADY AVIATION CORPORATION 25 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that the following employees of the Employer consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's 1933 West 60th Street, Los Angeles, California, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act.ll [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER and MEMBER BEESON, dissenting : We would dismiss the,petition. While we agree that the election of October 15, 1953, was an invalid one and, for this reason, does not bar an immediate election under the ban of Section 9 (c) (3), of the Act, we nevertheless believe that where a union is certified after an election and thereafter the Board, upon finding that the union has omitted officer designations from its constitution for the purpose of evading the filing requirements of Section 9 (h) of the Act, revokes its certification, the Board should, as a deterrent to such deliberate evasion, deny a new election to the union for a period of 1 year from the date of the prior invalid election. Such a rule would, in our opinion, effectuate the provisions of Section 9 (h) of the Act. Other- wise, we accomplish nothing by revoking the prior certification except to incur for the public the trouble and expense of holding a second election. u The parties agree as to the unit , except that the Employer would exclude clerical em- ployees generally . However, as the Board customarily includes plant clerical employees in plantwide units , we will exclude only the office clerical employees . See Mrs Tucker's Products, Division of Anderson, Clayton & Company, Inc, 106 NLRB 533. The Em- ployer also made a request for the inclusion of the plant address in the unit description, which was opposed by the Petitioner on the ground the plant might be moved. However, as Board unit findings, in any. event , relate only to existing operations, we have specified the present plant location. BRADY AVIATION CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA , (UATV-CIO). Case No. 16-CA-640. September 24, 1954 Decision and Order On December 29, 1953, 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 110 NLRB No. 13. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. 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- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the additions and modifications noted below. 1. The complaint alleged that during December 1952, the Respond- ent discharged Jacoby and laid off Haynes, Hemphill, and Moore and thereafter refused them reinstatement in violation of Section 8 (a) (3) and (1) of the Act. The Trial Examiner found on the basis of conflicting evidence that the Respondent had no knowledge of the union activity of the complainants at the time of their discharge or layoff, as the case may be, and therefore no violation of the Act could be predicated thereon. We see no reason to disturb this finding. The Trial Examiner further found on undisputed evidence that subsequent to their layoff the Respondent learned that Haynes, Hemphill, and Moore, together with Jacoby, constituted the entire union organizing committee for the clerical employees and concluded, on the basis of the record as a whole, that Haynes, Hemphill, and Moore were there- after discriminatorily denied reemployment. We also agree with that finding. Haynes, Hemphill, and Moore were clerical employees, classified as department clerks "B." Admittedly these employees had capably served the Respondent. In fact, Haynes and Moore were told shortly after their layoff that they would be the first to be called back. Pre- viously, but unbeknown to the Respondent, Haynes, Hemphill, and Moore, together with Jacoby who had been discharged, constituted the entire union organizing committee which was seeking to obtain ad- herents among the unorganized clerical employees. Prior to January 28, 1953, the date they formally applied for reemployment, the Re- spondent learned of their union activities. These employees have never been offered employment, even though between the period of their layoff and June 1953, some 18 new employees were hired for clerical work and 2 former clerical employees were reemployed in clerical positions. Neither of the 2 former clerical employees, 1 of whom was laid off at approximately the same time as the complainants, were members of the union organizing committee. As fully set forth in the Intermediate Report, the record shows that the Respondent manifested its opposition to the organization of its clerical employees and its antipathy to clericals who embraced the BRADY AVIATION CORPORATION 27 Union. While most of these overt acts and statements occurred before the 6-month period preceding the filing of charges, and cannot, there- fore, form a basis for an unfair labor practice finding, nevertheless such conduct may be regarded as background evidence for the purpose of appraising ambiguous acts by the Respondent.' However, during the operative period of the charge, the Respondent, as found by the Trial Examiner, violated Section 8 (a) (1) of the Act by intimating to Hemphill that her chances of reemployment would be improved if she withdrew her unfair labor practice charge against the Respondent. In our opinion, the foregoing facts are sufficient to make out a prima facie case of discrimination in the failure to reemploy the 3 complainants for any of the 20 clerical openings which were filled since their layoff. To rebut this prima facie case, the Respondent contends that none of the complainants were qualified to fill any of the 20 clerical positions which subsequently became available. In support of its contention that none of the complainants was qualified for any of the vacancies in question, the Respondent intro- duced in evidence an "analysis" purporting to give the job require- ments of each vacancy and the reason why the complainants were not reemployed for such vacancy. As fully set forth in the Intermediate Report, this "analysis" was prepared in the main by Glover, after the filing of the instant charges, on the basis of what appears to be certain alleged informal company records, apparently made by some unidentified person or persons. While we have no reason to doubt the accuracy of the job requirements set forth in this document, we, like the Trial Examiner, attach little weight to it, except in obvious in- stances, insofar as it purports to assign the reason for not reemploy- ing the complainants. Aside from the hearsay, self-serving, and con- clusory nature of the reasons assigned, its general unreliability is otherwise indicated by the record. Thus, as set forth in the Interme- diate Report, the "analysis" states that Hemphill was not considered for a vacancy filled on April 28, 1953, because of her plans to move to Abilene, Texas, in July, whereas credible testimony shows that the Respondent was not informed of the contemplated move until May 11, 1953. In this state of the record, we must appraise the Respondent's contention of lack of qualification of the complainants as the reason for their nonemployment in light of their established and proven quali- fications as evidenced by their satisfactory work performance for the Respondent and the job requirement of the vacancies. Haynes was employed as a clerk in the production department and her duties consisted of keeping records of rate changes, classifications, transfers, terminations, compiling daily reports, and performing gen- ' General Shoe Corporation, 90 NLRB 1330, enfd. 192 F. 2d 504 (C. A. 6) ; Axelaon Manufacturing Company, 88 NLRB 761. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral office work. Hemphill was employed as a clerk in the parts con- trol department and her duties consisted of clerical work in connection with the receipt of parts, taking care of personnel files for two depart- ments, typing, and performing other general office work. Moore worked temporarily as a secretary, but prior thereto she did various types of clerical work in the tool and die department, including typing and the maintenance of records dealing with personnel, hours worked, and production. The Respondent adduced evidence that Moore lacked proficiency as a secretary; consequently, only her other clerical qualifications will be deemed material. As fully set forth in the Intermediate Report, subject to the above exception, the work of all 3 complainants was highly regarded by management and they, accordingly, were given merit increases, and 2 of the 3, Haynes and Moore, were assured shortly after their layoff that they would be among the first to be recalled. Moreover, the record also discloses that in their June 1953 meeting, during which Glover, who apparently at the time was serving in the capacity of vice president in charge of all administrative functions other than the accounting department, placed before Hemphill her application for reemployment and asked that she withdraw the pending unfair labor practice charge, he stated to her that if he had known she wanted a job he would have given her one. This indicates that the Respondent not only regarded her past per- formance as satisfactory but also considered her qualified for a new job, as her old job had been abolished at that time. From the "analysis" in evidence, it appears that the vacancies in question consisted of 5 secretary positions and 15 clerk positions. There is no substantial evidence that the complainants were qualified to fill the secretarial positions. However, the various duties of the clerk positions, which apparently are included in the same wage classi- fication as the positions formerly held by the complainants, do not, on the whole, indicate the need for any highly specialized skills or train- ing. For example, the work of the personnel clerk in department 62 involved "handling of rates and classifications, weekly personnel re- ports, sixteen week review" ; the clerk in department 70 was "re- sponsible for posting on release and raw stock record cards, all receipts, completions, reworks, rejections. . . ." Upon consideration of all the evidence, we, like the Trial Examiner, are not satisfied that the complainants were not qualified for any of the vacancies in question. Indeed, we are of the opinion that the type of work formerly done by the complainants somewhat parallels and compares favorably with the job requirements of some of the positions for which they were denied employment. We, like the Trial Examiner, are convinced by the record as a whole, especially in view of the fact that the Respondent's new clerical personnel were entirely unfamiliar with its operations, that the com- RRAIY AVIATION CORPORATION 29 plainants were denied reemployment not because they lacked the necessary job qualifications, but because the Respondent's opposition to the unionization of its clerical force would best be served by not returning the Union's organizing committee to the plant. However, unlike the Trial Examiner, we are not entirely satisfied in view of relatively few openings, that all the complainants would normally have been recalled by February 2,1953. But we do believe that absent discrimination they would have been recalled by March 9, 1953, at which time the Respondent had filled 8 nonsecretarial vacancies. We shall accordingly commence back pay from that date. If the dissenting opinion had registered disagreement with us only as to the "weight" to be given the "analysis" prepared by the Respond- ent and the inference of facts to be drawn therefrom, we would have been content to rest on the record without further comment. How- ever, our dissenting colleagues have gone much further in construing our opinion and by apparently abandoning the "pretext" theory of discrimination which has been uniformly approved by the courts. In giving controlling significance to the fact that 70 other em- ployees were also laid off for economic reasons and that the record fails to disclose whether they were ever rehired, the dissent fails to point out that those 70 employees were production employees who were already organized and who are not involved in this proceeding, where- as here we are concerned with discrimination against clerical em- ployees whose organizational activity the Respondent opposed. In these circumstances the absence of evidence as to the subsequent treat- ment of laid-off production employees is hardly relevant. Moreover, it is well settled that it is not necessary to find discrimination against all union adherents in order to find individual discrimination among active union members. More serious, however, is the unfounded charge of the dissent (1) that under the majority's holding "all that need be proved to establish a violation of the statute when an employer does not hire applicants for employment is that the employer knew the applicants were union adherents," and that "an employer cannot without risk of an 8 (a) (3) violation reject one job applicant and prefer another applicant if the employer knows the rejected applicant has been a union sympa- thizer"; (2) that the majority relied exclusively on the Trial Examin- er's "illuminating observations" as the basis for concluding that the camplainants were discriminated against; (3) and that in rejecting the Respondent's defense the Board is substituting its judgment for the Respondent's as to the qualifications of the complainants. As indicated in our main discussion, the real issue here is what in fact motivated the Respondent in denying employment to these com- plainants. Motivation is a subjective matter which, if found, must be inferred from objective circumstances established by the record after 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly considering all countervailing evidence. A reading of our opin- ion clearly shows, contrary to the suggestion of the dissent, that our inference of discrimination is based not only on the Respondent's knowledge of the union prominence of the complainants but also upon the combination of additional factors, including the Respondent's opposition to organization of the clericals; the recall of one laid-off clerical who was not a member of the Union; the fact that the com- plainants had previously satisfactorily performed clerical work for the Respondent and, prior to knowledge of their union activity, two of them had been promised reemployment; and the subsequent availa- bility of jobs. Our conclusion that the complainants were qualified for some of these available jobs does not constitute a substitution of our judgment for that of the Respondent's, but reflects our reasoned conclusion based on a detailed and objective analysis of the record, which although set forth above is not adverted to in the dissenting opinion. Illustrative of this is the fact that we found on the record that the complainants were not qualified for secretarial work and, ac- cordingly, secretarial openings were not considered in arriving at our ultimate finding. Under the dissenters' apparent concept of the law, the Board would be bound to accept, to avoid the charge of substitu- tion of judgment, the Respondent's unsupported economic conten- tion. This would lead to the absurd result that no discrimination could ever be found unless the employer openly admitted it. In con- clusion, we wish to state affirmatively that although we cannot con- trol the hazard of litigation which is a natural concomitant of doing business, no employer need fear an adverse finding by the Board simply because he rejects a known union adherent, provided his de- cision is in fact based on economic and not union considerations. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Brady Aviation Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, (UAW-CIO), or any labor organization of its employees, by re- fusing to reinstate any of its employees because of their membership in or activities on behalf of any labor organization, or by discriminat- ing in any other manner in regard to hire or tenure of employment or any term or condition of employment. (b) Inquiring whether employees have instigated charges against it or requesting the signing of statements withdrawing such charges, BRADY AVIATION CORPORATION 31 or in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, (UAW-CIO), or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such ac- tivities, except to the extent that such rights may be affected by all agreement requiring membership in a labor organization as a condi- tion 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 purposes of the Act : (a) Offer to Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole in the manner set forth in the Intermediate Report in the section entitled "The Remedy," as modified herein. (b) Upon request make available to the Board or its agents, for examination and copying, all payroll records, social-security pay- ment records, timecards, personnel records and reports, and all other records necessary to analyze the back pay due and the right of rein- statement under the terms of this Order. (c) Post at its plant at Brady, Texas, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent, be posted immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. CHAIRMAN FARMER and MEMBER RODGERS, dissenting : We do not agree with our colleagues' conclusion that the General Counsel has made out a prima facie case of discrimination. We dis- 9 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," in the caption thereof, the words "A Decision and Order" 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 a United States Court of Appeals, Enforcing an Order " 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with their rejection of the Respondent's defense to the General Counsel's case. So far as we can perceive, the General Counsel established affirma- tively that these 3 clerical employees were laid off, along with close to 70 employees, for solely economic reasons. Thereafter, the Respond- ent learned that they had been among the organizers of the Union. Finally, the Respondent did not rehire them, nor did it hire anyone else to take the jobs previously occupied by them, which were never filled. The Respondent did hire clerical employees in other jobs. The record does not show how many of the 70-odd other laid-off em- ployees were ever rehired. On these operative facts, and by rejecting the Respondent's asserted reasons for not hiring Haynes, Hemphill, and Moore and for hiring what clerical employees it needed in other positions from other applicants in preference to them, the Trial Ex- aminer found, and our colleagues agree, that the Respondent violated Section 8 (a) (3) of the Act .3 The reasoning of the majority necessarily means that all that need be proved to establish a violation of the statute when an employer does not hire applicants for employment is that the employer knew the applicants were union adherents. That is the sum and substance of the "prima facie case" established by the General Counsel here. The fact that the Respondent testified that it preferred other appli- cants to the three in question is considered by the Trial Examiner to be a "pretext" because the Trial Examiner "had the illuminating opportunity of seeing and listening to these young ladies." This led the Trial Examiner to find that the three young ladies were "fitted for the positions given others in their stead," and my colleagues agree with this estimate. But the Trial Examiner's, or this Board's, judg- ment of these applicants' clerical capabilities and qualifications is hardly a substitute for the Respondent's judgment based on their em- ployment record with the Respondent, and the Respondent's knowl- edge of their work on the job. And it cannot in any event serve to rebut the Respondent's preference for other applicants, for even as- suming the correctness of the majority's conclusion that Haynes, Hemphill, and Moore were qualified for some of the positions, there is no evidence at all to show that those employed in preference to the complainants were not more qualified. 3 The majority also relies upon certain conduct of the Respondent antedating the charge herein by more than 6 months, and therefore not subject to an unfair labor practice find- ing, and a single 8 (a) (1) finding after the charge was filed The earlier conduct, although it might be considered for the purpose of "appraising ambiguous acts," as the majority states, does not serve to rebut unambiguous and uncontroverted testimony of the Respond- ent as to the reasons for its choice of personnel to fill the relatively few vacancies that occurred The single 8 (a) (1) is itself based on inference and assumption ; it consisted of the perhaps suspicious, but by no means conclusive , circumstance of having an employ- ment application in view at the time the Respondent asked the complainant if she would withdraw her charge. This action , coining after the charge of 8 (a ) (3) was filed, does not evidence the Respondent 's motives , or support the allegations of the earlier -filed charge. BRADY AVIATION CORPORATION 33: We are particularly concerned with the implications of the ma- jority's holding in this case. Apparently, an employer cannot with- out risk of an 8 (a) (3) violation reject one job applicant and prefer another applicant if the employer knows the rejected applicant has. been a union sympathizer. If he does, to exculpate himself he must prove that he had a valid reason for his preference by satisfying a Trial Examiner or this Board that they too would have chosen in the same manner. This unfair burden has, in our opinion, been met by the Respondent in this case, by introduction of extensive and precise reasons why other applicants were preferred to the complainants. But the Trial Examiner and our colleagues attach "little weight" to, the analysis prepared by the Respondent because it was a "self-serving document, prepared for purposes of exculpation." As we are unable to find that the General Counsel has established a prima facie case, and therefore the Respondent had nothing to rebut, and because we believe that the Respondent's reasons for having hired others in preference to the alleged 8 (a) (3)'s must be accepted as true, because they are uncontroverted by any evidence other than the Trial Examiner's "illuminating observations," we would reverse the Trial Examiner's 8 (a) (3) finding herein. Intermediate Report STATEMENT OF THE CASE A charge having been duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), herein called the Union, on May 26, 1953, and served on May 27, 1953, and a com- plaint and amendments thereto and a notice of hearing thereon having been duly served, and an answer having been filed by Brady Aviation Corporation, herein called the Respondent, a hearing involving allegations of unfair labor practices in violation of 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Brady, Texas, before me, the duly designated Trial Examiner, on September 21 and 22, 1953. In substance the complaint, as amended, alleges and the answer denies, that in December 1952, Respondent discriminatorily discharged Juanice Jacoby and laid off or discharged Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore (collectively referred to herein as complainants), and has since refused to reinstate them despite their application for reinstatement, because they joined or assisted the above-named Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) interrogated its employees concerning their union affiliations and threatened and warned its employees to refrain from assisting, becoming members of, and remaining members of, the union; and (3) that by such conduct Respondent interfered with, restrained, and coerced employees in the exercise of right conferred by Section 7 of the Act. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to file briefs and proposed findings of fact and conclusions of law. The parties waived oral argument. Respondent filed a brief on October 23, 1953. 1. FINDINGS OF FACT RELATING TO THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is and has been since October 1, 1951, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business at Curtis Field, in the city of Brady, Texas, and is now and has been at all times herein mentioned continuously engaged at said place of 338207-55-vol. 110-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business in the assembling of detailed parts into major part assemblies, for the use of the Air Force and Navy of the United States of America. During the year 1952, Respondent's gross receipts were in excess of $50,000. Respondent is now and for some time past has been under contract with Intercontinental Mfg. Co., Inc., a Texas corporation, to supply labor for the purpose of assembling detail parts and other material furnished by the latter company. During the year 1952, Intercontinental Mfg. Co., Inc. shipped directly from its Garland, Texas, plant, finished products amounting to in excess of $25,000 and paid Respondent in excess of $50,000 for the services of labor it supplied. All services supplied and sales made by Respond- ent were for the ultimate use of the Air Force and Navy of the United States. In Case No. 16-RC-1227 decided April 20, 1953, the Board found (citing Westport Moving and Storage Company, Crate Making Division, 91 NLRB 902), that Respondent falls within that category of enterprises "substantially affecting national defense" and that it will effectuate the policies of the Act to assert jurisdiction. I find that Respondent is engaged in commerce within the meaning of the Act. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), is a labor organization within the meaning of Section 2 (5) of the Act. II. THE ISSUES AND THE EVIDENCE RELATING TO THE ALLEGED UNFAIR LABOR PRACTICES A. The General C'ounsel's case and evidence relating to 8 (a) (1) allegations The 4 complainants were among 6 employees, including, also Bonnie Jo Stevens and Diamitia Pennington, who had attended 1 or both of 2 evening meetings on November 13 and December 4, 1952, at the home of Juanice Jacoby for the purpose of organizing a bargaining unit among Respondent's clerical employees, a subject which had been discussed since before a walkout in October Stevens resigned from the group on December 4 and Josephine Haynes was terminated on December 5. Bobby Lee Miller, president of Local 1181, representing Respondent's production and maintenance workers, upon learning of Haynes' layoff, told W. C. Beck, Respondent's then director of labor relations, George Cantrell, Haynes' immediate foreman, and Earl Tomerlin, Respondent's manufacturing superintendent, that Haynes was.the main cog in an office clerical employees' organizational group, and asked that she and other girls instrumental in the union drive be retained in Respondent's employ. Cantrell said he and Tomerlin would like to have a list of the girls so nothing of a nature similar to what had happened to Haynes would occur in the future. Miller then wrote in green ink the names, Haynes, Bette Moore, Mary Engdahl (Hemphill), Jacoby, and Bonnie Jo Stevens on a paper torn from a notebook and laid it flat on Cantrell's table. Miller told Moore, Tomerlin's secretary, what he had done and Tomerlin glanced at the paper. On December 19, 1952, Miller protested to Cantrell the discharge of Jacoby on that date, stated the list had been given in good faith, and Cantrell returned the list to him. Charles L. Glover, a former vice president of Respondent,' stated to Miller, just be- fore the first meeting he held with the grievance committee after he took over the han- dling of labor relations for Respondent, that the Company could operate much easier and much more profitably if it did not have to contend with the Union, that if he did not have to waste his time he could be out obtaining additional business for the Company, and that one of his primary objects, as labor relations man, was to bust the local union half in two. While having coffee with Jacoby in the plant cafeteria, shortly after a walkout that had taken place in late October or early November 1952, Cantrell discussed with her the situation of five production and maintenance em- ployees who had been laid off, and whom the Company had more or less been forced to rehire, and told her that these employees would get it again sooner or later and that Respondent would eventually end up by getting Miller too. After the walkout, Haynes having been asked to become temporary secretary of the local, Cantrell asked her if she had taken over as secretary and she replied, "No." About the same time, Ray Wells, who was in supervision, told Haynes he thought she was too open with the Union, too radical about it, and she should not be talking too .much. Similar discussions were engaged in by Supervisors Bill Crew, Norman West, and Arville Ludwig, who said they liked Haynes, her work was satisfactory with them, and they wanted her to stay but did not think she would. Crew said that i Glover was in Respondent's employ from November 16, 1952, to August 12, 1953. He was initially in charge of sales only and later assigned to all administrative functions other than those of.the accounting department. BRADY AVIATION CORPORATION 35 she should be careful and people whom Haynes understood to be members of super- vision, superior to Crew, were all after her. Tomerlin called Haynes into his office and told her in the presence of his secretary, Bette Moore, he thought unions were a racket getting employees' money, and never doing anybody any good; that if she had any contacts she should tell employees they were not helping themselves and he could not understand why the girls were sympathizing. About a week after December 5, 1952, the day she was laid off, Haynes asked Cantrell is she was laid off for union membership and he asked her if she had been mixed up with it. On June 1, 1953, through her husband, one of Respondent's employees, Glover, called Hemphill (who had been laid off on December 17, 1952, had signed a letter dated December 30, 1952, applying for reemployment, and whose name appeared on an unfair labor practice charge filed May 26, 1953) into his office from her home, asked her if she knew about her reemployment application (which he showed her), and asked her if she knew the charge (which he also showed her), was going to be filed. Glover also asked Hemphill if she would sign a statement withdrawing the charge and have nothing more to do with the Union. In November 1952 Lorene Wright, Respondent's personnel interviewer, who the Board stated in Case No. 16-RC-1227 was shown by the record to do the actual hiring and in direct charge of Respondent's personnel department, told Pauline Turner, an employee in the personnel section, that the department was overloaded, she thought another girl was needed, and that Beck had told her that he would not have a girl in personnel who belonged to the Union. On an unstated date employee Betty Jean Kensing, an accounting department clerk, overheard Troy Gates, Respondent's captain of the guard (comprising a group of 10 employees) since about May 1953, state to employee Jonell Stewart, sitting at the same desk with her, that 4 girls (mentioning Jacoby, Hemphill, and Moore) had been fired on account of the Union, and if Stewart wanted to work for the Company until she got ready to quit and get married, she had better stay out of the Union and keep her nose clean. In February 1953, Blotner, Respondent's executive vice president, on the morning after the granting of a plant- wide cost-of-living increase, came into the accounting department where the em- ployees were talking about the increase. He spoke to the group and said that they could see that they did not need a union to get what they wanted, that they had gotten the same privileges as the production and maintenance employees and did not have to pay dues .2 B. The General Counsel's case and evidence relating to (8) (a) (3) allegations 1. The discharge of and refusal to reinstate Juanice Jacoby Jacoby went to work for Respondent on May 8, 1952, as the 343rd employee hired plantwide. Her original wage was $1 an hour, increased automatically to $1.05 at the end of 16 weeks and meritoriously to $1.15 on November 1, 1952. She first worked as a department clerk under Miller where she kept a file on production and main- tenance employees, posted timecards, and did routine typing. About July 1, 1952, she was moved to a newly established accounting department where she worked under T. J. McQueen, performing, in addition to her former duties, the task of keeping and helping make ready B cards for the timekeepers each day. Her duties did not require shorthand. She held two union or unit organizational meetings at her home on November 13 and December 4, 1952. On December 19, about half an hour before quitting time, she was called into Beck's office where, in the presence of McQueen, Beck stated her employment possibly and probably was to be terminated and sug- gested that she resign. Jacoby refused to resign and asked why she was being ter- minated. Beck and McQueen stated the matter was above their heads, and upon being pressed by Jacoby, said the reason was exposure of confidential information; that she had been told that Robert Simpson, a timekeeper, had been made a super- visor. Jacoby was thereupon discharged. About a week before her termination, Jacoby was in the personnel office leaving some papers when she spoke to Simpson who was getting a red button (the insignia of a supervisor) and a half hour later, when she was back in her office, she told Timekeeper Clarence Geistman that Simp- son was wearing a red button. On December 19, Jacoby told Beck and McQueen, who did not answer, that she could not see why Simpson's promotion was confidential 2 Following the direction of elections in Case No. 16-RC-1227, an election was held on May 20, 1953, among the office clerical employees which resulted in tally of 7 votes for the Union, 25 against the Union, and 1 vote challenged. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since he was wearing the red button on his belt where it could easily be seen. Pre- viously, McQueen had told Jacoby and Stevens (who it will be recalled resigned from the organizing committee) that some information had gotten out, that he did not know who was responsible , but that they should not give out anything and if in doubt they should contact him. No one in a supervisory position told her that she should not disclose the fact of promotions to fellow workers and she never received instructions as to what was considered to be confidential . Although she signed a letter, dated December 30, 1952, mailed January 27 , 1953, and received by Respond- ent on January 28 , 1953, applying for reemployment, Jacoby has not been reinstated. 2. The layoff of and failure to reinstate Josephine Haynes Haynes went to work for Respondent on March 19, 1952, as the 150th employee hired plantwide. Her original wage was $1 an hour, increased automatically around July 12 and meritoriously 5 cents an hour further sometime in August 1952 She first worked as a production clerk under A. B. Currey and after 2 months Cantrell became her supervisor. Her duties , which did not involve taking dictation, consisted in compiling the records of the production and maintenance employees of the whole plant and carried her from one department to another . Her work was frequently complimented and never criticized . In November 1952 Haynes was asked by some- of the girls, who had not received the 16-week automatic pay increase , to organize- a bargaining unit. She spearheaded the drive to form a union for the clerical em- ployees, selected the committee , and attended the two meetings at Jacoby's house on November 13 and December 4, 1952. She was laid off on December 5, 1952, when, in her estimation , between 1 ,200 and 1,300 persons were employed by Respondent, which to her knowledge was the peak or high level of employment since the time- she was hired . When Haynes reported for work on the morning of December 5, 1952, she found she had no office and was informed by Cantrell that he had orders to move it to the personnel department and was informed by Tomerlin that he did not know where she was going . At 3 o'clock, upon learning from two fellow employees that she had been laid off, she went to Beck's empty office where she found , and took, her termination papers and paycheck and proceeded to the empty office of Tomerlin, who when he saw Haynes there , went through another office to the other end of the plant. Haynes' termination notice , signed by Cantrell, ascribes her termination to the closing of a department and states "her work was excellent-well satisfactory."- Haynes signed a letter applying for reemployment which was dated December 30, 1952, given to Miller, and received by Respondent on January 28, 1953. She was told by Cantrell, about a week after her separation, that he thought she would be back to work in about 3 weeks and was told by Beck, around the last of January or the first of February 1953 when she went to the plant and asked for a job, that when Respondent started rehiring she would be the first to be hired because she was the- first to have been laid off. Haynes has not been reinstated. 3. The layoff of and failure to reinstate Mary Engdahl Hemphill Hemphill (then Engdahl ) went to work for Respondent on June 16, 1952, as- the 544th employee hired plantwide . Her original wage was $1 an hour and she received a 5-cent merit increase in September 1952. She has a high school and a busi- ness college training , has taken a secretarial course, and completed a shorthand course in the 100-word class. She worked in the parts control department, first under C. B. Young and later under Walter Hargess. She was the first girl hired into the department and set up some of the files. Dorothy Talley and Dorothy Taylor were hired into the department later. Hemphill filed paper work that came in with the parts, cared for personnel files of two departments , and did typing and other gen- eral office work . She was complimented , but never reprimanded. by any of her supervisors. She attended the first organizational meeting at Jacoby's home on No- vember 13 , 1952, but not the second , and was a member of the organizing committee of the clerical employees . She was laid off, without notice, on December 16, 1952, a day-when she was out sick. Respondent 's termination notice gives "no work" as the- cause. Taylor, not a member of the organizing committee and who never worked on the personnel files, was also laid off at the same time , but recalled on February 23, 1953. Talley, who told Hemphill she had been tried out on dictation and had been decided against as Beck's possible secretary , was not laid off. On December 17 Beck and McQueen told Hemphill there had been a general layoff of about 30 peo- ple. Hemphill applied for reemployment by letter dated December 30, 1952, and received by Respondent on January 28, 1953. She visited Beck the same day Hayne-,. BRADY AVIATION CORPORATION 37 -saw him 3 and he told her there had been a general layoff on December 16, that there were no openings then, and the whole thing was over his head. On June 1, 1953, Glover told her (in addition to what has been related in section II A, above) her application for reemployment was in the dead file, that if he had known she wanted a job and had come to him he would have given her one, and that the only way she could help him was to sign a statement withdrawing the charge and have nothing more to do with the Union. Hemphill moved to Abilene on June 30 , 1953, and re- newed her application for reemployment by a letter she neglected to sign, which was replied to by a letter dated July 10, 1953 , from Glover, stating Respondent was interested in determining whether Hemphill had written the letter. Hemphill has not been reinstated. 4. The layoff of and failure to reinstate Bette Moore Moore went to work for Respondent on April 11, 1952, the 201st employee hired plantwide, at $-1 an hour, received an automatic raise of 5 cents an hour after 16 weeks, and a merit increase of 5 cents an hour about November 22, 1952. She worked in the tooling and dieing department under Tomerlin and, when he was advanced to the position of manufacturing superintendent, undertook additional duties as Tomerlin's secretary. After Haynes' layoff on December 5, 1952, Moore, al- though she was very busy and tried to have the personnel department care for the work, was obliged to type the daily production reports that had formerly been written by Haynes She did some typing for, and took dictation from, Glover who as well as Marcus Yates, the head man in the tool department, told her she was doing a good job. On November 13, 1952, she attended the organizational meeting at Jacoby's home and was a member of the organizing committee which then comprised Haynes, Jacoby, Hemphill , Stevens, and herself. On December 19, 1952, the daily production reports were not brought to her and Tomerlin told her they were going to be discontinued . About 1:30 that afternoon she was handed her termination papers by one of the girls from the accounting department and at 2 p. in. Tomerlin told her that there was a general layoff and perhaps when rehiring started in the fall she could be reinstated . In January 1953 she saw Beck at the plant, asked him what her chances were of being reinstated , was told production and contracts were falling off, and she told Beck that the statement in her termination notice that she was laid off because of no work was untrue because she was busier than she ever had been. She signed a letter dated December 30, 1952, applying for reemployment , which was received by Respondent on January 28, 1953, and has not been reinstated. 5. Hirings and separations of clerical employees Of the 20 women clericals hired by Respondent between December 29, 1952, and June 15, 1953, 5 had resigned by August 21, 1953, 4 had been laid off by Sep- tember 4, 1953, and 1 was terminated for prolonged absence on September 14, 1953. Eight women clericals, in addition to the complainants, were laid off by Respondent between December 17, 1952, and July 17, 1953; of these, Taylor ( referred to above as having been laid off on December 17, 1952) was recalled on February 23, 1953, 1 was laid off on December 19, 1952, and the other 6 (all of whom had entered Re- spondent's employment on dates between August 1, 1952, and June 15, 1953) were laid off on dates subsequent to July 2, 1953.4 Fifteen other office clerical employees, who had been hired on various dates between April 1, 1952, and December 29, 1952, resigned on divers dates between December 19, 1952, and July 17, 1953. C. Respondent's case and evidence in refutation 8 (a) (1) allegations Respondent asks the Board to find that the complainants were laid off for cause and that there is no showing in the record that management knew about the or- ganizational meetings attended by the complainants or that it restrained, coerced, or interfered with its employees ' rights under the Act. 3 Hemphill, Haynes , Moore, and Jacoby went to the plant together on this day and Hemphill, Haynes , and Moore talked to Beck individually after they had indicated they wanted to see him in a group. * There was no evidence disclosing the average length of service, as of the period January Y to 19, 1952 , of the 4 complainants in comparison with that of those of the 33 office cleri- cals who were either in Respondent's employment during the December 1952 period or voted in the May 23, 1953, election. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glover did not state to Miller that one of his primary objects as labor relations man. was to bust the Union and Gates did not tell Stewart that four girls had been fired on account of the Union and if Stewart wanted to continue working for the Com- pany she had better not become involved in union activity. Tomerlin did not know of Haynes' and Moore's union activities until after their layoff and did not know who the organizing group was until after the first of the year. Management meet- ing discussions were to the effect that no one should be discriminated against because of union activities. Miller, stating, "I'm going to give you this list before you get them all," offered Tomerlin, who was alone in the office, a list of people interested in forming a union; after December 19, 1952, to the best of Tomerlin's knowledge, and after Moore and Haynes had been laid off and Tomerlin refused the list, it was. folded and he could not see the names. Sometime after December 19, 1952, Miller handed Cantrell a list containing Haynes' name and some other names which he does not recall. The list of names, written by Miller on a three-cornered triangular scrap torn from a piece of plain white stationery lying on Cantrell's desk, were kept by Cantrell in his billfold for 2 days when upon Tomerlin's instructions he returned it to Miller. Tomerlin was not present when Miller handed Cantrell the list and though the list presented by Miller at the hearing may have contained the same names as those appearing on the list handed Cantrell, the list Cantrell received was not written on the same paper as that offered in evidence. Cantrell heard no discussion at management-supervisory meetings to the effect that the Company was inclined to support a union among production and maintenance workers but opposed a unit of- office clerical workers. The desire of Respondent's present director of personnel, labor relations, and public relations, who assumed his position July 15, 1953, has been to encourage the development of the Union and see that the Union gets a square- deal so that the Company may have good relations with labor. The general com- munity feeling in Brady, where people work mainly on farms and ranches, was that local residents were being unduly harassed and continuously stirred up by the Union. D. Respondent's case and evidence in refutation of the 8 (a) (3) allegations 1. The discharge and nonreinstatement of Juanice Jacoby Jacoby acted as a clerk in the timekeeping department and when that department was consolidated with the accounting department she was moved into the latter divi- sion and performed her duties rather well. McQueen, supervisor of the accounting department from May 20, 1952, until March 15, 1953, imparted to employees, includ- ing Jacoby, the necessity of keeping information confidential. On one occasion McQueen stated to Jacoby and another employee that some information detrimental to the interests of the Company had leaked out of the accounting department, that he did not know how it had gotten out, and generally warned them in a mild way that information the department had access to was not to leave the bounds of the department. He cannot specifically name any other instance of cautioning her. Jacoby was the only one who left (walked out of) the personnel department when Simpson was getting his button and the knowledge of his promotion preceded his arrival at another part of the premises where he was confronted by some timekeepers, with some unfavorable remarks, and quite a bit of confusion (which probably would have happened even though the knowledge of Simpson's promotion had not been otherwise revealed, because everyone would know about it by his wearing a red but- ton) was brought up. McQueen could err in his judgment that the appointment of a supervisor was con- fidential information and had not instructed the girls in his department that promo- tions were confidential. McQueen discharged Jacoby on his own initiative without consulting others because news of the promotion spread from a confidential depart- ment by means of her statements. McQueen did not know of any union activities on Jacoby's part. When Glover testified the cause of the necessity to eliminate Jacoby was that all work of a personnel nature was being transferred as fast as possible to. the personnel office, he meant Haynes and Jacoby's statement in her application for- unemployment compensation was false. She was not laid off and Beck wrote the: commission that she was fired. 2. The layoff of and failure to reinstate Josephine Haynes Haynes' job was abolished. It was decided that it was unnecessary and undesirable to maintain duplicate personnel records in the production department as well as in the personnel office. Since the removal of personnel functions would cut down her duties to about an hour a day in preparing a production report , it would not be BRADY AVIATION CORPORATION 39 economical to retain Haynes for that amount of work. An effort was made to locate another position for her and there was no position available after Haynes' layoff. Fol- lowing her layoff the preparation of merit increases, transfers, rate changes, and so forth went to the personnel department, the filing of extra copies of records was eliminated, and the production report was prepared by Moore until she was termi- nated on December 19. The personnel department was pretty badly snowed under and Respondent replaced 2 girls there with 2 girls who would work, since the budget provided no money to add anyone to the personnel department. Mary Frances Findley, who could take shorthand and do typing but who was not experienced enough for secretarial work, was hired on November 24, 1952, to work with Haynes and was transferred to the purchasing department on December 3, 1952. The personnel records indicate that Haynes was incapable of taking shorthand. Taylor was re- hired as production control clerk in preference to Haynes for the reason that Haynes had no previous experience in that type of work and Taylor had. After Haynes had been laid off Miller rushed into Tomerlin and said, "Here, I want to give you a list of our organizing committee before you lay them off." Tomerlin refused the list because he did not want it and he did not look at it. Cantrell did not know that Haynes was part of a union organizing group until after she was laid off. Her job has never been reactivated. A typed analysis, dictated by Vice-President Glover in June 1953 after the filing of the charge, of his determination as to why the girls "in the subject case" could not fill the positions given 17 of the 20 office clericals hired after the discharge of the 4 girls named in charge, and a typed job analysis, prepared by Rudder from the records of the Company of 3 girls hired on January 9, 1953, June 2, 1953, and June 16, 1953, state, insofar as they affect Haynes, that: (1) Eloise Mahan, hired Feb- ruary 2, 1953, had a history of experience and ability in handling rates and classifica- tions, weekly personnel reports, 16 weeks' review, etc., and Haynes possessed no experience qualifying her for that type of work; (2) Haynes did not have the ex- perience possessed by Grace Turpin, who was hired February 16, 1953, to perform work involving knowledge of calculating machines, and the ability to accumulate and present charts and graphs; (3) Haynes did not have the qualifications or experience required to do work involving secretarial ability and knowledge of filing systems, specifications, labor graphs, charts, etc., which Barbara Pittard, who was hired on February 16, 1952, performed until July 31, 1953; (4) on February 16, 1953, Geraldine Vick was hired as personnel clerk, a position obviously requiring more than average intellectual ability, poise, and personality, and Haynes was not considered qualified to fill this position which Vick occupied until May 29, 1953; (5) Dorothy B. Taylor was rehired on February 23, 1953, rather than Haynes because she had previously performed the functions to which she was assigned and considered better qualified therein than Haynes; (6) Haynes' personnel record does not indicate any experience in handling PBX or teletype machines where as Joahn H. Tetens, hired February 25, 1953, and laid off July 17, 1953, was utilized 1 day per week, as relief switchboard operator; (7) Haynes' application shows some 7 months' experience as an invoice checker at J. C. Penney Company and since that Company was unable to substantiate her statement, it was assumed that Haynes did not have the qualifications for the position of accounting clerk for which Thelma J. Fowler was hired on February 25, 1953; (8) Haynes did not possess the knowledge of accounting procedures and various business machines involved in the accounting clerk position for which Wanda Lankford was hired on February 26, 1953; (9) Jonell Stewart, hired February 26, 1953, had 3 years' bookkeeping experience and Haynes was not qualified to handle daily extension on timecards, rate changes, ter- minations, and reclassifications as an accounting clerk which Stewart performed until August 21, 1953; (10) Elsie M. Dumas' application for employment showed 5 years of excellent varied background for handling the position of posting clerk, her personnel test indicated a very high mentality, and she was considered better suited for posting receipts, completions, reworks, rejections, losses, etc., than Haynes; (11) Haynes was not considered qualified to take the job as accounting clerk, responsible for checking invoices and the preparation for payment and posting of accounts payable, given Wilhemina McBee on March 3, 1953, and performed by her until May 14, 1953; (12) Haynes was not considered qualified to take the job of accounting clerk, involving basically the extension of earnings and deduction of union dues, given Genevia L. Johnson, a person of approximately 8 years' experience, hired April 7, 1953, and terminated September 14, 1953, for absenteeism; (13) Anna Lea Patterson, hired April 13, 1953, and laid off September 4, 1953, had duties requir- ing absolute accuracy and responsibility with a minimum of supervision as a planning clerk and Haynes was not considered to have the background or experience qualify- ing her for this position ; (14) Haynes was not qualified for the duties performed by 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alice L. Turpin , hired April 20, 1953, of preparing , as assistant to the secretary of the vice president in charge of sales, sales letters including other material , and in- volving such functions as maintenance of various charts, relief teletype and PBX operator, and fill-in industrial nurse, ( 15) it was determined by the purchasing agent that Betty Z. Carothers , hired April 28, 1953, and laid off July 3, 1953, was better qualified for the job of handling and typing purchase orders and the maintenance of logs, etc., than Haynes; ( 16) Martha J. Sessom, hired May 18, 1953, who had been a night manager for Western Union, was considered to be more experienced and reliable under minimum supervision under the conditions of her job of maintaining Kardex records than Haynes, ( 17) Haynes was not considered as well qualified as Martha J. Keeler, a 120 -word per minute stenographer and a neat and accurate 60- word per minute typist, hired May 18, 1953, for a job requiring secretarial ability together with knowledge of statistical quality control charts and data; ( 18) Doris Sayles was hired December 29, 1952, as secretary to the sales manager and resigned January 9 , 1953 ( no reason is specifically stated for employing Sayles rather than Haynes ), ( 19) Barbara Brock, who had worked for Respondent from May until September 1952, was rehired June 2, 1953 , as secretary to the purchasing agent, a job requiring secretarial ability and experience to assure accuracy (no reason is specifically stated for employing Brock rather than Haynes ); and (20 ) Jewell T. Paul, with 13 years' experience as a cashier , bank teller, and bookkeeper, was hired as a clerk to post records and check invoices against original purchasing records on -June 15, 1953 , and laid off on July 3, 1953 ( no reason is specifically stated for em- ploying Paul rather than Haynes). 3. The layoff of and failure to reinstate Mary Engdahl Hemphill Glover, Respondent's vice president, who, as above indicated served only from November 16, 1952, until August 12, 1953, has no personal knowledge of Hemphill's functions . Her separation slip signed by Hargess , representing Glenn L. Martin Company to whom approximately 20 to 26 employees had been assigned, indicated "layoff-no work." The number of Martin representatives was reduced to some 5 or 6 in November 1952. A copy of Hemphill 's unemployment compensation appli- cation bears by check-mark the reason for her termination as "I was laid off," and in printed writing the explanation of her separation as "reduction in force." It never registered with Glover that Engdahl and Hemphill was one and the same person until some time before June 1, 1953. On that date he asked her if she were interested in employment and whether or not she was aware that an unfair labor practice charge had been filed, whether it had been filed at her instigation and request, and if she would sign a statement to the effect that she was not desirous of pursuing an unfair labor practice charge; Glover made no statement to Hemphill relative to her ceasing union activities . Of the three girls in the parts control where Hemphill worked at the time of her layoff, one who was hired subsequent to Hemphill 's hiring date was retained . Hemphill had some experience in the work Dorothy B. Taylor was re- hired to do February 23, 1953; the department head preferring Taylor to Hemphill. On the Monday or Tuesday before Friday, May 29, 1953, Glover talked with Hemphill's husband about getting him a part-time job in Abilene when he went back to school-the job was procured for him between May 27 and May 29. In consider- ing Hemphill for reemployment Glover figured she would leave when her husband went to Abilene and he was surprised in July to receive her change of address notice and continuing application for employment . Otis Lickman , assistant supervisor in the parts control department where the system of keeping detail records had to be changed in December because complete accuracy was not being obtained , knows that Dorothy Talley was retained , Hemphill and Taylor were laid off, and Talley was kept because she was the most efficient ; he does not know why Taylor was recalled and Hemphill was not since Taylor had more experience than Hemphill . Hemphill was in charge of the personnel file and no other girl touched it ; Taylor did work more comparable to that of Talley, who was not required to take dictation . It would be hard to say whether Talley or Hemphill were the more efficient because they performed different duties. Talley kept more accurate records than Hemphill but it would not be said that Hemphill was inefficient . Part of the work Hemphill did was eliminated after the layoff: the expediters were allowed to keep their own records and the detail status book was eliminated. Taylor's and Hemphill's duties were eliminated before they were laid off. The Glover and Rudder analyses state , insofar as they affect Hemphill, that: (1) Eloise Mahan was hired February 2, 1953, due to her history of experience and ability in handling rates and classifications, weekly personnel reports, 16 weeks' review, etc., and Hemphill possessed no experience qualifying her for that type of BRADY AVIATION CORPORATION 41 work; (2) Hemphill did not have the experience possessed by Grace Turpin, who was hired February 16, 1953, to perform work involving knowledge of calculation machines, and the ability to accumulate and present charts and graphs; (3) Hemphill did not have the qualifications or experience required to do work involving secretarial ability and knowledge of filing systems, Air Force specifications, labor graphs, quality control charts, etc., which Barbara Pittard, who was hired on February 16, 1952, performed until July 31, 1953; (4) on February 16, 1953, Geraldine Vick was hired as personnel clerk, a position obviously requiring more than average intellectual ability, poise, personality, and ability to meet the public, and Hemphill was not considered qualified to fill this position which Vick occupied until May 29, 1953; (5) Dorothy B. Taylor was rehired on February 23, 1953, because she had previously performed the functions to which she was assigned and considered better qualified therein than any other person unfamiliar with these details; (6) Hemphill's per- sonnel record does not indicate any experience in handling PBX or teletype machines, whereas Joahn H. Tetens, hired February 25, 1953, and laid off July 17, 1953, was utilized 1 day per week as relief switchboard operator and the rest of the time handled inspection log books, reports, and quality control charts; (7) Hemphill did not have any experience in the position of accounting clerk for which Thelma J. Fowler was hired on February 25, 1953; (8) Hemphill did not possess the knowledge of account- ing procedures and various business machines involved in the accounting clerk position for which Wanda Lankford was hired on February 26, 1953; (9) Jonell Stewart, hired February 26, 1953, had 3 years' bookkeeping experience and Hemphill was not qualified to handle daily extension on timecards, rate changes, terminations, reclassifications as an accounting clerk, which Stewart performed until August 21, 1953; (10) Elsie M. Dumas' application for employment showed some 5 years' background for handling the position of posting clerk, her personnel test indicated a very high mentality, and she was considered better suited for a job involving posting receipts, completions, reworks, rejections, losses, etc., for which she was hired on March 9, 1953, than Hemphill, (11) Hemphill was not considered qualified to take the job of checking invoices and the preparation for payment and posting of accounts payable, given Wilhemina McBee, who had 8 years' office work experience, on March 3, 1953, and performed by her until May 14, 1953; (12) Hemphill was not considered qualified to take the job involving the extension of earnings and' deduction of union dues, given Genevia L. Johnson, a person of approximately 8 years' experience, hired April 7, 1953, and terminated September 14, 1953, for absenteeism; (13) Anna Lee Patterson, hired April 13, 1953, and laid off September 4, 1953, had duties requiring absolute accuracy and responsibility with a minimum of supervision as a planning clerk and Hemphill was not considered to have the back- ground or experience qualifying her for this position; (14) Hemphill was not qualified for the duties performed by Alice L. Turpin, hired April 20, 1953, of preparing, as assistant to the secretary of vice president in charge of sales, sales letters includ- ing other material, and such functions as maintenance of various charts, relief tele- type and PBX operator, and fill-in industrial nurse during emergencies; (15) Betty Z. Carothers, hired April 28, 1953, and laid off July 3, 1953, was employed rather than Hemphill when it was learned the latter proposed to move out of town; (16) Martha J. Sessom, hired May 18, 1953, who had been night manager for Western Union, was considered to be more experienced and reliable under minimum super- vision under the conditions of her job of maintaining Kardex records than Hemphill; (17) Hemphill was not considered as well qualified as was Martha J. Keeler, a 120- word-per-minute stenographer and a neat and accurate 60-word-per-minute typist, hired May 18, 1953, for a job requiring secretarial ability together with knowledge of statistical quality control charts and data; (18) Doris Sayles was hired Decem- ber 29, 1952, as secretary to the sales manager and resigned January 9, 1953 (no reason is specifically stated for employing Sayles rather than Hemphill); (19) Barbara Brock was rehired June 2, 1953, as secretary to the purchasing agent, a job requiring secretarial ability and experience to assure accuracy (no reason is spe- cifically stated for employing Brock rather than Hemphill); and (20) Jewell T. Paul, with 13 years' experience as a cashier, bank teller, and bookkeeper, was hired as a clerk to post records and check invoices on June 15, 1953, and laid off on July 3, 1953 (no reason is specifically stated for employing Paul rather than Hemphill). 4. The layoff of and failure to reinstate Bette Moore The specifications in Moore's termination notice that she was laid off on account of (no) work require some qualifications: When Glover and Tomerlin shared adja- cent offices it was necessary for the two to share the services of a secretary. Moore did some work for Glover and when it was determined she would not be suitable 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or satisfactory as his secretary, and Glover had to secure a secretary, it was no longer necessary to keep her. A part of Moore's job included certain work relative to the personnel records of the tooling department and the transfer of all work of a personnel nature, as fast as possible to the personnel office, caused a partial reduc- tion in the work Moore was handling. The production report which Haynes had been doing before her separation was prepared by Moore during the remainder of her time with the Company. Taylor, rather than Moore, was rehired because Moore had no previous experience as a clerk in production control. The circumstances of Moore's layoff were that she had been employed as a department clerk in tooling and when Tomerlin moved to his new duties of manufacturing superintendent he carried Moore along with him to try her out as his secretary. Glover also tried her as a secretary. She did not prove efficient for that job, the duties which she had been performing as a departmental clerk were also eliminated, and she was laid off for lack of work. Moore was not laid off for union activities. Tomerlin did not know of her union activities at the time of her layoff, but he did know about such activities after her layoff and this knowledge did not affect any decision he might have made with reference to trying to find a position for her on rehire. About November 22, 1952, Tomerlin approved the payment of a merit increase to Moore. The Glover and Rudder analyses, insofar as they affect Moore, state that: (1) Eloise Mahan, hired February 2, 1953, had a history of experience and ability in handling rates and classifications, weekly personnel reports and reviews, and Moore possessed no such experience; (2) Moore lacked the experience possessed by Grace Turpin, who was hired February 16, 1953, to perform work involving knowledge of calculation machines, and the ability to accumulate and present charts and graphs; (3) Moore did not have the qualifications or experience required to do work involving secretarial ability and knowledge of filing systems, specifications, labor graphs and charts, which Barbara Pittard, who was hired on February 16, 1952, performed until July 31, 1953; (4) on February 16, 1953, Geraldine Vick was hired as personnel clerk and Moore was not considered qualified to fill this position which Vick held for 31/z months; (5) Dorothy B. Taylor was rehired on February 23, 1953, because she was considered better qualified therein than any person unfamiliar with her work; (6) Moore's record does not indicate any experience in handling PBX or teletype machines on which Joahn H. Tetens, hired February 25, 1953, and laid off July 17, 1953, was utilized 1 day per week, as a relief; (7) Moore did not have the qualifications for the position of accounting clerk for which Thelma J. Fowler was hired on February 25, 1953; (8) Moore did not possess the knowledge required in the accounting clerk position for which Wanda Lankford was hired on February 26, 1953; (9) Jonell Stewart, hired February 26, 1953, had 3 years' bookkeeping experience and Moore was not qualified to handle daily extension on timecards, rate changes, terminations, and reclassifications which Stewart performed until August 21, 1953; (10) Elsie M. Dumas' application for employment showed some 5 years of excellent varied background for handling the position of posting clerk, her personnel test indicated a very high mentality, and she was considered better suited for posting receipts, completions, reworks, rejections, losses, etc., than Moore; (11) Moore was not considered qualified to take the job handled by Wilhemina McBee from March 3, 1953, until May 14, 1953; (12) Moore was not considered" as qualified for a job of accounting clerk, involving basically the extension of earn- ings and deduction of union dues, as was Genevia L. Johnson, hired April 7, 1953, and terminated September 14, 1953, for absenteeism; (13) Anna Lee Patterson was hired April 13, 1953, and laid off September 4, 1953, and Moore was not considered to have the background or experience qualifying her for the position given Patterson; (14) Moore was not considered to have the potential to immediately qualify her for the duties performed by Alice L. Turpin, hired April 20, 1953, of preparing sales letters including other material, maintaining various charts, and acting as relief teletype and PBX operator and nurse; (15) it was determined by the purchasing agent that Betty Z. Carothers, hired April 28, 1953, and laid off July 3, 1953, for a job for which Moore was considered, was the better qualified for the handling and the neat and accurate typing of purchase orders and the maintenance of logs; (16) Martha J. Sessom, hired May 18, 1953, was considered to be more experienced and more reliable in maintaining Kardex records than Moore; (17) Moore was not considered as well qualified as Martha J. Keeler, a stenographer and typist hired May 18, 1953, for a job requiring secretarial ability together with knowledge of statistical quality control charts and data; (18) Doris Sayles was hired December 29, 1952, as secretary to the sales manager and resigned in 2 weeks (no reason is spe- cifically stated for employing Sayles rather than Moore); (19) Barbara Brock, who had worked for Respondent from May until September 1952, was rehired June 2, 1953, as secretary to the purchasing agent (no reason is specifically stated for em- BRADY AVIATION CORPORATION 43 ploying Brock rather than Moore); and (20) Jewell T. Paul was hired as a clerk to post records and check invoices on June 15, 1953, and laid off within 3 weeks (no reason is specifically stated for employing Paul rather than Moore). 5. Respondent's general employment situation Respondent's total employment figures have been fluctuating for the 8 or 9 months before September 22, 1953. The peak of employment was in the vicinity of 1,200 in March, 1953, a decline to around 700 at the time of the hearing, and there were .approximately 70 layoffs in December 1952. III. MATERIAL FINDINGS OF FACT, DISCUSSION, CONCLUSIONS A. Alleged interference, restraint, and coercion 1. The facts It is not denied and I find that: (a) Cantrell stated to Miller that the Company could operate much easier and much more profitably if it did not have to contend with the Union and that if he did not waste his time he could be out obtaining addi- tional business; 5 (b) Cantrell told Jacoby that five employees laid off after a walk- out, whom the Company had more or less been forced to rehire, would get it again sooner or later and would eventually get Miller; (c) Cantrell asked Haynes if she had taken over as secretary of the local, (d) Wells told Haynes he thought she was too open and radical about the Union and should not be talking too much; (e) Crew, West, and Ludwig told Haynes they thought she would not stay and Crew told her she should be careful because people in supervision, superior to him, were after her; (f) Tomerlin told Haynes he thought unions were a racket and getting employee's money, never doing anybody any good, and that if she had any contacts she should tell employees they were not helping themselves; he could not understand why the girls were sympathizing; (g) Cantrell, in response to Haynes' inquiry if she had been laid off for union activity, asked her if she had been mixed up in it; (h) Glover called Hemphill's attention to her application for reemployment and asked her if she know about it and was aware that an unfair labor practice charge had been filed, if it had been filed at her instigation and request, and if she would sign a statement to the effect that she was not desirous of pursuing an unfair labor prac- tice charge; 6 (i) Wright informed Turner that Beck had told her he would not have a girl in the personnel department who belonged to the Union; and (j) Blower told the accounting department employees they could see they did not need a Union as they received the same privileges as production and maintenance employees and did not have to pay dues. 2. Discussion and conclusion None of the above statements or inquiries made by Wells, Crew, West, Ludwig,? Tomerlin, or Wright were shown to have been made within 6 months of the filing and service of the charge. In fact it affirmatively appears that most, if not all, of them were made before November 27, 1952. Without deciding then, whether any ,of them were of a sufficient character to constitute interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act, Section 10 (b) of the Act pre- cludes the making of any unfair labor practice finding based upon such inquiries and statements. Nor does the General Counsel claim otherwise. This is not to say, however, that the statements and inquiries may not be considered for the purpose of determining whether the attitude of Respondent toward the Union and those em- ployees seeking the establishment of an office clerical unit therein was one of ap- proval, opposition, or mere tolerance. The only statement as shown to have been made after November 27, 1952, by Cantrell, who indeed did not become general I credit Cantrell's denial of Miller's testimony that Cantrell said one of his primary objects as labor relations man was to bust the local union half in two. 6 Hemphill's testimony concerning this conversation was substantially the same as Glover's except In two respects : She testified, and Glover did not deny it, that he asked her about her reemployment application ; she testified, and Glover did deny it, that Glover asked her to have nothing more to do with the Union I accept Glover's denial. 7 The General Counsel made a prima facie showing, which was not rebutted, that these four men were supervisors sufficient to warrant a finding that their statements should be attributed to Respondent. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman until about December 1, 1952, was elicited from him by Haynes sometime after December 5, 1952, when she was laid off. The complaint contains no allega- tions that Respondent's officers or agents interrogated employees concerning their union affiliations at any time before April 1953 and I perceive no adequately unlawful element of restraint , coercion, or interference inherent in this question , prompted as it was by the employee herself, which would justify the conclusion that Cantrell en- gaged in an unplead violation of Section 8 (a) (1). A quite different situation confronts us, as we come to consider the formally plead allegation that Glover threadened and advised Hemphill to withdraw her charge and to sign a statement that she would refrain from union activity . As I have already pointed out, the General Counsel has not convinced me that Glover asked what is contained in the last part of this allegation , to wit, that Hemphill should sign a state- ment agreeing to refrain from union activity in the future . But, on the other hand, the General Counsel has satisfied me that Glover engaged in an even greater act of interference and coercion than that specifically alleged in the remainder of the alle- gation, in that he has shown that Glover's request to the effect that Hemphill sign a statement withdrawing the charge was not only coupled with an inquiry as to whether she instigated the charge , but indeed more significantly , was accompanied by the placing before Hemphill of her application for reemployment . True, as Hemp- hill's husband testified , Glover did not say in so many words that if Hemphill signed the paper he would give her a job, but the fact remains that she refused to sign, and despite her two written and , one personal , applications for reemployment, this ac- complished young lady has never been reinstated . Standing alone, I should not re- gard the inquires as to whether or not Hemphill knew about the charge and had re- quested that it be filed or had instigated its filing and the request that she sign a statement withdrawing the charge as it applied to her, as singularly grievous acts of coercion , restraint, and interference. But when one considers that the interroga- tions and the request were combined with a reference to the reemployment applica- tion, the implication immediately becomes apparent that a purport of Glover's re- marks was to induce Hemphill to refrain from union activity in return for being con- sidered for reemployment and to threaten her with the improbability of reinstate- ment should she decline to disavow, and refrain from , union activity . Respondent may not exculpate itself on the claim that Glover believed Hemphill might not desire reemployment because she had moved away from Brady , for her third application for reemployment came from her new address within a short time after Glover had talked with her on June 1 of this year. As late as September 21, 1953, Hemphill still awaited a job offer. Clearly residence away from the range of an employer's operations where Hemphill had gone with her husband , who wished to attend school and work part time , is not a relevant factor to be considered under the circumstances presented here . Cf Southern Furniture Manufacturing Company, 91 NLRB 1159. It has not been alleged that Respondent violated Section 8 (a) (4) of the Act. But to interfere with, restrain , or coerce an employee in the exercise of the right to join or assist a labor organization is just as much a violation of the Act as is discrimina- tion against an employee who has filed charges . Because of the aggravated nature of this violation and its involvement in the failure to reinstate Hemphill it cannot, in my opinion, be brushed aside as so isolated in character that no useful purpose would be served by issuing a cease and desist order based on Glover's conduct in the premises. The General Counsel alleged that Troy Gates , a supervisor, threatened an em- ployee with the loss of her job if she did not refrain from union activity. Gates became captain of the guard about May 25, 1953 . He comes from the same small town as Jonell Stewart, who worked in Respondent 's accounting department from March to August 1953, is an intimate friend of Stewart's parents, and has known the daughter all her life. As is natural , he frequently chatted with Stewart as he made his rounds . Kensing apparently believes she overhead the remarks set forth above in the latter part of section II. Gates and Stewart, the direct participants in con- versation-and it is frankly admitted they held many-are of course in a far better position to know what was said than is a person who merely overheard a part of their talk . Both deny that Gates made the statements attributed to him by Kensing or that they ever talked together about a union . Leaving aside the question as to. whether or not Gates was a supervisor within the meaning of the Act, I credit the denials of Gates, whose appearance and demeanor impressed me favorably, and of Stewart, a girl no longer in Respondent 's employ, who did not engage in union activity, and, who from ought that appears is on friendly terms with Kensing and the various complainants . I therefore find that the General Counsel has not sustained the burden of proving that, through Gates, Respondent threatened an employee with the loss of her job if she did not refrain from union activity. BRADY AVIATION CORPORATION 45 B. Alleged discrimination 1. Union activities of the complainants The matter of forming a bargaining unit among office clericals had been under discussion since October 1952 and the four complainants comprised the entire or- ganizational committee at the time of their separations from employment. 2. The discharge of and refusal to reinstate Jaunice Jacoby a. The facts It is not denied and I find, that: (1) Jacoby, the 343rd employee hired by Re- spondent, worked from May 8, 1952, to December 19, 1953, first in the timekeeping, and later in the accounting department; (2) she performed her duties rather well and received two pay increases, (3) she held the two organizational meetings at her home; (4) before Decembor 19, 1952, McQueen, her supervisor, told Jacoby and other employees in the accounting department that some information had gotten out of the department, they should not disclose any detrimental or confidential in- formation, and if they were in doubt they should contact him; and (5) about a week before December 19., 1952, Jacoby, while in the personnel department, observed Simpson, a timekeeper, putting on a red button which indicated he had been pro- moted to a supervisory position and upon her return to the accounting office told another timekeeper that Simpson was wearing a red button. I further find on disputed or divergent testimony, that: (1) Upon learning of the fact that the knowledge of Simpson's promotion coming indirectly to other time- keepers had created an unfavorable reaction, although an equal amount of con- fusion probably would have been caused had the information been otherwise re- vealed, and upon his conclusion that the news could have emanated in no other way than through Jacoby, McQueen decided on his own initiative, and without con- sulting others, to discharge Jacoby, (2) at the time he made this decision, McQueen, who has not been employed by Respondent since March 15, 1953, had no knowledge of any union activities on Jacoby's part even though they included the holding of the two meetings at her home; and (3) thereafter on December 19, 1952, Beck and McQueen asked Jacoby to resign and upon her refusal, she was informed that she was being discharged for exposure of confidential information in telling an em- ployee that the timekeeper in question had been made a supervisor. b. Discussion and conclusions I have found that McQueen was unaware of Jacoby's union activity at the time he decided to discharge her. It is admitted that at some time in December 1952, Tomerlin and Cantrell had definite knowledge of the union activities of all the com- plainants. There is evidence which is disputed, that on December 5, 1952, knowledge of their activities came to the attention of Tomerlin and Cantrell. Miller testified that on December 5 he told Beck, who was with McQueen when the actual discharge took place, that Haynes was the main cog in the office clerical employees organiza- tion group. There is no direct evidence that Beck, who, has left Respondent's em- ploy and who was not called as a witness, ever knew that Jacoby was interested in organizational matters Tomerlin and Cantrell say in substance that they knew nothing about any of the complainants being involved in union activities until after December 19, the day Jacoby was discharged. In a subsequent subsection relat- ing to the alleged discrimination against Haynes, Hemphill, and Moore, I shall con- sider in more detail the question of Respondent's knowledge of union activities on the part of all four complainants. Suffice it to say here, that the General Counsel has not convinced me that McQueen's decision to discharge Jacoby, made at a time when he was not aware of any union proclivities on her part, was transmogrified by Beck (who had expressed opposition to the organization of personnel department employees-not employees in the accounting department where Jacoby worked- and who had previously told Miller on another occasion that the matter of separa- tion was completely out of his hands and under the control of the appropriate im- mediate foreman) into an ultimate unlawfully discriminatory act of actual discharge. It is not incumbent upon an employer to show that an employee has been discharged for cause when it has not been established that he has been discharged for union activities. Yet when a discrimination issue is left hanging in the balance, an em- ployer may offer reasons for a discharge which are so implausible and pretextuous as to swing the scales in favor of a person discharged. At first blush, a claim that the reason for a discharge is that in the telling of one employee by another that a 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD person, plainly wearing the insignia of supervisorship for all to see, has become a: supervisor, the narrator has divulged confidential information, seems ridiculous in- the extreme. This is not to say that an employer does not have the right to dis- charge a worker for the cause McQueen ascribes to the discharge of Jacoby in this case, but simply that such a reason may be so implausible as to cast doubt upon its genuineness. Yet an employer may, without violating any provision of the Act, discharge or otherwise discriminate against an employee for any reason, whether ab- surd or sound, provided the action is not motivated by antiunion considerations. All the Act proscribes is discrimination because of union activities. McQueen had been disturbed by the fact that information had leaked from the department he headed and' perplexed by his inability to determine the source of the disclosures. Undoubtedly he felt that management was holding him accountable for the failure to confine confidential information to his department and was at a loss as to what correc- tive measures he might take. It is reasonably implicit from McQueen's testimony that when it came to his attention that Jacoby had revealed information which, al- though scarcely confidential in itself, but which nevertheless came from an employee under his charge in a department which was considered sensitive, he reasoned that Jacoby, whom he had previously cautioned, was the type of employee who might be likely to impaft to others, knowledge of a more definitely confidential character acquired in her work. McQueen admits that he may have erred in his judgment and as a purely philosophical proposition it would seem that a person of calmer delibera- tion would not have reacted as did he. But his was the responsibility of solving- a problem that had become an enigma. The first and only straw in the wind he, perhaps desperately, grasped. By penalizing one employee and impressing on others. the disastrous results attendant upon disclosures of so-termed confidential informa- tion considered detrimental to the interests of the Company, McQueen placed him- self in a position to satisfy his superiors that he was alert to the need of detecting the source of, and preventing recurrences of, such revelations. So, on more mature reflection, the reason advanced by Respondent for the dis- charge does not seem so absurd as at first glance nor so implausible as to be palpably fictional and hence tangentially supportive of a claim of discrimination. The only issue within the Board's province to decide is whether Jacoby was discriminated against because of her union activity-not whether she was accorded harsh or un- justified treatment or whether she was the innocent victim of circumstances. It is. my conviction that the General Counsel has not sustained the burden of proving that Jacoby was discharged because of her union activities or that Respondent was aware of her union activities and that he has not sustained the burden of disproving that she was discharged for cause. 3. The layoffs of and refusal to reinstate Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore a. The facts It is not denied and I find that: (1) Haynes, Hemphill, and Moore went to work for Respondent on May 17, June 16, and April 11, 1952, and were laid off on Decem- ber 5, December 16, and December 19, 1952, respectively; (2) they all received pay increases during the course of their employment; (3) Haynes and Moore were given ratings of "good" 8 on July 12, and November 22, 1952, respectively, and recom- mendations that they be retained; (4) Haynes was asked by other employees to organize a bargaining unit, led the drive to form a union for clerical employees and selected the organization committee, and attended both meetings thereof and Hemphill and Moore were members of the organizational committee and attended the first meeting; (5) all 3 applied for reemployment by letters received by Respondent on January 28, 1953; (6) all 3 applied in person for reemployment in January or February 1953 and Hemphill again applied for reemployment in July 1953; (7) 20 employees were hired to work in office clerical positions between January 9 and July 3, 1953, of whom 10 resigned or were otherwise terminated before September 15, 1953; (8) 2 girls hired by or before September 25, 1952, neither of whom were members of the organizing committee, were laid off on December 19, 1952, and I of them was recalled on February 23, 1953; (9) 3 others, who were hired on or before October 8, 1952, were laid off in July 1953; (10) 3 others hired in February, April, 8 Moore's testimony that Yates said the reason he gave her "fair" Instead of "good" ratings in "skill" and "production" (2 of the 6 attributes on which the competency and ability of employees are evaluated), was that since "skill" related to men working on parts and that department clerks are not engaged in "production," he marked her card "fair," Is undenied. BRADY AVIATION CORPORATION 47 and June, 1953, were laid off in July 1953; (11) 15 more office clericals, who were hired on various dates between April 1 and December 29, 1952, resigned on different dates between December 19, 1952, and July 17, 1953, (12) only 1 of the girls among the 5 members of the organizing committee, who had resigned therefrom on Decem- ber 4, 1952, was not separated; (13) the only clerical employee not a member of the organization committee, who had attended either meeting, was not laid off but resigned on July 17, 1953; and (14) there were approximately 70 plantwide layoffs in December 1952 followed by the attainment of the highest level of employment in the plant's existence in March 1953. b. Discussion and conclusions The chief dispute between the parties in relation to the layoffs is whether, as the General Counsel contends, Respondent knew of Haynes', Hemphill's, and Moore's union activities as early as December 5, 1952, or as Respondent contends, it was unaware of them until after December 19, 1952. It is within the realm of possibility that a union officer should disclose to an employer the names of all employees lead- ing a self-organizational movement when he suspects discrimination against one of them, and that thereupon an employer should deliberately discriminate against all employees whose activities were thus revealed. The General Counsel would have us believe that such is the probability in this case. Tending to give force to this thesis is not only the fact that 4 of the 6 clerical employees separated in December comprised the entire organizing committee as it existed from December 5 to Decem- ber 19, but also such background factors as Cantrell's statement concerning the un- profitability of dealing with a union, his prophecy concerning the fate of the 5 employees rehired after a walkout, and inquiries as to whether an employee had accepted a union office and had been involved in union affairs, Tomerlin's character- ization of unions as rackets and expression of incomprehension of their support by employees; Glover's request of withdrawal of a charge; the warning by Wells and others of the likely results of open union support; Wright's repetition of the state- ment attributed to Beck that no union members would be allowed to work in the personnel department; and, Blotner's assertion of the needlessness of unions. How- ever, the fact that a laid-off employee may be engaged in union activities at the time of his layoff does not per se constitute substantial evidence of a layoff as a result of such activities. There must be something more than this combination of circum- stances. The General Counsel has attempted to supply this requisite proof by under- taking to show that on December 5, 1952, Miller informed Tomerlin and Cantrell, by virtue of writing their names on a slip and leaving the paper on a desk in front of them, that Haynes, Hemphill, and Moore, among others, were engaged in an organi- zational drive.9 Tomerlin and Cantrell deny that Miller gave them this information until after December 19 when the last of the three had been laid off. For several reasons I feel these denials bear the stamp of veracity; first, it is most difficult for me to believe that Miller would gratuitously expose to possible discrimination the names of employees who were engaged in the very activity as that which he was protesting was the cause of Haynes' layoff, second, it is extremely improbable that Cantrell would say, as Miller claims, that he and Tomerlin would like to have the names of the girls who were conducting the drive in order that they would not be laid off and then, apprehending full well what the consequences might be, deliberately lay them off within 2 weeks; third, it is unlikely, if Cantrell had been informed by Miller on December 5 that Haynes was engaged in union activities, that he should ask her when she went to his home about a week later and brought up the subject, if she had been mixed up with the Union; fourth, apart from Haynes, Hemphill, and Moore, it is not even faintly suggested that any of the approximately 70 other plant- wide employees who were all laid off at about the same time, were discriminated against because of union activities; and fifth, the reasons advanced for laying off Haynes because her job was abolished, Hemphill because the number of employees assigned to Glenn L. Martin Company was reduced from approximately 20 to some 5 or 6, and Moore because of the transfer of personnel work from the tooling depart- ment to the personnel section, which reasons are no more than indirectly denied, if at all, have not been shown to be pretextuous (and the burden is that of the General Counsel) and may not lightly be ignored. The question here is a close and perplexing one, but so are most of the questions arising under this section of the Act. There are suspicious circumstances that cast doubt upon the benignity of Respondent's motives. But I am unconvinced that the 9 He also apparently suggests that through the four young men who visited the organizers at the end of their November 13, 1952, meeting, their union activities may have been dis- closed to management 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men who were responsible for these layoffs then knew of Haynes', Hemphill's, and Moore's activities. Were I to conclude that these three young ladies were laid off in violation of the section involved, inference would be stretched too far and speculation substituted for that substantiality of evidence upon which alone are founded findings' footholds. We now turn to the refusals to reinstate these three girls. As pointed out above, it is admitted that Respondent was aware of their union activities shortly after December 19, 1952. All three applied for reemployment at least once in person and at least once in writing. The alltime record high of employment in the plant was reached in March 1953, 3 months after their layoffs. Although at least 17 office employees, who had worked with the 3 before they were laid off, have resigned and at least 20 others-some 10 of whom are no longer with the Company-have been newly hired since December 19, 1952, Respondent has failed to reinstate Haynes, Hemphill, and Moore. A week after her layoff Cantrell told Haynes he thought she would be back to work in about 3 weeks and that she should not worry about it and Beck told her she would be the first one hired when Respondent started rehiring. Tomerlin told Moore that perhaps when they started rehiring in the fall she would be placed on again. Beck told Hemphill he would recommend her for a job in town. Although Glover told Hemphill that if she had come to him and informed him that she wanted a job, he would have given her one, her applications, including her last request made after she refused to withdraw her name from the charge, remain unheeded. Respondent presented evidence, seeking to show that the clerical employees hired after December 29, 1952, had qualifications superior to those possessed by Haynes, Hemphill, and Moore. This evidence was in the form of a compilation, prepared after the charge had been filed, and largely consists of a disparagement of their ability, as contrasted with that which the 20 new acquisitions in their applications for employment attributed to themselves. It is worthy of note that only 2 of the 20 newly hired clerks had previously worked for Respondent and the appraisal of their allegedly superior qualifications was based upon their own avouchments rather than upon observed performance. There is a notable dissimilarity between the conclusions set forth in the compilation prepared long after the layoffs, and the other evidence, much of it coming from Respondent's own records, relating to attributes of responsibility, mentality, mental application, skill, production, and attendance displayed by Haynes, Hemphill, and Moore during the course of their employment and before the layoffs. Thus it must be noted that the work of all three girls had frequently been praised and they had been told their work was satisfactory and liked; their performance had never been criticized, that they had received merit pay increases; Haynes' termination notice was marked "excellent" and "eligible for rehire" and her review card "good" throughout; Moore's review card was marked "good" with respect to the factors of responsibility, mentality, mental application, and attendance and her termination notice was marked "eligible for rehire"; and Hemphill's supervisor considered her "efficient " 10 But when we scrutinize the "analysis" made 6 months after the layoffs by Glover and Rudder of their "determination as to why these girls that were laid off could not fill the positions of the newly hired employees," we see quite a different picture. There we observe a series of conclusions invidiously replete with such words as "accuracy," "initiative," "responsibility," "experience," "ability," "knowledge," "per- sonality," "poise," "intellect," "qualification," "background," "mentality," "poten- tial," "reliable," and "satisfactory." That not all of the clerical employees hired after the layoffs in question proved to be paragons of all these virtues is manifest from the fact of the discharge of 1 of them as unsatisfactory and the fact that none of 9 others lasted more than 5 months. True it is that the record does not show the reason for the layoffs or resignations of these 9. It may be, although one cannot tell, that some of them were separated for lack of work. It may be, although still one cannot tell, that some of them were asked to resign, as was Jacoby, to avoid being discharged. But there is no point, even if one properly could be made, to be gained by indulging in such surmise. For the salient fact remains that Respondent, despite their applications for reemployment, did not see fit to give work to Haynes, Hemphill, and Moore either when these many openings were filled or when they were vacated. The "analysis" is palpably a self-serving document, prepared for pur- poses of exculpation in face of litigation on secondhand information and hearsay evidence by men who had little or nothing to do with either the layoffs or the hirings. We are repeatedly reminded, and it is required by the Act, that findings of'fact must be predicated on reliable and substantial evidence. To clothe Respond- 'o Lickman's precise words were, "I wouldn' t say she was inefficient." BRADY AVIATION CORPORATION 49 ent's conclusive conspectus with the dignity of reliability and substantiality , would, I believe, flout the fundamental established principle of objective fact finding. An extended discussion of each of the multitude of explanations advanced by Respondent for not reemploying these three clerks and a detailed punctuation of their several incongruities , have their places more properly in argument of counsel than in a fact-finding functionary's report. It should suffice to say here , that in my opinion, Respondent's "reasons" in general are but pretexts, illustrated by its claim-to cite but one example-that it decided to hire Carothers in April , rather than to reemploy Hemphill because "it was determined that she (Hemphill ) and her husband proposed to move to Abilene in early July ." and "that the nature of this position makes it highly undesirable to train a girl who would only be a temporary employee at best," when as a matter of fact it is amply apparent that Respondent knew nothing of the Hemphills' plan (if indeed they themselves had one that early) to move from Brady, until a month after Carothers was hired and Carothers herself was but a temporary employee who was laid off after working about 2 months, only 3 days subsequent to the Hemphills' departure. We by now know that Respondent had through the many statements of its officials -which need not here be reiterated-demonstrated its disapproval of, if not its firm determination not to have, a bargaining unit composed of the members of its clerical staff including people, among others, working in its personnel department. We also know, indeed it is admitted by Respondent , that before the time Haynes, Hemphill, and Moore sought reinstatement its officials were fully aware that they were 3 among the 4 employees who were essaying to organize a clerical unit . I had the illuminating opportunity of seeing and listening to these young ladies. I am satisfied upon the aggregate of credible evidence and from my observation of them, that they had capably served their employer throughout the months they had worked before December 1952, that all of them are sufficiently reliable and satisfactory , adequately endowed with the attributes of accuracy, initiative, responsibility, experience, ability, personality , poise, intellect , and mentality , and equipped with enough background and potential to be fitted for the positions given others in their stead . Why then, has Respondent persistently failed to keep its promises to rehire them or to fulfill the hopes of reinstatement it had engendered ? I can no more believe it was out of sheer whim, obstinacy, or perversity than can I conceive it was for no reason at all. So I come to what seems to me is the only logical conclusion on all the evidence, and I am convinced, that as alleged, Respondent has discriminatorily failed to, refused to, and continued to refuse to reinstate or employ Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore for the reason that they assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . This is a violation of Section 8 (a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above , occurring in connec- tion with its operations described in section I, above, have a close , intimate, and sub- stantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor prac- tices affecting commerce , I will recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Having found that Respondent engaged in interference , restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act by inquiring whether an employee instigated a charge against Respondent and requesting that she sign a statement withdrawing the charge , for the purpose of discouraging member- ship in, assistance to, and activities in behalf of the Union, I shall recommend that Respondent be ordered to cease and desist from such conduct. Having found that Respondent has discriminated against Josephine Haynes, Mary Engdahl Hemphill , and Bette Moore , I will recommend that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges . Since I have not found that Haynes, Hemphill , and Moore were discriminatorily laid off, I obviously shall not recommend that they be made whole for any loss they may have suffered from the dates they were laid off. I shall, however, recommend that they be made 338207-55-vol, 110-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole for any loss they may have sustained from the date they were unlawfully refused reinstatement until the date of a valid offer of reinstatement, by payment to each of a sum of money equal to that which she normally would have earned in wages during such period, less her net earnings during such period. Respondent received letters requesting reinstatement on Wednesday, January 28, 1953. Therefore I shall recommend that February 2, 1953, the Monday following January 28, 1953, be con- sidered the date of discrimination upon which the payment of any losses as a result of Respondent's unlawful conduct shall commence." The said loss of pay shall be computed on a quarterly basis in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289. In view of the nature of the unfair labor practices committed I shall also recom- mend, in order to make effective the interdependent guarantees of Section 7, that Respondent cease and desist from in any manner infringing upon the rights guaranteed in said section. 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. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore, by failing and refusing to rein- state them, thereby discouraging membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By such discrimination and 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent did not discriminatorily discharge, and fail or refuse to reinstate, Juanice Jacoby nor discriminatorily lay off Josephine Haynes, Mary Engdahl Hemphill, or Bette Moore. 7. Respondent did not through Troy Cates, a supervisor, threaten an employee with loss of her job if she did not refrain from union activity. [Recommendations omitted from publication.] n Between December 19, 1952, and January 28, 1953, Inclusive, 4 clerical employees in addition to the complainants had left Respondent's employ and 1 had been hired. Another was employed February 2, 1953 During the succeeding 31/ weeks Respondent reinstated 1 and hired 7 new clerical employees. Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), or in any other labor organiaztion of our employees, by refusing to reinstate employees or discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT inquire whether employees have instigated charges against us or request them to sign statements withdrawing such charges. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring THE M. W. KELLOGG COMPANY 51 membership in a labor organization as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Josephine Haynes, Mary Engdahl Hemphill, and Bette Moore immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to any seniority or other rights and privileges previ- ously enjoyed and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become or remain , or to refrain from becoming or remaining, members in good standing of International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), or any other labor organization , except to the extent that this right may be affected by an agreement in conformity with Section 8 ( a) (3) of the National Labor Relations Act. BRADY AVIATION CORPORATION, Employer. Dated---------------- By---------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE M. W. KELLOGG COMPANY and INTERNATIONAL CHEMICAL WORK- ERS UNION, AFL, PETITIONER. Case No. 2-RC-6562. September 24,1954 Decision and Direction of Election Upon a petition filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. Local Union No. 461, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, was allowed to intervene at the hearing because of its contract representation of hourly paid production and maintenance employees of the Employer. In its brief it contends that the Petitioner is not the real party in interest in this proceeding, but instead that an unidentified local group exists to represent the salaried employees sought by the Petitioner, which group is not in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act. At the hearing counsel for the Intervenor asked the Petitioner's or- ganizer, who signed the petition in this case, this question : "There is a local union in this particular operation now, is there not?" To which this answer was given: "There is no local union yet established." Immediately the Intervenor launched upon a series of questions to elicit information about "a local," that is, its number, its officers, its date of organization, and whether it had collected dues and initiation 110 NLRB No. 9.