Orenduff & Kappel, Inc.

ORENDUFF ,& KAPPEL, INC. 859 textile or paper bag industry.' No evidence was offered as to whether any other employers in the textile bag industry have contracts for more than 2 years. As to the paper bag industry, the only evidence submitted was that in that industry about one-half of the employees located on the West Coast are covered by 3-year contracts. However, there was no evidence as to what portion of the entire industry in the United States is covered by contracts for more than 2 years. Ac- cordingly, there is insufficient basis in the record for determining that a substantial part of the entire paper or textile bag industry is covered by contracts for more than 2 years.4 We find, therefore, that as the first 2 years of the term of the Union's contract have expired, it is no longer a bar. 4. We find, in accord with the agreement of the parties, that the following unit is appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Berkeley, California, plant, including plant clericals, but excluding office clerical employees, guards, and supervisors as defined in the Act.' [Text of Direction of Election omitted from publication.] MEMBERS RoDGExs and BEAN took no part in the consideration of the above Decision and Direction of Election. 8 Both industries appear in the Standard Industrial Classification Manual. Joseph Aroneuer, Incorporated, supra. We note that, according to the . latest available statistics , there were, in 19514, 27,773 production and maintenance employees in the entire paper bag industry , of whom only about 2,500 were employed in the Far Western States. Thus, on the basis of these figures, it appears that the number of paper bag employees shown by the Union to be covered by 3-year contract is only about 1,250 , which is less than 5 percent of all such employees. S This unit description conforms to that contained in the current contract between. the Union and the Employer. Orenduff & Kappel, Inc. and District No. 15, International As- sociation of. Machinists,. AFL-CIO. Cases Nos. B-CA-4550 and f-CA-4725. July 29,195' DECISION AND ORDER On September 27, 1956, Trial Examiner A. Bruce Hunt issued his Intermediate Report in the above-entitled proceeding, finding that the 'Respondent had, engaged in and. was engaging in certainunfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those 118 NLRB No. 107. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegations. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs. The Respondent's request for oral argument before the Board is de- nied, as the record, including the exceptions and briefs, adequately present the issues and positions of the parties. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Murdock and Rodgers]. 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 In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- niendations of the Trial Examiner, with the following modifications, amendments, and additions: 1. The Trial Examiner found that the Respondent violated Section 8 (a) (3) of the Act by accelerating the effective date of a layoff for discriminatory reasons. The General Counsel excepts to the Trial Examiner's failure to find that the layoff itself was discriminatorily motivated. The Respondent excepts to the Trial Examiner's disposi- tion of the 8 (a) (3) allegation and contends in its brief that there is no basis in the record to support a finding of violation thereof. We find merit in the Respondent' s contentions. The significant record facts pertaining to the August 10, 1955, layoff, in addition to those found by the Trial Examiner, are as follows : At its Westbury, Long Island, New York, plant, the Respondent does precision machining of metal parts, primarily for aircraft manu- facturers. Early in 1955, it was receiving about 85 percent of its busi- ness from Republic Aviation. However, at that time, the Respondent was informed by Republic that Air Force directives cutting back its prime defense contracts would necessitate a stretchout of delivery dates for parts being machined for it by the Respondent.' To fore- stall the imminent decrease in its business and to minimize the depend- ency upon the production needs of Republic, Vernon Orenduff, the Respondent's president, began to travel around the country in search .of new business. In the next few months, the Respondent submitted .numerous bids to companies contacted by Orenduff. In April 1955 Orenduff hired John Walborn to occupy the newly created position of, works manager and to assist in the reclassification of employees. By June 1955 the Respondent had received, and was working on, 1 In September 1954, as a result of a similar Air Force directive cutting back Republic's production orders, for which the Respondent was a parts subcontractor, the Respondent was forced to lay off, upon very short notice, about one-third of its work force. ORENDUFF & KAPPEL, INC. 861, certain new orders for prototype parts from Republic and other com- panies. However, at the same time, the Respondent knew that 2 large Republic production orders would be completed or nearly com-_ pleted by August 1955 and would probably not be renewed,2 and it had received change orders on 2 companion production jobs advancing delivery dates to December 1955. Sometime early in June, Orenduff discussed with his attorney, Frost, and his accountant the possible need for a layoff "for economic reasons." Also, in that period, the Respondent's night shift employees had become interested in union organization, and, late in the month, the Union commenced its drive to organize the plant. Around July 1 the Union requested recognition. By this time, customer complaints of defects in delivered parts, which had begun to come in earlier, reached serious proportions. Because of production difficulties, attributed partly to the increase in prototype jobs which were less repetitive than production jobs, and partly to lowered employee morale, the Respondent was unable to accept a number of Republic Aviation prototype jobs. Also, the Respondent had received rejec- tions of a number of its bids for new work. In the context of these developments, Orenduff concluded early in July that a layoff, probably. of night shift employees, was necessary, but, upon advice of counsel, lie postponed its effective date until resolution of the question concern- ing representation raised by the Union's demand. On July 18, the Union filed a petition for an election among the Respondent's production and maintenance employees. Shortly there- after, 'a consent election was agreed to. The election was scheduled for July 29, just prior to the Respondent's annual 2-week vacation period. Notwithstanding such agreement, however, Orenduff, during July, was considering the question of which employees to lay off and made frequent visits to the plant to observe employees at work. By July 28, he had selected a group of 36 employees for layoff, some for "lack of work," most of the night shift employees, and the remainder for "poor work." With respect to those judged to be "poor workers,?" Orenduff had the benefit of Walborn's recommendations, which in most cases coincided with the selections made. Orenduff's reasons for eliminating most of the night shift were that: (1) The night shift was the most expensive to operate; (2) it was less efficient than the day shift; (3) the night shift foreman, Murray, had submitted his resig- nation; and (4) the basis for its existence, accommodation of customers, had diminished. . The Union lost the election held on July 29 by a substantial margin, 99 to 52, and it filed no objections to the conduct thereof. Sometime during the first week of the August vacation period, Orenduff gave One of these job orders was completed, and the other almost completed, by August 1, 1955, and neither was renewed by Republic.. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD orders for the preparation of termination notices effective August 10 for the group of 36 employees selected for layoff. On August 10, the notices, setting forth "lack of work" as the reason for the layoff, were sent or given to the employees affected. Upon the basis of the foregoing and the entire record, we find, contrary to the view of our dissenting colleague, that an economic need existed for a layoff in the summer of 1955.' We also find that the record does not support the Trial Examiner's finding that the layoff date was discriminatorily accelerated. In our opinion, entirely apart from the question of motivation, there is no proof that any acceleration of the layoff date occurred. The record indicates, to the contrary, that the Respondent postponed the effective date of the layoff until after the election. Proceeding then to the basic issue posed by the parties, the General Counsel contends that Orenduff, the individual who made all the decisions in connection with the layoff, selected the 36 employees for' layoff for discriminatory reasons and not, as he avers, on the basis of employee efficiency or production needs. To support his contention, the General Counsel relies heavily upon the extensive hearsay testi- mony of several of the laid-off employees, admitted in evidence without objection, to the effect that Murray, the night-shift foreman, said in the course of conversations with them at their work places, that Orenduff had told him that he, Orenduff, was going to fire employees he knew to be for the Union and was going to lay off the whole night shift as a means of combatting the union activity. However, the alleged declarant, Murray, was not called as a witness by the General Counsel to testify that Orenduff had in fact made such statements to him,4 and Orenduff himself denied on the stand that he ever uttered any threats of reprisal for union activity to anyone. The General Counsel would have us discredit such denial by Orenduff. The Trial Examiner, although discrediting Orenduff's testimony in some particulars, credited him in others and did not discredit him on this vital issue. We have carefully considered Orenduff's critical denial in the light of all his testimony and, unlike our dissenting colleague, conclude that the denial must be given credit as a contradiction of the hearsay evidence above alluded to.' Accord- 3 The General Counsel in fact did not contend that no economic need existed for the layoff. The Trial Examiner, possibly because of this fact, made no specific finding as to whether there was need for an economic layoff. However, he indicated in his proposed remedy that there may have been an economic need to lay off an unspecified number of employees. * Prior to the layoff, Murray voluntarily resigned his position as night-shift foreman and left the employ of the Respondent. At the time of the hearing in this proceeding, Murray was back at work for the Respondent as a rank -and-file employee and was readily available as a witness for the General Counsel. 5 Our dissenting colleague also takes the view that, under the Board's ruling in Drico Industrial Corporation, 115 NLRB 931, the testimony which we have treated as hearsay may be regarded as admissions by 'Murray binding upon the Respondent and therefore probative of discriminatory motivation for the layoff. In our opinion, the present case ORENDUFF & KAPPEL, INC. 863 ingly, we hold that, in view of its contradiction, such hearsay, absent corroboration, can be given no probative value with respect to the issue of the Respondent's motive for the layoff.' The only other direct testimony relied upon by the General Counsel to established illegal motivation for the layoff is that of Baldwin and Fabian, laid-off employees, as to conversations they had with Orenduff after the layoff. Baldwin testified that he asked Orenduff whether there was any chance of his being recalled and that Orenduff replied in the negative. Orenduff did not testify about this conversation. However, as the record shows that the Respondent did not hire anyone in Baldwin's classification for at least 5 months after the layoff, we can draw no inference of discriminatory motivation for the layoff from such conversation. Fabian testified in effect that Orenduff admitted to him that the reason he and the other employees were laid off was their signing of union cards.' Orenduff's testimony is in sharp contradiction. He testified that, in response to Fabian's query, he told him that the reason for his discharge was "bad work," and that Fabian then brought up the subject of cards by volunteering a. denial that he had signed one. The Trial Examiner did not resolve this conflict in testimony. In the light of the entire record, we find that Orenduff's version of what was said and done on this occasion is more credible than Fabian's. Fabian could not recall seeing the reports of his defective workmanship which were introduced in evidence. On the other hand, Orenduff's version of what took place on this occasion is con- sistent with the rest of his credible testimony and the existence of the reports of Fabian's poor work. We find, therefore, in accord with Orenduff's testimony, that Orenduff did not tell Fabian that the reason for the layoff was the signing of a card. is distinguishable from Drico . In that case, the alleged statements attributed to the principal , Carter, by Foreman Kalemba were not contradicted by Carter . Here, Orenduff denied that lie made any layoff threats to anyone, and Foreman Murray, who allegedly attributed such threats to Orenduff, was not called by the General Counsel to testify that Orenduff in fact had made such threats . Therefore , in view of our decision to credit Orenduff's sworn denial that lie uttered threats of reprisal to anyone , the testimony as to Murray 's alleged repetitions of remarks by Orenduff cannot be deemed to prove that Orentluff in fact made the statements attributed to him. 6 Martel Mills Corp. v. N. L . P. B., 114 F . 2d 624 , 629 (C . A. 4) ; N. L . R. B. v. Ford Motor Co., 114 F. 2d 905 , 915 (C. A. 6) ; American Rubbor Products Corporation v. N. L. P. B., 214 F . 2d 47, 51 (C. A. 7). Cf. N. L. R. B. v . Ray Smith Transport Co., 193 F. 2d 142, 146 (C. A. 5). 70n August 9, 1955, under circumstances set forth fully in the Intermediate Report, the Respondent came into possession of the authorization cards signed by its employees. It is clear from the record , and we find, that the Respondent 's possession of these cards and subsequent photostating of them did not enter into its decision as to which employees to select for layoff, because as heretofore indicated , Orenduff selected the employees for layoff on July 28. There is no evidence that Fabian knew of the Respondent 's possession of the signed cards at the time of the conversation in question. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We conclude, upon the foregoing and the record as a whole, that the General Counsel has not established by a preponderance of the evidence that the Respondent selected the employees for the August 10, 1955, layoff for discriminatory reasons. Accordingly, we shall dismiss the allegation of Section 8 (a) (3) violation. 2. We agree with the Trial Examiner that Foreman Murray's state- ments of opinion that employees would be laid off or suffer other re- taliatory action for engaging in union activity, were coercive in nature and constituted violations of Section 8 (a) (1) attributable to the Respondent.' However, we would include as similar violations Fore- man Murray's other statements which he attributed to Orenduff to the effect that Orenduff was going to lay off employees for union activity. Although we have rejected such statements as probative of discrimi- natory motivation for the layoff, they were, regardless of their truth or falsity, coercive in effect, and the testimony that Murray made them to employees is uncontradicted. Such statements therefore con- stitute 8 (a) (1) conduct of a supervisor for which the Respondent is responsible.' 3. We disagree with the Trial Examiner's finding that the Respond- ent committed 8 (a) (1) violations as a result of Orenduff's interroga- tions of employees concerning grievances at the meeting of the night shift about July 1, 1955, and at the meeting several days later of de- partmental and shift representatives for the purpose of discussing grievances. In our opinion, the Respondent's efforts to handle em- ployee demands and grievances at the aforementioned meetings, the latter of which was called specifically for such purpose, when viewed in the context of its other actions and the surrounding circumstances at the time, did not constitute 8 (a) (1) interference, restraint, or coer- cion. The Trial Examiner's recommendation in this respect is there- fore rejected. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Orenduff & Kapell, Inc., Westbury, Long Island, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Uttering or making threats or coercive statements to employees to the effect that the Respondent will lay off or otherwise discriminate against said employees because of their union or concerted activities. 8 We are also in accord with the Trial Examiner's finding of an 8 (a) (1) violation with respect to Personnel Manager Mills' statements to Personnel Clerk York of Liberty Products Corporation concerning the applications of \iangels and Quinn for employment by the latter company. Hardware Engineering Company, Inc., 117 NLRB 896. ORENDUFF & KAPPEL, INC. 865- . (b) Encouraging or suggesting to other employers that they not. hire former employees of the Respondent because of said employees" union activities. (c) In any like or related 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 District No. 15, Interna- tional Association of Machinists, AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of col- lective 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 membership in a labor organi- zation as authorized in Section 8 (a) (3.) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in its plant in Westbury, Long Island, New York, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Ap- pendix." 10 Copies of said notice, to be furnished by the Regional Di- rector for the Second Region, shall, after being duly signed by the Re- spondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (b) File with said Regional Director within ten (10) days from the date of this Order, a report, in writing, setting forth in detail what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint in all other respects be, and it hereby is, dismissed. MEMBER MURDOCK. dissenting in part: The principal issue in this case is whether Respondent discrimina- torily laid off a group of employees on August 10, 1955. The Trial Examiner stated that he found it unnecessary to decide whether there was an economic need for a layoff or whether employees were dis- criminatorily selected in making the layoff, because he found that the timing of the layoff was motivated by antiunion considerations. Although I do not disagree with that finding, I would resolve the more basic questions, noting that many of the factors relied on by the Trial Examiner point to an answer to one or both of them. In my view, the record does not establish an economic need for the layoff in the first 10 In the event that this Order is enforced by a decree of it United States Court of - Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to it Decree of the United States Court of Appeals, Enforcing an Order." - 450553-58-vol. 1,18-56 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place. But beyond that, and assuming , arguendo, that my colleagues are correct in finding that there was a need to lay off some employees, in my view the evidence requires a finding that the Respondent for antiunion reasons cut far deeper in making a layoff than economic considerations would have dictated; and discriminatorily selected the employees to be laid off. In support of its contention that the layoff was economic, the Respondent, in its brief, states that the decision to have a layoff was the result of the loss of some 36 Republic Aviation jobs during June and July 1955 , the revision of delivery schedules for several Republic jobs in process, and its failure to obtain many contracts for which it had bid with other manufacturers. The record establishes that the 36 Republic jobs "lost" during June and July 1955, actually had-to be turned down by the Respondent because it did not then have the production facilities to handle them and not, as the Respondent would have us infer, because of complaints of defective workmanship on Republic work. While such complaints were received during the period in question, there is no showing that they were the causative factor in the loss of Republic jobs or that they were more numerous than might be expected during a period of transi- tion from mainly repetitive production work to more diversified pro- totype production. As to the Republic jobs whose delivery schedules had been stretched out, whatever the effect, it is clear that, during the few months prior to the' layoff; the' Respondent had obtained a number of orders from various manufacturers for fabrication of prototype pieces; that, in July 1955 there was no substantial loss in production man-hours; and that, just prior to the August 1955 vaca- tion period, uncompleted pieces for certain production orders with stretched-out delivery dates were being cleared from machines in order to make way for work on prototype orders. In view of these facts, it cannot be concluded that the revision in delivery dates for certain Republic production orders was in itself indicative of an eco- nomic need for a layoff. To the contrary, these facts show that work on such production orders could be conveniently postponed in order to make possible doing other work. As for the Respondent's failure to obtain many of the jobs for which it had bid, such fact in the cir- cumstances is of little or no significance, for there was, as above- indicated, no falling off in production man-hours during the period just prior to the 1955 vacation, and the outlook at that time did not presage a fall-off for the ensuing months. In fact, at a meeting of day shift employees on or about July 1, Orenduff, Respondent's president, told them that Respondent's business outlook was good; and as detailed in the next paragraph, after making the layoff, Respondent promptly began replacing the laid-off employees. I would conclude, therefore, contrary to my colleagues, that the record does not support the ORENDUFF & KAPPEL, INC. 867 contention that the Respondent instituted the layoff because of economic considerations. That, as the Trial Examiner found, the layoff of 36 employees on August 10, "cut too deep"-that is, cut deeper than any possible economic considerations could have warranted-is obvious from the figures which show that the Respondent hired 3 new production and maintenance employees within 3 weeks of the layoff; 9 more in Sep- tember, 10 more in October, 10 more in November, and 8 more in December. In other words, Respondent promptly began to hire employees after the layoff and consistently continued to do so during the next 4 months until it had hired a total of 40 more than the number laid off. Also significant as bearing upon the issue of discrimination is the fact that only an insubstantial number of the laid-off employees were taken back. In considering the question of discriminatory selection for layoff it is to be noted that despite the testimony of Orenduff, Respondent's president, that he had no interest in the identity of union adherents, and made no attempt to learn who they were, he took advantage of an error on the part of the Board's Regional Office (which mailed the Union's authorization cards to Respondent after the election instead of to the Union) to go out of his way to verify who were the union adherents. Instead of promptly turning the cards over to the right- ful owner, Orenduff made photostatic copies of the cards, compared the signatures with his payroll, and belatedly mailed the cards to the, Union 10 days later. The union authorization cards were received by Orenduff on August 9. The printed layoff notices were mailed out or delivered to employees on the following day. Respondent thus not only had the time and the opportunity to verify which employees had signed union cards before sending out the layoff notices, but clearly availed itself of the opportunity. It is also significant on the question of discriminatory selection that 31 of the 36 employees laid off were signers of the union authori- zation cards-a ratio of 6 card signers to 1 nonsigner, whereas among the whole group of employees the ratio was only 1 card signer to 2 nonsigners. In department after department, with only rare excep- tions, the number of employees who signed union cards is the exact number of employees laid off, and where there were no signers no one was laid off. Thus on the night shift, in surface grinding 2 signed and 2 were laid off; in drill press 4 signed and 4 were laid off ; in inspection 4 signed and 4 were laid off; in lathe 2 signed and 2 were laid off; in material handling and power saws 2 signed and 2 were laid off. While the majority seems to suggest that Orenduff practi- cally eliminated the night shift in making an economic layoff because of his assertion that it was more expensive to operate, the fact is that at least 26 employees remained on the night shift after the 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff ; and, as we have noted, Orenduff promptly began hiring new employees after the layoff. Also significant on the question of discriminatory motivation in the selection of employees for layoff is the testimony of a personnel clerk for another firm at which two of the laid-off employees sought employment. She testified that she called Respondents' personnel manager, Mills, for information about the two applicants and Mills characterized one as "as an agitator for the Union"; as to the other Mills said : "We could find absolutely no fault with him. . . . It's just. too bad he had to get mixed up in politics." That Orenduff had knowledge or suspicions as to which employees were active in the Union even prior to his fortuitous opportunity to see the union authorization cards the day prior to making the layoff is clear from the testimony of Works Manager Walborn, that in discussions of a layoff prior to the vacation period Walborn ex- pressed his opinion to Orenduff that certain employees were sym- pathetic to the Union. Orenduff had also made clear at a meeting of the night shift employees on or about July 1 that he did not want the Union in the plant. When asked by employee Soprano if he objected to a union he did not reply. When the question was repeated, OrenduT said he did not wish to see anyone hurt, and that he did not like to have a wedge driven between Respondent and the employees. The majority opinion ignores nearly all of the foregoing evidence which, together with the factors relied on by the Trial Examiner and detailed in the Intermediate Report, support the conclusion that the layoff cut was deeper than any economic considerations would have warranted, and that those employees laid off were discrimina- torily selected because of their union affiliations. The maj ority opinion discusses only statements attributed to Foreman Murray on which the Trial Examiner relied, which established beyond any doubt the discriminatory character of the layoff. In su mmary, Foreman Mur- ray told several employees that Orenduff had threatened to fire the whole night shift to get rid of the Union. Without the benefit of a resolution of credibility by the Trial Examiner, the majority makes. a resolution of credibility on the cold record, and, inconsistent with the Trial Examiner's discrediting of Orenduff on other material points, credits a denial by Orenduff, the Respondent's president, that he uttered any threats of reprisal for union activity to anyone. The majority credits this denial in the face of detailed and credible testi- mony of five dischargees, admitted without objection and uncontra- dicted on the record, that Murray, the night shift foreman, repeated to them, in the course of conversations at their work places at various times during the period prior to the layoff, statements made to hirer by Orenduff of the latter's intent to lay off the whole night shift for union activity and to do it in such a way as to avoid repercussions.. ORENDUFF & KAPPEL, INC. 869 In effect, the majority finds that, even though Murray made the statements imputed to him by witnesses, he falsely attributed to Orenduff statements indicative of discriminatory motivation for the layoff. For, having credited Orenduff's denial, the majority eliminates from its consideration this testimony adverse to the Respondent on the 8 (a) (3) issue, as contradicted hearsay. In my opinion, this testimony is probative of the Respondent's discriminatory motive in two respects : (1) as evidence that Orenduff actually made the statements to Murray; and (2) as evidence in the form of admissions binding upon the Respondent, made by Fore- man Murray within the scope of his authority. (1) My view that Orenduff's denial should be discredited is based upon the following considerations : First, Orenduff's negating testimony was not in response to ques- tions which adequately referred to the specific statements attributed to him by Murray. Orenduff was asked the following questions : [Did you ever say to a subordinate] "If those bastards want a fight, I will give it to them." Did you ever at any time instruct any of your subordinates in management to convey to any workers threats of reprisals by you because of union activities? Did you ever utter any [threats or reprisals against the men for union activities] ? The imprecise and conclusionary character of the last question asked of Orend.uff should be compared with the testimony sought to be contradicted. Such testimony as to what Murray reported to the wit- nesses concerning remarks made to him by Orenduff, is as follows : (1) (to Leadman Bishop, in a conversation occurring in mid- June 1955) "that he [Orenduff] felt the responsibility [for the union activity] was with the night shift and that he knew just about who it was that was causing the trouble and it was a ques- tion of what to do about it, but that if he knew, or could find out for certain, he' would fire them . . . that it might be a good idea to clean house or clean out the whole shift." (in another conversation with Bishop a few days before the July 29,1955, election) "that he [Orenduff] knew most of the men who are concerned with this union business and that it was just a question of what to do and when to do it . . . that if the bastards want to fight he'll give them a fight, and that he would have to consider what measures to take." (to Leadman Fabian, in a conversation a couple of weeks before the election)' [in response to Murray's suggestion to Oren.duff that the union business could be nipped in the bud by giving raises] "that he would give raises when he sees fit, and as far as the men 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who wanted the Union to come into the shop, if he finds out who they are, he will fire them." (to Conner, about a week before the election) "that he was seriously considering firing the whole night shift as a solution to the organizational attempt" and "that the way he does it there won't be any repercussions or troubles for him." On another occasion : "that he would close up [the production end of the plant] and just keep his tool grinding in the toolroom and make ,a livingthat he didn't need us-because he didn't like the union." (to Clement, about the middle of July) "that if these bastards wanted to fight he would teach them how to fight and he would lay off the whole night shift." The fact that with one small exception the questions put to Orenduff for the purpose of eliciting his denials do not refer to the specific remarks attributed to him weighs heavily against crediting such denials. Secondly, the uncontroverted testimony in the record concerning all of Murray's statements to employees and his actions does not depict him as a man who would falsely attribute to Orenduff threats to dis- criminate, and should militate against crediting Orenduff's general- ized denial. Orenduff was not asked to contradict the testimony that, early in June 1955, Murray informed him that union activity had arisen on the night shift, and that, in reply, he said he already knew it and felt that Murray was to blame because of his apparent inability to control his shift. In mid-June, Murray told Leadman Bishop "that the situation was worsening," and "that if it wasn't for the fact he knew that Vern [Orenduff] hated unions like poison and that he would never stand for a union, he wouldn't hesitate to go in" [in support of some of the employees' demands]. Early in July, Murray told Bishop that he felt he was being blamed unduly for a situation which he did not think he could control, and that he was thinking of resigning. Murray had the habit of chatting with the men at their workplaces, and several times during July, besides repeating statements made to him by Orenduff, as above-indicated, expressed his own view that Orenduff had a pretty good idea of who were in favor of the union, and that, although he was unpredictable, he was sure to retaliate as soon as the election was over by a layoff or some other measures. Late in July, Murray told Bishop he was going to resign before the "ex- plosion" which he felt was coming.. He actually did resign prior to the layoff. Although Murray wasback in Respondent's employ at the time of the hearing, Respondent did not call him as a witness to deny that he had made the statements attributed to him by the employees who testified. ORENDUFF & KAPPEL, INC. 871 Orenduff testified that he had discussed the possibility of laying off the whole night shift with his attorney Frost near July 1, 1955. To my mind, it is more than a coincidence that Orenduff knew of the union activity on the night shift and was blaming Murray for its occurrence, and that he was discussing the possibility of laying off the night shift for economic reasons. The credible evidence concerning Murray's conduct during the critical period before the layoff, in my opinion, constitutes further basis for discrediting Orenduff's general denial that he made the remarks attributed to him by Murray. Finally, a most important reason for the Board not to credit on the cold record Orenduff's general denial of the making of these threats is the fact that the record shows that he is not generally a reliable witness and that in several instances the Trial Examiner discredited his testimony which was inconsistent with that of his own plant manager and personnel director on material points.ll Orenduff is the same man who in his testimony generally denied that he had any interest in knowing who the union adherents were or that he made any efforts to ascertain their identity, but who admittedly photostated union-authorization cards which came into his possession through mistake and checked the signatures against his payroll records. This is indicative of the weight which should be accorded general denials of Orenduff. Time and again Orenduff was forced to modify his testimony on cross-examination when confronted with other in- consistent evidence relating to his actions. While, of course, the fact that a witness has been discredited on some points does not mean that he cannot be credited on others, no persuasive reason is apparent for crediting Orenduff in this respect. On the contrary, the objective evidence in the record showing that in almost every department on the night shift where the layoff was largely made the number of card signers coincided exactly with the number of employees laid off in the department, as well as the overall fact that 31 of the 36 employees laid off were card signers, is convincing corroboration that Orenduff did threaten widespread layoffs on the night shift to get at the Union. Thus even if my colleagues were correct in stating that in view of Orenduff's denial, the hearsay testimony in regard to his threats ut- tered to Foreman Murray cannot be deemed probative "absent cor- roboration," the record in this and• other, respects,. does provide cor- robation. However, the Court of Appeals for the Seventh Circuit in n In footnote 13 of the Intermediate Report , the Trial Examiner states : "Neither Carey nor Gorlow was a witness and I cannot credit Orenduff's testimony. Moreover, although Mills was Respondent's personnel manager, Orenduff testified unconvincingly that he did not discuss the [layoff] form letter with Mills and that he did not tell Mills which employees he had decided to lay off . Mills testified to the contrary." See also Intermediate Report at footnote 19, where the Trial Examiner discredited Orenduff's testimony that he told Plant Manager Walborn on the phone between August 3: and G, during the latter's absence from the plant, that he had decided to lay off a group of employees. =872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Rubber Products Corporation v. N. L. R. B.,12 has stated the Supreme Court law on the use of hearsay evidence as follows : Hearsay evidence admitted without objection must be con- sidered and given its natural probative weight. As the Supreme Court stated in Diaz v. U. S., 223 U. S. 442, 450, 32 S. Ct. 250, 252, 56 L. Ed. 500. . . . So, of the fact that it was hearsay, it suffices to observe that when evidence of that character is admitted without objection, it is to be considered and given its natural probative effect as if it were in law admissible. 'The hearsay testimony as to Orenduff's threats uttered to Foreman .Murray was admitted at the hearing without objection. It must, therefore, be given its natural probative weight. Upon the foregoing considerations, I conclude that there is no basis in the record for the majority's decision to credit the denial by Oren- duff that he made statements indicative of discriminatory intent. On the other hand, the record as a whole, in my opinion plainly warrants :a credibility finding adverse to the Respondent in this instance. I would therefore give the unobjected to hearsay testimony its natural probative value relative to the 8 (a) (3) issue. (2) In addition, I would treat the testimony as to what Murray :said concerning Orenduff's remarks as vicarious admissions of the Respondent against its interest in this proceeding, and therefore pro- hative of discriminatory motivation for the layoff. Murray, at the time he had these conversations, was an admitted supervisor with authority to speak to employees for the Respondent on matters per- taining to their employment rights. While there is no proof that Murray was expressly authorized by Orenduff to repeat to employees statements which may have been made in confidence, I would find, following the Board's ruling in Drico Industrial Corporation, 115 NLRB 931,13 that he had apparent authority to repeat Orenduff's remarks, and the, employees to whom Murray spoke, having in mind his supervisory status, had no reason to doubt that he had authority to repeat what Orenduff had told him. Viewed in this posture, as vicarious admissions, it was incumbent upon the Respondent to counter 'their probative effect on the 8 (a) (3) issue. Although Murray was again in Respondent's employ and could easily have been summoned to deny the testimony of the several employees who testified to the con- versations with him if their testimony was not true, Respondent made no effort to do so. Respondent elicited only the aforementioned de- nials by Orenduff which, for the reasons above-expressed, should be discredited. For this reason, I would also give the adverse evidence full probative value as admissions by Murray binding upon the Respondent. 14 12 214 F. 2d 47, 52. 'a See also Hardware Engineering Company , Inc., 117 NLRB 896. 14 Montgomery Ward & Co., 115 NLRB 645 ; enfd. 242 F. 2d 497 (C. A. 2). ORENDUFF & KAPPEL, INC. 873 Accordingly, I would find, contrary to the majority, that by its August 10, 1955, layoff, the Respondent violated Section 8 (a) (3) and (1) of the Act, and I would issue the usual order of reinstatement and back pay for the discrimination. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT utter or make threats or coercive statements to our employees to the effect that we will lay off or otherwise discrimi- nate against them because of their union or concerted activities, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the National Labor Relations Act. WE WILL NOT encourage or suggest to other employers that they not hire our former employees because of said employees' union activities. AVE WILL NOT in any like or related manner interfere with,, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District No. 15, International Association of Machinists, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, 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 membership in a labor organi- zation as authorized in Section 8 (a) (3) of the National Labor Relations Act. All of our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of District No. 15, International Association of Machinists, AFL-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. ORENDUFF & KAPPEL, INC., 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. '874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Charges having been duly filed, a complaint and notice of hearing thereon having been issued and served by the General Counsel, and an answer having been filed by Orenduff & Kappel, Inc., herein called the Respondent, a hearing involving allega- tions of unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was held upon due notice at New York, New York, on various dates between June 11 and July 24, 1956, both inclusive, before the Trial Examiner. The allegations of the complaint, denied by the answer, in substance are that (a) on August 10, 1955, the Respondent terminated the em- ployment of 22 named employees, herein called the Complainants, and thereafter refused to reinstate 20 of them, because they had joined or assisted District No. 15, International Association of Machinists, AFL-CIO, herein called the Union, or had engaged in other concerted activities; (b) on July 28, 1955, the Respondent eliminated overtime work for employees on its night shif because of their union membership and activities; (c) between August 15 and 19, 1955, the Respondent "blacklisted" certain employees because of their union membership and activities; and (d) between June 28 and July 29, 1955, the Respondent warned its employees to refrain from becoming or remaining members of the Union, or giving support to it, and threatened its employees with discharge or other reprisals if they became or remained members of the Union; and that by said conduct the Respondent vio- lated Section 8 (a) (1) and (3) of the Act. All parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and conclusions. On September 6, 1956, a brief was received from the Respondent. On September 11, the parties filed a stipu- lation for corrections in the transcript of testimony. The place of the initial pro- posed correction is hereby changed from "line 16" to "line 15" and, with said change, the transcript is hereby corrected in accordance with the stipulation. The Re- spondent's motions to strike certain evidence are hereby denied. Its motions to -dismiss the complaint, in whole and in part, are disposed of in accordance with the .determinations below. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, has its principal office and place of business at Westbury, Long Island, New York, where it is engaged in the manu- facture, sale, and distribution of major components and parts of airplanes. During the year 1955, the Respondent sold finished products valued in excess of $1,000,000, of which more than 40 percent were shipped directly to points' outside the State of New York. There is no dispute, and I find, that the Respondent is engaged in com- merce within the meaning of the Act. II. THE UNION District No. 15, International Association of Machinists , AFL-CIO, is a labor. organization admitting to membership employees of the Respondent. III: THE UNFAIR LABOR PRACTICES A. Chronology of events During June 1955, organizational activity commenced among the Respondent's production and maintenance employees, numbering approximately 155 persons. During the same month, Vernon Orenduff, the Respondent's president, informed Winston Frost, its attorney, that "for economic reasons, he was going to have to lay off employees." I Subsequently,, the union activity increased and there were a number of layoffs. Our principal question is whether the layoffs were motivated by economic or by antiunion considerations. On June 28, a few employees signed cards designating the Union as their col- lective-bargaining representative and within a day a substantial number of em- ployees had signed like cards. The Union's organizational efforts were most suc- cessful among employees on the night shift. 1 Frost so testified for the Respondent.. ORENDUFF & KAPPEL, INC. 875 On or about July 1, the Respondent held separate meetings of its day and night shift employees. Adam Kappel, the Respondent's treasurer, John W. Walborn, the works manager, and Orenduff addressed the night shift employees. Orenduff and Walborn spoke inter alia of an optimistic business outlook and urged the employees to improve production. Orenduff mentioned certain advantages given by the Respondent to its employees and said that he had heard of unrest among them, and he asked that complaints be expressed. Several employees mentioned different subjects which were discussed and John Soprano asked Orenduff if he objected to a union. Orenduff did not reply and Soprano soon repeated the question. 'Orenduff answered that he did not wish to see anyone get hurt. He also said that he did not like to have a wedge driven between the Respondent and the employees. Finally, Orenduff told the employees that he could not negotiate new contracts with the Respondent's customers (in which the Respondent's wage rates were major factors) until the existing situation was settled. The separate meeting of the day shift employees was conducted along the same lines. The employees were told of benefits being received by them. Orenduff said that the Respondent's business out- look was good, and no warning of prospective layoffs was voiced. Orenduff also said that he did not oppose a union and that it was "up to" the employees whether to have a union but that "outside interests" would not aid them in achieving job security which depended upon there being adequate work .2 During the course of the night shift meeting, someone suggested that departmental or shift representatives be selected by the employees to meet with the Respondent later.3 Within a few days, representatives were selected and they ascertained from employees the nature of grievances. On or about July 6, the representatives met with Orenduff, Kappel, and Walborn. Orenduff opened the discussion by calling for an expression of grievances. Certain grievances of night shift employees were voiced. The day shift employees were not as dissatisfied? On or about July 10, Walter Murray, foreman on the night shift, talked with a subordinate, William Bishop. Murray told Bishop that he felt that he was being blamed unduly by the Respondent for the union " situation which . he did not think he could control" and that he contemplated resigning. A few days later, Murray talked with Bishop and Kurt Thomas, another employee. Thomas voiced the opinion that the Union was unlikely to be successful in its organizational efforts, and he expressed anxiety that Orenduff would take retaliatory action against em- ployees who were active in the Union's behalf. Murray answered that he believed 2 The findings concerning remarks at these meetings are based upon the testimony of various employees who were witnesses for the General Counsel. Kappel was not a wit- ness. Walborn, although a witness for the General Counsel, was called only in rebuttal and did not testify concerning the meetings. Orenduff testified that a single meeting was held, with employees on both shifts in attendance, for the purpose of getting "to the root of the trouble . . . about production problems, lack of interest . . . and cheap quality of work" which had been factors in his consideration of prospective layoffs. He testified that the floor was opened for questions and that in response to Soprano's inquiry he replied that he did not care whether the employees had a union, that he and Kappel and the employees were "all part of" a "team" and that if the employees allowed someone.-to drive a wedge between the Respondent and themselves "it was going to hurt everyone" including himself. With respect to the business outlook. Orenduff testified that he had in mind business in prospect, rather than business under contract, that the "picture looked very good for future business" and that: I explained to them [employees] how I was trying to diversify our sales , to spread out into other customers [than Republic Aviation], so that we could possibly get away from the ups and downs of doing business with one customer [Republic]. However I also told them at the same time that it takes teamwork, that we all have to work together if we are going to do it. If there is any friction, the job can't be done. As will appear, there are other instances in which I cannot credit Orenduff's testimony, and in this instance I believe that the testimony of the employees more nearly accords with the facts. a The testimony is in conflict concerning whether the suggestion was made by a repre- sentative of management or by an employee. This conflict need not be resolved. 4 According to Orenduff, Soprano again asked if he had objections to a union, to which he responded, "None whatsoever," and that a day shift representative, R. Studgeon, said : ". . . Just. a minute, I represent the fellows on the day shift. We want no part of it. We are satisfied with things as they are." Soprano and Studgeon were not witnesses. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Orenduff knew of "a man here and a man there, and had ideas on others" who were active , that he thought "there was sure to be some recriminations , unless the union won," but that he did not believe that Orenduff would jeopardize the efficiency of the plant by "indiscriminately laying off men." 5 On or about the same day, Murray talked with Julius Fabian, Jr., a leadman who was not under Murray's. supervision . Murray said that he had talked with Orenduff, telling Orenduff that if the Respondent granted wage increases the organizational activity would be defeated, and that Orenduff had replied that he would give increases when he saw fit and that if he learned the identities of the Union's supporters he would discharge them.6 On July 18, the Union filed with the Board's Regional Office a petition for an election and certification of representatives . On or about that day, Orenduff again. told Attorney Frost that he wanted to lay off employees for economic reasons. Frost's advice was "Definitely don't lay off anybody until you see what happens"' in connection with the petition . On July 20, Frost and a representative of the Union executed a consent-election agreement . On the same day, Orenduff again asked. Frost if he could lay off employees and received a negative answer. In one of these conversations or earlier, Orenduff said to Frost that the night shift was falling behind in its work and he indicated that the prospective layoffs would predominate there.7' About July 22, Peter Conner, an employee, observed Murray in conversation with Orenduff. A few minutes later Murray, accompanied by Bishop , came to Conner and said that he had been talking with Orenduff about the organizational activity and that Orenduff had said that he, Orenduff , was "seriously considering firing the whole night shift as a solution ." Conner answered that "that's not within the law" and Murray said that he had made the same comment to Orenduff who had replied that "the way that he does it, there wouldn't be any repercussions or trouble for him." 8 On or about the same day , Bishop approached Murray, saying that he had received a proposal from an unidentified employee that the union activity be terminated upon: condition that Orenduff agree that there would be no reprisals . Bishop and Murray discussed the matter and went to the office of Walborn , the works manager, who was busy. While awaiting him, they discussed the matter with one of Walborn's subordinates, J. Edward Transue, production manager. Shortly thereafter, they discussed it with Walborn, who expressed disinterest .9 On or about July 25, Murray and Bishop had another conversation . Murray said inter alia that he had talked again with Orenduff and had tried to persuade Orenduff' "that the situation was not as bad as it seemed ," that Orenduff had said that "it didn't matter too much" and that he knew most of the men who were concerned with the union activity and that "it was just a question of what to do and when to do it." Murray quoted Orenduff as having said further that "if the bastards want a fight, he would "give them a fight . .. Murray told Bishop that he intended to resign "before the big explosion ," and at his suggestion Bishop typed a letter of resignation: for him . iO During late July, Lawrence Cooley, an employee who had been a repre- 5 Murray, a foreman , was a supervisor within the meaning of the Act. Bishop and Thomas, leadmen , were group leaders but not supervisors . The findings concerning the- conversations are based upon the uncontradicted testimony of Bishop , a witness for the General Counsel. Murray and Thomas were not witnesses . In addition to the conversa- tion recited herein , there is testimony by Bishop concerning earlier conversations with Murray which was offered by the General Counsel as "background evidence." It is unnecessary to recite that uncontradicted evidence. 6 The findings concerning this conversation are based upon the uncontradicted testi- mony of Fabian. As related, Murray was not a witness . Orenduff testified that he did not threaten discriminatory action against union adherents and that he did not tell Murray to convey such threats to employees. 7 The findings concerning the conversations between Orenduff and Frost are based upon the latter's testimony. 8 These findings are based upon Conner's uncontradicted testimony. On the other hand , as related , Orenduff denied having expressed such threats to Murray. s These findings are based upon Bishop 's uncontradicted testimony . Walborn, whose employment by the Respondent was terminated prior to the hearing, was a rebuttal witness for the General Counsel and Transue was a witness for the Respondent, but they did not testify respecting the incident. Murray was not a witness. The incident is of significance in that it tends to support Bishop's testimony concerning his conversations with Murray about the Union. 10 These findings are based upon the uncontradicted testimony of Bishop. In relating the conversation with Murray, Bishop contradicted himself with respect to whether he ORENDUFF & KAPPEL, INC. 877 sentative from the night shift to the meeting with management on July 6, observed Murray in conversation with Orenduff. Following the conversation, Murray came over to Cooley, who asked, "How is everything going?" Murray answered that Orenduff was "burning" and had said that "if the night shift wants a fight," Orenduff would "show them how to fight," that he would "lay off the whole night shift." During the same month , Murray spoke with George Clement, an employee who had been the most active in the organizing efforts. Murray told Clement that Orenduff was "quite perturbed" about the union activity and that Orenduff had said that "if these guys wanted a fight, that he [Orenduff] would teach them how to fight, and he'd lay off the whole night shift." 11 As has been recited, during July, Orenduff told his attorney , Frost, that he pro- posed to lay off employees for economic reasons. As will appear below, he dis- cussed with Works Manager Walborn the need for a layoff and the employees to be selected therefor. According to Orenduff's testimony, sometime before July 28, the day before the consent election and the beginning of the plant 's annual vacation period, he firmly decided to have a layoff and about July 28 he decided that the layoffs would be concentrated in the night shift for the reasons that a night shift is less efficient than a day shift, the night shift at the plant was too expensive because of a wage differential , the supervision was inadequate because Foreman Murray had decided to resign, and there was no longer a reason to retain the night shift as an accommodation to customers . He testified further that his final selection of the men to be laid off was made about July 28, following conversations with Walborn, and that he was not motivated to any extent by the union activities. The consent election was scheduled for July 29 between the hours of 4 and 5 p. m., which would afford an opportunity for voting by employees on both the day and night shifts simultaneously . Employees on each shift were accustomed to working overtime daily. On the night shift for the evening of July 28 and the early morning of July 29, the overtime of 1 hour was eliminated, as was the same amount of overtime on the same shift for July 29 and 30. The complaint alleges that the elimination of the 2 hours of overtime was motivated by the Respondent 's union hostility.12 Ac- cording to Orenduff, the elimination of the 1 hour overtime upon the first occasion was in order that employees in the night shift who planned to vote soon after the polls opened the next day would have the accustomed number of hours between leaving and returning to the plant , the voting having been scheduled to commence 1 hour before the night shift began work. Foreman Murray told Bishop that that hour of overtime would be eliminated upon the direction of Walborn so that the employees would be assured time in which to rest . With respect to the elimination of the second hour of overtime, Orenduff testified that the employees were com- mencing their vacation , that there was inadequate supervision for the night shift by that time, and that the additional hour of work was unnecessary. told Murray that he had signed a card designating the Union as his representative. While this contradiction , as well as certain other aspects of Bishop 's testimony, cast doubt upon the reliability of Bishop 's version , they do not warrant rejection of Bishop's testimony in view of its uncontradicted nature plus the fact that Murray had similar conversations with other employees . With respect to Orenduff's testimony , we have seen that he denied voicing any threats to Murray . He denied too that he spoke of giving the "bastards . . . a fight." He testified further that he was not interested in learning who supported the Union , that he made no attempt to learn , that he did not know the identities of the Union 's leaders among the employees nor where the Union 's strength lay in the plant, and that although Works Manager Walborn orally volunteered to him the names of employees who Walborn thought were active in the Union , he did not accept Walborn's opinion as proof . When confronted with an affidavit which he had made earlier , in which he said that the union activity "was a hush-hush affair" which he was "unable to pin . . . down " and that lie "had no idea who was in the union though . [he] made several attempts to find out," he testified that in executing the affidavit he "meant that . . . [ lie] had talked to some of the people [ employees] as to who was causing all this trouble . . . [ that lie] did not make any direct investigation to find out who was involved in the union [and that ] if . . . [he ] had . . . [lie] would have had every one of them pegged , name for name." It The findings concerning Murray 's conversations with Cooley and Clement are based upon the uncontradicted testimony of those employees. "The overtime was restored during September 1955, following the reopening of the plant after the annual vacation period which ended on August 15. The General Counsel does not contend that the Respondent 's continued elimination of night shift overtime between August 15 and the restoration date in September was also an unfair labor practice. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Friday, July 29, the election was held among approximately 155 production and maintenance employees. There were 99 votes against representation by the Union and 52 in favor thereof. No objections were filed. At the end of working: hours that day, employees began their annual vacation period which was to expire on Monday, August 15. Those employees who had earned less than the full 2-week vacation were permitted, if they so desired, to work at maintenance or other jobs. during that part of the vacation period when they were not entitled to leave with pay. On August 8, the second Monday of the vacation period, 2 events occurred, namely, the Respondent took steps to lay off a number of employees and the Board's Regional Office made a substantial mistake involving 55 union authorization cards then in its possession. We shall consider first the steps relating to the layoffs. On that day some of the Respondent's office staff were not on vacation. Orenduff gave to Samuel W. Mills and a Miss Carey, Respondent's personnel manager and bookkeeper, re- spectively, the personnel cards of a number of employees whom Orenduff had selected for layoff and he instructed Mills and Carey to prepare letters of termina- tion. Mills drafted a letter as follows: August 10, 1955. ---------------------- :] It is our regret to inform you that as of this date , due to cancellation of contracts and lack of work, your employment with this company has been terminated. Very truly yours, ORENDUFF & KAPPEL, INC. Mills promptly delivered the draft letter to Berns Letter Shop, Mineola, Long. Island, and placed an order for 75 printed copies on the Respondent's stationery.13 Turning to the Regional Office's error concerning the union authorization cards,. the Union had given to the Regional Office 55 such cards bearing the purported signatures of employees. This had been done in connection with the representation proceeding which resulted in the election of July 29. On August 8, someone on the staff of the Regional Office, intending to return the cards to the Union, in- advertently mailed them to the Respondent. On August 9, the Respondent received them. Within a few days, Orenduff compared the signatures on the cards with other signatures in the Respondent's records. He also had the cards photostated.. Thereafter, on August 18, he mailed the cards to the Union.14 "James Berns, proprietor, testified for the General Counsel in rebuttal that he had no. recollection of the transaction and that he could not fix the' dates when he received the- order or delivered the finished letters. He testified also that the order required no more than 15 minutes' work plus whatever time may have been required by attention to inter- vening matters and, by reference to his business records, he testified that he completed the work on August 8 and received payment therefor on August 10. Mills, whose employ- ment by the Respondent was terminated sometime after the vacation period, also testified as it rebuttal witness for the General Counsel. According to Mills' recollection, lie and Carey received the instructions from Orenduff on or about August 8, following which he delivered the draft letter to Berns within 3 or 4 hours and later received the printed letters from Berns within "a day and a half, or a day . . . in the neighborhood of 24 hours." In view of Mills' recollection of it brief period of time, it is very unlikely that Berns received the order during the preceding week and I conclude that the date was Monday, August 8. The only evidence to the contrary is that of Orenduff. He testified that on or about July 28, before the vacation period began, lie composed the draft letter himself. The printed letters, when dispatched to employees as described below, bore- Orenduff's signature and he testified that lie was "positive" that lie signed them "around August 3 or 4," but Berns' testimony subsequently established that the printing- was not completed until the 8th. Orenduff testified also that lie gave the text of the letter to Berns, but he later testified that he did not do so and that perhaps Mills, Carey or his secretary, it Miss Gorlow, did so. Neither Carey nor Gorlow was a witness, and I cannot credit Orenduff's testimony. Moreover, although Mills was the Respondent's personnel manager, Orenduff testified unconvincingly that he did not discuss the form letter with Mills and that lie did not tell Mills which employees lie had decided to lay off. Mills testified to the contrary. 14 The parties stipulated that the cards were photostated before August 18. Orenduff, in testifying about it conversation which he had with Fabian on Tuesday, August 16, testified that he had it photostat of Fabian's card in his, possession at that time.. Orenduff testified also that lie told Fabian that Fabian's signature on the card "checks with your endorsement on your [pay] check" and that he. Orenduff, "checked out all' these cards, to make sure it wasn't a fix. . . . ORENDUFF & KAPPEL, INC. 8751 On August 10, Mills received the 75 printed letters from Berns.15 Thirty-six of the letters were used, the name of an employee being inserted in each of the 36 letters,. following which 24 or more letters were mailed to the residence addresses of those of the 36 employees who were on vacation . The remainder of the letters, numbering 12 or less, were given to employees who were at work in the plant . Accompanying. the letters were checks in payment of any wages due and refunds of any monies withheld for the purchase of savings bonds.is In some instances the letters were not received promptly because the addressees were away from their residence on vacation. Following receipt of the letters , some of the employees sought employment at Liberty Products Corporation, a competitor of the Respondent . Two such em- ployees are Frederick Mangels and John Quinn . Ruth York, a personnel clerk for that corporation, telephoned the Respondent 's plant on August 15 to inquire about Mangels and again between August 17 and 19 to inquire about Quinn. She talked. with Mills about the information which had been given by those individuals on their employment applications to her employer. In the course of the conversation re- specting Mangels, Mills said that Mangels had not been cooperative , that he was, an agitator for the Union, and that "If you [York] want to avoid trouble , I suggest that you not . consider this man." With respect to Quinn, Mills told York: "We could find absolutely no fault with him. Sorry to see the boy go. It's just too bad that he had to get mixed up in politics ." Notwithstanding Mills' remark, Liberty Products Corporation hired Quinn and offered employment to Mangels , but the latter could not pass a required physical examination.17 On August 25, the Respondent gave a wage increase to all its employees and a few weeks later a bonus was given to the leadmen . The general wage increase was, the first such increase in approximately 3 years. According to Orenduff, he gave. the wage increase because "the morale in the plant was so bad-everybody was all. mixed up.. .. The 36 layoffs of August 10 were too extensive. As the Respondent says, they "cut too deep." During the balance of August, the Respondent hired 3 new pro- duction and maintenance employees and during the remaining months of the year it hired 9, 10, 10, and 8 employees , respectively for a total of 40. The record does not disclose the precise number of the laid-off employees who were offered rein- statement, but it is clear that the number is insubstantial. B. Conclusions The record contains much evidence concerning two issues , namely, whether there was economic need for layoffs and , if so, whether the Complainants , who number 22 of the 31 union card signers who were among the 36 employees laid off, were selected for layoff because the Respondent believed that they had engaged in union activities, as the General Counsel contends , or because they were not good workers or there was no work for them as the Respondent contends . I do not believe that these issues need be resolved because the evidence dictates the conclusion that the timing '° Bearing in mind Mills' recollection that he composed the draft letter and delivered it to Berns within 3 or 4 hours after receiving instructions from Orenduff , that he returned to Berns' place of business to receive the printed letters within approximately 1 day, and. recalling that Berns' records show that he was paid in cash on August 10 , it is a reason- able inference that Mills received the printed letters from Berns on that day . Neither Carey nor Gorlow, who might have shed some light on the matter , was a witness. '"A number of these checks were received in evidence and there is an issue concerning their probative value in determining the date or dates when Orenduff decided to lay off the payees . The evidence need not be recited. '^ The findings concerning the conversations between York and Mills are based upon .York' s testimony. In testifying, she used the employment applications of Mangels and Quinn upon which she had noted the information given to her by Mills. She remembered talking with Mills about Mangels only, "because it was something out of the ordinary," but she had no recollection of what Mills had said to her . She testified that in making telephone calls to former employers of applicants it was her practice to ask for the personnel records section and that her notations on the applications showed that she talked with a person who identified himself as Mills. Orenduff testified that it was Mills' duty to receive calls of the nature which York made , but that Mills had been instructed when hired in 1954 that in handling such calls he should confine his remarks to the former employee 's work performance . The General Counsel called Mills to testify about the incidents , but upon objection I ruled that Mills' testimony in this respect was untimely. Mills was not called by the Respondent as a witness to contradict York's testimony. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the layoffs was motivated by antiunion considerations. That is to say, absent antiunion motivation, an uncertain number of employees may have been laid off at an uncertain time subsequent to the vacation period. We shall examine the evidence. Prior to the vacation period, Orenduff and Walborn discussed the matter of layoffs. Walborn's position as works manager placed him in "control of all shop and administrative functions, short of accounting," including the supervision of pro- duction scheduling and deliveries, and among his subordinates were Cliff Wegmann, his assistant, Production Manager Transue and Foreman Murray. According to Walborn, he had expressed his opinion to Orenduff that certain employees were sympathetic to the Union but in recommending that particular individuals be laid off he was not motivated by their union activities.18 Orenduff testified that by July 28 he had decided which employees to lay off on August 10, but that he did not make his decisions known to Walborn before Walborn left on vacation on July 30. Orenduff also testified that Walborn's opinion had been that layoffs should occur sometime after the vacation period because Walborn "felt that possibly, after the fellows had had a rest and had time to think things over, perhaps they could straighten themselves out...... Turning to Walborn's testimony, he too testified that he left on vacation unaware of any list of employees to be laid off, but he testified also that Orenduff had told him that "the men who had earned vacations were entitled to them. . And that there would be no layoffs until an indefinite date after the vacation period. Walborn did not learn of the layoffs until he returned to the plant on August 15.19 With respect to Orenduff's timing of the layoffs, he testified that because of a lack of work he "felt no need to carry . . . [employees on the payroll] and let a man come back after his vacation is over to find out he has no job" and that he wanted to "give them [employees] an additional week to seek other employment . . . [so that] There would be no loss of . . . [pay while] getting a new job." The fallacies in Orenduff's professed concern for the employees are that (1) he could have noti- fied them at the beginning of the vacation period if one accepts his testimony as to when his decisions were made, and (2) some of the employees were vacationing away from their residence, as Orenduff must have anticipated, and in no instance was a termination letter delivered by mail or in person so as to provide an employee with more than 2 working days' notice in which to seek other employment. I find that the date of prospective layoffs was accelerated by Orenduff because of the employees' union activities. The following circumstances necessitate this finding. First, the reasons assigned by Orenduff for a contrary finding are unper- suasive. Second, Orenduff's failure to notify Walborn of an intent to lay off em- ployees during the vacation period is indicative that Orenduff had no such intent when that period began. Third, the fact that the employees were not given advance notice of the layoffs although, according to Orenduff, he had been considering layoffs since sometime in June and had made his decisions before the vacation period began.20 Fourth, the printing of more than twice the number of termination letters as were used, in the absence of an explanation to the contrary, is indicative that Orenduff was undecided as to the number and identities of all employees to be laid off on August 8, the day before the Respondent's receipt of the Union's authorization cards. Fifth, in contrast to Orenduff's professed disinterest in the identities of union ad- herents as set out in footnote 10, after receipt of the authorization cards he photo- 's The transcript contains Walborn's testimony concerning employees (1) whom he discussed with Orenduff; (2) whose layoff lie recommended to Orenduff; and (3) who should have been retained in his opinion. 10 Orenduff testified that between August 3 and 6, Walborn telephoned the plant from upstate New York "to see how things were going," at which time Orenduff informed him that Orenduff had decided to lay off a group of employees. On the other hand, Walborn testified to the contrary, saying that on August 9, following the expiration of the period for filing objections to the election, lie telephoned the plant to ascertain whether objec- tions had been filed by the Union, that he did not talk with Orenduff, that he talked instead with Rappel, and that Rappel did not inform him of prospective layoffs for the next day. 20 In September 1954 there were layoffs more extensive than the ones under considera- tion. There was no advance notice to employees on that occasion, but the circumstances differ. In contrast with Orenduff's professed contemplation of an economic layoff for approximately 2 months in 1955, lie testified that in 1954 Republic Aviation "sent tele- grains to stop all work immediately . . . [which] required (the Respondent] to shut the whole plant down cold," but that lie immediately talked with Republic Aviation and arranged, for "a stretched-out schedule" which enabled the Respondent to retain about two-thirds of its employees on a decreased number of hours work per day. ORENDUFF & KAPPEL, INC. 881 stated them and studied the signatures. The reason advanced for so doing, that he suspected ,"a fix," could have been eliminated by a telephone call to the addressor, the Regional Office. Sixth, the names of 31 of the 36 laid-off employees were signed to the authorization cards, a ratio of about 6 card signers to 1 nonsigner which contrasts with the ratio of about 1 card signer to 2 nonsigners among the production and maintenance employees. Seventh, Foreman Murray's statement to employees that layoffs would be forthcoming as retaliations for having engaged in union ac- tivity. Eighth, Personnel Manager Mills' statements to York of Liberty Products Corporation concerning Mangels and Quinn. Ninth, the fact that the layoffs were too extensive is indicative that they were made prematurely, without ascertainment of economic requirements. Tenth, the granting of an unusual general wage increase to employees who had not been laid off, 10 days after their return from vacation, is indicative that Orenduff sought to follow up his layoff of most of the union adherents by a maneuver which would erase or decrease any desire of the remaining employees for union representation. I find that by the layoffs the Respondent violated Section 8 (a) (3) and (1) of the Act. Cf. William A. Mosow, 92 NLRB 1727, where the Board found that discharges were unlawful because antiunion considerations prompted acceleration of the discharge dates. Two allegations of the complaint remain to be considered. With respect to the allegation concerning the elimination of overtime on the night shift for July 28 and 29 and July 29 and 30, it is clear that Orenduff regarded that shift as the prin- cipal source of the Union's strength, but I cannot conclude from Orenduff's hos- tility toward the Union that he was unlawfully motivated in the elimination of the 2 hours overtime. The reasons advanced by the Respondent for such elimination are reasonable and I do not believe that the General Counsel has sustained his bur- den of proof in this instance. With respect to the allegation that the Respondent "blacklisted various of its employees because of their" union activities, we have seen that Personnel Manager Mills advised York, the personnel clerk for Liberty Products Corporation, not to hire Mangels- because of his union activities and that Mills made other comments which were calculated to cause that corporation to fail to consider Quinn for employment for the same reason. We have seen too, however, that Mills' statements did not have that effect. Moreover, Mills did not initiate the conversa- tion with York nor did he participate in any concerted plan to deprive Mangels and Quinn of employment opportunities, and we do not have here an instance of blacklisting as I understand that term 21 Nevertheless, it is clear that Mills' advice and statements to York were reasonably calculated to interfere with, restrain, and coerce Mangels and Quinn in seeking employment, and I find that the Respondent thereby violated Section 8 (a) (1) of the Act. I find also that the Respondent vio- lated said section by Foreman Murray's threats of reprisals to employees for en- gaging in union activities. Finally, I find that Orenduff's interrogations of em- ployees concerning grievances at the meeting of night shift employees about July 1, and at the meeting of departmental and shift representatives about July 6, tended to re- strain and to interfere with the employees in the exercise of the rights guaranteed by the Act, and thus were violative of Section 8 (a) (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that, on August 10, 1955, the Respondent unlawfully laid off 36 employees. Of that number, 22 are Complainants herein and their names are set forth in the attached Appendix. A few of the Complainants were offered rein- statement subsequent to August 10. I shall recommend that the Respondent, to the extent that it has not done so already, offer to all Complainants immediate and full reinstatement to their former or substantially equivalent positions (The Chase 21 Labor Terms (Commerce Clearing House, 1955), p. 360; Casselman, Labor Dictionary (Philosophical Library, 1949), p. 34; Peterson, American Labor Unions (Harper & Bros., 1945), p. 251. 450553-58-vol. 118-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Bank, etc., 65 NLRB 827), without prejudice to their seniority or other rights or privileges, dismissing, if necessary to provide employment for those offered and accepting employment, any persons hired by the Respondent on and after August 10, 1955. I shall also recommend that the Respondent make whole each of the Complainants for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from August 10, 1955, to the date of a proper offer of reinstatement, less his net earnings (Crossett Lumber Com- pany, 8 NLRB 440, 497-8) during said period, the payment to be computed upon a quarterly basis is the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. See also N. L. R. B. v. Seven-Up Bottling Company, 344 U. S. 344. I shall also recommend that the Respondent preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of these recommendations. Although it has been found that the layoffs were unlawfully motivated, it is reasonable to believe that one or more of the Complainants would have been included within an economic layoff of employees, from an uncertain date following the vacation period which ended on August 15, 1955, to a later uncertain date during 1955. The record does not afford an adequate basis for determining, however, with respect to all Complainants, which ones would have been affected thereby and to what extent. Accordingly, at the compliance stage of this proceeding, these circumstances may be considered in determining the amount of back pay due to each of the Complainants, but the burden will rest upon the Respondent to disentangle from the consequences of its unlawful conduct the result which would have followed had it laid off employees at a time, and selected them in a manner, uninfluenced by the union activities. It is recommended, therefore, that in any Order herein the Board expressly reserve the right to modify and supplement the back-pay provisions as said circumstances may require. Cf. Lithium Corporation of America, Inc., 116 NLRB 602. In view of the nature and extent of the unfair labor practices committed, I am persuaded that the Respondent's conduct indicates a purpose to defeat the self- organization of its employees and that a danger exists that in the future the Respondent, unless restrained, will engage in other unfair labor practices. Accord- ingly, in order to make effective the interdependent guarantees in Section 7 of the Act, I shall recommend that the Respondent cease and desist from, in any manner, infringing upon the rights guaranteed in said section. N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 61 S. Ct. 693. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. . 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The allegations of the complaint that the Respondent unlawfully eliminated overtime work for the night shift employees have not been sustained. [Recommendations omitted from publication.] APPENDIX W. G. Baldwin Julius Fabian, Jr. Herbert P. Merino Gustav Bender Vincent J. Ferrucci Joseph L. Powers William G. Bishop Fred Kirsch John R. Quinn J. Briand Felix Gomes George Santelli George F. Clement, Jr. Thomas E. Kelly William J. Webbe Peter Conner F. Lang F. Weiss Lawrence Cooley Frederick P. Mangels Robert J. Williams William F. Eberspacher