Harsco Corp.

AINSWORTH PRECISION CASTINGS CO, DIV HARSCO CORP 601 Upon the basis of the foregoing findings of fact , and upon the entire recore in the case, I make the following CONCLTTSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 By discharging Walter Lowry 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 the foregoing conduct the Respondent has interfered with , restrained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged 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 colii- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication 7 Ainsworth Precision Castings Company, Division of Harsco Corp. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and The International Union, United Automobile, Aircraft & Agricultural Implement Workers of America , AFL-CIO. Cases Nos 10-CA--3630 and 10-CA-3969 December 4, 1959 DECISION AND ORDER On June 29, 1959, Trial Examiner George A Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the General Coun- sel, the Respondent, and the UAW filed exceptions to the Intermediate Report and supporting briefs i Pursuant to the provision of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Jenkins] 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 entire record in these cases, including the Intermediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 2 'We hereby deny the UAW's request for oral argument, as the Intermediate Report, -exceptions, and briefs herein adequately eet forth the positions of the parties 2 We have adopted the Trial Examiner's credibility findings in these cases for we are not convinced by a clear preponderance of all the relevant evidence that his credibility resolutions are incorrect Cadre industries Corporation, 124 NLRB 278 125 NLRB No 65 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Ainsworth Precision Castings Company, Division of Harsco Corp., Springfield, Tennessee, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Teamsters, Chauffeurs, Helpers and 'Taxicab Drivers, Local Union No. 327, International Brother- hood of 'Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in The International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or in any labor organization of its employees, by discharging employees and by failing and refusing to reinstate them because of their union mem- bership or other concerted activities, or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment to discourage membership in a labor organization except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) Engaging in surveillance of union meetings, threatening to close the plant if a union should come in, promising reinstatement or other benefits on condition that employees abandon their union activi- ties, threatening discharge and other forms of discrimination against employees because of their union membership and activities, and inter- rogating coercively employees concerning their union membership and activities. (c) 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 the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to James S. Dorris, Robert A. Hulsey, Lonzo Baker, Jr., Ralph Lee Tanner, Veldon E. Porterfield, Billy J. Bilyeu, Kirby D. Bourne, Rayburn Hewitt, John C. Phillips, Fred L. Baker, Carl Gibbs, and William E. Powell immediate and full reinstatement to AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 603 their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any lass of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned from the date of the discrimination against him, as herein found, to the date of the offer of employment or reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498), said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (b) Make whole Fred Middleton for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge on October 1, 1958, to the date of his first reinstatement thereafter, less his net earnings during said period to be computed as above provided. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post in its plant at Springfield, Tennessee, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaints be, and they hereby are, dismissed insofar as they allege unfair labor practices not found to have been committed herein. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 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: 604 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in The International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or in any other labor organization of our employees, by discharging employees or by failing and refusing to reinstate them because of their union membership or other concerted activities, nor will we discriminate in any other manner in regard or hire or tenure of employment or any term or condi- tion of employment to discourage membership in a labor organi- zation, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT engage in surveillance of union meetings, threaten to close the plant if a union should come in, promise reinstatement or other benefits on condition that employees abandon their union activities, threaten discharge or other forms of discrimination against employees because of their union membership or activities or interrogate our employees coercively concerning their union membership and activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist said Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and The International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement authorized by Section 8(a) (3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL offer to James S. Dorris, Robert A. Hulsey, Lonzo Baker, Jr., Ralph Lee Tanner, Veldon E. Porterfield, Billy J. Bilyeu, Kirby D. Bourne, Rayburn Hewitt, John C. Phillips, Fred L. Baker, Carl Gibbs, and William E. Powell immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. . WE WILL make whole Fred Middleton for any loss of pay he may have suffered as a result of our discrimination against him. AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 605 All our employees are free to become or to remain, or to refrain from becoming or remaining, members of the above Unions or any other labor organization. AINSWORTH PRECISION CASTINGS COMPANY, DIVISION OF HARSCO CORP., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Springfield, Tennessee, on April 20-22, 1959, with all parties represented. Separate complaints based on separate charges growing out of separate organizational campaigns waged at different times by the Charging Unions (herein called Teamsters and UAW, respectively), were consoli- dated by order of the Board's Regional Director. Though both complaints alleged discriminatory discharges and various specified acts of interference, restraint, and coercion in violation of Section 8(a) (3) and (1) of the Act, there is no connection between the two save in the circumstance that Respondent was opposed to both Unions and the further circumstance that some of the same employees were involved in both cases. The cases will, therefore, be treated separately except for the com- merce findings and such other general matters as are of common application to both. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATIONS I find on facts alleged in the complaints and admitted in the answers that Respond- ent is engaged in commerce within the meaning of the Act (i.e., extrastate shipments since July 1958 in excess of $50,000) and that each of the Charging Unions is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Case No. 10-CA-3630-The Teamsters case 1. The evidence Respondent, a Michigan corporation and a division of Harsco Corporation, began setting up a new plant at Springfield, Tennessee, in the summer of 1958, and began productive operations some time in July. The alleged unfair labor practices occurred during a brief period beginning September 23, and followed hard on the heels of an organizing campaign during which two employees were discharged immediately after announcement of their leadership of the campaign. Because of dissatisfaction over a wage cut from $1.25 to $1, James S. Dorris and Robert A. Hulsey went to Nashville on the morning of September 23, sought out the Teamsters Union, signed application cards, and procured others for distribution among the employees. When they reported back for work on the afternoon shift, Dorris spoke to their foreman, Charles Wade, Jr., in Hulsey's presence, informing Wade that they had joined a union and were going to help organize one, and he asked Wade to so inform Robert Saunders, the personnel director. The name of the union was not mentioned at the time. According to Dorris, Wade returned around 8 p.m. and stated that Mr. Georges, the plant superintendent, wanted to know what union they had joined, but Dorris replied he was not ready to tell at the time. Hulsey testified, however, that Wade also inquired of him what union he had joined, and that he told Wade it was the Teamsters Union. Wade's testimony was not in substantial conflict with the foregoing. He admitted that, pursuant to Dorris' 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request, he reported the conversation both to Saunders and Georges, though he denied he made any inquiry about what union the employees had joined. Around 8:30 p.m. Georges came up to the machine which Dorris, Hulsey, and Clarence Gregory were operating as a team, examined the machine, took off a part, told Dorris the machine was broken down, and ordered the three men to go home and to report back the next day. Both Dorris and Hulsey testified that so far as they could tell, there was nothing wrong with the machine. Georges did not testify, but Wade testified that the machine was not giving enough "bend" and that two diemen were put to correcting the defect. The next day when Dorris and Hulsey reported for work, Wade handed them layoff slips which assigned inefficiency as the reason and which stated that they were laid off until further notice. The notices were dated September 24, but carried as the effective date September 23. Gregory was not laid off but was assigned to other work. Both Dorris and Hulsey testified that no complaints or criticisms had been made of their work or of their efficiency, and Dorris testified that Wade had in fact "bragged" two or three times that Dorris was doing a good job. Wade testified that the layoff slips came out of the main office and that he delivered them to the men. Wade testified that he did not remember having "bragged" about Dorris' work and that though his work was "all right," his efficiency " wasn't up." Though Wade testified further that the efficiency of both Dorris and Hulsey was "low," he admitted on cross-examination that he meant by that that the output of the machine which they operated together with Gregory "was down," and that Gregory's production was down on the same basis as that of Dorris and Hulsey. Neither Dorris nor Hulsey has been recalled, though Dorris testified that he talked with Saunders several times about going back to work. Both men continued their activities on behalf of the Union. On or about September 26, the Union held a series of organizational meetings at a skating rink some 11/2 miles from the plant. Dorris testified that around 4 or 4:30 p.m., he saw Saunders and Paymaster Coldman sitting in a car on the high- way about 500 yards away. Dorris drove there to verify the identification, and Saunders and Coldman followed him back to the rink and parked some 150 feet away. Dorris went out and asked Saunders what he was looking for. Saunders said at first he was just driving around, but then asked why Dorris did not come to see him before going to the Union. Dorris replied that he had looked for Saunders but could not find him. Saunders then stated, "Well, if it goes union , I'll close the God-damn place down." Saunders also said he believed that Dorris had come there especially to organize the plant. When Dorris denied it, stating that he had tried to make a good hand, Saunders agreed, "I believe you did." Saunders also stated at some time during the conversation that he had had a good job set up for Dorris, who would probably have been making $1.75 an hour if he had left the Union alone. Fred Middleton was hired on September 15. He attended one union meeting at the skating rink on September 26 and signed an application card for the Teamsters. He was laid off on October 1 with a layoff slip, handed him by a guard, which assigned inefficiency as the reason. After 2 or 3 days, Middleton discussed with his foreman, McDonald, the reason for the layoff, and McDonald stated that there was nothing wrong with Middleton's work, that he did not know why Middleton was laid off, and that Saunders made the layoff. When Middleton later inquired of Saunders why he was laid off, Saunders stated that McDonald had laid him off. When Middleton told Saunders that McDonald had attributed the layoff to Saunders, Saunders asked Middleton to return the next day, and then informed Middleton that McDonald had made the layoff and that he (Saunders) knew no more about it. Some 2 or 3 weeks later, Middleton finally renewed his inquiry in the presence of both Saunders and McDonald. Saunders raised the question whether a charge had been filed on Middleton's behalf by the Union, and when Middleton acknowl- edged the fact, Saunders replied that since Middleton had been "so honest," he would be put back to work, and asked whether Middleton wanted Saunders to put him back to work or wanted to wait and let the Union put him back. Middleton replied that all he wanted was his job back. Saunders added that, "if you will leave the Union alone, I'll raise your pay." Middleton returned to work the next day. Lonzo Baker, Jr., was hired on July 21, attended union meetings at the skating rink in September and signed a card for Teamsters around September 26. Baker testified that while he was at the rink around 6, 6:30, or 7 p.m. on September 26, he saw Saunders and Coldman in their car some 80 to 100 feet away. Baker was laid off around October 1 with a slip which assigned inefficiency as the reason, AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 607 though he testified there had been no complaints about his work. Some time after a charge was filed in Baker's behalf with the iBoard, Saunders reinstated Baker. Though charges were also filed by Teamsters on behalf of Margie Farmer and Wendell Draughon and though the complaint included them, neither was called to testify and no evidence was offered which would support a finding that Respond- ent was discriminatorily motivated in laying them off. The General Counsel also offered testimony by Fred Lee Baker concerning a conversation with Foreman Cunningham during which Cunningham allegedly cursed the Teamsters Union and stated that its backers should be throw into the river. Baker's testimony was so conflicting and contradictory as to the time of the incident that it cannot be credited over Cunningham's denials that such a conversation oc- curred. Indeed, the General Counsel assumed as late as the opening of the hear- ing that the matter related to the UAW case, and amended his complaint in that case to include Cunningham among those through whom Respondent had allegedly made coercive statements concerning UAW membership and activities. The General Counsel also offered testimony by Kirby D. Bourne that he over- heard Foreman Morris Heath question an employee about attending a union meeting and signing a Teamsters' card (denied by Heath), but the General Counsel dis- claimed reliance on the matter as an 8(a)(1) violation. 2. Concluding findings As Respondent did not call Saunders or other witnesses who might have cor- roborated him (McDonald, Georges, or Coldman), the testimony of the General Counsel's witnesses stands undenied as to Saunder's acts and statements. A plain case of discrimination was made out as Dorris and Hulsey, whom Respondent dis- charged 1 immediately after hearing that they were heading up an organizational campaign. Whether the machine breakdown was genuine or a pretext, it was plain from the surrounding circumstances and the subsequent developments that Respond- ent wished to rid the plant of the two confessed organizers as quickly as possible. Thus, though the three-man crew was ordered to report the next day, Dorris and Hulsey were met with a layoff slip whose effective date was the preceding day. Significantly also their teammate, Gregory, was retained and assigned to other work, though his production was obviously comparable with theirs, as Wade admitted. Respondent's defense to the discharges rested on Wade's testimony, on figures which it presented as to the overall efficiency of the department, and on testimony by Personnel Director Michael Bazzy (who succeeded to the job on March 6, 1959), that Dorris and Hulsey did not measure up to it. That evidence was wholly un- persuasive, however, in the light of Respondent's precipitate action, its retention of Gregory,2 and its failure to refute the evidence of Saunders' statements during his surveillance of the Union on September 26. Whatever doubt may otherwise have existed was dispelled by the undisputed evidence that Saunders then charged Dorris with having come in especially to organize the plant, his statement that Dorris would have been given a better job if he had left the Union alone, and his threat to close the plant if the Union came in. It is thus plain from the entire circumstances that Respondent's claim of inef- ficiency was but a pretext, not the real reason for the discharges, and that Respondent discharged Dorris and Hulsey because of their admitted leadership of an organizing campaign. It is so found. The evidence in Middleton's case is not substantially less plain. The passing of the buck back and forth between McDonald and Saunders concerning Middleton's layoff, McDonald's failure to verify the assigned claim of inefficiency, and the cir- cumstances of Saunders' reinstatement of Middleton with the promise of a raise if Middleton would leave the Union alone establish here, too, the fact of Respondent's discriminatory motivation. Respondent's figures on efficiency cannot alone over- come the force of the undenied statements made by Saunders. It has already been found that the General Counsel did not make out his case for a discriminatory discharge of Farmer and Draughon. Neither will the evidence i Though the notice purported to constitute a layoff, it was plain from all the evidence that Respondent had no intention of recalling them and that the action was intended to effect a permanent separation. -'Though Bazzy's figures purported to show that Gregory's average efficiency was some 14 to 17 points higher than Hulsey's and Dorris', respectively, he admitted he had not known before the hearing that the three men worked on the same machine but contended that they might not always have done so. I do not credit his explanations since they were based on speculative matters of which he had no first-band knowledge. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support a finding that Lonzo Baker, Jr., was discriminatorily discharged. There was no evidence either that Respondent was aware of Baker's union membership or that he was laid off or discharged for that reason. Baker's presence at the skat- ing rink will establish neither of those indispensable ingredients of a case. There were not only some 30 to 35 employees in attendance at the time, but Saunders' car was too far away (150 feet according to Dorris) to have enabled Saunders to identify individual attendants within the tent. Indeed, Baker's testimony that he recognized Saunders and Goldman is suspect, since he fixed the time as between 6 and 7 p.m., CST, which would have been at dusk, if not after dark, in late Septem- ber. It will therefore be recommended that the complaint be dismissed as to the discharges of Farmer, Draughon, and Baker. It is further concluded and found that by Saunders' surveillance of the union meetings, his threat to close the plant if the Union came in, his statement that Dorris would have been given a better job but for his union activities, and his promise of a raise to Middleton if he would abandon his union activities, Respondent engaged in interference, restraint, and coercion within the meaning of Section 8(a)(1). Since Dorris and Hussey volunteered to Wade their intention of organizing a union, Wade's inquiry of them as to what union they had joined did not constitute coercive interrogation. B. Case No. 10-CA-3969-UAW 1. The evidence a. Introduction The UAW case concerns alleged discriminatory discharges of some 22 employees,3 all except 1 of which (Bob Johnson, Jr., on November 26) were made in January 1959, and specified acts of interference, restraint, and coercion, most of which also occurred in January. UAW began an organizational campaign late in October which was still con- tinuing at the time of the hearing. Several meetings were held from October up to Sunday, January 4, 1959, at which time an organizing committee was set up. The evidence established that all of the alleged 8(a)(3)'s except Johnson, Brown, and Porterfield were put on the committee and were given committee badges or buttons which they began wearing in the plant around January 5 or 6. The badges were large circular buttons, about 2 inches in diameter, which bore the legend: VOTE-JOIN-UAW-CIO ORGANIZING COMMITTEE The layoffs complained of were made during the period from January 6 through 26, and with one exception (Billy J. Cook) were for the assigned reason, "Reduction of Force." Respondent offered evidence that, due to diminution of its business, it was neces- sary to reduce its force in January, and its defense, except in Cook's case, was that the layoffs were made for that cause. Though, as will be seen, the General Counsel offered considerable evidence of a cumulative character as to Respondent' s anti- union animus and of its desire to eliminate the button wearers (a substantial portion of which was not denied), it was plain from all the evidence that economic justifica- tion existed for reducing the work force and that certainly some of the button wearers would inevitably have been reached in any reduction in force of the scope which Respondent was making. The issue thus becomes, as most of the individual cases are considered, whether Respondent's selection of the employee was motivated by a desire to eliminate a member of UAW's organizing committee or whether it was a bona fide choice made in the exercise of managerial prerogatives. . As there was a relatively heavier concentration of button wearers, of alleged 8(a)(3)'s and of evidence relative to discriminatory motivation, in department 45 (polishing and buffing), the summary of the evidence will begin there, though preliminarily we should consider the testimony of Lloyd E. Hinkle, which, if credited, would show that Respondent's general intent was to remove the button wearers in, 3 Bob Johnson, Jr., Landis Brown, Lee Pearson, Billy J. Bilyeu, Ralph Lee Tanner, Veldon E. Porterfield, Lonzo Baker, Jr., Carl Gibbs, Callie Mae Pearson, James R. West, Wilburn L. Tretter, Fred L. Baker, John C. Phillips, Rayburn Hewitt, Kirby D. Bourne, Leonard Al. Fisher, Billy G. Bolton, Billy J. Cook, Bonnie L. Croslin, Fred Middleton, William E. Powell, and Richard M. Langford. No evidence was offered concerning Bob Johnson, Jr., and Landis Brown. Though the General Counsel did not call Billy J. Bilyeu and Wilburn L. Treater, he presented evi- dence through other witnesses concerning them. AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 609 all departments. Hinkle, an exsupervisor, who quit just before the hearing, testified concerning alleged instructions issued in December or January by Locks, the plant manager, that foremen were to turn in the names of employees who wore union buttons, that Locks would take steps to lay off such employees, and that he would also discharge foremen who failed to report the button wearers. Hinkle's testimony cannot be credited in view of the animus which was developed on cross-examination, in view of the denials of several of Respondent's witnesses (other supervisors) that Locks had issued any such instructions, and in view of the fact that no foremen were discharged or reprimanded for failure to comply with Locks' alleged direction. b. Department 45 The following employees in department 45 were laid off: Lonzo Baker, Jr., Ralph Lee Tanner, Veldon E. Porterfield, and Billy J. Bilyeu, January 7; Kirby D. Bourne, Rayburn Hewitt, John C. Phillips, and Fred L. Baker, January 12. All of them had signed with UAW, had been put on the organizing committee, and all except Porterfield had begun wearing committee buttons on or shortly after January 5. Walter Duzynski was supervisor of the department and two of his foremen (stipulated to be supervisors) were Bill Petrin and Marvin A. Farmer. The General Counsel's witnesses attributed to all of them, as well as to Personnel Director Saunders, various statements which, if credited, will establish both interference, restraint, and coercion, as well as a discriminatory motivation. Nathan G. Felts (a non-8(a)(3)) testified that he was not on the committee but began wearing a smaller union button around January 6. After about 4 hours Foreman Duzynski told Felts that he was a good man whom Duzynski needed, that the personnel manager was going to get rid of everybody who was wearing a button, and that Duzynski would like Felts to remove the button. Felts did so and was not laid off, though he quit about 2 weeks later. Fred L. Baker, who was working in department 45 in January under Foreman Duzynski, began wearing his committee button on January 5. Shortly thereafter, Saunders spoke to him in the plant, telling him that he had a nice job and a good chance of advancement, but that if he did not take the button off he would lose his job. Baker was laid off on January 12. There was no testimony concerning the circumstances of that layoff, though Foreman Cunningham (department 20) testified to an earlier layoff of Baker in his department. Phillips testified that after Farmer handed him the layoff slip in Foreman Petrin's presence, Petrin stayed on and told Phillips the layoff was probably temporary and that Phillips would be called back shortly. Petrin then referred to the committee button which Phillips was wearing and said that he never expected to see Phillips wearing it in the plant and that Phillips should not "come floating that button back with [him]" when he was called back. Also pertinent to Phillips' layoff was the testimony of Billy G. Bolton, infra, p. 614, that Farmer complained that Bolton had gotten Phillips (his best man) fired because Bolton had gotten Phillips to join the Union. Lonzo Baker, Jr., testified that on the first day he began wearing his committee button his regular foreman, Farmer, ordered him to report for work to Foreman Petrin. Petrin looked at his union button and asked Baker what he was doing with it and told Baker that he did not have a job if he did not pull it off. When Baker refused, Petrin ordered him to wait there, and returned in a few minutes and told him to report back to Farmer. Some 30 or 40 minutes later Petrin, Farmer, and Sam Woofruff (the timekeeper) gathered at the foreman's desk, and a few minutes later Farmer asked Baker for his badge number, telling Baker "they're going to turn you in." When Baker replied that they had no right to do that, Farmer told him "they would get rid of [him] one way or the other." Baker also testified that when he was laid off on the 7th, he asked Farmer whether Farmer would rather have him than the 20 new employees whom Farmer had hired the preceding Friday, and Farmer agreed that he would, but said that it was "personnel" which was responsible. Tanner testified also that new employees were hired in department 45 the night he was laid off, and that when he asked Farmer the reason, Farmer stated that it was the Company's doing. Tanner testified further that he spoke to Saunders on the day of the open house party (January 9), asking whether Saunders would give him his job back if he would forget about the Union, Saunders replied, "Well, you come back Monday and we'll fix you up." Tanner did not report because he had definite assurance of a (seasonal) job at a tobacco warehouse, though he later made several applications to a Mrs. Jones, to Mr. Charles Ralph (who succeeded Saunders), and to Mr. Michael Bazzy (who succeeded Ralph). 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hewitt testified that Farmer ,told him on January 12 that he and Phillips were being laid off that night, that he had nothing to do with it, and that Hewitt , Phillips, and George Vogle (a nonbutton wearer) were his three best buffers . Hewitt also testified that some time prior to his layoff Farmer inquired of him whether he knew why Porterfield had not attended any union meetings . When Hewitt answered that he did not know, Farmer replied , "Well, his name has been turned in anyway." Porterfield joined UAW and participated actively in the campaign but did not wear a union button . He testified that on the night of his layoff Farmer inquired if Porterfield's badge was No. 389, and told Porterfield he was going to be laid off for reasons unknown to Farmer and that Porterfield was one of his best buffers. Farmer renewed the conversation later, inquiring whether Porterfield had been wearing a union button in the plant . When Porterfield denied doing so, Farmer continued, "Well, have you been talking any union anywhere in the plant? The plant protection could have heard you?" Porterfield talked further with Farmer at the open house party, and Farmer then told Porterfield he had spoken with Saunders about Porterfield, had informed Saunders that he must have the wrong man because Porterfield had not worn a union button , and that Saunders replied, "Well, his name was handed in with all the rest of the gang . . . all of them were investigated." Both Porterfield and Kirby Bourne (January 12) also testified to the hiring of a number of new employees a few days before their layoffs. Although Billy J . Bilyeu was not called as a witness, there was testimony by Tanner and Lonzo Baker, Jr., that Bilyeu was laid off on January 7 when they were, and that Bilyeu wore an organizing committee button on the job. Respondent did not call Duzynski or Petrin to testify in denial of any of the statements which were attributed to them; it rested its case in this department on the testimony of Foreman Farmer except for certain testimony by Bazzy (summarized in section h, infra) which dealt generally with the economic justification for the January layoffs. Briefly stated , Farmer denied so much of the testimony of the General Counsel's witnesses as attributed to him the statements suggestive of a discriminatory motiva- tion , though he made no specific denial of Porterfield 's testimony concerning union buttons and union talk nor of the conversation at the open house at which he reported to Porterfield the results of his talk with Saunders . Farmer also testified disparagingly of the efficiency of some of the 8 (a)(3)'s, and denied that they were in fact his best buffers , though he conceded that Porterfield was "a fairly good man" and that he was somewhat surprised when Porterfield was laid off . Farmer also admitted that some ("not many" ) new employees were hired in his department. Farmer testified that there were approximately 21 employees in his department on the night shift at the time of the layoff; that there were 11 on it at the time it was closed down completely shortly before the hearing; that he did not select Porterfield or Phillips for layoff; that they were chosen either by the office or by Duzynski or by Petrin ; and he explained his selection of the others on the following basis: Six employees were laid off at the same time as Tanner and Bilyeu, who were new employees and who had worked only for a short time. No denial was made of Tanner's testimony, however, that he was hired in October . Bourne was chosen because of inefficiency , though the layoff slip specified reduction in force. Bourne has not been replaced and no work is being done of the kind which Bourne was doing. Lonzo Baker, Jr., was on the assembly line on the night shift which was laid off, and Hewitt, though not on that line, was laid off later when the lack of work necessitated further cuts . No reference was made to the layoff of Fred L . Baker. The cumulative weight of the testimony of the General Counsel's witnesses, cou- pled with Respondent's failure to corroborate Farmer (particularly since there were instances where corroborative witnesses were available ), and its further failure to offer denial of similar (and stronger ) statements of the same type which were attributed to other supervisors and to the personnel director , impel the rejection of Farmer's testimony. c. Department 15 Carl Gibbs, Callie Mae Pearson, and James R. West were laid off in this depart- ment on January 8, Leonard M. Fisher on January 12 , and William E. Powell on January 19 . All of them were on the organizing committee and all began wearing committee buttons on January 5. Ralph Berry was production superintendent over this and other departments, I-Inward Allor was supervisor, and the foremen were Charles W. Starks, Lloyd Hinkle, and Bales. James R. Wilson testified that though he signed a UAW card in December the Company never learned of it, and that when he was made a working supervisor in AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 611 department 15 in early January under Berry and Allor,4 Berry told him that he had a future with the Company but he could only be on one side, and that when some of the employees began wearing union buttons, Berry told Wilson, "don't give me their names. Just take their number and turn it in." Some 2 months after the layoffs Wilson was himself demoted and then laid off in a further reduction in force. Berry denied telling Wilson or anyone else to report employees who were wearing union buttons, and Wilson admitted he did nothing to carry out Berry's orders despite the fact that Gibbs, West, and Pearson wore buttons. Resolution of this head-on credibility issue between Wilson and Berry turns on three factors: Wilson's divided loyalties, his own layoff, and his admission that he made no attempt to carry out Berry's orders. In the absence of other corroborative evidence those factors tip the scales to acceptance of Berry's denials. Wilson testified further that Estellene Stewart once came in with a button and he advised her to take it off because he did not want to see her go. Stewart removed the button and was not laid off at the time. Indeed, Bazzy testified that Stewart was still employed at the time of the hearing. Pertinent to Respondent's defense was Wilson's further testimony on cross- examination that he and Allor checked the efficiency of the employees regularly and that the practice was to lay off the slow ones. Carl Gibbs was hired in October as an inspector on the second shift under Russel Freyer, who was a foreman under Chief Inspector Morris Heath. Gibbs inspected in department 15 until a few days before his layoff and was then transferred to departments 5 and 10. Gibbs testified that on December 23, Freyer informed him that Heath said that Gibbs should keep his mind off the Union and keep it on his tubes. Fred Baker, in whose presence Freyer repeated the remark, testified that Freyer's warning from Heath was that Gibbs might lose his job unless he got his mind off the Union. Freyer was not called in denial of the foregoing. Heath denied ordering Freyer to warn Gibbs. He testified that Gibbs was one of the four inspectors whom he laid off on January 8 pursuant to instructions to lay off four men on indirect labor; that he selected Gibbs, who was the least experienced in the department; and that he did not know Gibbs was a union member and never saw him wear a union button. Indeed, he testified that he never saw anyone wearing a union button inside the plant. Heath also testified that his department was ulti- mately reduced from 54 inspectors to 30 or 31, at which the complement remains; that he has not recalled Gibbs though he has recalled three other inspectors who were laid off before Gibbs was and that he had chosen them on the basis of their performance and ability. Though Heath denied at one point that he had ever discussed Gibbs' qualifications with any of his foremen, he claimed later he had discussed the matter with Freyer. William E. Powell was hired in September and was a stock chaser on the first shift in department 15 when he was laid off on January 19. Powell testified that on January 5 he overheard a conversation between Foremen Bales and Hinkle during which they commented on the wearing of union buttons, that Bales referred to Powell as one who was doing so and said he did not know whether Powell would be there at 3:30 (quitting time). Hinkle corroborated Powell's testimony, but testified that Bales was joking at the time. Powell testified further that he met Foreman Allor and Bales at the Company's open house party on January 9, that Allor asked him where he had gotten the union button which he was wearing, that he folded Powell's coat over the button and told him he had better leave it covered up, and that he had never told Powell "wrong" in his life. Powell testified that he did not think that Allor was joking. Powell also testified that on an earlier occasion he heard Allor make the statement that management had been "pretty sharp" about getting rid of union members. Allor denied making the statements which Powell attributed to him, and testified he could not recall having seen Powell at the open house.5 Powell testified that some 8, 10, or 12 employees were laid off in his department, that he and a Mrs. Wood was the only two button-wearers left at the time, and that when they were laid off Starks and Hinkle commented "Well, there goes the last S Wilson's testimony made out a prima facie case of supervisory status (assignment of work, transfers from job to job, reprimands, and effective recommendations for layoff), and Respondent offered no refutation though Berry and Allor both testified. u Respondent did not call Bales either in denial of his own statement or to support Alior's denial of the open house conversation. Furthermore, Powell's testimony received indirect corroboration from the evidence that other supervisors were currently engaged in a similar course of coercive conduct. Powell's testimony is therefore credited. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two. We don't have no more Union buttons around here." Starks denied making any such statement. Powell testified that he was replaced by Dale Mann whose badge number was No. 673. As Powell's badge was No. 240 and as the numbers were assigned in rota- tion in the order of hiring, Powell was obviously an older employee than Mann. Indeed, Bazzy testified that Mann was hired on January 6.6 Callie Mae Pearson testified that after she began wearing a committee button, Starks asked her if money meant so much to her and continued by asking whether she would not prefer to work throughout the year rather than to work part time and to be laid off part time. Pearson replied that she would not pull off her union button for anyone. Starks did not deny the conversation, which despite Pearson's interpretation, constituted no more than a privileged expression of opinion or argument (see Section 8(c) and see Carolina Mirror Corporation, 123 NLRB 1712). Starks testified that Berry directed him to cut off two employees, that he recom- mended Pearson for layoff because he was shutting down the line on which she was working and on which she was experienced, that her work was below average on production, and that he had in fact cautioned her because of her faulty operations. Starks also selected for layoff Peggy Bushane, who did not wear a union button, and he denied that union activity or the wearing of the button played any part of his selection of Pearson. Pearson admitted that Starks "complained" about her work after she started wearing a union button, but testified that Saunders complimented her on her work. Fisher was hired in September for the strip tank and was later transferred to department 15 under Foreman Bales and Supervisor Allor. Though Fisher testified that an employee named J. B. Biggs was hired in his department after he was, Personnel Director Bazzy testified that Biggs was hired for department 15 on Sep- tember 23, and still remained in it. Allor testified that he selected Fisher during the reduction in force because in his opinion Fisher was the least efficient employee and that he warned Fisher possibly three times about his efficiency. Allor testified that to his knowledge Fisher did not wear a committee badge, that he did not know that Fisher was a member of the Union, and that his selection of Fisher was based only on Fisher's relative ineffi- ciency. Fisher testified that he did not "think" that Allor had warned him about his efficiency and that he did not remember. He admitted that he never discussed the Union with Allor. James R. West testified that on the night of January 6, after he began wearing a committee button, Starks commented, "I thought you were against the Teamsters Union." When West explained that it was a UAW button, Starks continued, "Well, you know that button might get you fired . . get your job," and "Well, anybody that is caught wearing these buttons won't be here long." At the end of the shift on January 8, Starks banded him a layoff slip with the statement, "This is it." Starks denied making the statements which West attributed to him and testified that he made no recommendation as to West's layoff, but that Superintendent Berry informed him that West was to be laid off. Berry testified that he made the decision to lay off West along with four other employees in the department during a reduction in force; that he did not know about and did not consider West's union membership; that West was selected because his job performance was unsatisfactory, because West had been under suspicion for some time for bringing liquor into the plant,7 and because of his police record about which Berry had learned shortly before the layoff. West admitted on cross-examination that he had been twice convicted of crimes (contributing to the delinquency of a minor and buying and receiving stolen prop- erty) and that he had served penitentiary terms of 1 and 2 years, respectively. He testified however that Saunders had questioned him about those convictions (which he had not listed on his application for employment) some 2 weeks after he was hired but had sent him back to work. West admitted further than Saunders once questioned him, about a month before the layoff, concerning complaints by a guard that West was selling whiskey on company premises but had ordered him back to° work when he denied the charge. 6 Though Powell testified that a George Roth (or Rolf) had commented after his lay- off that his work was satisfactory, Bazzy's testimony showed that Roth was not a supervisor and was not responsible to anyone at the plant. 7 The suspicion was based on West's unexplained absences from the plant and the fact that drinking was more prevalent in department 1.5 in which West was employed. Fore- man Bales, who was also under suspicion with West, was also discharged shortly after West. AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 613: As is seen, West acknowledged both his prior convictions and the fact that he had been charged with bringing liquor into the plant, thus lending substantial con- firmation to Berry's testimony. Furthermore, the crimes for which West stood convicted were of such a character as to warrant rejection of his testimony where denied and where no corroboration was offered. Crown Corrugated Container, Inc., 123 NLRB 318. West's testimony cannot therefore be. credited over Berry' s testi- mony, nor over Stark's. Though Saunders was not called, the evidence did not show that he participated in making the layoff. Furthermore, Berry's testimony showed that West's continued connection with plant drinking was suspected after Saunders charged him with it, and that drinking in department 15 was more notice- able in January than it was before. d. Department 10 Lee Allen Pearson was laid off January 7, Billy J. Cook on January 14, and Bonnie L. Croslin on January 19. They all began wearing their committee buttons around January 5. Elbert L. Moss, an employee in department 5, testified that early in January he overheard a conversation between employee Wilkes and Paymaster Coldman in which Wilkes commented on the advent of the union buttons, and Coldman replied that they would not be in there long. Coldman added that he was going to Nashville for 2 hours, pointed to two employees in department 10 who were wearing union buttons, and directed Wilkes to get their badge numbers while he was gone.8 Lee Pearson testified that he was hired in late October as an inspector, was trans- ferred to department 55, was laid off for 3 weeks in a reduction in force, and was recalled in December for work as an inspector in department 10, which was under Foreman Wade. Pearson testified that after he began wearing a committee button on January 5, Wade told him that the button would cause him to lose his job. Wade testified that he did not know Pearson and denied making the statement which was attributed to him. Resolution of that conflict requires consideration of further details. Though inspectors actually performed their work in various sections of the plant, they were attached to department 87 under the chief inspector under whose supervision they worked (cf. Carl Gibbs, supra). As Pearson had been assigned to work in depart- ment 10 only a short time, Wade's denial that he knew Pearson was not of itself suspect. Furthermore, when Pearson was asked whether anyone had spoken to him about wearing a union button, he first answered, "Well, just some of those boys there in the plant said it would get me laid off," and it was only after further prodding by the General Counsel that Pearson added that a foreman, Wade, had also so stated. Pearson's first spontaneous identification of "some of the boys" and his reluctance to identify Wade persuade me to accept Wade's testimony. Croslin was hired in August, was transferred two or three times, and was working in department 10 when he was laid off. Berry testified that he selected Croslin for layoff because of his inefficiency, his poor job performance, and because he stood around a lot without producing. Berry knew that Croslin was active in the Union and wore a button, but denied that that fact played any part in his decision. Croslin admitted knowing that the Company was checking on efficiency in his department and was attempting to raise it. Billy J. Cook was hired in November and was working in department 10 under Foreman Berry when he was laid off with a slip which assigned refusal to do work as the cause. Berry testified that he questioned Cook (who was being paid by the hour) about why he had stopped work and that Cook stated that he had produced enough pieces for the day to constitute a days' work and was not going to do any more. Berry took Cook into Saunders' office and told Saunders that so far as he was concerned Cook was through and should be discharged. Berry denied that Cook's union activities entered into the decision. Cook admitted on cross-examination that Berry criticized him on the afternoon of the layoff for not making production on his machine, and admitted further that Saunders talked to him and asked him why he did not run his machine faster. Thus Cook's testimony ultimately lent substantial corroboration to Berry's testimony that 8 Though the General Counsel withdrew a proffered amendment relating to an inde- pendent 8(a)(1) violation through Coldman when Respondent represented that Coldman was in the hospital and could not have visitors, the foregoing evidence was plainly relevant on the question of Respondent's discriminatory intent. Though it is assumed that Cold- man was unavailable as a witness, Respondent offered no explanation of its failure to call Wilkes. Moss' testimony is therefore credited. 535828-60-vol. 125 . 4 0 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cook's failure to produce lay at the root of his troubles with the Company. Berry's testimony is therefore fully credited. e. Department 40 Fred Middleton was reinstated by Saunders under circumstances set out under Case No. 10-CA-3630, supra. After two or more transfers, he was laid off again for about a month in a reduction in force, but was recalled before Christmas and assigned to department 40 under Foreman Louis Amiels. On January 19, Amiels laid off nine employees, including Middleton, and told Middleton that the Chrysler glass was on strike and that Middleton would be called back. Middleton testified that after he began wearing his committee button around January 5, he overheard a conversation between Amiels and Wendell Draughon in which Amiels told Draughon that unless Middleton pulled off his union button, he would be fired. Middleton sought reinstatement from Amiels after the layoff and was told that the way things were looking, he would probably never be called back. At that time Middleton saw employees working in the department who were not there when he was laid off. Amiels testified that the reduction in force was occasioned by a strike at Pittsburgh Plate Glass ( see section h, infra), that the entire Chrysler line was shut down except for the Imperial section , for which glass was available, that he did not know Middleton wore a union button, and though he knew "indirectly" of Middleton's union affiliation, that fact did not influence his selectior, of Middleton. Amiels denied as false Middleton's testimony concerning a conversation with Draughon. If Amiels had stopped at that point, the issue as to Middleton would have been easier to decide. Not satisfied with his first explanation , however, Amiels went on to testify that he made the layoff on the basis of an efficiency classification which he had made of the employees (as A, B, and C), that employees with C ratings were laid off first, that B's were kept, if possible, and that A's were very good employees. He testified that he had rated Middleton as a C because he could do only one job, and that some of the nine were B's, but were laid off because they were on the Chrysler line. It developed on cross-examination, however, that Amiels had not made the alleged classification until some time after the layoff, and he then en- deavored to explain that if he had rated Middleton, he would have rated him as a C, and he adhered to his original testimony that Middleton was laid off along with the entire Chrysler line. f. Department 72 (tool crib) Billy G. Bolton was the sole attendant in the tool crib under Supervisor Henry L. Lamb (of receiving and shipping) when he was laid off on January 14. Bolton testified that after he began wearing his committee button on January 8, Jim Bracey, who directed the employees in the department in Lamb's absence,9 put his finger on the button and warned Bolton that he had better watch it. Bolton also testified that Supervisor Farmer of department 45 approached him I day after John Phillips was laid off and asked why Bolton had gotten his best man (Phillips) fired. When Bolton denied having gotten Phillips fired, Farmer con- tinued, "Well, you got him to join the Union, didn't you?" Farmer's denials are not .credited. See section b, supra. Lamb testified that Bolton was informed on the 13th that he would be laid off the next day because the Company was going to cut out the tool-crib attendant on the night shift. The next afternoon Lamb was called into the personnel office and asked what he knew about Bolton having made a blackjack. Bolton was called in and admitted having made one. Lamb testified however that the blackjack had no con- nection with the layoff because Bolton had already been notified that he was being laid off. Bolton has not been replaced; the night foreman issues the tools on the night shift on which only a skeleton crew is presently employed. Bolton admitted that he had made a blackjack out of scrap on the night before his layoff, and that he was caught by the guard and reported -to Saunders, who questioned him on the 14th shortly before the layoff. Bolton denied he already knew 9 Respondent's counsel refused to stipulate that Bracey was a supervisor and represented that he was a receiving clerk. Bracey was not called. Lamb, who testified concerning the circumstances of Bolton's layoff, (lid not deny Bolton's testimony that Bracey directed the employees in his absence. As Bolton's testimony made out a prima facie case, it is found that Bracey was a supervisor within the meaning of the Act. Though the General Counsel disclaimed reliance on the Incident as a violation of Section 8(a) (1) (presumably because it was not pleaded in the complaint), he relied on it to establish the discriminatory motivation of Bolton's layoff. AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 615 at that time that he was going to be laid off, and testified that when Lamb handed him the layoff slip about 15 minutes later, is assigned reduction in force as the reason. Bolton also admitted on cross-examination that he had pleaded guilty on a charge of third degree burglary for which he had received a 6-month suspended sentence and that he did not list the conviction on his application for employment. Lamb's testimony is credited as to the circumstances of the layoff and that Bolton had been informed in advance of the blackjack incident that he was going to be laid off. On February 20, Locks wrote Bolton that because of drastic reductions in the production schedule he was being permanently separated from the payroll and could be given no assurance that he would be recalled. g. General maintenance Two discriminatory discharges (Richard M. Langford and Wilburn Tretter) are claimed in this department, which was supervised by Fred Satterly. Though Tretter was not called as a witness, there was testimony that he began wearing a union but- ton on January 6. He was laid off on January 10 by Satterly. Langford, who worked on the third shift, was laid off first on January 19, was re- called on January 21 on the second shift, and was laid off again on January 26. Only the latter layoff is claimed to be discriminatory though Langford continued to wear his committee button until his second layoff. Another employee named Barfknecht, who did not wear a union button, was laid off along with Langford on both oc- casions. Langford testified (and Satterly agreed ) that there was no fault to find with Langford's work. Satterly testified that he was ordered to make a reduction in force, that he cut out the third shift on which Langford was the only employee and the newest employee in the department , and laid off one other employee from each of the other shifts (Barfknecht and Tretter). He testified that after their first layoff, Barfknecht and Langford were called back for a few days emergency work and were then laid off again. Satterly denied seeing Langford wearing a union button but admitted that he noticed that Tretter was wearing one the night he laid him off. He testified that he selected Tretter for layoff because Tretter was doing the least work of all the men on the maintenance crew, though he had more seniority than some other employees who were retained on his shift, and that the 35 employees in his department were ultimately reduced to around 20 or 21, at which the complement remains. h. Economic justification; Bazzy's testimony Aside from the testimony of various supervisors which has been summarized under the particular layoffs with which they were connected, Respondent offered the testimony of Michael Bazzy, who became personnel director on March 6 and who was formerly an adviser in manufacturing and production control. Bazzy testified that the reduction in force was necessitated by the Pittsburgh Plate Glass strike, which left Respondent with little glass in stock, and that it also received a telegram from Chrysler requesting it to cease shipments. Bazzy testified that after the strike was settled, Respondent was able to use some of the employees on the Ford line to run the Chrysler line and that, despite the fact that automobile production later increased rapidly, Respondent did not receive its share of the business. Though Bazzy was questioned preliminarily about certain compilations concern- ing the production or efficiency of certain employees, Respondent's counsel con- ceded that its defense was not based on inefficiency except to the extent that some ,of the foremen had testified that they had chosen particular employees for that rea- son during the reduction in force. When the General Counsel moved for production of the original records, Respondent withdrew the tendered compilations and aban- doned the questioning of Bazzy on the point. Bazzy identified and explained a schedule of terminations prepared at his discre- tion, which showed in part that a heavy reduction in force had occurred in January (87) and in February (78) and that the total working force had been reduced from 452 around January 15 to 317 through April 15. Bazzy testified further that since becoming personnel director he had hired only two new employees to do tool and die work, for which none of the plant employees were qualified. Bazzy admitted, ,however, that Dale Mann was hired on January 6, under badge No. 673, and that at the time of the hearing Respondent had an employee named Rush, whose badge number was 710, which he admitted would indicate that 37 employees had been hired since January 6. The latter testimony thus tended to confirm that of several of the General Counsel's witnesses (not otherwise refuted by Respondent) new em- -ployees were hired in their respective departments shortly before their layoffs. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Concluding findings a. Section 8(a) (1) It is concluded and found that by the various threats of discharge and of other forms of discrimination by supervisors (Duzynski, Petrin, Farmer, Allor, and Freyer) concerning the wearing of union buttons, by the promise of reinstatement (by Saunders) on condition that an employee abandon the Union, and by the interroga- tion of employees (by Petrin, Farmer, and Allor) concerning their union member- ship and activities, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act.lo b. Section 8(a) (3) The cumulative evidence summarized under section 1, supra, particularly the various threats of discharge directed at the wearers of committee buttons, plainly established for the General Counsel a prima facie case of discriminatory motivation as to all of the employees named in the complaint (except Johnson and Brown-see footnote 3). As Respondent's evidence established in turn that economic factors justified the making of substantial layoffs, it was obvious that some of the button- wearers would inevitably have been included. The problem is one of determining whether Respondent's evidence, as applied to consideration of individual cases, was adequate to overcome the strong prima facie case which the General Counsel made out 11 and to establish that particular selections were bona fide ones, unrelated to the wearing of committee buttons or other union activities. Though individual consideration is necessary in most cases, that is not so as to. the layoffs in department 45 where the evidence as to the hiring of numerous new employees on the eve of the layoffs and their retention in preference to experienced hands negatived Respondent's defense that its selection was bona fide in any of those cases. Porterfield's case was no different from that of the seven button-wearers since the evidence showed that Respondent considered him to be grouped with them in the union activities. It is therefore concluded and found on the entire evidence that Respondent discriminatorily discharged 12 Lonzo Baker, Jr., Ralph Lee Tanner, Veldon E. Porterfield, and Billy J. Bilyeu on January 7, and Kirby D. Bourne, Rayburn Hewitt, John C. Phillips, and Fred L. Baker on January 12, 1959. The remaining discharges will be considered individually in the same order as followed under section 1, supra. Gibbs' work as an inspector, though done in department 15, was supervised by Chief Inspector Heath. The General Counsel relied on Freyer's warning to Gibbs, repeated, before Fred Baker, and on certain facets of Heath's testimony. Heath's claim that he saw no one wearing a union button within the plant was incredible under the mass of cumulative evidence in the record. The number of committee members and the large size of the buttons insured knowledge by supervisors (ad- mitted by some of them). There was the further contradiction in Heath's testimony concerning the discussion of Gibbs' qualifications and the inconsistency concerning the recall, ahead of Gibbs, of inspectors who were laid off before him. Indeed, Heath admitted that he did not have Gibbs' personnel card before him when he made the selection of employees for recall. Those inherent weaknesses in Heath's testimony, coupled with Respondent's failure to call Freyer to support Heath reduced his testimony to slight probative weight, plainly insufficient to overcome the General Counsel's prima facie case. It is therefore concluded and found that Gibbs was discriminatorily discharged. In Powell',; case, the general showing of discriminatory motivation received direct support from the warnings which he received from Allor and Bales concerning the wearing of the committee badge. Respondent points to no evidence explaining its selection of Powell other than the general reduction in force and the fact that other employees were laid off. It made no explanation of the fact that Powell was replaced by a new employee. As Respondent's evidence was thus inadequate to, 10 Though no finding is made concerning certain statements by other supervisors which were not included in the complaint, it may be noted that they were of the same general character as those on which the above findings were made. 11 Cf. Law at al., d/b/a E. B. Law and Son v. N.L.R.B., 192 F. 2d 236, 238 (C.A. 10), citing Montgomery Ward t Co. Y. N.L.R.B., 107 F. 2d 555, 560 (C.A. 7) ; and see Sixteenth Annual Report (1951), NLRB, p. 162, and cases cited at footnote 44. 12 The entire evidence, including Respondent's failure to recall a single one of the button- wearers (despite repeated promises in some cases), established that Respondent intended the layoffs to effect a permanent separation from employment. AINSWORTH PRECISION CASTINGS CO., DIV. HARSCO CORP. 617 overcome the General Counsel' s case, it is found that Powell was discriminatorily discharged.13 Callie Mae Pearson construed Starks' comments to her as an attempt to have her remove her committee button. The General Counsel terms them a threat of layoff and loss of earnings . Neither interpretation was warranted. See Carolina Mirror Corporation, supra. There was no other evidence which directly supported an inference of discriminatory intent as concerned Pearson's selection. Starks' testimony established a reasonable basis for his choice, and Pearson corroborated his claim that he had criticized her work. It is therefore found that the evidence as a whole did not establish that Pearson's selection was discriminatorily motivated. Fisher's case differed from Pearson's mainly on the point that Pearson admitted her foreman had criticized her work, while Fisher testified only that he did not remember. As Allor referred to three warnings, Fisher's testimony did not amount to a convincing refutation. Allor's testimony is therefore credited; it established that Allor's choice was a bona fide one, and that conclusion was supported by the assignment of Biggs (who contrary to Fisher's testimony was an older employee in the department) to replace him. It is therefore concluded and found that the evidence as a whole did not establish a discriminatory motivation in Fisher' s case. The rejection of West's testimony left without substantial support the General Counsel's claim of discrimination in his case. Berry's testimony established that his selection of West was bona fide. In the case of Lee Pearson, the acceptance of Wade's testimony left without direct support the General Counsel's claim of discrimination in his case. Though Pearson was not specifically identified by Heath, he was apparently one of the four inspectors (including Carl Gibbs, supra), whom Heath testified he laid off as the least experi- enced in the department. Pearson was not only less experienced than Gibbs, but had been reached in an earlier reduction in force. It is therefore concluded and found that the evidence as a whole failed to establish a discriminatory motivation in Lee Pearson's case. In Croslins' case, also, there was no evidence which would directly support an inference of discriminatory motivation. Berry's testimony showed a reasonable basis for his selection of Croslin in the reduction of forces, sufficient to overcome the presumption from the general showing of discriminatory intent. Berry's testimony also established that Cook was discharged because of a refusal to do work and not because he was wearing a committee button. In Middleton's case, despite Amiel's muddying of the waters around what started as a clear-cut defense, it must be found that the evidence as a whole did not establish a discriminatory layoff. The facts concerning the glass strike (testified to by Bazzy and other witnesses ) and the necessity for shutting down the Chrysler line were not refuted by the General Counsel, who expressly disclaimed discrimination as to any of the other eight employees in Middleton's group. The fact that a single union supporter happened to be included goes far to refute any contention that his selection was discriminatorily motivated. What we are left with was Middle- ton's claim (and Amiel's denial) that Amiel told Draughon that Middleton would be fired unless he removed his union button. Though that credibility issue could easily have been resolved by calling Draughon (who, incidentally, was not called to support his own alleged discriminatory discharge in the Teamsters case, supra), the General Counsel did not call him; and absent corroboration of Middleton, Amiel's denials are credited. Lamb's credited testimony established that Bolton was laid off on January 14 (after notice on the 13th) pursuant to a bona fide decision to eliminate the tool-crib attendant on the night shift, and that the job has not since been filled. His testimony overcame the General Counsel's showing of a general discriminatory in- tent, as well as such inference as might be drawn from Bolton's credited testimony as to the statements made to him by Bracey and Farmer. It is therefore concluded and found that the evidence as a whole failed to establish that Bolton' s selection for layoff was discriminatorily motivated. In the cases of Langford and Tretter, there was no evidence which would directly support an inference of discriminatory motivation. The evidence showed only that both wore union buttons and both were laid off. However, Langford's first layoff on January 19 was not claimed to be discriminatory though he wore his committee button up to the time of the second layoff. Satterley's testimony established that his choices of Langford and Tretter were bona fide ones and that there has been sa Though Respondent points to its continued employment of Powell's wife, that fact does not negative the discrimination against Powell, particularly since there was no evidence that she, too, was on the organizing committee. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no increases in the complement of workers in his department after it reached its low point. Though it is found for reasons above stated that Respondent was not discrim- inatorily motivated in selecting 10 of the'button-wearers for layoff, a factor remains, not previously mentioned, which entered into the final conclusion and which was of material weight in tipping the scales. Respondent's failure to recall any of the button-wearers would ordinarily have cast doubt on the bona fides of Respondent's selections and would indicate that it had no intention of continuing the employment of the employees in question. Since, however, a drastic reduction in force con- tinued for some 6 weeks beyond the time of the cases in question and since the complement of workers was at its lowest point at the time of the hearing, no con- clusion can be reached on the present record concerning Respondent's failure to: recall. Much light will, of course, be shed upon that point by Respondent's future conduct when business conditions require expansion of its working force. It must be assumed that Respondent will then proceed with due regard for the recall rights of the affected employees (except Bolton, who was discharged on February 20). III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, as provided under recom- mendations below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. As the evidence established that the layoffs of each of the discriminatees above named was intended as a permanent separation, the usual remedies in discharge cases will be recommended. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61,. and cases there cited, I shall recommend a broad cease and desist order. 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. Each of the Charging Unions is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging James S. Dorris and Robert A. Hulsey on September 24, and Fred Middleton on October 1, 1958, Respondent engaged in discrimination to dis- courage membership in the Teamsters Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 3. By surveillance of union meetings, by threatening to close the plant if the (Teamsters) Union came in, and by promises of benefit on condition that employees abandon their union activities, Respondent engaged in interference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7, and thereby engaged in unfair labor practices proscribed by Section 8 (a) (1) of the Act. 4. By discharging Lonzo Baker, Jr., Ralph Lee Tanner, Veldon E. Porterfield, Billy J. Bilyeu, Kirby D. Bourne, Rayburn Hewitt, John C. Phillips, Fred L. Baker, Carl Gibbs, and William E. Powell in January 1959, Respondent engaged in dis- crimination to discourage membership in UAW, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. By threatening discharge and other forms of discrimination against employees because of their membership and activities in UAW, promising reinstatement on condition that employees abandon their union activities, and by interrogating em- ployees concerning their union membership and activities, Respondent engaged in interference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7, and thereby engaged in unfair labor practices proscribed by Section 8(a)(1). ,6. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of the Section 2(6) and (7) of the Act. 7. Respondent did not engage in unfair labor practices by discharging Margie E. Farmer, Wendell L. Draughon, or Lonzo Baker, Jr., on October 1, 1958, nor by discharging Bob Johnson, Jr., Landis Brown, Callie Mae Pearson, Leonard M. Fisher, James R. West, Billy J. Cook, Bonnie L. Croslin, Lee Allen Pearson, Fred Middleton, Billy J. Bolton, Richard M. Langford, and Wilburn Tretter in January 1959. [Recommendations omitted from publication.)