Transitron Electronic Corp.

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Respondent has not violated Section 8 (a)(3) of the Act with respect to Betty Anderson as alleged in the complaint in Case No. 10-CA-4343. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Transitron Electronic Corporation and International Union of Electrical, Radio and Machine Workers , AFL-CIO. Case No. 1-CA-3104. November 30, 1960 DECISION AND ORDER On June 30, 1960, Trial Examiner Thomas A. Ricci issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Kimball]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Transitron Elec- tronic Corporation, Wakefield, Massachusetts, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organiza- tion of its employees, by discharging or refusing to reinstate employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening to discharge employees because of their union activities, discharging supervisors for refusing to commit unfair labor 129 NLRB No. 103. TRANSITRON ELECTRONIC CORPORATION 829 practices on behalf of the Respondent , or in any other manner inter- fering with , restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in con- certed activities for purposes of mutual aid or protection , and to re- frain from any and all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 ( a) (3) of the Act, 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 William Wood, James E. Viola, and George Francis Mc- Laughlin, Jr., immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them , in the manner set forth in the section of the I nterumediate Report entitled "Tile Remedy." (b) Offer Vincent J. Campbell immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of his discharge, in the manner set forth in the section of the Inter- iuediate Report entitled "The Remedy." (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 determine the amounts of backpay due and the rights of employees under the terms of this Order. (d) Post at its plant in Wakefield , Massachusetts, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent , be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material- 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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, we hereby notify our employees that : WE WILL NOT discourage membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization of our employees, by discharging and/or re- fusing to reinstate them or in any other manner discriminate against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten to discharge employees because of their union activities or discharge supervisors for refusing to commit unfair labor practices on behalf of the Company. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, or to engage in other concerted activities for the purpose of mutual aid or protection, and to re- frain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer William Wood, James E. Viola, George Francis McLaughlin, Jr., and Vincent J. Campbell immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and priv- ileges previously enjoyed. WE WILL make whole William Wood, James E. Viola, and George Francis McLaughlin, Jr., for any loss of pay suffered as a result of the discrimination against them. We will also make whole Vincent J. Campbell for any loss of pay suffered as a result of his discharge. All our employees are free to become or remain members of In- ternational Union of Electrical, Radio and Machine Workers, AFL- CIO, or any other labor organization, or to refrain from such mem- TRANSITRON ELECTRONIC CORPORATION 831 bership except to the extent that this right may be affected by an agreement authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. TRANSITRON ELECTRONIC CORPORATION, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in Boston, Massachusetts, on March 31 and April 1, 1960, on complaint of the General Counsel and answer by Transitron Electronic Corpo- ration, herein called the Company or the Respondent. The sole issue litigated was whether the Respondent had violated Section 8(a)(1) and (3) of the Act. The Respondent filed a brief with the Trial Examiner after the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the following: 1 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Transitron Electronic Corporation, a corporation duly organized under and existing by virtue of the laws of the State of Massachusetts, maintains its principal office and place of business at 168 Albion Street in the city of Wakefield, State of Massachusetts, where it has been continuously engaged in the manufacture, sale, and distribution of electrical component parts and related products. During the calendar year 1959 the Respondent caused to be purchased and transported in inter- state commerce from and through various States of the United States other than the State of Massachusetts, products valued in excess of $50,000 and caused to be sold and transported from its Wakefield plant electronic component parts and re- lated products valued in excess of $50,000 directly to points outside the State of Massachusetts. I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A picture of the case The Wakefield plant, where the employees here involved were at work, employs upward of 2,500 persons. Self-organizational activities first started late in November 1959, when leaflets on behalf of the Charging Union were distributed at the gates. It is alleged in the complaint that, upon learning of such activities, Nowak, the 1 After the close of the hearing the Respondent moved to place Into the record as further evidence an April 26, 1960, decision of the Division of Employment Security of the Commonwealth of Massachusetts, finding that employees Viola and Wood, whose discharge is here alleged to have been illegal, were released for cause. The General Counsel opposes the motion The motion is hereby granted Cadillac Marine if Boat Company. 115 NLRB 107. To the extent that that decision reveals the factual assertions or contentions of the parties, it does not indicate any inconsistency in the testimony of Viola or Wood. I do not know what evidence was considered in that proceeding, but, with due regard to its relevance, I find it insufficient to affect the ultimate conclusion I reach upon the total evidence adduced in this case. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager of the Lepel room, told one of the supervisors, Campbell, to keep a special eye on three designated individual operators in that room, and, in the event they continued their union activities, to falsify a charge against them and to dis- charge them. Union activities continuing, both generally by the Union and by the three particular employees themselves, all three were discharged a little more than a month later. The Respondent also discharged the supervisor at that time. The complaint alleges the three operators were released because of their continued union activities, and the supervisor because he refused to carry out his superior's instruc- tions to remove them from the plant under false pretense. In defense, the Re- spondent asserts that it released the three rank-and-file employees because they neglected their work in violation of company instructions, and the supervisor for having failed in his duties correctly to supervise them. B. The work performed in the Lepel room A Lepel machine is an electrical oven in which silicon crystals are grown. These crystals are essentially conductors of electricity, sometimes called transistors, and are used by the Respondent in very minute particles as component elements of electrical products which it manufactures in very large number. The machines themselves stand 5 or 6 feet high, are very heavy and costly equipment, contain a number of dials and heat or electricity indicators, and are operated manually by the operator who controls heat and electricity flow. Depending upon size, it takes from 1 to 2 hours to grow a single crystal, which emerges about 3 or 4 inches long. The component parts used are primarily silicon, and other ingredients. There are three shifts around the clock in the Lepel room; the employees here involved worked from 3 to 11 p in , the second shift. There are two supervisors on each of the three shifts, with Nowak as overall manager of the room. From 20 to 25 operators worked on the second shift, 15 to 20 under Campbell's super- vision and 6 others under Morren, also a supervisor. Virtually no skill is required of an operator. Nowak testified that a man is trained within 10 days to operate the Lepel machine. Both Nowak and Campbell completed only 3 years of high school. As to the three employees discharged, Wood finished 4 years in high school, McLaughlin 3, and Viola only 1. The Lepel machine must be permitted to cool between the production of one crystal and another. During this period it is an established practice that the op- erators may leave for a smoke or to go to the restroom. There is no company rule against discourse of any kind among the employees when not actively operating a machine. Immediately outside the Lepel room there is a large hall with tables where the employees gather during such time off; they also eat their meals there. Nowak, who has a closed office in the outside hall room, also has a desk about 10 feet inside the door of the Lepel room, where he keeps some records and sits during periods of his shift Nowak works from 7:30 in the morning until about 4:30 in the afternoon. C Union activities generally and by the three machine operators Viola, Wood, and McLaughlin were hired in June 1959. Each of them signed a union authorization card at the very start of distribution of leaflets in the late part of November. Viola accepted some cards from the organizers at the gate and distributed them to other employees; he spoke in favor of the Union among the men in the Lepel room during the smoke periods in the hall and at the timeclock just outside the door to the Lepel room. Wood signed his card in the restroom itself; he continued to talk about the Union to fellow employees throughout the month of December until the time of his discharge in January He prevailed upon a number of others to sign union cards and mailed them to the Union; he obtained from 1-8 to 20 such cards. McLaughlin also signed his card in the locker room; he also passed out leaflets at the gate and talked about the Union attempting to persuade others to join during the rest periods in the outside restroom. Manager Nowak admitted that he knew of the union activities going on, both the distribution of leaflets at the gates and the general talking among employees inside the plant. D. The evidence in support of the complaint The most critical testimony offered by the General Counsel in support of the complaint relates to three conversations between Campbell, the supervisor, and Nowak, the manager, a few days after organizational activities began toward the end of November 1959 The first was shortly after 3 p.m. one day when Nowak called Campbell to his desk and spoke about the employees' activities in attempting TRANSITRON ELECTRONIC CORPORATION 333., to bring a union into the plant. Campbell's testimony as to this conversation and two later ones, was explicit and precise. As to the first: "He [Nowak] told me I was to keep my eyes and ears open, and if I heard anybody talking or pushing the Union I was to trump up a charge against them and fire them for it, but not to let them know they were being fired for Union activities. He further said if I got into any conversations with any of the employees regarding the Union, I was to point out the bad features of the Union, what harm it could do for them, what they stood to lose, and I was to speak that as my own opinion and not that of the Company. He also told me to relay this message to the other supervisor on the shift, Wally Morren." Still according to Campbell, a few days later: "Fred [Nowak] called me over to his desk and told me to keep my eyes on Jim Viola and Bill Wood, as they were known Union pushers, and if they continue to push the Union I was to trump up some kind of charge against them and to fire them for it, and not to let them know they were being fired for working for the Union, pushing the Union." Within a matter of minutes following this conversation, Campbell relayed the message to Morren. Also within a few minutes Campbell spoke to both Viola and Wood, told them they had been spotted as union pushers, and advised each to, limit to his "own time" his union talk and to guard against being overhead because Campbell had been ordered to discharge them under false charges. And a few days after the second conversation, Nowak talked to Campbell again and said he had overheard George McLaughlin talking union to another employee, and continued, still according to the supervisor's testimony, "He told me if I heard any- more Union talk or pushing from George McLaughlin for the Union, I was to trump up a charge against him and to fire him, and not to let him know it was for Union activity." These were the three employees discharged by Nowak during the beginning of January 1960, after they persisted in their union activities throughout the month of December and early January. Nowak, called by the Respondent, did not deny Campbell's testimony relating to the conversations in which Nowak literally referred to the union propensities of the three employees involved. Nowak testified that when he spoke to Campbell immedi- ately after learning of union activities in the plant, he told the supervisor that he, [Nowak] believed employees were engaging in union activities on company time ancY that he instructed Campbell to keep an eye open for such activities and to report to the manager if they continued. I believe that in giving his version of a conversation, about union activities with Campbell at that time, it may have been Nowak's inten- tion thereby indirectly at least to deny that he also specified what he wished the super- visor to do about the activities of production employees. For reasons stated below I credit Campbell's testimony and I find, as he testified, that the manager instructed him to find a way of discharging Viola, Wood, and McLaughlin if those employees con- tinued to talk about the Union or to "push" it. E The discharges Viola and Wood: When Wood and Viola reported for work before 3 p.m. or January 4, 1960, their timecards were missing from the rack and they were called to the office of the personnel manager. There Nowak told them that an investigation covering the prior 3 months had revealed "trouble" with the crystals, and that the two machines on which Viola and Wood worked had been pinpointed as the source of defective products. He told them the size and weight of their crystals was good but they were internally defective and he then discharged both of them. One of them asked if the Union had anything to do with the discharge, and Nowak said it had not. The uncontradicted testimony of both Viola and Wood is that throughout their employment, they were never told any of their production was poor or that the quantity of their output was insufficient. They also testified without contradiction that neither had ever been warned about wandering away from a machine while it was in operation, or for misconducting themselves in any way. The Company has, an established system of written warnings given to employees in the event of disregard of company rules or other deficiencies. Neither of these employees had ever been served with such a warning. Both had also received what appears to have been. periodic plantwide hourly increases after certain fixed periods of employment. Campbell, Campbell was discharged about the same time also on January 4. Before the start of his shift, Nowak called him to the personnel office. There is a, conflict in testimony again between Campbell and Nowak as to what was said at this, terminal conversation According to Campbell, as the two went to the personnel office, Nowak said Campbell was in "hot water" with personnel., In the office of the. 586439--61-vol. 129-54 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel manager were Walsh and Edmund Monti, the overall plant manager of the entire Wakefield plant. Nowak started the conversation by saying, "We have found out that you have been working against the Company rather than for the Company." Campbell asked what this meant, and, still according to Campbell, Nowak "stated that I was told a short while ago that I was to keep my eyes and ears open for any Union talk, and if I heard any Union talk I was to discourage it, and if I found any- body pushing the Union that I was to discharge them on a trumped up charge. He said instead he found out that I have been going over and warning the fellows. I asked him who accused me, he refused to tell me." Monti then took up the discussion and spoke of poor production; he said the trouble had been traced to two machines on the second shift. Asked to be more precise, he refused to tell Campbell which machines he referred to. Monti added he thought all this was due to poor supervision and he therefore felt Campbell should be terminated. Nowak's version of the conversation in Walsh's office is somewhat different. He said he opened the conferenve by telling Campbell he "wasn't working in the interest of the Company, he was more interested in himself." According to Nowak, Monti then took over and said "something about him and his shift," and that he, Monti, felt Campbell's resignation was justified. Again, Nowak did not deny the testimony that he accused Campbell of having refused to carry out instructions to weed out prounion employees on false charges. As to the nature of Nowak's testimony, both respecting this conversation and the totality of the events, there will be further com- ment below. Monti also testified as to this conversation. He too did not contradict Campbell's testimony that Nowak started the discussion by accusing him of failure to discharge union sympathizers. Monti's testimony is substantially an extended statement of why he discharged Campbell. He explained he told Campbell that the Company had found fault with a number of crystals produced in the Lepel room, that there had been an investigation to trace the machines and the employees responsible, that the investi- gation had satisfied Monti, through reports from Nowak, and that two men on Campbell's shift had been delinquent in their duties and thus caused a loss to the .Company. Monti concluded with saying that after "putting these facts before Camp- bell, I got no explanation . . . and, as a result I asked for his termination." Like Monti, Nowak also testified at the hearing that when Campbell was called into the personnel office he and Monti had hoped to "get a reasonable explanation from him." This professed desired to avoid a discharge stands in conflict with the clear fact that Campbell's two final checks had already been made out before he arrived in Walsh's office. McLaughlin: McLaughlin testified that a few days after leaflets first began to appear at the plant gates the supervisor told him that Nowak knew of his union activi- ties, that McLaughlin should be careful, and that Campbell was supposed to trump up a charge against him and fire him. McLaughn testified that he distributed leaflets on behalf of the Union at the gates on two occasions before his discharge; the second time, on January 7, he stood at the gate from 6 to 8 a.m and from 1:30 to 2:50 p.m., before time for him to start work. About 11 p.m. on January 8, as the shift was ,ending, Morren, the supervisor of the second shift (Campbell had already been dis- charged), called McLaughlin to the office and gave him his separation check, with the statement, "I guess you knew this was coming." When McLaughlin asked the reason, Morten replied Nowak had said "On account of your production." The foregoing evidence, plus a few other uncontradicted facts, spell out a clear prima facie case in support of the complaint. Nowak instructed Supervisor Camp- bell to watch the union activities of Viola, Wood, and McLaughlin and to find a devious reason to get rid of them. The manager told Campbell in January that the reason for the Company's displeasure with him was his failure to carry out these very instructions. The three employees testified, without contradiction, that not one of them had been warned either of misconduct in leaving their machines unattended, or for incompetence. in their production performance. Campbell, like a number of other supervisors in the Lepel room, kept daily and weekly records of the quality and quantity of production of each employee under his supervision. These were daily graphs, made out by each supervisor and kept in the desk of the manager in the Lepel room itself. Each employee makes a routine visual and machine examination of each crystal he produces. The supervisor then spot checks them in the same manner. The records thus reflected these tests. Al- though Nowak insisted at the hearing these production records were not required by the Company, he conceded they were kept, and that he too, while a supervisor before becoming manager, had maintained them. Campbell's testimony, nowhere attacked, -is that his records showed Viola, Wood, and McLaughlin were competent , entirely satisfactory producers. Called upon to produce these graph records, counsel for the TRANSITRON ELECTRONIC CORPORATION 835 Respondent said the Company does not have them. Nowak referred to other "offi- cial" production records regularly maintained by the Company, and said they show Viola and Wood, unlike all other employees in the Lepel room, had produced defec- tive crystals during the critical period of these events. He did not produce the `official" records. Accordingly, absent affirmative proof that the discharges were not illegally motivated as alleged in the complaint, an inference of illegality is inescapable. F. The affirmative defense To rebut the conclusion thus clearly arising from these facts, the Respondent asserts ,in its answer that the three employees were discharged for cause. To prove this affirmative defense, there is the testimony of Nowak and Monti. Nowak testified -that late in November it was discovered on the production lines of the plant, where the crystals grown in the Lepel room are used, that some of the crystals were in- ternally defective. He said this fact was brought to his attention by an interdepart- mental communication saying that "crystals grown on furnaces 30, 31, and 34 are .completely failing in internal lateral resistivity and lifetime count." The memo went on to give the identifying numbers of 10 crystals, and concluded with "Please investi- gate the reasons for these failures." Nowak continued: "I immediately checked out these crystal numbers against the files and pinned down as to where they came from, and I in turn turned them over to Mr. Kilby for the engineering end of it, and fol- lowed it through the line to see why, and so forth." Nowak continued that on about November 27 he spoke to Campbell: "I told him I was having trouble and it was stemming from the second shift, and I asked him to investigate further on his end and notify me as to what he found." On December 2, he received another communication from the production depart- ment, to the effect crystals were still poor, and referring to "crystals grown on furnaces 30 and 31 . . . this condition must stop or we will be forced to take the matter up directly with Ed Monti, plant manager." And on December 7 he re- cceived another office memorandum from Monti, asking what was being done about the two earlier memos, and saying, "Twenty-eight additional crystals from these furnaces are rejected for structural breakdowns in the lines." Nowak went on to say that investigation on receipt of these notes showed two of the three machines identified were operated by Viola and Wood, and the third was mechanically defective and corrected. He then thus pinpointed the fault for the "trouble" in these two operators. Despite the statements in these early intraoffice notes that difficulty stemmed from machines numbers 30 and 31, and Nowak's insistence throughout the hearing that his "investigation" had shown Viola and Wood, who worked on these machines, were personally responsible for the complaints from the production department, there is no contention that anyone ever said anything to either of them from the very beginning of the "investigation" until the moment of their discharge more than a month later. Nor did Nowak ever tell Campbell that he believed Viola and Wood -to have been responsible or in any way deficient or inattentive. This inconsistency in Nowak's story-that he was sure from the start of Viola's and Wood's guilt but did nothing about it-appears in like fashion in the testimony of Monti, the only other Respondent witness on the merits on the discharge issue. Monti testified he told Campbell in January that Nowak "had found these so-called bad crystals came from two crystal growers, Viola and Wood and as Fred [Nowak] had pointed out to me, that was back in November." He also told Campbell, in the same moment, "he [Nowak) couldn't trace it to anything actually being wrong, but he indicated he had been suspicious... . Nowak resolves this inconsistency between being sure "back in November," and not being sure but only suspicious, by continuing with saying that on December 27, 1959, his suspicions were confirmed when he caught Viola and Wood away from their machines while crystals were being grown. There is an inherent implausibility in Nowak's story as to this incident. His testimony is as follows: I had become suspicious about the actions on the second shift, because on an occasion that I had to come back I would tell Mr. Campbell I would be back, and when I did come back everything was humming nice and quiet, everybody was in their place where they were supposed to be, doing what they were sup- posed to be doing-that doesn't fit. 'So, I kept quiet about it, and the next time I came in I didn't tell him I was coming in, and as it so happens, I was driving to the plant and I noticed the gate to the loading platform was open, . . . I parked the car and I came up by the loading platform. Now, at the loading platform there are a number of windows through which the entire Lepel room 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can be seen, roughly about 10 feet from the floor of the Lepel room In other words, we were looking down, and every unit in the Lepel room can be seen from these windows, and I looked over and I could see Viola and Wood over by where we have a compressor now, and they were talking to one another. TRIAL EXAMINER. Did you say that on one occasion you told Campbell that you would return to the plant later? The WITNESS On several occasions. TRIAL EXAMINER. And each time that happened when you did return later everybody w^.b at his job? The WITNESS Right. TRIAL EXAMINER. And you said, "This don't fit?" The WITNESS. That's right. TRIAL ExMINER. Did you find it suspicious that they were at work when you returned? The WITNESS I found it suspicious that everyone would be at their job. Nowak said this happened on December 27, and that the next day December 28, he- wrote a note in longhand and forwarded it to Mr. Monti. The note, received in evidence, reads as follows. After careful examination, there is no doubt that laxity on the part of the op- erators is to blame for the crystal failures There is no question that the ma-- chines were left unattended Since all opei ators were recently reminded about quality of crystals, and also complaints from Wally about idleness, I would sug- gest dismissal. Not only does the note make no mention of Viola or Wood, but Nowak did nothing to bring the matter to Campbell's attention for discipline or warning The next thing that happened was that on January 4 Viola and Wood were called to the personnel manager's office and discharged. Campbell was released later the- same day. Nowak's testimony relating to the asserted negligence of McLaughlin follows the same pattern He said he returned to the plant on January 7 during the evening shift and again looked into the window from the loading platform. He said he saw- McLaughlin talking to a man from another department and standing away from his machine, which was running at the time. Nowak continued that he went into the plant and immediately made out a termination slip for McLaughlin He did not speak to McLaughlir then, or say anything to Walley Morren, the sole supervisor then working on the second shift Nowak explained Morren was upstairs in the cafeteria having lunch, and that he did not care to disturb him at that time. The next day, on January 8, Nowak continued, he gave the termination slip to Morren with instructions to discharge McLaughlin, and Morren did so shortly before 11 p.m. All three of these employees denied that they left their machines while the crys- tals were in the process of being grown. Analysis and Conclusion As stated above, the widespread prounion activities of Wood, Viola, and Mc- Laughlin, the Respondent's clear knowledge of such activities, and the Company's unannounced and summary discharge of all three without apparent cause (if the Respondent's asserted claim of misconduct fails), suffice to prove a prima facie case of discharge for unlawful motivation. The manager's explicit instructions to Super- visor Campbell that he should make every effort to release the three men if they did not discontinue their union activities removes all doubt as to the illegality of the discharges Therefore, the first matter to be disposed of is the issue of credibility be- tween Campbell and Nowak as to the important conversations later in November im- mediately after inception of union activities Nowak was the Respondent's principal witness It is he who is said to have investigated complaints from the production department respecting the quality of the crystals; it is he upon whom the Company impressed the great extent of losses that were being incurred because of "somebody's" neglect or inccmpetence, it was he that, according to his own testimony, the Company looked to to remedy the situa- tion and to take corrective measures; and it was he who had full authority to dis- charge undesirable employees and to take the corrective measures. The totality of his conduct, therefore, as well as the character of his testimony, pertain to the issue of his credibility when he disagreed with the General Counsel's witnesses The burden of his total testimony was that undivided attention to the operation- of the Lepel machines was of prime consideration, and that every defective crystal TRANSITRON ELECTRONIC CORPORATION 837 That left the Lepel room was a loss of thousands of dollars to the Company. He also testified precisely that within a matter of days after the first complaint from the production department, he was satisfied that Viola and Wood were the pinpointed culprits responsible for the defective crystals. Despite the assertion that his "investi- gation" convinced him of this fact, he admitted he did nothing about it until January. When he reached that point in his story, intended to prove the direct delinquency of Viola and Wood, he described an event, clearly bearing no relationship to any possible earlier suspicion, let alone conviction, of delinquency by those two em- ployees. He did not spy on them because he suspected them, he did not lay in wait .in order to obtain definitive proof to establish any earlier suspicion or grounds for belief, he did not say to the supervisor, Campbell, that he should particularly watch either those two machines or those two operators. Instead, he looked in the window on the sly because he could not understand why, on a number of occasions, all the employees had been at work "where they were supposed to be." His statement, made several itmes, that whenever he returned to the plant after his regular hours, he found everyone quietly and correctly at work, and was therefore disturbed, I simply find incredible. If such a situation "didn't fit," as he insisted, did Nowak mean to say that wandering about the Lepel room or possibly even leaving the machines while in operation , was a normal form of behavior in the Lepel room? The employees testified that they frequently leave their machines for a smoke or to go to the restrooms, or just for a coke in the hall. In this posture of the record, his testimony that on one occasion he looked in the window and, of all the 25 or so employees at work, it happened to be Viola and Wood whom he saw standing away from their machines, appears as a too unbelievable extraordinary coincidence. But even assuming that I could accept Nowak's testimony thus far, the alleged gravity of the offense apparently meant little at that time, for he did nothing about it. At this point, the great damage that could be done to the machines at being left unattended, the great monetary loss to be incurred by defective crystals, cease to be of importance to him, and instead he writes a note to the plant manager generally recommending discipline and making no reference either to Viola or Wood or to -their particular machines. I find it again incredible that, convinced as he said he was more than a month before of Viola's and Wood's delinquency, Nowak could ignore for almost anothei week such alleged terribly damaging inattention by the two employees. A week later, he would have it, he spied in like fashion upon the Lepel room and this time caught the only other one of the principal union adherents involved in this case speaking to someone away from his machine. And again contrary to his asser- tions of the great importance of the matter, he considers the fact that the supervisor was having lunch sufficient in importance to defer any disciplinary or corrective action to save the unattended machine or the very valuable crystals then being produced. A supervisor truly concerned with safety to expensive equipment or product, is not likely to wait the remainder of that shift and almost the full 8 hours of the next, before removing an employee so seriously delinquent of his duties. And it is not that Nowak did not have authority to act on the spot; his testimony was unequivocal that he had often in the past discharged a man summarily. In the course of his testimony, Nowak found occasion to say that he was dis- satisfied with Campbell's performance as a supervisor because many of the employees under his supervision left their machines while in operation and thus endangered production. To support his testimony, he said that the cosupervisor on the second shift, Morren, had come to Nowak and complained that his group of operators had complained because they were required to work constantly while the others in the room, Campbell's men, "got away with murder." To corroborate Nowak, the Respondent called Morren to the stand Morren, still in the Respondent's employ, unequivocally denied both that any persons under his supervision had ever made such complaints or that he had ever said any such thing to Nowak. Morren went further and continued to testify that during the week before the hearing. Nowak had called him from his home to come to the plant and there had asked Morren whether Campbell was prounion or antiunion. Morren continued he told Nowak that Campbell was opposed to the Union. Still according to Morren's uncontra- dicted testimony, Nowak insisted another employee, named Raftell, had reported that Campbell was a "union pusher," and that Nowak insisted he thought Campbell was "guilty" too. Nowak then took Morren into the office of the personnel manager where a further conversation ensued Still according to Morren's uncontradicted testimony, the personnel manager said, "We'll have to take care of him [Campbell]." Sometime later Morren was called to the personnel manager's office and asked to sign an affidavit which Morren had not previously seen The affidavit contained statements which, according to Morren's testimony, were not true, relating to whether 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or not employees had complained of Campbell's group leaving their machines. Morren told the personnel director these things were not true, he was told to sign the affidavit in any event, and he did so. I have no reason to discredit Morren. He was not shown to be sympathetic to the Union's position in this proceeding, he is still an employee of the Company, and he was obviously under great emotional stress doing his best to tell the truth regardless of whether it might hurt him in the eyes of the Company. He was a witness offered by the Respondent itself. That Nowak was holding back in his testimony is also clearly shown by his testi- mony respecting the terminal conversation in which Campbell was released. His first version was that the opened with the equivocal statement that Campbell had not been working "In the interests" of the Company but instead in his own interest. He then remembered that Monti took over and said something about Campbell and the second shift and felt his resignation was justified. At that point Nowak insisted he could remember nothing else. He said Campbell simply stood mute. With a little prodding, he then remembered that Monti called on Campbell to defend himself, but that Campbell still said nothing at all. With a little more prodding, he then remembered he also told Campbell that he suspected the supervisor of tipping off the men before Nowak returned in the evenings and that Campbell simply said "you haven't heard the end of this " And still Nowak insisted he remembered nothing more. With further prodding and in response to a number of leading questions, he then corroborated Campbell's earlier testimony that the supervisor asked the Company to restore him to a straight operators' job, which he had earlier held, and which management had promised to give him in the event he did not work out as a supervisor. On this total record I cannot credit Nowak's testimony. Monti did not contradict Campbell's testimony that in the discharge conversation Nowak accused the supervisor of having failed to carry out instructions to find fault with the three employees in question and to discharge them for their union activity. His only testimony relating to the conversation was that he explained to Campbell the difficulty recently experienced in the production department with certain crystals produced in the Lepel room, that there had been an investigation which convinced Monti that the fault lay with certain operators on the second shift under Campbell's supervision, and that the Company considered the supervisor as having fallen down on the job. There is an element of inconsistency in Monti's testimony because while he sought to give the impression that he entered upon that conference with the hope of retaining Campbell, that he looked forward to some plausible explanation from the supervisor in order not to have to discharge him, the separation checks that were given to Campbell then and there had already been prepared. I can only believe the decision to discharge him had already been made when Campbell was called into the room. This fact, coupled with Nowak's outright accusation to Campbell of having refused to cooperate with the management plan of discriminating against individuals for engaging in union activity, must lead to the conclusion that Monti also was aware the discharge was caused essentially by the supervisor's unwillingness to cooperate in the commission of unfair labor practice? Apart from the question of credibility, and the now established fact that Nowak's concern with all four men was predicated upon matters relating to union activity, there is much in the record to indicate that these particular employees were not in fact responsible for the breakdown in quality of the crystals and that the Company did not really believe they were. All the crystals passed inspection before they ever 20n Campbell's discharge, Monti's testimony lacks persuasiveness for still another reason. Without naming any employees, Nowak recommended "dismissal" to Monti on December 28 Monti testified that a few days later, while discussing the matter with Nowak, ". . I said, In the course of asking why he didn't discharge these fellows, why come to me, his feeling was there was a supervisor Involved . At that point I told him to take another good look at it, make sure the supervisor was actually involved and should be let go I told him to come back in a couple of days . Fred, did come hack before the end of the week [and) . convinced me with the facts he gave me that the supervisor was Involved in this " But there were no additional facts that Fred Nowak could have brought to Monti's attention In a second conversation, for he testified un- enuivocally It was what he saw on December 27 which constituted the "proof" of the delinquency of both the employees and the supervisor There is no indication anything untoward occurred thereafter and It Is not claimed that any misconduct was noticed after December 27. TRANSITRON ELECTRONIC CORPORATION 839' reached the production departments, both visual and resistivity tests performed in the Lepel room, and further electronic examinations made in a special testing room apart. There is also the fact that while the Respondent asserts its recording system shows the origin, in terms of particular machine and individual operators, of each crystal, it did not, despite the very pertinent significance of such evidence in this case, produce such records. Moreover, operation of the Lepel machines requires no skill worthy of the name. These were operators with less than a high school education; it took only 10 days to, train them for their jobs. There was a very high rate of turnover in the entire Lepel room group. All this strongly indicates that virtually no skill is required and that these machines are essentially easy-to-operate complicated gadgets with built-in, almost automatic safety devices. More important, there is much affirmative indication that the fault which de- veloped in the crystals was attributable to other causes. Kilby, the scientist elec- tronics man who acted as consultant in the construction of the Lepel machines and is the expert in their operation with the Company now, testified that, even given the most attentive and highest skilled operator, the resultant crystal can be defective in a manner not visible to the naked eye nor even discernible by tests with the most complicated machines. The slightest impurity in one of the component elements could cause a resultant defect not noticeable until after production. Further, when Nowak received the first complaint from the production department, he turned the matter over to Kilby for investigation, 'a strong indication that the prime concern was a technical one involving the functioning of the machines or the quality of the raw material. There is direct testimony from the company representative showing that in the very period preceding the complaint from the production department, an unusual problem of impure silicon as a basic component developed and caused con- siderable trouble in the crystal growing process. And Nowak said that the graph records of daily individual production which the supervisors maintained were aban- doned in October 1959, for the very reason that there was too much trouble with the basic silicon to justify measuring the individual employees in terms of the quality of the crystals they produced. In sum, the asserted affirmative defense that Viola, Wood, and McLaughlin were released because they left their machines unattended in consequence of which crys- tals produced were defective, is not supported by the totality of the evidence. Of the 117 employees then in the Lepel room only these 3 were released in consequence of the "investigation," but the records which are said to have traced defective crystals to them were not produced. The Lepel room manager's testimony that he once caught these three away from their machines I do not believe because I cannot credit him at all on this record. The Respondent's admitted indifference-for over a month after assertedly learning of their special guilt-remains totally unexplained. Instead, the record reveals affirmative indication that what internal faults developed in the Lepel room products were attributed, by the Respondent itself, to other causes not related to the machine operators. And finally, the testimony of the employees that leaving the machines to cool, and wandering about the room and into the outer hall, is a normal thing in their work, not only stands uncontradicted but is conceded by the Company. Nowak said he regularly returns to the shop two or three times each week late in the evening during the second shift, yet he never once noticed any irregularity in the conduct of Viola, Wood, or McLaughlin until his window peeping of December 27. In these circumstances, I credit their testimony that they did not leave their machines while growing crystals. In conclusion I find that the Respondent discharged employees Viola and Wood on January 4, and McLaughlin on January 8, 1960, because of their activities on behalf of the Charging Union in trying to organize the employees and thereby violated Section 8(a)(3) of the Act. I also find, as alleged in the complaint, that the Respondent discharged Supervisor Campbell on January 4 because he was re- luctant to commit unfair labor practices on the Respondent's behalf and thereby invade the self-organizational rights of rank-sand-file employees, in violation of Section 8(a) (1) of the Act.3 When Supervisor Campbell told several employees late in November 1959 that he had orders to create false charges against them and discharge them if they continued their union activities, his statements were direct threats of discrimination in employ- ment to discourage such conduct, and as such constituted clear violations of Section 8(a)(1) of the statute, for which the Respondent is accountable. I so find. a N.L R.B. v. Talladega Cotton Factory, Inc., 213 F. 2d 208 (C A. 5). 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 lend to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Viola, Wood, Mc- Laughlin, and Campbell with respect to their hire and tenure of employment, I will -recommend that it be ordered to offer them immediate and full reinstatement to their former positions, without prejudice to any privileges or prerogatives previously en- joyed and to make them whole for any loss of earnings they may have suffered because of the discrimination against them, by payment of a sum of money equal to the amount they normally would have earned as wages from the date of the discharges to the date of reinstatement, less their net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woohvorih Company, 90 NLRB 289? I will also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. As the discharge of employees because of their union activities goes to the very heart of the Act, the commission of similar and other unfair labor practices reason- ably may be anticipated. I shall therefore recommend that the Respondent be ,ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging William Wood, James E. Viola, and George Francis McLaugh- lin, Jr., 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, by discharging Vincent J. Campbell, and by threaten- ing to discharge employees if they assisted the Union or any other labor organiza- tion, the Respondent has interfered, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] As to Campbell, see Jackson Tile Manufacturing Company, 122 NLRB 764 Low-Temp Manufacturing Co., Inc. and Houston Cobb and William G. Hallett. Cases Nos. 10-CA-4301 and 10-CA-4302. November 30,1960 DECISION AND ORDER On May 19, 1960, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the 129 NLRB No. 99.