Southern Electronics Co., Inc.

So DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Palette Sample Card Co., Inc ., is an employer within the meaning of Section 2(2) of the Act. 2. Local 413, International Brotherhood of Pulp, Sulphite &Paper Mill Workers, AFL-CIO, and Local 222, International Production , Service and Sales Employees Union, are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing and contracting with Local 222, International Production, Serv- ice and Sales Employees Union, by ordering its employees to listen to solicitation by Local Union 222 agents, by threatening to discharge and otherwise discriminate against employees in their employment for failure to accept the Respondent's choice of union, by granting pay raises as benefits for union membership unwanted by its employees, and by paying them for working time spent listening to union solici- tations as ordered by management representatives , the Respondent has contributed unlawful -assistance and support to that union , and has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging, in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act. 4. The foregoing 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.] Southern Electronics Company, Inc. and United Steelworkers of America, AFL-CIO. Case No. 10-CA-4640. November 8, 1961 DECISION AND ORDER On June 30, 1961, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with the following : The Trial Examiner found that the Respondent violated Section 8(a) (1), (3), and (4) of the Act by laying off five employees I and thereafter failing and refusing to recall them because they were union adherents and had given testimony in a prior Board proceeding? ' Jane Hardin, Louise Kesterson , Margaret Brown, Evelyn Weems, and Cora Belle Foshee. 2 Southern Electronics Company, Inc., 131 NLRB 1411. 134 NLRB No. 2. SOUTHERN ELECTRONICS COMPANY, INC. 81 Although we agree that the Respondent's refusal to recall these em- ployees for the aforementioned reasons violates Section 8(a) (1), (3), and (4), we disagree with the Trial Examiner's finding that the prior layoffs were discriminatorily motivated. The Respondent is engaged in the manufacture and sale of electrical components. In its manufacturing operations, the Respondent utilizes production lines, each being manned by approximately 5 to 10 em- ployees. The Respondent does not manufacture parts for stock or in- ventory. Its production is governed solely by the requirements of orders received from its customers. Accordingly, in the event a par- ticular customer's order is completed, or requires rescheduling, opera- tions on one or more production lines may have to be discontinued, and the employees working thereon will be laid off or transferred to another production line. The uncontroverted evidence in this case shows that the layoffs of November 3 and 10, 1960, alleged to be violative of Section 8(a) (1), (3), and (4), were caused by the completion and customer reschedul- ing of orders-a completely fortuitous circumstance not within the control of the Respondent. The employees selected for layoff on the aforementioned dates were not solely those who had previously testi- fied against the Respondent; it is clear that two production lines were shut down on each date and that all employees working on the discon- tinued lines were laid off at one and the same time .3 In view of this evidence, we find that the layoffs of November 3 and 10, 1960, were not discriminatorily motivated within the meaning of Section 8(a) (1), (3),and (4) of the Act. With respect to the Respondent's failure and refusal to recall the five alleged discriminatees, we agree with the Trial Examiner that such conduct was unlawful. In this regard, we note that the record supports the Trial Examiner's-finding that in making recalls the Respondent had, in the past, generally followed seniority. Neverthe- less, on January 16, 1961, the Respondent recalled 14 employees, 10 of whom had less seniority then the 5 alleged discriminatees involved herein. Each of these five employees who have not been recalled testified against the Respondent in a previous unfair labor practice proceeding (131 NLRB 1411). Those employees who testified on behalf of the' Respondent in that proceeding, other than those who requested layoff or voluntarily quit, have continued to work or have been recalled. The Respondent made an exception in the case of two employees who were specially, qualified for work on the one remaining line left in operation In this regard , we note that the complaint does not allege, nor was any evidence introduced to show, that the Employer follows seniority in transferring employees from one line to another , and from which it could be found that the Respondent departed from such standard in laying off, rather than transferring, the five alleged discriminatees involved herein. 630849-62-vol 134-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, and on the record as a whole, we find, in agreement with the Trial Examiner, , that the Respondent violated Section 8 (a) (1) , (3 ), and (4) of the Act by failing and refusing to recall, on January 16, 1961, employees Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems, because they were known to the Respondent to be union adherents , and because they had given testimony under the Act in a previous unfair labor practice proceeding. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southern Elec- tronics Company, Inc., Mosheim, Tennessee, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America, AFL-CIO, by failing or refusing to recall employees from layoff status, or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condi- tion of employment. (b) Interfering in any manner with respect to the right and duty of Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems, to give testimony under the Act, or inter- fering with the right and duty of any other employee to give testi- mony under the Act in a formal proceeding before the Board. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Jane Hardin, Louise Kesterson, Margaret Brown, Evelyn Weems, and Cora Belle Foshee immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority -and other rights and privileges, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified by our Decision herein. (b) Make whole Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems for any loss of pay suffered by reason of the Respondent's discrimination against them, as set forth in the section of the Intermediate Report entitled "The Remedy," as modified by our Decision herein. (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. SOUTHERN ELECTRONICS COMPANY, INC. 83 (d) Post at its plant in Mosheim, Tennessee, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent, by laying off Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems, discriminated against them in violation of the Act. 4 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor organization of our employees, by refusing to recall them, or in any other manner discriminating against them in regard to their hire and tenure of employment. WE WILL offer Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems immediate and full rein- statement to their former or substantially equivalent positions, without loss of seniority or other rights and privileges. WE WILL immediately make whole Jane Hardin, Louise Kes- terson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems for any loss of pay suffered by them by reason of our discrimina- tion against them. WE WILL NOT discriminate in any manner against any employee who has given or may give testimony in a National Labor Rela- tions Board case. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain , or to refrain from -becoming or remaining, members of United Steelworkers of America, AFL-CIO, or any other labor organization. SOUTHERN ELECTRONICS COMPANY, INC., Employer. Dated------ ---------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 131; 73 Stat. 519), herein called the Act. After the filing of a charge on January 24, 1961, and an amended charge, filed on February 27, 1961, by United Steelworkers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Tenth Region, on March 6, 1961, issued a complaint and notice of hearing against Southern Electronics Company, Inc., herein called the Respondent or the Company, alleging that it had contravened Section 8(a)(3), (4), and (1) of the Act, in that on or about November 3, 1960, the Respondent laid off and thereafter failed and refused to reinstate two named em- ployees and that it had, on or about November 10, 1960, laid off and thereafter failed and refused to reinstate three named employees, because of their membership in and activities on behalf of the Union, and because they engaged in concerted activity for the purpose of collective bargaining and other mutual aid and protection, and because they gave testimony under the Act. The Respondent filed timely answer to the complaint, effectively denying sub- stantive violations of the Act, asserting that the layoff of each of the employees men- tioned in the complaint was for lawful reasons and for just cause. This matter came on to be heard before the duly designated Trial Examiner at Greeneville, Tennessee, on April 18, 1961, and was closed on the following day. Full opportunity was afforded each party to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to make oral argument on the record, to file proposed findings of fact and conclusions, or both, and to file briefs. Counsel for the General Counsel and counsel for the Company have presented briefs, which have been carefully considered. Upon the entire record in the case, from my observation of the witnesses, and upon full examination of the record, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF SOUTHERN ELECTRONICS COMPANY, INC. The Respondent , Southern Electronics Company, Inc., is, and at all times material herein has been , a Tennessee corporation with an office and place of business at Mosheim, Tennessee , where it is engaged in the manufacture and sale of electrical components. The Respondent, during the 12 months immediately preceding the issuance of the complaint herein , a period representative of the times material hereto, sold and shipped electrical products valued in excess of $50,000 from its plant at Mosheim directly to customers located outside the State of Tennessee. The Respondent is, and has been at all times material hereto , engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. SOUTHERN ELECTRONICS COMPANY, INC. III. THE UNFAIR LABOR PRACTICES 85 A. Background Early in the year 1959, the Union began its efforts to organize the employees at the Mosheim plant of the Respondent . On June 10, 1969, following the filing of a representation petition, a hearing was conducted before a hearing officer (Case No. 10-RC-4390, not published in NLRB volumes), and thereafter, pursuant to the requirements of a Board decision and direction of election , an election by secret ballot was conducted among the Company's employees on August 20, 1959. The Union lost its claim for certification as representative of employees in the bargaining unit by a 28 to 39 vote. On August 23, 1959, objections to conduct affecting the result of the election were filed by the Union. Thereafter, on October 9, 1959, following an investigation of these objections , the Regional Director issued his report containing findings and recommendations , recommending that the election be set aside. On or about October 20, 1959, the Company filed objections to those recom- mendations. The Board on November 9, 1959, issued and served upon each of the parties its order directing a hearing in the matter. After a hearing on November 23 and 24, 1959, the hearing officer, on January 8, 1960, issued a report and recom- mendation in Case No. 10-RC-4390, in which he recommended to the Board that the election conducted on August 29, 1959, be set aside and that another election be held. The Board on January 28, 1960, issued a supplemental decision , order, and direction of second election, in which it adopted the findings and recommendations of the hearing officer and directed that a second election be held . An election was thereafter conducted on February 11, 1960, the result being adverse to the Union by a 38 to 56 vote. On June 1, 1960, a complaint and notice of hearing, based on a charge filed on May 10, 1960, by the Union in which the Company, Respondent there as here, was charged with violations of Section'8(a)(1) and (3) of the Act because of alleged discriminatory layoffs of certain known union adherents on April 15, 1960. Case No. 10-CA-4445, 131 NLRB 1411. The hearing in that case was before Trial Examiner Owsley Vose, on July 26, 27, and 28, 1960. Margaret Brown, Louise Kesterson, Jane Hardin, Evelyn Weems, and Cora Belle Foshee in this instant case are said to have been discriminatorily discharged because they testified in Case No. 10-CA-4445 on behalf of the General Counsel. On January 17, 1961, Trial Examiner Vose issued his Intermediate Report and Recommended Order, No. 494, not yet passed upon by the Board, finding that the Company had violated Section 8(a)(3) and (1) of the Act. Since the close of hearing in this instant matter (and not before), I have read and considered the findings and conclusions of Trial Examiner Vose and find nothing contained therein (so far as material here ) to contradict the facts as found below. Here the unfair labor practices asserted by the General Counsel involve Section 8(a)(1), (3), and (4) of the Act, the Section 8(a) (1) violations being derivative of Section 8 (a)(3) and (4) violations as set forth in the complaint. The issues raised require answer on the facts presented of these questions: (1) Whether the layoffs of Jane Hardin and Louise Kesterson on November 3, 1960, and the layoffs of Margaret Brown, Cora Belle Foshee, and Evelyn Weems, on November 10, 1960, each a witness for the General Counsel in Case No. 10- CA-4445, were discriminatory because each of them had given testimony under the Act; and (2) Whether the Respondent discriminated against them for the same reason in failing to recall each or any of them to work; or (3) Whether the Respondent laid off and did not recall any one of these named employees because of a lack or nonavailability of work and materials on the one hand and the efficiency and ability of the employee to perform available tasks on the other. The record clearly shows that each of these witnesses who testified for the General Counsel in Case No. 10-CA-4445, before Trial Examiner Vose, has either volun- tarily left the employ of the Company, was discharged, or is presently on layoff status. It is clear, too, that other employees who testified on behalf of the Com- pany at that hearing, except where they specifically requested layoff or voluntarily quit, have continued at work, or have been recalled after only a short layoff. B. Factory conditions with respect to orders and employment needs prior to and-after November 3 and 10, 1960 The nature of the defenses set up in the pleadings , and factually disclosed at hearing, require a consideration of the operations at the factory and the employment needs of the Company during the times material to and confined strictly to the issues in this 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case. The Respondent says that its layoff and recall policies are not based on seniority, but are based solely on the availability of work and materials, and the efficiency and ability of the employee to perform an available task. In support of this premise, with regard to the volume of orders on hand at the time of the alleged discriminatory actions against the five named employees, these facts were shown through witnesses and by documentary evidence: The Company has some four major customers who give it orders for manufacture of items according to specification. These customers are engaged principally in the washing machine, clock, electric organ, and radio industry. The Company manufactures coils which it supplies to each of these customers according to order. The Company does not manufacture component parts for inventory, its production being governed solely by orders received. After the receipt of orders, a customer may order the Company to reschedule, hold, or discontinue work on any particular order, such instructions being received by the Company by various means of com- munication-letter, telegraph, or telephone. When the Company is required to re- schedule, hold, or discontinue work on any particular order in the circumstances described, the employees engaged in the production of the particular part which is discontinued, held, or rescheduled are either shifted to another production line for which they are qualified if available, or laid off for lack of work subject to recall when needed. By reason of the fact that the day-to-day operations of the Company are variable, the labor force, at the Company's factory, made up principally of female help, fluctuates from an approximate low of 38 to a high of 100 employees. The manufacture of each coil involves a number of separate operations performed by different operators, and, generally speaking, a girl who is most adept in one operation is kept on that operation but, should work on the order be suspended for one reason or another, that girl might be put to work on another operation or laid off until such time as she might be needed. All successive operations performed involving the manufacture of the coil are performed on a production line, the line requiring from 5 to 10 employees, depending upon the extent of work to be done on the work in process. The work in process and the line on which it is done is identified not by number but by company vernacular. On November 3, 1960, five lines were being operated at the Company's factory. One was a combination line of General Time M-4 and Ingraham 01912, others were Bendix Peaking Coil, Bendix Log, Wurlitzer, and General Time M-5. On that day, the M-5 and Wurlitzer lines were discontinued because of need for re- scheduling and completion of orders. On November 10, the Ingraham 01912 and Bendix Log lines were discontinued. With this background it should be noted that the General Counsel does not deny that during the fall of 1960 the Respondent, for economic reasons, reduced its employee complement; however, he says that the selection for layoff and the sub- sequent failure to recall known union adherents who testified on behalf of the Gen- eral Counsel in Case No. 10-CA-4445 was motivated because of their concerted activity and their activities in favor of or for the purposes of union organization. At the hearing, I was requested by counsel for the General Counsel to consider certain specifically cited portions of the stenographic transcript of record in Case No. 10-CA-4445, which I refused to do. Counsel for the General Counsel then offered testimony through witnesses going to show, for background purposes only, animus against the Union and its adherents (including the alleged discriminatees herein) by the Company and its officers and agents.' The General Counsel in effect says that prior to union organizational efforts in the Mosheim factory, the employer observed seniority status of employees in regard to layoffs and recalls. The Respondent asserts that seniority was never the governing factor. Without regard to any question of credibility of witnesses, and considering only the question of seniority in connection with layoffs and recalls, the General Counsel in his brief has analyzed the record. I have reviewed quite carefully the information compiled by him from the exhibits and the testimony in this case and find it sub- stantially accurate. Circumstantially, and on the basis of the facts reflected, the five named employees are shown to have been discriminated against in regard to their continued employment with the Company. The following summaries, as submitted by counsel for the General Counsel, support the contention that the Respondent (usually and customarily) followed seniority in layoffs before union organizational activity began. '.Testimony offered in this respect was received and in material respect does not differ from the findings based on.the testimony of the same witnesses made by Trial Examiner Vose in his Intermediate Report. SOUTHERN ELECTRONICS COMPANY, INC. 87 C. Employment action on apparent seniority basis-1953 through November 18,1960 A review of employment dates of all employees over the above -mentioned period of time and their history shows strong support in favor of the contention of the General Counsel that seniority generally was observed in connection with layoffs and recalls: Employment action on apparent seniority basis-1953 through November 18, 1960 1953 Name Original date of Layoff or other action employ- ment Lois Stubblefield -------- 5/ 2/53 Continued working Geneva Hankins-------- 5/15/53 Quit 8/31/60 Pearl Brown ____________ 5/18/53 Continued working Mary Fannon ___________ 5/18/53 Recalled 11/21/60 Evelyn Reaves__________ 5/21/53 Continued working Marv Wilderson _________ 6/22/53 Do Viola Humphreys -______ 6/22/53 Do Betty Beach _____________ 6/24/53 Do Della Knight____________ 7/20/53 Do Ruth Myers_____________ 7/31/53 Recalled 11/21/60 Alma R Idell ___________ 8/24/53 Continued working Imogene Malone _ _ _ _ _ _ _ _ 9/ 6/53 Do Nanme Bacon ___________ 9/21/53 Voluntarily quit 10/17/60 Cora Belle Foshee ________ 9/28/53 Georgia Harmon _ _ _ _ _ _ _ _ 10/23/53 Recalled 1/16/61. 1954 Otha Foshee _____________ 7/ 7/54 Discharged 8/3/60-witness for G C -Case No. 10-CA-4445 Dessie Willis. ........... 7/19/54 Continued working. Roberta Kelley__________ 8/ 1/54 Requested layoff Lavada Norton__________ 8/18/54 Maternity leave 4/27/60-recalled 1 /16/61. Blance Lady _ __-________ 8/23/54 Continued woi king 1955 Nebraska Wilhoit _______ 8/16/55 Requested layoff. Evelyn Weerns ___________ 8/22/55 Lillia M Foulks________ 8/29/55 Continued working Alta E Walker __________ 8/31/55 Do Connie Dyer ____________ 10/18/55 Quit 8/26/60 Margaret Brown_________ 10/20/55 1956 Selma Sizemore---------- 6/22/56 Requested layoff Kathleen h utton -------- 7/16/56 Recalled 11/21/60 Veda Hope______________ 7/29/56 Continued working Marcelle King___________ 8/ 3/56 Requested layoff Martha Swift____________ 8/ 7/56 Recalled 1/18/61 Cora B Taylor__________ 8/ 7/56 Requested layoff Dorothy Barham________ 8/14/56 Do Dorothy Jeffers __________ 8/22/56 Continued working Mildred Gulley _________ 8/27/56 Do Mary Carter ____________ 8/27/56 Do Cosby Black ____________ 9/14/56 Do Mary_ M Justis _-_______ 11/ 8/56 Do. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1957 Name Original date of Layoff or other action employ- ment Janet Weems____________ 8/ 5/57 Leave of absence 7/25/60 Leon Ricker_____________ 8/,8/57 Continued working Jane Hardin_____________ 8/12/57 Louise Kesterson --------- 8/15/57 Peggy Livingston------- 8/20/57 Maternity leave 2/2/58-recalled 8/12160. M June Evans__________ 9/16/57 Continued workmg Marie Wheeler- =_______ 9/16/57 Requested layoff. Sidney Greene___________ 10/21/57 Continued working 1958 Nancy Skidmore-------- 4/22/58 Quit 8/19160 Ralph Dixon............ 6/11/58 Continued working. Edna Bowman__________ 8/20/58 Do. Helen Brown____________ 8/21/58 Maternity leave 1/1/60-recalled 8/3/60-home with sicli son at time of Louise Gammon_________ 8/25/58 0/16/60 layoff Continued working. Leora Lowe_____________ 8/25/58 Recalled 1/16,61. Evelyn Seay--------- ___ 8/25/58 Recalled 1/17/61. Louise Smith _______-____ 8/25/58 Continued working Shirley E. Wheeler------ 8/25/58 Unknown Leona Massey -_________ 8/26/58 Requested layoff. Betty Wells_____________ 8/27/58 Recalled 1/17/61 Betty Payne ------ 9/ 2/58 Maternity leave 8/19/60. Edna McAmis__________ 9/ 8/58 Maternity leave 8/8/60. Phyllis Carter___________ 9/22/58 Recalled 1/18/61. Samuel Colyer__________ 9/22/58 Continued working. Jewell Gulley____________ 9/22/58 Do. Mary Stioud____________ 10/ 9/58 Recalled 11/21/60. Betty Crum_____________ 10/13/58 Continued working. June Farris______________ 10/13/58 Recalled 1/17/61. Annie Ora Grimes_______ 10/13/58 Opal Louderback________ 10/13/58 Requested layoff 7/7/60-recalled 9/6/60. Dorothy Pruitt__________ 10/13/58 Recalled 11/21/60., Wilma Price___ --------- 11/ 6/58 Recalled 1/16/61. Betty Rader_____________ 11/ 6/58 Recalled 1/17/61 Neppie Beach___________ I1/ 7/58 Recalled 11/21/60. Imogene Dixon__________ 11/10/58 Continued working. Madge Williams--------- 11/10/58 Recalled 7/25/60-laid off 9/16/60. Carolyn Gregg.......... 11/13/58 Continued working Marlane Pruitt__________ 11/13/58 Do Betty Bales_____________ 11/14/58 Recalled 8/1/60-laid off 9/16/60 Jeannette Jeffers ______-__ 11/18158 Continued working. Mary J. Tullock__:_-____ 11/20/58 Maternity leave 12/29/59. 1959 Matthew Shelton_______ _ 10/19/59 Voluntarily quit 1/6/61. Bill McAbee --_-________ 11/ 4/59 Recalled 1/9/61. Leroy Malone___________ 11/ 8/59 Continued working. ]Kathryn Carter_________ 12/ 3/59 Ada Barham ________-___ 12/10/59 Recalled 1/18/61. Allene Cupp ___.________ 12/11/59 Do. Nellie Johnson ___.______ 12/11/59 Lola Cutshaw.__._______ 12/21/59 Recalled 7/11/60-laid off 9/16/60. SOUTHERN ELECTRONICS COMPANY, INC. 1960 89 Name Original date of Layoff or other action employ- ment Ruth Keasling ---------- 1/ 5/60 Leave of absence 9/16/60. Ruby James------------- 1/11/60 Requested layoff- recalled 2/22/61. Verneil Richards -------- 1/11/60 Imogene Shipley -------- 1/11/60 Recalled 1/17/61 Doris Holt-------------- 1/12/60 Betty Honeycutt -------- 1/12/60 Recalled 7/25/60- laid off 9/16/60. Helen Darnell----------- 3/15/60 Not previously employed. Fay Wastes -------------- 6/22/60 Do Marion Dixon----------- 8/ 8/60 Do Charlotte Malone------- 8/ 8/60 Do D. Analysis of layoffs and recalls by date Shown in the background of the case are layoffs , one on September 16, one on November 3, one on November 10, and the last on November 18, 1960. An exami- nation of the payroll data submitted again supports the contention of the General Counsel that the dates alone of layoffs and recalls show discriminatory action taken against the five named employees herein involved: September 16, 1960, layoff Name Date hired Date recalled Date layoff Comments Annie Grimes ---------- lu/13/58 Doris Holt------------- 1/12/60 Charlotte Malone------ 8/ 8/60 Marion Dixon ---------- 8/ 8/60 Helen Darnell ---------- 3/15/60 Betty Honeycutt------- 1/12/60 Verneil Richards ------- 1/11/60 Imogene Shipley------- 1/11/60 1/16/61 Ruth Veasley---------- 1/ 5/60 Lola Cutsbaw ---------- 12/21/59 Nellie Johnson--------- 12/11/59 Katherine Carter------- 12/ 3/59 Betty Bales------------ 11/14/58 Madge Williams -.----- 11/10/58 Opal Louderback------ 10/13/58 Leora Lowe------------ 8/25/58 1/17/61 Requested leave of absence 7/8/60-recalled 9/6/60. Helen Brown---------- 8/21/58 Marie Wheeler--------- 9/16/57 Requested layoff. Peggy Livingston-_---- 8/17/57 Maternity leave 2/2/59-recalled 8/12/60. Cora B Taylor--------- 8/ 7/56 Requested layoff. Marcelle King--------- 8/ 3/56 1/16/61 Do Selma Sizemore-------- 6/ 2/56 Requested layoff-recalled and refused recall. Nebraska Wilhoit------ 8/16/55 Requested layoff. Roberta Kelley --.----- 8/ 1/54 Do. June Farris------------ 10/13/58 9/ 21/60 Maternity leave 4/19/60-recalled 7/26/60. Lou=se Kesterson------- 8/15/57 9/21/60 11/ 3/60 Shirley Wheeler-------- 8/25/58 9/21/60 11/ 3/60 Jane Hardin----------- 8/12/57 9/21/60 11/ 3/60 June Tullock----------- 11/20/58 9/21/60 11/ 3/60 Maternity leave 12/29/59 to 8/3/60. Fay Waites------------ 6/22/60 9/21/60 11/ 3/60 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 3, 1960, layoff Name Date hired Date recalled Date layoff Comments Ruby James ----------- 1/11/60 _ layoff Allene Cupp ___________ 12/11/59 1/18/61 Mary JuneTullock _ 11/20/58 ___ __________ aternity leave 12/29/59-recalled 8/3/60 Dorothy Pruitt ________ 10/13/58 11 /21/60 ---------- Phyllis Carter __________ 9/22/58 1 / 18/61 ---------- Betty Wells ____________ 8/27/58 1 /17/61 ---------- Shirley E . Wheeler ----- 8/25/58 _ Kesterson ------- 8/15/57 __ ---------- Jane Hardin ___________ 8/12/57 __________ ---------- Martha Swift ---------- 8/ 7/56 1/18/61 ---------- Fay Waites ------------ 6/22/60 ---------- --------- November 10, 1960, layoff Mary Stroud___________ 10/ 9/58 11/21/60 Neppie Beach __________ 11/ 7/58 11/21/60 2/10/61 Recalled 2/21/61 Ada B. Baiham _-______ 12/10/59 1/18/61 Wilma Price ___________ 11/ 6/58 1/16/61 June Farris ____________ 10/13/58 1/17/61 Kathleen Hutton______ 7/ 6/56 11/21/60 Margaret Brown ________ 10/22/55 Evelyn Weems ---------- 8/22/55 Cora Belle Foshee ______ 9/28/53 Ruth Meyers__________ 7/31/53 11/31/60 Georgia Harmon ------- 6/23/53 1/16/61 2/10/61 Recalled 2/22/61 Mary Fannon __________ 5/18/53 11/21/60 2/10/61 November 18, 1960, layoff Evelyn Seay ___________ 8/25/58 1/17/61 Leona Massey --_ 8/26/58 Requested layoff Betty Rader___________ 11/ 6/58 1/17/61 Bearing in mind the fluctuating operations of the Company due to the cancella- tions, scheduling, and rescheduling of orders and so on, the documentary evidence herein, as demonstrated above, shows conclusively that up until the time union organization activity began at the factory, seniority generally was observed in con- nection with layoffs and recalls. Circumstantially, at least, the cold record shows that there was a variation (whether or not there was a formal seniority list), in the employment, recall, or discharge of certain employees after the hearing in Case No. 10-RC-4390 on June 10, 1959. The Company does not now nor has it in the past maintained a formal seniority list. It has a comparatively small number of employees. The testimony of man- agement representatives, as well as some of those called by the General Counsel, however, shows that management is at all times cognizant of the time or times of employment of individuals and who-ranks-who in respect of length of service. As shown by the analysis of lists of employees and employment dates, supra, the. Com- pany, during the approximately 8 years it has carried on operations at its Mosheim factory, has, fortuitously or not, generally adhered to a seniority scheme. In practice, Harold M. Detrick, president of the Company, prepares a production schedule according to particular order as received, and immediately after this he turns over to Nealis Donn Bunch , the production manager, the particular schedule. Bunch is responsible for production planning and is in charge of personnel. He is solely responsible for hiring, layoffs, and recalls . When he receives a production schedule from President Detrick, he breaks each job down into line operations and fills the available positions on each line with employees he considers capable of performing the particular operation involved. The Respondent says that here, Bunch takes into consideration the experience, efficiency, and capability of each SOUTHERN ELECTRONICS COMPANY, INC. 91 employee for doing the work to be done; that layoffs of employees are made only for cause, by request, for shortage of materials or for lack of work. The Respondent, emphasizes that no other factors are taken into consideration. It is said on the Company's behalf that recalls are made on the basis of availability of work, openings available, and the skill, efficiency, and experience of available employees for a particular job. The Evidence With Respect to Discriminatory Action Taken by the Company Against the Alleged Discriminatees Herein Just Prior to the Layoffs of November 3 and 10, 1960 As I have indicated above, I am satisfied, in view of the general background of union organizational efforts together with the facts brought out in prior litigation in the representation cases and the subsequent unfair labor practice case heard by Trial Examiner Vose, that the Company interposed roadblocks to union organiza- tion which I believe were unjustified and in violation of Section 8(a)(1) and (3) of the Act. However, in view of the testimony in this case I am constrained to make findings of fact in regard to particular alleged discriminatory action against Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems. The seniority question was raised by employees, including Cora Belle Foshee and Margaret Brown, as early as February 1960, when they took a request to man- agement for seniority, paid holidays, and paid vacations. Again in October 1960, just before the layoffs of November 3 and 10, they protested to Production Manager Bunch that Group Leader Dessie Willis was again "following them to the restroom" as she had done in the 1959 union campaign, and informed Bunch that if they (Foshee and Brown) got union cards signed it would be on their own time, before work, at lunch, after work, or by visiting employees'-homes at night. Again it is shown through the testimony of Margaret Brown that layoffs made in April 1960 were discussed by her with Bunch on May 3, 1960, at which time Bunch said in effect that "if someone knifes you in the back it is only human nature for you to knife back." As noted above, Bunch had complete authority with respect to layoffs and recalls (according to current production demand) and that after the October conversation mentioned and since November 3, 1960, 11 employees were selected by Bunch for layoff including Jane Hardin and Louise Kesterson, and that on No- vember 10, 12 employees were laid off according to rough seniority, these layoffs including Margaret Brown, Cora Belle Foshee, and Evelyn Weems. The five witnesses called by the General Counsel in Case No. 10-CA-4445 were deprived of employment, without regard to their seniority, while other laid-off employees were recalled after comparatively brief periods of time, and some employees who had requested layoff. I am struck by the discrepancy in testimony of Bunch in connection with the hiring of new employees after the layoffs of November 3 and 10, 1960. The employment records show that two new employees were hired on August 8, 1960, when persons found to be discriminated against in Case No. 10-CA-4445 were not recalled. In the instant case, Bunch testified on cross-examination that no new employees had been hired but later conceded that there were some new employees put on the payroll: Q. (By Mr. TREzisE.) Well, I think we ought to get one matter straight here. As I understand it, there is no criticism or any complaints about the work of any of the five girls that are involved in this proceeding; is that right? A. (By Mr BUNCH.) That's correct. Q. So that your position is that when work picks up, there will be work and they will be recalled9 A. Yes, I stated that. Q. That was also your position in the last hearing as to the other layoffs, is that right? A. That is correct. Q. And isn't it a fact that within a week after the close of the last hearing, after making that statement in the hearing, you went and hired several new employees? A. No, there have not been any new employees hired Q. There is a stipulation in the record that we agreed to previously in the case; if that is a fact, then you stand corrected? A. Would you repeat the question. Q. The stipulation that we have entered into as to the hiring of employees, the dates of hiring, the dates of recall and the dates of layoffs, General Counsel's Exhibit No. 4; if that demonstrates that people were hired at the last hearing, then you stand corrected? 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I did hire some people at one time in between those times. Q. So you did hire some new people? A. Yes. The Defenses of the Company With Respect to Layoffs and Recalls On November 3, 1060, Jane Hardin and Louise Kesterson were working on the discontinued M-5 line and were laid off together with all other employees working on that line on that day. On November 10, 1960, the Ingraham 01912 and Bendix Log Lines were discontinued and there seems to be no doubt that at that time Cora Belle Foshee and Evelyn Weems were working on the Bendix Log Line; Margaret Brown was working either on the M-4 Line on November 10 or on the Ingraham 01912 Line up until approximately 2 weeks before her layoff on November 10. Without regard to contradictions in testimony and documentary evidence in the form of stipulated fact and analysis, I have no doubt that certain work on the lines above named were discontinued on November 3 and 10. I believe it immaterial to the real issues in this case as to whether the two girls on the first date and the three girls on the second date were available for work on other scheduled orders on other lines. I do not question in the least the Company's contention that orders once scheduled could be canceled, changed, and production timing altered to suit the convenience for the wishes or desires of a particular customer. Cora Belle Foshee was first employed on September 28, 1953; Evelyn Weems was first employed on August 22, 1955; Margaret Brown was hired October 20, 1955; Jane Hardin was hired on August 12, 1957; and Louise Kesterson was hired on August 15, 1957. Each of these employees was out of work, laid off, and not recalled on January 16, 1961. The Respondent offered in evidence the following list of recalls on that date: Employees Recalled January 16, 1961 Name of employee Date of hire Work performed Ada Barbara -------------------------------------- 12110/59 Wurlitzer Dorothy Barham---------------------------------- 8/14/56 M-5 special. Phyllis Carter------------------------------------- 9/22/68 Wurlitzer. Allene Cupp -------------------------------------- 12/11/59 Do. Martha Swift-------------------------------------- 8/ 7/56 Do. Imogene Shipley--------------------------------- 1/11/60 Do Leora Lowe--------------------------------------- 8/25/58 M-5 special Levada Norton------------------------------------ 8/18/54 Do. Georgia Harmon ---------------------------------- 6/23/53 Do. Betty Rader --------------------------------------- 11/ 6/58 Wmder. Wilma Price-- ------------------------------------ 11/ 6/58 Wurlitzer Evelyn Seay-------------------------------------- 8/25/58 Winder June Farris ---------------------------------------- 10/13/58 M-5 special. Betty Wells-------------------------------------- 8/27/58 Wurlitzer. This offer was supported by testimony offered to show that the girls recalled to work on January 16, 1961, were particularly qualified over and above the qualifi- cations of any of the five employees named in the complaint as discriminatees, and that the Company was justified in bypassing each one of the five on this particular recall. The Respondent argues that the recall of January 16, 1961, generally reflects that the Respondent's employees "are trained and peculiarly adapted to perform specific operations in connection with the prevailing `in-line' production methods employed by it." I do not agree. Without going into technical details, and only from the explanation given at hearing, I think that Jane Hardin and Louise Kesterson were qualified for work on the M-5 special line as they were admittedly qualified for work on the old M-5 line and that Margaret Brown, Cora Belle Foshee, and Evelyn Weems had the necessary ability or experience, in view of their background of employment and their work on several different lines, to perform the usual operation on what the Company calls the newly established M-5 Special and Wurlitzer lines. In connection with the list of 14 girls set forth above, who were recalled on January 16, 1961, to work on the M-5 Special and Wurlitzer lines, it is suggested by the Company that the list establishes that seniority was not considered in this recall SOUTHERN ELECTRONICS COMPANY, INC. 93 and there is no dispute that the particular girls recalled were suited by reason of experience and skill for the tasks to which they were assigned. This argument proves nothing. The question very well might be asked, without regard to argument, what there is in the record to show that any 1 of these 14 girls, experienced though they -night be, were better qualified to work on these 2 particular. lines than the 5 girls who were laid off-the 2 on November 3 and the 3 on November 10. Concluding Findings Not being inclined, and believing I have no right, to comment upon the findings of the Trial Examiner in Case No. 10-CA-4445 otherwise than I have as above, I shall not so do. Having heard a number of the same witnesses who testified there, here I find no reason to disturb the findings there made by the Trial Examiner. My essential problem is to determine whether the five employees here were dis- criminated against because they gave testimony in the prior case. I think discrimina- tion against their employment rights is demonstrated by the cold record, and so find. Implicit in this finding is that the Respondent discharged or otherwise discriminated against the five named employees (Hardin, Kesterson, Brown, Foshee, and Weems) because they gave testimony in a proceeding duly conducted under Section 10(b) of the Act. IV. THE REMEDY Having found that Southern Electronics Company, Inc., the Respondent herein, has engaged in unfair labor practices, my recommended order will direct it to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Southern Electronics Company, Inc., offer Jane Hardin, Louise Kesterson, Margaret Brown, Cora Belle Foshee, and Evelyn Weems immediate and full reinstatement to their former or substantially equivalent em- ployment, without loss of seniority or other rights and privileges, and make these employees whole for any loss of pay they may have suffered by payment to each of them of a sum of money equal to that which they normally would have earned as wages from the date of the discrimination against each of them to the date of offer of reinstatement to them, less their net earnings during said period, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. It also will be recommended that Southern Electronics Company, Inc., the Re- spondent herein, preserve and make available to the Board or its agents, upon re- quest, for examination and copying, all payroll and other records necessary to analyze the amounts of backpay due under the terms of my recommended order. CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. , 2. By laying off and thereafter failing and refusing to reinstate Jane Hardin and Louise Kesterson after November 3, 1960, the Respondent, Southern Electronics Company, Inc., has discriminated in regard to their hire and tenure of employment; and by laying off and thereafter failing and refusing to reinstate Margaret Brown, Cora Belle Foshee, and Evelyn Weems, the Respondent after November 10, 1960, has discriminated in regard to the hire and tenure of employment of these named employees. By the discrimination practiced against these five named employees the Respondent has interfered with the right of these and other employees to self- organization, to form, to join, or assist labor organizations, to bargain collectively through a representative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, in violation of Section 7 of the Act. 3. The violations of the Act, described in subparagraph 2, above, constitute vio- lations of Section 8(a) (1) and (3) of the Act. 4. By such discrimination as described above, and for laying off or discharging or otherwise discriminating against the five named employees herein, because they gave testimony under the Act, the Respondent has violated Section 8(a)(4) of the Act. 5. The aforesaid unfair labor practices affect commerce" within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]