Audio Industries, Inc.

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, CONCLUSIONS OF LAW 1. Brunswick Corporation is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the purview of Section 2(5) of the Act. 3. The Respondents have not engaged in the unfair labor practices alleged in the complaint. [Recommendations omitted from publication.] Audio Industries, Inc.' and General Teamsters, Chauffeurs and Helpers, Local Union No. 298. Case No. 13-CA-x.130. Febru- ary 14, 1962 DECISION AND ORDER On October 30, 1961, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed a brief in support of the Trial Examiner's Intermediate Report and 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 [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, with the following exception. 1 The Respondent's name as set forth above conforms to the pleadings as amended at the hearing. 2 On December 26, 1961 , the Respondent filed with the Board a "motion to reopen and remand (the case ) to the Trial Examiner for further hearing," and a supporting brief. Respondent points to the fact that , on September 5, 1961 , the Charging Party herein filed another charge against Respondent ( Case No. 13-CA-4424 ), alleging that the re- fusal to recall certain employees other than those involved herein was discriminatory, and that these employees "should have been named In the complaint Issued June 16, 1961 " The Regional Director refused to issue a complaint on the ground that the evi- dence was insufficient, and the General Counsel sustained his ruling. Respondent alleges that, since the surrounding facts In the two cases are similar , the refusal to Issue a com- plaint in the one should dictate the same result In the other, and it therefore asks that the record herein be reopened In order to introduce the record of Case No . 13-CA-4424 and to argue its point. Respondent's motion is opposed by the General Counsel. We see no merit in Respondent's contentions , and therefore see no necessity to reopen the record in this case . The fact that the totality of circumstances and events in Case No. 13-CA-4424 was deemed insufficient to warrant the issuance of a complaint does not mean that the circumstances and events In the instant case are Insufficient to have warranted the issuance of a complaint herein , even assuming that the background facts in the two cases are the same or similar . The motion is hereby denied s The Respondent filed a lengthy list of exceptions to the findings , conclusions, and recommendations of the Trial Examiner . We find that only Respondent's exceptions 135 NLRB No. 103. AUDIO INDUSTRIES, INC. 1009 In agreement with the Trial Examiner, we find that Respondent's failure to recall Frances Celebucki, Gertrude Rempala, Mary Ratliff, Walden Ratliff, and Janice Reed was due to the union activity of these employees, and that by such failure the Respondent violated Section 8(a) (3) and (1) of the Act. We do not agree with the Trial Ex- aminer, however, that the Respondent's failure to recall Lottie Ship- arski was because of her union activity. Shiparski was not a member of the Union's organizing committee, and hence her name did not ap- pear on the March 24 leaflet which was seen by the Respondent. She had attended union meetings and she wore a union button on the day of the election. However, there was no evidence that the button was seen by any representative of management and no direct evidence that any representative of management had knowledge of her union activities. Although Shiparski testified that her supervisor had asked her about her attendance at a union meeting, the Trial Examiner discredits this testimony. The Trial Examiner infers knowledge of Shiparski's union activities from the fact that this is a small plant, and that Shiparski had "openly espoused the cause of the Union." We do not agree that the inference is warranted in this case, and we therefore numbered 1, 2, 3, 22 , 24, 52, and 53 have any merit , and only to the extent discussed below. Exception 1: The Trial Examiner finds that "Respondent refused to concede that the Union was a labor organization." The record shows , however, that the Respondent stipulated at the outset of the hearing that the Union ( Charging Party ) is a labor orgnization ( within the meaning of the Act). Exception 2, The Trial Examiner finds that "in April 1960 , 11 employees, and in July 1960, 42 employees , including the six claimants , were laid off." Respondent claims that the correct figures should be 12 In April and 47 in July Our study of the tran- scripts shows the correct figures to be 12 in April and 48 in July , and we so find Exception 3: The Trial Examiner finds that "in August 1960 and March 1961, the Respondent recalled 31 of these 53 employees." Respondent claims, and we so find, that the correct figure is 32 employees recalled Although not excepted to, the figure 53 would also be wrong in view of the Trial Examiner 's mistake in the number of layoffs The figure should be 60 Exception 22: The Trial Examiner finds that , prior to her final layoff in July 1960, Rempala was last recalled in January 1960. Respondent claims she was last recalled in May 1960. Rempala testified that she was laid off "a couple of times " between January and July 1960 for periods of a week or two. Her record of employment and layoffs, how- ever, does not record these layoffs. Exception 24. The Trial Examiner finds that " . . Rempala in her spare time per- 11 formed operations other than phasing, such as wiring and mechanical assembly ... . The Respondent claims she did nothing but phasing . Rempala's testimony, which the Trial Examiner credited , was that she had spent time; on occasions, performing work such as putting bottoms on chassis , inspecting , and helping out in the wiring operation by stripping and cutting wires. The Trial Examiner apparently thought of the "putting bottoms on chassis " operation as "mechanical assembly ," since Respondent does have such a classification at its plant. Further, perhaps Respondent does not consider cutting and stripping wires as part of the actual "wiring" process . If these misclassifications can be called mistakes at all on the part of the Trial Examiner, they were of a technical nature only, and do not detract from his findings , conclusions , and recommendations. Exceptions 52 and 53: These exceptions are to findings as to Shiparski. We find them to have merit, insofar as they are consistent with our findings, below, as to Shiparski. We find no merit in the remainder of Respondent 's exceptions to the Intermediate Report. 634449-62-vol. 135-65 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reverse the Trial Examiner's finding that the Respondent violated Section 8(a) (3) and (1) of the Act by failing to recall Shiparski. ORDER The Board adopts the Recommended Order of the Trial Examiner, except that provision 2(a), and paragraph 3 of the Appendix, are modified by striking therefrom the name of Lottie Shiparski, and the Appendix modified by adding a final paragraph as follows: Employees may communicate directly with the Board's Re- gional Office (Midland Building, 176 West Adams Street, Chi- cago 3, Illinois; Telephone Number, Central 6-9660) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT This case was heard at Michigan City, Indiana, on August 30 and 31, 1961. The issue litigated was whether Audio Industries, Inc.,' herein called the Respondent, violated Section 8(a)(3) and (1) of the Act by the failure to recall six employees who had been laid off, as conceded by the General Counsel, for nondiscriminatory reasons. After the hearing briefs were submitted by the Respondent, the General Counsel, and the Charging Party. Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation organized under the laws of Indiana, with its principal plant in Michigan City, Indiana, where it manufactures electronic prod- ucts. Respondent annually ships from that plant to out-of-State points products valued in excess of $1,000,000. 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 General Teamsters, Chauffeurs and Helpers, Local Union No. 298, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act.3 III. THE UNFAIR LABOR PRACTICES The complaint as amended at the hearing, alleges that since on or about March 13, 1961, the Respondent has failed to recall from layoff status six employees, that such failure was prompted by their union activities, and that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act. The Respondent admits that none of the six was recalled, but contends that this was due to their inefficiency and not to their union activities. For reasons which will appear later, the General Counsel adduced evidence con- cerning the efforts of the Union to organize a firm identified in the record only as "Elco Electronics," which, like the Respondent, is located in Michigan City, Indiana. The Union's campaign at Elco was successful and culminated in a contract, which was executed in March 1960 for a term of 2 years. About March 1, 1960, the Union launched a campaign to organize Respondent's plant. An employee "organizing committee" was formed, of which five of the 'The Respondent's name conforms to the pleadings as amended at the hearing. =After the hearing, Respondent filed a motion to correct the record, which is hereby granted, in the absence of any objection. 'Respondent refused to concede that the Union was a labor organization However, evidence in the record amply attests that the Union meets the statutory definition AUDIO INDUSTRIES, INC. 1011 "claimants" 4 were members. On March 24 the Union distributed leaflets at the entrance to the plant, on which appeared the names of all 16 members of the organizing committee. These leaflets came to the attention of Edmund Dolembo,5 the Respondent's personnel director, and General Manager McClure. In May 1960, a Board election was held which was lost by the Union. In April 1960, 11 employees, and in July 1960, 42 employees, including the 6 claimants,6 were laid off for economic reasons. In August 1960 and March 1961, the Respondent recalled 31 of these 53 employees, but did not recall any of the claimants. In addition to the claimants, four other members of the organizing committee named in the March 24 leaflet, were among those not recalled. However, of the remaining seven members of the committee, Benson, the chairman of the committee, was never laid off, three others were laid off in July and recalled a month later, and the other three quit. Heisler, one of the employees laid off in April 1960, and not recalled, testified that a few weeks before he was laid off, he heard McClure say to a group of em- ployees in the plant that if the Union was defeated "There would be a lot of re- organization" and "there would also be a lot of the new faces there." At the hear- ing, McClure denied making this statement. I credit Heisler, as his interest in the outcome of the instant case was less immediate than McClure's,7 and the latter's testimony generally displayed more concern for protecting the interest of his employer than for disclosure of the truth.8 Early in March 1961, Edmund Dolembo placed an order with the local office of the State employment service, and Respondent hired 10 of the applicants referred pursuant to this order. Nine of them were hired as wirers, and only one of them had had any prior experience in this work. The records of the employment service introduced in evidence, relating to the foregoing job order, contain the following notation: "DO NOT REFER ANY FORMER EMPLOYEES OF AUDIO OR ELCO." Dolembo admitted that this notation was based on an instruction given by him to the employment service. Early in his testimony, he stated: "I stipulated I didn't want any former Elco employees, and I possibly said Audio-I think so." Subse- quently, Dolembo said, "I don't recall whether I said Audio employees at the time, but I remember saying Elco." Dolembo then asserted for the first time that he also specified that no referrals be made of any former employees of "any other competitors" of the Respondent, but, when asked how the employment service would know who those competitors were, he gave a confused and unenlightening answer. I deem the records of the employment service more reliable than Dolembo's vacil- lating and self-serving testimony, and find that he ordered no referrals to be made of former employees of the Respondent or of Elco, and made no reference in this connection to former employees of other competitors of the Respondent. Dolembo's explanation for the foregoing restriction on referrals was that Respond- ent had adopted a policy of not hiring former employees of Elco for the following reasons: (1) To prevent Elco from acquiring confidential information about Respondent's new models and designs. (2) To eliminate "job skipping" between the Respondent and Elco. (3) Employees who were not satisfactory to Elco would not be satisfactory to the Respondent. 'This term is used herein to designate the six individuals against whom Respondent allegedy discriminated. 6 His brother, Paul Dolembo, was president of Respondent, and his cousin, Joe Dolembo, a supervisor. Unless otherwise indicated, all references hereinafter to "Dolembo" apply only to Edmund, who was the only Dolembo to testify herein 6 One was laid off in April and five in July. 7 Heisler was a member of the Union's organizing committee at the time of his layoff, but by the time of the instant hearing he had severed his connection with the Union. 8 At the hearing, Respondent's counsel objected to Heisler's testimony concerning McClure's statements on the ground that counsel had reasons to believe that the subject matter of such testimony was investigated by the Regional Director in connection with a charge against the Respondent in Case No. 13-CA-3734, which was dismissed by the Regional Director. Respondent's counsel contended that the doctrine of res 9udicata foreclosed relitigation of the same matter here. I reserved ruling on this objection Even assuming that the Heisler-McClure incident was involved in such other case, I do not believe that the dismissal of the charge therein after ex parte investigation renders the doctrine of res judicata applicable here. Accordingly, I hereby overrule the foregoing objection. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to (1), Respondent's witness explained that Elco had in the past hired cer- tain key employees away from the Respondent , and that Respondent believed Elco had attempted to copy certain features of Respondent's design for its new models. When questioned as to how a policy of not hiring Elco employees could prevent the alleged pirating by Elco of Respondent's trade secrets, McClure, Respondent's general manager, stated, "An Elco employee that would have worked for Elco is probably friendly with more Elco employees." Militating against the foregoing explanation of Respondent 's "anti-Elco" policy are the following considerations: (a) Dolembo admitted that mere production employees were not as likely to acquire important confidential information as were design engineers , and he was vague as to what type of confidential information its production employees could in fact convey to Elco. (b) Dolembo admitted that Respondent did not require even its design engineers to sign an agreement that they would not disclose any of Respondent 's trade secrets. If Respondent was really concerned about such disclosure, it seems strange that it did not take such an obvious precaution. (c) Under cross-examination, McClure was unable to recall the date that Re- spondent adopted its "anti-Elco" policy. (d) Dolembo admitted that there were two other nearby plants in the same in- dustry as the Respondent-Dage Television and Television Associates-which, unlike Elco, had not been organized by any union. While, as already noted, Dolembo testified that he instructed the State employment service in March 1961 not to refer former employees of "any other competitors," 1 have, for reasons set forth above, refused to credit this testimony. While Dolembo stated that he could not recall hiring any former employees of Dage or Television Associates , he admitted that McClure had discretion to hire or not hire such persons . However, in the case of former employees of Elco, the burden of Respondent's testimony was that top management had adopted a policy of not hiring them. In fact, McClure testified that the one former Elco employee who was hired by him (in June 1961) was "cleared" by him with higher management.9 It is thus apparent from Respondent's own testimony, as well as from the contents of its referral request to the employment service, that Respondent had a different policy with regard to hiring former employees of (1) Elco, which was organized , and (2 ) its unorganized competitors. As for the remaining reasons advanced by Respondent for its anti-Elco policy, the second reason noted above was that Respondent frowned on "job skipping" be- tween Respondent and Elco. In this connection, Dolembo cited the case of an employee who had worked for both the Respondent and Elco "twice in a period of a few months." If this means that Respondent feared that former employees of Elco would not be stable employees , because of the similarity of skills involved in work for Elco and the Respondent , and the consequent ease of interchange of jobs between the two firms, it is not clear why the same considerations would not apply to Dage or Television Associates . Yet, as found above, Respondent did not place any limitation on referral of former employees of Dage or Television Associates , and McClure, by Respondent's own admission, had been free at all times to hire such persons. The final reason given by Dolembo for the anti-Elco policy was, as already noted, that Respondent did not want employees who were not deemed desirable by Elco. Here, again, why the differentiation between undesirable Elco employees and un- desirable employees of Dage or Television Associates? Moreover, if, as seems im- plicit in this reason, Respondent assumed that former employees of Elco were un- employed only because they had proved incompetent, why would not the same assumption be valid as to any unemployed person who had any record of prior employment anywhere ? Yet Respondent did not exclude from its referral request any person with a prior work record, but only those who had worked for Elco (or the Respondent). In sum, the foregoing considerations point strongly to the conclusion that Re- sondent had some reason for its anti -Elco policy other than those advanced at the hearing. The General Counsel contends that such reason was the fact that Elco 0In explaining this exception to the anti -Elco policy, McClure stated that the employee in question had previously worked for the Respondent, had a good work record, and had been highly recommended by her sister, who was one of Respondent's production em- ployees It is not clear how any of these circumstances gave Respondent any assurance that this employee would not leak trade secrets to her former associates at Elco. The fact that this employee was hired without any such assurance , further reflects on the veracity of the reasons advanced by the Respondent for its anti-Elco policy. AUDIO INDUSTRIES, INC. 1013 was organized. While Dolembo denied that he knew that Elco was organized, McClure admitted that he was aware of this fact, having read a newspaper report of the Union's victory in the election at Elco, and McClure stated that he did not discuss the organization of Elco with Dolembo because he thought it was "common knowledge." At the same time McClure testified that he participated with Paul and Edmund Dolembo in formulating the anti-Elco policy. In view of all the foregoing circumstances, I reject as incredible the explanation offered by Respondent for discriminating against former employees of the only plant in the same area and industry that was organized by a union, and am con- strained to agree with the General Counsel's contention that the sole reason for such discrimination was the fact that the Elco plant was organized, a fact admittedly known to at least one of the architects of such discriminatory policy (McClure) and which must also have been known to the other two, either because it was "common knowledge" or was imparted to them by McClure. The General Counsel contends further that the reason for the exclusion from Re- spondent's referral order of former employees of the Respondent was the same as that which motivated the exclusion of former employees of Elco-namely, that the Respondent, having recently experienced a union organizing campaign and laid off many of its prounion employees, wished to preclude the referral of such em- ployees by the employment service. The Respondent, on the other hand, contends that its reason for interdicting the referral of its former employees was that it had already recalled all those that it considered to be competent, and did not wish to have referred to it those who had not been recalled because of their incompetence, including the six claimants. Reso- ution of these contentions requires appraisal of the evidence relating to the compe- tence of each of the claimants. The fact that Respondent had manifested, by its anti- Elco policy, a predilection against hiring prounion employees, does not necessarily preclude a finding that one or more of the claimants was not recalled because of his or her inefficiency, particularly if it appears that the Respondent had no know- edge of such claimant's union activities. We turn therefore to a consideration of the cases of the individual claimants. A. Rempala Rempala worked for the Respondent from August 1956 to July 23, 1960. During this period she had been laid off because of seasonal suspensions in operations, but had been recalled on each occasion when operations resumed, the last such recall occurring in January 1960. In March 1960, Rempala became a member of the Union's organizing committee and was so identified in the leaflets distributed by the Union at the plant. She was active in soliciting other employees on behalf of the Union, and attended union meetings. She wore a union button at the Board election in May 1960. She was laid off for economic reasons on July 23, 1960. In August 1960, Rempala called the plant and asked McClure why he had not re- called her as he had certain other employees. McClure told her that the employees were being recalled in order of seniority and that she was second in line for recall.lo On March 6, 1961, not having heard from McClure, Rempala called the plant and spoke to Edmund Dolembo, who advised her that Respondent was about to do some hiring." Rempala testified further, and I find, that on March 10, she called Dolem- bo again, and asked him why Gallas, who had far less seniority, had been recalled. Dolembo promised to investigate and call her back, but neglected to do so.12 McClure testified that, in the case of Rempala, as in the case of all the other claimants , he was the one who made the decision not to recall. McClure laid his failure to recall Rempala to the fact that her primary task was "phasing," and that this operation had been eliminated by the installation of a new type of assembly line. He added that Rempala had a tendency to wander away from her work station. It is undisputed that during her 4 years with the Respondent Rempala in her spare time performed operations other than phasing, such as wiring and mechanical assembly, thereby acquiring some familiarity with such other operations. When one considers in addition that McClure admitted that even an inexperienced employee 1O This finding is based on Rempala's version, which differed from that of McClure I deem Rempala to be a more credible witness "This finding is based on the credible testimony of Rempala, which was not contra- dicted in any material respect by Dolembo iz Dolembo was unable to recall this conversation 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could be trained in a few days to perform most of the production tasks in the plant,13 and that Respondent, at the same time that it failed to recall Rempala , was hiring inexperienced applicants, the fact that Rempala's primary job had been abolished would not appear in itself to explain adequately Respondent's failure to recall her. There remains the second reason assigned by McClure for not recalling Rempala- namely, her tendency to leave her work station . However, this trait did not prevent McClure from recalling her in January 1960 after a layoff of about a month.14 The question remains whether Respondent knew of Rempala's union activities when it decided not to recall her. Dolembo admitted that he saw a copy of the union leaflet of March 24, 1960, on which her name appeared, but claimed that he had observed only one of the names on the leaflet-either that of Benson or of Walden Ratliff. Dolembo explained that he had merely caught a glimpse of the leaflet as it was being passed from one employee to another in the plant office. McClure denied knowledge of the union activities of any of the claimants. While he admitted that he had read the March 24 leaflet when it appeared, including the list of names of the members of the organizing committee, he denied that he had made any "mental note" of such names.15 Having found that Dolembo was averse to hiring Elco employees because of the unionization of Elco, I do not believe that he was so indifferent to union activities affecting Respondent's plant that he would make no effort to ascertain the contents of a union leaflet that was circulating in his presence in the plant office. There is even less reason to credit McClure's testimony that he made no mental note of the list of names on the March 24 leaflet. Not only did McClure participate in the formulation of the "anti-Elco" policy, but, as found above, a few weeks after the distribution of the March 24 leaflet he threatened reprisals against union ad- herents in his "new faces" speech. In view of these circumstances, his professed indifference to the identity of the leading proponents of the Union among his em- ployees strains credulity. Accordingly, I find that Respondent was aware of the connection of Rempala (and of four of the five other claimants) with the union organizing committee when the decision was made not to recall them. I find, fur- ther, in the light of all the circumstances, including McClure's demonstrated union animus, that this decision was motivated by such activities and not by the factors alleged by Respondent and that, by failing to recall her, the Respondent violated Section 8(a)(3) and (1) of the Act. B. Mary Ratliff She worked for the Respondent as a wirer from December 1959 to July 1960, when she was laid off In March 1960, she became "alternate chairman" of the Union's organizing committee and was so identified in the union leaflet mentioned above. She attended union meetings and wore a union button at the Board election in May 1960. McClure testified that he did not recall her after her layoff in July 1960 because she was uncooperative and too slow. However, her immediate supervisor, Geoffrion, testified that her work was "average," which was the same rating that Geoffrion gave to the four laid-off employees who were recalled by the Respondent in March 1961.16 In view of this testimony by one of Respondent's supervisors, who was in the best position to observe Mary Ratliff's work and compare it with that of the four girls who were recalled in March 1961, I reject McClure's testimony that he recalled these girls, while refusing to recall Ratliff, because of their superior performance, and that Ratliff was so inefficient that Respondent preferred to hire totally inexperienced 13 The phasing operation, which was Rempala's primary job, was one of the more skilled operations, requiring several weeks' training. 14 McClure became general manager of Respondent's plant in August or September 1959, at which time he, according to his testimony, instituted a policy of not recalling from layoff any inefficient employees. When asked at the hearing whether he could not have refused to recall certain of the claimaints (including Rempala) in January 1960, after a layoff, if he considered them unsatisfactory, he answered, "Yes, had I been sure." He did not elaborate on this answer There is accordingly no evidence, apart from this vague, cryptic remark, that McClure entertained any different opinion of the competence of the claimants in January and July 1960 I deem this remark alone insufficient basis for find- ing that there was any such change in McClure's appraisal of the claimants. 1c The foregoing narration of McClure's testimony regarding the leaflet is based on a composite of (1) his oral testimony at the hearing and (2) excerpts from his pretrial affidavit, which were adopted by him at the hearing 16 Gallas, Teriy, Karras, and Booth AUDIO INDUSTRIES, INC. 1015 employees in her stead . For reasons already related in the case of Rempala, I find McClure was aware of Ratliff's connection with the Union's organizing committee, having obtained knowledge of this connection from his perusal of the March 24 leaflet. In view of all the relevant circumstances , including Respondent's union animus as reflected in its anti -Elco policy and in McClure's "new-faces" speech, I find that Respondent refused to recall Mary Ratliff because of her union activities , thereby violating Section 8(a)(3) and (1) of the Act. C. Janice Reed Reed was first hired in March 1952, and worked as a wirer until July 23, 1960, except for seasonal layoffs and two periods of leave of absence, in 1953 and 1957.17 In March 1960, she became a member of the Union's organizing committee and was so identified in the union leaflet referred to above. She attended union meet- ings, solicited other employees on behalf of the Union, and wore a union button at the election in May 1960. At the time of her last layoff and for at least a year prior thereto, Reed worked at the head of an assembly line, feeding parts to other employees on that line. McClure testified that he did not recall Reed after her last layoff because she did not adjust her speed to that of the other employees on the line, but supplied them with parts at too fast a rate, thereby causing parts to accumulate at the other employees' stations. McClure said he believed that this impaired the efficiency of the assembly line and resulted in a defective product. McClure also cited Reed's excessive absenteeism as a reason for not recalling her. Geoffrion testified that Reed's work performance was average , but that Reed took more time off than the other girls. However, Geoffrion admitted that one of the girls who was recalled, Terry (whom Geoffrion also rated as an average worker), was intermittently absent from work because of sickness. Finally, although Mc- Clure claimed that when he became general manager in the fall of 1959 he adopted a policy of not recalling inferior workers in order to reduce the unduly high rate of rejects (i.e., defective products) and that he thought that Reed's "jerky" opera- tion might be responsible for defective production by the other girls on her assembly line, the record shows that Reed was restored to her job on January 26, 1960, after about a month's absence.18 McClure offered no persuasive explanation for thus rehiring Reed instead of availing himself of this opportunity to get rid of an em- ployee whom he regarded as jeopardizing the quality of the output of an entire assembly line. Moreover, McClure failed to explain why he did not shift Reed to another position in the line where her uneven pace admittedly would not affect the operations of the other girls. It was only after Reed became involved in union activities that Respondent deemed her work so deficient as to preclude her recall from layoff. Under all the circumstances, I do not credit McClure's testimony that Reed was not recalled because she was a less desirable employee than Terry, for example, who was recalled in March 1961. I find, for reasons already stated, that Respondent was aware from the March 24, leaflet of Reed's connection with the organizing committee , and, in view of the evidence of union animus used, cited above, I find that Respondent did not recall her because of such connection, thereby violating Section 8(a) (3) and (1) of the Act. D. Walden Ratliff He worked for Respondent from September 1958 until his layoff on April 22, 1960, except for a period of illness from December 3, 1959, to January 20, 1960. His classification was "stock chaser and receiving ," and he had miscellaneous duties in connection with the handling and routing of merchandise. He denied that he was ever criticized by management .19 About February 1, 1960, a remark was passed between Ratliff 20 and his supervisor , Joe Dolembo , about the organization of Elco 17 Her seniority dates from August 15 , 1958, when she returned from her 1957 leave of absence. 11 Respondent 's records contain the notation that on January 26, 1960 , Reed "returned after pregnancy ," whereas Reed testified that she was recalled after a layoff It is not necessary to resolve this conflict , as. In any event, Respondent had the opportunity to refuse to take her back, but neglected to avail itself thereof . See footnote 14, above. 19 Ratliff stated that during the Union's campaign McClure took away from him his key to the stockroom. However, as the significance thereof or reason therefor was not shown, I give no weight to this incident as reflecting either on Ratliff or on McClure 20 All references in this section to Ratliff denote Walden Ratliff 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Union. When Dolembo made a slurring remark about the Union, Ratliff answered that "any union is better than no union." 21 Ratliff's name was listed on the March 24 circular, which was seen by McClure. He solicited other employees to join the Union and wore a union button at the Board election on May 25, 1960. Ratliff was laid off for economic reasons on April 22, 1960, along with 10 other employees, who were laid off about the same time. None of them has been re- called. While 4 22 of the 10 were listed together with Ratliff on the March 24 leaflet, I do not draw any inference from the failure to recall them, as their cases were not litigated. Respondent's reason for not recalling Ratliff was, as testified by McClure, that, upon his return on January 20, 1960, after a period of sick leave,23 he exhibited a change in his personality. Accordingly to McClure, Ratliff "was so rough with the girls" in the stockroom that "they became afraid of him" and they asked McClure to stay with Ratliff while he was in the stockroom area. This "rough" behavior apparently consisted of dumping cartons on the ground instead of lowering them gently. According to McClure, this conduct caused the girls to apprehend that Ratliff might attack them. However, McClure admitted that he retained Ratliff until April 22, notwithstanding that the girls complained about him in January or Febru- ary, that he was laid off only because of a decline in business, and that he would otherwise have been retained. Thus, McClure's position appears to be that Ratliff's conduct did not warrant his discharge but did warrant not recalling him. It is difficult to understand why McClure's willingness to subject his female employees to the fear that Ratliff would harm them should depend on such a fortuitous cir- cumstance as fluctuations in business. These considerations prompt me to conclude that McClure either did not receive the alleged complaints about Ratliff or gave little weight to them at the time. In view of (1) the implausibility of McClure's explanation for not recalling Ratliff, (2) the fact that Ratliff, in February 1960, had indicated to his supervisor, Joe Dolembo, his prounion sentiments, (3) the fact that McClure had seen Rat- liff's name on the March 24 leaflets,24 and (4) the evidence cited above of Respond- ent's union animus, I find that Respondent did not recall Walden Ratliff because of his union activity, thereby violating Section 8(a) (3) and (1) of the Act. E. Shiparski She was employed by Respondent as a wirer from 1955 to July 23, 1960,25 when she was laid off and not recalled. She attended about six union meetings and wore a union button at the Board election on May 25, 1960. She testified that in March 1960, in response to a question by her supervisor, Geoffrion, she admitted that she had attended a union meeting. McClure laid his failure to recall Shipar- ski to her slowness and inefficiency. Geoffrion, on the other hand, rated her as average, which was the same rating Geoffrion assigned to the four girls recalled in March 1961. However, Geoffrion denied that she had asked Shiparski about her attendance at a union meeting. I was impressed by Geoffrion's courage and candor in testifying contrary to the interest of Respondent and contrary to the testimony of her own superior, McClure, concerning the comparative abilities of the claimants and of the employees recalled in March 1961, and I credit her testimony that Shiparski was as competent as the girls who were recalled in March 1961 While the alleged interrogation of Shiparski tended to reflect on Geoffrion per- sonally, and she may have had a motive to deny this incident which did not apply to her other testimony, I have determined to credit Geoffrion in this respect also, and reject Shiparski's testimony relating to the alleged interrogation incident. There is no other direct evidence that Respondent knew of Shiparski's union activity 26 However, the Board has frequently held that where an employee in a small plant openly espouses the cause of a union, it is proper to infer that management was 21 The foregoing findings as to the Dolembo-RatIiff conversation are based on Ratliff's uncontradicted testimony. 22Popard, Bundesman , Wilke, and Heisler x' Ratliff had undergone brain surgery. 24 Also, Edmund Dolembo, as already noted, while minimizing his familiarity with the contents of that leaflet, admitted that he might have seen Ratliff's name thereon zs Because of an intervening quit, her seniority dated from July 21, 1958. As Shiparski was not a member of the Union's organizing committee, her name did not appear on the March 24 leaflet There was no evidence that the union button she wore at the election was seen by any representative of management AUDIO INDUSTRIES, INC. 1017 aware of such espousal . In view of this rule, I find that such inference is warranted here.27 I find therefore that Respondent knew of Shiparski 's union activity, and I find further, in the 'absence of any credible explanation of the failure to recall her while hiring inexperienced employees in the same classification , and in view of Respondent's hostility to the Union, that Respondent did not recall her because of her union activity, thereby violating Section 8 (a)(3) and (1) of the Act. F. Celebucki Celebucki did not appear at the hearing . I reserved ruling on Respondent's motion to dismiss as to her. This motion is disposed of hereinafter. It is not disputed that Celebucki worked for the Respondent as a wirer from July 1959 until her layoff on July 23 , 1960, and that Respondent has not recalled her. She is identified in the March 24 leaflet as a member of the Union 's organizing committee. McClure testified that she was not recalled because she was a slow worker. However, Geoffrion, whom I have found above to be a more credible witness on this point, considered Celebucki's work as of the same caliber as that of the four girls who were recalled in March 1961. Celebucki's case appears to stand on the same footing in all respects as that of Mary Ratliff, for example. Accordingly, I hereby deny the motion to dismiss as to Celebucki and find that Respondent 's failure to recall her was due to her connec- tion with the Union's organizing committee, and that by such failure the Respondent violated Section 8 (a) (3) and ( 1) of the Act.28 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It is found that the Respondent discriminated with respect to the hire and tenure of employment of Lottie Shiparski, Frances Celebucki, Gertrude Rempala, Janice Reed, and Mary Ratliff by failing to recall them on March 13, 1961,29 and that the Respondent discriminated against Walden Ratliff by failing to recall him on Febru- ary 21, 1961.30 I will recommend that the Respondent be required to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them by payment to them of a sum of money equal to the amount they would have earned from the date of the discrimination to the date of the offer of reinstatement, less net interim earnings, to be computed on a quarterly basis in a manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Actual earnings in any particular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and, upon request, make z' The record shows that in July 1960 the plant complement was less than 75 Even, if one adds to this number the 11 employees laid off in April 1960, the total complement at the time of the union campaign would not exceed 85 28 The fact that an alleged discriminatee does not appear at a Board hearing does not preclude a finding in his favor, particularly where such nonappearance is due to the in- ability of the parties to locate him. Acme Waste Paper Company, 121 NLRB 18; Kuehne Manufacturing Company, 7 NLRB 304, 323; Atlanta Flour and Grain Company, Inc., 41 NLRB 409, footnote 11. Here, the record shows that the Charging Party sought to notify Celebucki of the instant hearing by telephone , but was unable to reach her. 29 I have selected this date because it was then that the Respondent hired 10 new em- ployees for jobs which the discriminatees were capable of performing 20 McClure testified that he hired a new employee on that date to perform work for which Ratliff was qualified and that he would have been recalled then but for his alleged intimidation of other employees. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available to - the Board payroll and other' records to facilitate the ' computation of the backpay due. ' As the unfair labor practices committed - by the, Respondent' are of a, character striking at the root of - employee rights safeguarded by the • Act; it will be recom- mended that the Respondent cease' and desist from infringing' in any manner upon the rights guaranteed in Section 7 of'the Act. Upon the basis of the foregoing' findings of fact, and upon the entire record in the case, I hereby adopt the following:. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of,the Act. 2. By discriminating in regard to the hire and tenure of employment of Frances Celebucki, Janice Reed, Lottie'Shiparski, Mary Ratliff, Walden Ratliff, and Gertrude Rempala, thereby discouraging membership in the Union, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8 (a) (3) and "(1) of the Act. " ' , 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the -Act. RECOMMENDED, ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, Audio In- dustries, Inc., Michigan City, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in General Teamsters, Chauffeurs and Helpers, Local Union No. 298, or any`other organization of its employees, by discriminating in regard to their hire, tenure, or any other terms or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist said Local Union No. 298 or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- poses of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary, to effectuate the policies of the Act: -- ' ' S I " I I . (a) Offer Lottie Shiparski, Frances Celebucki, Gertrude Rempala, Mary Ratliff, Walden Ratliff, and Janice Reed full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. ' (c) Post at its plant at Michigan City, Indiana, copies of the notice attached hereto marked "Appendix." 31 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps the Respond- ent has taken to comply herewith.32 If these recommendations are adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the event that the Board's Order is enforced by a decree of a United States Court of Appeals, there shall be further amended by substituting the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." 82 If these recommendations are adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " NEW ENGLAND WEB, INC., ETC. 1019 APPENDIX NOTICE TO ALL, EMPLOYEES c Pursuant to the Recommendations of a Trial Examiner of the National Labor'Rela- tions Board, and in order to effectuate the policies of the Labor Management Rela- tions Act, we hereby notify our employees that:, WE WILL NOT discourage membership in General Teamsters, Chauffeurs and Helpers, Local Union No. 298, or any other labor organization, by discriminating in regard to hire, tenure of employment, or any other term or condition of employment of any of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form a labor organization, to, join General Teamsters, Chauffeurs and Helpers,. Local Union No. 298, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any'and all such activities. WE WILL offer Lottie Shiparski, Gertrude Rempala, Janice Reed, Mary Ratliff, Walden Ratliff, and Frances Celebucki immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered as a result of the discrimination against them. AUDIO INDUSTRIES, INC., Employer. Dated-------- ----------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must hot be altered, defaced, or covered by any other material. New England Web, Inc.; National Webbing, Inc.; Tri -Dye Cor- poration ; The Conrad Manufacturing Company; Jarvis Manu- facturing Corporation and Rhode Island State Joint Board, Textile Workers Union of America , AFL-CIO. Case No. 1-CA- 3185. February 14, 1962 DECISION AND ORDER • On December 9, 1960, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in` the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed timely exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The i The General Counsel contends that the Trial Examiner committed reversible error be- cause ( 1) he purportedly prompted Respondents ' witness as to a reason for the discontinu- ance of the operation ; ( 2) he refused to permit the General Counsel to pursue questions as to Respondents' economic motivation , I e , concerning the Respondents ' alleged in- ability to pay higher wages ; ( 3) he refused to permit additional testimony concerning the interchange of work between New England Web and National Webbing; ( 4) lie failed to permit an amendment of the complaint to show an allegation of alter ego and successor- ship; and (5 ) he refused to permit testimony on alter ego and successorship On points 135 NLRB No. 102.