Eastern Die Co.

EASTERN DIE COMPANY 601, WE WILL NOT unilaterally change rates of pay , wages, hours, or other terms or conditions of employment of employees in the above -described unit without prior consultation with the above -named labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Sec- tion8 (a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. EDMUND A. GRAY Co ., INC., Employer. Dated---------- --------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711, Ex- tension 1031 , if they have any question concerning this notice or compliance with its provisions. Eastern Die Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case No. 1-CA-3850. May 14, 1963 DECISION AND ORDER On February 20, 1963, Trial Examiner George J. Bott issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,1 conclusions, and recommenda- 1 The Respondent has excepted to credibility findings made by the Trial Examiner. As it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect , we find innsuificient basis for disturbing the Trial Examiner's credibility findings Standard Dry Wall Prod- ucts, Inc., 91 NLRB 544, enfd 188 F. 2d 362 ( C.A. 3). The Respondent's contention concerning alleged fabrication of testimony is predicated on certain matters quoted out of context and is clearly without merit. 142 NLRB No. 68. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of the Trial Examiner with the additions and modifications noted hereafter. 1. For the reasons stated in the Intermediate Report, we agree with the Trial Examiner's finding that -the Respondent violated Section 8(a) (1) 2 and (3) of the Act by interrogating its employees with regard to their union interests and activities, by threatening them with economic reprisals if they continued their union adherence, and by laying off Paul Arel on June 29, 1962, and Reginald Gagnon, Paul Fortier, Robert Polley, and Roland Cyr, on July 9, 1962,3 because of their union activities. The Trial Examiner correctly found that the evidence did not sustain Respondent's contention that the layoffs were motivated solely by economic conditions. The General Counsel hav- ing proved a prima facie case of conduct violative of Section 8(a) (3) of the Act, the burden was on the Respondent to come forward with credible evidence, in support of its contention that the layoffs were due to economic conditions, suffiucient to rebut the prima facie case.4 We agree that the Respondent has failed to meet this burden, and that the Trial Examiner's findings are supported by the preponderance of the credible evidence.5 2. The Trial Examiner apparently found merit in the General Counsel's allegation that the Respondent has, since the dates of the lay- offs, failed to recall the employees to their former or substantially equivalent positions or employment. We agree. The five alleged discriminatees were regularly employed in the Re- spondent's normal business of manufacturing shoe-cutting dies. Arel, Gagnon, Fortier, and Polley were finishers and Cyr was a bender in the diecutting department. This is a fluctuating operation, and it had been Respondent's practice, during the slack periods in the preceding 5 years to assign these men to polishing skate blades and other odd jobs around the plant rather than to lay them off as it did in 1962. On August 8, the Respondent mailed the following letter to each of the five employees : We are planning to reopen our polishing department next Monday, August 13, 1962. We would like to have you come back 2 The Respondent contends that the alleged instances of interrogation each constituted merely an "isolated exhibition of amiable curiosity" which failed to instill a fear of reprisal in the employees' minds and, hence, all are protected under Section 8(c) of the Act. We disagree . The statements and interrogations , when viewed in the full context in which they occurred , including the layoff of several union sympathizers , constitute interference and coercion within the meaning of Section 8(a) (1). School-Timer Frocks, Inc., 110 NLRB 1659, 1660 Moreover , it is well settled that statements of an employer need not have successfully intimidated or coerced employees in order to constitute viola- tions of Section 8(a) (1) The Dalton Company, Inc., 109 NLRB 1228, 1229. s Unless otherwise specified all dates are in 1962 * Marydale Products Company, Inc., 133 NLRB 1232, 1233, footnote 6, enfd . 311 F. 2d 890 (C.A, 5). 6 Because we have found that the Respondent 's conduct was violative of Section 8(a) (1) and (3 ) of the Act , we deem it unnecessary and immaterial to speculate , as the Trial Examiner did, near the end of section B of the Intermediate Report, as to the date certain machinery was purchased. EASTERN DIE COMPANY 603 to work and will you please call at our office as soon as you can this week. It you can not conveniently return to work this Mon- day, please let us know. Arel, Gagnon, Fortier, and Polley informed the Respondent that they desired to return and did, in fact, do so on Monday, August 13. Cyr did not respond to the letter. On returning to work, the employees were assigned to jewelry pol- ishing, an operation which the Respondent states it decided to under- take because its sole skate customer had gone out of business. None of the returning employees had ever worked on jewelry polishing, nor did they know until they reported for work on August 13 that the "reopen[ed] . . . polishing department" was undertaking work of a new and different nature. The jewelry polishing department, like skate polishing in previous years, was located on the second floor, above the die department, of the Respondent's plant. Unlike their previous experience, however, the discriminatees were, inter alia, warned by the Respondent's man- ager and foreman that they must use the side entrance of the plant to enter and leave their work, that if they went downstairs into the die department they would be summarily dismissed, that they would have to have the foreman punch their timecards inasmuch as the time clock was located in the die department, that they had to work in isolated booths, that they could not talk to or mingle with their fellow workers during coffee breaks, that they had to drink their coffee inside their work booths, and that they were not allowed to wear gloves to protect their hands while working on the polishing wheels. We find, like the Trial Examiner, that the Respondent failed to present any credibly valid and substantial reasons for imposing these restrictions. Rather, we agree with the Trial Examiner that the Respondent's attitude toward Arel, Gagnon, Fortier, and Polley, as described in the Intermediate Report, and the restrictions imposed upon them, is evidence of Respondent's resentment because of the employees' interest in the Union. We further specifically find that because of the undue and burdensome conditions under which Arel, Gagnon, Fortier, and Polley were required to work, the offer of em- ployment, as to them, though valid on its face, was not an adequate offer of reinstatement which would terminate the Respondent's back- pay and reinstatement obligations.' 3. Because we have thus found the offer of reinstatement inadequate we shall order the Respondent to offer employees Arel, Gagnon, Fortier, and Polley immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority 6 Cf. United States Air Conditioning Corporation, 141 NLRB 1278. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other rights and privileges, dismissing, if necessary, all employees hired since the original layoffs. We shall further order that the Re- spondent make the above-named discriminatees whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy,"' from the date of the discrimination against them to the date they shall return to work (pursuant to a valid offer of reinstate- ment), or the date on which they shall reject a valid offer of reinstate- ment,8 whichever occurs sooner. However, as to Roland Cyr, who did not reply to Respondent's letter of August 8 and to whom the letter was an unconditional offer of employment, the Board, contrary to the Trial Examiner's recom- mendation, will not order reinstatement and will toll his backpay award as of the last day on which he could have notified the Respond- ent of his willingness to return to work, i.e., the end of the business day on Friday, August 10. There is no indication that Cyr was aware he would be treated any differently or be assigned to different.work than before the layoff if he had accepted the offer of reemployment His failure to respond within the time allowed by the offer constituted an implied rejection. Cyr is, however, entitled to backpay, with in- terest, as recommended in the Intermediate Report from the date of the discriminatory layoff through August 10, the date of his refusal to accept reemployment.1e ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National,Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Eastern Die Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or in any other labor or- ganization, by laying off, discharging, or refusing to reinstate em- ployees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their activities on behalf of and intentions with respect to the above -named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8(a) (1) of the Act. 4 For the reasons stated in the dissenting opinion in Isis Plumbing ct Heating Co., 138 NLRB 716, Member Leedom would not award interest on backpay. 8 Laabs, Inc , 128 NLRB 374, 376. e Ekco Products Company, ( Sta-Brite Diviswn ), 117 NLRB 137, 150; Research Desig*- ing Service, Inc, 141 NLRB 211. w Laabs, Inc, supra. EASTERN DIE COMPANY 605 . (c). Threatening employees with economic reprisals because of their adherence to the above-named or any other labor organizations. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Paul Arel, Reginald Gagnon, Paul Fortier, and Robert Polley immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them as set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein. (b) Make Roland Cyr whole for any loss of pay which he may have suffered by reason of the Respondent's discrimination against him as set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post in its plant at Auburn, Maine, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, 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 First Region, in writing, u 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." 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, by laying off, discharging, or refusing to reinstate any of our employees, or in any manner discrimi- nating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their activities on behalf of and intentions with respect to the above-named or any other labor organization, in a manner constituting inter- ference, restraint, or coercion violative of Section 8(a,) (1) of the Act. WE WILL NOT threaten our employees with economic reprisals because of their adherence to the above-named or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist the above-named, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL offer to Paul Arel, Reginald Gagnon, Paul Fortier, and Robert Polley immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrim- ination against them. WE WILL make Roland Cyr whole for any loss of pay suffered by him as a result of the 'discrimination against him. EASTERN DIE COMPANY 607 All our employees are free to become, remain, or refrain from be- coming or remaining members of International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization. EASTERN DIE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to. full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston 8, Massachusetts, 02108, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on July 5 and amended on July 13, 1962, against Eastern Die Company, herein called Respondent or Company, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated August 14, 1962, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent's answer admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held before Trial Examiner George J. Bott at Auburn, Maine, on October 4 and 5, 1962. All parties were represented at the hearing. Subsequent to the hearing, General Counsel and Respondent filed briefs which I have considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Eastern Die Company is a Maine corporation with its principal office and place of business in Auburn, Maine, where it is engaged in the manufacture, sale, and distribution of shoe dies and related products. The Company, during the year 1961, in the course and conduct of its business operations, caused to be manufactured, sold, and distributed at its Auburn plant, products valued at in excess of $50,000 of which products valued at in excess of $50,000 were shipped in interstate com- merce directly to States of the United States other than the State of Maine. Re- spondent admits, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The facts As of June 29, 1962, the Company employed 21 production and maintenance employees, and during the lunch period on June 28, 1962, the Union began its campaign to organize them by distributing literature in front of Respondent's plant. The pamphlets appealed to employees to attend a meeting that night at a hotel in Lewiston, Maine, which adjoins Auburn. Eight of Respondent's employees, namely, Paul Arel, Reginald Gagnon, Paul Fortier, Robert Polley, Roland Cyr, Donald Demers, John O'Day, and Romeo Beachard, attended and signed union authorization cards at the meeting. Frank Kilgore, a diemaker, who has been employed by the Company or its prede- cessor for 15 years or more, testified, and I credit him, that about 6:30 p.m. on the day the Union distributed pamphlets, Ray Bellavance, Respondent's plant manager, visited his home for the first time in over a year. Bellavance said he understood the Union had appeared at the plant that day, and asked Kilgore if he knew anything about it. Kilgore told Bellavance that he had been given a pamphlet and knew there was a meeting that night, but could not remember where. Bellavance asked Kilgore for the pamphlet, and Kilgore told him that he had left it on a shelf in the plant. When Bellavance asked Kilgore if he was going to the meeting, Kilgore told him he was not interested. After a few minutes of social conversation, Bellavance left. When Kilgore reached work the next morning he looked for the pamphlet but it was gone. Paul Fortier, one of the alleged discriminatees, testified that the Union passed out leaflets again on June 29, 1962, and that he talked with two union representa- tives in front of the plant at lunch time. About 12:45 p.m., Fortier went in the plant to punch his timecard and saw Bellavance and employee Snow near the time- clock. He testified that he heard Bellavance say that the men outside the plant were no good and should go back to Massachusetts. Fortier was corroborated in basic detail by Robert Polley who testified credibly that while some of the employees were talking to the union representatives in front of the plant at lunch time on June 29, Bellavance was in the doorway of the plant watching the employees. He heard Bellavance make a derogatory remark about the union men who were stationed outside the plant. Polley stated that Bellavance also said something to the effect that "... it would get the boys in trouble." At the end of the lunch period Polley returned to work, and while at his bench, Bellavance approached, threw a union leaflet on his bench, and asked the employee if it belonged to him.' Employee Paul Arel was handed a union leaflet on June 28, 1962, and discussed its contents with the union representatives and some employees. He received some blank union cards at the meeting for distribution and solicited two employees the next day. At noon he again talked with the union representatives in front of the plant and observed Bellavance watching him. At 3 p.m., Arel was notified that he was laid off. Bellavance told him that there was no work and that seven or eight other employees would also be laid off. On June 29, the plant shut down for a 1-week vacation period, but that was the last workday for five other employees who had attended the union meeting on June 28. When employees Gagnon, Fortier, Polley, and Cyr reported to work on Monday morning after the holiday, Plant Manager Bellavance was waiting for them outside the plants Bellavance told the four men that they were laid off because of lack of work. The complaint alleged that Respondent laid off Arel on June 29, and Gagnon, Fortier, Polley, and Cyr on July 9, 1962, because they had joined or assisted the Union. The record shows that it had been the Company's policy for the last 5 or 6 years not to lay off employees who perform the die operations when work slacks off but to provide other work for them, such as polishing skate blades or general cleanup work. This was the first layoff for most of the alleged discriminatees in their employ- ment history. Prior to the layoff the Company employed six finishers and five benders, which was the normal proportion of such classifications in the die department. Of the eight employees who attended the union meeting, six were finishers and one was an appren- Employee Demers testified credibly that he saw Bellavance pick up the union leaflet which Polley dropped. 2 Employee Beachard had a 2-week holiday and was not due back until July 16. He did not return to work. EASTERN DIE COMPANY 609 tice bender. The Company laid off four finishers (the fifth finisher at the meeting, Beachard, did not come back from vacation) and Cyr, the only bender at the meet- ing. The employees laid off had more skills, experience, and time with the Company than at least two of the employees retained. Carron, an apprentice bender, who had not attended the meeting, was retained, but Cyr, an older more experienced employee, was let go. Likewise, Emery, an employee with very little experience, was kept while Arel, Gagnon, and others, with up to 8 years' experience, were laid off. During the month of June, just prior to the layoff, the five alleged discriminatees worked a substantial number of hours of overtime, Arel and Polley, for examples, putting in 40 hours. After the layoff, some of the work formerly performed by the laid-off finishers was done by the foreman, by one Blanchard (a combination errand boy and finisher), and by a former employee who was called in to assist the Company. On August 8, 1962, Respondent wrote the laid-off employees offering them work in a newly established polishing department. Cyr did not respond, but Arel, Gagnon, Fortier, and Polley returned to work. Arel and Gagnon testified that the day after they got the letters, they visited the plant to see Bellavance to inquire about the nature of the job. Bellavance, accord- ing to the employees, and I credit their testimony, was in a bad humor and was short, abrupt, and rude. In response to an inquiry from Gagnon about what kind of jewelry would be polished, Bellavance replied that it was none of the employee's business and that he would find out on the following Monday, if he took the job. When the employees asked if there was a chance of going back to their old jobs in the future, Bellavance replied that it was ". . . none of their G- d- business." He added, that if they wanted the jobs, it was up to them. Bellavance also instructed the men to use the side entrance of the plant in entering or leaving work, and not to leave work to visit the downstairs die department on pain of dismissal. This was contrary to the practice in previous years when employees polished skates. Polley also visited Bellavance as soon as he got his letter, and the new job was explained to him. Bellavance also told him not to leave the second floor on which the polishing operation would be conducted to visit the lower floor where the men previously worked. Polley at first refused reemployment, but changed his mind and reported for work on the following Monday after first advising Bellavance. On August 13 Arel, Gagnon, Polley, and Fortier reported for work and were assigned to jewelry polishing, an operation which is admittedly in no way similar to the die operations they performed before their layoff. In addition, the employees were not permitted to leave their work stations, to have coffee breaks away from the booths in which they worked, and were kept away from any contacts with em- ployees on the first floor. As indicated earlier, they were required to use a separate entrance to the second floor, and, although there was no timeclock in their depart- ment on the first day, the foreman took their cards and clocked them in on the down- stairs clock. Because of the nature of the work and general dissatisfaction with their working conditions, Gagnon, Polley, and Fortier quit their jobs as polishers in about a week.3 Gagnon quit on August 20, and Bellavance visited his home on the next day, but Gagnon was not at home. Mrs. Gagnon testified, and I credit her, that she told Bellavance her husband was looking for a job because he was unhappy with his working conditions. Mrs. Gagnon complained that the Company had retained em- ployees with less seniority than Gagnon in the recent layoff. Bellavance replied that he liked Gagnon but that he associated with the wrong crowd, and Bellavance ".. . had no choice in the matter." ' Based on this and other testimony about the nature of the work, General Counsel con- tends that the employees were not reinstated to substantially equivalent employment. It is clear that polishing jewelry is completely unlike finishing dies, and also that it is some- what unlike finishing the larger skate blades I do not think, however, that a final resolu- tion of the basic differences between skate polishing and jewelry polishing is necessary in this case. I will find, infra, that the complainants were discriminatorily laid off from their finishing jobs and that they were not given employment as polishers, merely on a temporary basis until the die department picked up, for Bellavance did not tell them so, and in fact, testified that machines to be installed later would eliminate the jobs of three finishers I do find, however, that regardless of the differences between skate and jewelry polishing, Respondent's treatment of the employees when they were recalled, such as Bellavance's attitude toward them, and the restrictions imposed upon them, is evidence of Respondent's resentment because of the employees ' interest in the Union. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arel also quit his job, but this was at Bellavance's suggestion. He testified credibly that his pay was attached on August 29 and Bellavance called him to his office to execute certain documents which would permit the Company to pay the creditor all of Arel's wages in excess of $30 (the legal exemption). Bellavance asked Arel how he expected to live on $30 a week, and Arel told him that he would probably have to quit his employment. Bellavance suggested that Arel ". . . get teed off at" Bellavance and quit at 4 p.m., and that Bellavance would telephone Arel at 6 p.m., and lend Arel $300. Bellavance told Arel that the employees should thereafter telephone Bellavance in a few weeks and he would ". . . get (his) job back down- stairs." Bellavance also commented that Arel would probably have to ".. . take a razzing...." Arel replied that he had taken such before. During the conversation between the two men Arel told Bellavance that he held no grudge because of his layoff. Bellavance told Arel that the Union was ". . . a lost fight...."; that the Company ". . . had it licked"; that Polley and the other employees had quit; and Bellavance did not understand why Arel ".. . was pursuing . this union bit." Bellavance also made a comment about all people making mistakes and said he hoped ". . . this was all over. . At 6 p.m., Arel received a telephone call from Bellavance telling him to come to the plant. When Arel saw Bellavance he was given $200 in cash and an I.O.U. to sign which he did. Bellavance told him that $200 was all he could get. Arel told Bellavance that he would pay a hospital bill, which was the basis for the attachment, and live on the remainder of the advance until Bellavance called him back to his old job. During this meeting there was some conversation about unions. Bellavance said he did not see how a union could get into such a small shop as Respondent. Arel told Bellavance that he need not worry about him as far as the Union was concerned for he had enough of it. Arel was not called back to work. B. Additional findings; analysis and conclusions Contrary to General Counsel's allegation that Arel, Gagnon, Fortier, Polley, and Cyr were discriminatorily laid off because they joined or assisted the Union, Re- spondent takes the position that the layoff, and selection of employees therein, was motivated solely by economic considerations. Plant Manager Bellavance was Respondent's only witness. Bellavance testified that the normal business of Respondent is the manufacture of shoe-cutting dies for the industry, but when seasonal slacks in the shoe industry occur, and the manufacturers are not buying equipment, it has been Respondent's practice to assign its unneeded employees to the manufacture of other products. For the last 5 years employees have manufactured shoe skate blades in dull periods. Seasonal drops in the industry are unpredictable, sometimes occurring in June through September, or possibly peaking in October and dropping off in February. According to Bellavance, the Company had only one customer for skate blades, and even this was an unprofitable source. When this customer became bankrupt in January or February 1962, Respondent lost $39,000 on shoe die equipment furnished the customer, and lost its skate blade outlet. Respondent was left with an inventory of 18,000 pairs of blades and as a consequence of the loss of money and undis- posable inventory, the Company, in early 1962, gave consideration to replacing the skate blade part of its business with the manufacture of some other product on a year-round basis. The Company considered a sheet metal operation and jewelry polishing, but finding the sheet metal operation impracticable and expensive, decided on polishing costume jewelry, utilizing the space and basic equipment used in polish- ing skate blades. In addition to its substitution of jewelry polishing for skate polishing, the Com- pany also gave consideration to a reorganization of the die operations. This had been contemplated for several years as a method of streamlining the operation to make it more productive. The Company decided to install certain machinery in the die department which would eliminate three employees in that department. Bellavance testified that it was contemplated that those three employees would be transferred to polishing as their regular jobs. The machines have been purchased and were installed sometime in September 1962. Women were hired to perform the operations on the machines. After the decision was made to commence polishing jewelry, but weeks before the operation actually commenced. Respondent decided to select certain employees from the die department for layoff using as its criteria the relative importance and ease in replacement of the displaced classifications. It decided that the layoff should be among the finishers on the grounds that bending is a higher skill which requires years of experience and that finishers are more easily trained. In addition, the finishers had skate polishing experience and could adapt to jewelry finishing. EASTERN DIE COMPANY 611 Bellavance testified that there had been a drop of approximately 40 percent in die orders in June 1962, and that there had been no pickup at the time of the hearing in this case. This severe loss made the layoff urgent. Arel was the first employee notified of a layoff. Bellavance said he made the decision about Arel sometime during the day of June 29, and told his foreman, Joseph Gagnon, to notify Arel. He did not consult with anyone about the layoff of Arel, and did not tell Arel of it until the actual layoff. Later in the day, Bellavance told Arel that he was the first to go and that others would also be laid off. On July 9, after the annual week's vacation, Bellavance notified Reginald Gagnon, Roland Cyr, Paul Fortier, and Robert Polley that they were laid off for several weeks and that the Company would call them. Bellavance recalled the employees by letter of August 8, and assigned them to polishing on August 13. He explained that the employees were put to work in booths because the work required concentration if production goals were to be met. In addition, some separation of the employees would facilitate keeping an accurate count of the pieces assigned to each man and his production. With respect to the rule about leaving the department, he attributed this to the prevention of theft of the costume jewelry. He denied that there were any serious restrictions about talking or assembling at coffee breaks. In his testimony Bellavance denied or gave a different version of actions or state- ments attributed to him by employee witnesses. He denied that he had ever seen a union pamphlet, and explained his visit to Kilgore's home, on June 28, as being oc- casioned only by a desire to remind Kilgore to he on time for work the next day to complete an important order. This reminder was necessary, he said, because Kilgore has a "habit of drinking." He denied that he threw a union leaflet on Polley's bench, but remembered that a "folded piece of paper fell out" of the employee's pocket, ". . . one time [after] Mr. Polley had punched his timecard and was walking over to his bench," and that Bellavance picked it up, gave it to the employee, and cautioned him to take care of it Bellavance also denied that he, while in the company of employee Snow near the timeclock on June 29, 1962, made a derogatory remark about the Union. He recalled in detail, the time, the place, and the circumstances of his conversation with Snow which concerned Snow's work only, according to Bellavance. Bellavance's version of the Arel loan is radically different from Arel's. He said that Arel had given notice that he was quitting because of the attachment and he loaned him the money because he was a friend of Arel and of his family, and had been for many years. In addition his heart was touched by Arel's plight and the small children involved. Bellavance denied that the Union or unionism was brought up in any way in their conversations. It is my opinion, and I find, that General Counsel made out a prima facie case that the employees were discriminatorily laid off, and that it has not been rebutted by Respondent. A basic issue is Bellavance's credibility, for if he is believed, then the economic considerations involved in or surrounding the layoff might very well lead to a determination that the layoffs were innocently motivated despite such considerations as the timing, retention of younger and less experienced em- ployees, the working of overtime, replacement of the alleged discriminatees with machines and women, or various other factors as outlined above. However, I do not think that Bellavance was generally a credible witness. As explained below, I accept the testimony of the employee witnesses who testified about his actions over his account of the incidents, and, for similar reasons, I reject his explanation that the layoff was motivated solely by economic reasons. Employee Kilgore had no reason to lie about Bellavance's visit to his home. He did not go to the union meeting, signed no card, and evidenced no interest in the Union. He is still employed by Respondent, and is an old valuable and trusted employee. His account of the union meeting and Bellavance's interest in it was straightforward and unembellished. Bellavance's was elaborate and contrived. Bellavance's testimony that he went to Kilgore's home on the very night the Union held its meeting, when he had not been there for a year, merely to urge Kilgore to appear for work on time, and his statement, that when Kilgore told him about the union meeting he discouraged conversation about it by saying that he was not there to discuss such matters, is unbelievable. Similarly, Bellavance's testimony about Arel's termination and the $200 loan will not stand analysis. Bellavance was first examined by General Counsel as an adverse witness in his case-in-chief. Questioned about Arel's last day of work and reasons for leaving, Bellavance stated that Arel merely made the statement, "This is it, he was not coming back to work," and that when he was asked why, 712-548-64-vol. 142-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he said he did not feel like doing the work. No further reason for leaving was given, according to the witness. When examined as Respondent's witness, how- ever, Bellavance was able to give a detailed account of the wage attachment. In addition, Bellavance's story is logically defective . If the employee were quitting because his pay had been attached and he could not live on the remainder, and if Bellavance loaned the employee the money to do as he chose with it, the reason for quitting would have disappeared , for the debt would have been paid and the attachment lifted . It is apparent that Bellavance's plan was to ease from employ- ment the last of the union men as gently as possible with a loan or a gift. It must also be recalled that Arel's layoff and the retention of Emery, an employee with little service and fewer dependents , does not jibe with Bellavance's admitted knowledge of Arel 's numerous family and financial obligations , which Bellavance claims motivated the loan. Bellavance's recall and account of the details of the Polley-leaflet incident, and the Bellavance-Snow meeting at the timeclock impressed me as being fabricated. It should be recalled that Polley testified that Bellavance threw a union leaflet on his bench and asked him if it was his, and that Demers said he saw Polley drop the handbill . Bellavance's total recall of time, to the effect that "... Polley had punched his timecard . ," and place, namely, ". . and was walking over to the bench where he was employed ... ," and minor detail, namely, "and a folded piece of paper fell out of his pocket . . . ," is difficult to believe if the incident were as insignificant as he portrayed it. His account of the Bellavance-Snow meet- ing has the same defect . Two employees testified that Bellavance and Snow were in the doorway, or near the timeclock, when Bellavance made a disparaging remark about the union agents who were outside the plant. Employee Demers also placed Snow and Bellavance near the timeclock on the day in question . Bella- vance remembered that he was present with Snow at the place described , but denied the remark alleged. However, he did recall the day, the time, and such detail as the facts that: he was returning downstairs from his office ; Snow had punched his timecard ; the details of his conversation with Snow; and the fact that they " . were walking away from the timeclock toward the rear of the factory at the time." Bellavance had no reason to remember such a routine contact with an employee, and, moreover , the quoted matter about the direction in which the two were walking is significant . There was a controversy at the hearing about the ability of an employee outside the plant to see or hear a conversation at or near the timeclock . Bellavance's casual addition of the detail that he was walking toward the rear of the factory (which would make it less likely that employees outside would have seen or heard what he said ) convinces me that his account was embroidered. Bellavance did not deny that he had seen organizers in front of the plant or em- ployees associating with them . Neither did he deny that he told Mrs. Gagnon that her husband had gotten in with the wrong crowd . As indicated earlier, he testified that he had never seen a union pamphlet or discussed the Union with any employee. I have discredited Bellavance with respect to his conversations with employees as just set forth , and I find specifically on that evidence, and other matters in the record, that Bellavance knew by the afternoon of June 29 , 1962, that the alleged discriminatees were seriously interested in the Union . In addition to his observa- tion of employees with union representatives in front of the plant, his statement to Mrs. Gagnon , his conversation with Arel , his inquiries about the Union to Kilgore, his possession of the union pamphlet, his antiunion statement to Snow, the precipi- tous nature of the layoff, and the circumstances surrounding it, such as the over- time and disregard for experience , it also appears that Foreman Gagnon asked employee O'Day, on June 29 , 1962, if he had gone to the union meeting. These factors, taken with Arel 's open solicitation in a small plant, where employees work in close contact with their foreman , convince me that Respondent learned who was doing the soliciting and who attended the union meeting. Because Bellavance lied about his knowledge of union pamphlets , inquiries about the Union, and his attitude toward the union representatives , does not, of course, necessarily require me to discredit his testimony about other matters, such as the cause and circumstances of the layoff, particularly if corroborated or documented. Unfortunately , however, not only has his testimony on this subject no meaningful corroboration, and is unsupported by company books and records, but it contains inconsistencies and nonsequitors of the same nature found in the rest of his testimony. Bellavance testified that orders for dies fell off 40 percent in June 1962 and that there had been no pickup at the time of the hearing. However, he also testified that about 3 weeks before the hearing, he hired five women employees to EASTERN DIE COMPANY 613 operate machines which perform the same operations which the laid-off finishers performed. He also rehired an unnamed former employee for the die department. The hire of these six employees is obviously inconsistent with his fiat statement that there has been no pickup in orders since the layoff. Moreover, it leads me to believe that there was no sudden drop in orders as he testified. • In addition to the,basic inconsistency in his actions and testimony in regard to the layoff, Bella- vance also shifted his position about his reason for not offering the laid-off em- ployees work on the new machines. He first said that the operations performed by the women were not the same as those formerly performed by the men, but when it was pointed out that the men had actually done the same kind of work, Bellavance then relied on the fact that the men "had walked off the polishing" jobs as his reason for not recalling them. I have found earlier that the laid-off employees worked a substantial number of overtime hours in the month prior to their layoff, and that after the layoff the Com- pany utilized the services of its foreman, a former employee, and a combination er- rand boy-finisher to do some of the work formerly done by the laid-off employees. These facts alone tend to discredit Respondent's defense of a sudden drop in busi- ness, but, in addition, Bellavance's handling of this issue further discredits his testimony. In the first place, there was no explanation of the overtime before the layoff, and in the second place, Bellavance's account of the use of one Adolph Gagnon after the layoff is inconsistent on its face and contrary to the Company's professed policy of avoiding turnover among its old employees. It appears that Adolph Gagnon worked 38 hours in July 1962. Bellavance testified that Adolph Gagnon had been an employee of the Company for many years, but had left and taken a job in the post office. Gagnon, according to Bellavance, had often worked nights for the Company during peak periods in the past, and Bellavance thought that . in view of the fact that this person, although he had another job, was willing to come in to help us when we needed him, I felt to do a small favor for him at this point was all right." In other words, Gagnon wanted the work and Bellavance did him a favor. However, Bellavance immediately added that the Company had a special job in process involving Gagnon's special skills, and that the Company needed him, and "... he came in and helped us." In addition to the conflict about whether Gagnon needed the work or the Company needed Gagnon, it also appears that Reginald Gagnon could perform the operation involved, and that Adolph Gagnon performed more operations after his recall than just throat grinding, which was supposed to be the reason for calling him in the first place. Finally, regarding Adolph Gagnon, when asked by General Counsel whether the Company had any part-time employee come in to do finishing work after the finishers were laid off, Bellavance replied, "A person that has been doing this over a period of years." However, the record shows that prior to June 1962, Gagnon last worked for Respondent in June 1961. There are other matters in the record which cast an unfavorable light on Bellavance's testimony and the Respondent's defense. One of the reasons for selecting finishers for layoff, according to Bellavance, was because they had been skate polishers in the past and would fit into the jewelry operation. The finishers were not told when they were laid off what kind of an operation they would be recalled to, however, because, although the decision to have a polishing department had been made in early June, the date of actual operation was uncertain, said Bel- lavance. I do not believe that there was any kind of decision in June to polish jewelry, and this explains the lack of communication on that score to a group of em- ployees of long service who the Company claims it wished to preserve against turn- over for reasons of efficiency. If there had been a decision the more likely thing would have been to advise the employees to stand by. The Company's action in the circumstances indicates a sense of urgency to eliminate the union adherents. Finally, Respondent's whole account of its economic problems and management decisions related to them is vague and uncertain . Bellavance, as noted above, had a flair for detail in recounting his conversations with employees, but his testimony about the background of the layoff is generally fuzzy. The skate customer was lost some- time in January or February 1962, but as of July 9, 1962, when four men were laid off, the jewelry operation was still in the planning stage , and the record is uncertain about when it was actually decided upon. Similarly, a reorganization of the die operation had been under consideration for several years and the Company decided to purchase several machines. Although the decision to buy the machines, said Bellavance, was made in March 1962 , the machines were not installed until Sentember 1962. It was contemplated , he said, by the purchase of the machines to eliminate three finishers. The exact times of these decisions in reference to the layoff is 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cloudly. Questions remain unanswered . If the machines would do the work of the men, and if the decision to install them was made in March 1962, and the. equipment arrived on September 1, the purchase must have been made in August at the latest. Yet none of the employees slated for layoff were told that their jobs would be changed by the use of machinery for which they were employable, nor were they told in August, at the very time when they were voicing dissatisfaction about the polishing operation, that finishing machines which they could operate were on the way. I can only conclude that the decision about the machines was either made after the layoff or concealed from the employees in order to facilitate their quitting the polishing operation. In any event, the inexactitude and absence of documentary support for the entire economic defense has not helped Respondent's case. I find and conclude that Respondent laid off Arel, Gagnon, Polley, Fortier, and Cyr in violation of Section 8 (a) (1) and (3) of the Act. C. Independent violations of Section 8(a)(1) of the Act The complaint also alleged that Respondent illegally interrogated its employees about the Union; warned its employees to refrain from assisting the Union; and threatened them with discharge or economic reprisal if they joined or assisted the Union. I have found earlier that Bellavance interrogated employee Kilgore about the union meeting and his interest in it, and that Foreman Gagnon asked employee O'Day if he or anyone else had gone to the meeting. Although O'Day testified that Gagnon was joking, his own testimony shows that Gagnon insisted he was serious. O'Day did not give Gagnon a truthful answer, indicating that he did not take the inquiry lightly. I believe that O'Day was cautiously attempting to give no offense to his foreman or Respondent. In the circumstances, Foreman Gagnon's interroga- tions of O'Day and Bellavance's interrogation of Kilgore violated Section 8(a)(1) of the Act. The alleged warning and threat is found in Foreman Gagnon's statement to O'Day that he had better not get caught with a union leaflet, and in Bellavance's loud remark to Snow, overheard by the employees, that the union representatives stationed in front of the plant would get the employees in trouble. I find these statements to be in violation of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection 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 obstruct- ing commerce 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)(1) and (3) 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 will be recommended that the Respondent offer employees Paul Arel, Reginald Gagnon, Roland Cyr, Paul Fortier, and Robert Polley, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges, and make them whole for any loss of earnings they may have suf- fered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement, less interim earn- ings, and in a manner consistent with Board policy set out in F. W. Woolworth Com- pany, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of backpay. It will be further recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: "OVERTON MARKETS" 615 CONCLUSIONS OF LAw 1. The . Respondent, Eastern Die Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discriminating in regard to the hire or tenure of employment of Paul Arel, Reginald Gagnon, Roland Cyr, Paul Fortier, and Robert Polley, thereby discourag- ing membership in the above Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By engaging in the conduct set forth in the section III, C, above, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] Overton Markets, Inc.; J. W. Overton & Son, Inc.; Marvin B. Overton, Inc.; W. S. Overton, Inc.; Thomas L. Overton, Inc.; Lilton Davis; Frank McLaurin ; all d/b/a "Overton Markets" and Local 305, Amalgamated Meat Cutters and Butcher Work- ers of North America, AFL-CIO, Petitioner and Retail Clerks International Association, AFL-CIO, Local 233, Petitioner. Cases Nos. 5-RC-3822 and 5-RC-3825. May 14, 1963 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed' under Section 9(c) of the National Labor Relations Act, a hearing was held in the consolidated proceeding before Louis Aronin and Joseph R. Wirts, hearing officers 3 The hear- ing officers' rulings made at the hearing are free from prejudicial er- ror and are hereby affirmed 3 1. Each of the petitioning Unions seeks to represent employees in a unit covering 10 retail grocery stores located in the vicinity of Nor- 1 The names of the parties appear as amended at the hearing. The Petitioner in Case No.. 5-RC-3822 is referred to herein as Meat Cutters, and the Petitioner in Case No. 5-RC-3825 is referred to herein as Retail Clerks. 2 Hearing Officer Aronin presided over the hearing on July 9 and 10 and August 8, 1962, while Hearing Officer Wirts presided on August 15, 16, and 17, 1962. 8 Lilton Davis and Frank McLaurin, who purchased stores from A. W. Overton after the petitions herein were filed, moved to dismiss the petitions as to them, and some of the corporations moved to dismiss the petitions entirely, on the ground that (1) Davis and McLaurin did not receive due notice of the proceeding, and (2) Hearing Officer Aronin denied. their request for a continuance of the hearing. The hearing began at 10:30 a.m. on July 9, 1962, without the presence or knowledge of Davis and McLaurin. Both were present, however, during that afternoon and at all subsequent times. At the beginning of the hearing on the morning of. July 10, the hearing officer informed Davis and McLaurin what the issues were in these cases, and that they were parties to the proceeding with the right to participate fully and to retain counsel, and adjourned the hearing for 3 hours so they could obtain counsel. Counsel for Davis and McLaurin appeared when the hearing reconvened and represented them thereafter. On the afternoon of July 10, the hearing officer denied his request that the hearing be continued until he prepared his case, but on July 19, while the hearing was recessed as noted above, until August 8, he was provided with a transcript of the hearing for July 9 and 10. Under these circumstances, we find that ample opportunity was provided for that preparation of his case, and that no preju- dice has been shown. The motions to dismiss are, therefore, hereby denied. 142 NLRB No. 71.