Nachman Corp.

NACHMAN CORPORATION 473 proceeding simply because it contains a checkoff provision which fails to spell out the requirements of the proviso to Section 302(c) (4) of the Act, unless the checkoff provision is either unlawful on its face or has otherwise been determined to be illegal in an unfair labor prac- tice proceeding or in a proceeding initiated by the Attorney General.lo As the checkoff provision in the instant case is not defective in the re- spects stated, we hold that it does not render inoperative the contract as a bar." In view of our findings herein, we shall dismiss the petition herein." [The Board dismissed the petition.] MEMBER JENKINS took no part in the consideration of the above Decision and Order. "We reiterate our holding in Paragon that no testimony and no evidence will be ad- missible in a representation proceeding where the testimony or evidence is only relevant to the question of the practice under a contract urged as a bar to the proceeding "To the extent that Keystone Coat, Apron & Towel Supply Company, et al, supra, is inconsistent herewith, it is hereby overruled. 12 Member Leedom agrees with his colleagues that under the rule of the Paragon case the checkoff clause in this contract does not remove the contract as a bar. Although Member Leedom dissented in the Paragon case, and in subsequent cases applying the Paragon rule, he now deems himself bound by the majority decision in Paragon, and accordingly concurs in the dismissal of this petition. Nachman Corporation and Domingo Perdomo and Joseph E. Richardson and Willie Mae Harrison and George D. Thomas and Marguerite Hawkins and Robert L. Scott and John Clark and Donald Milbourne and Helena Pagan and United Steel- workers of America, AFL-CIO. Cases Nos. 4-CA-20730-1, 4-CA- 2720-2, 4-CA-2720-3, 4-CA-2720-4, 4-CA-27f0-5, 4-CA-2720-6, 4-CA-0720-7, 4-CA-2720-8, 4-CA-2720-10, and 4-CA-2720-11. September 11, 1963 DECISION AND ORDER On March 26, 1963, Trial Examiner James V. Constantine 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 Inter- mediate Report. Thereafter the General Counsel and the Respond- ent filed exceptions to the Intermediate Report and supporting briefs. 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 Leedom and Fanning]. 144 NLRB No. 55. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner with the following additions and modifications. 1. In February 1958, United Steelworkers of America, AFL-CIO, herein called the Union, became the collective-bargaining representa- tive of Respondent's production and maintenance employees and continued as such representative until it was decertified on Febru- ary 14,1962, following an election which it lost. Because of economic conditions, Respondent began laying off employees in 1961 and continued such layoffs in 1962. From Febru- ary 14, 1962, the date of the decertification, to November 1962, Re- spondent laid off 49 employees, including 9 of the alleged discrimi- natees. The General Counsel does not contend that these layoffs were discriminatory. However, beginning late in February 1962, Respond- ent began recalling laid-off employees and hiring new ones. Of the 49 employees laid off as described, only 14 were not recalled. Among these 14 were 9 of the 11 alleged discriminatees? The General Counsel alleges that these nine, plus the two others who were not working on February 14, were not recalled to employ- ment for discriminatory reasons. These 11 employees constituted all the existing union officers or representatives who campaigned ac- tively for the Union before the decertification election 4 This marked I Respondent has excepted to the Trial Examiner's ruling refusing to require the General Counsel to produce pretrial statements of certain witnesses for the General Counsel pur- suant to Section 102 118 of the Board's Rules and Regulations Respondent first requested these statements after the witnesses had been examined, cross-examined, and excused. The purpose of the rule requiring the production of pretrial statements by witnesses for the General Counsel is to aid respondents in cross-examination of such witnesses Accord- ingly, the proper time for requesting statements is at the close of direct examination. A request made after a witness has been excused is too late. Arkansas Louisiana Gas Company, 142 NLRB 1083; Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294. Respondent has also excepted to the Trial Examiner's ruling permitting the General Counsel to amend the complaint to state that employees Milbourne, Allen, and Clark had been discriminatorily denied reemployment on March 27, 1962, rather than on March 12, 1962, the date stated in the complaint The General Counsel's motion was based on in. formation contained in General Counsel's Exhibit No 5, which he received from Respond- ent on the first day of the hearing We find no prejudice to Respondent in the Trial Examiner's ruling. Respondent's responsibility for unfair labor practices is determined by the proof and not by allegations in the complaint. Moreover, Respondent did not move for a continuance to permit it to adduce additional evidence to meet the amendment. Respondent has excepted to the blanket resolutions of credibility made by the Trial Examiner Although it would have been better practice to explain in each case of conflict why he credited one set of witnesses rather than another, we find that the Trial Examiner's mode of treatment was not prejudicial As we indicate infra, our finding of discrimina. tion is based on inferences drawn from facts which to a large extent are not seriously contradicted. 3 Two of the discriminatees were not working on February 14. One, Marguerite Hawkins, had previously been laid off, the other, Helena Pagan, was on maternity leave. 4 Although not employed on February 14, both Hawkins and Pagan campaigned for the Union prior to the decertification election The only high union official who did not NACHMAN CORPORATION 475 disproportion of known active union proponents and leaders among employees not recalled after layoff creates a strong inference that the failure to recall was motivated by discriminatory reasons.5 Respond- ent offers a. number of arguments to rebut this inference. It contends that seven of the alleged discriminatees were not re- called because of the caliber of their work, one for having previously embarrassed the plant manager, and three because their jobs had been abolished. As to the seven, the Trial Examiner found that Respond- ent did have cause for discharging them, but he also found this was not in fact the reason why they were not recalled. He pointed out that all were long-time employees; the alleged causes had existed for substantial periods of time without action by Respondent; in the case of two employees not recalled because of alleged excessive absenteeism Respondent had actually approved or given prior permission for such absenteeism, and when they were laid off several employees were told that they would be recalled. As to the one employee not recalled for having purportedly embarrassed the plant manager, the explanation is patently frivolous and in any event insufficient as a matter of law.' As to the three employees not recalled because their jobs had allegedly been abolished, each of them had performed more than one job in the plant and following their layoffs Respondent hired numerous new em- ployees "off the street" to perform jobs that these three individuals had performed or were capable of performing and yet were never offered the opportunity to do, although Respondent admittedly was satisfied with their past work performance. Respondent also contends in an effort to rebut the inference of dis- criminatory motivation that it still employs 13 former union officers and 37 other employees who presumably voted for the Union in the decertification election. But as to the former officers, still employed, there is no evidence that these were active in behalf of the Union dur- ing the campaign preceding the decertification election. In fact a number of them opposed the Union or were neutral. Of the rank-and-file adherents of the Union still employed none of them was actively participate in the election campaign was the president, who resigned his office shortly before the election. He was not laid off and has continued his employment with Respondent. 8 N L R B. v W. C Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276 (C.A 5), cert denied 344 U.S. 865; N.L.R.B. v. Wilson Line, Inc, 122 F. 2d 809, 812 (C A. 3) ; Syracuse Tank & Manufacturing Company, Inc, 133 NLRB 513, 525, and cases cited in footnote 15 thereof. 9 Although Willie Mae Harrison was an admittedly satisfactory worker, the plant man- ager claimed she was not recalled from layoff because, prior to a union meeting about a year previously, he had said something to her which he could not recall, and at the meet- ing had asked her to verify this statement and she had denied he had said it. Harrison had never been reprimanded or criticized for this alleged embarrassment to the plant manager. In any event, Harrison's alleged conduct was protected concerted activity. She could not be discharged for her failure to corroborate the plant manager at a meeting with the Union The Bettcher Manufacturing Corporation, 76 NLRB 526, 527. Accord- ingly, we do not adopt the Trial Examiner's finding that good cause existed for her discharge 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a leader in behalf of the Union even if they could be identified as being for the Union. In the circumstances of this case, the fact that Re- spondent retained some union adherents does not exculpate it from the charge of discrimination as to those not recalled.' We conclude, as did the Trial Examiner, that the alleged reasons for the failure to recall the 11 discriminatees were pretexts, and that the real reasons were connected with their leadership of the prounion forces within the Company, a movement toward which Respondent had a marked antipathy." Accordingly, we find, as did the Trial Ex- aminer, that by failing to recall to employment the 11 individuals named in the complaint Respondent discriminated against them in violation of Section 8 (a) (3) and (1) of the Act. 2. In his exceptions, the General Counsel urges that the Board find the specific dates on which the discriminatees would have been re- employed had Respondent not discriminated against them. The Trial Examiner in effect recommended that these determinations be left to the compliance stage of the proceeding. We adopt the procedure recommended by the Trial Examiner as being the most suitable means for making these necessary determinations. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner." 7 N.L R.B. v. W C Nabors, d/b/a W. C. Nabors Company, supra. 8 Respondent's hostility to the Union is manifested in a letter written to employees by Respondent's president a few days before the decertification election , in which he said: I believe, and your company believes, that all of us will be far better off without this Union. We are convinced that without their interference and without their program of trying to tell us how we should get along with each other, the Nachman Corpora- tion will be a happier and better place to work, It is reasonable to infer from this attitude, and the events in question, that, having been rid of the Union by the decertification election , Respondent determined to stay "rid" of it by eliminating those employees who might be expected to try to bring it back D 'The following shall be substituted for the paragraph immediately below the signature line in the Appendix attached to the Intermediate Report: 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 applica- tion 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Separate charges have been filed by Domingo Perdomo on August 23; Joseph E. Richardson, Willie Mae Harrison , and George D. Thomas on August 27; Marguerite Hawkins, Robert L. Scott, John Clark, Donald Milbourne , Helena Pagan, and United Steelworkers of America, AFL-CIO, on September 12, 1962 .1 On these charges and the aforesaid amended charge the General Counsel of the National Labor Relations Board , by the Regional Director for the Fourth Region (Philadel- phia, Pennsylvania), issued his consolidated complaint dated November 19, 1962, against Nachman Corporation, herein called Respondent or the Company, which, ' The original charge of United Steelworkers was amended on November 8, 1962. NACHMAN CORPORATION 477 as amended at the hearing, alleges in substance that Respondent has engaged in and is engaging in unfair labor practices as defined in Section 8(a)(1) and (3), and affecting commerce as defined in Section 2(6) and (7), of the National Labor Relations Act, hereinafter referred to as the Act. Respondent has answered. As amended at the hearing, the answer admits part of the complaint but puts in issue the commission of any unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner James VV Constantine at West Chester, Pennsylvania, from January 21 through 25, both inclusive. All parties were represented at and participated in the hearing and had full opportunity to introduce evidence, to examine and cross-examine witnesses, to submit briefs, and to offer oral argument. Briefs have been received from Re- spondent and the General Counsel. Before the General Counsel presented any evi- dence, Respondent renewed a written motion to sever the cases from one another so that they would be tried independently of each other. This motion filed on January 15, 1963, had not previously been disposed of. It was denied by me. At the close of the General Counsel's case, and again at the close of the hearing, Respondent moved to dismiss the complaint. These motions were denied on the ground that as a matter of law it could not be ruled that the General Counsel had failed to make out a prima facie case. Respondent's motion to correct stenographic record is granted absent opposition thereto. Upon the entire record in this case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation, is engaged among other places, at West Chester, Pennsylvania, in manufacturing, selling, and distributing mattress springs and related products. During the past year, it shipped products valued at more than $50,000 directly to points outside the Commonwealth of Pennsylvania. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it would effectuate the purposes of the Act to assert jurisdiction over this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America, AFL-CIO, herein called the Union , and its Local 5676, are labor organizations as defined by Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES Many of the factual issues were disputed and ably contested. Where dispute exists, it has been resolved in accordance with my evaluation of the credibility of the wit- nesses and reasonable inferences drawn from the evidence. In determining credibility I have credited some witnesses in part and rejected in part testimony of the same witnesses, whether they were called by the General Counsel, the Union, or the Re- spondent; but in general I have not narrated evidence in connection with the ap- praisal of the credibility of any witnesses. Trumbull Asphalt Co. of Delaware v. N.L.R.B., 314 F. 2d 382 (C.A. 7). All evidence has been considered, and none has been overlooked, in arriving at the ensuing findings of fact and conclusions of law. This case involves the alleged discriminatory failure or refusal to recall 11 em- ployees who, the parties concede, were lawfully laid off. I proceed to consider each of said employees individually. A. Joseph E. Richardson This employee started to work for the Company on October 2, 1952, as an operator of a hand-knotting machine in the upholstery department, under code num- ber GK. His starting wages were 98 cents an hour and as a result of increases he reached $1.52 an hour in a few years. About 1958 he was made a mechanic in the same department with a rate of $1.76 an hour. A year later he became a working leader in this department; but, when the department was "cut in size" 4 or 5 months later, he "voluntarily went back" to his mechanic's job. After 2 months in the mechanic's job, he was informed that the new working leader's duties absorbed those of the mechanic. As a result, he was displaced as a mechanic, but he was permitted to look for another job in the plant. After some 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD search he located and was appointed to an inspector's job in the box spring depart- ment, where his rate of pay was $2.01 an hour and his code number was PLB. This occurred in March 1960. He was discharged on November 8, 1960, because his wages were garnisheed for nonpayment of taxes, but he was rehired on April 17, 1961, as a result of an arbitrator's award disposing of a grievance protesting the discharge. When he returned in 1961, he was assigned to inspection work in the peerless department at the rate of $2.06 an hour, and thereafter performed inspection work there and in the nat mar department until March 12, 1962, when he was transferred to his original job of hand-knotter at $1.58 an hour. On April 8, 1962, Vince Naples, his work leader, laid him off for lack of work. He has not since been asked to return. In 1958 the Union and its Local 5676 started to organize Respondent's employees. Richardson assisted by "getting cards signed." In February 1958, the Union and its Local 5676 were recognized by Respondent. From then until February 14, 1962, when the Union and the local were decertified, Richardson served as its financial secretary. He also was elected chief shop steward in 1959, a position he held until February 14, 1962; and he also was elected shop steward in the peerless department. On behalf of the Union he also attended the decertification hearing held at the offices of the Board in Philadelphia. Others present for the Union were its vice president, recording secretary, treasurer, and chairman of the grievance committee. Its presi- dent, Hugh Warden, did not attend. However, Warden was observed "in the office of management" during the holding of the decertification election and the counting of the ballots thereof. After the Union lost the decertification election, Richardson continued to be active on behalf of the Union. Respondent contends and offered evidence that Richardson inspected so slowly that he lagged behind in his work and caused a pileup, sometimes ceiling high, of materials in the room. This slowed production. One inspector, Robert Davis, who noticed the pileup, testified that when he talked to Richardson about this, Richardson asked him to "hold it down" a little bit so that it would not look bad for Richardson. Davis claims he reported this to Supervisor Bill Young. Davis, who testified that his average production was about twice that of Richardson, also testified that he often was asked to help Richardson. Work Leader Vincent Naples testified that Richardson worked in his department for 2 or 3 weeks and that he did a lot of work but of poor quality. On one of Richardson's jobs, a customer named Aristocrat complained that the 2,000 pound springs he made were "too low." Work Leader Francis Moore testified that Richardson "could not do a job properly" and "was constantly behind in his work." As a result, Moore warned Richardson "quite a bit," and almost every day had to give Richardson a helper to assist him. Moore claims Richardson also "wandered around" a lot. Work Leader Gincley testified that Richardson was "constantly behind" in his inspection work, so that "every day we had to bring a helper down to help him out." When the work piled up the women who fed him work to inspect were deprived of their working area. Gincley discussed this with Richard- son and also reported it to Assistant Plant Manager Bill Young and Plant Manager Holzhauser. Work Leader Collins described Richardson as one who "could be a very good worker" but who (a) "argued over instructions given to him," (b) "produced too much bad quality work," and (c) disobeyed or ignored company rules on break- time, lunchtime, and morning reporting time. Early in 1958 Collins was told by Plant Manager Holzhauser that Richardson "would be replaced" because he was not dependable. Yet Richardson was not discharged because he was needed and because Collins preferred to reform, rather than fire him. Nevertheless, although Collins often talked to Richardson about his failings, the latter neither improved nor tried to correct them. In late 1961, Supervisor Bill Young called Richardson and Union Local President Hugh Warden into his office and complained to them that Richardson was failing in his job. According to Warden, Richardson "admitted" he could not do the work. Later in the year Young complained to the two that units were stacked on the floor because Richardson's inspections failed to keep up with production Young testified that Richardson then said it was caused by too much inspection work for one man. B. Willie Mae Harrison Harrison was originally hired by Respondent in 1946 or 1947 as a machine hand- knotter in the peerless cushion department From 1950 to 1952 she was not at the plant On her return she worked in both the peerless cushion and peerless special departments as a knotter until she was laid off on April 11, 1962. About 4:30 NACHMAN CORPORATION 479 p.m. on that date Bill Young, whom I find to be a supervisor within the meaning of Section 2(11) of the Act, told Harrison that she was laid off and to stay home until she was called. Upon inquiry from Harrison as to the duration of the lay- off Young replied that it would last from 3 to 5 days. She has not since been notified to return to work. Five others performing the same knotting work were also laid off at the same time as Harrison. In seniority, she was "fourth down the list" in the peerless de- partment "by our timecard numbers." While employed by Respondent her attend- ance record was very good and her work was not criticized. When the Union was organizing the plant in 1958, Harrison attended "all meet- ings" and passed out union authorization "white cards." During the organizing drive, Vic Holzhauser (Respondent's plant manager), whom I find to be a supervi- sor under Section 2(11) of the Act, called Harrison to his office. One Charles Kersting was also present. They asked her why she went to the union meetings and what she thought the Union could do for her which they could not do. After the Union became the collective-bargaming agent in 1958, Harrison was elected its treasurer and remained such while the Union represented the employees at the plant. As treasurer, she attended the decertification hearing. She also was elected shop steward for the peerless cushion department but she resigned after a while. Plant Manager Holzhauser has described Harrison as a "very good worker" whom he refuses to take back because of a "personal" objection, which he considers petty. This personal matter relates to Harrison's failure to recall a remark he made to her alone at a prior time, and which developed when he subsequently asked her, at a conference with union officials, to verify that earlier statement or remark made to her alone. He referred to this as a slap in the face which stunned him, as he expected her to confirm his prior assertion and thus his contention that he was falsely accused of saying something else. However, Harrison was not disciplined or given a written warning notice for her inability to remember this remark to her made by Holzhauser. C. Mary Baker Baker was hired by Respondent on October 21, 1955, as a knotter in the peerless special department. On April 9, 1962, Foreman Bill Young called a group of employees, including Baker, to his office to inform them that they were being laid off for 3 weeks for lack of work, and that they would then be recalled. Continuing with his remarks, Young stated that the layoffs were made according to seniority. However, she has not since been recalled. In November 1961, Baker was laid off for a week, returning when the Company so notified her by letter and also received a telephone call from Margaret Rickard, a secretary in the front office. Her work was not criticized by her employer, ac- cording to her. While employed by Nachman, Baker was elected as recording secretary of the Union's local and, for a while, also served as the local's shop steward in the peerless cushion department. As such secretary, among other things, she sat in on all grievance meetings. During the short time preceding the decertifica- tion election, she worked actively on behalf of the Union to preserve its majority, and she also attended the hearing in connection with the decertification petition. Baker's health has been poor. For `three years straight," from about 1958 to 1961, she was in a hospital, by her own testimony. She also took a leave of absence from October 19 to 25, 1960, to attend a conference of District 7 of the Union 2 in New York City, and from September 29 to October 6, 1958, for the same purpose, and she also was absent on March 13, 1962, because her boy had measles. Nevertheless, Baker contends that at no time was she warned in writing by Respondent about her extensive absenteeism. All absences have been shown to be excused, i.e., they were approved or sanctioned by the Company. Respondent contends that Baker has not been recalled because of her inordinate number of absences from work. Plant Manager Holzhauser testified that he spoke to her about a dozen times on this subject. Nearly all her absences resulted from illness, as noted above. D. Helena Pagan This employee was first hired by Respondent as a knotter in the peerless cushion department in 1950. After leaving voluntarily in July 1953, she returned in August 1954, and was assigned to the same work. At some undisclosed period thereafter she requested and was permitted to work as "first knotter in the middle line" in the peer- less special department. On January 22, 1962, she obtained maternity leave. 2 The "five top officers" and the chairman of the grievance committee of Local 55675 also attended this conference. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 25, 1962, while still on maternity leave, she reported to Respondent that she would return to work the next day, but was informed that she should take a temporary layoff until July 26 because "there are not many orders and it is the last week before your vacation." Since her vacation was scheduled for the first 2 weeks in July, she made no effort to return until July 16. On that date she went to the plant seeking to ascertain when she should come back to work, but she was told to remain on layoff "indefinitely" because there were "no orders for [her] work." She has not been recalled since. When the Union was engaged in organizing the plant, Pagan obtained signatures to a few cards. At that time, Victor Holzhauser, Respondent's plant manager, called Pagan to his office. Accusing Pagan of being a "trouble maker," 3 Holzhauser con- tinued that he should fire her. During the conversation he also mentioned the Union and asked her if she had signed a union card. When Pagan told him to "go ahead and fire me," he replied, "I can't, but I will get rid of you sooner or later." After the Union was recognized in 1958, Pagan was elected to its grievance com- mittee. She retained that position until September 1961 when she resigned because she was expecting a baby. In May and November 1961 Pagan was laid off for short periods of time. On each occasion she was recalled to work both by telephone and letter. Pagan's absentee record, according to her, "was not too good" from 1954 to 1957. She was also absent for long periods in 1959, 1960, and 1961. She contends that these were not only approved or granted by Respondent, but at no time was she warned in writing that her absences were excessive or that they might lead to suspension, discharge, or refusal to recall after a layoff. Respondent objects to further employing Pagan because of her immoderate absentee record, in principal part caused by illness. From August 3 to 10, 1959, and August 8 to 12, 1960, according to Respondent's records, Pagan obtained authorized leave of absence for "union activities." Her other absences also are shown to be either approved or excused. The record also discloses that Pagan was not given written warning notices, although Holzhauser testified that he has talked to her about her absences. E. Domingo Perdomo Perdomo was originally taken on by Respondent in 1952 as a borderwire machine operator in the peerless cushion department with code number BW 1175. A year later, having learned to twist on his own, he was made a twister in the same depart- ment. This last job resulted in increased wages. He quit in 1956, returning in 1957. Beginning in 1957, he was assigned to various jobs, including the operation of a machine in his department and hauling scrap to the baler. At the time of the decertification election he was working as a twister in peerless cushion, and stayed therein until he was laid off in March 1962. The day before he was laid off, Foreman Bill Young told him not to come in again until he was notified to do so. He has neither been notified by nor received any communications from Respondent since then, nor has he since been recalled to work. In 1958, Perdomo was elected shop steward in peerless special and in 1960 he became vice president of Local 5676.4 At some time in 1961, Art Green, Respond- ent's machine shop foreman and a supervisor under Section 2(11) of the Act, "walked in" while Perdomo was talking to President Hugh Warden of Local 5676 about a petition in Warden's possession to get rid of the Union. Green saw the petition in Warden's hand. Then Green asked Perdomo if Perdomo was going to support or take care of employees who became unemployed. After a heated argu- ment, Green shouted at Perdomo "just because [you] are union officers [you] mean to run the plant." During this time employee Mabel Hiddelson struck her name from the petition in Green's presence. Respondent contends that Perdomo's record as one who not only "fooled around so much" 5 but also who did not produce as much as he could have justified the refusal to take him back. In this connection, Respondent's evidence discloses that Perdomo often left his work area and went to the men's room, sometimes threw gloves at employees as a frolic,6 wandered around from department to department, quite frequently talked to 3 This statement was stricken on motion of Respondent. It is narrated only because it gives continuity to the entire conversation. It has been entirely disregarded in making findings herein. 4 As vice president he attended the decertification hearing. s This language is taken from the testimony of employee Mabel Hiddelson. 6 Other unidentified employees joined him in this. NACHMAN CORPORATION 481 ether employees while they were working, and, on occasion, broke gears and tore down a machine because he did not like to work on a particular line. As a result of this inattention to duty, Perdomo's work often piled up so that the next employee in the line, Mabel Hiddelson,7 did some of his work to "keep the thing cleaned up." And employee Grube, who fed work to him, sometimes had to "go home" because of lack of space to place her "units." In fact, although Grube "many a time" scolded Perdomo because his failure to do the work caused her to go home, he "would take it as a matter of a joke." Respondent's evidence also indicates that, prior to the advent of the Union, Perdomo worked "pretty hard," and that his unsatisfactory behavior was displayed in the last 3 or 4 years of the Union's representation period. Supervisors Bill Young and Denny Moore also reprimanded Perdomo for his conduct. In 1961, Foreman Young complained to Union President Warden that Domingo had disobeyed Young's insistence that Domingo not leave his work area. F. Robert Scott In 1956, Scott started employment with Respondent in the hard goods depart- ment with job code DD. A year later he was transferred to the japan room, where he was employed for 5 years. Just before his layoff in April 1962, Scott also performed duties in the hard goods and the zigger departments. On April 8, 1962, as he was packing ziggers, he observed his brother and Work Leader (Charles Scott) talking to Plant Manager Holzhauser and Supervisor Vincent Naples. As Charles approached Robert, the latter greeted him by saying, "You don't have to tell me. I am laid off." Confirming this, Charles also said that he was directed to do so by Holzhauser, and added that Holzhauser stated it resulted from lack of work and that Robert would "definitely" be called back to work. He has not been recalled For a time, Robert Scott served on the Union's grievance committee, and then became its chairman. He also was elected as the local's shop steward in various departments of the plant. He attended the decertification hearing and, when the decertification election was held, he acted as an observer for the Union. A week or so later Plant Manager Holzhauser stopped at Scott's work table and informed Scott that Bert Hough, "staff man for the Union," had just requested that union dues be checked off for the month. Scott insisted that Hough's position was right. Thereupon Holzhauser threw up his hands and exclaimed, "Jesus Christ, the Union is out of here and you are still fighting the battles for them." Respondent's evidences recognizes that Robert's duties in the japan room required him to go "all over the plant." In addition, Robert's functions as chairman of the grievance committee required his presence in many parts of the plant. But Re- spondent contends that Robert Scott was not recalled because he remained away from his assigned tasks too long. His work leader, Charles Scott, described him as a good worker, but complained that Robert wandered around the plant and " spent too much time holding other people up on their jobs." Although Charles talked to Robert about this,8 and Robert promised to "knock it off," Robert nevertheless persisted in this conduct. In fact, Charles claims he told Plant Manager Holzhauser about it, and Holzhauser at least once spoke to Robert in the presence of Charles on the subject. Nevertheless neither Charles nor Holzhauser gave Robert a written warning notice for such malfeasance. Respondent's evidence further indicates that Robert, as chairman of the grievance committee, obtained permission of his work leader to leave the japan room to investigate grievances. But Respondent insists that since February 14, 1962, when the Union was decertified, Robert stayed away from his work too long; and that this also occurred prior to February 14, although not so frequently. Thus, although Robert's work necessarily brought him to other departments, he did more than just perform tasks in these other places by talking to employees there for such periods _ that the supervisors in these departments reprimanded him .9 7 Hiddelson testified that she took a 5-minute break every half hour, although she "was not supposed to." Hiddelson also complained to Union President Warden that she was losing money because Perdomo did not remain at his machine to work. 8 On one occasion Robert so upset two female employees working for Work Leader Gincley in another department that Gincley requested Charles "to get him out of my department " 0 One of the supervisors who so reprimanded, Vincent Naples, talked to other super- visors about it but not to "management." 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Work Leader Wallace Collins had charge of the japan room he found that in "several instances" Robert ran certain materials too long in the ovens, thus cutting down production. Collins also claimed that Robert wandered around too much. G. George D. Thomas In December 1952, Thomas was hired as an inspector in the nat mar mattress department. Six weeks later he was transferred to the shipping department. After quitting in about 5 months, he was rehired in 1953 as an inspector in the box spring department, where he remained for about 2 months. Then he became a spinner in the box spring department for about 2 years, after which he again quit. About 2 years after this, he was rehired but was laid off for about 2 months in 1958. He returned in April 1958 when the Union insisted upon his rehire as a condition to executing a collective-bargaining contract. His classification then became MM, box spring department. From then until December 1961 he worked in sundry departments. On December 14, 1961, he was laid off. On February 2, 1962, he was recalled and assigned to the receiving department. About 11: 15 a.m. on March 16, 1962, Plant Manager Holzhauser personally laid him off giving as the reason that the shipping and receiving departments had been consolidated. Holzhauser invited him to look around the plant to ascertain if other work was available. He has not since been recalled. At the advent of the Union, Thomas campaigned on its behalf by soliciting mem- bership at the homes of employees and distributing union cards at the plant. He also attended union meetings during that same period. After the Company recog- nized the Union, Thomas became chairman of the local's grievance committee for 18 months and a member thereafter, chairman of its safety and health committee, chairman of its trial committee, and a member of its legislative committee. In 1961, while processing a grievance for an employee as a member of the grievance committee, Thomas and Foreman George Bellgrau `had words." As a result Bellgrau remarked that "if it is the last thing I do, I am going to get you." Later in 1961, about July, Bellgrau told Thomas, "We can't find a way to get rid of you." Thomas, with employees Joseph Richardson, Domingo Perdomo, and Helena Pagan, also attended a course on Labor Education at Pennsylvania State University 1 week a year for 4 years. According to Respondent, the receiving department, in which Thomas was em- ployed, was combined with the shipping department as a result of which some jobs were eliminated. This required those with the least seniority, one of whom was Thomas, to be laid off. He has not since been recalled, according to Plant Manager Holzhauser, "for a loss of work which was due to business cutbacks, and his job was eliminated." H. John A. Clark Clark was first hired as an inspector in the nat mar and box spring departments in about 1948 or 1949. About 18 months later he left and returned again as an inspector in about October 1955, at a rate of $1.58 an hour. In 1959 he was promoted to senior inspector, with a code designation of PSI and a rate of $2 25 an hour. He also in his spare time ran the rotary baler and flat baler. At one time Clark was chairman of the local's safety and health committee for 3 years, and was the shop steward of his department at the time of his layoff. About quitting time (4.25 p.m.) on March 6, 1962, Supervisor George Bellgrau told him that he was laid off for lack of work. Clark has not since been recalled. About the last week of January 1962, Foreman Bill Young paged him over the public address system, and Clark responded by going to Young's place. When Clark arrived Young stated that he heard that Clark was campaigning for the Union 10 in the coming decertification election and wanted to know why he was doing this since Clark had been "treated right in the past." Young ended the con- versation by asking Clark "to think it over." According to Clark, Frank Wilson," who had less seniority than he, has been called back as an inspector. Respondent contends that Clark's work is now be- ing done by employees engaged in other work who inspect on a part-time basis. As a result of lack of business, according to Supervisor George Bellgrau, the working 10 Clark actually did campaign for the Union and, on election day, acted as a whip or "runner" to get employees to vote at the polls 11 Frank Wilson, who, according to Bellgrau, had seniority over Clark as an inspector, left in 1961 and returned later. If material, I find that Wilson quit his employment even though he stated he would later come back. NACHMAN CORPORATION 483 force was cut to the point where he had two men, and that was "a half man too much." Hence he had no job for Clark and reluctantly let him go. Bellgrau testi- fied that the production work spinners are now performing inspection work be- cause "it is easier to lay off one man and I needed spinners." Clark cannot spin. When business is good, as it sometimes is in spurts, the spinners are so busy they cannot inspect. In such cases, Bellgrau uses as inspectors At Boyd, a baler, or Jim Winfield, the helical machine operator, or Hugh Warden, or if all these three are occupied, will borrow an employee from another department. I. Eugene Allen About August 1955, Allen started working for Respondent as a borderwire straightener in its hard goods department under code DD. Sometime thereafter he was successively transferred to the upholstery and the nat mar departments, where he ran coilers on a GA code. In November 1961, he was assigned to the econoflex department under a TE code. He "bumped" into this job to obtain an in- crease in pay. After a while in econoflex, Allen bumped into the peerless depart- ment where he worked for a short while and then returned to econoflex. He was then laid off but was recalled by Respondent in January 1962. When the Union was recognized in 1958, Allen served as the local's inside guard. Later he became "Chief of the Shop Stewards" and from 1959 until he was laid off he was a mem- ber of the local's grievance committee. On February 22, 1962, about 3 or 3:30 p in. Work Leader Nayles told him that he was being laid off because "they were short on orders," but that "as soon as we get work in . . . upholstery, we will give you a call." Although he asked for permission to bump, nothing was done about it. Allen has not since been recalled. In 1960 or 1961, Chief Inspector Bill Young found that Allen's coils "were not right." Allen asserted that he was written up about six times for this, i e., he received a written warning with a copy thereof being placed in his personnel file, but claims that only two warnings "remained" and that four were "set aside." Allen contends that most of his bad work was caused by defective wire supplied to him, and that such wire inevitably led to unacceptable work. He does con- cede that he properly was "written up" twice and that he was also given a dis- ciplinary layoff of a half day for one of these written notices. Allen's employee file discloses that he received one written warning notice for "disobedience," four for defective work, and one for leaving the building during working hours without permission. Allen's reinstatement is opposed by Respondent on the ground that, as testified to by Work Leaders Vincent Naples and Wallace Collins, the quality of the work he performed was good at times and at times poor. According to Naples, Respond- ent's customers who used merchandise which Allen "made" complained about its condition, and Naples relayed this information to Allen "about five times a week." Each time Allen promised to "correct it " Naples further testified that Allen's defective work for which he was criticized resulted from Allen's fault (bad sizes or wrong sizes), and that he was not reprimanded whenever bad work developed from break wire (a condition for which the material, and not Allen, was respon- sible.) Naples reported to Supervisor Bill Young about the quality of Allen's work. According to Work Leader Francis Moore, Allen "turned in" more production "everyday" than he actually put out, i.e., Allen claimed credit for work not done. Moore claims he reported this to Assistant Plant Manager Bill Young. In Young's opinion Allen's work was often "sub-standard" and sometimes "it would have been better had it not been made at all." According to Work Leader Wallace Collins, Allen's poor work slowed down the other operators to whom his materials were fed so as to cause them "to lose piece work earnings." J. Donald E. Milbourne This employee was first hired as a clip machine operator in 1955 in the resto department with a YA code number. Quitting 3 months later, he returned in 1957 as a TB operator in the newo web department. Thereafter he was assigned to vari- ous jobs. During the time the Union was recognized, Milbourne served as shop steward in the newo web department. On February 28, 1962, he was laid off for lack of work by Work Leader Gincley from the newo web department, along with Domingo Perdomo and Estugio Santiago. Gincley informed him that it would be "temporary" and that they would be called back in a couple of weeks. He has not since been recalled. His base pay was 727-083-64-vol. 144-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $1.56 an hour but, being on piecework, he averaged $2.05 an hour when laid off. He testified that he never received any complaints about his work; but he admitted that he was "written up" twice, each time for being delinquent in payment of taxes. He was never disciplined. Respondent objects to taking back this employee because, although "he did do work while he was there,... he would quit early," and rest on the ramp.12 Although official quitting time was 4:25 p.m. Milbourne would stop working at 4 p.m. and punch out at 4:30 p.m. "if he felt he had earned enough money that day." This is supposed to have occurred two or three times a week. Although Work Leader Gincley often scolded Milbourne about this, the latter ignored Gincley. As a result Plant Manager Holzhauser "growled" at Gincley for Milbourne's premature leav- ings. Respondent also caught Milbourne punching in another employee's timecard, a fact which he admitted. In addition, Respondent contends that Milbourne's recall would be undesirable because his wife visited him at the plant about three times a week during working hours, usually to fetch him a lunch. She persevered in this habit even after Gincley told Milbourne that the Company did not permit such visitations. Holzhauser gave Gincley "heck" often for not controlling this situation. K. Marguerite Hawkins Hawkins commenced employment with the Company in 1955 as a spring-up girl, code MJ, in the box spring department. In November 1957 she was laid off but was recalled by telephone in May 1958. In October 1961, Plant Manager Holzhauser told Hawkins and the five other employees in box spring that they were being laid off because the department was being abolished as a money loser. In 1958 Hawkins aided the Union organizing attempt by attending its meetings and actively solicited employees to join it. Thereafter she became shop steward in box spring and also served as acting secretary of the Local for about 4 months. She was fifth in seniority in box spring. Although Hawkins requested permis- sion to bump when box spring was abandoned, this was denied 13 her. Nevertheless employees Pearl Young and Helen Brady bumped to newo web. Each outranked Hawkins in seniority, however. According to Hawkins, box spring has reopened, but she has not been recalled. The employees therein, she maintains, are not former employees but, rather, "com- pletely new people, but the operation is the same." However, this department was reopened on an experimental basis only. Respondent has no objection to rehiring Hawkins if and when work is available. But it contends that there is now no job to which she can be assigned. Concluding Findings Common to the Entire Case 1. As to seniority Prior to the advent of the Union, Respondent, as declared by Plant Manager Holzhauser (whom I credit in this respect), had no seniority policy; while the Union was recognized, Respondent observed a seniority practice pursuant to contractual provisions in the collective-bargaining agreement; and, after that contract became inoperative following the decertification of the Union, Respondent discarded its seniority practices. 2. Warning notices Beginning in 1957 or 1958 , Respondent inaugurated a written warning notice sys- tem whereby an employee was warned in writing for infractions of rules and dis- charged after a third written warning.14 However, no uniform method was followed in giving such notices; often an employee would be orally informed of his infraction. But when a written notice was given to an employee a copy thereof was placed in his file and, during the period of union recognition , a copy also was transmitted to the Union. 3. Rehabilitation policy According to Respondent's officials who testified, it was the Company's policy not to discharge employees who were derelict in work performance or otherwise >z Milbourne concedes this. "The General Counsel does not claim that this denial constitutes an unfair labor practice. 14 This was later modified, at the request of the Union, to a disciplinary layoff of 2 weeks. NACHMAN CORPORATION 485 merited disciplinary action for infraction of rules. This was considered preferable or desirable, because it was felt better to retain an employee with the hope of correct- ing his faults. But I find such a policy did not exist on the evidence before me. Not only were many employees discharged without any conscious efforts to retain them for the purpose of rehabilitating them,15 but also, with respect to excessive absenteeism, it is patent that excused absences (no matter how heavy) were never regarded as grounds for disciplinary action. Accordingly, I find that, insofar as Respondent's explanations of its failure to dis- charge the employees involved herein prior to their layoffs are based on a policy of rehabilitation, they are not well taken because I find no such policy existed. 4. Union animus It is patent, and I find that Respondent's officers and supervisors displayed opposi- tion to the Union both orally and in writing. While I recognize that Section 8(c) protects the right of an employer to oppose unions, it does not insulate his utterances from being evaluated in the light of pronounced hostility to unions. International Brotherhood of Electrical Workers, Local 501, et at. (Samuel Langer) v. N.L.R.B., 341 U.S. 694, 701. Nor does 8(c) immunize statements either false 16 or contain- ing promises of benefits.17 Accordingly, I have taken this antiunion attitude into consideration in appraising 18 the individual cases hereinafter analyzed. N.L.R.B. v. Audio Industries, Inc., 313 F. 2d 858 (C.A. 7), is distinguishable. 5. Knowledge of union activity Without reciting the relevant evidence or reiterating the pertinent subsidiary find- ings above, I am of the opinion, and find, that Respondent had knowledge that all the alleged discriminatees were active as officers or committeemen of the Union,is and that this fact entered into the decision of Respondent not to recall any of them. Cf. General Medical Supply Corp., 140 NLRB 712. Concluding Findings as to the Individual Employees 1. Joseph E. Richardson In my opinion, Rachardson has not been recalled because he was active on behalf of, and held high office in, the Union's local. I so find; and I further find that this is embraced within the proscription of Section 8(a)(3) against discriminatory treat- ment of employees. I am not unmindful that Richardson often miserably failed to meet minimum quantity standards expected of him as an inspector , and that when he worked on production he sometimes turned out work of inferior quality; that he reported for work late many times; and that he was "written up" or given written warning notices several times on account of the foregoing shortcomings. Yet, in spite of the existence of adequate cause for Richardson's discharge,20 he was retained for years and, when he was laid off, it was not as a disciplinary measure; nor was he, at the time of his layoff, reminded of his failings as an employee. And at no time since has he been informed that he was not being recalled because of such inadequacy as an employee. On the other band, he is one of the "top five" officers of the local and he rep- resented the local with other top officers at the decertification hearing. Moreover, is See General Counsel's Exhibit No. 11. le Respondent's literature urging employees to repudiate the Union in the election of February 14, 1962, contains assurances that contract benefits will be preserved. Yet seniority was discarded as soon as the Union lost the election. 11 Said literature also promises no reduction of wages, fringe benefits, or working condi- tions "regardless of the outcome of the election." 1s In this connection I have disregarded evidence of antiunion animus in 1958. Although it was received, I am of the opinion that such evidence is too remote to aid as background. 10 Respondent does not argue to the contrary. 20 On January 22, 1959, for example, Plant Manager Holzhauser wrote Richardson re- garding his tardiness, reminded him he was "setting a very bad example for the rest of the members to follow . . . In view of your union standing," and warned that repetition of it would "leave us no alternative except to process you on this tardiness " And on October 6, 1960, Supervisor Bill Young wrote to the president of Local 5676 that Richard- son had not improved and requested a meeting to discuss "proposals on discharge." In this letter Young referred to Richardson as "the Financial Secretary of this Local [who] has an obligation first as an employee of this Company . . . . 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has not hesitated to discharge for cause in the past, as when Richardson was fired for wage attachments. Further he was told that he was laid off for lack of work, thus giving him reason to believe that he would be recalled and that his status as an employee had not been impaired. Hence, on the record as a whole and the above-mentioned items, I find, as stated above, that the failure to recall Richardson violates Section 8(a) (3). 2. Willie Mae Harrison It is difficult to understand why Harrison has not been recalled. She has been acknowledged as a very good worker by the plant manager. While it is true that the plant manager has testified that Harrison is obnoxious to him for a lapse of memory on her part which stunned him, I am unable to accept this testimony as offering the true explanation for her not being recalled. Not only did the plant manager fail to reprimand or discipline Harrison at the time, or at any other time, for this so-called reprehensible conduct, but he has never told her about her figurative slapping of his face. In fact, the first time that Holzhauser disclosed this as a reason for refusing to reemploy Harrison was at the hearing. Moreover, I credit Harrison's testimony that at the time she was laid off she was told it was only a temporary matter of 3 to 5 days, and that she would be called back to work. However, I find that cause existed for her discharge, even though Holzhauser characterized such cause as "petty." Accordingly, I reject Respondent's explanation of why Harrison has not been permitted to return to work. This of course does no more than erase a defense; it is insufficient in itself to establish a discriminatory motive for the refusal to recall. The burden of proof still remains on the General Counsel to sustain this segment of the complaint. "At all times, the burden of proving discrimination is that of the General Counsel." Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 611. On the other hand, I find that Harrison has not been recalled because she was active on behalf of the Union both as a shop steward and as its treasurer 21 This finding, based on the entire record, is supported by the following factors: (a) Respondent openly opposed the Union and was decidedly antiunion. (b) Respondent has since hired numerous new employees, many of them in- experienced, when it would be reasonable to expect that it would prefer an experienced hand over raw recruits. (c) Respondent's excuse that it does not want Harrison back for reasons personal to the plant manager is not credited. (d) All officers active on behalf of the Union immediately preceding and at the time of the election have yet to be recalled. While it is true that some present em- ployees are former union officers, including Hugh Warden, its president, I find that none of this group actively supported 22 the Union during the period above mentioned, and that the terms of office of many of them had long since expired. Hence the fact that some former union officers are still employed does not undermine the conclu- sion that not one union officer active on February 14 on its behalf has been recalled. (e) Harrison, as one of the local's five "top" officers, attended the decertification hearing on behalf of the Union. 3. Mary Baker Baker's defection as an employee has been her excessive absenteeism, chiefly due to her health. I find that she did stay out of work for longer periods than the average employee, that this was discussed with her by her superiors, and that this constitutes cause for discharge. Nevertheless I find that Baker has not been recalled because of her activity on behalf of, and her holding a high position, in the local. This conclusion is based upon a critical analysis of the entire record and the following factors: (a) Although cause existed for years to discharge Baker, she was never dis- missed. Cf. The Richard W. Kaase Company, 141 NLRB 245. (b) On the occasion of her layoff, no mention was made of her demerit as an employee flowing from her absenteeism. Rather she was told that she was being temporarily let go for economic considerations and that she would be recalled in about 3 weeks. n The treasurer is considered one of the five "top officers." 22 In fact Warden did not attend the hearings on the decertification petition, although all the other top officers did. And some in this group of former officers actively supported the petitioner in the decertification proceeding by endorsing, or working for, the petition, or both. NACHMAN CORPORATION 487 (c) Not only has she not been recalled, although new employees have since been hired, but at no time has she been given to understand why she has not been asked to return. In fact, the record shows that the first time she became aware that she had been removed from a laid off status is when her superiors testified in this pro- ceeding. I do not credit that part of Respondent's testimony that Baker's absenteeism is the real cause for her not being recalled. (d) She was active for the local, both as one of the five top officers and as a representative of the Union at the decertification hearing (e) None of the top officers active for the Union have been recalled. While it is true that one of the top officers, President Hugh Warden, is still employed by Re- spondent, this circumstance is unimpressive, for he did not actively espouse the Union. Warden not only was conspicuously absent from the decertification hearing, but he also (1) testified for Respondent, thus indicating probable lack of sympathy with the Union, (2) he did not in any way aid the Union in resisting decertification, and (3) some witnesses regarded him as "close" to management. Manifestly he was not an active union officer. 4. Helena Pagan Like Baker, Pagan's absences from work have been abnormal. Although this affords unassailable grounds for discharging Pagan, it is patent that she was neither discharged nor otherwise disciplined therefor during the period of her employment. Nor do I credit Respondent's testimony that Pagan has not been recalled because her absenteeism would interfere with a proper scheduling of the work. Instead I find that she has not been called back because of her union activity and her being a member of the local's grievance committee. While this finding is based on the entire record, it also emerges from the following factors: In May and November 1961, Pagan was laid off for short periods, but each time she was recalled to work when it became available 23 It would have been simple to avoid her recall by referring to her absenteeism; but she has not been recalled following her last layoff notwithstanding that new employees have been hired since then. (b) At the time of her attempted return subsequent to maternity leave granted her, she was placed on layoff status until July 26. No objection was then voiced to her poor attendance record. And on July 16, when she inquired as to the date of her recall, she was informed her layoff would remain indefinite because of a lack of work. It is reasonable to expect that she would then be denied further employ- ment based on her absenteeism; yet it was not even mentioned. (c) At no time was her attendance record conveyed to her as a reason for the failure to recall her. In fact it was first disclosed as the reason at the hearing in this proceeding. (d) None of the active officials of the local, a total of 11 persons, has been re- called. Pagan is 1 of these 11. 5. Domingo Perdomo While I find that the record reveals adequate cause for Perdomo's discharge, I nevertheless find that he was never discharged or otherwise severely disciplined for his many faults While it is true that his personnel file contains several warning notices for "disobedience, attitude"; many failures to wear safety glasses, once when an insurance inspector was inspecting the plant on October 18, 1961; and wage attachments; it is equally true that no drastic action was enforced against him when he was employed. I find that Perdomo has not been recalled for reasons associated with his union activity and his holding a top office in the local, and that this amounts to discrimination under Section 8(a)(3) of the Act. This result is based upon the record as a whole and the factors enumerated below: (a) At the time of his layoff Perdomo was told that he would be notified when to return, nothing was said about his derelictions as an employee. (b) At no time since his layoff has Perdomo been informed that he will not be recalled because of his deficiency as an employee. In fact, this deficiency was first delineated at the hearing in this case, so that, until then, he labored under the im- pression, instilled in him by Respondent, that he would be recalled. (c) He was one of the local's five top officers and attended the decertification hearing on behalf of the Union. (d) I do not credit Respondent's testimony that Perdomo has not been recalled because he became an obnoxious or undesirable employee, although I do credit its 13 The evidence shows that the Company usually recalled laid-off employees in the past. Cf General Medical Supply Corp., 140 NLRB 712. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence and find that he left his work area without permission, threw gloves at em- ployees, wandered from department to department, broke gears intentionally, and often would not wear safety glasses when required to do so. (e) Not one of the laid-off 11 active union officers, among whom Perdomo is included, has been recalled although many new employees have been hired. 6. Robert Scott It is manifest, and I find, that Scott's work and his duties on the local's grievance committee often demanded his presence away from the japan room, where he was regularly assigned. Nevertheless I also find that Scott often unnecessarily wandered around the plant; that on many occasions he neglected his regular work and his union duties by engaging in unrelated conversations with employees; that complaints were made about this; and that his superiors several times orally warned him that such wanderings and conversations were prohibited during working hours. It is my opinion, and I find, that these constitute grounds for dismissal or severe disciplinary action. Nevertheless I do not credit Respondent's testimony that Scott has not been recalled because of his above-enumerated misdeeds or for his defective oven work. Upon the entire record and the ingredients particularized below, I find that Scott has not been recalled because of his union activities and his holding of union office, and thereby suffered discrimination prohibited by Section 8(a)(3) of the Act: (a) Notwithstanding the serious nature of his inattentions to work requirements, and the frequency of their occurrence, Scott was neither disciplined nor "written up" therefor. At most, he was given oral reprimands. The record shows that the only written warning notice marring his record is a tardiness demerit dated May 19, 1960. (b) His immediate supervisor referred to him as "a real good worker when he worked." Since he is a good worker, it is reasonable to infer that his prior offenses, which had not even resulted in his being "written up," 24 have been resurrected now for reasons of union activity and prominence of union office. (c) At the time of his layoff Robert not only was informed that he definitely would be called back to work, but no allusion was made to his wanderings or his talks to employees as impediments to his recall. In fact, such failings were not mentioned as obstacles to his return to work until Respondent's supervisors testified at the hear- ing herein. (d) Robert as a member of and later as chairman of the grievance committee, as a shop steward in various departments, and as a representative of the Union at the decertification hearing, was active on behalf of the Union, although he was not one of the so-called "five top officers" of the local. He was thus 1 of the laid-off 11 active union officers who has not been recalled, although many new hires have been taken on. I deem it more than accidental or coincidental that not 1 of these 11 has been invited to return to work notwithstanding the employment of scores of new employees. 7. George D. Thomas As narrated above, Thomas served as chairman of the local's grievance committee for 18 months, and also as a member of that committee and three other committees. I find that he has not been recalled because he was an active union officer, and that thereby he has sustained discrimination outlawed by Section 8(a)(3). In this respect, I have relied upon the entire record and the following elements: (a) There is no intimation that Thomas presented any disciplinary problems to management or that he was unable to perform the tasks assigned to him. Hence I must presume that the quality of his work and his working habits did not merit criticism. (b) Thomas had been laid off before, and was recalled to a different job. Yet, although he was again laid off on March 16, 1962, he has not been recalled despite the fact that new employees have since been hired. (c) Not only has Thomas acted in several capacities as an officer of the local, but he also attended labor courses, on behalf of the Union, at Pennsylvania State University. He also appears to have been energetic while serving on its grievance committee. In fact, Foreman George Bellgrau warned him during a grievance dis- cussion that "If it's the last thine I do, I am going to get vou." (d) All 11 active union officers who were laid off had remained in that status when this hearing opened. Thereat for the first time reasons were advanced for 24 Charles Scott, Robert's work leader, explained this by saying be was lenient toward bis brother. But no reason has been advanced for the failure of the plant manager or assistant plant manager, who were cognizant of Robert' s alleged misconduct , to write up or give a written warning slip to Robert. NACHMAN CORPORATION 489 their not being recalled. It is significant that all 11 are active officers of the local and that previously not 1 had been apprised of the reasons for not being recalled 25 8. John A. Clark In my opinion, Clark has not been recalled because he was an active officer in the Union. I so find; and I further find that such failure to recall constitutes dis- crimination as contemplated by Section 8(a)(3). This conclusion is based on the record as a whole and the following: (a) Clark's work was satisfactory. He has not been recalled, according to Re- spondent, solely because his job was eliminated 26 as a result of a "cut back in his department." Nevertheless, Respondent has since hired new employees. (b) Clark has been a job steward for, has held other offices in, and acted as a campaigner and runner during the decertification election for, the Union. (c) Foreman Bill Young unlawfully interrogated Clark in January 1962 about Clark's campaigning for the Union in the approaching decertification election, and expressed displeasure at this activity of Clark. (d) None of the laid-off 11 active union officers, of whom Clark is 1, has been recalled. 9. Eugene Allen According to Assistant Plant Manager Young the failure to recall Allen is due solely to the fact that "he produced a lot of poor quality work." Nevertheless, while employed he was not discharged for it; in fact he was given a disciplinary layoff and then permitted to resume his "sub-standard" work upon his return. Nor was he ever told that his poor quality work (which I find he did produce and which, on occasion, caused a customer of Respondent to complain about the product de- livered to it) stood between him and his recall. Actually, when he was laid off he was informed that he would be given a call as soon as business picked up. Not until the hearing did Respondent manifest to Allen that he was no longer wanted because his work failed to meet specifications. Accordingly, I reject the explanation of Respondent that Allen's ineptness at work has prevented his recall. Further, I find that Allen has not been recalled because he occupied union office and engaged in union activity, and that such failure to reemploy contravenes Section 8(a) (3) of the Act. This finding, based on the record as a whole, flows from the matters mentioned in this subsection 9 of the Intermediate Report and the following additional considerations: (a) Allen has served as chief shop steward, job steward, and member of the local's grievance committee. (b) None of the local's 11 active officers, including Allen, has been recalled. (c) Allen's poor quality work has been condoned by his continued employment notwithstanding knowledge by Respondent of his consistently unsatisfactory work. 10. Donald E. Milbourne Undoubtedly Respondent would have been justified in dismissing Milbourne for sitting on the ramp, quitting early, punching another employee's timecard on one occasion, and disrupting the orderly operation of the plant by persistently receiving his wife as a visitor; and I so find. His file also shows several written warnings for wage attachments, one of which bears the legend that disciplinary action was waived by Respondent. Yet I am unable to find that any one or more of the above de- faults have prompted Respondent not to recall him. Accordingly, I do not accept Respondent's exposition that Milbourne's above shortcomings have precluded his reemployment. On the other hand, I find that Respondent refused to consider Milbourne for re- employment because of his union activity, and that this type of discrimination is comprehended by Section 8(a)(3) of the Act. As noted above, Milbourne had been active in the Union as a shop steward, and he was well known to Respondent in such capacity. The record is devoid of evidence that the quality of his work was unacceptable; in fact, his superiors state that be did good work. And the record does show that scores of new employees have since been hired. Moreover, he was informed that he was let go for lack of work and that he would be called back 15 It is no defense that no job is available, as that is a subject of inquiry at the com- pliance stage, Shawnee Industries, Inc., Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451. 0 See footnote 25, supra. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a couple of weeks; not until the hearing did he learn that his alleged failings had become his downfall. Then again, he was not discharged when Respondent had cause to justify such recourse. This amounts to condonation. Finally, he is 1 of the 11 active union officers who have not been recalled, which, in my opinion (and I find) evidences a policy by Respondent not to employ persons recently active as officers of the Union. Cf. Shawnee Industries, Inc., Subsidiary of Thiokol Chemi- cal Corporation, 140 NLRB 1451. 11. Marguerite Hawkins Manifestly Respondent has no complaint regarding Hawkins and is willing to take her back. But it claims no job is at its disposal to offer her. I am unable to accept this asserted vindication, and find that it does not depict the actual reason for the failure to recall her 27 Further, I find that Hawkins has not been rehired because of her union activity as incorporated in her capacity as job steward and acting secretary of the local, and that such failure to recall her constitutes discrimination within the purview of Section 8(a)(3) of the Act. This conclusion, based on the whole record, also is derived from the following factors: (a) Hawkins has been active on behalf of the Union and its local as an officer. (b) Respondent displayed hostility to active union officers (c) None of the 11 active union officers laid off, which group includes Hawkins, has been recalled. (d) Respondent's declaration of no available work is not the true reason for its unwillingness to ask Hawkins to return to work. (e) A large number of new employees have been hired since the layoff of Hawkins. (f) Respondent may not interpose as a justification that no vacancy exists for Hawkins. . . an employer must consider a request for employment in a lawful, nondiscriminatory manner, and the question whether [a person] has been given such consideration does not depend on the availability of a job. Consequently, the Act is violated when an employer fails to consider [a person] for employment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the employer's backpay obligation " Shawnee Industries, Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451. 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 commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated with respect to the recall of Domingo Perdomo, Joseph E. Richardson, Willie Mae Harrison, George D. Thomas, Marguerite Hawkins, Robert L. Scott, John Clark, Donald Milbourne, Helena Pagan, Eugene Allen, and Mary Baker, it will be recommended that Respondent offer to each of them immediate employment, without prejudice to such seniority or other rights and privileges each would have enjoyed or acquired had each been recalled on the dates when, absent Respondent's discrimination against them, Respondent would have reemployed them. It will be further recommended that Respondent make them whole for any loss of pay each may have suffered as a result of Respondent's dis- criminatory refusal to recall them, beginning with the date of such discrimination to the date when each is offered reemployment. Computation thereof shall be cal- culated in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as computed in Isis Plumbing & Heating Co., 138 NLRB 716. It will finally be recommended that Respondent retain and make available to the Board or its agents. upon request, all pertinent records and data necessary to determine the amount of backpay due. 27I am not bound to accept the ground put forward by Respondent as the true one. N L R B. v. Texas Bolt Company, 313 F. 2d 761 (C A. 5). NACHMAN CORPORATION 491 Since Respondent's discriminations go "to the very heart of the Act" (N.L.R.B. V. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), it will be recommended that an order be issued safeguarding employees against infringement of their Section 7 rights in any manner. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union and its local are labor organizations within the scope of Section 2(5) of the Act. 2. Respondent is an employer engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By discriminating in regard to the recall of the employees mentioned in "The Remedy" herein, thereby discouraging membership in a labor organization, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. 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 By reason of the above findings of fact and conclusions of law, and the entire record in this case, it is recommended that Respondent, Nachman Corporation, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or in any other labor organization, by refusing or failing to recall laid-off employees, or otherwise discriminating in any manner against its employees in regard to their hire or tenure of employment or other terms or conditions of employment. (b) In any other manner restraining, coercing, or interfering with its employees in the enjoyment or exercise of rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer the employees named below in this paragraph immediate employment at the same or substantially equivalent positions to which they would have been recalled had they not been discriminated against, without prejudice to their seniority or other rights and privileges previously enjoyed or which they might have acquired, and make them whole for any loss of pay each may have suffered, with interest at the rate of 6 percent, as a result of the discrimination against them: Domingo Perdomo Marguerite Hawkins Donald Milbourne Joseph E. Richardson Mary Baker Helena Pagan Willie Mae Harrison Robert L. Scott Eugene Allen George D. Thomas John Clark (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 and determine the backpay due under the terms of this Recommended Order. (c) Post at its plant in West Chester, Pennsylvania, copies of the attached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Di- rector for the Fourth Region, shall, after being signed by a duly authorized agent of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourth Region, in writing, within 20' days from the date of receipt of this Intermediate Report, what steps have been taken to comply therewith 29 If this Recommended Order Is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order Is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" 29 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is further recommended that, unless within the prescribed period, Respondent notifies said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an Order requiring the Respondent to take the aforesaid action. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization of our employees, by refusing to recall employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the enjoyment or exercise of rights guaranteed to them by Section 7 of the Act. WE WILL offer the employees named below immediate employment at the same or substantially equivalent positions to which they would have been recalled had they not been discriminated against, without prejudice to any seniority or other rights and privileges they may have enjoyed or acquired, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them: Domingo Perdomo Marguerite Hawkins Helena Pagan Joseph E. Richardson Robert L. Scott Eugene Allen Willie Mae Harrison John Clark Mary Baker George D. Thomas Donald Milbourne All our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. NACHMAN CORPORATION, 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 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, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone No. Pennypacker 5-2612, if they have any question concerning this notice or compliance with its provisions. United Aircraft Corporation (Hamilton Standard Division) and Lodge 743, International Association of Machinists, AFL-CIO. Cases Nos. 1-CA-4003 and 1-CA-401d3. September 11, 1963 DECISION AND ORDER On May 28, 1963, Trial Examiner Joseph I. Nachman issued his Intermediate Report herein, finding that the Respondent engaged 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 and 144 NLRB No. 56.