Precision Products & Controls, Inc.

PRECISION PRODUCTS & CONTROLS, INC. 1119 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. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465. Precision Products & Controls, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 16-CA-.310-2. Septem- ber 14, 1966 DECISION AND ORDER On May 24, 1966, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative act ion, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions : 1. The Trial Examiner found that Foreman IIubbard's statement "I understand there was a union meeting last night and there were thirty-five people present," made to employee Hale on December 16, "was altogether natural" in view of the evidence that such matters `'were freely discussed in the plant," and therefore did not violate the Act by giving the impression of surveillance. We do not agree. This statement was made the clay after the union meeting attended by precisely 35 employees at which Hale had signed an authorization card. In view of the timing of the remark and the accuracy of the information, the implications of the statement are not negated by the fact that employees freely discussed the Union while in the plant. 160 NLRB No. 83. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that by this, as well as other statements made to employees which the Trial Examiner found to be unlawful, Respondent gave employees the impression that their union activities were under close observation and surveillance and that Respondent thereby violated Section 8(a) (1) of the Act. 2. We agree with the Trial Examiner that Respondent did not violate Section 8(a) (1) of the Act when Vice President Ridley walked through the plant a week before the election for the purpose of observing which employees were wearing union buttons. However, we find Foreman Hugo's postelection remark to employee Hale that Ridley had particularly noted on that occasion that Hale, unlike some other employees, did not remove his button When Ridley came to him constituted a thinly veiled threat of reprisal by which Respondent violated Section 8 (a) (1). [The Board adopted the Trial Examiner's Recommended Order with the following modifications: 1 [1. Add the following as paragraph 1(e) and reletter the present paragraph as paragraph 1(f) : ["(e) Coercively threatening its employees with retaliation for engaging in union activities." [2. Add the following as the fifth paragraph of the Appendix : [WE WILL NOT coercively threaten our employees with retalia- tion for engaging in union activities.] 1 The address and telephone number for Region 16, appearing at the bottom of the notice attached to the Trial Examiner's Decision , is amended to read : 819 Taylor Street, Fort Worth, Texas 76102, Telephone 335-4211, Extension 2145. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was heard before Trial Examiner Sidney J. Barban at Tulsa, Okla- homa, on December 20, 21 , 22, 1965, and January 5 , 1966, upon issues raised by the amended complaint of the General Counsel and the amended answer of the above-named Respondent. The complaint alleged that Respondent had violated Section 8(a)(1) and (3) of the Act by certain activities hereinafter considered. The answer denied the commission of any unfair labor practices. Upon the entire record in this case,' from my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTIONAL FACTS Respondent, an Oklahoma corporation , is engaged in the manufacture and sale of certain devices, controllers, valves, and other items at Tulsa , Oklahoma, from r Respondent's requests for corrections in the transcript, to which no opposition has been received, have been treated within a separate order which is hereby received as Trial Examiner's Exhibit 2. PRECISION PRODUCTS & CONTROLS, INC. 1121 which plant it shipped in interstate commerce during the past year products of a value in excess of $50,000. Respondent admits, and it is found, that the Respondent is engaged in commerce within the meaning of the Act. IT. LABOR ORGANIZATION Respondent admits, and I find, that the above-named Charging Party, herein referred to as the Union, is a labor organization within the meaning of the Act. III. 'THE ALLEGED UNFAIR LABOR PRACTICES A. The issues Aside from certain allegations that the Respondent independently violated Section 8(a) (1) of the Act, it is alleged that Respondent violated the Act by failing and refusing to recall to work, from on or about December 7, 1964, Pauline Minnick, who had previously been laid off for lack of work, and by laying off Rosemary Fream on or about December 4, 1964, and thereafter failing and refusing to recall her to work. In addition to its denials heretofore noted, Respondent further contends that no timely charge, within the meaning of Section 10(b) of the Act, was filed with respect to Rosemary Fream, and that the manner in which the charges were handled affects the validity of the claim that Respondent independently violated Section 8 (a) (1) of the Act. B. Matters of procedure In respect to the allegations that Respondent independently violated Section 8(a) (1) of the Act by certain acts and conduct, the Respondent contends, in effect, that the General Counsel should be considered administratively estopped from pur- suing these allegations because of certain asserted prior inconsistent action in handling another matter. The essential facts are as follows: The original charge in the instant matter was filed on May 12, 1965. Prior to that time, the Union had filed a separate charge, separately docketed, alleging that the Respondent had violated the Act by terminating employee Lena Slinger. While the charge in the present case was still pending, the Regional Director for Region 16 advised the parties that, after investigation, he was refusing to proceed on the Lena Slinger charge, for lack of merit. This decision of the Regional Director was later affirmed by the General Counsel upon appeal by the Union. The Respondent points out that since all alleged instances of independent viola- tion of Section 8(a)(1) occurred before the filing of the Lena Slinger charge and since the Lena Slinger charge was broad enough to cover those acts and conduct, it is to be presumed that the Regional Director was aware of these matters when he found that the Slinger charge had no merit. Respondent argues therefore, in effect, that the General Counsel's action in proceeding in this matter is inconsistent with his action on the same facts in the Lena Slinger matter. I find no merit in the Respondent's contention. At the time of the Regional Director's action in the Slinger case, he had before him the original charge in the instant matter, which was clearly broad enough to support the allegations of the complaint. It was not necessary for the Regional Director to specifically reserve his position in this respect when refusing to proceed in the Lena Slinger matter. Respondent's further contention that the charge in this matter cannot validly support the allegations of the complaint that the Respondent discriminated against Rosemary Fream can best be understood on the basis of the following chronology: On February 11, 1965, an election was conducted by agents of the Board among certain employees of Respondent to determine whether the employees desired the Union to represent them in collective bargaining with the Respondent. There were 32 votes for and 32 votes against the Union counted with two challenged ballots cast by Pauline Minnick and Norma Browning. The Union filed no objections to the conduct of the election. On May 4, 1965, the Regional Director issued his report on the two challenged ballots cast in the election, finding that both Minnick and Browning had been permanently laid off, had no reasonable expectancy of recall at the time of the 257-551-67-vol. 160-72 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, and were not eligible to vote in the election. The Regional Director recom- mended that the Board sustain the challenges to their votes and certify the results of the election. Thereafter, on May 12, 1965, the Union filed its original charges in this case alleging that the Respondent had discriminated against Pauline Minnick and Norma Browning in respect to their employment in violation of the Act. Later, the Union withdrew its contentions concerning Norma Browning and the Board has sustained the challenge to the ballot she cast in the election. However, because of the Regional Director's decision to issue complaint in this matter alleging that at the time of the election Respondent was discriminatorily refusing Minnick employment, the Board has suspended consideration of the validity of the ballot of Pauline Minnick pending decision in this case. The complaint in this matter, which was originally issued on June 30, 1965, alleged that the Respondent had violated the Act only by discrimination against Pauline Minnick and by certain other acts and conduct. The charge was there- after amended, on September 10, 1965, to assert that Respondent had also dis- criminated against Rosemary Fream in violation of the Act, and the complaint was amended on October 11, 1965, to include allegations of discrimination in regard to Rosemary Fream. Respondent contends that inasmuch as the first charges naming Rosemary Fream were filed more than 6 months after her layoff on December 4, 1964, these charges are barred by the provisions of Section 10(b) of the Act. I am of the opinion and find that there is no merit to this contention. It is so well settled as not to require citation that an original charge alleging discrimination against employees may be amended to include the names of other employees alleged to have been discriminated against so long as the date upon which the original charge was filed is timely as to the employees added. In this case, the original charge was filed on May 12, 1965, less than 6 months after Fream's layoff and, therefore, well within the rule set forth. Nor are there any other factors which appear that would militate against the application of the normal rule in these circumstances. C. Alleged independent violations of Section 8(a)(1) While there is evidence showing that the employees were involved in activity on behalf of the Union as early as September 1964, it is not clear how or when this came about. The Respondent was aware that there was some such activity afoot either in late September or early October, but thought it to be on behalf of another labor organization. On or about October 30, Respondent gave oral and written instructions to its supervisors as to what they could and could not do while the employees were engaged in union activities. On or about November 10, 1964, Respondent's president, Harold J. Geder, circu- lated a memorandum to the foremen advising that "Because of known union activity in our shop, we have been advised by legal counsel to hold all wage reviews and adjustments in abeyance. Failure to follow this advice could expose us to charges of an unfair labor practice by the Union." The record shows that Geder anticipated that the employees would learn this change in policy and, in fact, this occurred.2 President Geder testified that after about a month it came to his attention that "this activity had shaken out," employees had expressed themselves to supervision as lacking interest in union activity, and management was informed that the employees were "disappointed" that wage reviews had been withheld. At this point, a memo dated December 10, 1964, addressed to all foremen, was issued by Geder reading as follows: Reference is made to my memorandum of November 10th concerning the suspension of wage reviews and adjustments. 2 Employee Henry Lewis testified, without contradiction, that his foreman, Jay Pearse, told him about the first part of October 1964, that there "would be no raises until this union question was settled " At that time, General Counsel stated that he was not offering this as conduct constituting an unfair labor practice, since it occurred more than 6 months prior to the date of the charge, but only as evidence throwing light on other conduct of Respondent. In his brief, General Counsel suggests that this event must have occurred after November 10, since that is the date of Respondent's instruction to the foremen on the point. This suggestion is rejected. However, the evidence has been considered as reflecting the phraseology most likely used by supervision in explaining Respondent's policy to the employees. PRECISION PRODUCTS & CONTROLS, INC. 1123 The flurry of activity and unrest which existed in the shop at the time seems to have largely disappeared. In the meantime numerous employees have volun- tarily indicated that they do not wish to have a union in our shop. Apparently the original movement was promoted by a small but vocal group of dissatisfied employees and it seems fair to conclude that their following was small and for the most part disinterested. The general expression of loyalty to management appears to be sufficient rea- son to reinstate at this time the practice of wage reviews and adjustments which were held in suspense by reason of the preceding directive. This opinion is shared by legal counsel and we will therefore return to our normal procedures immediately. Unquestionably, the policy of this letter was quickly made known to the employ- ees. As of December 13, 1964, 22 employees were granted wage increases. Three additional employees received wage increases as of January 17, 1965. It is not necessary to consider Respondent' s intent in pursuing this course of action. It was a reasonably foreseeable consequence of Respondent's conduct in re- gard to wage adjustments that the employees would be interfered with, restrained, and coerced in the exercise of their rights guaranteed under Section 7 of the Act. It is therefore found that by its actions after November 12, 1964, in withholding nor- mal evaluations and wage increases because of the employees' union activities and in reinstating such evaluations and granting wage increases on the basis that the em- ployees had ceased their union activities, the Respondent violated Section 8 (a) (1) of the Act. The General Counsel contends that certain conduct of Foreman Hubbard and Foreman Pearse violated the act by creating the impression that Respondent was engaging in surveillance of the employees' union activity. After a meeting of the Union in December, Foreman Hubbard said to employee Hale, "I understand there was a union meeting last night and there were thirty-five people present." Hale also testified that Hubbard made two other similar comments to him in January. I do not find that these comments from Hubbard to Hale constitute violations of the Act. The evidence is that these matters, even the numbers attending meetings, were freely discussed in the plant. Casual comment between Hale and Hubbard would seem altogether natural in the circumstances shown by the record. In early February 1965, during a coffee break, Foreman Pearse told employee Henry Lewis, "I wouldn't be pushing this Union if I were you, because you guys are making some fifty or sixty cents per hour more than any other department and we know how many attended union meetings and who they are within thirty minutes after the union meeting is over." Lewis indicated that this did not disturb him, and said he would invite Pearse to the union meeting if he wanted to go. Notwithstanding the lack of impression upon Lewis that Pearse's comment appears to have made, it was clearly meant by Pearse to inhibit the union activity of Lewis and others by impressing upon them that the Respondent was privy to their non- public activities and Respondent thereby interfered with, restrained, and coerced employees in the exercise of their rights under the Act and violated Section 8(a) (1). About a week before the election, on one day in particular,the employees wore union buttons in the plant. Employee Hale testified that Foreman Adolph Hugo and Respondent's vice president of manufacturing, Charles Ridley, came by his work place and seemed to pay particular attention to his union button. After the election, Hugo told Hale that Ridley had made a point of going through the plant that morn- ing to see who had buttons displayed. Hugo said that a number of employees were observed to remove their buttons at the time. Hugo said it was particularly noted that Hale did not remove his button. The General Counsel asserts that by this action, "the Respondent attempted to discourage its employees by making them fearful of observation and discovery, with a resulting vulnerability to subsequent retaliatory acts," and thereby violated the Act. The short answer to this is that it was the employees who were advertising the fact of their union adherence. There is no evidence that the Respondent engaged in any activity which improperly interfered with the wearing of buttons. I do not find it a violation of the Act for supervisors to walk through the plant to observe what the employees clearly wanted to be seen. The General Counsel also alleges that the Respondent violated the Act by pro- mulgating, maintaining, and enforcing a rule which prohibits employees from union 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD solicitation during nonworking time and from distributing union literature during nonworking time in nonwork areas. Former employee Edward Fream, and employ- ees Henry Lewis and Clyde Hale were produced in support of these allegations. On a day which General Counsel fixes as December 10, 1964, Edward Fream tes- tified Foreman Art Mullins told Fream and two other employees that "Mr. Ridley had told him to tell us that there would be no more talk of union activity and that there would be no union literature allowed on company premises and this included coffee breaks. That anyone caught talking union would be fired on the spot." Mullins is asserted to have called the other sections of his department together and told them the same thing. Fream, however, admitted that, thereafter, he distributed union liter- ature in the Respondent's plant cafeteria before and after work and during nonwork periods during the day. He was observed by Foremen Mullins, Hugo, and Hubbard, none of whom took any action against him or threatened him for these activities. Fream also had union stickers displayed on his tool box in the plant and was not asked to remove these. Also early in December 1964, and probably about the same time as the incident related by Fream, according to the testimony of Henry Lewis, Foreman Art Mullins told him that "Mr. Ridley had told [Mullins] to inform everyone that anyone talk- ing union or with literature in his pocket would be fired on the spot." Mullins denied telling employees that they could not distribute literature in the plant on company premises on the employees' time. He further stated that he told the employees that what they did on their own time was their own business. Mullins testified that these instructions were occasioned by the fact that an unusual amount of talking and wandering away from work was occurring, and he sought Ridley's advice as to what he should do. Ridley advised him to adhere strictly to the written instructions previously received, which advised that oral and written union solicita- tion during working time could be prohibited, but that oral union activity on non- working time and distribution of written material on nonworking time in nonwork areas was permitted. I am convinced that Mullins did not transgress these rules in instructing the employees in his department. The fact that Fream thereafter freely distributed union literature on plant property on his own time without any hindrance from Respondent confirms this. Undoubtedly, Mullins strongly emphasized the prohibitions against union activities in his instructions to the employees for that was his purpose, and they misunderstood the breadth and scope of his injunctions to them.3 Early in January 1965, after Clyde Hale had been talking to employee Earline Lewis before the start of work, Foreman Hugo came up and asked Hale if he were putting pressure on Lewis to sign a union card. When Hale denied talking to Lewis about the Union, Hugo expressed doubt, and told Hale that he was known to be "mixed up in this union business." Hale further testified that Hugo told him, "Any- one talking union on company premises or company time will be fired." Hale was sufficiently concerned to have Lewis confirm to Hugo that Hale had not been talking to her about the Union. Hugo acknowledged this to Hale later in the day and apologized. While Hugo denies that he told Hale that he could not engage in union activity on his own time, the remainder of his version of the incident is not inconsistent with that of Hale. No reason appears for Hugo to question Hale about his activities be- fore work or otherwise to threaten him for those activities. Hale's testimony is credited in the circumstances and it is found that by Hugo's activities set forth the Respondent violated Section 8 (a) (1) of the Act. After receiving a raise on or about December 13, 1964, employee Henry Lewis had a conversation with Supervisor Paul Sanders in which the latter asked Lewis, "What in the Hell [are you] fooling around with the union for?" Lewis advised Sanders that if his raise had been intended to buy Lewis' vote , Respondent could take it back. Again, notwithstanding the fact that Lewis was apparently not affected by San- ders' coercive query, the question, in tone and manner of words, was clearly 30n cross-examination of Mullins , the General Counsel adduced testimony that on an occasion before the election Mullins told an employee that he would delay repairing a machine until after the election. The reason for this was to get as much production from the machine as possible, for fear that there might be turmoil in the plant after the election. This matter is not alleged in the complaint, nor was it included by amendment during the hearing and is not treated in the General Counsel's brief It seems clear that this matter is not asserted to be violative of the Act, and it has not been so considered by me PRECISION PRODUCTS & CONTROLS, INC. 1125 intended to inhibit Lewis' union activity and was so understood by him. No valid purpose for the inquiry appears. In the circumstances, it is found that by this activity of Sanders, Respondent violated Section 8(a)(1) of the Act. D. Alleged acts of discrtimination 1. Pauline Minnick Minnick first began work for the predecessor of Respondent on September 28, 1954. She was laid off on July 21, 1964, for lack of work. It is not disputed that this layoff was caused by a drastic reduction in production of certain parts for parking meters, in which woik Minnick had been principally engaged. Others besides Minnick were also laid off at the time. Because Respondent was then in hopes of regaining some of the work which Minnick had previously done, she was placed on ternporary, rather than permanent layoff. Under Respondent's policy this meant that she was eligible to continue certain insurance benefits for a period of 6 months; she also received a Christmas bonus in the amount distributed to temporarily laid-off employees Also in accordance with Respondent's layoff policy, at the end of 6 months, not having been recalled, her position changed to that of a permanently laid-off employee for another 6 months, after which time she was removed from Respondent's employment rolls. General Counsel contends that Minnick was not recalled to work for certain vacancies because Respondent knew that her husband was a union member at another plant, and because Minnick joined the Union and attended meetings dur- ing the campaign at Respondent's plant involved here. The record shows that Foreman Hubbard was aware of the union affiliation of Minnick's husband at least by the time of her layoff in July 1964. Minnick testified that she became personally interested in the Union sometime in November 1964, and attended a number of union meetings thereafter. Although it is not clear when Hubbard became aware of this activity on Minnick's part, it is admitted that this came to his attention from the remarks of other employees. It is contended that Respondent should have recalled Pauline Minnick instead of hiring or recalling the following persons: Sharba Battles on December 7, 1964; Norma Blood on April 19, 1965; Margie Harrison on April 19, 1965; Carolyn Mills on April 22, 1965; or Wilma Bayles on August 16, 1965. None of these persons was employed by Respondent for the primary purpose of performing functions which had primarily been performed by Minnick when she was employed. In fact, the record is convincing that Respondent no longer had sufficient work of that character to keep an employee busy on a full time basis. All of the employees named were employed to perform functions relating to certain items produced by Respondent for other manufacturers known as "frame rings," and because Respondent believed that they were sufficiently flexible in their capacities and abilities to be readily shifted among Respondent's opera- tions to perform other functions as needed. A major part of the record in this matter was devoted to the issue of whether Minnick was capable of performing the operations involved in producing "frame rings," and a brief discussion of these processes is required. A frame ring is a small rectangular band of metal, approximately 1/4 inch long, 1/,g inch wide, and 1/e, inch or less in depth, with castellations, which may be evenly or unevenly spaced, on one margin of the band. The other margin of the band is not notched. The last two operations performed on the frame rings are ieferred to as "placing" (or "positioning") and "coining." Frame rings which have previously been roughly fashioned on a press are placed on a tray in a certain order with the castellations down by the "placer" so that they will be properly available for the "coiner" who must pick up the rings with tweezers, one at a time . One placer serves more than one coiner. Since a coiner may finish from an average of 5,000 frame rings to a possible high pro- duction of 8,000 to 9,000 frame rings in a day, the placer must be able to place at least 10,000 and possibly more frame rings a day if employed full time on this work. The coining operation consists of picking the frame rings up individually with a tweezers, placing the frame ring in a closed die with the castellations up and in the proper position, actuating the die, and removing the frame ring before inserting another ring. If this is done improperly , particularly if two rings are 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD left in the die ("doubles"), there is danger of breaking or damaging an expen- sive die. Since these items are produced under contract for other manufacturers, they must be completed within certain time limits. Although Respondent had been producing frame rings since 1961, Minnick had never been employed in coining frame rings .4 The parts which she had primarily been engaged in processing were considerably larger in size and did not require the same capabilities as the coining of frame rings. While the General Counsel did adduce evidence of some small parts which Minnick had processed, this evidence, on the whole, was not convincing to me that she possessed the capacity or the ability to perform the frame ring coining operation. In particular, in processing so-called Clifton terminals, which were similar in size although not in delicacy to frame rings, it was shown that Minnick wore a large, cumbersome optical aid, in addition to her glasses, for considerable peri- ods of time in an effort to do a good job on this operation. She was the only employee of Respondent who required such optical assistance under such circumstances. Although it is not clear that Minnick was responsible, 11,000 of the Clifton terminals upon which Minnick had performed essential operations were returned by the customer for reworking. This was the first time Respondent had used Minnick on work involving such small parts, and it is shown that the Respondent suspected that she was responsible for the defective work. Minnick reworked the returned parts under closer supervision. It is noted that Minnick, herself, in a telephone conversation with Respondent's president, Geder, inquiring about work stated that "I don't coin frame rings," although she complained that she had not been recalled to place frame rings, and had not been given an opportunity to coin frame rings. Indeed, in his brief, the General Counsel does not appear to seriously contend that Minnick should have been recalled to coin rings, but principally argues that she was qualified to do the placing of frame rings which was required and which was performed by some of the newly hired girls. During the last year of her employment, when her own work was running out, Minnick's work tickets show that she was employed in placing frame rings for an approximate total of 220 hours. Until the very end of her employment, however, this was rarely on a full day basis, but, in most cases, for small frac- tions of a day when she was not engaged in performing her regular operations. The first employee hired by Respondent for a position that it is contended Min- nick could fill was Sharba Battles. Battles was employed to fill the vacancy left by the layoff of Rosemary Fream who had been coining frame rings until her physical condition would no longer permit her to continue in that operation. Respondent's testimony establishes that Battles, because of her youth, good eye- sight, and manual dexterity was expected to become a competent frame ring coiner after a period of training. In spite of early difficulties, in which she broke two dies, Battles did become a satisfactory frame ring coiner. The General Counsel, however, points to the fact that Battles, after a short trial at coining frame rings in December, 1963, did not thereafter coin frame rings until April, 1964. In the interim, Battles placed frame rings and was assigned to other tasks, including a substantial amount of work for which Min- nick was qualified. Respondent takes the position that because of Minnick's eyesight and lack of depth perception, as well as Respondent's experience with her on other operations requiring concentration, it would not employ Minnick for either frame ring coin- ing or placing frame rings. Respondent contends that when it used Minnick for placing frame rings this was done only as a fill in to keep her employed as her own work dwindled, but that this was not her primary job. On the basis of the record as a whole, I am convinced that Respondent did not unlawfully discriminate against Minnick in hiring Battles in preference to recalling Minnick. I credit Respondent's testimony that it would not hire Minnick to coin frame rings or primarily as a placer because of her physical capacities and their past experience with her. I further believe the testimony that Battles was employed with a view to training her to coin frame rings as well as other tasks that might be required. * Minnick had been permitted by employee Hale on one occasion only to coin frame rings for a short time before the end of a shift. PRECISION PRODUCTS & CONTROLS, INC. 1127 The fact that she was not employed from December to April in coining frame rings does not detract from this conclusion, since placing frame rings and observ- ing the process when it was in operation can reasonably be considered part of the training process. The significant point is that she was finally put on the operation of coining frame rings after tiainang, a job which would not have been given to Minnick. In addition, there is no clear evidence that the Respondent was aware of Min- nick's personal participation in union activities at the time Battles was hired. I have considered Minnick's testimony that in April, in one of her several telephone conversations with Hubbard and other supervisors about being recalled, that Hubbard confirmed to her that he had asked Vice President Ridley to hire Min- nick for "a few weeks' work," but that Ridley had instructed Hubbard to pick an employee from a group of applicants including Sharba Battles. This, how- ever, only indicates that Ridley rejected the idea of recalling Minnick for a short time for the limited purpose of placing frame rings and doing some other work in favor of hiring a permanent employee for training in work which Respondent reasonably considered Minnick could not do. Minnick also testified that in this same conversation, Hubbard told her that the only reason he could think of for Respondent's failure to recall her "is maybe because [her husband] is a union member." Hubbard, while testifying as a wit- ness for the Gencial Counsel, testified that on this occasion Minnick asked him if it was because of her work or because of her husband's union affiliation that she was not being called back to work. Hubbard testified that he replied that "in these times and situations, referring to the union activity, anything is possible, but most improbable." The two versions are not greatly different. After consider- ing the fact that Minnick's version of this part of the conversation was peculiarly detached from her testimony of the rest of the conversation, as well as her confu- sion about the timing of this remark on cross-examination, and a relative judg- ment of the two witnesses from appearance and character of testimony, I accept Hubbard's version as the more nearly accurate. Even so, the remark by Hubbard raises certain suspicions as to Respondent's reasons for not recalling Minnick However, this is more than overcome by the other evidence referred to. In addition, it is noted that Geder, Respondent's presi- dent, told Minnick before any union activity at Respondent's plant that she was being considered for the frame ring operation because of her eyesight. In mak- ing this last finding, I rely on the testimony of Geder, circumstantially supported by the testimony of his secretary, fixing the time of the conversation rather than that of Minnick who fixed the time of her conversation with Geder as consider- ably later. With respect to the other employees employed by Respondent in preference to recalling Minnick, Norma Blood and Carolyn Mills were hired to coin frame rings. In Mills' case, it was determined that she was unsuited for that operation after she had been employed. She was used to place frame rings and was later discharged. While Wilma Bayles was initially classified as a placer, it is clear that Respondent normally expected such employees to become coiners. Only Margie Harrison was hired by Respondent to place frame rings particu- larly, although it is indicated that she had some experience in coining also. Since this occurred at a time when Minnick's challenged vote clearly affected the results of the election a suspicion arises that Respondent rehired Harrison instead of Minnick because of this. However, after consideration of all the facts, I am of the opinion that this also does not rise above the status of a suspicion anti con- clude that there is no clear or convincing evidence that Respondent was improperly motivated in failing to recall Pauline Minnick to work. It will therefore be rec- ommended that the allegations of the complaint relating to Pauline Minnick be dismissed. 2. Rosemary Fream Rosemary Fream was first employed by Respondent in August 1961. She was primarily employed in the Levin Lathe department under Foreman Adolph Hugo. There is no question that she was an able employee. While on vacation in September 1964, this employee married employee Edward Fream. When she returned she was given a raise in pay, and because of a shortage of work in the Levin Lathe department and a need for competent frame ring coin- ers, she was transferred to that operation. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In November she joined the Union and began attending union meetings. Her hus- band became an outstanding adherent of the Union in the plant. While coining frame rings Mrs. Fream began to experience painful spasms in her back. She states that when she complained to Foreman Hubbard he encouraged her to continue because of Respondent's need for frame rings. Later, when Mrs. Fream engaged in some conduct which Hubbard found offensive, Hubbard wrote up a grievance against Mrs. Fream which included her failure to keep up production on the frame rings. When, in the course of a conference with President Geder, Vice President Ridley, and Hubbard, requested by Mrs. Fream to protest the grievance she attributed her difficulties to the pain she was experiencing, it was suggested that she see a doctor. Approximately 10 days later, Mrs. Fream went to see her personal physician, an obstetrician, who informed her that her problem was work connected and that he could do nothing for her. When Mrs. Fream reported this to her foreman, Respondent immediately sent her to a clinic to which Respondent directs all employees who may have injuries for which Respondent may be responsible under workmen's compensation laws. The doctor at the clinic who was treating her finally advised that the treatments he was prescribing would not be successful unless she were put on other work which did not create the same strain on her back, and said that he would call the Respondent and suggest other work. It appears that the doctor did call the Respondent to this effect. According to Respondent's testimony the doctor also stated that Mrs. Fream's condition was not work connected. It was at this point that Mrs. Fream was laid off. Respondent's position is that it did not have other work available which she could do and she was laid off for rea- sons of health. General Counsel suggests, in effect, that Respondent could have found a place for such a capable employee if it wanted to, perhaps by displacing some other more recently hired person. Further, General Counsel points out that the Respondent thereafter hired and recalled other employees for work which Mrs. Fream could do. In addition to its testimony that there was no work available at the time of Mrs. Fream's layoff which she could do, Respondent further states that at the time it hired other employees, it was unaware that Mrs. Fream wanted to come back to work. It appears that Mrs. Fream made no inquiry of Respondent as to the avail- ability of work after her layoff, except for one casual query of Geder's secretary in June 1965. On that occasion, in the course of contacting the secretary about insur- ance coverage for medical care connected with a miscarriage which she had recently suffered, Mrs. Fream inquired as to whether Respondent was hiring in her department. There is no reason, on the basis of this record, to doubt Respondent's testimony that there was no work available for Mrs. Fream at the time she was laid off. Indeed, General Counsel in his brief argues (in connection with Pauline Minnick's case) that Respondent actually did not even need to replace Fream on coining frame rings after she was laid off because of a decline in that work. There is further no basis for holding that Respondent should have displaced some other employee to make a place for Fream, particularly at a time when she was physically incapaci- tated and Respondent was clearly concerned about a workmen's compensation claim. While I have some difficulty with Respondent's asserted reason for not getting in touch with Mrs. Fream when there was work available, I cannot find it so inherently incredible as to discredit it in the circumstances of this case. Respondent may well have desired to avoid rehiring Mrs. Fream because of her health problem unless she took the initiative in assuring the Respondent that she was ready to return. Cer- tainly no more likely inference is established by a preponderance of the evidence. For these reasons it will be recommended that the allegations of the complaint that Respondent discriminated against Rosemary Fream be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, found therein to constitute unfair labor practices, occurring in connection with the operations of Respondent as set forth 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 of commerce. PRECISION PRODUCTS & CONTROLS, INC. 1129 V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in vio- lation of Section 8(a)(1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire case, I make the following: CONCLUSIONS OF LAw 1. The Respondent is engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, which unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not violate the Act by laying off Rosemary Fream or by failing to recall to work Rosemary Fream or Pauline Minnick. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Precision Products & Controls, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Prohibiting union activities of its employees on plant premises during non- working hours when employees are normally at the plant. (b) Interrogating its employees about their union activities or the union activities of others so as to interfere with the right of its employees to engage in such activities. (c) Withholding, promising, or granting employee benefits so as to discourage union activities or membership. (d) Engaging in or creating the impression of surveillance of the union activities of its employees. (e) In any like or related manner interfering with, restraining, coercing, or dis- couraging employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Post at its plant at Tulsa, Oklahoma, copies of the attached notice marked "Appendix." a Copies of said notice, to be furnished by the Regional Director for Region 16, after being signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, where notices are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply with the Recommendations herein made.6 IT IS FURTHER ORDERED THAT the allegations of the complaint that the Respondent discriminated against Pauline Minnick and Rosemary Fream in violation of the Act shall be dismissed. 5In the event that 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." 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." 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Relations Act, as amended , we hereby notify our employees that: WE WILL NOT prohibit our employees from engaging in union activities on plant premises during nonworking time when employees are normally at the plant. WE WILL NOT question our employees about their union activities or the union activities of others so as to interfere with the right of our employees to engage in union activities. WE WILL NOT refuse to grant benefits to employees just because they are engaged in union activities or have joined a union. WE WILL NOT promise or grant employee benefits in order to discourage employees from joining or assisting a union. WE WILL NOT engage in, or create the impression of, surveillance of the union activities of our employees. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in their right to join or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor organization. PRECISION PRODUCTS & CONTROLS, INC., Employer. Dated----------- -------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 110 West Fifth Street, Fort Worth, Texas 76102, Telephone 335-4211 , Extension 2145. American District Telegraph Company of the Cleveland Com- pany and Communications Workers of America, AFL-CIO, Petitioner. Case 8-RC-6105. September,14, 1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National- Labor Relations Act, as amended, a hearing was held before Hearing Officer Bernard Levine. The Hearing Officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. The Employer and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 160 NLRB No. 82.