Bendix-Westinghouse Automotive Air Brake Co.

BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 789 (c) Notify the Regional Director for Region 16, in writing , within 20 days from the receipt of this Recommended Order, what steps the Respondent has taken to comply herewith. 3In the event that this Recommended Order is adopted by the Board this provision shall be modified to read* "Notify the said Regional Director , in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 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 bargain collectively, upon request, with International Molders and Allied Workers Union, AFL-CIO, as the exclusive bargaining representative of all employees in the bargaining unit described below concerning rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody the same in a signed agreement. The bargaining unit consists of: All production and maintenance employees at our plant in Swan, Texas, excluding over-the-road truckdrivers and their helpers, professional and technical employees, office and plant clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act WE WILL NOT refuse to bargain collectively as aforesaid nor will we, in any like or related manner, interfere with, restrain, or coerce our employ- ees in the exercise of the right to bargain collectively through said union. TYLER PIPE AND FOUNDRY COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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 employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Sixth Floor Meacham Building , 110 West Fifth Street, Fort Worth, Texas 76102, Telephone 335-4211, Extension 2145. Bendix-Westinghouse Automotive Air Brake Co. and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 10-CA-6217. November 4, 1966 DECISION AND ORDER On July 6, 1966, Trial Examiner Robert Cohn issued his Decision 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 Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with 161 NLRB No. 73. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to these allegations. Thereafter, the Respondent and Charging Party filed exceptions to the Trial Examiner's Decision, and support- ing briefs. 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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and supporting briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] [The Board further ordered that those portions of the complaint as to which no violations have been found be dismissed.] rwe hereby correct the following inadvertence in the Trial Examiner's Decision: The case of I Posne,, Inc. should be cited as 133 NLRB 1573, rather than 133 NLRB 1567. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was heard before Trial Examiner Robert Cohn in Cullman, Alabama, on March 14-16, 1966, upon a complaint of the General Counsel of the National Labor Relations Board dated January 20, 1966, and the duly filed answer of Bendix-Westinghouse Automotive Air Brake Co. (herein called the Company or Respondent). The issues raised by the pleadings are whether the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended (herein called the Act), by engaging in certain acts and conduct more fully detailed herein.' Upon the entire record in the case,' including my observation of the witnesses and their demeanor while testifying, and a consideration of the briefs filed with me by counsel for the General Counsel and the Respondent, respectively, I make the following: FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events The Respondent is a multi-State enterprise engaged in the manufacture and sale of products for the automotive and related industries. The only plant involved in the instant proceeding is that located in Cullman, Alabama, which was erected in the latter part of 1964, and commenced operations about the first of the year, 'There is no issue of jurisdiction or of labor organization The complaint alleges suffi- cient facts, which are admitted by the Re,pondent s answer, to establish, and I find, that the Respondent is an employer engaged in commerce within the meaning of section 2(6) and (7) of the Act, and that International Association of Machinists and Aerospace Work- ers, AFL-CIO (herein called the Union), is a labor organization within the meaning of Section 2(5) of the Act. 2 Subsequent to the close of the hearing, the parties submitted a written stipulation to correct the record in one respect. The stipulation is approved, has been identified as Trial Examiner's Exhibit 1, and placed in the formal exhibit file. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 791 1965.3 At the commencement of operations, Respondent transferred a few of its key supervisory and technical personnel from its Evansville, Indiana, operation, but employed rank-and-file production and maintenance employees from the sur- rounding area. The great majority of these employees had little or no previous experience in the type of operations which they were employed to perform, and therefore a certain training period was required. The Union commenced an organizational campaign among the Company's employees on or about May 10, and on May 12, the first union meeting was held at the home of a former employee in the area. Within the next couple of days, the employer laid off or terminated five employees who are alleged in the complaint to have been discriminatorily discharged within the meaning of Section 8(a)(3) of the Act. The union campaign continued, however, and on July 1, the Union advised Respondent that a majority of its production and maintenance employees had selected the Union to represent them for purposes of collective bargaining, and requested recognition. Respondent, by letter dated July 14, expressed doubt of the Union's claim, and referred the Union to the election machinery of the Board to resolve the issue. The General Counsel argues that such expressed doubt was not proffered in good faith but rather reflected a desire on the part of Respondent to delay resolution of the representation matter in order to give it time to dissi- pate the asserted majority status of the Union. In support of this theory he cites evidence of employer interrogations and threats concerning union activity allegedly violative of Section 8(a)(1) of the Act, and the alleged discriminatory discharges hereinabove referred to. Respondent, for its part, vigorously denies having com- mitted any unfair labor practices, and urges that the good-faith nature of its expressed doubt of the Union's majority status was bottomed particularly on the fact that during the critical period, i.e., the organizational campaign prior to the date of request for recognition, there was a concurrent organizational campaign conducted by the United Steelworkers of America (herein called the Steelworkers) among Respondent's employees; that that labor organization likewise claimed an interest in representing the employees, and so notified Respondent prior to Respond- ent's sending the aforesaid July 14 letter to the Charging Union, and that there- fore Respondent was, at the time of the request for recognition, faced with two competing claims which formed the real basis for its doubt of the claim of the Charging Union. The _issues thus explicated, we proceed to an analysis of the evidence: B. The alleged 8(a) (1) violations The complaint alleges that Respondent, by its agents and supervisors, unlawfully interrogated employees concerning their union membership and activities. It appears that most of such interrogation occurred during preemployment interviews which were conducted either by Production Superintendent Snodgrass or Employ- ment Manager Pinkston. Thus, Mancel Sinyard, an alleged discriminatee, testified that approximately a week before he was employed, Snodgrass asked him had he ever belonged to a union. Sinyard replied that he had when he worked at the Hayes Aircraft Corporation. Whereupon, Snodgrass asked if he had ever gone on strike, and Sinyard replied that he had on one occasion. Eskel Duke, another alleged discriminatee, testified that on the day he was employed (about February 20), he had a conversation with Snodgrass in the latter's office wherein he was asked if he ever belonged to a union, and Duke replied in the affirmative. Snodgrass wanted to know why, and Duke replied that about 99 percent of the employees at Hayes Aircraft were union members. Former employee Riner testified that at his preemployment interview (about March 18), Employment Manager Pinkston asked his opinion of the Union, to which he replied: I told Pinkston about the Union, and he said that they treated people well enough that they didn't need the Union. Ex-employee Thomas Segroves testified that when he was hired Pinkston asked him how he felt about the Union, and Segroves replied that he could take it or leave it; whereupon, according to Segroves, Pinkston said that the Company was going to see to it that the employees were better off without a union than they would be with one. 3 All dates hereinafter refer to the year 1965 unless otherwise indicated. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snodgrass denied interrogating Duke as to his union proclivities, but was not questioned about the Sinyard interview; accordingly, that testimony stands undenied on the record. Pinkston denied interrogating employees concerning their union membership or desires, but conceded that customarily in an employment inter- view, he regularly advised prospective employees concerning the Company's policy toward unions, as follows: A. I tell them that I don't know what their feelings are towards the Union, and I try to tell them the plans of our particular company. Q. What do you say to them in trying to tell them the plans of your particular company? A. Well, that we plan to have an operation that each and everyone is going to be satisfied with, and this is what we are striving to do, that we don't feel that we need a union there. We think everybody is going to be better off without it. The employee witnesses involved in the foregoing interviews impressed me as being truthful and candid witnesses, and I credit their testimony over that of Pinkston and Snodgrass, whom I believe were reluctant to admit that they exceeded what may well have been stated company instructions in this regard. The question remains whether or not such interrogation, in the absence of threats, and con- sidering that the applicants were thereafter hired even though they (for the most part) gave affirmative answers to the inquiries, constituted interference with and restraint and coercion of Section 7 rights, in violation of Section 8(a) (1) of the Act. In that connection it is established that were the question concerning union affiliation included on an employment application, it would be unlawful4 It would not seem that an oral interview where the same question were propounded would stand on a different footing. In that connection, I find myself in substantial agree- ment with the analysis of the function of an employment interview as explicated by my colleague, Trial Examiner Laurence A. Knapp, in a recent case: 5 An employment interview is not an abstract discussion forum, or an occasion for chance or casual conversation, but is a session of serious import at which the employer deals with matters, and propounds corresponding inquiries, designed to determine the suitability for employment, in the employer's eyes, of the applicant being interviewed. Hence, an applicant has reason to know that his answers to questions are meaningful to the employer and, depending upon their nature, may be in greater or lesser but nevertheless in some degree be determinative of the outcome. For if the subjects inquired about were matters of indifference to the employer, he would have no reason to put the questions. When, therefore, an applicant for employment is asked how he feels about a union or whether he would vote for one, he has ample reason to know from such questioning itself, when no contrary words or circumstances are said or indicated to him during the interview, that the employer has a significant aversion to the employment of prounion applicants; in the circumstances, there is no other rational interpretation he can place upon the employer's inquiry, as experience prior to and under the Act has amply demonstrated . .. . In the instant case neither Pinkston nor Snodgrass offered any assurance to the applicants that their affirmative answer to the question would not be looked upon with disfavor by the Respondent or that their chances of employment would remain unaffected by their response. Indeed, in the context of Pinkston's state- ment of the Company's policy toward unions-albeit probably legitimate in itself- the applicant would certainly be restrained in his choice of comment. Under these circumstances, I find the interrogation to be coercive in its effect, and therefore violative of Section 8(a)(1) of the Act.6 Hugh Maddox, a former employee of Respondent, testified that during his employment he had two conversations with Snodgrass concerning the Union. *Rivers Manufacturing Corporation, 154 NLRB 662 'The Singer Company, Wood Products Division, 158 NLRB 677, 689. The Board in that case adopted, without comment, the findings, conclusions, and recommendations of the Trial Examiner. See Kern's Bakery, Inc, 150 NLRB 998; NL.R.B. v Cameo, Inc., 340 F.2d 803 (C.A. 5, 1965) ; Eastman Cotton Mills, 90 NLRB 31, 33; MacCollum Paper Co., Inc., 155 NLRB 900; The Borden Company, 157 NLRB 1100. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 793 The first was about June 1, on which occasion Maddox was talking to a machine operator when Snodgrass approached and inquired as to why he was talking so much with other employees . Maddox replied that he was talking to them about "different things." Snodgrass asked if he was "pushing the Union ." Maddox acknowledged that he had had an opportunity to work with the Union . Where- upon, Snodgrass asked if he had been giving out union cards, and Maddox responded in the negative . According to Maddox , Snodgrass continued the con- versation speaking of the disadvantages of the employees having a union , that the Union could not offer anything to the employees, and that the Company did not want a union in this plant .7 Maddox further testified about a conversation he had with Snodgrass in the latter's office on or about August 1, when two other company officials, a Mr. Hardy Austin and a Mr. Durrett, were present. The contents thereof may perhaps be best stated in Maddox's own words: A. Well, Jack sent Mr. Whobrey out to tell me to come in his office, and I went. When I went in, I sat down, and he told me that I made a good hand, and thought I deserved a promotion. He said he would have me promoted up, and then brought up the union subject. He said he knew I was pushing the union , but that I had done it in a quiet way, and I told him yes , that I had signed a union card, about, I believe, was about the last of May or first of June. Mr. Austin said-Mr. Austin was fixing to leave at that time. He said, "Well, if you can get your raise without the Union, you can also ask for your card back. Jack, he went ahead to say that the company didn't want the union, that if the union came in, if we got a nickel raise , we would have to strike for it. He told me that he was going to send a man out to relieve these men and learn them . That was about the end of the conversation , the best I remember. Q. Do you recall anything else said about the Union in that conversation? A. I can't recall anything else about that. Q. Do you recall anything being said about the Union meeting or anything? (Objection by Respondent's, counsel overruled by the Trial Examiner. A. Yes. We were talking about meetings , and Jack said he knew about bow many was in these union meetings, and most of the meetings, they had a- company man in them, and I told them that I figured that. I knew he was wide awake. That was about all that. was said. Snodgrass recalled the June 1 conversation but, only remembered so much of it as respects the inquiry of Maddox as to why the latter was spending so much time with the operators . He did not recall-although he did not deny-asking Maddox if the latter was pushing the Union . Snodgrass further recalled a conversation with Maddox in his office at the occasion of Maddox's promotion, but denied that anyone else was present in the office on that occasion. Neither Austin nor Durrett was called as a witness by Respondent, although it was not shown that either was unavailable. Under the circumstances, I credit Maddox, who impressed me as a candid and forthright witness. According 'to the' testimony of Michael Fox, an alleged discriminatee, about a week ; and ,a half before the 'first union meeting `on ' May 12, he asked ' his line supervisor,-Gilbert Rouch, "Did he ever think the 'plant would go Union?" And Rauch replied,'. "No, that they would move it first ." Rauch recalled Fox making the inquiry "one afternoon" on an ' undetermined day or date , but testified that he, ( Rauch ) did not seek to answer him; instead , he turned around and walked away. Fox further testified that on the `day after the union meeting-May 13-Rauch asked him whether tie had Been 'at'the "party" the previous night and Fox, con- cluding that Rauch was speaking of the union meeting, said yes he had been there. Whereupon Rauch advised him to "watch it, that they didn't like it, or something like that." Rauch denied this testimony attributed to him ; stating, that Fox had asked him on one occasion about • his opinion of the Union and he 7 The transcript, reciting this conversation,-also contains a clause that Snodgrass said "that Evansville got away with the Union, . . ." This ambiguous phrase is unintelligible to me, and no finding is made thereon. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that he had "no feeling for the- Union one way or another, that they had never, done anything for, me." Rauch testified further that he -had been a member of the Machinists' Union for 6 years when he` worked for the Company in Evansville before coming to Cullman. After a careful consideration of all the factors and circumstances surrounding the ,two aforementioned conversations, I credit Fox and -find that they occurred substantially as he testified. Fox did not appear to me to be one who was suffi- ciently sophisticated or intellectually capable of fabricating the type of responses which he attributed to Rauch, and Rauch was not, in my opinion, as disinterested and neutral in the matter of the union campaign as his statements indicated. Thus, his testimony on cross-examination that he told Fox "that the ' Union never done anything for me" is indicative of a probable bias against the Union from his prior association with it in Evansville. Accordingly, these conversations, as found, clearly constitute coercive interrogation, threats, and an impression of surveillance violative of Section 8(a)(1) of the Act. On July 27, Charles Duke went into Pinkston's office to request a transfer to another department in the plant. Pinkston called Jack Snodgrass into the office, and advised him of Duke's desire. Snodgrass opined: "I don't know, Duke, we have been getting pretty bad reports on you lately, passing out union cards, and talking to union men." He asked'Duke if that were true, and the latter replied, "yes, but not on company time." 8 Snodgrass continued: "You are better off without a union, . at a cigar plant, some of the employees lost wages by joining the Union." Neither Pinkston nor Snodgrass were interrogated concerning this conversation, and the testimony, accordingly, stands - undenied on the record. It is apparent that Snodgrass was much more interested in conveying an unfavorable and antago- nistic appraisal of the Union to the employee than he was seeking compliance with a company rule. I, therefore,' find his interrogation to be coercive and violative of Section 8(a)(1) of the Act. C. The alleged-8(a)(3) violations William Christy, the union organizer, testified that he arrived in Cullman on May 10 for the purpose of commencing an organizational campaign. He was referred to an employee who had quit the employment of Respondent the previous week, a Doyle Maddox, who lived in Hanceville, Alabama, a few miles from Cullman. Christy' talked to Maddox who in turn contacted his friends and acquaintances who were still employed at the plant, and an organizational meeting was arranged to take place-at Maddox's house on the evening of May 12. Notice of the meeting was spread by word of mouth, there being no bulletins or printed matter concerning the meeting distributed about the plant at any time. Approximately 18 or 19 employees of Respondent attended this meeting where Christy made a talk as to the asserted benefits of joining the Union, and generally laid plans for the organizational campaign. After his talk, union cards were dis- tributed to those present and, apparently, all employees present signed union authorization cards as the meeting came to an end.9 Five of the employees who attended this meeting were permanently laid off by Respondent the following 2 working days, that is May 13 and 14, and the complaint alleges that this conduct was to discourage membership in the Union, in violation of Section 8(a)(3) of the Act.l° Respondent denies that the union activities of the five had anything to do with their layoff. It argues that, in the first place, it was not aware of their minimal union activities at the time of the termination; and secondly, that even if it had had knowledge of such activities, this was not the reason for the dismissals Rather, the Respondent argues the five were let go because of poor work habits, inefficiency, and low production." In support of its contention, Respondent's officials testified that during the early spring of 1965, the production records of the Cullman plant showed that there 8 Duke acknowledged being aware of a company rule which, apparently, prohibited such conduct during working hours 0 There was at least one present who was a nonemployee of the Company who did not sign a card. 18 The five persons involved are Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H Duke, and Donald E Ryan n All five worked in production departments BENDIN-`VESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 795 existed an excessive labor cost relative to the amount of products being produced at the time. Accordingly, Respondent sent, a team of industrial, engineers from its Evansville plant into Cullman during April, to. study the situation. This study revealed that a balancing of production lines was required which would cause a decrease in the labor force. Respondent contends that the five were caught up in a resulting layoff involving several departments, which included two other employ- ees (Smith and Stansell) in addition to the five in question, and that they were selected because of their inefficiency and poor attitude toward their work.12 The manner of selection, however, is noteworthy. Industrial Relations Manager Kirts testified that the names were chosen at a management meeting "after securing the information from the supervisors on the lines." This presumably meant the personnel records hereinabove referred to since no immediate foreman was present at the meeting nor, for aught that the record shows, were they personally con- sulted. The one foreman who did testify, a Gilbert Rauch, foreman of department 25, mentioned only discriminatee Michael Fox, and stated he (Rauch) had not recommended Fox's termination. However, before further analysis along this line, we should address ourselves to Respondent's first contention in defense, i.e., the issue of company knowledge, if any, of the five's union activities. Respecting this issue, General Counsel relies on two pieces of evidence adverted to above; (1) The Fox-Rauch conversation on May 13 wherein the latter interrogated the former as to whether he had been at the "party" the previous evening, and (2) the Maddox-Snodgrass conversation about the first of August where the latter advised, in effect, that he knew what had been going on at the union meetings because the Company had had a spy present. Although I do not agree with the General Counsel that the foregoing evidence "is more than adequate to establish Company knowledge of the employees' union activities," I do concur that this evidence, -inter alia, could provide a basis from which a reasonable inference of company knowledge could be drawn. That is to say that the statement of Rauch clearly indicated that the Company was aware of the union meeting on May 12,13 although Fox's response proves only that his presence became known to the Company. And Snodgrass' statement is not entirely adequate to support the proposition that the Company surveilled each and every meeting since, even accord- ing to the testimony of Maddox, Snodgrass said only that "he knew just about who was going to the Union meetings," and how many, and that most of the meetings had a company man there." Nonetheless, the Board, in a recent case,ra held: It has been well established that direct evidence is not necessary to support a finding of knowledge but that such knowledge may be inferred by the Board from the record as a whole. See also F. W. Woolworth Co. v. N.L.R.B:, 121 F.2d 658, 660 (C.A. 2). Here, although the evidence giving rise to the inference of company knowledge is not strong, it is, in my opinion , sufficient to support the burden of the General Counsel in this type of case when considered with the other circumstaces sur- rounding the terminations: . 1. The five were summarily terminated without prior notice or warning within 48 hours following their attendance at, a union meeting which their employer knew about and looked upon with disapproval. This kind of timing is " ... pertinent evidence of [discriminatory ] motivation." 25 12In support of this contention Respondent introduced various personnel records (Re- spondent's Exhibits 1 through 15) regarding the five, which' will be discussed in more detail, infra Respondent's officials also testified that during the entire year of 1965, the Company terminated 17 additional production personnel However, further details as to time and circumstances are lacking, making it difficult if not impossible to relate this fact to the issue since , among other things, Respondent embarked upon a hiring program in about August of that year. 12Knowledge of a supervisor is imputable-to Respondent. See The Bama Co., 145 NLRB 1141, 1152. and cases cited. 14Tewa8 Industries, Inc, 156 NLRB 423. ss N.L R B. v. Soft Water Laundry, Inc, 346 F 2d 930 (C A. 5, 1965) ; see also Rosen Sanitary Wiping Cloth Co, Inc., 154 NLRB 1185, and cases cited ; N.L R B. v. Tepper, Shoenberg Farms, 297 F 2d 280 (C.4. 10, 1961). 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The decision to terminate and the selection of personnel was made at a meeting of higher management without consultation or participation of immediate supervision ; 16 indeed, the foremen were not even advised of the decision until shortly before they were told to hand the termination slips to the men. 3. The form of the slip handed to each of the five on the day of termination is reproduced below: Evansville Division of BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE COMPANY DISPOSITION Name ----------------------------------------------------------------- Date --------------------------------------- Dept. & Cik. No. ------------ q Transfer q Layoff q Quit q Termination q Suspension Cause ----------------------------------------------------------------- Attitude Production Quality Excellent Very fast Excellent Good Fast Good Average Average Average Unreliable Slow Poor Disturber Very slow Very poor Comments ------------------------------------------------------------- ----------------------------------------------------------------------- Last Day Worked ------------------------------------------------------- Crib Clearance --------------------------------------------------------- Foreman -------------------------------------------------------------- Personnel Dept. --------------------------------------------------------- BWE 48R Each slip received in evidence contains the person 's name, the date and clock number, a check in the block beside the term "layoff," and written after "cause" are the words "reducing force." No mark is made by any of the words under the three headings: Attitude, Production, and Quality. With the sole exception of Fox, neither of the five were orally advised on the day of separation that the cause therefor was different from that which appears on the "Disposition Slips," or that the layoffs were intended to be permanent.17 Nevertheless , at the hearing, Respondent took the staunch position that the five were chosen for permanent layoff (though the "Termination" box was not checked on either of the "Disposition Slips" ) because of their inefficiency and poor work habits although , again, neither of these characteristics were checked on the disposition slips. Under all the circumstances , I am convinced that position of Respondent taken at the hearing was an afterthought perhaps stemming from a realization that if the five were said to be merely "laid- off," as the term is normally understood,18 Respondent would be embarrassed at its failure to recall them upon resumption of hiring in August. Such failure to state reasons to discriminatees at the time of termination , or the giving of conflicting reasons has been held to be an indicium of discriminatory motive.19 4. The layoffs took place in a context of coercive interrogation and threats violative of Section 8(a)(1) of the Act. 5. Respondent's defense is not supported by substantial and convincing evidence that the asserted reasons were the real and motivating ones for the discharges. Thus, the only evidence Respondent offered as to the supposed derelictions of the five, upon which it based its decision, was the documents contained in their per- 16 Marsh Supermarlcete, Inc., 140 NLRB 899, 912 ; Kingsfoi d Motor Car Company, 135 NLRB 711, 712 17 Fox testified that Foreman Rauch told him that he was being laid off for "not watch- ing your work " On the other hand, Goodwin's uncontradicted testimony is that his foreman (Whobrey) advised that "they had caught up on parts and didn't need [him] for a few days" Eskel Duke testified-again unrefuted-that he asked Rauch if it was his work that caused the separation, and Rauch replied, "No, I am sorry to see you go, and hope you will be back in a few days." 18 Webster's Dictionary (7th Collegiate Ed.) states the term to mean "to cease to employ (a worker) usually temporarily " 19 Shipwrecking, Inc., 136 NLRB 1518, 1528, Merchants Police, Inc, 137 NLRB 525, 531. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO . 797 sonnet folders?° These forms fall into two categories which may be described as follows: (1) Employee rating sheet which is a form executed by an employee's fore- man after 30 or 60 days of employment denoting the employee's performance in three areas, i.e., attitude, production, and quality. There are blocks to be checked under each of the three named categories indicating whether or not the employee was excellent, good, average, poor, or unacceptable; (2) "Avoid Verbal Orders" which was a form to be executed by, presumably, any supervisor or management representative concerning the conduct of any particular' employee, to be sent to the personnel department to be included in the employee's file. The forms showed the following with respect to the alleged discriminatees: Sinyard: The two employee rating sheets, dated April 5 and May 5, indicated he had a poor attitude, was slow in production, and had an average quality. On April 21, his foreman, Henry Whobrey, warned Sinyard about "firing too stow" and that he would have to speed up if he wished to stay with the Company. Goodwin: This man received a good rating in attitude and quality and was rated fast in production on February 11, but fell off to average in attitude and quality and unacceptable production on March 11. On May 5, Henry Whobrey filed an AVO on Goodwin indicating that he had a fair attitude, but he is "so slow I do not believe that he will make a good production worker. I have talked to him several times about it, but it does not seem to help." Fox: This employee received an average rating in all three categories on February 15 and the same on March 18 except that he fell from average to poor in attitude. There were three AVO's filed with respect to Fox which related to his failure to stay on the job and his lining up too soon at the timeclock before the work period was completed. These are dated April 7 and 20 and May 12, respectively. Ryan: As in the case of Fox, this employee's first rating dated March 18, showed average in all three categories, and he received the same rating on April 18, except that he fell from average to poor in "attitude." There were no AVO's filed with respect to him. Duke: The two employee -rating sheets respecting this person, dated March 22 and April 22, indicate he had a poor attitude, was slow in production, and had an average quality. There were no AVO's filed with respect to him. While the information contained on the Company's records set forth above cannot be characterized, as complimentary to the employees, such evidence is, of course, hearsay and entirely self-serving, and I thus accord it very little weight in reaching a decision in this issue. That is to say that the documents were received in evidence (all except one without the objection by General Counsel) as being records kept in the regular course of business, _ which is a generally recognized exception to the hearsay rule. However, the reason and basis for the rule is the unavailability, inconvenience, and practical impossibility of calling various persons to testify respecting voluminous records?' Yet here, the foremen who signed most of the documents were either not called as witnesses (though not shown to be unavailable) or, if called, not interrogated concerning the circum- stances giving rise to the promulgation of the papers. In the face of credible, affirmative testimony by the five that they had never received any complaint or criticism in connection with their work prior to their layoff, I believe it was incumbent upon Respondent, in order to meet this kind of evidence, to call as witnesses (where available) the persons to whom certain conduct is ascribed, and interrogate them concerning the matter, and not rely solely on the kind of self- serving evidence adduced. Yet only Snodgrass was questioned about any of the material contained in the documents 22 In short, I am unconvinced that the five were as unproductive or inefficient as Respondent claims. But even if Respondent's evidence in this regard is given full weight, my finding, i.e., that a substantial and compelling purpose for the termination was to discourage union membership, would be the same. This because of the factors 20 The sole exception to this was the testimony of Foreman Rauch (hereinabove referred to) wherein he stated that he spoke to Snodgrass concerning Fox's being off the job too much, but did not recommend discharge, nor did he speak to Fox about the matter 21 See 5 Wigmore, Evidence, § 1521, et seq. (3d ed ). 22 This was with respect to Goodwin who was said to be generally acceptable as a laborer, but not satisfactory as a machine operator because he was "too slow to learn." 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,above mentioned , to wit : the timing, lack of consultation with either the employ- ees or their immediate supervisors, conflicting or lack of reasons given for the separations, all in the context of Respondent's demonstrated antipathy toward the organizational efforts of its employees .23 Thus, even though cause existed for the 'discharges, such is not a bar to an 8(a )(3) finding. The Court of Appeals for the Fourth Circuit stated the rule succinctly in a recent case: 24 It is, of course, well settled that union activity is no bar to a discharge, for "the right to hire and fire for sound business reasons is still a managerial prerogative." N.L.R.B. v. Williams, 195 F.2d 669, 672 (4th Cir.), cert. denied 344 U.S. 834 ... (1952). But it discouragement of union membership is a substantial , motivating reason for a layoff, the existence of an alternate ground of justification' is no defense. "The charge is, sufficiently established it, in addition to an economic ground shown in the Labor Board hearing, there is proof from which the examiner may fairly find . that the layoffs were motivated by a purpose to interfere with union organizational activities." N.L.R.B. V. Associated Naval Architects, Inc., 355 F.2d 788, 792 (4th Cir. J966). D. The alleged refusal to bargain As previously noted, the Union's campaign continued through the latter part of May and the month of June. On July 1, the Union dispatched a letter to Respond- ent advising that it had achieved majority status among the production and main- tenance employees, and requested recognition and bargaining. Respondent, by letter dated July 14, responded that it doubted the asserted majority status, and referred the Union to the election machinery of the National Labor Relations Board. It is agreed between the parties that as of July 1, there were 172 employees properly includable within a production and maintenance unit accordingly, it was incumbent upon General Counsel to prove that at least 87 of such employees had voluntarily designated the Union to represent them for bargaining purposes. At the hearing, I received 89 cards of employees within the unit into evidence.25 Respondent does not frontally attack the validity of the cards received in evidence, but rather depends on the proposition that the Union was not the exclu- sive bargaining representative of the employees at the time of the request because some 13 of the employees who testified and identified the Charging Party's authorization cards, also testified that they had executed authorization cards for the United Steelworkers' Union who was conducting an organizational campaign among the Respondent's employees concurrently. Under these circumstances, the argument runs, employees who signed cards for both unions could not have designated the Charging Party as their exclusive agent for the purposes of collective bargaining, citing such cases as Adam D. Goettl d/b/a International Metal Products Company, 104 NLRB 1076; Weirton Ice and Coal Supply Company, 103 NLRB 810; and I: `Posner; Inc., 133 NLRB 1567.26 Respondent further' contends that even if the designations of the Charging Union are not tainted by the duplications for the Steelworkers' Union, the proof offered by the General Counsel to offset the Respondent's asserted good-faith doubt of majority status of the Charging Union, i.e., proof of violation of Section 8(a)(1) and (3 ) of the Act, falls short of that which is required by the Board and the courts to support an order to bargain. zv To borrow a phrase from the Court of Appeals for the Second Circuit, the sudden terminations here appear to be ". . . part of a deliberate effort by management to scotch the lawful measures of the employees before they had progressed too tar toward fruition." N.L R B v. Jamestown Sterling Corp , 211 F 2d 725 ( 1954). 24 N.L.R.B. v. Lexington Chair Company, 361 F 2d 283 ; see also, N L R B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003 ( C.A. 5, 1965 ) ; N.L.R.B. v. Great Eastern Color Lithographic Corporation, 309 F .2d 352 ( C.A. 2, 1962). "One -additional card was rejected because of insufficient proof that the person whose name appeared on the card actually signed it . General Counsel , in his brief, argues that the card should have been received in evidence based upon such cases as Delight Bakery, Inc, 145 NLRB 893. However, inasmuch as the Union 's majority remains unaffected by the inclusion or exclusion of this particular card, I deem it unnecessary to resolve that particular issue. zn It should be noted that no employee who stated that he signed cards for both unions, testified that he subsequently sought to retract his authorization from either union. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO. 799 Based upon the authorities cited, supra, by Respondent (and not having dis- covered countervailing precedent either through suggestion of General Counsel or by independent investigation), I find and conclude that General Counsel failed to sustain his burden of proof on this issue, in that 13 of the persons who signed cards for the Charging Union (upon which General Counsel relies in proving his majority of 89), also signed cards for the United Steelworkers' Union prior to the critical date of July 1. Thus, as long ago as 1942, in the case of Harry Stein d/b/a Ace Sample Card Company,27 the' Board reversed a Trial Examiner's finding of majority status where the latter had found that on the critical date, 16 of 23 employees in an appropriate unit had designated Local 65 as their representative. The Board stated: In reaching this conclusion, the Trial Examiner did not consider the fact that 6 of the 16 persons who designated Local 65 to represent them also designated Local 413 to represent them for the purposes of collective bargaining. There is no evidence in the record concerning the circumstances under which 4 of the 6 duplicate cards were signed. . . Under these circumstances, we are unable to determine from the record that 5 of the 6 who signed duplicate cards desire exclusive representation by Local 65 rather than by Local 413.... We therefore find that Local 65 did not represent a majority of the employees in the unit, and was not the exclusive representative of the employees within the meaning of Section 9(a) of the Act. This holding was cited with approval and affirmed in Late, national Metal Prod- ucts Company, supra; which in turn was approved in I Posner, Inc, supra. Accord- ingly, I find and conclude that the record herein fails to establish the Charging Union's exclusive majority status, and will recommend that the complaint be dis- missed insofar as it alleges a violation of Section 8(a)(5) of the Act28 II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of Respondent, 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. III. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent offer employees Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H. Duke, and Donald E. Ryan, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of offer of reinstatement in a manner consistent with Board policies set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of Respondent's illegal conduct, which goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4) ), it will be recommended that Respondent cease and desist from engaging in conduct which in any manner denies its employees the rights guaranteed them by the Act. 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. Bendix-Westinghouse Automotive Air Brake Co., the Respondent herein, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.- =7 46 NLRB 129, 130-131. 29 In view of the foregoing findings, I do not reach the issue of whether or not Respond- ent's asserted doubt of the Union's majority status was in good faith. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act, as found hereinabove, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire or tenure of employment of Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H. Duke, and Donald E. Ryan, to discourage membership in a labor organization, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that Respondent, Bendix- Westinghouse Automotive Air Brake Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Association of Machinists and Aerospace Workers, AFL-CIO, by discharging, laying off, or otherwise discriminat- ing in regard to the hire or tenure of employment of employees, or any term or condition of employment. (b) Coercively interrogating its employees concerning their own and the union activity of other employees, threatening reprisals for engaging in union activity, and announcing that it was keeping the union meetings under surveillance. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to form, join, or assist International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H. Duke, and Donald E. Ryan immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any losses they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Notify the above employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, and all other documents necessary and relevant to analyze the amount of backpay due under these recommendations. (d) Post at its plant, copies of the attached notice marked "Appendix." 29 Copies of said notice, to be furnished by the Regional Director for Region 10, after having been signed by a Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. a In 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." JOHN HANSEN MATERIALS & HOUSE MOVING, INC. 801 (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith 30 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 30 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." 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 offer to Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H. Duke, and Donald E. Ryan immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their senior- ity or other rights and privileges and make each of them whole (with interest) for any loss of earnings they may have suffered as a result of the discrimina- tion against them. WE WILL NOT discriminate against any employee in regard to his hire or tenure of employment or any term or condition of employment , to discourage membership in International Association of Machinists and Aerospace Work- ers, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees with respect to their union activities or membership , or threaten our employees with reprisals for engaging in union activities , or tell our employees that we know who is attend- ing union meetings. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. All our employees are free to become or remain members of the above -named, or any other labor organization , or to refrain from such membership. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above -named employees if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced , or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 526-5741. John Hansen Materials & House Moving, Inc. and Building Material and Dump Truck Drivers, Local 36, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America. Case 21-CA-6909. November 7, 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respond- 161 NLRB No. 75. 264-188----67--vol. 161-52