Jerden Manufacturing Corp.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jerden Manufacturing Corporation and District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 25-CA-2698 November 2, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On July 25, 1967, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-entitled case, finding that the 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 action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a sup- porting brief. The General Counsel filed 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 Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that Respondent , Jerden Manufacturing Corporation , Indianapolis , Indiana, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as so modified. Delete from paragraph 2(c) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided ...." Correct the name of the Charging Party where it appears in Appendix B, to read "District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO." TRIAL EXAMINER'S DECISION HERZEL H E. PLAINE, Trial Examiner: This proceed- ing was initiated, pursuant to Section 10(b) of the Na- tional Labor Relations Act, as amended (referred to as the Act), upon a charge by the Union (the Charging Par- ty) filed January 11, 1967. The complaint, issued March 3, 1967, and thereafter amended, alleged that the Respondent engaged in unfair labor practices violating Section 8(a)(1) and (3) of the Act by interrogation of and threats to employees covering union activities, and by the discriminatory discharge of and failure to reinstate one of the employees because of his union activities. Respondent entered a general denial. On due notice, the case was heard in Indianapolis, Indi- ana, on April 18-19, 1967. Counsel for the General Counsel and for the Respondent have filed briefs. Upon the entire record of the case and from my obser- vation of the witnesses, I make the following:' FINDINGS OF FACT 1. JURISDICTION The Respondent is an Indiana corporation with its prin- cipal place of business in Indianapolis, Indiana, where it is engaged in the manufacture and sale of jet engine com- ponents and aircraft parts. During the 12 months prior to issuance of the com- plaint, which was a represenative period, Respondent sold and shipped from its Indianapolis, Indiana, plant to points outside Indiana, finished products valued in excess of $50,000. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Background and Issues The Respondent has been engaged in the manufacture and sale of jet engine components and aircraft parts at the Indianapolis, Indiana, plant with a fluctuating comple- ment of management and rank-and-file employees ranging from 145 to 176 in the 10 months preceding the hearing, based on end-of-month figures. Management employees comprise roughly 20 percent of the total. In 1966 there appears to have been three organizing campaigns for union representation at the plant. The first on behalf of the IAM (the Charging Party) culminated in an election March 9, 1966, which the Union lost 2 The second campaign on behalf of the Steelworkers lasted from about Thanksgiving in November 1966 until December 12, 1966, with Respondent's employee Joseph Mize as the principal employee activist. To correct errors which appear in the transcript of the record and in the marking of the exhibits , I have ordered the corrections set out in Ap- pendix A to this Decision [Appendix A has been omitted from publica- tion I Two unfair labor practice complaints were issued in connection with events alleged to pertain to that campaign , consolidated Cases 25-CA-2479 and 2519 ((. C Exh 2 ), which were settled November 2, 1966, without admission by the Respondent that it had committed any un- fair labor practices (G C Exh 3), and with the posting of a notice (G C Exh 4) that it would not interfere with the self-organizational rights of its employees and would make whole for loss of pay two employees, Roberts and Musgrove , whose employment had been terminated 168 NLRB No. 13 JERDEN MFG. CORP. The Steelworkers withdrew on December 12, 1966, in favor of the IAM, the Charging Party, and simultane- ously the third campaign began with employee Mize again the principal employee activist. On December 30, 1966, employee Mize was laid off or discharged, along with I 1 other employees, as part of an alleged economic reduc- tion in force, and he has not been called back although some of the other terminated employees were called back.3 The General Counsel contends that employee Mize was discharged on December 30, 1966, and has not been reinstated, because of his union activities. The Respond- ent denies that it knew of union activities by employee Mize and claims that his layoff was part of an across-the- board reduction in force to cut financial losses it had sustained in 1966. The General Counsel also contends that some of Respondent's supervisors unlawfully interrogated em- ployees and threatened discharge because of union activi- ties in the November-December 1966 period. The Respondent denies that such conduct took place, further denies that the identified supervisors were supervisors at the times of the alleged incidents, and contends that even if there was an instance or instances of interrogation by a supervisor, the acts were either not coercive or so iso- lated as not to constitute violations of Section 8( a)(1). B. Interrogation, Threats Employee Erma Jane Stow was an inspector on the so- called chucker line. Her foreman was John Spence. She was told he was her foreman and was turned over to Spence when she was hired in September 1966, by the personnel man, Lester Day, she testified. In the latter part of November, employee Stow received for distribu- tion a batch of 10 or 15 union authorization cards (for the Steelworkers) from employee Joseph Mize, who is her uncle. She said she tried to pass one of the cards and had others in her pocketbook when Foreman Spence said to her, in the toolroom, that he heard someone "is talking union." She shrugged her shoulders, employee Stow testified, thereupon he asked if she was for the Union, to which she replied she was. This conversation (undenied) occurred at the end of November, but Respondent contends Spence did not become a supervisor (within the meaning of the Act) until the following week, December 5. However, apart from stipulating that Spence was a foreman or supervisor after December 5, Respondent offered nothing to differentiate Spence's job and position before and after December 5, or as to why this date was a cutoff; whereas the affirma- tive evidence produced by the General Counsel indicated that before (as well as after) December 5 Spence exer- cised the same duties of a supervisory nature as are at- tributed to a foreman or supervisor at Respondent's plant. Thus from the testimony of Respondent's Vice President M1 Mize continued to be active for the Union outside the plant in January 1967 until he took a job elsewhere at Newberry, I diana,aboutJanuary 30 or February 2, 1967 The union campaign apparently continued A representation petition, in Case 25-RC-3448 was filed by the Union on March 5, amended March 10, 1967, and a consent-election agreement was entered and an election scheduled for April 26, 1967 (a date sub- sequent to the conclusion of the hearing in the instant case) ' When shown G C Exh 14 indicating Spence's recommendation in October 1966, as "foreman or department head," of a pay increase for em- 73 A. Darwin Jerden and employee Stow, it appeared that, at least as early as September 1966, Spence was the head of his department,4 occupied a separate walled- and glassed-in office in the plant, and, among other things in the September-November period, fired an employee (Oc- tober 1966), made requisitions as "foreman or depart- ment head" for additional help (G.C. Exh. 15, September 1966), made recommendations in the same capacity for pay increases (G.C. Exh. 14, October 1966), excused tardiness, permitted early leaving of work, and approved absences of employees. In my view it was established that Foreman Spence was a supervisor within the mean- ing of the Act in November as well as in December 1966 when it was conceded he was a supervisor. Employee Maxwell Troutman, who was on a 60-day requested leave of absence at the time of the hearing, testified he was a leadman on automatic chuckers and that employee Stow was an inspector on the chucker line until some time in December, when she left (actually December 13, 1966). Prior to the date of her leaving, em- ployee Troutman said, Production Manager William Mc- Cartney, who was in charge of all production, asked Troutman if the women on the line were causing any union trouble or signing up anyone with union cards. Troutman told Manager McCartney he didn't know of any union talk on the line. Employee Mize had come to work as a maintenance man in the maintenance department in June 1966. He had been hired by Lester Day, the personnel manager, and was turned over to Foreman Kenneth Spencer, who was in charge of maintenance. Mize proved to be very good at his work, as Spencer testified, and received a 10-cents- per-hour raise in early August (G.C. Exh. l8c), but thought he had a promise from Day of 25-cents-per-hour raise when his 90-day probationary period was completed. Personnel Manager Day apparently did not agree, according to employee Mize, and told Mize he could quit. Mize did not quit. He had been a member of the Steelworkers while on a previous job, and in November 1966 he consulted with an organizer of the Steelworkers, Kerns, about getting a union at the plant. Steelworkers Organizer Kerns gave Mize 47 authoriza- tion cards around Thanksgiving, which Mize testified he distributed among employees in the plant except 15 which he gave to his niece, employee Erma Jane Stow. Among those whom employee Mize approached to sign a Steelworkers card was Roy Gose of the special products department. According to Mize Gose said, this place needs a "damn good union." Mize asked Gose if he would help get a union in but he replied, he could not, he was a foreman. Gose's version was that when approached by Mize, he, Gose, asked "what would I want with a union card," and when Mize said sign it , Gose replied he was not in- terested, and that employee Paul Fulton, who was also present, said he didn't want anything to do with it. ployee Stow, on vo,r dire examination by his own counsel, Vice President Jerden first testified that the Company had no department heads who were not foremen (the Company's equivalent for supervisor under the Act), but changed his testimony to say that an employee could be a department head without being a foreman since he said he regarded Spence as the "group leader" of his department at the time 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to employee Mize this conversation took place in late November or early December. Foreman Gose, or Supervisor Gose (as he said he is called), agreed on the approximate time but testified he was made super- visor on December 5 and that this first conversation about unions with employee Mize took place before December 5.5 Both Gose and Mize agreed that employee Paul Fulton (who succeeded to Supervisor Gose's previ- ous job when Gose moved up) was present, and that the conversation took place in the shop, but disagreed as to whether it was on lunchtime (Mize's version) or during working hours (Gose's version). Employee Fulton, who was called to testify by the Respondent, agreed with Su- pervisor Gose that the conversation occurred before Gose was made supervisor, but agreed with employee Mize that it took place during lunch (Gose and Fulton in- variably ate lunch together at the bench in their depart- ment). There followed a number of later encounters in December involving the same three men, at lunchtime and at work in the special products department, concern- ing the Union and authorization cards. In dealing with these, infra, as well as with the first encounter, here, the combined testimony of all three men and the demeanor of each has persuaded me of the following: (1) Supervisor Gose attempted to telescope the encounters (and omit some of what was said) into two or three occasions, when there were actually more, as testified to by employee Mize and corroborated by employee Fulton, although Fulton claimed not to remember what was said on other than two of the occasions. (2) The testimony of employee Mize as to what was said and done among the participants in these encounters was essentially accurate although he may have attributed an item to one occasion that oc- curred in another. Thus, the statement, supra, that Gose could not sign an authorization card because he was a foreman clearly was made (by Gose or by Fulton for him) and probably at this first encounter, although it could have been at the second encounter. On the other hand, Mize accurately indicated that he approached Gose to sign a Steelworkers card on the first occasion, and did not include Fulton though he was present, but did approach Fulton to sign an IAM card on the second and later occa- sion, after December 14, infra. Fulton and Mize agree that Fulton was approached only once by Mize and for IAM. Accordingly, I have credited employee Mize's ac- count of his conversations with Supervisor Gose and em- ployee Fulton. In early December, the IAM (Charging Party) evidenced interest in organizing the Respondent's shop. According to employee Mize, in a meeting of representa- tives of both Unions, which he attended on December 12, 1966, the steelworkers agreed to withdraw, and Mize joined IAM and agreed to distribute authorization cards for the JAM. Mize received about 30 to 35 cards (G.C. Exh. 5) and IAM book matches (G.C. Exh. 8) from IAM Organizer Al Oberding. Mize signed one of the cards on December 12 (G.C. Exh. 6), passed a few out including one to his niece, employee Stow, who signed, and next morning, December 13, passed a few more to employees. That afternoon December 13, from 3 to 6 p.m., Union Organizers Oberding and Bob Ballinger distributed hand- bills (G.C. Exh. 7) outside the plant. Employee Mize testified he continued to hand out authorization cards through the plant on December 13 and 14 for a total of between 20 and 25 cards. December 14 was a Wednesday, and that night the two teams of Jer- den employees in the Wednesday night bowling league met, as usual, at the bowling alley. Employee Mize bowled with his usual teammates, comprising Jerden em- ployees and a former employee. The other team that night included, among others, employee Mize's foreman, Ken- neth Spencer, Production Manager McCartney, and Foreman Richard Payne. Assistant General Manager W. Darrell Jerden, who sometimes bowled with this team, was not present that night. During the evening play, Union Organizer Ballinger came to see employee Mize at the bowling alley (apparently to collect any signed authorization cards obtained). Mize talked to Ballinger, according to Foreman Spencer, and this was observed by the members of Spencer's team and commented upon by one of them. Spencer testified he didn't know who Ballinger was "until one of the other men on the team told me." Employee Mize testified he handed the cards he had to Union Organizer Ballinger, but Foreman Spencer said he did not see this and there is no evidence that any of the other supervisors did. On succeeding days, following this incident, employee Mize sought card signatures for the Unions and had several encounters in the plant with management person- nel on the subject. In mid-December 1966, shortly after employee Stow's employment had terminated, in a con- versation between Foreman Spence and employee Mize, Spence asked Mize how he felt about the Union. Mize said he was 100 percent for it, he had already signed his card, and was "pushing" it.7 On December 15 or 16, employee Mize went into the special products department at lunch hour to get em- ployee Paul Fulton to sign a union card (IAM). He found Fulton and Supervisor Gose together eating lunch, and asked Fulton to sign a card. Fulton said he could not and, when asked why, said he knew of another outfit like Jer- den and the Union had not done the employees there any good. According to employee Mize, Supervisor Gose then spoke up and asked Mize if he was really "pushing the Union." Mize replied he was. Gose asked if he had any cards signed and Mize said yes, from 10 to 20 cards. Supervisor Gose then said, according to Mize, "you'd 5 Before becoming supervisor, Gose was the "group leader" in the spe- cial products department, according to Vice President A Darwin Jerden This department, along with the tubing and welding departments, was under one supervisor, Bob Roach, before December 5, 1966 On December 5, according to Gose, Production Manager William McCart- ney announced to the employees in the three departments that Gose was now supervisor of the special products and tubing departments and that Roach would remain in charge of the welding department Paul Fulton took Supervisor Gose's previous job in the special products department 6 He testified he passed out a total of over 100 cards for the Union (I AM) before his employment ended December 30, 1966 T Foreman Spence did not testify and it appeared he was no longer in Respondent's employ at the time of the hearing JERDEN MFG. CORP. better leave that stuff alone ... you know what happened to those two boys last year."" On Monday, December 19, employee Mize was sent by his foreman, Spencer, to report to Supervisor Gose for some work in the special products department. When em- ployee Mize arrived, Supervisor Gose commented, "what are you up here for: To talk that union stuff again"; to which Mize replied, no, he had been sent by Foreman Spencer for assigned work, whereupon Gose and Mize discussed the job to be done. Employee Mize spent the greater part of 3 days on the work until he was pulled off the job Thursday morning, December 22, by Foreman Spencer on the ground that Manager McCartney felt Mize was giving it too much time. During a lunchtime in that 3-day period, in conversa- tion with Supervisor Gose, according to employee Mize, Gose asked Mize if he was "still pushing that union stuff." Mize said he was. Whereupon Gose said, accord- ing to Mize, "you'd better quit talking that stuff... you'd better leave it alone ... it's going to get you fired or laid off ... you know what happened to those two boys last year," calling them by name.9 During the evening of Thursday, December 22, and morning of Friday, December 23, employee Mize worked on repairing the bandsaw in Supervisor Gose's department and was there at lunchtime, December 23. He walked to where Gose and his assistant, Fulton, were eating lunch and Gose asked, "What are you back for? To talk union again?" When employee Mize replied, yes he always was, Gose said, according to Mize, "you'd better leave that stuff alone ... you're going to get in trouble ... you can get laid off or fired over it."10 C. Discharge of Employee Mize As already noted under section B, above, employee Joseph Mize came to work for the Respondent on June 15, 1966, as an all-around maintenance man in the main- tenance department, of which Foreman Kenneth Spencer was in charge. Mize's duties encompassed machine repair, electrical work, plumbing, carpentry, welding, and painting. Prior to Mize's employment, the maintenance depart- ment comprised Foreman Spencer, and employees Paul McClain and Victor Jones. From June 15 to July 1, 1966, the department comprised Foreman Spencer and em- 8 The reference to the "two boys" was identified in connection with a later conversation between Gose and Mize, as former employees William Roberts and Edgar Musgrove , see fn 9, infra, who were the subject of NLRB Notice G C Exh 4, fn 2, supra, posted in Respondent's plant in November 1966 To show that there was a past pattern of union animus that has con- tinued , the General Counsel produced former employees Musgrove and Marlin Todd who testified that prior to the March 1966 election they had been in the habit of drinking at the Gold Finger bar with their Foreman Dick Payne and others , that on one such occasion a month before the election Foreman Payne told them when a discussion of unions arose, that if anyone in his department had anything to do with the Union he would fire him , and that on another such occasion , about a week before the elec- tion, when the two men told Foreman Payne that they were going to serve as election observers for the Union he walked out angrily saying, "damn you, I ought to fire you " Former employee Musgrove was laid off by Foreman Payne a few weeks after the election , was called back to a lesser position at less pay, and then terminated in July 1966, following which his complaint case along with the complaint case of former employee William Roberts, G C Exh 2 , was settled without any admission of wrongdoing 75 ployees Jones and Joseph Mize. Beginning July 1, there was a general layoff of more than two dozen employees (G.C. Exh. 20) including Mize. Employee Mize was told by Foreman Spencer that it was a temporary layoff, maybe 7 to 10 days, and that he had to lay off Mize rather than Vic Jones because Jones had seniority. However employee Mize was recalled in 3 or 4 days, testified Foreman Spencer, because employee Jones came in drunk on July 5 and Spencer arranged with Assistant General Manager Darrell Jerden that Mize would replace Jones." Employee Mize completed his probationary period under Respondent's rules (Resp. Exh. 1) September 15, 1966. According to Foreman Spencer employee Mize was a "very good maintenance man," who from the beginning could operate on his own in most things and, after once being shown by Spencer a type of machine repair, could handle it alone thereafter. Employee Mize testified that Foreman Spencer would occasionally check his work and sometimes give him a hand. In early November 1966, the Respondent hired Syl- vester Etter, as the maintenance oiler, assigned to the maintenance department. The assignment represented an internal management victory for Foreman Spencer, who told Mize he had fought off Foreman Ray Day's bid for employee Etter (Day wanted Spencer to take a janitor in- stead of Etter). The victory was followed up in mid- November by transfer of the janitorial staff from Foreman Ray Day's jurisdiction to Foreman Spencer's department , and assignment to Foreman Spencer of a separate office, away from the maintenance shop, among a group of offices occupied by supervisors. In this connection it is useful at this point to examine Foreman Spencer's authority, since the General Counsel contends, and Respondent denies, that he had the status of a supervisor within the meaning of the Act. Spencer concededly was a department head and working foreman who performed some of the work assignments himself. He answered directly to Assistant General Manager W. Darrell Jerden, who had overall charge of the shop, whereas most of the foreman with supervisory status re- ported to the assistant general manager through the production manager.12 Maintenance work orders would originate with the shop foremen and go through Assistant General Manager Jerden for approval and thence to Foreman Spencer. Spencer would give preference to in November 1966, G C Exh 3, and a notice posted in the plant, G C Exh 4, see fn 2, supra Former employee Todd voluntarily quit his job with the Respondent 9 Former employees Roberts and Musgrove, see discussion fn 8, supra 10 Supervisor Gose denied this or previous warnings to employee Mize, but I have not credited the denial. 11 It may be useful to note at this point that there are three Jerden brothers who comprise the top management of the Respondent Charles C Jerden, president and general manager, who testified at the hearing, W Darrell Jerden, assistant general manager, in overall charge of plant opera- tions, who did not testify, and A Darwin Jerden, vice president, with functions or experience relating to engineering , personnel, and records, who testified 12 Foreman Spencer corrected Vice President A Darwin Jerden's testimony on this point, noting that he, Spencer, reported directly to Assistant General Manager W. Darrell Jerden and not Production Manager Fred Quiesser (who apparently was production Manager Bill McCartney's successor) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD production orders and decide which orders were to be done first and by whom. 13 In his department Foreman Spencer recommended hir- ing (for example Etter) and discharge of employees (for example Jones), . recommended pay raises that were generally accepted, gave permission to employees to leave early , excused employee absences and issued warnings about unexcused absences , and executed in his name the forms used by the supervisors to institute or denote these and various other types of actions.'" The evidence regarding the various supervisory functions per- formed by Foreman Spencer in many instances related to events in 1966 , even before Foreman Spencer acquired his separate office and jurisdiction over the janitorial staff in November 1966; and Vice President A. Darwin Jerden testified that Spencer's responsibilities have been the same since July 1966 except for the added responsibility for the janitors. I conclude that in his department , Foreman Spencer had the responsibility to direct the work , and shared with top management the power of management . N.L.R.B. v. Elliott- Williams Co., 345 F. 2d. 460 , 463 (C.A. 7, 1965). The fact that Foreman Spencer also performed manual labor and received hourly pay (though at a rate con- siderably higher than those he supervised , see fn. 24, infra) does not negate his status as a supervisor under the Act, Id.; N.L.R.B . v. Edward Budd Manufacturing Co., 169 F.2d 571, 576 (C.A. 6, 1948), cert. denied 335 U.S. 908; N .L.R.B. v. Southern Airways Co ., 290 F .2d 519, 523-524 (C.A. 5, 1961 ); Brewton Fashions , Inc. v. N.L.R.B ., 361 F.2d 8 , 12 (C.A. 5, 1966), cert. denied 385 U.S. 842; N.L.R.B . v. Gary Aircraft Corp., 368 F.2d 223, 224 (C.A. 5, 1966). 15 Foreman Spencer , Vice President A. Darwin Jerden, and employee Mize all agree that employee Sylvester Etter was hired into the maintenance department as an "oiler" (this was Jerden's term , "maintenance oiler" was Foreman Spencer's term, "greaser and oiler" was em- ployee Mize's term). At that point in early November, and until the janitors were transferred later that month to the maintenance department , the department comprised- Foreman Spencer and employees Mize and Etter. Employee Etter's principal duties, according to Foreman Spencer and employee Mize, were to grease and oil the machinery and otherwise assist in mainten- ance.'s Employee Mize, at Foreman Spencer's direction, instructed employee Etter concerning the oiling and greasing of the machines, which Etter did independently thereafter. Additionally and independently Etter did checking and cleaning of fluorescent lights, some cleaning up of machinery, and certain minor repair and painting, and he assisted Mize and Spencer, but did not work inde- pendently, on machine repair, electrical work, plumbing, and carpentry. I find that employee Etter was part of the maintenance staff rather than the janitorial staff, a job distinction which the Respondent has maintained notwithstanding it has put the janitors in the maintenance department for purposes of supervision and recordkeeping.17 In mid-December 1966, Respondent's President and General Manager Charles C. Jerden decided, according to his testimony, that, on the basis that the Company was losing money, it was necessary to cut the working force by 15 to 20 people. This was his decision alone, he testified, and the number, 15 to 20, was an arbitrary figure. He mentioned the layoff in a management meeting in December so that it did not come as a surprise, he said. President Jerden testified he called in his brother, Assistant General Manager W. Darrell Jerden, and asked him to survey the departments, make an across-the-board cut of employees from each department (there were 14 departments) totaling from 15 to 20 people, and still main- tain operations and customers' schedules. Because of the coming Christmas holiday, he said, it was decided to delay the discharges until after the holiday." Brother Darrell Jerden, having made the survey, re- ported back to President Charles Jerden, who testified he was satisfied that Darrell had carried out the assignment, such as taking people from each department, division of the number laid off between employees representing direct costs and indirect costs, and the total involved. The total was 1 3 employees, as appears in G.C. Exh 1 I , but this number rather than 15 or 20, accomplished his pur- pose, President Jerden testified, because there were some voluntary quits and departures for other reasons between " While Assistant General Manager Jerden might occasionally, but not usually , give one of Spencer's men an assignment directly , neither Jerden nor anyone else supervised Spencer or his men in the actual performance of the maintenance work The function of overseeing the maintenance work performance was Foreman Spencer's 14 See, among others, G C Exhs 16, 17, and 18 A-E concerning em- ployees Jones, Etter, and Mize , and testimony of Spencer , Mize, and A Darwin Jerden 15 Since Foreman Spencer had the unusual obligation of being on call night as well as day , round-the-clock , the hourly recompense might well have been regarded by employer and employee as a more equitable ar- rangement than salary 16 There was a conflict of testimony between employee Mize, on the one hand , and Foreman Spencer and Vice President Jerden , on the other, as to whether employee Etter did "any" or "some" janitorial work, but it was clear from the testimony of Spencer and Jerden that to the extent Etter did "some," this was limited to filling in when aJanitor was absent 11 Vice President A Darwin Jerden suggested that he thought of Etter as more a janitor than maintenance man, but Foreman Spencer , who obvi- ously knew more of the functioning of the employees involved, aligned Etter, both in job description and functions performed, with the main- tenance force Among other things not already noted, Foreman Spencer pointed out that while employee Etter would occasionally fill in for an ab- sent janitor, the janitors did not do Etter's oiling work when he was unavailable, rather he, Spencer, or Mize would do the oiling, also that most of Etter's assisting work (when he was not performing independ- ently) was with Mize 16 The Company had had for the previous 5 years a steady growth and profitable position, according to President Jerden He attributed the finan- cial loss in 1966, and the resultant necessity to cut costs and overhead by the layoff of December 30, 1966, as well as by the earlier layoff of J my 1, 1966, to a variety of factors - tight labor market and tight money market in connection with trying to expand to meet increased customer require- ments, careless management, relocation of plant, and principally the dif- ficulties with the then largest customer, Pratt and Whitney According to President Jerden, Respondent became overcommitted beyond its capacity to produce and paid Pratt and Whitney a large sum of money to effectuate a withdrawal from its contractual undertakings JERDEN MFG. CORP. 77 the time of the decision to reduce the staff and its effec- tuation on December 30.19 President Jerden testified that except for the smaller number of people involved, the December 30 layoff was on the same basis as the July 1 layoff, that there was nothing different about the layoff of employee Mize on December 30 from the layoff of the other people, and that there was no reason not to recall employee Mize if he were needed in maintenance. President Jerden further testified that brother Darrell Jerden did not mention the names of the employees to be laid off when he reported, and that he first learned that employee Mize was on the layoff list about a week before December 30. President Jerden said he knew employee Mize by name, whereas he did not know most of the others on the list, because Mize had been with them 6 months and he ran into Mize often in his maintenance du- ties that required moving about the plant. It was his brother Darrell who made the decision that employee Mize and a janitor would be laid off from the maintenance department, testified President Jerden. Brother Darrell, the assistant general manager, made the decision as to who would go by discussing it with department heads, testified President Jerden (corroborated by Vice Pre- sident A. Darwin Jerden). On direct examination Pre- sident Jerden was sure that Darrell talked to Foreman Spencer. On cross-examination, he said he did not know specifically that Darrell Jerden talked to Foreman Spencer about the layoff. Assistant General Manager W. Darrell Jerden did not testify 20 Foreman Spencer testified that, on Wednesday morning, 2 days before the Friday, December 30 layoff, he was told by Assistant General Manager Darrell Jerden it would be necessary to layoff one maintenance man and one Janitor. Foreman Spencer told Assistant General Manager Jer- den that among the janitors Willie Jefferies had the least seniority, and Jefferies was the janitor picked to be laid off Foreman Spencer testified that although employee Sylvester Etter was hired November 7, 1966 (and had less seniority than Jefferies), he could not designate Etter because Etter was not classified as a janitor. Among the maintenance men, Foreman Spencer testified on direct examination, it was he that made the final decision, "as far as the maintenance man, I said, it would have to be between Joe Mize and myself and I'm not going to lay myself off." On cross-examination, Foreman Spencer left no doubt that it was Assistant General Manager Darrell Jerden who posed the seemingly free choice with no real alternative, Q. You mean you were left with the decision of either yourself orJoe Mize? A. That's right. Q. And Darrell told you this? A. He said one. It has to be one or the other. Ioi his testimony Foreman Spencer made clear that he opposed and fought the dropping of employee Mize, and went back to Darrell Jerden that afternoon and again the next day, Thursday, to get him to rescind the decision to drop Joe Mize because, said Spencer, we had a good man, I wanted to hold him, and a good maintenance man is too hard to get.21 But, testified Spencer, "it was left that it had to stand that way. While he denied direct knowledge of employee Mize's union activities, Foreman Spencer testified he had been asked around December 13 or 14, if employee Je Mze was mixed up with the Union. Also, as recounted under section B, supra, he had been made aware by his fellow supervisors of the unfavorable implications of seeing em- ployee Mize in the company of the union organizer at the bowling game on the night of December 14. Employee Mize first heard of the impending general layoff from Foreman Spencer a week before it occurred, when Spencer told him of it and that it would affect all the production departments but not maintenance because he, Spencer, had been pushing to get still another main- tenance man in his department. On the morning of December 30, Foreman Spencer told employee Mize that he was laid off, that he had done his best to prevent it, and that if Mize needed a recom- mendation for another job to call him directly at the plant. According to Foreman Spencer, employee Mize com- mented that he had expected it because of his union ac- tivity, whereupon Spencer remarked, "you mean you are one of them that is pushing the Union," and Mize said yes. After being notified that he was laid off, employee Mize testified (corroborated by employee Fulton and Super- visor Gose) that he came through the plant and handed out some authorization cards and union ([AM) book matches, G.C. Exh. 8, including a book of matches to Su- pervisor Gose. To Gose, employee Mize said he had been laid off. Supervisor Gose said, according to Mize, "that's no surprise to you is it," and Mize replied, "no, I was ex- "Actual ly there were 12 rather than 13 employees laid off (Daugherty of department 15 listed on layoff list G C Exh 11, was a voluntary quit prior to December 30), and these came from but 7 of the 14 departments (G C Exits I I and 12, and testimony of Vice President A Darwin Jer- den) Moreover following the decision in mid -December , when President Jerden said he decided on the cutback in employment, from December 19 to 30, Respondent hired seven new employees, five of whom continued on after December 30 (see G C Exh 12) Fresh hiring resumed on January 9, 1967, and continued steadily right down to the time of hearing for a total of 57 new hires and recalls (G C Exh 12 and testimony of Vice Pre- sident Jerden) Apparently, however, the overall total number of em- ployees was not increased, indicating a very high rate of turnover in em- ployment This same high rate was also evident before December 30, 1966 For example, G C Exh 12 indicates that of the 12 new hires in the month from November 28 to December 27, one-third had terminated by December 30 President Jerden was aware of the problem in referring to the tight labor market in 1966, see fn 18, supra Additionally President Charles Jerden testified, on direct, that manage- ment employees had been included in the December 30 layoff, to wit, the personnel manager , Lester Day, and that the personnel manager's respon- sibility had been conferred on his brother, Vice President A Darwin Jer- den On cross-examination, President Jerden conceded that Personnel Manager Lester Day had been succeeded by current Personnel Manager Peacock 10 Vice President A Darwin Jerden like President Jerden, disclaimed participation in the layoff discussions, and agreed that brother Darrell had the responsibility of decision Vice President Jerden indicated that Darrell Jerden was, at the time of the hearing (April 18-19), out of the country on company business and not due back until April 21, but no request was made for adjournment or other opportunity to provide testimony by Dar- rell Jerden 'i According to employee Mize's testimony, Foreman Spencer also brought his plea for Mize to the attention of Production Manager Bill Mc- Cartney in a discussion that Thursday in the maintenance shop, saying, that he could not see why they were letting go the first dependable man he ever had 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pecting it," to which Gose answered, "that'll teach you for pushing them union cards."22 Foreman Spencer testified that maintenance oiler Etter was not laid off and continued to do about the same work as before Mize left.23 Further, that he, Spencer, has been doing the maintenance work and has not requested another maintenance man since employee Mize left because "some work that I had anticipated that we were going to do ourselves ... has been contracted out." Among jobs contracted out, Spencer noted painting the inside of the building, putting up of exhaust fans, and a major plumbing break. He said that he has been able to keep up with the machine repair himself, and since certain work done in 1966 would be nonrecurring, such as that involved in moving into the new plant, and since no new machinery was then on order, maintenance would relate only to breakdowns which he could handle. Spencer said if the Company's business should require another main- tenance man, he would recommend recalling Mize. Unlike the July 1 layoff, when he was laid off on December 30, employee Mize testified, he was given no indication that he would be called back, nor has he been recalled. On January 4, 1967, employee Mize assisted Union Organizer Bob Ballinger in the distribution of a handbill (G.C. Exh. 10) on Respondent's main parking lot for the employees. Thereafter, at the end of January 1967 Mize took a job in Newberry, Indiana, where he was still employed at the time of the hearing at less pay, he testified, than his former collegue employee Etter receives in Respondent's maintenance department.24 The testimony of Vice President A. Darwin Jerden indicated that Respondent did not shut down any part of the plant or machinery as a result of the layoff of December 30, that since December 30 to the time of hearing in April 1967 Respondent continued to interview and has hired over 50 new applicants for employment (G.C. Exh. 12), and that it has recalled some of the laid off employees, though not Mize.25 Among others, employee Willie Jeffe- ries, the janitor laid off from the maintenance department, was recalled March 29, 1967, to the same work, and re- called employee Norma White was given an opportunity to do work different from that which she had left. D. Conclusions re 8(a)(1) and (3) 1. Respondent unlawfully interrogated and threatened its employees In my view Respondent violated Section 8(a)(1) of the Act, by coercively interrogating employees Stow, Trout- man, and Mize concerning their interest and activities on behalf of the Union, and by threatening discharge for en- gaging in union activities. The contemporaneous questioning by Foreman John Spence of employee Stow, and by Production Manager William McCartney of employee Troutman, in December 1966, about "union talk" and whether women employees were causing "union trouble" and "signing up" em- ployees with union authorization cards were unmistakea- ble expressions to the employees of the employer's hostile watchfulness of employee activities on behalf of the Union, fraught with implications of reprisal if em- ployees were discovered engaging in "talking union" or "signing up" employees for the Union. Of the same character, was Foreman Spence's inquiry of employee Mize on how Mize felt about the Union; but a more direct, and openly threatening reprisal, also in December, was supervisor Gose's interrogation of em- ployee Mize on whether he was "pushing" the Union and if he had obtained signed union authorization cards, fol- lowed by warnings that Mize had better let that "union stuff' alone or be fired, as happened to former employees Roberts and Musgrove.26 The Respondent's interrogation of its employees as to union interest and activities, in the setting hostile to union organization, accompanied by the implication of surveil- lance of employees' union activities and by express as well as implied threats of discharge or other reprisal for engaging in such activities, constituted substantial restraints upon the employees' self-organizational rights, that were not isolated incidents, Daniel Construction Co. v. N.L.R.B., 341 F.2d 805, 813, 814 (C.A. 4, 1965), cert. denied 382 U.S. 831; Sunshine Biscuits, Inc. v. N.L.R B., 274 F.2d 738, 740-741 (C.A. 7, 1960); N.L.R.B. v. Thompson Ramo Wooldridge, Inc., 305 F.2d 807, 808-809 (C.A. 7, 1962); N.L.R.B. v. Bedford- Nugent Corp., 317 F.2d 861,863-864 (C.A. 7, 1963). 22 Supervisor Gose's version was that he used expressions such as "oh, you didn't" or "you're kidding" and denied that he had referred to push- ing cards, but I do not credit his version or the denial (see discussion under section B, supra) '2 Employee Mize testified he had been teaching employee Etter car- pentry prior to the layoff 24 The evidence was that employee Mize's pay at the time of layoff December 30, 1966, was $2 70 per hour and employee Etter's pay was $1 60 per hour (which was about the same pay received by most of the Janitors) The lowest paid janitor was Jeffenes at $1 55 per hour (G C Exh 19) Jefferies was also laid off on December 30, and recalled on March 29, 1967 Foreman Spencer's pay on December 30, 1966, was $3 25 per hour, which was increased to $3 40 per hour on January 9, 1967 25 However, the overall size of the working force has not been in- creased, based on Vice President Jerden's end-of-month figures 26 The insinuation of discriminatory cause for the termination of the em- ployment of the two former employees, was contained in the warnings of Supervisor Gose to employee Mize The cause of termination was not established by any evidence in this case, indeed the documents affecting former employees Roberts and Musgrove, fns 2 and 8, supra, established that their Board cases were settled without admission of wrongdoing by the Respondent These documents were admitted for the limited purpose of corroborating identification of these two former employees, whose names were in the posted settlement notice on Respondent 's bulletin board, as the two examples that Gose singled out in his warnings to Mize I have not made any findings , or drawn any inferences, that rest on the ter- mination of employment of former employees Roberts and Musgrove for the discriminatory cause insinuated by Supervisor Gose On the other hand, former employee Musgrove and a third former em- ployee, Marlin Todd , gave undisputed evidence of disapproval of, and threats of discharge for, their union activity by Foreman Richard Payne while they were still employed in March 1966 , which was poor to the penod in issue and to the penod of limitations in this case While these prior events may not be relied on to charge unfair labor practices , they can and do constitute part of the cumulative evidence of the employer's preex- isting and continuing animus and hostility toward the Union which, in December, infected the interrogation of several employees and the discharge of employee Mize, as found infra, Local Lodge /424 Machin- ists (Electric Autohte Co) v N L R B , 362 U S 411, 416-417 ( 1960), N L R B v Graig -Botetourt Electric Cooperative , 337 F 2d 374 (C A 4, 1964), enfg 144 NLRB 355, N L R B v Camco , Inc, 340 F 2d 803, 804, fn I (C.A. 5, 1965), cert denied 382 U S 926 JERDEN MFG. CORP. 79 2. Respondent discriminatorily discharged employee Mize I am also of the opinion that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging and failing to reinstate employee Joseph Mize because of his union activities, using the cover of an alleged economic layoff to effectuate the unlawful purpose. Employee Mize was recognized as a very good main- tenance man. When it appeared to his immediate super- visor, Foreman Spencer, that Mize was to be laid off per- manently, Spencer felt that retention of Mize was impor- tant enough to plead for with top management , even after Spencer had been asked about Mize 's union activity and had reason to suspect, if not to know, that Mize had jeopardized his status with management by vigorous cam- paigning for union representation. In the period of about a month of campaigning, in November-December 1966, first for the Steelworkers and then for the Charging Party (IAM), employee Mize had solicited union support and card signatures, in and about the plant, from more than a majority of the em- ployees. He had been questioned by, and voiced his union advocacy to, two of the plant supervisors - Supervisor Gose and Foreman Spencer- and had been threatened by Supervisor Gose with discharge if he did not desist from his union activity. At least three other supervisors - Production Manager McCartney, Foreman Payne, and employee Mize's foreman, Spencer, had seen Mize openly consorting with the professional union organizer, Ballinger on December 14, when the company teams bowled , and the fact had been commented upon among the supervisors . The professional union organizers, Ballinger among them , had conducted a union handbill distribution outside the plant the day before , December 13. By mid-December the Respondent was directly aware of the union campaign and that employee Mize was the leading employee activist for the Union.27 Also at mid-December, Respondent had decided, so it is claimed, that it was necessary to invoke an "across-the- board" layoff of employees as a means of reducing staff and thereby cutting financial losses incurred in 1966. The decision was given effect December 30, 1966, by layoff of 12 employees including Mize. However, the decision and stated reason for it are suspect because , following the time the decision was said to have been made in mid- December , Respondent continued to hire new em- ployees. Seven new employees were hired between December 19 and the layoff date, December 30. Five of these employees continued on after December 30. Com- mencing January 9, 1967, just 10 days after the layoff, hiring resumed , and by the time of the hearing (April 18-19) upwards of 50 new employees had been hired by Respondent without increase in the overall size of the em- ployee force.28 The Respondent was aware of the high rate of employee terminations and turnover well before December 30, 1966, so that the formality and artificiality of a "layoff" of 12 employees on December 30 was hardly requisite to accomplish a mere reduction in size of staff. Moreover, the layoff that eventuated was not across-the-board, as claimed by Respondent's President Jerden, but involved only 7 of the Respondent's 14 de- partments. Maintenance man Mize and janitor Jefferies were both let out of department 30, the maintenance department, which was made up of two classifications of employees - maintenance men and janitors . In employee Mize's case, the December 30 termination was a discharge, not a tem- porary layoff. Unlike his experience in the earlier July 1, 1966, layoff, Mize was not told that the December 30 ter- mination would be temporary and that he would be re- called; and he was not called back after December 30, as was employee Jefferies. On the contrary, in notifying em- ployee Mize of the termination , Foreman Spencer sounded the note of finality by verbally recognizing that Mize's union activity had made his retention impossible and offering to help with a recommendation for a job else- where. Supervisor Gose told Mize the same day that the discharge should teach him a lesson not to push union cards.29 Clearly, employee Mize was selected for discharge on a discriminatory basis. The earlier July 1 layoff had been handled by giving preference of retention on the basis of seniority when choices had to be made. The December 30 layoff was on the same basis, according to President Jerden (except for the lesser number of people removed from the payroll). However, seniority was not applied in Mize's case . Mize was senior to maintenance oiler Etter who had been hired into the maintenance department less than 2 months before December 30, but Etter was passed over and retained . Vice President Jerden suggested that he thought of employee Etter as more a janitor than a maintenance man, but Foreman Spencer demonstrated that the fact was otherwise and, when told to designate a janitor for layoff, named employee Jefferies, who had the least seniority among the janitors but was senior to Etter.30 Foreman Spencer was told by Assistant General Manager Darrell Jerden that employee Mize had to go and Spencer's attempts to get Darrell Jerden to change the decision in order to keep his good maintenance man were to no avail. There was no explanation for passing over employee Etter to get at employee Mize. Assistant General Manager Darrell Jerden, who had the responsibility for the decision , as his brothers agreed, did not testify, nor was the opportunity requested on his behalf, see fn. 20, supra. I can only assume that he would have provided nothing more than was offered in his absence. Further, the alleged objective of the December 30 layoff, to achieve a saving of money, does not appear to have applied in employee Mize 's case, because Respond- ent filled the gap caused by his departure by contracting out some of the work hitherto performed by the main- tenance department and making it possible for Foreman 27 Employee Mize's continued activity in the plant after mid-December, and his subsequent conversations with Supervisor Gose , undoubtedly added to Respondent's knowlege of Mize's activity and role in the Union's campaign 28 Respondent also hired a new personnel manager to replace the one it had laid off along with the 12 employees for the same alleged reason of cutting overhead 21 Statements of the Employer after the discharge , reflecting the at- titude of the Company toward the Union in a period closely following the event, indicate what the Employer's attitude was at and immediately preceding the time of the discharge, Angwell Curtain Co v N L R B , 192 F 2d 899 , 903 (C A 7, 1961) 30 If employee Etter had been a janitor and had been laid off as a Janitor instead of Jefferies , Respondent would actually have achieved a slightly greater money saving since Etter was paid more than Jefferies , see fn 24, supra 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spencer, who was given a pay raise, to concentrate per- sonally on machine repair. "In any event, the possibility that some layoffs may have been economically justified is no defense for the selection of employees for layoff on the basis of union adherence or affiliation. N.L.R.B. v. Deena Products, 7 Cir., 195 F.2d 330, 335 (C.A. 7) [cert. denied 344 U.S. 827]." N.L.R.B. v. Bedford-Nu- gent Corp., 379 F.2d 528 (C.A 7,1967). Following the December 30 layoff, Respondent called back to work several of the employees it had laid off, in- cluding janitor Jefferies, but not employee Mize. In at least one case a recalled employee was given an opportu- nity to do work other than the work the employee had left. President Jerden testified there was no reason not to recall employee Mize if he were needed in maintenance, and Foreman Spencer said he would recommend re- calling Mize if the Company's business required another maintenance man. After a month of unemployment, Mize took work elsewhere at considerably less pay than his pay had been with Respondent. It seems to me that since January 9, 1967, to April 18-19, 1967, on the 57 occasions in which Respondent found it needed to hire new employees or recall laidoff employees, Respondent had ample opportunity to demonstrate that it had merely temporarily laid off em- ployee Mize (if that was the case) by recalling him for other than maintenance work, which might well have been offered to and performed by one as skilled and ver- satile as Mize is conceded to be.31 Respondent's failure to offer Mize any such form of even approximate rein- statement, despite the large labor turnover it was ex- periencing, not only reinforces the finding that Respond- ent used the pretext of an economic layoff to accomplish the discriminatory discharge of Mize, but also supports the finding that Respondent discriminatorily refused to reinstate employee Mize.32 The Respondent's knowledge of and hostility to the at- tempted union organization;33 its inability to explain the selection of the leading union adherent, employee Mize, for discharge while ignoring his seniority; the failure of its explanations respecting the economic layoff in which it sought to include Mize; and the absence of any effort by Respondent to recall Mize, notwithstanding his talents and the acute labor shortage for which Respondent has recalled and newly hired others, have provided persua- sive evidence of the antiunion motivation and discrimina- tory conduct of the Respondent in discharging Mize and failing to reinstate him, in violation of Section 8(a)(3) and (1), N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168, 172 (C.A. 7, 1966). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffitc, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. IV. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Because Respondent discriminatorily discharged em- ployee Joseph Mize, I will recommend that the Respond- ent offer him immediate and full reinstatement to his former position or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. I will recommend that the Respondent make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment of a sum of money equal to that which he normally would have earned as wages from December 30, 1966, the date of discharge, to the date of the Respondent's offer of rein- statement, less net earnings, if any, during this period. The backpay shall be computed on a quarterly basis as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Company, 344 U.S. 344 (1953), and shall in- clude interest at 6 percent per annum as provided by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Manufacturing Com- pany v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. de- nied 379 U. S. 888 , and cases cited. Because the Respondent by its conduct violated funda- mental employee rights guaranteed by Sction 7 of the Act, and because there appears from the manner of the commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infring- ing upon the rights guaranteed employees by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C. A. 4, 1941). Upon the basis of the foregoing facts and upon the en- tire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. By interfering with, restraining, and coercing em- ployees in the exercise of their rights under Section 7 of the Act, and by discriminatorily discharging one of the employees because of union activities, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. " Of course, having been discharged for engaging in union activity while employed, it would be difficult to expect that Mize had endeared himself to the Respondent by engaging in distribution of union handbills outside the plant shortly after he was discharged 11 Employee Mize was under no obligation to apply for reinstatement since the Respondent's conduct in effecting the discharge had made it plain that such an application would be rejected, N L R B v Valley Die Cast Col p , 303 F 2d 64, 66, fn 2 (C A 6, 1962), N L R B v Comfort, Inc , 365 F 2d 867, 878 (C A 8, 1966) " As exemplified by the contemporaneous 8(a)(1) conduct and the previous history of antiunion hostility in March 1966 RECOMMENDED ORDER JERDEN MFG. CORP. 81 Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceed- ing, I recommend that Jerden Manufacturing Corpora- tion, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its em- ployees in their union activities, or concerted activities for the purpose of collective bargaining, by discharge or threat of discharge or other reprisal, or by coercive inter- rogation concerning their union sympathies and activities. (b) Discouraging union membership by discharging known union adherents or by discriminating in any other manner in regard to their hire, tenure, or any condition of their employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights of self-organization, or to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from engaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) and recognized in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: which is (a) Offer to employee Joseph Mize immediate and full reinstatement to his former position or to a substan- tially equivalent position without prejudice to his seniori- ty or other rights and privileges, and make him whole, in the manner set forth in the section of this Decision enti- tled "The Remedy," for any loss of earnings he may have suffered as a result of the discrimination against him. (b) Notify Joseph Mize if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing 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, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post in the Respondent's plant at Indianapolis, In- diana, copies of the attached notice marked "Appendix B."34 Copies of said notice, to be furnished by the Re- gional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.35 ;' 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 31 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 Re- spondent has taken to comply herewith " APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage your activity or member- ship in District 90 of the International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), or any other labor organization, by dis- criminating against you if you choose to engage in ac- tivity for, or to join, the Union or any other union. Because the Board found that we did so discriminate when we fired employee Joseph Mize. WE WILL offer to Joseph Mize full reinstatement to his old job, and WE WILL pay him for any loss of earnings that he suffered because we fired him. If he is presently in the Armed Forces of the United States we will notify him of his right to full reinstate- ment upon application after discharge from the Armed Forces. WE WILL NOT discharge or threaten to discharge you, or engage in other reprisals because of your sup- port of the Union. WE WILL NOT interrogate you coercively respect- ing your union sympathies or activities. WE WILL respect the rights of our employees to self-organization, or to form, join , or assist any labor organization, or to bargain collectively concerning terms or conditions of employment through representatives of their own choosing, or to refrain from any such activity; and WE WILL NOT interfere with, restrain, or coerce any employee in the exercise of these rights, except as these rights might be af- fected by a contract validly made under the National Labor Relations Act with a labor organization, whereby membership in the labor organization is a condition of employment after the 30th day following 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of the contract or the beginning of the in- dividual's employment , whichever is later. JERDEN MANUFACTURING CORPORATION (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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204 , Telephone 633-8921.