Regency Electronics, Inc.

REGENCY ELECTRONICS Regency Electronics, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO and Regency Employees Independent Union. Cases 25-CA-2347 and 25-CA-2384 January 18, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On May 23 , 1967, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recom- mended dismissal of those allegations of the com- plaint. Thereafter, the Respondent and the Charg- ing Party filed exceptions to the Trial Examiner's decision and briefs in support of their exceptions. The General Counsel filed limited exceptions to the Trial Examiner's Decision and a brief in support thereof, a brief in support of the Trial Examiner's Decision, and an answering brief to the Respond- ent's brief to the Board. 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, and the entire record in this case,1 including the exceptions and briefs, and hereby adopts the findings, conclusions, and recom- mendations 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 and hereby or- ders that the Respondent, Regency Electronics, Inc., Indianapolis, Indiana, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent has requested oral argument. As the record, includ- ing the exceptions and briefs , adequately sets forth the issues and the posi- tions of the parties, the request is hereby denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 223 ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to an order of the Regional Director for the Board's Region 25 consolidating for hearing complaints previously issued by him in Cases 25-CA-2347 and 25-CA-2384 alleging that Regency Electronics, Inc. (herein called the Respond- ent or Regency), had violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended (herein called the Act), hearing was held before Trial Ex- aminer Arthur M. Goldberg in Indianapolis, Indiana, on 11 hearing days between July 6 and August 25, 1966. The complaint issued in Case 25-CA-2347 on November 30, 1965, based on an amended charge filed on November 1, 1965, by the International Union of Electrical, Radio and Machine Workers, AFL-CIO (herein called the Union or the IUE). The complaint al- leged warnings and promises of benefit by Regency to discourage union activity, creation of the impression of surveillance of protected activities, and the urging of em- ployees to form a grievance committee or company union. Regency was alleged to have violated Section 8(a)(3) by its discharge of Irene Lawrence and sub- sequent refusal to reemploy her. Finally, the foregoing acts, plus domination or interference in the formation or administration of the Regency Employees Independent Union (herein called REIU or the Independent) were al- leged to have violated Section 8(a)(2) of the Act. Respond- ent admitted the discharge and its refusal to reemploy Lawrence but denied that these or its other actions vio- lated the Act. The complaint issued in Case 25-CA-2384 on January 27, 1966, based on an amended charge filed on January 26, 1966, by the IUE. The complaint alleged that on about November 12, 1965, Regency discharged 30 named employees because of their adherence to IUE and rejection of the Independent, all in violation of Section 8(a)(1), (2), and (3) of the Act. Respondent denied all al- legations of violation. On June 21, 1966, the Regional Director for Region 25 amended the complaint in Case 25-CA-2347 by adding an allegation that on or about October 18, 1965, Regency had demoted Irene Lawrence and reduced her wages because she had engaged in activity protected by the Act. Further, based upon a second amended charge filed on June 17, 1966, in Case 25-CA-2384 the complaint therein was amended to add an additional employee to the 30 allegedly unlawfully discharged. Respondent amended its answers to deny the additional allegations. At the hearing General Counsel amended the com- plaint in Case 25-CA-2347 to allege an act of interroga- tion as a violation of Section 8(a)(1). In a further amend- ment General Counsel named as supervisors and agents of Respondent seven persons employed as group leaders and alleged they participated in the asserted domination and interference in the affairs of the Independent.' After 10 days of taking testimony and some 1,900 pages of transcript, General Counsel rested. Thereafter, while in recess and before the date set for resumption, Respondent moved for continuance because its vice pre- ' Further efforts by General Counsel during the course of the hearing to amend the complaints were rejected as untimely. 169 NLRB No. 49 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sident in charge of manufacturing, Wayne Gunselman, whose presence was needed for proper presentation of its case, had suffered a heart attack.2 Upon good cause shown, the matter was continued to November 7, 1966. While in continuance, on October 24, 1966, Respondent moved to dismiss the instant proceedings on the asserted basis that General Counsel had failed to make a prima facie case. In support of its motion to dismiss, Respond- ent filed a 25-page brief. Thereupon, by Order dated Oc- tober 28, 1966, I continued the instant proceedings sine die, to permit examination of the record before ruling on Respondent's motion. After examination of the entire record, including the transcript of proceedings, the exhibits thereto, and the filings made in connection with the motion to dismiss, by Order dated December 30, 1966, I denied Respondent's motion to dismiss, finding that the record contains suffi- cient evidence to establish prima facie violations of those sections of the Act alleged in the complaints. At the same time I ordered that the hearing be resumed on January 23, 1967. However, on January 19, 1967, by telegram, Respondent rested without presenting any evidence and renewed its motion to dismiss. After several extensions of time to file briefs, General Counsel filed his brief on March 13, 1967. By telegram dated that same day Respondent advised all parties that it was relying on its brief filed in support of its motion to dismiss as its brief herein. Upon the entire record in the case, my observation of the witnesses and their demeanor, and the briefs of General Counsel and Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaints alleged, the answers did not controvert, and I find that Regency Electronics, Inc., is, and has been at all times material herein , an Indiana corporation with its principal office and place of business in Indianapolis, Indiana, where it is engaged in the design , manufacture, sale, and distribution of radios and other electronic products. During a representative 12-month period Respondent sold and shipped from its Indianapolis , Indiana, plant finished products valued in excess of $50,000 to points outside the State of Indiana. During the same representa- tive period Respondent, in the course and conduct of its business operations, purchased materials valued in ex- cess of $50,000, which were shipped to its Indiana loca- tion from points outside that State. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and meets the Board's standards for assertingjurisdiction. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, and Regency Employees Indepen- dent Union are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Operations During the events herein Regency operated two plants in Indianapolis, one on Pendleton Pike, the other on Franklin Road.3 At the Franklin Road plant Respondent produced its avionics products, electronic equipment for in-air use by aircraft. In addition to the small avionics de- partment of no more than 16 employees, Regency main- tained at Franklin Road a machine shop and finishing de- partment with approximately 25 employees. The en- gineering department was in that building as well. A sin- gle maintenance group serviced both buildings. Respondent's main manufacturing operations were conducted at the Pendleton Pike plant. There between 140 and 160 production and maintenance employees were engaged in the assembly of various types of radios and electronic products referred to as "commercial products." Physically the two plants are only minutes apart. In addition to its Indianapolis plants, Respondent had two subsidiary operations. Shepard Industries in Over- land Park, Kansas, is a parts supplier to Regency and others in the industry. Respondent's other subsidiary, Metrotek Electronics in Raleigh, North Carolina, is engaged, as is Regency, in the assembly of radios and related products, though of a lower quality than those produced in Indianapolis. In May 1965 4 Respondent entered into a contract for construction of a new plant for Metrotek in Raleigh to be ready for occupancy in September of that year. In fact, Metrotek moved into its new quarters in late September or early October. Prior to the events herein Respondent had produced two avionic products, one, the Transponder, which is a piece of radar equipment and the other an item for the United States Navy. For. some time Regency had had under development a navigational communication system for civilian aviation called "Nav-Comm." As with all air- borne electronic equipment, the Transponder and Nav- Comm were required to meet standards set by the Federal Aviation Administration and to pass inspection by that agency. The Nav-Comm is a sophisticated four- part navigation and safety product combining radio send- ing and receiving equipment with radar for use in con- junction with FAA ground control installations. To the date of the hearing Regency had not been able to solve all production problems in connection with Nav-Comm. However, as early as July a magazine in the aviation in- dustry had featured Nav-Comm and announced to the trade that the product would be ready in September. With the opening of the new Metrotek plant in Raleigh, Respondent moved to the South production of certain commercial products, including all tube-type radios, both to make room in Indianapolis for the expected manufac- ture of Nav-Comm and also to separate into two factories the higher labor cost items which were to be retained in Indiana from the less sophisticated products which went to Metrotek. As planned all Indianapolis production was moved from Franklin Road to Pendleton Pike after November 12. 2 An earlier postponement granted by the Regional Director had been occasioned by Mr. Gunselman's first such seizure. 3 Also known as the avionics plant. 4 Unless otherwise indicated all dates hereafter were in 1965. REGENCY ELECTRONICS 225 All manufacturing in Indianapolis is under the direction of Wayne Gunselman, Respondent's` vice president. At the Franklin Road plant the machine shop and finishing department as well as the maintenance crew were under the direction of Leo Van Zell. The avionics department was directed by Harry Pate and employees working in the receiving and stock section were headed by Roland Huber. At the Pendleton Pike plant Roland Montague was plant foreman. At the time of the events herein Larry Bright was being trained to succeed Montague when the latter moved to Metrotek as was planned.5 Under Mon- tague and Bright were a number of group leaders whose putative status as supervisors is a matter of controversy herein. B. The Status of Group Leaders In the assembly departments with approximately 90 employees, apart from group leaders, there was no one in the supervisory hierarchy between Foreman Montague and the group leaders. Group leaders maintained the time records from which the employees were paid. Group leaders were, in Personnel Manager McGraw's words, "responsible for production." It was their duty to keep employees busy at all times, shifting them when their work ran out and keeping the lines supplied with material from the stockroom. Group leaders trained and assisted employees until such times as the employees were able to perform on their own the assigned work. On occasion group leaders would fill in on the assembly line for absen- tees or would relieve employees when they went to the restroom. When overtime had been authorized by Mon- tague, group leaders selected the employees to work the extra hours. Employee requests to be excused from work were, made either directly to Montague or to a group leader who in turn cleared the absence with the foreman. In Montague's absence group leaders would interchange employees with each other to insure that all were kept busy. McGraw testified that all group leaders, whether assigned to assembly or some other section, perform the same function in Regency's operations. Group leaders and employees enjoy the same vacations and life and hospitalization insurance. In the plant, all use the same restroom and dining facilities. However, group leaders are higher paid than other employees. The role played by the group leaders in the selecting- out process which preceded the November 12 layoff tips the scales to a finding that they are supervisors within the meaning of the Act.8 In preparing for the November layoff, McGraw called upon the group leaders, the foremen, and the quality control supervisor to rate the employees individually. In this rating process, Personnel Director McGraw considered herself merely an instru- ment. It was, the group leaders, the foremen, and the quality control supervisor who were called upon to make a subjective evaluation of each employee's capabilities. The evaluations by the group leaders were made independ- ently from those of the foreman and quality control su- pervisor. However, McGraw testified, it was the result- ing combined evaluation which was the most important factor in selecting employees for retention or layoff. Thus, it cannot be said that the group leaders do not effec- tively recommend the discharge or retention of em- ployees when their independent recommendation is given equal weight with that of the plant foreman. This is clear evidence of supervisory status. The Powers Regulator Company, 149 NLRB 1185, 1187-88, enfd. 355 F.2d 506 (C.A. 7). In sum, based on their authority effectively to recom- mend discharge or retention of employees, their authority to transfer employees as needed and to direct them in their work, and with consideration of the otherwise un- realistic ratio of supervision to working force, I conclude that the group leaders are supervisors within the meaning of Section 2(11) of the Act. See N.L.R.B. v. Gary Air- craft Corporation, 368 F.2d 223 (C.A. 5). C. The Organizing Campaign and Respondent's Reaction Following what the employees deemed to be un- satisfactory resolution of grievances concerning work as- signments and job promotions, at the behest of fellow em- ployees, Irene Lawrence made contact with a representa- tive of the IUE. At a meeting on September 2 at the Union's office with IUE Representative Earnest Ruther- ford, Lawrence and a number of other Regency em- ployees signed IUE authorization cards. Those present were given blank union designations with which to secure additional support for the IUE. The following day, Sep- tember 3, Rutherford wrote to Regency President Berner advising him of the Union's organizing campaign. Ruther- ford began distribution of organizing handbills at Respond- ent's plant as well. 1. Berner's speech of September 7 On September 7 Berner addressed the assembled em- ployees at Pendleton Pike.9 After reading Rutherford's letter of September 3 and assuring the employees of their right to select an international union if they so wished, Berner pointed out that the union cards being circulated picked the Union as bargaining representative and per- haps as lifetime partner. Berner said that employees had come and asked that management form a committee. There was nothing the Company could do. It could not form a committee, he said, the employees would have to do that. Berner then stated his feeling that organization of Regency by an international union was "rather ridicu- lous" and urged the employees to explore the formation of "a local union, company union." He cited the example of a successful independent union at a nearby industrial establishment. Next Berner discussed company produc- 5 The foregoing account of Respondent 's operations , products, and plants is based on a synthesis of the uncontradicted testimony of Dwayne Berner, Regency president, and Juanita McGraw, Respondent's person- nel director. 6 Including assemblers, inspectors, repair girls, and the like, but exclud- ing testers, machine shop employees, maintenance people, etc. 7 Bright was a trainee, learning to replace Montague after being taught to handle his tasks . Accordingly, his presence cannot be considered as an addition to the supervisory structure. 8 While my finding as to the group leaders' supervisory status is not based solely on their major role in the selection of employees for discharge, their authority effectively to recommend discharge or retention of employees would alone support such a finding. "[T] he possession of any one of the authorities listed in Section 2(11) [of the Act] places the employee invested with this authority in the supervisory class" for that "section is to be interpreted in the disjunctive ." Ohio Power Company v. N.L.R B., 176 F.2d 385, 387 (C.A. 6), cert. denied 338 U.S. 899. 9 A copy of this speech was made part of the record. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion plans, the new facilities at Raleigh, and the program to retain only class A production at Indianapolis, moving the commercial work elsewhere. Berner explained that the expansion program had kept him away from the plant but that he had thought morale was good. Now, however, he had heard reports of employee grievances and invited them, individually or if they wished by a committee, to meet with him and discuss problems affecting morale. In response to employee questions Berner defended the Company's wage structure and repeated his invitation to employees, "either in a group or individually, or both, if possible" to come in and discuss plant problems. Berner noted again that signing a union card was a final act and said the employees would never see a ballot box if the Union got enough cards. The complaint alleged10 that Berner, in violation of Section 8(a)(1), suggested, instructed, and advised the employees to form a grievance committee or company union. The evidence supports the allegation and the law impels the finding of violation. Abex Corporation- Engineered Products Division, 162 NLRB 328; Colo. Well Service, Inc., 163 NLRB 707. Further, the complaint" alleged that Berner threatened to transfer work to other plants and to reclassify the work of the employees if they supported the Union. The text of the speech does not support this allegation. Rather, it ap- pears that without threat or warning, Berner told the em- ployees of the longstanding company plan to'') oncentrate at Indianapolis on avionic and more sophisticated products and to transfer the commercial work to Raleigh. Accordingly, I shall recommend dismissal of this allega- tion of the complaint. 2. The events following Berner's speech On September 8, the day following Berner's speech, Fred Day, an employee in Respondent's machine shop, began circulating copies of a petition with the following heading: THE UNDERSIGNED HEREBY AGREE TO PARTICIPATE IN THE FORMATION OF A REGENCY ELECTRONIC INC. COMPANY UNION A Number of employees signed this petition, though some thereafter struck their names from the list. Among those who helped to circulate the petition was Patricia Fox, who signed it and later removed her name. That same afternoon Fox was asked by Day to accom- pany him and another employee to Berner's office to talk about a company union . There, after Company Counsel Tinkham joined the group and Berner had noted that Day and his associate had requested the session , the talk turned to a company union for the plant as against an in- ternational union. Berner stated that he would rather have a company union. Berner stated his feeling that with a company union they would remain as "one big happy family" at Regency whereas under an international things would change. General Counsel urges that these remarks of Berner were unlawful interference as was his urging of a company union in his speech the day before. I so find. Because Berner's role was more than that of an interested listener, this finding of violation is not mitigated by the fact that the meeting came about as a result of employee initiative. Tucson Ramada Caterers, Inc., 154 NLRB 571; Atkins Saw Division of Borg-Warner, 160 NLRB 790. After Berner's speech Eva Elmore, who had worked in a small plant where the employees had dealt with manage- ment through a grievance committee, spoke to several employees about her experiences. She also talked to Foreman Montague and Group Leader Virginia Hum- fleet about an employee grievance committee and they suggested that the idea be discussed further. After work on September 8, Elmore, together with a number of em- ployees, including Irene Lawrence and the latter's daughter Rose Mary Lawrence Browning, asked to see Berner but met instead with Regency Vice President Gunselman and Personnel Manager McGraw. Elmore explained the idea of a grievance committee. Gunselman expressed approval of the proposal and asked how it could be started. When Elmore explained that while she knew how it worked she did not know how to organize such a committee, Gunselman opined that Berner, who was a lawyer, would know the mechanics and that he would talk to Berner. Gunselman asked how the union activity got started at Regency to which Lawrence replied that it was she who had made contact with the IUE.. 3. Further discussions of a grievance committee On the day following the meeting with Gunselman and McGraw, Montague approached Elmore at work and told her to get her group together to meet with Berner. Accompanied by other employees, Elmore met in the Company's conference room with Berner and Tinkham. Elmore explained the idea of a grievance committee and asked if Berner knew how to establish such a body. Berner said he thought a company union could be worked out if that was what the employees wanted. To this El- more explained that the employees did not want a com- pany union, they were speaking of a grievance committee. However, Berner persisted in speaking of a company union.12 Berner asked why the employees wanted a union at all. This led to a discussion in which the employees stated their grievances concerning group leaders, promo- tions, the size of the eating area, and the like. In response to an inquiry concerning higher wages, Berner said he could foresee no raise for the employees.13 When asked about a rumor that he would close the plant if the Union was successful, Berner replied that such a move on his part would be expensive and silly. As the meeting was ending employee Glenna Dunahoo told Berner she would be attending an IUE meeting that evening and asked what he would do if she wore a union button to work the following day. Berner replied if he were she, he would wait a few days. The foregoing ac- count of this exchange is based on the testimony of four of the employees present. Berner did not touch on this meeting in his testimony. Dunahoo testified that in addi- 10 Case 25-CA-2347, paragraph 5(e). 11 Case 25-CA-2347, paragraph 5(c). 12 General Counsel adds these statements to those already found to have unlawfully encouraged employee organization of their own union. To the extent that an additional finding adds to the violation found , I find that this additional encouragement to form a company union violated Section 8(a)(I). 13 The complaint alleged (Case 25-CA-2347, paragraph 5(d)), that on September 9 Berner promised unspecified benefits to the employees if they would abandon the Union. The record discloses no evidence to sup- port this allegation and I shall recommend that it be dismissed. REGENCY ELECTRONICS 227 tion to the foregoing exchange, when she then said she would wear the union insignia, Berner stated that she was braver than he thought. Had this additional colloquy, with an implied threat from Berner, occurred, I believe that at least one of the other employees who testified to the oc- curence would have recalled the statement. In the absence of such corroboration, I do not credit Dunahoo's version of the conversation. As to the entire exchange, the complaint alleged 14 that Berner warned employees against wearing union badges and threatened them with reprisal for violation of the warning. Viewed in context, Berner's admonition was an extension of his expressed hope that the employees would swing to a company union and reject the IUE. In that context, the premature display of an IUE badge might help to frustrate his desire. Thus, while I cannot read into the exchange any threat of reprisal, I find the statement to be another instance of Berner's unlawful campaign to convince the employees to embrace a form of unionism acceptable to Respondent. 4. Further acts of interference Following the discussion in Berner's office on Sep- tember 9, the employees attended an IUE meeting. Dur- ing the course of the meeting Charlotte Farmer stated she had heard that Berner would close the plant if the Union's campaign succeeded. Irene Lawrence disputed this com- ment, saying that a group of employees had just left Berner's office where he had said he would not shut because of the Union. The next day, September 10, the employees were again assembled to hear Berner speak. On this occasion Berner was so angry that, McGraw recalled, he was shaking. Berner accused the employees who had met with him the day before of having gone to a union meeting and slan- dered him. He had been called everything from an al- coholic to a wife beater, Berner said. In addition he claimed it had been said he had threatened to close down the plant. At this point Irene Lawrence attempted to in- terrupt saying that his ' last statement was not correct. Berner told Lawrence, "Shut up. I'm doing the talking." The complaint alleged 15 that Berner gave the employees the impression of surveillance of their union activities. By commenting in his speech on what had been said at a union meeting, whether accurate or not, Berner unmistakably conveyed the message that Respondent was aware of the happenings at IUE sessions and created the impression of unlawful surveillance. Ainsworth Manufacturing Company, 131 NLRB 273. Some days later, on September 15, Berner approached Patricia Fox as she was working at the Franklin Road plant, identified her, and then asked if she had any IUE cards. When Fox stated that she had, Berner asked to see one. Berner examined the card and returned it to Fox with his thanks. The, complaint alleged 16 and I find that by this conduct Berner unlawfully interrogated Fox. Fox's reply to Berner's, question required that she reveal her IUE adherence. Thus, this bald inquiry at her work station was a violation of Section 8(a)(1). D. The Regency Employees Independent Union On October 5, petitions were circulated among the em- ployees with the-following heading: WE, THE UNDERSIGNED, DO HEREBY AFFIX OUR NAME AUTHORIZING OUR CHOICE OF UNION REPRESENTATION BY THE REGENCY EMPLOYEES IN- DEPENDENT UNION. Over 40 employees, including group leaders, signed these petitions. A constitution and bylaws for the REIU was hurriedly prepared on October 7 14 by Virginia Humfleet, a group leader, several employees including Charlotte Farmer, and an attorney retained by the group. A day or two later, on either October 8 or 9, Charlotte Farmer, Group Leaders Maxine Healy and Virginia Humfleet, and several other employees requested and were granted a meeting with Regency Vice President Gunselman, Personnel Manager McGraw, and a third company official named Goetz. The REIU delegation ad- vised the company officials of the formation of their or- ganization and asked to be recognized as the Regency In- dependent Union. While acknowledging the right of the group to have an independent union the management representatives advised them that Respondent could not deal with any union as to do so would be an unfair labor practice. Officers of the REIU had been elected on October 7. Charlotte Farmer was chosen to serve as president. Of the bargaining committee of five elected that day, two members, Maxine Healy and Virginia Humfleet, were group leaders. REIU president, Farmer, testified that the Independ- ent had never collected dues. Rather, the organization expenses were met by contributions. Farmer testified that a large part of the REIU's bills were met by Group Leader Humfleet out of her own pocket. During October the REIU made three leaflet distribu- tions and held three meetings. That same month Group Leader Humfleet telephoned Elmore at her home to talk about the REIU. Humfleet explained that, with the IUE, employees were liable to be fired. As to the IUE, Hum- fleet stated, "Mr. Berner knows that we're on his side." 18 After the IUE filed a petition seeking a Board-con- ducted election the Independent intervened in the representation proceedings. The REIU had obtained a number of individual designations as, bargaining repre- sentative. E. Irene Lawrence As earlier noted, it was Irene Lawrence who made the first contact with the IUE. Lawrence had been employed by Respondent since September 1963. During her em- ployment Lawrence made normal progress and achieved an expert line assembler rating. She received the wage in- creases, both annual and job related, usually granted by Regency. Lawrence was in the group which met at the Union's office on September 2 and initiated the organizing cam- paign. She passed out IUE authorization cards and dis- 19 Case 25-CA-2347, paragraph 5(a). 15 Case 25-CA-2347, paragraph 5(b) 16 Case 25-CA-2347, paragraph 5(f) 11 As evidence of the haste with which this document was prepared, there was included among the powers and duties of the general committee of the organization (which was to represent employees of an electronics manufacturer): (3) To constitute a grievance committee for all the wholesale restau- rant supply employees who are members of the Union regardless of their department. s The account of this conversation (and indeed most of the facts set forth in this Decision) is based on uncontradicted testimony, in this in- stance that of Elmore 350-212 0-70-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributed union handbills at the plant. In response to a question from Vice President Gunselman in his office on September 8, Lawrence acknowledged that it was she who first contacted the Union. Lawrence attended the meeting in Berner's office on September 9 when a grievance committee or company union was discussed. When Berner the following day angrily claimed that he had been slandered and misquoted, it was Lawrence who had sought to interrupt him and had been silenced. 1. Demotion On October 4 Lawrence was assigned to the last posi- tion on a line assembling Citizen Band radios. On this line seven employees were handling 14 positions, each doing the work usually performed by two assemblers. The daily quota for the line so manned was 25 radios per day. As the line had started working some days before Lawrence was assigned to it, radios had already accumulated at the end position. At the time Lawrence went onto the line Group Leader Cora Hollcraft wired one radio so that Lawrence could observe and thereafter Lawrence was on her own. Although an expert line assembler is expected by Respondent to reach the required production rate after 3 days, by October 8 Lawrence was only doing 18 or 19 radios each day. As a result the pile up of radios awaiting attention at Lawrence's work station increased. On October 8 Lawrence was called to Foreman Mon- tague's office. There Montague asked Lawrence why she was not doing the required 25 radios a day. Lawrence replied that she was working hard and the only way she could explain her failure to keep up was that the work required at the end position was too much for one person. Montague insisted that she produce the quota. Lawrence said she could do 25 rejects but did not want to do that kind of work. She asked the foreman if she had been called in because she was wearing a union button.'9 Montague assured her the interview was only because of her failure to produce and she then returned to the as- sembly line. On October 12 the IUE sent its demand for recogni- tion to Respondent. The following evening , October 13, at an IUE meeting, Charlotte Farmer, president of the Independent, sitting across the aisle from Lawrence, complained that because many of the REIU supporters were Negro, it appeared to her that the others in the plant had stopped speaking to them. Lawrence replied that she had not quit speaking to anybody, union or no union. The color of your skin or mine doesn't make any difference, Lawrence said, they were still friends as far as she was concerned. To this, Farmer replied that Lawrence did not sign her paycheck. At this point, IUE Representative Rutherford cut out the cross-discussion and called the meeting to order. In finding this to have been the conversation between Farmer and Lawrence, I discredit certain hearsay testimony by McGraw as to what employees reported to her they had heard at the union meeting. Those em- ployees were not called to testify. In effect, Lawrence's testimony stands uncontradicted on the record. Moreover, Lawrence's account was corroborated by other employees who had heard parts of the conversation. However, without corroboration, I would credit Lawrence who, throughout her appearance on the stand and during considerable cross-examination, testified with candor and dignity. At 9 a.m. on the morning of October 14, Lawrence was called to the office of Foreman-in-Training Bright, where, in the presence of Group Leader Hollcraft and Quality Control Supervisor Surface, Bright informed Lawrence she was being taken off the assembly line and transferred to subassembly with a 10-cent-per-hour pay cut. Bright said the decision had not been his but that it had been he who insisted she be put on subassembly rather than packing because of her abilities as a wirer and solderer. Lawrence. protested the cut in wages asserting that other employees had been transferred to subassembly with no reduction in pay. When Bright explained that the decision as to Lawrence's wage rate was for McGraw to make, Lawrence asked to see the personnel manager and ar- rangements were made to call McGraw back from the Franklin Road plant. In all, Lawrence was in Bright's of- fice for 2 hours. Their conversation was interrupted from time to time by people coming to Bright with plant problems.20 After McGraw's arrival the session continued until after 2 p.m. Lawrence protested the cut in pay and gave to McGraw the names of two employees who, Lawrence claimed, had made the same transfer from assembly to sub- assembly but with no wage cut. At one point Lawrence asked that Group Leader Eleanor Rumler be called to the office to confirm Lawrence's good work. However, when Rumler arrived she stated that she always had to help Lawrence.21 McGraw promised to check on the em- ployees who Lawrence had cited in her argument against a wage cut. After McGraw left at or about 2:15 p.m., Lawrence had lunch and then, at Bright's direction, worked on packing for the balance of the day. In all, Lawrence was in the office over 5 hours on October 14. Lawrence was called to the office the following morn- ing, October 15. McGraw informed Lawrence that the wage cut would stand. This session lasted 3 hours, until noon. During the course of the morning the union cam- paign was discussed. Shortly after I1 a.m. Rose Mary Browning, Lawrence's daughter, entered McGraw's of- fice and joined the group. McGraw commented that there was always friction on both sides when a union appeared. Lawrence complained of Berner having told her to shut up and McGraw stated her resentment at some comments in IUE leaflets. McGraw brought up the rumors of trou- ble at a union meeting between whites and Negroes and stated that Regency would not permit disturbances of that nature. Both Lawrence and her daughter denied knowledge of such an incident. Lawrence commented that since the Union appeared she was spending time in the company office and noted that some people said she was the ringleader. In response McGraw reminded Lawrence she had told Gunselman of her call to the Union. Lawrence stated she was not giving up the Union and the Company would have to fire her, she would not quit.22 That afternoon, at Bright's direction, Lawrence re- ported to Group Leader Humfleet's subassembly line where she worked until her discharge on October 20. 10 At that time and until her subsequent discharge Lawrence wore a badge reading "IUE AFL-CIO Organizing Committee." 20 The foregoing account of Lawrence's stay in Bright's office prior to McGraw's arrival is based on her uncontradicted testimony. 21 Lawrence's mention of this incident on direct examination is an ex- ample of the candor which weighed heavily in evaluation of her credibility. 22 The foregoing account of the events of October 15 is based on a synthesis of the testimony of Lawrence and Browning . In certain respects McGraw's testimony corroborates theirs. To the extent McGraw's ver- sion varies , I do not credit her testimony. REGENCY ELECTRONICS 229 Lawrence was replaced on the Citizen Band line by Alice Dostin. A number of employees testified without contradiction that although Group Leader Hollcraft gave Dostin help which she denied to Lawrence, Dostin never was able to meet the daily quota of 25 radios.23 Dostin remained on the Citizen Band line until it was disbanded. On October 18 the IUE filed its first unfair labor prac- tice charge against Respondent. A copy of that charge was served on Regency on October 19. Among the acts alleged as violations of the Act was moving IUE sup- porters to lower paying jobs. 2. Discharge Irene Lawrence worked without incident on the subas- sembly line from October 18 until about 1 p.m. on Oc- tober 20. At that time Foreman-in-Training Bright came to her and asked that she accompany him to the office. Lawrence asked what she had done now to make a visit to the office necessary. Bright merely replied that she was to come to talk to McGraw and himself. At this point Lawrence said she could not go through that ordeal again and claimed the right to call her union representative. Bright noted her refusal and left.24 Shortly thereafter Berner, McGraw, and Bright came to Lawrence's work station and Berner discharged Lawrence. The testimony as to what Berner said to Lawrence at that time is in sharp conflict. Lawrence and the employee witnesses who testified to the incident all recalled that after Berner identified Lawrence by name he stated his understanding that she had refused to come to the office to speak to him. Lawrence protested that she had been told only that McGraw and Bright had called for her and there had been no mention of B erner. Bright cor- roborated Lawrence. At this point Berner said she was terminated, because of a racial disturbance and not because of her work or refusal to come to the office. Respondent on the other hand asserts that the discharge was precipitated by Lawrence's refusal to go with Bright to the office 25 McGraw testified that she received reports of a racial incident at a union meeting in October. This information, McGraw claimed, came not only from supervisors but from several Negro employees as well. At that time Berner was not in Indianapolis. However, although this created a "touchy" situation in her opinion, McGraw did not advise Berner of the re- ported incident until he arrived back at the plant about a week after she first learned of the incident. Berner then determined to call Lawrence into the office and get her version of the reported racial episode. Berner testified he did not at that time intend to discharge Lawrence. The only purpose in calling her to the office was to question her about the reports. However, when Bright returned and communicated Lawrence's refusal to come to the of- fice without a union representative, Berner then deter- mined to terminate her services. McGraw stated that be- fore they left the office Berner said that the discharge would be because of Lawrence's refusal to accompany Bright. Berner testified that was the reason he gave to Lawrence when he spoke to her at the subassembly line. Apart from the demeanor of the witnesses'26 the text of the interview prior to the actual discharge impels me to find that the colloquy went as described by Lawrence and the other employees. It may well be that, as McGraw testified, Berner had determined in the office to discharge Lawrence because of her refusal to come to the office at his summons. However, when he confronted Lawrence with her refusal to obey his call, he discovered that she had not refused to come to see him. In fact, she had not been told that it was Berner who had issued the summons. At this point, since his predetermined reason for discharge had evaporated, he fell back upon the supposed racial incident as the cause for terminating her services. In any event, I would find that in context of the protracted office interviews to which Lawrence had been subjected on October 14 and 15, when faced with a call to what appeared to be another such incident of harass- ment, Lawrence was not insubordinate in refusing to obey.27 Cf. Finesilver Manufacturing Company, 159 NLRB 923. Nor can I find that the exchange between Lawrence and Farmer at the IUE meeting on October 13 was a "racial incident." Accordingly, even were Ito find that Respondent had an "honest belief' that an untoward incident had occurred at the union meeting, this would give no defense to the charge of unlawful discharge. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21; Rubin Bros. Footwear, Inc., 99 NLRB 610. 3. Conclusions and findings The complaint alleged 28 that Respondent demoted Lawrence and reduced her wages because of her union activities. I so find. Lawrence was known by Respondent to have brought the Union to Regency. Respondent's strong feelings against the IUE have been demonstrated. It does not appear that Lawrence was an unsatisfactory employee at any time prior to her acknowledged inability to meet the quota of 25 Citizen Band radios at the work station assigned. To the contrary, she had received the normal promotions and pay raises for production em- ployees. Immediately prior to Lawrence's demotion the IUE petitioned for a Board-conducted representation election. Finally, Dostin, Lawrence's replacement was equally unable to reach the 25 radio quota, yet remained on the line until it was disbanded and Dostin's payroll record, made part of the record herein, indicates that her rate of pay was not affected by her equivalent inability to produce. Accordingly, in all the circumstances, I find that Respondent transferred, demoted, and cut Lawrence's rate of pay in reprisal for her union activity. 23 Employee Sarden testified that Dostin had made "the rate" on a line on which they had worked together. However, it was not the Citizen Band line. There was no claim made that Lawrence had failed to make production on any assignment other than the end position of the Citizen Band line. 24 To this point the account is based on a synthesis of the uncon- tradicted testimony of Lawrence and several corroborating witnesses. 25 Both Berner and McGraw testified about the discharge when called as adverse witnesses by General Counsel. 26 I have heretofore observed that Lawrence appeared to testify with candor 17 In so concluding I have carefully examined and considered both the transcript before and decision of the Appeals Referee of the Indiana Em- ployment Security Division in the matter of Irene Lawrence's application for unemployment insurance benefits , which was denied. However, I am convinced that such evidence does not alter my decision herein. Cadillac Marine & Boat Company, 115 NLRB 107, fn. 1. In his findings the Referee dismissed the reference to the racial question as "merely heresay,' he did not treat with the prior occasions when Lawrence was called to and remained in the office for hours , and no consideration was given to the surrounding circumstances of the organizing campaign 21 Case 25-CA-2347 , paragraph 7(d) and (e), as amended June 21, 1966. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have heretofore found that Lawrence had not caused a racial disturbance at a union meeting. In addition I have found that her refusal to accompany Bright to the com- pany office on October 20, in the circumstances , was not insubordination. Having thus disposed of any valid ground for discharge which might be drawn from the record, I am not faced by the "ever present enigma" raised by the necessity of balancing evidence of unlawful discharge against proffered proof of termination for cause . Furniture Designs, Inc., 160 NLRB 1576. In all the circumstances I conclude that Lawrence was discharged because Respondent wished to rid itself of the known union leader . That Respondent was aware of and concerned with Lawrence 's union activity was shown by McGraw when she reminded Lawrence of her admission to Gunselman of her role in bringing the Union to Regen- cy.29 The Company's antagonism toward Lawrence is shown by its harassment of her and the unlawful demo- tion and cut in pay. Immediately before starting on the course which led to its discharge of Lawrence , Regency discovered that its efforts to defeat IUE by encouraging the formation of an independent union had been insuffi- cient when IUE filed its petition for election. In the absence of any valid reason for discharge 30 and in the face of Respondent's unlawful campaign to defeat the IUE and its prior discrimination against Lawrence, I find that by her termination the Respondent violated Section 8(a)(3) and ( 1). N.L.R.B . v. McCarthy Motor Sales Co., 309 F.2d 732, 734735 (C.A. 7); N.L.R.B. v. Vapor Blast Mfg. Company, 287 F.2d 402 , 405 (C.A. 7), cert. denied 368 U .S. 823. F. The November 12 Terminations As noted, pursuant to the planned introduction of avionic products to Indianapolis , Respondent scheduled the transfer of all tube radios to the new plant in Raleigh after its completion in the fall of 1965. This had been an- nounced to the employees by Berner in his speech on September 7. Following this, on October 21 all employees received a memorandum from Personnel Manager McGraw stat- ing again that all commercial work would soon be moved to Raleigh and inviting them to indicate their interest in working in Raleigh at the same rate of pay, in the same classification, and without loss of length of service. By this time, however, Respondent had determined which of the female production workers would be terminated. Thereafter on November 12, 40 employees then work- ing and 2 employees on leave of absence were laid off with no expectation of recall. The termination notice given to these employees stated in part, "every employee has been reviewed as to length of service, quality, quanti- ty, attitude, attendance, punctuality and ability to learn new tasks." Other than the evaluation table from which the selections for layoff were made, the personnel records of the employees then employed by Regency indicate that all were acceptable employees who had made normal progress in skill acquisition, had received usual length of service and job promotion wage increases , and had not been guilty of serious work or discipline infractions. Thus, the employee evaluation process becomes key to a determination of the objectivity of the selections for layoff. 1. The evaluation method In preparation for a reduction in force McGraw prepared a table listing all of the female production wor- kers and the group leaders. Across the table were nine columns with the following headings: "Length of Ser- vice," "Job Classification," "1964 Absenteeism," "1965 Absenteeism," "Group Leaders Ratings" (under which six separate columns appeared), "Foreman Rating," "Quality Control Rating," "Overall Rating," and "Disposition." McGraw secured the information for the first four categories from the personnel and payroll de- partments. To supply group leader ratings, each of these persons except Mabel Stock was called in by McGraw and asked to rate the employees under her on certain of the criteria listed in the termination notice, namely, quality, quantity, attitude, and ability to learn new tasks. Group leaders were told not to take into account absenteeism or length of service. Based on these factors the group leader gave to each employee in her group a letter rating from "A" to "D." "A" was equal to excellent; "B" for good; "C" in- dicated average; and "D" was the mark for those rated very unsatisfactory. In addition to the group leaders, the foremen and Surface, the quality control supervisor, gave the same letter grades to the employees. Thereafter, McGraw translated the letter grades to numerical value, giving 4 for A down to 1 point for D. Finally, based solely on an average of the now numerical grades thus given, McGraw determined an overall rating for each of the em- ployees. Group leaders were similiarly rated, based only on grades given by the foremen and quality control. Mc- Graw testified that the ratings given were the individual subjective judgment of the grader. Further, it should be noted that the grade given was a composite score for all of the factors to be taken into account and those grading the employees were not given a chart of the factors to be weighed. McGraw testified that the most important factor in the selection process was the ratings by the group leaders, foremen, and quality control. Not taken into account at any point in the rating process was the factor of scores achieved by employees on manual dexterity tests ad- ministered by Respondent. I have heretofore found that the group leaders were su- pervisors within the meaning of the Act. Additionally, I have found that group leaders participated in the forma- tion of the Independent, contributing to it financial and other support and that two group leaders were on the REIU bargaining committee. Further, based on the un- contradicted testimony of the employee involved, I find that group leaders Healy, Cox, Riddle, Rumler, and Humfleet solicited authorizations for the Independent, in- terrogated employees about their IUE activities, and warned employees of reprisals if the IUE was successful. During the course of the IUE organizing campaign group leaders, including Cox, Humfleet, Healy, and Heming- way, attended IUE meetings. In view of the leading role played by the group leaders ztl N.L.R .B. v. Mid-West Towel and Linen Service, 339 F.2d 958, 961-962 (C.A. 7). 30 Corrie Corp. v. N.L.R.B., 375 F.2d 149 (C. A. 4). REGENCY ELECTRONICS 231 in the formation and operation of the Independent, their open campaigning against the IUE, their knowledge of IUE adherents gained at union meetings , and the con- trolling role they played in the selecting-out process through the subjective ratings they gave, "I am not disposed . . . to view as objective the rating applied for the selection of the employees to be laid off." Serv-Air, Inc., 161 NLRB 382, 419. 2. The impact of the layoff Annexed to this Decision and marked Appendix A ap- pears a chart listing the names and pertinent information concerning 42 employees. With two exceptions this is the list of those discharged on November 12. In compiling Appendix A I have omitted the name of Mabel Stock, whom I find to be a supervisor and not properly in the group, and I have added Irene Lawrence, who, but for her discharge on October 20, was slated to be included in the November 12 layoff and properly should be considered with her peers. a. Mabel Stock Stock was group leader in packing at the time of her discharge. While at some former time she might have been an acting group leader, due to the illness of another supervisor, Stock had had the title, duties, and rate of pay of a group leader for some time prior to the events herein. Accordingly, I find that Stock was a supervisor within the meaning of the Act and excluded therefore from its pro- tection. In any event I would not find that Stock falls within the group discriminatorily selected for layoff. Internal evidence, namely the inclusion of Lawrence's name among those evaluated in the selecting-out process, proves that the process was carried out prior to October 20. Stock signed her IUE authorization card on November 9, long after Regency had determined to dispense with her services and only 3 days before the layoff. Stock testified that when she signed the union card she was aware something was afoot because there had been a meeting of group leaders to which she had not been called. Aside from her IUE designation, Stock was identified by Farmer, REIU president, as a member of the Independent. Stock was a candid witness, stating, ". .. I want to make this clear, that. I really wasn't partial to either side, company union, or I.U.E. but all I wanted to do was to be able to work, keep my job." Other than attendance at one IUE meeting prior to her discharge Stock took no action which in the mind of the employees would have identified her with the Union's cause. As to her being at that meeting, I note that other group leaders who were openly opposed to the IUE also attended its meetings. The uncontradicted evidence sup- ports a finding that Regency had been disenchanted with Stock as a group leader for some time and included her among the employees to be terminated to rid itself of an unsatisfactory supervisor rather than to interdict em- ployee exercise of protected rights. Accordingly, I shall recommend dismissal of that allegation of the complaint pertaining to Stock's discharge. See Better Monkey Grip Company, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5), cert. denied 353 U.S. 864. b. Discriminatory selection for discharge From an examination of Appendix A and the larger group from which the dischargees were selected, in light of the selecting-out system employed and in the context of Regency's efforts to promote a company union, I con- clude that the selection program was discriminatorily em- ployed against IUE adherents resulting in the unlawful discharge of the 29 employees listed in Appendix B. A total of 93 female production employees, after exclu- sion of group leaders, were included in the group evalu- ated prior to the November 12 layoff. Of these 93 em- ployees 48 had executed IUE authorization cards at some time prior to the discharges on November 12.3 However, of the 42 employees included in Appendix A, 32 had given signed cards to the IUE.32 When the several criteria of leadership in the IUE's campaign are examined the incidence of IUE support among those selected for discharge becomes even more dramatic. Thus, on September 2 at the first IUE meeting of Regency employees, 16 attended. Out of these 16 only 3 survived the selection process (Betty Reynolds had left Regency before the evaluation sheets were prepared) and prior to November 12, 1 of the 3 survivors, Hernia Yen- sel, was terminated. Selected for discharge: 12 of 16 at the first IUE meeting. Early in the campaign the IUE formed an in-plant or- ganizing committee and those who joined signed an or- ganizing committee roster. Of the 14 employees who signed for the organizing committee, 5 survived the selec- tion process, and 1 of these, Hernia Yensel, was ter- minated prior to November 12. Selected for discharge: 9 of 14 on the organizing committee. As earlier noted, on September 9 a group of employees met with Berner in his office at which time he urged the formation of a company union and questioned those present as to their motives for wanting collective representation. The following day Berner angrily accused this group of having maligned and slandered him. Diligent examination of the record yields the names of 12 em- ployees at that meeting with Berner. Of this group, three survived the selection process. One of the three had sub- sequently signed an IUE petition. Selected for discharge: 9 of 12 who had been present in Berner's office. In concluding that the selection process involved dis- criminatory considerations, I have taken particular note of the high percentage of leading IUE adherents among those selected out 33 and the absence of any measurable objective elements in the concededly subjective stan- dards which controlled the evaluation process. Moreover, I note that among the 11 employees in whose behalf charges were not filed, only 4 were supporters of the In- dependent. C£ N.L.R.B. v. Murray Ohio Manufacturing Company, 326 F.2d 509, 513-515 (C.A. 6). As a final note I emphasize that I do not by this Deci- sion pretend to determine whether those selected for discharge were in fact more or equally capable of per- forming the avionic work than those who were retained. While it does not appear that Regency was concerned with this issue, their failue to pursue the inquiry does not preclude my consideration. Rather, I do not reach this issue because our concern here is only whether when choosing among its employees Respondent, in whole or si While some of the 48 IUE adherents had in some manner also examination more convincing evidenced support for the REIU this would serve to reduce the number of 3z Two of these thirty-two had also signed REIU petitions. true IUE adherents among the sample group and make the results of this 33 N.L.R B v. Ambox, Inc., 357 F.2d 138, 142-143 (C.A 5). 232 DECISIONS OF NATIONAL in part, was motivated by unlawful considerations. Town & Country Manufacturing Company v. N.L.R.B., 316 F.2d 846,847 (C.A. 5).34 G. Conclusions and Findings on the REI U The complaint, as amended at the hearing, alleged that on and after September 7, by various acts of interference, restraint, and coercion and by the unlawful discharge of Lawrence and that of the large group on November 12, Respondent "including by and through its agents and group leaders ... has dominated and interfered with the formation and administration of the Independent and con- tributed financial and other support to it."35 During the course of the hearing General Counsel was limited to proving a violation of Section 8(a)(2) of the Act by means of the conduct alleged to have violated Section 8(a)(1) and (3). In section III, C, E, and F of this Deci- sion I have found that those allegations have been proved in pertinent part. Thus, I have found that, in his speech on September 7, in conversation with employees on Sep- tember 8, and in the meeting with employees in his office on September 9, Berner unlawfully urged the formation and support of a company union. Jomax Apparel Com- pany, 146 NLRB 526. Further, I conclude that the un- lawful discharges found, which substantially reduced IUE strength while barely affecting the ranks of the Inde- pendent, had the naturally foreseeable consequence of rendering unlawful assistance to the REIU. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 227. Accordingly, I find that Respondent sponsored and in- itiated formation of the REIU and thereafter contributed unlawful assistance to the Independent. K & M Machine Company, Inc., 162 NLRB 83. Was the foregoing the only evidence adduced linking Regency and its supervisors and agents to the REIU, and taking note that the REIU was not granted recognition as the employees' bargaining agent, I would recommend merely that Regency be ordered to cease and desist from rendering unlawful assistance to the Independent. Cou- pled thereto would be the usual admonition that Respond- ent not afford recognition to the assisted Union in the absence of certification following a Board-conducted election. Jomax Apparel Company, supra. However, while not basing thereon a finding of viola- tion, I cannot be blind to the activities of certain group leaders on behalf of the Independent.36 As earlier noted, amidst their other activities on behalf of the REIU Group Leaders Maxine Healy and Virginia Humfleet were elected to the Independent's bargaining committee. My Recommended Order therefore shall provide a prohibi- tion against assisting the REIU by permitting supervisors to serve on its bargaining committee . The Powers Regu- lator Company, 149 NLRB 1185, 1188, enfd. 355 F.2d 506 (C.A. 7); Nassau and Suffolk Contractors' Associa- tion, Inc., 118 NLRB 174. 34 In view of my findings herein and after giving full weight to Respond- ent's position that the employees separated on November 12 were discharged with no expectation of recall, I do not deem it necessary to reach the allegation that the employees were wrongfully denied recall. In any event my Recommended Order would afford no further relief to these employees than that herein recommended should I find merit to that al- legation. Noting the absence of evidence linking her with the IUE prior to November 8, when she signed her union card, I shall recommend dismis- sal of the allegation of unlawful discharge of Mary V. Banks. However, LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities as set forth in section III, above, occurring in connection with its operations as set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. I have found that Respondent's discharge of Irene Lawrence and the 29 employees listed in Appendix B and the demotion of Irene Lawrence violated Section 8(a)(3) and (1) of the Act. My Recommended Order shall pro- vide for their reinstatement to their former or substan- tially equivalent positions and that they be made whole for any loss of earnings suffered as a result of the unlawful discharges, their backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereto in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716. In the case of Irene Lawrence she shall be restored to that position and rate of pay which she enjoyed prior to the unlawful demotion. To remedy the Company's violation of Section 8(a)(2) of the Act my Recommended Order shall require it to cease and desist from the acts of assistance shown, to refrain from extending recognition to the REIU unless and until it shall be certified as bargaining representative of the employees following a Board-conducted election, and to direct the group leaders to abstain from participa- tion in the affairs of the Independent, including serving on its bargaining committee. Respondent's unfair labor practices indicate an attitude of opposition to the purposes of the Act generally. Ac- cordingly, a broad cease-and-desist order is necessary and appropriate to effectuate the policies of the Act. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Regency Electronics, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, and Regency Employees Independent Union are labor organizations within the meaning of Section 2(5) of the Act. although Marguerite Bruce did not execute her IUE designation until November 9, she attended the meeting in Berner's office on September 9. Accordingly, I include Bruce in Appendix B among those employees who I find were discharged in violation of Section 8(a)(3) and (1) of the Act. 35 Case 25-CA-2347, paragraph 6, as amended. 36 As one may utilize events without the 6-month limitation period of Section 10(b) for elucidation of occurances not so barred , so may I here use as background in the framing of a remedial order, the actions of Re- gency's group leaders . N.L.R.B. v. Lundy Manufacturing Corporation, 316 F.2d 921,927 (C.A. 2). REGENCY ELECTRONICS 3. By engaging in certain described conduct referred to hereinabove, in section III hereof, Respondent interfered with, restrained, and coerced its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in the conduct described in section III, E, and section III, F, above, Respondent discriminated against employees in regard to their hire and tenure of employment, and terms and conditions thereof, in order to encourage or discourage membership in a labor or- ganization, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By engaging in the conduct found violative of Sec- tion 8(a)(l) and (3) of the Act, Respondent contributed assistance and support to the Independent and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent has not committed other unfair labor practices as alleged in the complaints. RECOMMENDED ORDER The Respondent, Regency Electronics , Inc., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union member- ship and activities , urging employees to organize and join an independent or company union, and creating an im- pression of surveillance in a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a)(1) of the Act; or in any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by the Act. (b) Discouraging membership in the International Union of Electrical , Radio and Machine Workers, AFL-CIO, or any other labor organization, by discharg- ing, demoting, reducing wages, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment. (c) Interfering with the formation or administration of the Regency Employees Independent Union by urging employees to form or join such organization or by en- 34 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 " 233 couraging membership in said labor organization by discharging, demoting, reducing wages, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any other term or condition of employment. (d) Permitting its group leaders or any other supervisor to act as members of the bargaining committee of or in any other way participating in the administration of the Regency Employees Independent Union. (e) Recognizing Regency Employees Independent Union as the exclusive representative of any of its em- ployees for the purposes of collective bargaining , unless and until the said labor organization has been duly cer- tified by the National Labor Relations Board as the ex- clusive representative of such employees. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Offer to Irene Lawrence and to the 29 employees whose names appear on Appendix B to this Decision im- mediate and full reinstatement to their former or substan- tially equivalent position (in the case of Irene Lawrence this shall be the position she occupied prior to Respond- ent having unlawfully demoted her and reduced her rate of pay), without prejudice to their seniority and other rights and privileges, and make them whole for any loss of wages which they may have suffered as a result of its discrimination against them , in the manner provided in the section hereof entitled "The Remedy." (b) 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 amounts of backpay due. (c) Post at its Indianapolis , Indiana, plant copies of the attached notice marked "Appendix C." 37 Copies of said notice, to be furnished by the Regional Director for Re- gion 25, after being duly signed by an authorized representative of the Respondent, 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. 38 (d) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith. 39 IT IS FURTHER ORDERED that the complaints be dismissed insofar as they allege unfair labor practices not specifically found herein. 38 In view of the sex, marital status , and ages of the discrumnatees I have omitted from the notice the standard note requiring Respondent to notify the discrimtnatees if presently serving in the Armed Forces. 39 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 Respond- ent has taken to comply herewith." 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A EMPLOYEES DISCHARGED NOVEMBER 12, 1965 B ALLEGED HIRE E OF CLASSIFICATION LUE CARD IUE ORGANIZING COMMITTEE ORIGINAL IUE MEETING-9/25/ MEETING-BERNER OFFICE.9/9 J REIU PETITION BAILEY, MINNIE L. 4-8-64 LINE ASSEMBLER X X BAh7CS, MARY V. 8-25-65 SUB-ASSEMBLER 11.8.65 X BARLOW, BETTY 6.5-63 SUB-ASSEMBLER 9-7-65 BOX, JOSEPHINE 9-7.65 SUB-ASSEMBLER X BROWNING ( LAWRENCE ), ROSE MARY 7.28-64 EXPERT LINE ASSEMBLER 9-2-65 X X X X BRUCE, MARGUERITE 5-4-64 LINE tSJ:.3LER 11-9-65 X X BRYAYT, MARIE JANE 9-23-63 EXPERT LINE ASSEMBLER NO DATE X CARROW, IRENE G. 8-5-57 REPAIR GIRL 9-3-65 X COBB, MARY C. 9/64- (9-2-65) EXPERT SUB -ASSEMBLER 9.16_65 COLE, LOIS M. 9-7-65 SUB -ASSEMBLER X COOMES, IMOGENE 9-30-63 EXPERT SUB-ASSEMBLER 9-2-65 X CRL:M, LUCILLE 3-23-64 EXPERT LINE ASSEMBLER X DAUGHERTY, DOROTHY L . 8-27-62 EXPERT LINE ASSEMBLER 9-12-65 X DUNAHOO , GLENNA 7-6.64 EXPERT LINE ASSEMBLER 9-2-65 X X X X DUNK, GENEVA 4.30-63 EXPERT SUB-ASSEMBLER 9-3-65 DUPREE, NORMA 6-13-63 EXPERT LINE ASSEMBLER X ELMORE, EVA G. 4.28-64 EXPERT LINE ASSEMBLER 9-2-65 X X X FARNHAM, IMOGENE 6.3-63 INSPECTOR. X FOX, PATRICIA 12-2-64 EXPERT LINE ASSEMBLER 9-2-65 X X GRIER, MARILYN 2-17_64 EXPERT LINE ASSEMBLER ----- X GRIZZEL, CAROLYN 7.6_64 EXPERT LINE ASSEMBLER 9-2_65 X X X X Y.A..'KINS, LILLIAN 1-28-63 EXPERT SUB-ASSE}BLER 9-13-65 X KUMKOWSKI ELLEN 4-1-63 EXPERT SUB-ASSEMBLER 9-23-65 X X LANHAM, BITTY J. 1.4.64 SUB-ASSEMBLER 9.22-65 IAWLNG, MATTIE 10-8-62 INSPECTOR 10-2-65 X X LAWRENCE, IRENE 9-16-63 EXPERT LINE ASSEMBLER 9_2_65 X X X X LOWE, MARJORIE E. 12-13-57 REPAL. GIRL 9_3-65 McCRACKEN CELESTINE Q. 8-19-65 SUB ASSEMBLER --- -- X X MaVAY, AL.LIA A. 12-16.54 INSPECTOR 9-2-65 X X MORROW, GLENNA 5-12-64 EXPERT LINE ASSEMBLER 9-2_65 X X PERDUE, MARY E. J 8-9-62 INSPECTOR ----- X X PRINCE , F. LOUISE 9-23-63 EXPERT LINE ASSEMBLER 9-2-65 X X X X RICHARDS, MARY E. 9-7 -65 SUB-ASSEMBLER 9-15-65 X SARDEN, JOHNNIE 5-15-64 `LINE ASSEMBLER 9-6_65 X SEXTO':, MARY C. 8-18 -65 SUB-ASSEMBLER 9-2-65 X X SHAF : I,, FERN G. 9- 7.65 SUB-ASSEMBLER 9.9_65 X SHELTON , SANDRA 12 - 13-64 SUB-ASSEMBLER 9-3-65 X SPARKS, MARY E. 11-18-64 EXPERT LINE ASSEMBLER 9-2-65 X X X X SPARKS, LOIS A. 5-25-64 EXPERT LINE ASSEMBLER 9_7.65 X X VAUGhN, RUBY L. 5-12 -64 EXPERT LINE ASSEMBLER 9-8-65 X WOODS, JAQUELYN K. 5-4-64 LINE ASSEMBLER 9-7-65 YATES, LILLIAN 3-30-64 EXPERT SUB-ASSEMBLER ----_ Asked to be terminated. $/ In addition to those indicated herein the following signed the roster of the organizing cormittee : Hernia Yensel, Carolyn Hager, Shirley Sloan, Susan Martin, and Reber Hanson . Yensel was terminated on November 2. 5/ In addition to those indicated herein the following attended the first IUE meeting on September 2: Hama Yensel, Betty Reynolds , Ruth Ishmael, and Reber Hanson. Yensel was terminated on November 2. Reynolds quit her employment with Respondent and her name does not appear on Regency's evaluation table. In addition to those indicated herein the following attended the meeting in Berner's office on September 9: Etta Sue True , Darlene Carpenter, and Reber Hanson. APPENDIX B APPENDIX B-Continued Barlow , Betty Starks, Lois A. Browning (Lawrence), Rose Mary Vaughn, Ruby L. Bruce , Marguerite Woods, Jaquelyn Bryant, Marie Jane Carrow, Irene G. Cobb, Mary C. Coomes, Imogene Daugherty, Dorothy L. Dunahoo, Glenna Dunn, Geneva Elmore, Eva G. Fox, Patricia Grizzel, Carolyn Hawkins, Lillian Kumkowski, Ellen Lanham, Betty J. Lowe, Marjorie McVay, Alelia A. Morrow, Glenna Prince, F. Louise Richards, Mary E. Sarden, Johnnie Sexton, Mary C. Shaffer, Fern G. Shelton, Sandra Sparks, Mary E. APPENDIX C 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 interrogate our employees concern- ing their union membership and activities or create an impression of surveillance in a manner constitut- ing interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT urge our employees to form and join an independent or company union, or in any other manner interfere with the formation or administra- tion of the Regency Employees Independent Union. WE WILL NOT discourage membership in Interna- tional Union of Electrical, Radio and Machine Wor- kers, AFL-CIO, or encourage membership in Re- REGENCY ELECTRONICS gency Employees International Union by dis- criminating in regard to the hire or tenure of employ- ment or any other term or condition of employment of our employees. WE WILL offer immediate and full reinstatement to the employees listed below to their former or sub- stantially equivalent positions, without prejudice to any rights or privileges previously enjoyed and make them whole for any loss of pay they may have suf- fered by reason of the discrimination against them: Betty Barlow Betty J. Lanham Rose Mary Browning Irene Lawrence Marguerite Bruce Marjorie Lowe Marie Jane Bryant Alelia A. McVay Irene G. Carrow Glenna Morrow Mary C. Cobb F. Louise Prince Imogene Coomes Mary E. Richards Dorothy L. Daugherty Johnnie Sarden Glenna Dunahoo Mary C. Sexton Geneva Dunn Fern G. Shaffer Eva G. Elmore Sandra Shelton Patricia Fox Mary E. Sparks Carolyn Grizzel Lois A. Starks Lillian Hawkins Ruby L. Vaughn Ellen Kumkowski Jaquelyn Woods WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collective- 235 ly through representatives of their own choosing and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such right may be af- fected by an agreement authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become and remain, or to refrain from becoming or remaining, members of any labor organization, except that such right may be affected by an agreement authorized by Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. Dated By REGENCY ELECTRONICS, INC. (Employer) (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.