Gibbs Die Casting Aluminum Corp.

GIBBS DIE CASTING ALUMINUM CORP. Gibbs Die Casting Aluminum Corp ., Gibbs Federal Division and Nellie Crowley, Wanda Duncan, and Frances Doriott. Case 25-CA-3114 January 9, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 9, 1968, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting 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 National 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Gibbs Die Casting Aluminum Corp., Gibbs Federal Division, Henderson, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete subparagraphs 2(a) and 2(d) of the Trial Examiner's Recommended Order and substitute therefor the following subparagraphs: 'The Respondent contends that the Trial Examiner 's credibility findings are erroneous and attended by bias and prejudice It is established Board policy not to overrule a Trial Examiner's credibility findings unless, as is not the case here, a clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Nor does the fact that the Trial Examiner credited all of the General Counsel's witnesses , and discredited all of the Respondent's witnesses, of itself show bias or prejudice. N.L.R.B. v. Pittsburgh Steamship Co., 337 U.S. 656. Accordingly, we find no basis for disturbing the Trial Examiner's credibility findings in this case. 75 (a) Make whole Nellie Crowley, Frances Doriott, and Wanda Duncan for any loss of pay suffered by them by reason of their layoff on February 9 or 10, 1968, or for any further loss of pay they may suffer by reason of the Respondent's failure to offer them reinstatement as required by the terms of this Order, in the manner set forth in the section of this Decision entitled "The Remedy." (d) In the event Respondent has not resumed operations at its plant at Henderson, Kentucky, mail to all employees employed during the period from the date of the discriminations to the closing of its operations, copies of the notice attached to the Trial Examiner's Decision and marked appendix. Copies of said notice, on forms to be provided by the Regional Director for Region 25, shall, after being duly signed by an authorized representative of the Respondent, be mailed immediately to such employees at their last known addresses. In the event the Respondent has resumed operations at said plant, copies of said notice, on forms provided by the Regional Director, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and shall be maintained by it for a period of 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 altered, defaced, or covered by other material. 2. Delete the third and fourth indented paragraphs of the notice and substitute therefor the following: WE WILL offer reinstatement to Nellie Crowley, Frances Doriott, and Wanda Duncan in the same nondiscriminatory manner as to our other former employees. WE WILL make whole the above-named employees for any loss of pay they may have suffered as a result of their layoffs, or any further loss of pay they may suffer as a result of our failure to offer them reinstatement, as required above. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on April 18, 1968, by the individuals named in the caption, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 25 (Indianapolis, Indiana), issued a complaint, dated June 27, 1968, against Gibbs Die Casting Aluminum Corp., Gibbs Federal Division, herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, and the answer denies, that Respondent discharged the employees named in the caption, the Charging Parties herein, on February 9 and 10, 1968, in violation of Section 8(a)(1) and (3) of the Act. Pursuant to due notice, a hearing was held before me at Henderson, Kentucky, on August 28, 1968. The General Counsel and the Respondent appeared and were given full 174 NLRB No. 15 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opportunity to participate in the hearing. On September 24, 1968, the General Counsel and the Respondent filed briefs which I have fully considered. Respondent's motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is hereby denied. For the reasons hereinafter indicated, I find that Respondent violated Section 8(a)(1) of the Act by the employment termination of the Charging Parties. Upon the entire record' in the case, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Kentucky corporation, at all times material herein has maintained a plant at Henderson, Kentucky, where it has been engaged in the manufacture and sale of antipersonnel bombs and related products. During the year preceding the issuance of the instant complaint, a representative period, Respondent purchased goods and materials, valued in excess of $50,000, which were transported directly to its plant from points located outside the State of Kentucky; during the same period, Respondent sold products, valued in excess of $50,000, which were shipped from its plant directly to points located outside the State of Kentucky. Upon the above admitted facts, I find, as Respondent further admits in its answer, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. Introduction; The Issues As previously noted, Respondent was engaged in the manufacture of antipersonnel bombs. Nellie Crowley, Frances Doriott, and Wanda Duncan were the three regular employees on the paint assembly line. They sat adjacent to a paint booth, and their work consisted of taking the bombs from a top conveyor belt and placing them in cups on a bottom conveyor belt which took the bombs through the paint booth and then through a tank of methylene chloride, located underneath where the employees sat. These three employees repeatedly complained among themselves and to their supervisors that the fumes from the methylene chloride were making them ill. As a result of a complaint to the Henderson County Health Department made by Wanda Duncan in early February 1968, a test was made at the plant on the morning of February 9, 1968, by the Kentucky State Department of Health to determine the concentration of methylene chloride in the employees' breathing zone. That afternoon, Nellie Crowley and Frances Doriott were laid off. Wanda Duncan, who was absent that day because of illness, was informed of her layoff by telephone the following day. They were replaced by three other employees who continued to work on the paint assembly line until the plant closed down on April 13, 1968. Respondent contends that it was necessary to have a reduction in force because its Government contract was 'I hereby grant the General Counsel's unopposed Motion to correct the transcript of testimony . I also note and correct obvious inadvertent errors in the transcript of testimony. about to expire and these three employees were selected for layoff because of their excessive absentee record. The principal issues litigated in this proceeding are (1) whether the three employees were engaging in a protected concerted activity by the conduct of Wanda Duncan in complaining about the fumes to the Health Department and (2) whether they were laid off because of this complaint, or because Respondent believed they had complained, to the Health Department, all as alleged in the complaint. B. Sequence of Events' 1. Prior to the layoffs The paint assembly line began operating on November 14, 1967. Nellie Crowley and Frances Doriott began working on that day and were the first two to work on that line. This was solely a day-shift operation from 8 a.m. to 4:30 p.m. They continued to perform the same operation on the paint line until their layoff on February 9, 1968. Wanda Duncan started working for Respondent on December 16, 1967, in a different department on the night shift, and was laid off for lack of work on January 9, 1968. She was reemployed again on January 18 to work regularly with Crowley and Doriott on the paint assembly line and continued in that work until the layoffs. This was the regular job assignment of these three employees. At first, the fumes from the methylene chloride gas made these employees dizzy, caused them to have headaches, and made them feel as if they were drunk. Then with repeated exposure to the fumes as time went on, it caused them to vomit and to feel drousy, affected their appetite and diet, upset their stomach and required them to run to the ladies room frequently. The result was that at times they became too ill to report for work, and this affected their attendance record. Crowley lost 15 pounds during the last 2 weeks of her employment. On Tuesday, January 30, 1968, Doriott became so ill from the fumes that she had to leave the plant and be taken to a doctor who instructed her to go home and stay in bed and advised her to quit that job if it continued to make her ill. She was unable to work the rest of that week. Crowley and Doriott, together, had complained a number of times directly to Jim McGann, the foreman of, the paint department and their immediate superior, pointing out that the fumes were making them sick and asking if anything could be done about it. McGann promised to try to fix it but there was no improvement. On such occasions, McGann would raise the windows to get more air or place a fan at their back to blow the fumes away. This would require the employees to wear coats and cause them to complain about the cold weather. Crowley and Doriott, together, also complained about the fumes several times to Charlie Williams, the superintendent of the paint department. Williams' response was to laugh and state that it was just like being on a cheap drunk and would not hurt them. While walking through the plant one day, Mr. Gibbs suggested that Williams better get a gas mask for Crowley, who at that time was at the head of the paint line where "the fumes were coming out real bad." Crowley, Doriott and Duncan repeatedly discussed in their work area the problem about the fumes, complaining 'Unless otherwise indicated , the findings in this section are based on credited evidence and testimony which is either admitted or undenied GIBBS DIE CASTING ALUMINUM CORP. that something ought to be done about it. Foreman McGann admitted that he knew these three employees were having trouble with the fumes. He admitted hearing them talk among themselves while they were working and complaining about the fumes and about being sick from the fumes, and he admittedly "knew they were going to the bathroom." Herb Hyatt, Respondent's plant manager and vice president, also admitted that he knew that these three employees had "registered" complaints about the fumes. During these discussions among themselves at work, they also talked about reporting the situation to the health department. On one such occasion, Crowley informed Doriott and Duncan that she had telephoned the Dowell Chemical plant in Evansville, Indiana, and, after explaining how the fumes from the methylene chloride gas was making them sick, was informed that continued exposure could affect their lungs and liver. Crowley then stated that she thought one of them should call the health department. Duncan said that if she were given the name of the gas, she would call either her doctor or the health department. Crowley and Doriott thereupon replied that that "was fine" with them because "somebody was going to have to do something about the fumes." Crowley then wrote down the words "methylene chloride," which she copied from a barrel that was in the plant, and handed it to Duncan. During the first week in February, Duncan was not at work because she was ill. At that time, she telephoned the Henderson County Health Department and talked to George Day, who was concerned with environmental services. She explained where she was working and complained that the fumes in the plant were making her sick and that as a result she could not eat and could not show up for work regularly.' Day told Duncan that he would report the matter to the State Health Department in Frankfort, Kentucky. Duncan did not inform Crowley and Doriott of her telephone call to Day. Day immediately telephoned Mr. Pasco, the director of the Occupational Health Program in Frankfort, and reported Duncan's complaint. Pasco stated that he would contact Ray Dunn, an industrial hygienist in that program. On January 25, 1968, Dunn had made his annual "strictly routine" visit to Respondent's plant. This was a "walk-through" survey. At that time, Dunn observed that methylene chloride was used in the paint department. He had no instruments with him and made no tests as to the extent of its concentration. In the absence of any complaints, he would not have made another visit to Respondent's plant for another year or year and a half, depending on his schedule. However, as a result of Day's telephone call to Pasco, the latter informed Dunn about the complaint from the local health department and requested him to return to Respondent's plant to make a "specific survey" and to "measure the concentration of the solvent they were using." Without any prior warning, Dunn arrived at the plant on Friday morning, February 9, 1968, with appropriate instruments, and informed Manager Hyatt that he had come back to check the concentration of methylene chloride because of a complaint issued through 'Duncan testified that she told Day how the fumes "affected us." Day testified that she specifically said "the fumes were making her sick" and that he did not "recollect whether she said employees or not" but that "she possibly could have said employees" also. I reach the same conclusions whether or not Duncan had also mentioned her fellow employees. 77 the local health board.' Hyatt then escorted Dunn to the paint line area where, with the use of his instruments, he took samples at the breathing zone where Crowley and Doriott5 were working on the paint line and made "on the spot" readings of the concentration. Eight samples were taken in this area at distances ranging from 2 to 7-8 feet from the paint booth- The results of the tests were that 5 samplings were in excess of the threshold limit value of 500 parts of methylene chloride per one million parts of air 6 The amount increased as the location of the sampling got closer to the 2-foot point from the paint booth, with the highest amount being 660 at the 2-foot point. Dunn informed Hyatt that day of the results of the tests and recommended that he decrease the concentration of methylene chloride in the paint area by sealing the cracks on the conveyor line through which the methylene chloride went prior to the spray operation. Hyatt admitted that as a result of the tests made that day, he agreed to make certain changes in the operation to reduce the concentration of methylene chloride. Dunn also told Hyatt that he would make arrangements to return about February 22 to reevaluate it and to see if the concentration had been reduced ' 2. The layoffs Dunn and his crew finished their tests and left the plant about 10 or 10:30 a.m. About that time, a part of a bomb had fallen down into the machine and caused the belt to stop. As Superintendent Williams walked up, Doriott told him not to look at her because she did not do it. Williams replied that "somebody did." Mrs. McGann, the wife of Foreman McGann, laughingly told Doriott that she "better quit talking like that" or Williams will "think" that she was the one who "called the health department." Shortly thereafter, Williams, McGann and Gibbs were conversing together at the end of a table, located about 4 yards from Crowley's work station. About 2 p.m., Foreman McGann told Crowley and Doriott that they would get off work early that day because he was closing down the line for repairs, and that Williams wanted to see them in the office. Duncan was not at work that day because she was ill. In the office, Williams told Crowley and Doriott that they were being 'This finding is based on the credited testimony of Dunn who favorably impressed me as a neutral witness entitled to full credence . I do not credit Hyatt's testimony that Dunn stated he was returning to make this survey because he had received a complaint from a doctor . Hyatt repudiated his pretrial affidavit, signed and sworn by him on May 23 , 1968, in which he states that "the reason, as far as I know, for the health department checking our plant was because it had received a complaint from some of our employees and from a doctor." Hyatt's testimony is contradictory and inconsistent in other respects, as hereinafter indicated . He did not impress me as ' a credible witness. 'Duncan was absent that day because she was ill 'This limit is set by a group of Government industrial hygienists. It means that it would be detrimental for a person to work in an area involving methylene chloride above the 500 figure over a period of time This is based on an average person, as some individuals may not be susceptible in concentrations exceeding this figure while others might be susceptible at a lower figure Dunn testified that based on personal experience with this particular solvent and based on findings in literature and in other plants with similar type operations, the concentration should be at or below this level because of its ill effects on the health of employees exposed to it He further testified that a concentration above this level can cause nausea, dizziness, an upset stomach, and a narcotic effect. 'Dunn did return on February 22, at which time his followup study disclosed that the concentration of methylene chloride beside the paint spray booth was reduced to the appropriate levels as a result of the sealing of all openings which could allow escape of the gas 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off. Crowley asked if it was because of their work. Williams replied that it was because he felt they were physically unable to do the work because of their absences . Crowley protested that she had been sick from the fumes and had lost 15 pounds in the last 2 weeks. Williams warned that they should not cause him any trouble because, if they did, he would take care of it. He just told them to pick up their checks the following Thursday. The following day, Saturday, February 10, Plant Manager Hyatt telephoned Duncan at her home and told her not to come back to work because they had caught up on the cleanup work and the line was not running. Duncan asked if Hyatt would call her when he had something. Hyatt promised to do so. At that time Duncan was unaware of the tests made by the health department the preceding day. The paint assembly line continued to operate with three replacements, who were transferred from other assignments, until the plant ceased operations on April 13, 1968. All three replacements had less seniority than Crowley and Doriott, and two of them had less seniority than Duncan. 3. Subsequent to the layoffs The following Thursday, February 15, Crowley and Doriott returned to the plant to pick up their checks. They observed that the paint assembly line was still running and that their work was being performed by other employees. They went over and asked Foreman McGann if he knew why they had been laid off. McGann replied that he did not know. Doriott asked if he could find out and let them know. He promised to do so. However, they never heard from him.' In the latter part of February, George Day, of the Henderson' County health department, telephoned Duncan; told her his reports showed that it was now safe to work at the plant; and asked if she had returned to work and had any repercussions such as sickness. Duncan replied that she had not been called back to work, and stated that she had "heard that we were fired because the Health Department had come out."' Day stated that he would call Hyatt and see if they could straighten the matter out. During the next 2 days, Day telephoned and spoke to both Hyatt and Williams. Day stated that he was wondering whether the women had returned to work and whether they were getting sick or having any repercussions. Hyatt stated that only one of the women had returned to work, adding that it was "nothing personal" but that "work is slack and production is off." However, Williams' response was that "their attendance record was poor and this was the reason they hadn't been back to work."i' Day then telephoned Duncan and reported what Hyatt and Williams had told him Duncan stated that she did 'The findings in this paragraph are based on the credited and undenied testimony of Crowley and Donott. Although McGann testified as a witness for Respondent, he did not deny having had the above conversation. 'Duncan had been informed by employee Catherine Chandler "that it was all over the plant that the three of us was fired for calling the Health Department." "Although Day testified that Hyatt and Williams, - between them, made the statements set forth in the text, he could not remember which one made which statement. However, in view of Duncan's testimony that Day had informed her that he had been told by Hyatt that one of the girls had been put back to work but that there was not enough work for all of them, I find that the statements were made in the manner set forth in the text not think any of them had been put back but stated that she would find out. She thereupon contacted Crowley and Doriott and learned that they had not been called back, Duncan then telephoned Day and informed him that the other girls had not been called back either, adding that she thought their layoff was due to the health department coming out to the plant. Duncan had also telephoned Hyatt and told him she had heard that "we were fired because of the health department" coming out to the plant. He denied that the health department had anything to do with it. Duncan then asked if Hyatt knew why she was laid off. He replied that he did not know, that Williams was the one who did it, and that he thought it was her poor attendance. Duncan protested that she could not help that, pointing out that she had not missed work when she was on the night shift but that when she worked on the day shift (on the paint assembly line) she got sick. Duncan asked if Hyatt could find out why she had been laid off. Hyatt promised to check with Williams and to call her back. However, Duncan never heard from him. C. Contentions and Concluding Findings The General Counsel contends, as the complaint alleges, that the three employees were engaging in a protected concerted activity within the meaning of Section 7 of the Act when Duncan complained to the Henderson County Health Department about the methylene chloride fumes in the plant, that their layoff immediately following the special tests made by the State Health Department as a result of Duncan's complaint was motivated by a belief or suspicion that the complaint had been made by these three employees, and that such layoffs were therefore in violation of the Act. On the other hand, Respondent contends that these three employees did not engage in any concerted activity within the meaning of Section 7 of the Act, that an economic reduction in force became necessary during this period due to a shortage of work, and that these three employees were selected for layoff because of their excessive absentee record. 1. As to protected concerted activity Counsel for Respondent states in his brief that all that was involved in this case was "gripes among themselves" and a "complaint made by one of them to the state," and argues that this "record does not show concerted activity." I do not agree As previously found, Crowley, Doriott and Duncan had repeatedly complained among themselves about the ill effects which the methylene chloride fumes were having on them and suggested that the matter ought to be reported to the health department. Crowley and Doriott had acted in concert when on several occasions they voiced their complaints to Foreman McGann and Superintendent Williams, separately. When Crowley reported to Doriott and Duncan that she had inquired about the effects' of methylene chloride fumes from the Dowell Chemical plant and had been informed that continued exposure could affect their lungs and liver, Crowley then stated that she thought one of them should call the health department. Duncan finally agreed that, if the name of the gas were written down for her, she would call either the health department or her doctor. The other two thereupon approved this course of action because "somebody had to do something about it." Under these circumstances, I find GIBBS DIE CASTING ALUMINUM CORP. that Duncan's telephone complaint to the County health department constituted concerted activity Contrary to the contention of Respondent's counsel, it is immaterial that Duncan may not have told Day that she was complaining on behalf of others besides herself or that she did not thereafter report back to the other two employees that she had in fact called the health department. For it is clear that Duncan had been authorized to act, and was in fact acting, on behalf of all three employees. In this respect, this case is virtually identical with Walls Manufacturing Company where the Board,- with court approval, found that the activity of an employee in writing a letter, signed only by her, to the Texas health department complaining of alleged unsanitary conditions in the Company's restroom "was concerted" because two other employees had approved the letter before it was mailed" It is self-evident that the concerted activity in this case was for the mutual aid and benefit of the three employees. As the complaint to the health department was neither in bad faith nor with intent to harass Respondent, I find that in seeking to have their grievance adjusted by bringing their concern to the attention of the health department, the agency which polices such matters, the employees were engaging in a protected concerted activity within the meaning of Section 7 of the Act.' 2 2. As to the reason for the layoffs Respondent contends that it became necessary to start reducing its work force in January 1968 when it knew that it would have to cease operations as soon as its contract with the Air Force terminated on April 13, 1968, and that the three employees in question were selected for layoff because of their excessive absenteeism. In support of its position, Respondent relies principally on the testimony of Plant Manager Hyatt and Foreman McGann, neither of whom I find to be credible witnesses because of their demeanor, the shifting nature of their testimony, and its refutation by Respondent's own records which are in evidence as General Counsel's exhibits. Neither Gibbs nor Williams testified and Respondent made no claim of their unavailability. Hyatt at first testified that "somewhere around the first of February" or "the latter part of January" Mr. Gibbs "told me to start cutting back my people and get within the production limits that we had to go on" because "the contract was beginning to show the end of production." He admitted that Gibbs did not tell him which employees to lay off, but that it was Mr. Williams who made "the decision" to lay off "these three people because of their bad attendance record." However, he then further admitted that on May 23, 1968, when he signed his pretrial affidavit under oath, he did not know the "specific reason" why Williams had decided to lay off these three employees and that his pretrial affidavit correctly so states. He then contradicted himself by testifying that he now knew the reason for their layoff because Williams told him the reason about an hour after he laid the girls off on February 9. Yet, in the last part of his testimony he admitted that he told Duncan, when she telephoned to ask if he knew why she had been laid off, that he was not "128 NLRB 487 and 137 NLRB 1317, enfd 299 F.2d 114 (C.A.D.C.), and 321 F.2d 753 (C A.D C.). "See, e,g., Walls Manufacturing case, supra,' Moss Planing Mill, 103 NLRB 414, 419, enfd. 206 F 2d 557, 559-561 (C.A. 4); Salt River Valley Water Users' Association, 99 NLRB 849, 853, enfd. 206 F.2d 325, 328-329 (C.A. 9), and Illinois Ruan Transport Corporation , 165 NLRB 227. 79 "exactly sure why she was laid off" and promised to check with Williams but did not do so. Nor did he deny the credited testimony of Day that in his telephone conversation in March, he told Day that only one of the three laid off employees had returned to work and that it was "nothing personal" but "work was slack," as previously found Foreman McGann testified that around the end of January, he started cutting back the work force in the paint department and that he knew he was going to have to make more layoffs because the contract was beginning to run out. He further testified that between 1 to 2 weeks before the layoff of these three employees, he had suggested to Williams, Gibbs, and Hyatt, separately, that these three be laid off because of excessive absenteeism, and that he did not recall what Williams said about it. Williams and Gibbs did not. testify and Hyatt did not corroborate McGann in this respect. He finally admitted that, while that was his suggestion, he did not, in fact, know the reason for which they were laid off. At one point he testified that he spoke to each one of the^ three girls only one time about their absences and gave them "more or less a warning." At another point, he testified that he never spoke to the three employees individually about it. He finally admitted that all he ever said to them was once in a "more or less kidding way" that they had "messed" him up or put him "on the spot" by being off and to "try and stay on the job a little better" if they could. He admittedly never warned them that any disciplinary action might be, taken if their absences continued Indeed, he further admitted that he talked to all the girls about being off from the day they first, started working and that "it was not only just" these three, "it was all of them." In addition, Respondent's own records refute the contention that there was a, ever-increasing reduction in force beginning in late January or early February 1968, as Hyatt and McGann sought to create the impression. Thus, there were 18 employees in the paint department for the week ending February 10, and there were 1-6 employees in the final week of April 13. (G. C. Exh. 6). Indeed a new name, Eura Lee Hagan, appears on Respondent's records as having worked in the paint department full time for the last 3 weeks of its operation (ibid). The same is true for the remainder of the plant. Thus, in the areas other than the paint department, there were 36 employees for the week ending February 10; 38 employees for the week ending February 17; 36 employees for the week ending March 30; and 30 employees in the, final week ending April 13 (G.C. Exh. 34). Indeed, two new employees, Sarah Van Natta and Cora Van Matre, were hired on February 12 (G. C. Exh. 60). The records even refute Respondent's Counsel's statement in -his brief that "beginning with the payroll period ending March 2,,1968, Respondent began working short workweeks, which by the end of the month amounted to three days a week." For they show that full weeks were worked in the paint department for the weeks ending March 23 and April 13. In any event, it is clear, as I find, that there was no significant reduction in the work force from February 10, 1968, up to the last day worked. Respondent's records also refute the testimony of Hyatt and McGann that all three employees were absent more than anyone else in the- paint department and had an excessive absentee record. Doriott began working in the paint department on November 14, 1967. The records show that from December 2, 1967, until her layoff, she was absent only 3 full days. That was when she became so 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ill from the fumes while at work on January 30 that she had to leave the plant and be taken to a doctor who advised her to stay in bed. She was absent the remaining 3 days of that week and informed McGann that she was staying home under her doctor's orders. She returned to work on Monday, February 5, and worked that entire week until her layoff on February 9. It is difficult to imagine how an absence of 3 days, due to illness acquired at the plant, in a period of almost 2 1/2 months can be characterized as an excessive or even as a poor absentee record. Particularly is this so when contrasted with the absentee records of some of the employees who were retained. Thus the records show that Ethel Williams, who started working in the paint department on November 8, 1967, accumulated 10 absences, the last 6 from the week ending February 10 to the week ending March 23; and Ethel Marritt, who started working on November 14, 1967, accumulated 8 absences, the last 6 from the week ending January 13 to the week ending February 24. Yet, despite the fact that these two employees had a much poorer absentee record than Doriott, they were retained through the last week that the plant operated, the week ending April 13, 1968. Crowley's absentee record, although poorer than Doriott's, may also not be regarded as excessive in comparison with that of Williams and Marritt. She started working on November 14, 1967. From December 2 until her layoff, she was absent 9 days as follows: two in the week ending January 13, all 5 days for the week ending January 20 because of the flu, and on February 6 and 7. Duncan started working on December 10, 1967, and was never absent until she started working in the paint department on January 18, 1968. From then until her layoff she was absent 8 days due to illness from the fumes. Duncan's absentee record while on the paint assembly line thus appears to be poorer than that of the other two. However, as Respondent treated all three as a group and made no distinctions between them for purposes' f the layoff, the case of all three must stand or fall together. On the other hand, the timing of the layoffs is most significant. McGann testified that he had recommended their layoff to Williams,, Hyatt, and Gibbs, separately, from 1 to 2 weeks before their layoff on February 9. Respondent offered no explanation as to why, if in fact such a recommendation had been made and instructions had allegedly been given to reduce the work force, they were not laid off on February 2, which was the end of a regular pay period, or on February 8, which was the regular payday. Instead , they were summarily laid off on February 9, without any prior warning or notice, following a huddle by Williams, McGann and Gibbs after the inspector from the State health department had made known the-results of the tests and had left the plant. Also very significant are the admissions at the instant hearing by Hyatt and McGann that Williams was the one who alone made the decision to select these three for layoff and that they themselves did not, in fact, know the "specific reason" or "exactly" why Williams selected them In addition, McGann told Crowley and Doriott when they returned to the plant for their paycheck that he did not know why they were laid off and promised to find out, as previously found. Also as previously found, Hyatt told Duncan in their telephone conversations after the layoffs that he was not "exactly sure why she was laid off," that Williams was the one who did it, and that he would check with Williams. Yet, despite the fact that Hyatt and McGann, the only supervisors who testified for Respondent, pointed the accusing finger at Williams as, being the one who alone made the decision for the layoffs and who knew the true reason for it, Respondent did not call Williams as a witness and made no claim that he was unavailable. As the Board recently stated, "the absence of such a witness or the failure to explain such absence weighs heavily in favor of the General Counsel's case." J C. Penney Co , Inc., 172 NLRB No.134.13 Indeed, under these circumstances, the inference is warranted that his testimony would have been adverse to Respondent's case," Crowley, Doriott and Duncan were the three regular employees on this assignment. Respondent was aware that they were frequently complaining about the methylene chloride fumes and that it was making them sick. McGann frequently heard them complain among themselves in their work area. Crowley and Doriott, together, had complained several times directly to McGann and Williams, separately. Hyatt admitted knowing that these three had registered a complaint about the fumes. In his pretrial affidavit, signed and sworn to by him on May 23, 1968, he stated that "they were the only ones, as far as I knew, who ever complained about the fumes." 15 In any event, the record warrants the finding, which I herein make, that they were the most notorious complainers in this respect and were so regarded by Respondent.16 On February 9, when the inspectors from the State department of health returned to make special tests of the concentration of methylene chloride in the paint department, Respondent was informed that they had returned because a complaint had been made with the local health department. Hyatt admitted in his pretrial affidavit that the health department "had received a complaint from some of our employees" and that, as far as he knew, that was the reason for their checking the plant." These three employees were summarily laid off after the inspectors had left the plant. When Crowley protested Williams' accusation that they were physically unable to do the work, pointing out that the fumes had made them sick and caused her to lose weight, Williams warned them not to cause him any trouble because, if they did, he would take care of it. Upon consideration of all the foregoing, I am convinced and find that Williams believed or suspected that these three were the employees who had complained about the fumes to the local health department, and that his decision to lay them off at that time was truly motivated by his resentment against them for making this complaint. As I have found that, in making this complaint to the health department, the employees were engaging in "Hesmer Foods, Inc, 161 NLRB 485, 490, enfd. 56 LC Para 12,303 (C A. 7) "Interstate Circuit, Inc v U.S., 306 U.S. 208 , 226; Staub Cleaners, Inc., 148 NLRB 278, 284, enfd. 357 F.2d 1 (C A. 2); and Benevento Sand and Gravel Co., 131 NLRB 358, 364, enfd 316 F 2d 224 (C.A 1) "I do not credit Hyatt's testimony in which he repudiated this statement on the ground that it did not accurately reflect what he had told the Board agent "Respondent called as witnesses four other employees who had performed the same work on the paint assembly line One of them, Linda Buster, was not put on this work until February 20, 1968, more than a week after the layoffs Two of them, Ethel Williams and Bea Langston, were not bothered by the fumes and therefore never complained about it The fourth one, Ruby Blake, substituted on the paint line on only two occasions, each time for a period less than a day. She complained to McGann that she had to get off the line because the fumes were making her sick. Therefore, she was given a full-time,lob elsewhere in the plant. "Hyatt again attempted to repudiate his affidavit in this respect I do not credit his contrary testimony GIBBS DIE CASTING ALUMINUM CORP. a protected concerted activity within the meaning of Section 7 of the Act, Respondent violated Section 8(a)(1) of the Act when Williams laid them off because he believed or suspected that they had made such a complaint.' 8 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 relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. CONCLUSIONS OF LAW 1. By laying off Nellie Crowley, Frances Doriott, and Wanda Duncan on February 9 and 10, 1968, because it believed or suspected that they had complained to the health department about the methylene chloride fumes in the plant, Respondent interfered with, restrained, and coerced them in the exercise of their right to engage in concerted activity for their mutual aid and protection, as guaranteed by Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent laid off the above-named employees in violation of Section 8(a)(1) of the Act, I will recommend that Respondent make them whole for any loss of earnings each may have suffered as a result thereof, by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of their layoff until April 13, 1968, when the paint assembly line and the plant ceased operations, less the net earnings of each during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that, in the event the plant in Henderson, Kentucky, has been or will be reopened, Respondent offer reinstatement to the above-named employees in the same nondiscriminatory manner as it may offer to other former employees of that plant, and, in the further event that other former employees of the Henderson plant are offered employment at other Gibbs enterprises, that Respondent accord equal treatment to the above-named employees in this respect and also offer them such employment in the same nondiscriminatory manner. "See, e.g, Cello-Foil Products . 171 NLRB No. 154 (TXD). I deem it unnecessary to decide whether the layoffs also violated Section 8(a)(3) of the Act, as alleged in the complaint , inasmuch as the remedy necessary to effectuate the policies of the Act would be the same in either case. American Art Clay Company, Inc., 142 NLRB 624, fn. 1, Drfco Laboratories, Inc., 172 NLRB No. 235, fn l 81 Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Respondent, Gibbs Die Casting Aluminum Corp., Gibbs Federal Division, Henderson, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their rights to engage in concerted activities guaranteed in Section 7 of the Act, by layoff, discharge, or by any other disciplinary action. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole Nellie Crowley, Frances Doriott, and Wanda Duncan for any loss of pay suffered by them by reason of their layoff on February 9 and 10, 1968, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Recommended Order. (c) In the event that Respondent's plant resumes operations in Henderson, Kentucky, offer reinstatement to the above-named employees in the same nondiscriminatory manner as it may offer to other former employees of that plant, and, in the further event that other former employees of the Henderson plant are offered employment at other Gibbs enterprises, accord equal treatment to the above-named employees and also offer them such employment in the same nondiscriminatory manner. (d) In the event that Respondent's plant resumes operations in Henderson, Kentucky, post at said plant copies of the notice attached hereto and marked "Appendix."" Copies of said notice, on forms to be provided by the Regional Director for Region 25, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 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 altered, 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 therewith.20 "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 in a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "in the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National. Labor Relations Act, as amended, we hereby notify our employees that- WE WILL NOT lay off, discharge, or in any other manner penalize our employees for engaging in, or because we believed they were engaging in, protected concerted activities for their mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer reinstatement to Nellie Crowley, Frances Doriott, and Wanda Duncan in the same nondiscriminatory manner as we have offered our other former employees. WE WILL make whole the above-named employees for any loss of pay they may have suffered as a result of their layoffs. Dated By GIBBS DIE CASTING ALUMINUM CORP., G IBBS FEDERAL DIvISION (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 Baord's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.