Dektronics, Inc.

DEKTRONICS, INC. Dektronics, Inc. and Martha Elaine Sloan and Marlene Winkler and Communications Workers of America, AFL-CIO and Elizabeth White. Case 12-CA-4339-1, 12-CA-4339-2, 12-CA-4368-1, and 12-CA-4368-2 October 14, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On May 21, 1969, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. 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, the brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. 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 herein, and orders that Respondent, Dektronics, Inc., Orlando, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(c), and reletter the following paragraphs accordingly: in the absence of exceptions thereto, we adopt, pro forma, the Trial Examiner's finding that Respondent did not engage in certain other unfair labor practices alleged in the complaint There is an inadvertent error in the Trial Examiner's Decision In the last sentence of the next to the last substantive paragraph in section III, F, the Trial Examiner found that White, in Respondent's opinion, "could have performed the work which was assigned to the new employees hired beginning on November 25 " This date is corrected to read October 25 89 "(c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 2. Add the following as the last indented paragraph of the notice- WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner. In this proceeding, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively) issued an amended consolidated complaint' alleging that Dektronics, Inc (herein Respondent or, simply, Dektronics) had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended (the Act) The answer to the amended consolidated complaint (as further amended) admitted some of the allegations of the complaint and denied others, in effect, it denied the commission of any unfair labor practices Pursuant to notice, a hearing was held before me at Orlando, Florida, on January 23 and 24, and February 4 and 5, 1969 All parties were afforded full opportunity to call and examine and to cross-examine witnesses, to argue orally, and thereafter to submit briefs. Upon the entire record in the case, including my evaluation of the reliability of the witnesses based upon the evidence and my observation of their demeanor, I make the following FINDINGS OF FACT I COMMERCE Respondent is a Florida corporation with an office and plant located at Altamonte Springs, Florida, where it is engaged in the business of manufacturing transformers and related products. During the 12-month period preceding the issuance of the instant amended consolidated complaint, Respondent, in the course of its business operations, purchased and received at its Altamonte Springs plant directly from points outside the State of Florida goods and materials valued in excess of $50,000 Respondent is an employer engaged in commerce within the meaning of the Act. 'This was issued on November 27, 1968, the original complaint having been issued on November 12 The various charges initiating the proceeding were respectively filed on September 24 and 27 and November 6 and 8, 1968 179 NLRB No. 15 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It THE UNION Communications Workers of America, District 3, AFL-CIO (hereinafter, the Union)' is a labor organization within the meaning of the Act 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues General Counsel alleges, and Respondent denies, that Dektronics (a) through its president, Harold Decker, in a speech he delivered to employees on September 11, 1968, (1) notified them he was aware they were engaged in organizing activities on behalf of the Union, (2) warned them the plant would' be sold or closed in the event it was unionized; (3) advised them that, even if the Union were successful in its organizing attempts, he would never sign a union contract, (4) warned them that he could discharge most of them and hire new employees, (5) told them that signing union cards would cause them trouble and told them to get such cards back; (6) characterized employee union leaders as the least competent employees; (7) threatened that stricter work standards would be imposed on employees, (8) threatened that he would have employees' activities in the plant observed and reported to him; and (9) announced a new policy of interviewing and evaluating employees for wage setting purposes (a policy which subsequently was installed). (b) through Decker, in a speech delivered to employees the next day, (1) warned them he would close the plant before he would let a union in, (2) advised them he was imposing stricter production requirements, and would discharge employees failing to meet such requirements, (3) notified them they could not discuss the Union on company property, and (4) announced a new rule forbidding them to leave work stations without raising hands and getting supervisory permission (c) through Decker, on or about September 19, in a conversation with an employee held in his office, (1) interrogated her about her union sympathies, and (2) threatened to close the plant if it were unionized; all constituting interference with, or restraint or coercion of, employees in the exercise of the self-organizational rights guaranteed them by the Act General Counsel further alleges, and Respondent denies, that Dektronics- (a) On or about September 25, 1968, discharged employee Marlene Winkler, and thereafter failed to reinstate her, because she joined or assisted the Union or because she engaged in other concerted activities for the purpose of collective bargaining or other employees mutual aid or protection; and (b) On or about October 1, 1968, laid off employee Elizabeth White, and thereafter failed to reinstate her, for the same reasons, both acts constituting discrimination in regard to tenure of employment to discourage membership in a labor organization, as well as interference with, or restraint or 'Communications Workers of America, AFL-CIO, was the charging party in Case 12-CA-4368 Its District 3 is the component part concerned with the organizing of employees involved herein 'in the complaint, this word appeared as "could," but , at the hearing, the emphasis and the testimony related to whether Decker did or did not say that the plant would be sold or closed coercion of, employees in the exercise of their self-organizational rights B Background and Setting At all times relevant herein - roughly, the latter half of 1968' - Respondent was engaged in the manufacture, either from its own or from customers' designs, of transformers and related equipment for use in the aviation industry Its president, Harold Decker, sole owner of its stock, actively devoted himself to administrative work, related both to sales and to production. Having been formed in May 1964, Dektronics had steadily grown At the close of 1967 - a "very profitable year" - the number on its payroll had reached 100, including 60 production employees During the summer of 1968, Decker noted what he believed to be a weak spot in the company's operations. It was his progressively growing opinion, as gleaned from interim reports and from his own observations, that, since the end of June, shipments out of finished products had fallen and production costs had risen. His opinion was confirmed, in terms of dollars and cents, when, at the end of September, he received the June profit-and-loss statement, followed shortly by those of July and August' Decker was enough disturbed that, beginning at or shortly after June, he mentioned the subject of "rejects" to one or another of the employees on an individual basis. On a more formal level, in the month of August, he spoke to his supervisors: he cautioned them to pay more attention to their areas of responsibility-specifically, to replace employees not doing their jobs. Also, at or about this time, a rule to the effect that employees should not leave their workplaces without advance notice and permission was announced. Among the major steps taken was the hiring, late in August, of Anthony Juliano, a neighbor and friend of Decker Juliano, whose official title was sales manager and acting production control supervisor - and who later came to be regarded by Decker as his "general manager" - was charged with the responsibility of developing production techniques, establishing channels of communication between Respondent's various departments, developing a system of production control and, in general, promoting efficiency His efforts first took tangible shape on or about August 31, when he introduced a "time ticket" to be maintained by each employee to record activities. As the final element of the background with which this case is concerned, it should be noted that, as September opened, the Union was actively engaged in organizing campaigns among the employees of a number of central Florida enterprises in the same business as Dektronics C Chronology of Events The husband of Anne Hauser, who worked for Respondent, was employed by one of the nearby employers involved in organizational campaigns by the Union On several occasions early in September, Anne Hauser spoke to her fellow employee, Elizabeth White 'Unless otherwise indicated, all dates referred to in this Decision fall within 1968 'Ordinarily, he would have received such statements on a more current basis During this summer, however, access to Respondent's books was hampered by the fact that the Internal Revenue Service was conducting an audit DEKTRONICS, INC. 91 (one of the charging parties herein), about bringing the Union into Dektronics, an idea to which White responded favorably Both Hauser and White tried to establish contact with Edward Seawell, Union representative, and finally, on Monday, September 9, White reached him by telephone. The two spoke about organizing Dektronics and it was arranged that a meeting of employees would be held at White's home that evening Pursuant to these arrangements, Seawell and another union representative met with six of Respondent's employees. Among the six, in addition to White and Hauser, was Marlene Winkler (another of the charging parties in this matter). The employees present were given instructions about organizing their fellow employees, and, by the end of the meeting, all six signed cards authorizing the Union to act as their bargaining agent As they left, each took organizing literature and authorization cards. During the next several days those who had attended the meeting conducted a campaign among their fellow employees to persuade them to sign the authorization cards. By prearrangement, all signed cards were given to Elizabeth White for ultimate transmission to Seawell. Since there is no allegation here of an unlawful refusal to bargain, a precise measure of the success of the organizing campaign is immaterial to this decision Suffice it to say - and I find - that adherents of the Union believed that, within a matter of 30 hours following the September 9 meeting, they had procured the signed authorization cards of a majority of Respondent's 56 to 60 nonsupervisory employees working in the following sections transformer, RF assembly, toroid, inspection, production testing, shipping and receiving, truck driving, and maintenance.' On the day following the September 9 union meeting, the existence of the organizing campaign came to the attention of management. Anne Hauser (one of the original union supporters!) and Mildred Stewart, another employee, asked William Martin, then head of the transformer section,' if he was aware that a union was trying to get into the plant Martin reported this conversation to his father, Robert Martin, then Respondent's vice president and director of engineering. Presumably, the matter would have rested there, except that the conversation between Martin, Jr , and Martin, Sr., was overheard by Sales Manager/Production Control Supervisor Juliano. At or about 8 a.m. on September 11, Juliano reported the conversation to Decker. Later the same morning, he reraised the subject with Decker, adding the "rumor" that "they have to get all these cards in by noon " Decker professed disinterest in the matter, but Juliano approached him a third time, insisting that "the matter be given more consideration." Now, Decker called Robert Martin to his office and asked for further details, in response to which Martin said he had only heard that "cards" were being signed for a union whose identity was unknown to him. Thereupon, Decker decided to make a speech to his employees. He explained on the witness stand that, having been told that there was a deadline for signing up with the Union and having no time to consult with a lawyer, he decided to remind his employees, before they finally made 'These were the groups falling within an appropriate bargaining unit, according to an agreement reached in a subsequent Board representation proceeding - see supra Excluded in addition to supervisors , were office clericals, engineering department employees, and model shop and production test technicians 'Stipulated and here found to have been a supervisor within the meaning of the Act at the time in question up their minds on the matter, of the benefits they enjoyed at Dektronics. Decker's speech was a prepared one only in the respect that he wrote down a list of topics which he wished to cover He wandered from topic to topic and back again, often repeating himself (This was due, I find, both to a lack of preparation and to the nature of his personality.)' The order in which the topics are hereinafter discussed, therefore, is not necessarily the order in which they appeared in the speech ' Shortly after 9 30 a.m. on the 11th, Decker went into the plant proper, placing himself at the midpoint of the 90-foot wall running the length of the front of the room. Present were the personnel of the entire plant except for the office staff. Calling for attention, he directed that the machines be stopped. The employees turned toward him and those who worked at more distant places came forward, the whole audience forming a rough semicircle with a 40-foot radius. Decker began by saying that he had learned that Dektronics' employees were trying to organize a union. This came to him as a surprise, he said, and, before they finally made up their minds, he wanted to make sure they knew what benefits they enjoyed without a union At or about this time - almost at the outset of the meeting - Decker pointed to his left toward the wall behind him "I want all the management people over here and all the union people out there [motioning to the area in front of him] " Supervisors and engineering department employees, all outside the agreed-upon appropriate bargaining unit, plus from six to nine (female) employees within the unit, moved or started to move to the space to his left rear "No," he explained, to the latter group, "I didn't mean you girls," and he proceeded into his text." Decker stated that he did not know how many of the girls" had signed union cards - and he did not care - but he wandered aloud why they should be interested in a union in view of the benefits they presently enjoyed. He pointed to the profit-sharing program to which the company had contributed $26,000 during the past year, all held in trust for the employees. He made a reference to the insurance available to them. And he pointed out that each of them received a paycheck every Friday. "I don't know what the Union is promising you, but we're the ones who keep your paychecks coming " When one became involved with unions, he said, one "never got out of it." Having a union come into the picture was "like having someone come in between man and wife." His own father, Decker told the employees, had for some time been a representative for a local of the Typographers Union in Albany (As a boy, Decker said, he had wrapped dues money and had stamped dues books, 'The same characteristics evinced themselves in Decker as a witness at the instant hearing 'My findings as to what was said in this speech and in the speech made on the following day, infra, do not follow, in whole, the testimony of any one witness They constitute, rather, an amalgam of that part of the testimony of all witnesses which is credited , as tempered by my impressions of the respective witness' believability and by the inherent plausibility of such testimony Where serious contradictions exist, I shall make note thereof "Testimony about this incident occupied much of the time at the hearing The testimony as to Decker's descriptions of the two groups varied from "the corporate and supervisory type people " on the one hand and "those not fitting this description " on the other, to "those who have anything to do with this union" and "those who are not involved " My findings accord with what, on this record , I am persuaded were the words he actually used "Most of the employees in the bargaining unit were female 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the while, his mother had worried every Christmastime about whether his father would be laid off) Finally, he said, his father was offered a position by the Hearst newspaper chain as their bargaining representative; although he had rejected the offer, he told his son, Harold, that the union men were "nothing but a bunch of parasites whom we kept in costly cigars and shining new cars " At or about this point, Decker announced a "new policy for evaluating employees for wage increases " He was promising nothing at this time, he said - a present implementation, he explained, would not be fair either to Respondent or employees in view of the low state of production - but it was intended that each employee be interviewed and evaluated, as to workmanship, for example, with a view toward determining whether a wage increase was warranted Having made reference to low production, Decker's talk veered away from existing employee benefits. He mentioned and he decried the employees' poor workmanship and lack of cooperation, and he pointed to the high rate of rejects - $9,000 worth during a past (unspecified) period He explained that, because of such poor workmanship, along with excessive time spent in restrooms, poor attendance, lack of punctuality, and carelessness resulting in injuries, the employees were, in effect, depriving themselves of the additional benefits which would derive from a profitable operation. He insisted, he said, upon 8 hours of work for 8 hours of pay In connection with this aspect of Decker's talk, Elizabeth White spoke up For one thing, she said, rejects weren't always due to faulty workmanship - they often were the result of erroneous instructions from supervision To this, Decker said he would check on his supervisors Secondly - White continued - not every employee did her share of the work; and some did three or four times as much work as others for the same pay Decker's reaction was to ask for the employees' self-enforcement of the need for cooperation - adding that, if necessary, "I'll just pick certain girls to keep an eye out and tell me about girls that are not doing their work." Continuing with this subject, Decker expressed the opinion that the least competent workers were the ones most likely to be interested in unionization because they were the ones most likely to be concerned about layoffs. This comment (I find) led Decker into an additional observation about unionization He reminded the employees that his door had always been open to them, a "right" which they would lose if a union came into the picture - a union steward would thereafter do the communicating. Employee Lewis Blood (a technician excluded from the bargaining unit) spoke up He had once belonged to a union, he said, and he would not now work in any shop at which there was one Employees Mary Boltz and Louis Perkins (both in the unit) made their contributions In effect, each asked about getting back signed authorization cards from the Union How was it done? and, in view of their having heard that nonunion people would lose their jobs if the shop was organized, Would trying to get their cards back cause them "trouble9" Decker, disclaiming any special knowledge of the subject, said he was sure that they could get their cards back merely by requesting them: "Just ask for them back - and then tear them up " He then asked if anyone present had a card Clarence Jetton, a technician (outside the unit), said that he did (And he volunteered that he would not have signed it had he been aware of all the employee benefits Decker had just described - and now that he did know, he had no intention of turning the card in to the Union ) Decker, examining the card and returning it to Jetton, said that a signature on such a card merely authorized the Union to represent the signer and that the possession of a sufficent percentage of signed cards would merely entitled the Union to an election Only if the Union won, Decker explained, would he have to negotiate with it The eventual execution of a collective-bargaining contract, Decker continued, depended upon his signature He made specific allusion to the contract negotiations, should they ever come to pass. They could, he said, cover a period of years, he did not have to give in to union demands. As long as he was sole owner of Dektronics, he announced, he would be the one to determine whether the company stayed in or went out of business, what its workload would be, and who would "regulate labor" in the plant "What will they do?" he asked, "nail me to the wall?"' 2 Decker spoke of the possibility of a strike, accompanied by picketing In such case, he said, those who struck would be ineligible for unemployment compensation or for work elsewhere, while those who opposed the move, since they were not "up North," need not fear union violence As for himself, he professed a lack of concern about picketing- he was "from New York" and knew how to handle union people; no union would tell him what to do - he would lock the door first; and, finally, he and Frank (Fontanetta, the chief engineer ) could run the plant by themselves if necessary - he would replace the strikers - he had started with 16 employees and could begin again with "green" help He reminded the employees that, only 3 months earlier, he had rejected an offer to buy the business " Now, he said, he "guessed" he had made a mistake, what with the workmanship problem and "now to be badgered by union type activity " As recently as the end of August, he related, he had had a conversation with Tony (Juliano) in which he had said that he did not need this plant as a source of income and that, in view of the current production problems, he had questioned why he was staying in business, and he quoted himself as saying "I dont know why I don't put the key in the door "" Decker ended his speech - which lasted about 2 hours - on a repetitive note it was always up to management to decide whether to keep the doors open, a decision which would be easier to make if the employees extended their full cooperation and improved their workmanship After Decker's speech, on the same day, a number of the employees who had turned in signed authorization cards requested their return In each such case, Elizabeth White returned the card Between the time he concluded his speech of September 11 and 8 30 next morning, Decker established contact with an attorney" who represented one of the other companies in the area which the Union was attempting to organize Among other things, he was given a "Do-and-Don't" "The findings in this paragraph are based, substantially, on the testimony of Decker as credibly corroborated and expanded upon by others I do not credit testimony to the effect that Decker said specifically that he would never sign a union contract , on the other hand, I do not credit Decker's testimony that, in this speech , he merely said he would never agree to a "closed union shop " "At that time, he had spoken to the employees Branding as false the rumor that he was selling the business , he had confirmed that there had been an offer and a refusal "In so finding , I credit Decker "Not counsel in the instant proceeding DEKTRONICS, INC. 93 sheet, and he borrowed a copy of the Union's constitution and recent financial statement and some of its pamphlets At or about 8 30 a m on the 12th, Decker once again went into the plant and had the machinery turned off so that he could be heard This time, he said, he was better prepared to speak about the organizing attempt He displayed the union literature and commented on it, among other things, he said that one of the documents pertained to an insurance plan, the details of which the Union did not want employees to understand He pointed to the amount of dues Dektronics' employees would have to pay if the Union came in, and he read off a list of Union representatives' salaries and compensated expenses. Putting aside the material, he told the employees that it would be available for their inspection in the lunchroom for the rest of the day. One reason for this second meeting, Decker continued, was the fact that he had heard from several of the employees that they had been "intimidated " He wanted to assure all employees that there were laws against intimidation - and that he would stand behind anyone who was threatened and would give that employee his full support Commenting that "union fellows, however well-dressed," were mobsters, he said that, if necessary, he would hire a guard to stay on the property to protect against employees' being intimidated 16 In the course of his talk -- having since yesterday discussed Florida's "right-to-work" law with counsel - Decker stated that he would never agree to a closed shop. " As in his speech a day earlier, Decker spoke about production He reemphasized the need for more production and better workmanship, he insisted upon less rejects and upon more shipments "out the door"; and he reminded those present of the policy of periodically reviewing employees' workmanship for wage evaluation purposes Once again, he requested the employees' cooperation, and, once again, he insisted on full work for full pay 11 This speech ended about 9.15 a.m. During the balance of the day, a number of the employees examined the union documents which Decker had placed in the lunchroom Also, during the rest of the day, a number of authorization card signers requested and were given their cards back 19 On Sunday, September 15, there was a union meeting held at the VFW Hall in Altamonte Springs. Testimony about the meeting placed the number of Respondent's employees attending as high as 14 or 15, but - crediting the only witness who sought to identify the attendants - I find that there were only 7 there, a group which included White and Winkler On or about September 18, Decker announced to a group of employees that - contrary to their past practice - they should discuss any production problems with specified supervisors rather than with Marlene Winkler. (Details are found in the subsection "Winkler's "Several witnesses testified, in connection with this subject , that Decker forbade all union discussion on the property On this record , I find that he made no such statement "Based on Decker's credited testimony "In so finding , I have not credited testimony to the effect that Decker, in his speech , expressly set any production quotas, threatened discharge should his words on production go unheeded , or spoke of closing the plant "The number of such cards , including those returned the previous day, reached 12 or 13 discharge," infra ) Next day, about 11 30 a.m , Winkler was told that Decker wanted to see her in his office. When she arrived there, she found Decker and Juliano Decker invited Winkler to sit down. He said that she should not be nervous; he just wanted to have a talk Then he asked her what she thought a union could do for her Winkler pointed out, first, that the advent of the Union had already accomplished something - it had brought him (Decker) out in the plant, "Your foreman are jumping and getting work done and seeing that things are done right for a change " Then she mentioned the possibility of better restrooms and longer break periods. At Decker's request, she elaborated - suggested the installation of a lounge and expressed the number of minutes she had in mind as an ideal break period Decker, to Juliano, said that bringing in a lounge might not be a bad idea. Turning back to Winkler, he reminded her of the money a union would take from the employees, "in their salaries and everything " At this, Winkler asked if she could see the union materials he had displayed during his speech a week earlier, since she had not had the opportunity to examine them in the lunchroom. He produced the documents - the constitution and financial statements - and she examined them Decker spoke of improvements made or planned, for example, the expansion of the plant. The conversation shifted to a break-in which had occurred at the plant the previous weekend Decker said he was puzzled that anyone would have wanted the only thing taken - a list of employees - and he expressed the opinion that it was an inside job. Decker raised the subject of rejects - he wondered why there were so many. Winkler pointed out that Decker himself had failed to follow through on a report involving rejects which she had given him 3 months earlier, he conceded this, but said he had been unable to take the word of one employee on a matter not reported by supervision This led him to ask about William Martin, foreman of the transformer line - did he know what he was doing' Winkler said that, in her opinion he did - in some aspects, e.g., winding, he had much to learn, but considering the time he had been in his present position," she said he would soon be able to handle all the work The discussion, lasting at least 2 hours, was marked by repetition The problem of rejects, for example, was brought up many times Decker made it clear he meant to get to the bottom of and to remedy the problem, even if it meant that heads would roll But at no time was the meeting marked by hostility or unfriendliness " On or about September 24, Martha Elaine Sloan, an employee of Respondent," filed the first unfair labor practice charge in this matter (Case 12-CA-4339), alleging the unlawful inhibition of employees' self-organizational rights since on or about September 11 Also on the 24th, "Less than 4 months "My findings as to the incident are based on the credited portions of the testimony of all three participants In effect, Decker denies that he asked Winkler what she thought a union could do for her At first, he said she was the one who raised the subject , later, he said he did not recall asking the question "in that context," although he conceded that whatever he did say "might have been construed that way " Juliano did not recall Decker's putting the question I do not credit Winkler's testimony to the effect that, when the union subject came up, Decker repeated his statement made to employees earlier that he "wouldn't sign a contract " For one thing , this is outside the context of the conversation, for another - if my analysis is correct - Decker would not repeat a statement which ( I am convinced) he had learned 7 days earlier might be considered unlawful "She voluntarily left that employment on October 12 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union put into the mail a letter to Respondent, claiming to have been designated as bargaining agent by a majority of the production employees and requesting recognition as their bargaining agent On the 25th, Marlene Winkler was discharged, under circumstances discussed in detail in the subsection "Winkler's discharge," infra Late the same day, Respondent received the Union's claim and request sent the day before On September 27, Winkler filed an unfair labor practice charge (Case 12-CA-4339-2) against Dektronics, covering her discharge Having received no reply to its request for recognition, the Union, on September 30, filed a Petition for Certification of Representatives (Case 12-RC-3169) with the Board's Regional Office at Tampa On October 1, Elizabeth White was laid off, under circumstances discussed in detail in the subsection "White's layoff," infra A formal hearing in the representation proceeding was scheduled to be held on October 22. At that time, the parties agreed upon the holding of an election to dispose of the representation question, and the hearing was canceled Subsequently, on November 6, the Union filed the charge numbered 12-CA-4368, adding the employment-terminations of White and Martha Sloan as alleged violations of the Act;,21 and, 2 days later, White herself filed Case 12-CA-4368-2, merely reiterating that the termination of her employment constituted an unfair labor practice. Thereupon, all action on the representation case was suspended On November 12, the Regional Director, for the General Counsel, issued a complaint in Cases 12-CA-4339 and -4339-2, and, on the 27th, he issued a document containing a consolidation of these cases with Cases 12-CA-4368 and -4368-2 and the amended consolidated complaint which was the basis for the instant hearing D. Independent Interference, Restraint , and Coercion As noted earlier, the General Counsel contends that, in at least nine aspects of his speech of September 11, Harold Decker unlawfully infringed upon Respondent's employees' self-organizational rights.2' I have carefully examined the contents of the speech (as found by me - see "Chronology of events," supra) - and I have concluded that, in most part, the position of the General Counsel is not well taken, either because the evidence does not support a finding that certain statements attributed to Decker were in fact made or because, certain statements having been made, they do not add up to unlawful interference, restraint, or coercion. (It is possible, of course - as suggested by Respondent's counsel in oral argument - that there may have been some misunderstanding among his listeners as to what Decker was saying, but the significant thing for our purposes is to note the words he used and the calculated effect upon his audience.) As examples, I have found that he did not tell employees that their signing union cards would lead to trouble, that he did not characterize employee union leaders as the least competent employees "Subsequently , the portion of the charge pertaining to Sloan was withdrawn "He does not attack the bulk of the speech - the description of existing employee benefits, the exposition of production problems, and the call for employee cooperation (by implication, the most likely candidates for layoff), and that he did not threaten to have employees' activities in the plant observed and reported to him And, while I have found that he did signify to his employees that he had heard about their union activities, the statement was nothing more than an honest expression of the occasion for the talk - it did not purport to be, and (I find) was not taken to be the creation of an impression that he was engaged in surveillance,25 that he did tell his listeners that, in the event of a strike, he could replace the strikers, but this was nothing more than a valid opinion as to this right, that he did call for increased productivity, but the call, unaccompanied by threats of discharge, was related to an existing, legitimate business problem, and that he did announce a new policy of interviewing and evaluating employees for wage-setting purposes, but, under the circumstances surrounding production at that time, I am not convinced that the reason for the new policy, or for its publication at this time, was union-connected 26 In agreement with the General Counsel, however, I find that, in this speech, Decker did advise the employees that he would not sign a collective-bargaining contract in the event the Union campaign was successful and did warn them that the plant would be sold or shut down in the event of its unionization. Repeatedly, while testifying, Decker, asked whether he said this or said that, would begin his answer with "Not in that phraseology " In my opinion, his explanations were tortured, if not devious; the answer lies, I am convinced, in the fact that he was now trying to explain away that which, on September 11, he sought clearly to imply At that time, he said that the execution of a contract depended upon his signature, that negotiations, if the matter came to that stage, could consume years; and that as long as he owned Dektronics, he would be the one to "regulate labor." As for continuing to operate the business, he said - in connection with negotiating with a union - that he would be the one to determine whether or not the business continued to operate, he gratuitously reraised the subject of the 3-month-earlier opportunity to get rid of the business, expressing the opinion that, "now to be badgered by union type activity," he had made a mistake, and he injected his conversation with Juliano 2 weeks earlier in which he questioned the wisdom of his remaining in business. In my opinion, the threats were quite apparent he sought to lead the employees to believe, and they were warranted, from his words, in believing the following If the Union came in, he would never sign a contract; on the contrary, he would close down or get rid of the business The communication of this information interfered with, restrained, and coerced his employees in the exercise of their self-organizational rights. I find nothing in Decker's September 12 speech which violates the Act. Specifically - contrary to allegations of the General Counsel - I find that Decker did not say he would close the plant if a union came in or that he would impose more onerous working requirements the fulfillment of which would be a condition of continued employment; he did not forbid union discussions on company property, and he did not announce a rule, new or otherwise, to the "As I have resolved the incident of the "separation" of the audience at the beginning of the speech , it appears that here , at least, employees may have been led to believe Decker was polling them on their union sympathies - but this was not alleged by the General Counsel as a separate violation of the Act "Insofar as this record is concerned, it appears that a number of wage increases were granted during the period in question , but there is no indication of a deviation from past practice in this respect DEKTRONICS, INC. 95 effect that workers must remain at their work stations unless they raised their hands and received permission to leave, and I find no unlawful implications in what he did say. The General Counsel contends that, in his conversation with Marlene Winkler on September 19 - details supra - Decker unlawfully interrogated her about her union sympathies and threatened to close the plant if it were unionized. This record contains no evidence in support of the second aspect of this allegation. According to my findings, he said nothing during this conversation, expressly or by implication, about closing the plant With respect to the charge of interrogation, I have found that Decker did ask Winkler what she thought a union could do for her. But interrogation is not unlawful per se, it must be examined in context. Relevant factors - the so-called Bourne27 standards - are the record of employer hostility toward a union, the potential use against the affected employee which is inherent in the information sought, the identity of the questioner, the degree of unnatural formality in the place and manner of the interrogation, and the truthfulness of the replies Whatever else Decker's speeches of September 11 and 12 amounted to, they established Decker's antiunion animus," an attitude he was clearly conveying to the employees. And now, employee Winkler was summoned to the locus of final authority in the plant, in the presence of the two top executives of the company. True, the conversation was unmarked by hostility or unfriendliness, but it was preceded (by one day) by the public announcement of Winkler's demotion - see details, infra - and followed (by 6 days) by her discharge; perhaps the motivation for these actions lies elsewhere - of which, see infra - but certainly, there was at least surface reason to believe that whatever information Winkler gave could and would be used to her disadvantage. Finally, I cannot hold against her the fact that she did not simulate in answering, granted that a clue to the intimidatory effect of questioning may be found in the forthrightness of the answers, I submit, with due deference to the Court of Appeals for the Second Circuit, that permitting the truthfulness of an employee's answers to be dispositive of the lawfulness of the interrogation places a premium on untruthfulness and penalizes the more candid employee. I find that Decker, in his questioning of Winkler, coercively interfered with employees' self-organizational rights E. Winkler's Discharge Marlene Winkler was hired on October 3, 1965 She began as an assembly worker and, with the passage of time, performed different phases of the production work on transformers. Finally, in April 1967 - at which time she was the senior employee among those on the transformer and the "walleye" production lines - she began to "act as line leader" on these lines. "Enunciated in Bonnie Bourne d/b/a Bourne Co v N L R B. 332 F 2d 47 (C A 2), enfg as modified 144 NLRB 805 Also see N L R B v Carrico, Inc. 340 F 2d 803, 804 (C A 5) "As recently observed by the Court of Appeals for the Fifth Circuit "Of course, the company has a legal right to 'make no bones about its opposition to the union' [ Hendru Mfg Co v N L R B, 321 F 2d 100, 103 (C A 5) ] However, the Board is entitled to consider emphatic anti-union attitudes as 'background' against which to measure the impact on employees of management's statements and conduct " Independent, Inc v N LRB , 406 F 2d 203 fn I (C A 5) There is confusion , if not controversy , as to what a line leader is29 and whether , in fact, Winkler was "officially" classified as line leader. At or about April 1967, the work force of transformer workers had been greatly augmented As new girls came on, they needed assistance and instruction beyond the capacities of Robert Martin, then sole supervisor of the transformer workers Winkler , being the most experienced of these employees and possessing what Decker regarded as an "aggressive" personality, was a natural for selection as a supervisor's helper During April 1967, she was designated as line leader 30 Thereafter , until at least September 18, 1968, she kept employees supplied with materials and worksheets , she answered their questions about all phases of transformer production and gave them assistance , either at her own or at their workplaces, and - after they were installed on or about August 31 - she accumulated the employees ' work tickets . Between such tasks, she pursued a "primary" job of winding transformer cores. In addition, upon order , she worked on "special" jobs such as research preproduction ("prototype") or pilot production ("pre-production" or "customers' sample") units as opposed to regular production units'' On one or more occasions in June or July 1968 - during the period in which Dektronics President Decker was disturbed about the extent of rejected work - see "Background and setting ," supra - William Martin spoke to Winkler on the subject of rejects, both hers and those of the employees in her line The purpose of these discussions ( I find ) was to search for solutions to the problems, in no sense were they intended to constitute a criticism of Winkler's work On or about September 9, as I have related, the attempt to organize the plant began. Winkler attended the Union's first meeting held on September 9, having accepted Elizabeth White's invitation ; she signed a Union authorization card at that time; and she accepted a dozen cards for distribution among the employees . Next morning, she spoke to employees and gave out cards - one to Clarence Jetton, who, during Decker's speech the next day, displayed it to Decker. She procured but one signed card , the rest of the employees to whom she spoke having been reached earlier by the other signature-solicitors . After Decker gave his speeches of the 11th and 12th, she was one of the seven employees who attended the Union meeting held on September 15. On one occasion following Decker's speeches - at or about the middle of September - Winkler, in a conversation with her immediate supervisor ( William Martin), jocularly asked him if he wanted a Union authorization card. On September 18, Decker called to the lunchroom the 20 to 23 employees on the transformer and walleye lines. "There is no dispute that the line leader, as that position was supposedly filled by Winkler, was not a supervisory job, it was within the agreed-upon appropriate bargaining unit "Whether there was "official publication" is immaterial I find that, on and after this date, she performed the duties of line leader as here described, and that management and the other nonsupervisory employees treated her as line leader "Meanwhile, she served in at least two other "capacities" (I) For some time, through selection by Decker, she had acted as spokesman for her fellow employees in their contacts with Decker - e g, with respect to Christmas parties (2) According to Decker's testimony, only she and one other (Elizabeth White), among all Dektronics' employees, were prone to "bounce into" his office to speak to him on personnel matters 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He explained that it had come to his attention that some of these employees may not have been apprised of organizational changes affecting them." Their supervisors - their only supervisors, he said - were Dave Smith and Bill Martin, ranked in that order, if any of them needed supplies or help, or had any question or problem, she should call upon Smith or Martin, and upon no one else. Responding to queries as to whether this meant the girls should no longer look to Winkler in these matters, Decker merely repeated that they should go to Smith or Martin. Also, he reminded them of the month-old rule on leaving work stations." He emphasized to them that they should raise their hands or otherwise get the attention of supervision before leaving workplaces I have earlier recounted how, on the next day (September 19), Winkler was called into Decker's office and was interrogated. Following Winkler's demotion34 of September 18, she no longer performed the work of a line leader Moreover, she was no longer assigned prototype or pilot production winding, it was given instead to an employee who, although experienced, had been in the transformer line but one month Winkler performed production work only Winkler was discharged on September 25. That morning, shortly after 10 o'clock, Dave Smith told Winkler that he had just learned that a transformer unit recently wound by her had failed to pass testing He gave her no further details at the time At or about 11 a m., Smith told Winkler that Chief Engineer Frank Fontanetta wanted to see her in the lunchroom There, she found Fontanetta, who had three transformers, one of them "torn down," and a work specification He asked if she had done the winding on this job, known as Part No. 38Z26 of the Bendix job She said she had - her work on these units, plus seven more of the same, was finished on or about September 16. He said these three units had not "tested out," and he asked her why she had omitted certain insulation Her answer was that she did not realize she had omitted any insulation - perhaps she had forgotten it. He asked her whether the drawing was clear and she said that it was, then he proceeded to check her on her ability to read the specification, a test she passed. Then, he sent her back to her workplace (Neither in the conversations with Smith or Fontanetta nor in her testimony at the instant hearing did Winkler "During Winkler' s tenure as line leader , the chain of supervision above her had changed a number of times At first, her supervisor was Robert Martin , thereafter, levels of supervision interposed themselves between him and her, and the identity of her immediate supervisor changed from time to time During the past 4 -plus months, William Martin had been her line foreman In January 1968, Leslie ("Dave") Smith had entered the employ of Respondent under Robert Martin, in the engineering area Gradually, as he familiarized himself with the operation, his responsibilities increased In July, he was assigned to set up a new production line and to supervise its operations Subsequently - without any "public" announcements - his supervisory responsibilities expanded to the extent that, as of early September , he devoted half his time to heading the entire transformer area - an area which included that in which William Martin was line supervisor and Marlene Winkler line leader "A rule which, I find, had not been enforced since its inception "She received no cut in pay, and Decker testified that she was not demoted since she had never been considered a line leader (At several other points in his testimony , however, he made it clear, and I have found, that she had indeed performed the duties of a line leader with the knowledge and consent of management ) I find that the action was a demotion - but the General Counsel does not attack the action as being unlawful deny that she had failed to insert, between windings of wire, the "mylar" (a clear plastic-like) insulation which, she was told, had been omitted. To the best of her knowledge, she said, she had inserted the insulation, but, she concedes, this assertion was not based on present recollection - it was based only on the fact that she normally followed specification sheets It was possible (she testified) that she did forget to insert the insulation, because (she further testified) she was so constantly interrupted in her work ) Shortly after 4 p.m., Smith called Winkler to his office "I've been told to let you go," he said "I hate to do this I've been counting on you to wind the Bendix [lob]" She asked whether the action was taken because of 38Z26. "Yes," he said, "that was the last straw " Thereupon, Winkler, terming that as "an excuse," went to the office, turned in her tools, received her pay, and left the premises." On the day of Winkler's discharge, prior thereto, there were a number of related discussions between members of management, according to the testimony of witnesses presented by Respondent Shortly before 10 a.m Sid Weaver, testing supervisor, notified Dave Smith that one of Winkler's ten 38Z26 units had failed to pass testing Smith (after notifying Winkler of the failure) reported the problem to Frank Fontanetta, asking him to find out what was wrong. Fontanetta disassembled the defective unit to a point at which he was able to ascertain that the fault lay in the omission of the mylar insulation. (It was then that he had the i 1 a m. conversation with Winkler reported above. By that time, two more of Winkler's units had failed to pass test standards, but the causes of their failure were not yet known ) After his conversation with Winkler - still before lunchtime - Fontanetta met with Smith and with Juliano. He informed them of the cause of the failure and of his conversation with Winkler The three then discussed the incident, in the course of which Smith referred to prior defects in Winkler's workmanship, but no decision as to any personnel action had been made when the meeting ended. The same three - Smith, Fontanetta, and Juliano - met again after lunch. They again discussed Winkler's failure to insert the insulation in the Bendix unit (the causes of the failure of units No 2 and 3 were still unknown), and they again discussed Winkler's performance in general Finally, it was their joint determination - although each testified that his was a major role16 - that Winkler's employment be terminated The issue is a narrow one - was Winkler discharged because of her union interests and activities or for some "The findings as to the "exit" conversation are based not only upon the relative impressions made by the participants in testifying, but also by the elements of inherent plausibility For example, I do not credit Winkler's testimony that Smith said that Harold [Decker] had instructed him to discharge her, however Winkler interpreted Smith's remark about the responsibility for the action and whatever Decker's involvement in the matter , I do not believe that, under the circumstances, Smith would have dragged in Decker's name "Smith testified that he was the one who suggested that Winkler be discharged (" It was me that first decided this particular direction of movement It was me, personally , that instigated it "), Fontanetta, at two points in his testimony, said that it was he who recommended to Smith that she be fired, and Juliano, testified that "there were too many rejects for one person , as far as I was concerned ," and, asked if he were a "major decider" in the matter , said, "Yes, sir, I would say so - positively " DEKTRONICS, INC. 97 other reason9 Respondent's contention that it was unaware of Winkler's union sympathies is rejected On the basis of credited testimony which I have set forth supra - e g , her mentioning the Union to William Martin," her unlawful interrogation by Decker in the presence of Juliano, and the open knowledge of her status as a "leader" among the employees - I am persuaded, and I find, that members of management knew or believed that she was actively interested in having the Union represent Respondent's employees The reason for the discharge assigned by Respondent is the fact that, during a period in which its productivity was plagued by poor workmanship, Winkler committed a series of production errors, topped by her defective performance on the 38Z26 Bendix units. Winkler conceded that she had made errors in the past. For example, in late August or early September she had made two so-called "breakout" errors - i e , wire endings emanating from the wrong place in a winding At or about the same time, she had been called in on Saturday for a rush job, and midday tests revealed workmanship defects.38 On both occasions, one or another supervisor had "spoken to her" about the rejected work, but - a finding I base on uncontradicted testimony - she had not been warned about the quality of her work in the sense the term is normally used in the employment relationship Moreover, in the Decker-Juliano-Winkler conversation of September 19, although the subject of production rejects was given attention, there was no reference to, let alone criticism of, her own rejects Indeed, on this record, I find that, at least prior to the day of her discharge, Winkler's work performance was not considered to be a problem 39 For one thing, (in the words of one supervisor who testified) "it is expected" that there be rejects in Respondent's type of work, moreover, it is clear that, during the period in question, defective work among Respondent's employees was widespread 10 For another, there is no dispute that during the period in question, Winkler was considered the mainstay of first one, then the other, of her supervisors when they assumed their positions And, finally, I find that there was a mitigating factor in her case, well known to management her "regular" work was constantly interrupted by her duties as line leader. (It should be said at this point that I reject any contention, expressed or implied, on the one hand that mistakes in the type of work Winkler performed were more likely to be excused by management, or on the "Who, it will be remembered, had passed on to his superiors information about the opening of the Union campaign brought to his attention "She did not deny she made the errors attributed to her, but she did complain that the tester compounded the difficulty by tearing the units down to a point beyond that required for the diagnosis "Decker, on the witness stand, evaluated Winkler as a worker "She's a person that if she runs out of work or something of this nature she would not wait for a foreman to come and say, 'Here' s your next job ' She would go after the foreman and say, `Where do I go from here' I would say that she would be considered that of an average worker having potential Potential , but I'm not saying potential in our business I would have to say that I do feel that in her best judgment she does what she feels is right " "Testimony designed to characterize specific rejects (of employees other than Winkler) as due to "design " errors rather than errors of workmanship was unconvincing For example , with respect to a substantial amount of spoilage done on a job by one employee , Decker testified that the problem was not her workmanship, yet, he testified that she did not follow the specifications on this job other, that mistakes in that type of work were considered to be more "vital" than those on other types The parties introduced testimony as to whether the Bendix job or other jobs constituted prototype, pilot production, or regular production work, as to whether rejects in the course of one of these, rather than either of the other two, were more or less likely to occur, and as to whether, if rejects did occur, they were more or less vital to the operations of the business if happening in the course of prototype, pilot production, or regular production work. To the extent that these questions may have materiality herein, I make the following findings: All three types of production were necessary for the continued existence of Respondent's operation, Respondent sometimes used engineering employees - as opposed to production employees - to do prototype work, but it normally used its more experienced production employees for both prototype and pilot production work, nevertheless, working on prototype (or pilot) production calls for no particular skills above and beyond those needed for regular production, in view of the critical functions performed by its products, Respondent regarded workmanship as an important factor in measuring the worth of its employees, whether on prototype, pilot production, or regular production, and finally defective workmanship - as opposed to failures due to design problems - was no more and no less likely to occur - or to be tolerated by management - in prototype (or pilot production) work than in regular production, or vice versa.) Bearing upon the validity of the reason assigned by Respondent for the discharge are the circumstances of the actual decision to discharge and the events leading up to that decision, viewed in the light of Respondent's antiunion animus First, one cannot ignore the suspicions arising from the timing Respondent's complete reposition of confidence in Winkler as an employee, followed quickly by the advent of the Union's campaign (on September 9), Winkler's demotion (September 18), her interrogation, intertwined with a supposed probing of general employee reaction - a special treatment for which she alone among the employees was singled out (September 19), and the termination of her employment (September 25) As for the managerial discussions leading up to the decision to discharge, I regard it as passing strange that two sessions were required, the second of which covered the same ground as the first, and that each of the participants (contradicting the others) sought to take major credit for reaching the decision 4' Finally, I think it significant that, in communicating the decision to Winkler, Supervisor Dave Smith expressed his regrets, saying he had been counting on her to do the winding on the Bendix job On this record, I am persuaded that Winkler would not have been the employee Respondent would have singled out to discharge for defective workmanship,': in short, that the assigned reason was a pretext "Both they, and Decker, denied that Decker played any part in formulating the decision I would have thought that he would have been consulted about the contemplated discharge of an employee who had so recently enjoyed his confidence as earlier noted However, assuming he was not involved , I find that Juliano amply filled Decker 's shoes in this respect "I have taken into consideration the testimony to the effect that, at or about this time, two non unit employees were discharged for making testing and design errors No production employee was discharged for poor workmanship (It was testified that one Janette McDuffie was discharged - for unspecified reasons - but records furnished by the company indicate that she was laid off, not discharged ) 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' In sum , on what I consider to be a fair preponderance of the credible evidence, I find and conclude that Respondent, through its agent, discharged Marlene Winkler on September 25, 1968, and thereafter failed to reinstate her, because she joined or assisted the Union, thereby discouraging membership therein F White's Layoff The Geneial Counsel contends that Elizabeth White was laid off on October 1, 1968, and was thereafter unrecalled, because of her interest in and her activities on behalf of the Union Respondent contends that she, among others, was selected for layoff because of lack of work and that she was not recalled because (1) Respondent was led to believe she was not interested in returning, and (2) jobs which she was capable of performing did not become available; it denies that union considerations entered into either the layoff or the failure to recall. White was hired by Dektronics on or about August 1, 1967 First assigned to assembling transformers for the Navy, she primarily did soldering work For a period of time, in addition to doing this work, she was helper to her supervisor (Mike Cromwell), acting as communication channel between him and the other assemblers. In June 1968, she was assigned to one of the lines over which Marlene Winkler was line leader, most of the time operating a so-called multiple winder. As has been noted earlier, White was one of the only two employees - Marlene Winkler was the other who was prone to speak up to Respondent's president, Decker, on personnel matters She was one of the two employees - Anne Hauser was the other - who originally discussed the formation of a union at Dektronics She was the employee who first established contact with a representative of the Union, on September 9, the first Union meeting was held at her home, and she was one of the six employees who signed Union authorization cards at that meeting Within the next day or so, she solicited the signatures of fellow employees on the authorization cards, and she personally procured 18 or 19 signatures, in a total work force of 56 to 60 In addition, she was the receiving agent for all cards - about 50 - signed by Dektronics employees During Decker's speech of September 11, she was one of the five employees to speak up - and the only one of these who did not express thoughts paralleling those of Decker. On September II and 12, after Decker gave his two speeches, she was the one who returned their signed authorization cards to those 12 or 13 employees who requested their return Finally, she was one of the seven employees who attended the Union meeting held on September 15. Under all the circumstances, I find that management had ample opportunity to be aware of, and was aware of, White's interest in and activities on behalf of the Union." "Knowledge of union activity may and often of necessity must be based upon reasonable inference drawn from circumstantial evidence See, e g , N L R B v Ltnk-Belt Company, 311 U S 584, 602 Also see F W Woolworth Company v N L R B, 121 F 2d 658, 660 (C A 2), Hickory Chair Manufacturing Company v N L R B. 131 F 2d 849, 850 (C A 4), N L R B. v Angwell Curtain Company, 192 F 2d 899, 903 (C A 7), N L R B v Melrose Processing Co. 351 F 2d 693, 697-699 (C A 8), N L R B v Radcliffe, et at, d/b/a Homedale Tractor & Equipment Company, 211 F 2d 309, 315 (C A 9) On or about September 20 or 21, White had a conversation with Dave Smith about the workload She expressed concern because, for example, her own work on the winding machine was giving out and, in fact, she was being given some odd jobs - e.g., assembling, soldering, and tinting wire - to perform Smith said that the company was awaiting customer approval to go ahead on other work At this, White voiced a fear of an impending layoff °° The fear proved to be well founded. On October 1, along with a number of others, she was laid off It was Dave Smith who gave her the news, he assured her that she was being laid off, not fired, and that there were no complaints about her work When she protested that there was at least one available project which could be put into operation to provide work, he said, in effect, that plant schedules did not provide for doing that work at this time He suggested that she call in on the following Friday On her way out of the plant, she again encountered Smith, who asked her if she had checked out her tools - i.e , turned in those belonging to the company and taken out her own. She said she had not - she saw no point in doing so if, as he had indicated, she would be back in the plant shortly His response- "Well, that's right, too " According to the credited testimony, I find that it is Respondent's normal policy, in making selections for layoff, to consider a number of factors, in the order of their diminishing importance the availability of the work which that individual has been performing, the availability of other work which that individual can perform; the individual's "workmanship", and his/her reliability as displayed by the record of attendance None of these is dispositive; the weighing of the factors "depends upon the circumstances " Seniority, if it plays any part whatsoever, is considered among the "circumstances." When White was laid off, there were approximately 45 production employees with less plant seniority than she had, moreover, she had never received any criticism of her work and, so far as this record reveals, she was regarded as a qualified assembler/solderer/multiple-winder- operator On the other hand, the work she was last performing had given out, and there is no evidence that other work which she could perform was available at the time Assuming that Respondent was aware of White's union proclivities, I perceive no elements of implausibility in the reasons assigned for the layoff of October I I conclude that the General Counsel has not preponderately established that White was laid off on October 1 for other than legitimate business reasons The findings as to this conversation are based upon those parts of White's and Smith's testimony which I credit White also testified that she told Smith she feared that the union people would be laid off , that he asked who they were , that she told him, and that she added that Winkler and she would probably go first since they had the "biggest mouths " This part of her testimony is so implausible that I do not credit it "Decker (after testifying that he had nothing to do with White's layoff) said that one of the main reasons for the layoff "would have been" her workmanship, but he failed to state in what respects her workmanship was deficient White credibly testified that Sid Weaver, Dektronics' quality control supervisor , had characterized her soldering as the best he had seen go out of the plant (He himself was not called as a witness ) Smith, her supervisor, testified that he had never heard this and that he did not consider White a qualified solderer, the basis for his opinion being that he was aware of rejects attributable to her, both firsthand and from William Martin, on the other hand he testified that the important factor in her selection was "workload " rather than "workmanship" and Martin testified that he "had spoken to White" about rejects On balance - and considering the reject situation in the plant - I have come to the DEKTRONICS, INC. 99 The remaining question is whether Respondent's failure to recall White was based upon union considerations With respect to the selection for recall among laid-off employees, I find that Respondent's normal policy accords with that in deciding upon selections for layoff Pursuant to instructions, White called the plant on the Friday (October 4) following her layoff Smith told her to call in next Wednesday (Later that day, when she picked up her paycheck, she apprised Hilda Kasky, corporate secretary and office employee, that she had left her tools at the plant ) On Wednesday (October 9), she called again and was told to call back on Friday, there is no indication that she did (On Monday or Tuesday, the 14th or 15th, fearing the loss of her personal tools if they were neglected too long, she went to the plant and picked them up after so notifying a supervisor ) On Wednesday (October 16), aware that a number of the laid-off employees had been recalled, she telephoned again, Smith said that business had not yet picked up and suggested she try again on Friday She called Friday (October 18), Smith said, "They're kind of talking about you today Give me a ring next Wednesday "16 On Tuesday, October 22, White attended the meeting (referred to earlier) which the Labor Board had set up for the holding of a hearing in the pending representation case In connection with the discussions which led up to the execution of an agreement upon an election, the company produced a list of unit employees then working. The names of "former employees, Marlene J. Winkler, Elizabeth White, and Judith Russell" 17 were separately listed as "able to vote subject to challenge " The attorney for the Union, at that time, asked whether Respondent was willing to recall Winkler and White Decker merely "snorted," a reaction which I interpret as meaning, "You know better than to ask that at this time and place " White did not call Smith again. The charges alleging that the termination of her employment was unlawful were filed on November 6 and 8 On this record (to the extent it is relevant), I find that, contrary to its contention herein, Respondent was aware of White's desire for recall at all times from the date of her layoff. On or about November 5, work on the multiple winding machine which White had been operating through most of the past 3 or 4 months was resumed, except that the new work differed from that which she had been doing in that the wire used was finer and the operating tolerance was closer. The position of multiple winding machine operator was filled by the promotion of an employee from some other operation. Also, during the 3 months following the layoff, a number of laid-off employees were recalled and a number of job applicants were newly hired. Among the first group - all of whom had been laid off at or about the time of White's layoff - were Anne Hauser (recalled on October 4), Elizabeth Wilson (October 8), Virginia Cheyney (October 15), and Sally Currell (November 12) Respondent contends that they were qualified to do and were recalled to do work which White had not performed and/or could not perform. The supporting testimony was to the effect that Hauser was recalled because of a resumption of marking, a task for conclusion stated in the text "I do not credit Smith's testimony that White called him only twice - dates unspecified - and that he did not recall receiving any messages from her "This record contains no other mention of the last named which she was uniquely qualified, similarly, Wilson was recalled for the fine winding of miniature toroids, her specialty, Cheyney - who had the same qualifications as White except that she had not operated the multiple winder - was recalled, not because of the resumption of any type of work for which she was uniquely qualified, but because (testified Decker)" she would take any assignment, however "dirty," without complaint, and Currell was called back to help Hauser (but there was no evidence here of unique qualification) The hiring of new people began on October 25 At least 6 of the 14 new hires were assigned to the section from which White had been laid off On November 27, Alice Howard was hired, according to testimony introduced, she had "experience as a solderer" and was hired as an assembler On December 4, Kathleen Davis came on board, "according to her application," she was a qualified assembler - "more qualified than Mrs White," with "a background in electronic work " Margarette Allman was hired 2 days later, she was "relatively unskilled but . was hired long after [Smith] assumed Mrs White was not interested in coming back " On December 9, Sandra Kicklighter was hired as an assembler, she had graduated from a soldering school and had soldering experience, at the time of her employment, Smith - without reason appearing in this record - classified her as having "an aptitude for winding," and, not long thereafter, she was transferred to winding Pauline Demastus, who, like Davis, had experience as a solderer and had a background in electronic work, was hired on December 16. Finally, on December 17, Sandra Adkins went to work for Respondent, her application showed her to be a "qualified NASA solderer," a distinction not possessed by Elizabeth White - or by any other of the new hires above listed During the period relevant hereto, Respondent advertised for help in the Orlando Sentinel, a daily morning newspaper with a substantial circulation throughout the State of Florida There were at least seven different advertisements, running an aggregate of 40 times during the last 2-plus months of 1968 On or about October 29, and on three occasions thereafter, Dektronics ran an advertisement for experienced solderers, coil and transformer winders, and epoxy molders. Furthermore, I credit testimony by White to the effect that, during the next 3-1/2 weeks, at least two more advertisements appeared in the Sentinel, each appearing a number of times, in which Respondent sought, among other things, experienced solderers, transformer assemblers, and winders " Decker testified that the company often advertised, not to hire immediately, but as "feelers" to build up a file of applicants for the future and to help determine its resources in fulfilling potential contracts, to his knowledge, none of the 14 persons hired during the period in question was located through this series of ads I do not credit this testimony to the extent that it purports to show "The testimony proffered indicated , and I find, that, although Decker had had nothing to do with the selections for layoff, he did involve himself in the selections for recall, in several cases , it was he who initiated the action "Decker, for Respondent , testified as to certain of the advertisements In reliance upon billings by the Sentinel produced from company records, he testified that, on this or that occasion , Respondent advertised for foremen, technicians , caretakers, and machinists - for none of which positions White qualified But I find that the positions he named taken from the first few words of each of the advertisements in question , as they appeared in the billings - were not all of the positions appearing in the respective advertisements 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the jobs advertised were not then available, the credited testimony as to new hires shows otherwise I find, on this record, that work which White was qualified to perform - soldering and transformer winding was available at least by October 29, the date of the first advertisement 50 As for soldering, I have found that Respondent regarded her as qualified; as for winding, (1) if a hand -winder was being sought, I am persuaded that, under normal circumstances, a person of White's experience would have been given the opportunity to try the job, and (2) if the reference in the advertisement was to mechanical multiple winding - a more likely interpretation in view of the reactivation of White's old machine on or about November 5 - I am persuaded that, under normal circumstances, Respondent believed White could have performed satisfactorily even though the job differed somewhat from her old one I find, moreover, that White was believed by Respondent to be qualified to perform work - as a solderer, transformer assembler, or winder - for which Respondent advertised vacancies during virtually the entire month of November And, finally, I find that White, in Respondent's opinion, could have performed the work which was assigned to the new employees hired beginning on November 25 In sum, on what I consider to be a fair preponderance of the credible evidence, I find and conclude that Respondent, through its agents, failed to recall Elizabeth White from layoff status on and after October 29, 1968, because she joined or assisted the Union, thereby discouraging membership therein Upon the foregoing factual findings and conclusions, I come to the following THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act I shall recommend that Respondent offer Marlene Winkler and Elizabeth White full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings suffered by them because of Respondent's acts, by payment to each of them of a sum of money equal to the amount she would have earned from the date of her discharge to the date of Respondent's offer of reinstatement, less her net earnings during said period Backpay shall be computed on a quarterly basis with interest at a rate of 6 percent per annum in the manner heretofore established by the Board As the unfair labor practices committed by Respondent are of the character striking at the roots of employees' rights safeguarded by the Act, I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following. RECOMMENDED ORDER CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3. By discriminating in regard to hire and tenure of employment by discharging Marlene Winkler on or about September 25, 1968, and failing and refusing to reinstate her thereafter, and by failing to recall Elizabeth White from layoff status on and after October 29, 1968, because they joined or assisted the Union, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4. By the foregoing conduct, by threatening to terminate operations rather than execute a collective-bargaining contract with a labor organization, and by interrogating an employee about her interest in a labor organization, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof 5. The foresaid acts are an unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6 Except for the foregoing, Respondent has committed no unfair labor practices under the Act "In so finding, I accept Respondent 's explanation of the reasons for the prior recall of Hauser, Wilson, and Cheyney Dektronics, Inc , of Altamonte Springs, Florida, its officers, agents, successors, and assigns, shall. I Cease and desist from (a) Discouraging membership in a labor organization by discriminating in regard to hire, tenure, or other conditions of employment (b) Threatening to terminate operations rather than execute a collective-bargaining agreement with a labor organization (c) Interrogating any employee about his or her interest in a labor organization (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from any and all such activities 2 Take the following affirmative action which I find will effectuate the policies of the Act. (a) Offer Marlene Winkler and Elizabeth White reinstatement to their former positions even though this may necessitate displacement of a present incumbent (or, if their former positions no longer exist, to a substantially equivalent position), without prejudice to their seniority or other rights and privileges. (b) Make each of them whole for any loss of earnings suffered by reason of the discrimination against her, in a manner set forth in the section above entitled "The Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other DEKTRONICS, INC. records necessary to analyze the amount of backpay due and the right of reinstatement. (d) Post at its place of business at Altamonte Springs, Florida, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by it 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 any other material (e) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 52 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not heretofore remedied in this Recommended Order. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial ,Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: 101 WE WILL NOT discourage membership in Communications Workers of America, AFL-CIO, or any union, by discharging any employee or failing to recall any laid-off employee because of his or her membership in or assistance to that Union; WE WILL NOT threaten to close down the plant rather than sign- a contract with a union, and WE WILL NOT ask any employee about his or her interest in a union. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their rights to organize, to form, loin, or assist a labor organization; to bargain collectively through a bargaining agent chosen by themselves; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities WE WILL offer Marlene Winkler and Elizabeth White their former or substantially equivalent jobs (without prejudice to seniority or other employment rights and privileges) and WE WILL pay them for any loss suffered because of our discrimination against them. All our employees are free to become or remain or to refrain from becoming or remaining members of any labor organization DEKTRONICS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711