Moric Precision Machining Co.

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moric Precision Machining Co. and International Un- ion, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Cases 7- CA-7946 and 7-RC-9910 April 28, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On November 30, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled pro- ceeding, 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 at- tached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint. Finally, the Trial Examiner found that certain conduct of Respondent after the petition in Case 7-RC-9910 was filed inter- fered with the election and recommended that the elec- tion be set aside. As he recommended a bargaining. order issue to remedy the unfair labor practices, the Trial Examiner further recommended that the petition in the representation proceeding be dismissed. There- after, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case,' and hereby adopts the findings,2 conclusions, and recommendations' of the Trial Examiner, as modified below.' Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions and brief, adequately presents the issues and positions of the parties. 2 In the absence of exceptions thereto, we adopt pro forma those findings of the Trial Examiner in which he found no violation of the Act. Despite his findings that employee Raymond Elzerman's layoff was economically motivated, the Trial Examiner nevertheless recommended that Elzerman be placed on a preferential hiring list in an effort to remedy an 8(a)(1) violation. Inasmuch as we believe that the cease-and-desist order will adequately remedy the 8(a)(1) violation involving the use of Elzerman's name, we shall delete that part of the Trial Examiner's recommended Order which provides for the placing of Elzerman on a preferential hiring list. In adopting the Trial Examiner's recommendation with respect to the issuance of a bargaining order, we find that the Respondent's unfair labor practices were so severe and pervasive that the invocation of traditional remedies affords no guarantee that an election will provide a more accurate index of the employee sentiment than the authorization cards executed by a majority of employees. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that the Respondent, Moric Precision Machining Co., Warren, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified. IT IS FURTHER ORDERED that the election in Case 7-RC-9910 herein be, and it hereby is, set aside and that proceeding is herewith dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL recognize and bargain with the Inter- national Union, United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), as the bargaining representative of our employees. WE WILL reimburse the following employees for wages lost because of their layoffs in April and May 1970: Dennis Taepke, Michael Yuhas, Har- old Shake, David Kadrovach, Sr. WE WILL NOT question any employee as to his union membership or activity or as to the union membership or activity of any of their employees. WE WILL NOT threaten employees with reprisal for engaging in union activity. WE WILL NOT tell employees that an em- ployee's union activity played a role in determin- ing adverse personnel action taken with respect to him. WE WILL NOT convey to employees the impres- sion that we are keeping union activity under sur- veillance. WE WILL NOT condition an employee's employ- ment or recall from layoff on his abandoning union activity. WE WILL NOT discriminate against any em- ployee with respect to his hire or tenure or terms and conditions of employment because he engaged in union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to join or assist a labor organization. MORIC PRECISION MACHINING CO. (Employer) 190 NLRB No. 25 MORIC PRECISION MACHINING CO. 155 Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, consolidated by order of the Regional Director and heard at Detroit, Michigan, on September 1 through 3 and October 19, 1970,' presents questions as to whether Respondent, herein called the Company, engaged in various acts of inter- ference, restraint, and coercion (including discriminatory dis- charges and layoffs) which violated Section 8(a)(1) and (3) of the Act, and unlawfully refused to bargain with the Charging Party, herein called the Union, thereby violating Section 8(a)(5) and (1) of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and by Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Michigan corporation engaged at War- ren, a suburb of Detroit, in machining precision parts and related products for the aerospace industry, annually ships products valued in excess of $50,000 to points outside the State, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE LABOR PRACTICES Board. This culminated in a consent election held May 8, which the Union lost, 24 to 9. Between those two dates, however, Moric had laid off or discharged a number of em- ployees (allegedly for discriminatory reasons) and had also allegedly engaged in interrogation, threats, and implied sur- veillance of employees in an effort to defeat the Union. In essence this case turns on whether Moric was guilty of those alleged violations, and also whether a bargaining order should issue in favor of the Union which had obtained au- thorization cards from 20 employees at the time it requested recognition. Two factors distinguish this case from the typical Gissel-type litigation. One, stressed by the Company, is that the industry of which Moric was a part was encountering financial difficulties during the period in question, and that the Company's own business decreased markedly. In April 1970 the Company had 42 employees, but that number de- creased to 36 in May, to 28 in July, and to 23 in August. The second factor is the personality of Moric himself, the Com- pany's main witness. Moric, a Yugoslav who came to the United States 14 years ago, and who speaks adequate but somewhat broken English, is an unusually voluble and vola- tile person. His present foreman, Smith, testified that Moric called him a "troublemaker" several times and that Moric would lose his temper at other employees as well. Moric's difficulties in this case, however, were not limited to ill-con- sidered words uttered in the shop, but extended to similar difficulties on the witness stand. For example, he testified very positively that he did not know of any union activity among his employees until April 11 when he received the letter requesting recognition. But three witnesses, Elzerman, Yuhas, and Glissman, attribute to Moric statements that indicate his knowledge of union activity on April 9 (Elzer- man) or 10 (Yuhas, Elzerman, and Glissman). I am inclined to credit all three of those witnesses, and I have no doubt whatsoever as to the credibility of Glissman, who said that on April 10 Moric asked him if he had signed a union card, and then went on to say that he (Moric) knew those who signed them. Confronted as I am by false tes- timony by Moric on so critical a point as when he first learned of the union activity, I have grave difficulty in accepting his testimony in any respect. On the other hand, I was on the whole favorably impressed with the testimony of Smith, and I also am inclined to credit certain parts of Moric's testimony which seem inherently consistent with the facts or with the admissions of witnesses for the General Counsel. I go into the matter at this length at this point, however, to emphasize that the principal actor in this drama not only lacked stability in dealing with the employees but also cannot be trusted in the account he rendered from the witness stand.' A. Background, Chronology, and Preliminary Observations The Union, which in 1968 had sought to represent the Company's employees but had lost an election, renewed its organizing efforts in April 1970. Shortly before it reappeared on the scene several of the employees had played a leading role in other concerted activities, including an effort to obtain a wage increase and a protest over a discharge. Both the concerted activities and the union activity aroused the dis- pleasure of Nick Moric, the president of the Company and its sole operator. The Union requested recognition on April 10,2 and also on that day filed a petition fqr certification with the ' The unfair labor practice case originated with a charge filed May 20, 1970, and a complaint issued July 9. The representation case was initiated by a petition filed April 10. Except where otherwise specified, all dates herein refer to the year 1970. ' The parties have stipulated to a production and maintenance unit with B. The Union Obtains Authorization Cards and Requests Recognition The Union by April? had signed authorization cards from 20 of the 33 employees in the bargaining unit, reciting that the employee "authorize[s] UAW to represent me in collec- tive bargaining." The cards, totally free of ambiguity, are valid on their face. One employee, Glissman, testified that he told employee Dennis Taepke, the in-plant organizer who solicited his signature, "Well, I will sign one so you can get the usual exclusions. ' My disinclination to credit Moric as a witness rests not only on the palpable falsehood referred to above but also on my observation of him as a witness at the trial. Compare the discussion of this problem in N.L.R.B. v. Dinion Coil Company, Inc., 201 F.2d 484, 487-490 (C.A. 2), with the dissenting opinions in Mark Twain Marine Industries, Inc., 185 NLRB No. 101, and Peoples Outfitting Company, 184 NLRB No. 47. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an election but I am not in favor of the Union." Employee Carl Yute testified that he signed a card, that it was given him by his father (who also signed a card), that his father told him the card was for an election, and that both he and his father were opposed to the Union. In my view Glissman's card cannot fairly be counted in determining the Union's majority, but those of both Yutes are valid under N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606-609. Even if I am in error as to both Yutes (the father did not testify), the Union would still have a majority, 17 out of 33. In short, I find that as of April 7 the Union held a majority of valid cards.' The Company, upon receiving the request for recognition, did not accede thereto, but, mindful of its success in the 1968 union campaign, consented to an election, which was held May 8 with the Union losing, 24 to 9. Under the Gissel case, the question whether the Company's conduct was or was not an unlawful refusal to bargain, and should or should not lead to an order directing it to recognize and bargain with the Union, turns on the character of the Company's conduct between the request for recognition and the holding of the election. We turn, therefore, to a review of that conduct. C. Interference, Restraint, and Coercion I find that the following conduct of Moric (and in one instance of his superintendent, Tom Sherman) established by testimony which I credit, constituted interference, restraint, and coercion violative of Section 8(a)(1) of the Act: On April 9, Moric asked employee Raymond Elzerman if he had signed a union card. On April 10 after laying Elzer- man off, Moric stated to employee Yuhas, within Elzerman's hearing, that one of the reasons Moric laid off Elzerman was that Elzerman had signed a union card . On the same day Moric said to Yuhas that he (Moric) knew who "all the union troublemakers are," called employee Glissman to the office to ask why Glissman signed a union card, and told Glissman that he (Moric) knew who had signed cards. 2. On or about April 14 Moric asked employee Williams for the name of the employee who had given Williams a union card and said he would discharge anyone who signed a card. 3. About a week after the cards were signed, i.e., about April 13, Moric asked employee David Kadrovach, Sr., why Kadrovach had not told Moric about the "union trouble," and added that he intended to discharge employee Dennis Taepke for causing the "trouble." On another occasion Moric told Kadrovach, "I know who all the troublemakers are. They are going to be sorry." 4. On April 27 Moric told employee Yuhas that Moric had "beaten the Union before and you will be sorry you got involved," that Taepke had started the "union trouble," and that Yuhas was being mislead by employees Taepke and Shake who were "troublemakers" (and whom, as we shall see, Moric laid off the next day). 5. On May 11 in the course of interviewing Kadrovach, Sr., concerning his return from work after a layoff, Thomas Sher- man, superintendent of the Company, asked Kadrovach, "If I bring you back, will there be any more discussions about overtime" and "Will there be any union discussions" Ka- drovach answered in the negative to both questions and was then "hired back." (My reasons for crediting this version of the conversation, which Sherman denied, are discussed below in connection with the Kadrovach layoff.) I find that Sher- man in effect conditioned Kadrovach's return to work on the ' The Company's brief states that "many of the cards were obtained under the pretext of an election," but does not indicate by name which card it challenges. latter's promise not to engage in "union discussions," and that the Company thereby violated Section 8(a)(1) of the Act. The complaint alleges that Moric threatened to cease doing business at the plant if the Union prevailed in the election. As to this, there is testimony by one employee that Moric threat- ened to move to Arizona, by another that Moric said he owned the machines and would move to another plant, and by a third that Moric said he leased the machines and would give them up. Notwithstanding the inconsistency of the last two statements, it is conceivable that Moric made both of them. On the other hand, they are inconsistent, and as to Arizona the evidence as a whole seems to establish that Moric mentioned opening a shop there as an addition to, rather than in lieu of, his Michigan operations. I am inclined to find a failure of proof in this area. In any event the other violations found in this proceeding warrant a broad cease and desist order, so any future threats which Moric may utter in this area would be violative of the order, whether or not he made similar threats in the past. D. Alleged Discriminatory Discharges and Layoffs 1. Raymond Elzerman: As already noted, the Company laid Elzerman off on April 10, the day after Moric asked Elzerman if he had signed a union card. Shortly after the layoff Moric told Yuhas one of the reasons for the layoff was that Elzerman had signed a union card. However, the record establishes that Elzerman's job was lapping and honing, that the amount of this work which the Company did was gradu- ally being reduced during the later stages of Elzerman's em- ployment, that no one has been hired in his place, and that the Company does not now have any work of that nature. Basically, the lapping work was performed on "wobble plates" for the Sundstrand Company, which had been Mo- ric's principal customer, but whose business with Moric dwindled sharply in the early months of 1969, as Moric finished outstanding orders but received no new ones. Under all the circumstances I find that the motivation behind the layoff of Elzerman was economic and that Moric took advan- tage of the situation to express his hostility to the Union. In the light of Moric's remarks at the time, I shall recommend that Elzerman be placed on a preferential hiring list in an effort to remedy the violation of Section 8(a)(1) inherent in Moric's statements, but I do not find that Elzerman's union activity had any real connection with his layoff. 2. William Glissman.• Glissman, an inspector, was laid off on April 10, the day Moric asked him why he signed a union card, and was recalled to work on April 28. Glissman himself testified that he was aware of the slackening of the work, and that he was called back as soon as a certain anticipated order materialized. Moric testified that he had to lay off one inspec- tor and, left to his own devices, would have retained Glissman over one Sandor, but gave in to his general superintendent, Tom Sherman, who insisted on retaining Sandor over Gliss- man. This version is corroborated by the generally credible Ron Smith. There is no suggestion that Sherman was moti- vated in this matter by antiunion considerations. I therefore find no unlawful discrimination against Glissman. 3. William Skoog: Skoog, a lathe operator, was laid off from April 15 to June 15. As in the cases of Elzerman and Glissman, there is considerable evidence which would sustain a finding of discrimination. The day before the layoff, Moric while walking past Skoog's machine pointed at Skoog and said, "He signed a union card." Also, Moric on April 10 told employee Yuhas, within the hearing of employee Elzerman, that Skoog was a bad influence on Elzerman, and on April 27 told Yuhas that Skoog was "mad" over being denied a wage increase and therefore "wants to get the Union." MORIC PRECISION MACHINING CO. 157 Skoog's layoff however was effected not by Moric but by General Superintendent Tom Sherman. Skoog's own tes- timony describes the episode as follows: Q. (By Mr. Roumell) Mr. Skoog, who laid you off? A. Tom Sherman. Q. Would you tell exactly what Tom Sherman said to you at the time he laid you off? A. When I finished the job I was on I went up to him and I told him, "I am all done, what you got next" He says "I don't know I will have to look." So he walked all over the shop and looked around. He walked in the next office and come out. I come walking over by my machine and he came down the aisle and he says, "We don't have a job in the house and there ain't none coming in." So I said, "what do you want me to do" He says, "well," he hesitated for awhile, and he says, "Well I have to lay you off." I said, "okay," I says, "Check my tools out." So he come over and he went through my tool- boxes and checked them out. I locked them up and I went over and I got a hand pushcart. He helped me set them on the cart. I started walking out the back door by the timeclock there. I backed my car up and as I walked out the door Nick come running down the aisle and he says- Q. I am asking you what Tom Sherman said to you, Did Tom Sherman say anything else? A. No, he says, "You are laid off." TRIAL EXAMINER:... Now you started to tell us when you went out of the shop Moric came after you and at that point Mr. Roumell pointed out that you had already answered his question. I am curious; what did Moric say? WITNESS: I was near the door and he come up and he says, "Where are you going?" I said, "Well, you laid me off." He says, "I didn't lay you off." I said, "you didn't," I said, "Tommy laid me off." So he left it go at that. So I went and I put my tools in my car. I come back in the shop and I was gonna say goodbye to the guys and that I got laid off. As I was walking down the aisle I come up to Dave and Dennis Teapke and I don't recall which one it was, either Dave or Dennis, they said, "Nick just tole me you quit." I said "Absolutely not. I did not quit, Tom Sherman laid me off." So Nick was kinda down the aisle a little ways and I hollered at him, and Nick come back, and I said, "What's this you are telling everybody I quit" I said, "I didn't quit. Tommy laid me off." He says, "Well you leave your tools here." I said, "Why should I leave my tools here" I says, "I don't know how long I am gonna be laid off, a week, a month, two months, six months a year, I don't know." Moric confirmed Skoog's testimony, stating that the layoff came as a surprise to him (Moric), but also noting that Skoog was less competent than the retained lathe operators, at least one of whom, Williams, had openly told Moric that he had signed a union card. Under all the circumstances I find that Skoog's layoff was attributable to the Company's economic problems rather than to his union activity. 4. Michael Yuhas: On April 14 Moric observed employee Yuhas wearing a union insignia, and "just shook his head." The next morning at the start of the workday Moric came to Yuhas and said, "Mike, my good friend, I will have to lay you off. You can see for yourself there is not much work here. I will have to lay you off." Later that day Moric received a written communication from the Union advising him that employees Yuhas, Taepke, and Shake were active in the or- ganizing campaign. Yuhas (who had also been laid off for 2 months the preced- ing summer) was recalled to work on April 27, but was laid off again from May 5 through May 8, and again in the latter part of May. When he returned to work on June 4 he ascer- tained from General Superintendent Sherman (Moric was out of town) that the Company planned to lay him off again after he finished the short job he was called in to do, at which point Yuhas quit, as he "felt it was quite obvious that the Company did not want to give me steady employment." General Coun- sel amended the complaint, which had originally alleged with respect to Yuhas that he had been discriminatorily laid off, to add an allegation that he was "constructively discharged" for union activity. Yuhas was a jig grinder, but when work of that nature became slack he was assigned to cutter grinding. Moric had three jig-grinding machines, but Yuhas for some time was the only man steadily employed in jig grinding. A second ma- chine was operated by one Willie Bryant, whose employment was highly irregular as the following summary shows: Date Bryant recalled Date laid off May 1, 1968 (hire) May 20, 1968 June 2, 1968 June 17, 1968 February 16, 1969 March 11, 1969 April 3, 1969 June 22, 1969 April 1, 1970 April 5, 1970 July 22, 1970 July 25, 1970 August 7, 1970 August 7, 1970 August 12, 1970 August 15, 1970 The cutter-grinding work which Yuhas performed was on the Company's own machines. At one time Moric sent out all the cutter-grinding work. To quote Yuhas' testimony: Before he purchased the cutter grinders Nick Moric sent it all out. When he bought the machines he said this would be used as a fill-in whenever work was slow be- cause it had fluctuated many times. He said when it was slow I could fill in and sharpen the cutters in the shop. That way it would keep me working. Yuhas testified that his layoffs occurred when there was no jig grinding to be done but "cutter grinding there always was."5 As late as April 10 Moric in telling Yuhas of Elzer- man's layoff added, "Don't you worry. We keep you. We always find work for you." Also, on April 27 in a conversa- tion between Moric and Yuhas when the later returned from layoff, Moric said, "You could have a lifetime job here if you only thought the right way," and when Yuhas asked if Moric was going to keep him working there for any length of time, Moric replied, "Well, that all depends on you." As noted above, when Yuhas was laid off on May 5 he was in the midst of cutter grinding. On May 24, however, when he was next laid off, he had just finished a surface grinding job, when Foreman Smith said, "Mike, I am going to have to lay you off. I don't have any work," and Yuhas replied, "I have been expecting that because I can see you don't have any work." I find that when Yuhas was laid off on April 15 (the morn- ing after Moric learned of his union activity, and in the same week in which Moric had assured him he need not worry about a layoff), the Company was motivated in substantial part by Yuhas' union activity. I further find that Yuhas' continued adherence to the Union caused his layoff on May 5, when he was sent home in the midst of work until after the May 8 election. However, I find that the layoff of May 24 was the result of economic conditions, that the projected layoff after the June 4 recall was likewise not discriminatory, and ' Yuhas was in fact at work on the cutter grinder on May 5 when he received his second layoff. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Yuhas' decision to quit rather than to face such intermit- tent employement was not a constructive discharge. 5. Daniel Kelly: Kelly was laid off April 22 and recalled to work on May 4. In March, Kelly had been among the more vocal of the employees at two meetings with Moric (one to request a wage increase and the other to protest a discharge), and there is some evidence that Moric felt Kelly was among the "old guys" who were "causing trouble." However, the layoff on April 22, which was accomplished by General Su- perintendent Sherman after Kelly had finished a job, appears to be unrelated to either concerted or union activity. Accord- ing to Kelly's friend, employee Williams, Moric told Wil- liams, a few days before Kelly returned to work, to "tell Danny to forget all about the Union and bring his tools in and start working." The statement (denied by Moric, but I credit Williams' version)' falls short of establishing that Kelly's layoff is attributable to his union or concerted activity. 6 and 7. Dennis Taepke and Harold Shake: Taepke and Shake were both laid off on April 28; the former was recalled May 20 and the latter on May 11. Moric repeatedly stated that Taepke was the leader of the union movement, referred to him as a "troublemaker," and ruefully observed to another employee that after Taepke had led the organizing efforts in 1968 and had then left Moric's employ, Moric had rehired him and he had started union trouble all over again. Shake, who was in fact the instigator of the current union movement, was likewise identified by Moric as a union leader. Indeed, the day before Moric laid off Taepke and Shake he expressly named them in a conversation with Yuhas in which Moric referred to the union people who were a bad influence on Yuhas. Earlier Moric had repeatedly said that it was the older employees in point of service who were causing labor unrest and that in the event of a layoff they would be the first to go. The "older" employees were Taepke, Shake, Dave Ka- drovach, whose layoff is discussed below, and Herman Hohl, who was not laid off. At the time Taepke and Shake were laid off, other em- ployees in their department were working substantial amounts of overtime. According to Moric, he laid them off because they had completed the particular jobs to which they were assigned . He further testified that Taepke and Shake had expressed an unwillingness to work on a particular lage ma- chine, then being operated by one Ferri, who had been em- ployed less than 2 months. The record establishes, however, that Taepke had never refused to do that work (although it is clear that he preferred not to do it) and that Shake's request for relief had come many months before, after a long stint on the machine had caused him some leg difficulty. Clearly, Moric made no effort in April 1970 to inquire if either Taepke or Shake would take over the large machine in preference to a layoff. Also, at the time of the layoff of Taepke and Shake, the Company in that department retained many employees other than Ferri who were junior to Shake (Groedl, Kirst, Plodzik, Rebner, and George Yute), two of whom were also junior to Taepke. To be sure, the Company emphasized that it made no effort to follow seniority in layoffs, but on the other hand there is unequivocal testimony from Moric himself that two of the retained men, Plodzik and Bognar, were not as capable as Shake or Taepke. Moric testified that he preferred not to move men from one machine to another, and laid men off when their particular job was done rather than transfer them to another job in progress. The record establishes, how- ever, that experienced operators such as Shake and Taepke ' Kelly's version of what Williams said to him is somewhat different. According to Kelly, the message relayed by Williams was that Kelly could return if he refrained from voting in the election. could pick up a new job with only a few minutes of "break-in time." The Company's brief emphasizes that Shake and Taepke were the last to be laid off, and that Shake was recalled in 2 weeks (before Skoog and the elder Kadrovach, but after the election). This is a factor to be weighed, but under all the circumstances establishes nothing more than that Moric did in fact wait until they had finished a particular assignment before laying them off, and recalled Shake when a particular need arose. The question is whether their union activity played a significant role in their layoffs. Considering not only the men retained but also Moric's statements to Yuhas the day before the layoffs of Tapke and Shake in which he iden- tified them as bad influences on Yuhas and accused Taepke of starting "union trouble all over again," I am satisfied that their layoffs were occasioned in substantial part by Moric's resentment of their union activity. 8. David Kadrovach, Sr.: The elder Kadrovach was laid off from May 4 through May 18. He had left work after Wednes- day, April 29, to go on a fishing trip. According to Ka- drovach, he told Moric he would return to work on Tuesday, May 5, but Moric's and Sherman's testimony is that they did not expect Kadrovach back until May 11. Moric further testified that the job on which Kadrovach had been working was urgent, and for that reason Moric summoned Daniel Kelly back from his layoff to work on the job, wiring Ka- drovach that he was laid off. Kadrovach, a highly competent workman, had a somewhat closer relationship with Moric than some of the other em- ployees; indeed, Moric on one occasion berated his "friend" because he "didn't tell [Moric] about union trouble." Moric confided in Kadrovach that he (Moric) knew "who all the troublemakers are." Moric also complained to Kadrovach that the latter was discouraging men from working overtime. The election took place on May 8, during Kadovach's layoff. He came to the plant to vote that day, saw Moric, and asked why Moric had laid him off. Moric attributed the layoff to lack of work, but when Kadrovach challenged that fact, Moric replied, "I don't care to discuss it. When I got more millwork, I will call you back." The following Monday, May 11, Kadovach again asked Moric if he could return to work. Kadrovach's testimony continues: A. He said "Under no circumstances. You caused me trouble. I like your work, your are the best producer I had and made me the best money" but then he says, "The fellows tell me if I get rid of you I get rid of the trouble." I said, "Bring me these fellows or take me to these fellows that accuse me of this and I would like to talk to them." So as of then I talked to Moric, I wanted my job back. I wanted to find out how I was accused of being a trou- blemaker. So he absolutely refused. He says, "I would never take you back under any circumstances unless I go out and ask the people in the shop if they want you back." I says, "I don't want to do that, I don't want to crawl." So then we went into the main office and he called Tom Sherman and the about to be new foreman. Q. Who was this about to be new foreman? A. Ron Smith. So he left, he went out in the shop and then Tom said to me, he asked me, he says to make policies in regards "If I bring you back will there be anymore discussions about overtime" and I said no. He says, "Will there be any union discussions," and I said no. Ron Smith at the time said that he had told Nick that he had made a mistake in letting me go and he would have me back if it was up to him the next day. So then Tom says, "Okay, you are hired back," and I said "What if Nick disagrees with you?" He says, "Don't worry MORIC PRECISION MACHINING CO. 159 about that I will take care of that ." I says "Okay," I thanked him and I left. Sherman testified that he, Kadrovach, and Smith had a conversation on May 11 , but he denied making the remarks which Kadrovach attributed to him . According to Sherman, he simply told Kadrovach to come back the following Mon- day, May 18, as Sherman expected he would have work for Kadrovach by that time although none was available the morning of May 11. For various reasons I credit Kadrovach's version of the interview. In addition to the fact that I was favorably impressed with Kadrovach's demeanor as a witness (see fn. 3, supra), I note that Smith, who is now the Company 's foreman, was present during the conversation in question but did not testify con- cerning it. The Company was placed on ample notice that Smith's testimony would be relevant (see Trial Examiner Exhibits 1 and 3 , and transcript, p. 566), and its failure to adduce testimony from him on this matter warrants the infer- ence that his testimony would not have supported the Com- pany's position. See Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226; N.L.R.B. v. Elias Bros. Big Boy, Inc., 327 F.2d 421 , 427 (C.A. 6); note, 5 ALR 2d 893 , 896, 907-908, 909-911 . Finally, I do not regard Sherman as a credible witness. For example, Moric made several references to his complaint that Kadrovach tried to get the men not to work overtime. It is all but inconceivable that Moric never men- tioned this to Sherman , whom Smith called Moric's "right hand man," and whose influence in the shop is apparent from Glissman's case as well as that of Kadrovach . Kadrovach admitted that he had a "running discussion with Nick Moric about overtime." Yet Sherman professed never to have heard of the problem. I also note an inconsistency between Sher- man's testimony and Moric's in that Sherman contended the "pressure" on the Kadrovach job came after the latter left on his fishing trip, whereas Moric testified the pressure an- tedated Kadrovach's departure, but I am uncertain as to which of the two is telling the truth . Finally, I discredit both Sherman and Moric that they did not expect Kadrovach back at work until May 11. If this were true , they would have had no reason to notify him by telegram on May 4 that he was then laid off, but would have waited until later in the week, particularly as they were expecting material which might have arrived in time to avoid the layoff. The fact that they recalled Kelly to work on the job Kadrovach had left unfin- ished might show they had no work for Kadrovach on May 4, but would not explain their wire a week before they "ex- pected" Kadrovach to return.' The issue in Kadrovach's case is whether Moric in laying him off was motivated by Kadrovach's union or concerted activity. As noted, I credit Kadrovach's testimony that he expected to return to work on May 5 and that he had so advised Moric. Even if Moric misunderstood the date on which Kadrovach intended to return (which I regard as un- likely, particularly as the election was scheduled for Friday, May 8), I find from Sherman's statement to Kadrovach at the time of their interview preceding Kadrovach's return to work that the Company was aware of and resented Kadrovach's ' It may well be that Muric and Sherman felt that Kadrovach , an ardent fisherman , would remain at his sport and not return for the May 8 election if he were notified as early as May 4 of his layoff. As noted above, in recalling Kelly the Company attempted to get him to "forget all about the Union" or refrain from voting. Also Moric testified that he wired Kadrovach on May 4 to tell him of his layoff "so he might stay longer on the fishing trip." This speculation as to the motive for wiring Kadrovach on May 4 is not, of course, essential to my resolution of credibility which rests primarily on Kadrovach's demeanor, secondarily on the failure of Smith to deny Ka- drovach's version, and finally upon my doubts as to Sherman 's candor. support of the Union and that this played a significant role in the decision to lay him off. 9. David Kadrovach, Jr.: The younger Kadrovach was, laid off May 5 and has not been recalled to work . Like many others, he wore a union insignia in the shop where Moric saw it. About a week before the layoff, Moric in a brief discussion with the younger Kadrovach concerning the Union closed it by saying, "I can tell you this shop will never again see your body." Later that day the younger Kadrovach asked Moric please not to try to ridicule him in front of people , at which time Moric denied having made the comment quoted above. Kadrovach, Jr., testified that on May 5 there was no more work for him on the Bridgeport milling machine he had been operating, and that work had been falling off for several weeks. He had been laid off for 3 weeks the preceding Decem- ber, and also on one occasion prior thereto . No one has been hired since his May 5 layoff to operate the Bridgeport ma- chine, which has largely been idle but has occasionally been operated for a few days at a time by one of the jig-bore operators. There is some evidence that the younger Kadrovach could do other work, such as that of burr hand , which he found distasteful and openly preferred not to do . On the whole Moric apparently had a low opinion of the younger Ka- drovach, whose tardiness record was particularly bad, and kept him on largely because of Moric 's high regard for the elder Kadrovach. It is quite possible that after Moric laid off the elder Ka- drovach on May 4, Moric visited what he regarded as the sins of the father upon the son . The speculation does not rise to the dignity of proof, and on the whole record the General Counsel's case as to the younger Kadrovach falls for failure to sustain the burden of establishing a violation by the pre- ponderance of the evidence. E. Summary With Respect to the Unfair Labor Practices As found above, Moric during the month preceding the election engaged in various acts of interrogation and threats with respect to the employees' union activities, attributed the layoff of an employee to his having signed a union card, and conveyed to employees the impression that their union activi- ties were under surveillance by stating that he (Moric) knew who the union leaders were. Moreover, as found above, the Company in this period laid off Taepke, Shake, Yuhas, and the elder Kadrovach because of their union activity. These unlawful actions plainly warrant a finding under the Gissel case that the Company's refusal to bargain was likewise un- lawful, and that a bargaining order should issue as the Com- pany's conduct prevents the holding of a fair election. CONCLUSIONS OF LAW 1. The Company by interrogating employees as to their union membership and activity and that of other employees, by threatening reprisals against employees for union activity, by stating that an employee's union activity had played a role in the decision to lay him off, by conveying to employees the impression that the Company was engaged in surveillance of their union activities, and by telling an employee that he must abandon union activities if he was to be recalled from layoff engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. The Company by laying off Dennis Taepke , Harold Shake, Michael Yuhas, and David Kadrovach, Sr., because of their union activity engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Company by refusing to bargain with the Union engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend an order directing that the Company cease and desist from its unfair labor practices , bargain with the Union upon the latter's request, place Raymond Elzer- man on a preferential hiring list , and reimburse Taepke, Shake, Yuhas, and the elder Kadrovach for wages lost as a result of their unlawful layoffs, using the formulas prescribed in Crossett Lumber Company, 8 NLRB 440, and Isis Plumb- ing & Heating Co., 138 NLRB 716. I shall further recommend in the light of the bargaining order referred to above that the election be set aside and that the representation proceeding be dismissed. Accordingly, upon the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' A. Respondent, Moric Precision Machining Co., its offic- ers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any employee as to his union membership or activity or that of other employees. (b) Threatening employees with reprisals for engaging in union activity. (c) Telling employees that an employee's union activity played a role in determining adverse personnel action taken with respect to him. (d) Conveying to employees the impression that Respond- ent is engaged in surveillance of their union activity. (e) Conditioning employment or recall from layoff on the abandonment of union activities. (f) Discriminating against any employee with respect to his hire or tenure or terms and conditions of employment be- cause he engaged in union activity. (g) Refusing to bargain upon request with the International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW), as the bargaining rep- resentative of all production and maintenance employees, including truckdrivers and shipping and receiving employees, employed by the Respondent at its Warren, Michigan, plant, but excluding office clerical employees, guards, and super- visors as defined in the Act. ' In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Upon request bargain collectively, as that term is defined in Section 8(d) of the Act, with the above-named labor organization as the representative of Respondent's em- ployees in the above-described unit. (b) Make whole the following employees in the manner set forth in the portion of the Trial Examiner's Decision entitled "The Remedy" for losses they suffered as a result of their layoffs in the following periods: Dennis Taepke April 28 through May 20, 1970 Harold Shake April 28 through May 11, 1970 Michael Yuhas April 15 through April 27 andMay 5 through May 8, 1970 David Kadrovach, Sr. May 5 through May 18, 1970 (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, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Notify Raymond Elzerman in writing that he is on a preferential hiring list, and offer him employment if and when Respondent needs to hire any employee to do lapping or honing. (e) Post at its plant in Warren , Michigan, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.10 B. The election in Case 7-RC-99 10 is hereby set aside and that proceeding is herewith dismissed. ' In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD." 1° In the event that this Recommended Order is adopted by the Board after exceptions have been filed notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.