Rotek, Inc.

ROTEK, INC. 453 Rotek, Incorporated and Billy Fowler. Case 8-CA-5993 December 7, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY February 8, 1971, issued a complaint and notice of hearing which was duly served on Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the complaint was held before me at Akron, Ohio, on May 25 and 26,197 1, at which the General Counsel and Respondent were represented by their respective counsel. Both parties have submitted briefs. Upon the entire record and from my observation of the witnesses, I make the following: On August 26, 1971, Trial Examiner George Turitz issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respon- dent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Rotek, Incorporated, Ravenna, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i In holding that the General Counsel had not sustained his burden of proof with respect to certain allegations of violations of Section 8(a)(1) of the Act, the Trial Examiner relied solely on the fact that the employees who testified concerning the incidents in question- were "interested witnesses." In our view, this factor, standing alone, does not necessarily require rejection of a witness' testimony. However, we find it unnecessary to pass on these 8(aXl) allegations, since additional findings of unlawful interrogation would merely be cumulative and, therefore, would not affect our remedy herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITz, Trial Examiner: Upon charges filed by Billy Fowler (Fowler) on August 17 and October 1, 1970, and January 27 and February 8, 1971, and respectively served on August 19 and October 1, 1970, and January 28 and February 8, 1971, respectively, upon Rotek, Incorpo- rated (Respondent and, at times, the Company), the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 8, on FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, Rotek, Incorporated, is an Ohio corporation having its principal office and place of business in Ravenna, Ohio, where it is engaged in the manufacture, sale, and distribution of bearings. In the course of its operations Respondent annually sells and ships from its plant in Ravenna directly to its customers located outside the State of Ohio products valued at in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issues litigated at the hearing were: (a) whether various supervisors had coerced employees with respect to self-organization by threats, interrogation, and promises of benefit; and (b) whether Respondent's discharge of six employees on August 12, 1970, and of one on August 19, in connection with a reduction in force, was violative of the Act because the reduction was not in accordance with usual policy but was discriminatorily motivated, and/or because the selection of employees for discharge was discriminato- ry. A. Background Respondent, which was organized in 1962 with about four employees, was engaged in the manufacture of bearings for use on excavators, cranes, Army tanks, turntables, and various other types of heavy equipment and machinery. It succeeded another company which in 1960 did a gross business of $100,000; Respondent's gross business in 1970 was $8.7 million. Throughout that period a substantial part of the necessary work was subcontracted.' i Weber, Respondent's general manager and president, testified as to this, "I would guess about half " At least some of the subcontracted work could not be performed in Respondent's plant. Respondent also had a plant for the manufacture of bearings at Lorain, Ohio, and one in West Germany, neither of which is involved in this proceeding. 194 NLRB No. 73 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to the events here in question Respondent had never had a layoff. It had a policy of having projects planned, "such as painting, fixing up," on which employees could work during slow periods. At a meeting of all the employees held in downtown Ravenna on May 25, 1970,2 Weber told the employees that enough work was on hand to carry Respondent through the fall of 1970.3 He also told the employees that he did not expect any layoffs, but would cut hours instead .4 On July 3, 1970, Mitchell, head of the factory department and plant superintendent, held a meeting of all the factory employees at which he stated that the slowdown in the economy would be affecting the Company and that the employees should therefore save their money and put it in the bank. He said that Respondent had never had a layoff, but there was always a possibility of one; and he also told the employees that a possible way of handling the expected slowdown was to go to 40 hours. B. Discussion of Unionization-Interrogation, Threats, Promises of Benefit 1. Fowler testified that in May 19705 his foreman, Welling, summoned him to his office, where, after commenting that he supposed that Fowler had "heard the talk that was going around the plant," he said, "We don't want a union"; that when Fowler replied that a union would benefit employees, especially as to wages, Welling said that he had worked in a plant where an attempt was made to organize a union, and he had been put out on the street. Fowler also testified that on that same occasion Welling asked him to submit a list of tools or anything else he needed to make his job easier. Welling admitted telling Fowler, as well as other employees, that on another job he had been put out on the street when an attempt had been made at organization, but he denied talking to Fowler against unions or, in fact, saying anything at all to him about his attitude toward unions. As Fowler was an interested witness and was not corroborated, I find that the General Counsel has failed to prove by a preponderance of the evidence that Welling on this occasion made the comment about "the talk that was going around" or that he said, "We don't want a union." In view of this finding, there is insufficient evidence that Welling's inquiry, made in 2 Several witnesses for the General Counsel testified that the meeting took place in the middle of July, but since they so testified in response to the General Counsel's leading questions, I found their testimony as to the date unconvincing, and it has not been credited. On this point I have credited the testimony of Weber, who was corroborated by Mitchell, Respondent's plant superintendent. 3 The General Counsel's witnesses testified that he said the fall of 1971, but I have credited Mitchell and Foreman Lloyd, who testified that the year mentioned was 1970 4 Weber, while testifying that he had no recollection of what he had said, stated that his thinking on the subject indicated to him that if he had said anything about cutting hours, it would have been a statement of a possible alternative, and not a promise The testimony that Weber's statement was that he would cut hours rather than lay employees off was not otherwise denied, and it is significant that Superintendent Mitchell, who testified about that meeting, did not touch on this point. 5 Unless otherwise stated all dates hereafter mentioned in this Decision were in 1970. 6 Welling denied that such a meeting took place at that time, namely, on the same day as a meeting of his employees with Weber, president of Respondent. However, he was contradicted not only by General Counsel's May, about Fowler's need for tools or anything else to make his job easier was violative of the Act. I shall recommend dismissal of paragraphs 7(A) and 7(B) of the complaint. 2. In the last week of June, Foreman Welling held a meeting in his office which was attended by William Pratt, Fowler, Rice, Waters, Burt, and White, then a leadman but later a foreman.6 Rice and Fowler testified that Fowler did most of the talking; Pratt testified that both he and Fowler did. All three testified that Fowler said that wages should be raised and if that could not be accomplished within the shop, they would have to get help or support "from the outside." Pratt and Rice also testified that Welling replied that before a union was brought in Respondent would close the plant and move to Irondale.7 White testified only that the meeting was about working conditions and whether the employees needed tools or had "gripes." I found Rice's testimony about the meeting, which was corroborated by Fowler and Pratt, convincing8 and I find that Fowler did most of the talking, that he threatened to resort to help "from the outside," meaning a union, if wages were not raised, and that Welling replied that if a union was brought in Respondent would close the plant and move to Irondale. I further find that Respondent thereby violated Section 8(a)(1) of the Act. 3. At the insistence of Welling's men a meeting with Weber, Respondent's president and general manager, was arranged for the same afternoon.9 Fowler testified that between the two meetings Mitchell came to the assembly table where he and Pratt were working and, accusing Pratt of being "an instigator," warned him that he did not want to hear any more union talk. Pratt testified to a similar statement to him by Mitchell in the assembly area, but he did not connect it with Fowler or with the short period between the two meetings, placing the incident, pursuant to the General Counsel's leading, "around the first part of July." Significantly, he did testify that Mitchell had come to his assembly table between the two meetings, but only to tell him that the second meeting, the one with Weber, had been arranged. Pratt testified, 'further, that on other occasions Mitchell asked him if there was any more talk about the Union going on, and whether Pratt would back witnesses, but also by White; and Superintendent Mitchell testified that the employees' foreman transmitted to him their request for the meeting with Weber. Welling impressed me unfavorably with respect to credibility. 7 Respondent's Irondale plant, located 62 miles from Ravenna, was in the process of being prepared since early or middle 1970, but had no equipment installed prior to November 1970. It was ultimately to manufacture bearings up to 16 feet in diameter , as compared with a maximum of 9 feet at Ravenna, but it was also to produce smaller bearings. At the time of the hearing the Irondale plant had five employees, the same number as on the day of the reduction in force. 8 On cross-examination Rice agreed with Respondent 's counsel that all prior witnesses had been at the meeting. Both Rice and counsel were plainly mistaken ; only two of the five prior witnesses, namely, Fowler and Waters-had been at the meeting. Waters did not testify about the incident at all Fowler testified that Welling said that the purpose of the meeting was to ascertain gripes-"nghts" in the transcript is an obvious error-of the employees, and that he expressed himself against unions. Fowler was preoccupied with his own prominence in the discussion, especially with respect to wages and resort to "help from the outside"; his recollection of the meeting as a whole was weak 9 At this meeting Fowler again did most of the talking. However, I find, contrary to Pratt's testimony, that on this occasion Fowler did not threaten (Continued) ROTEK, INC. 455 denied substantially all this testimony. I have credited Mitchell and find that he did not make the various statements or ask the questions described in this paragraph. I shall recommend dismissal of paragraphs 6(A) and 6(B) of the complaint. 4. Hards testified that about June 15, in the assembly and inspection area, he and Fowler were discussing the Union, and that Hutchinson, the chief inspector and foreman, who was beside them, told them that "union" was a nasty word around there and they should not talk about it. Fowler testified that about July 6 or shortly thereafter,10 at the inspection table in the assembly area, Hards commented, to Hutchinson's presence, that he was doing two men's work, whereupon Fowler said that if the men had a umon they would put a stop to that and a lot of things. He further testified that Hutchinson said that "union" was not a good word around there. Hutchinson denied ever having) made the comment. I find that the General Counsel has failed to prove that Hutchinson warned Hards or Fowler not to talk about the Union, or threatened them with reprisals. I shall recommend the dismissal of paragraph 8 of the complaint. 5. About July 1 James Lloyd, foreman of the shipping department, called a departmental meeting which was attended by five of his six employees. He commented, ".. . there is talk going around the shop about organizing the shop with a union," and he asked the men at the meeting if they were for or against having a union. John Suzelis replied, "As long as we are treated good, I have no use for a union." Lloyd informed the employees that Mitchell had instructed him to hold the meeting in order to find out what, if any, complaints they had, and he explained that he wanted to know how Respondent could make improve- ments with respect to wages or anything else so that the employees would have no need for a Limon. Mitchell held regular monthly meetings of all the factory employees to hear their complaints, so that the employees had no reason to read any coercive intent into Mitchell's action in continuing to hold his meetings in the face of the manifestation of interest in unionization. However, Lloyd's meeting was markedly different from Respondent's usual practice. There had been no practice of holding departmen- tal meetings in his department. The mere fact that the institution of such more careful searching out of employee complaints coincided with their manifestation of interest in unionization went far to indicate to the employees that what Respondent was doing was improperly motivated and was intended to induce the employees not to unionize. Cf. Raytheon Company, 188 NLRB No. 42, separate opinion by Chairman Miller, concurring in part: But when the timing of either [solicitation of grievances or granting of improvements] is such as to coincide with the origination of employee union activity, then, absent affirmative showing of some legitimate business reason for the timing, it is not unreasonable to draw the inference of improper motivation and improper inter- ference with employee freedom of choice. However, Respondent did not rely on the mere timing to bung its message home to the employees; Lloyd stated in so many words that Respondent's purpose was to ascertain what benefits to grant the employees "so that they wouldn't need to get a union in." It is true that nothing concrete was promised. However, that did not detract from the necessary tendency of the meeting to cause the employees to anticipate improved conditions of employment which might make union representation unnecessary. See Reliance Electric Company, Madison Plant, Mechanical Driver Division, 191 NLRB No. 1, where the Board stated, ".. . such cautious language, or even a refusal to commit Respondent to specific corrective action, does not cancel the employees' anticipation of improved conditions if the employees oppose or vote against the unions." I find that by interrogating the employees concerning their umon activities, sympathies, and desires, at the same time soliciting their complaints for the purpose of ascertaining what improvements in working conditions could be granted which would induce the employees not to seek unionization, Respondent violated Section 8(a)(1) of the Act. Cf. Reliance Electric Company, etc., supra. ii 6. Fowler testified as follows: when he was interviewed by Dale Pratt, the supervisor on the office job he had applied for, to which he was transferred on July 6, Pratt told him that his application looked good and that he thought he could handle the job. At the same time he remarked that Fowler had a bad reference from a prior employer, which he named. Fowler asked Pratt why he would get a bad reference from that company, whereupon Pratt asked him whether he had been engaged in union activities. Fowler said he had been. Pratt denied Fowler's testimony. In the circumstances described by Fowler, Pratt's question referred solely to the prior employment and had no relevance, direct or indirect, express or implied, to employment with Respondent. I shall recommend dismissal of paragraph 10 of the complaint. 7. Rice testified that in the middle of July his foreman, White, asked him while he was at work what he thought "about the Union," and whether he knew who was behind all the union talk; further, that he answered that he liked the union and would vote for it, and that while he knew who was behind the union talk, he could not tell White. White, who had been made foreman on July 1, testified that Rice once asked him if he had ever belonged to a union and that he had replied that he had on a previous job, but that otherwise he never spoke to Rice on that subject. More specifically, he denied asking Rice if he knew who was behind all the union talk, and denied that Rice told him he could not tell him. Rice -was an interested witness and was not corroborated. I find that the General Counsel has failed to meet the burden of proving by a preponderance of the evidence that White interrogated Rice as the latter testified. I shall recommend dismissal of paragraph 1'1 of the complaint. 8. Arbogast testified that on two occasions in early August, that is, about August 5, 6, or 7, his foreman on the contrary to Pratt's testimony, that on this occasion Fowler did not threaten the transfer took place on July 6 and that on that day Hutchinson was on to resort to "outside help" if wages were not raised. vacation. m Fowler fixed the occasion as at the time when he had dust been 11 The complaint does not allege the solicitation of grievances or the transferred from assembly to the office. Respondent's records show that implied promise of benefits as a separate violation. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night shift, Turner, asked him if he had heard any union talk, and that he replied no. On cross-examination he admitted that this was a lie. Turner denied Arbogast's testimony. Although Arbogast was an interested witness and was not corroborated, he testified especially convinc- ingly, and I have credited his testimony. It is true that Respondent proved no legitimate purpose for, Turner's questions. It is also true that interrogation about union activity has a tendency to cause employees to feel compelled to he to their superiors 12 and thus demean themselves . However, those facts, standing alone, are not sufficient to make interrogation unlawful . The record is devoid of evidence of coercive conduct by Respondent sufficiently closely connected or related to the interrogation to make it unlawful. Cf. Lakes Concrete Industries, Inc., et al., 172 NLRB No. 94. Nor does the record show Turner's questions to have been part of a systematic interrogation of employees, or that he questioned Arbogast during the sensitive, initial stages of an organizing campaign. Distin- guish Koch Engineering Company, Inc., 155 NLRB 1272, 1273. In view of the foregoing I shall recommend dismissal of paragraph 12 of the complaint. C. Union Activity On Saturday, August 8, after some weeks of discussion of unionizing among the employees, a UAW representative came to Hards' house to speak with him, Arbogast, Pratt, and Fowler. On August 10 Hards went to the UAW office in Cleveland, where he joined the organization and took some designation cards, for other employees. That same afternoon Fowler, Pratt, and Arbogast came to his house and signed cards. There is no evidence that any solicitation took place among other employees on August 10, 11, or 12, or that Respondent or any of its supervisors learned during that time of the employees' contact with the UAW. However, as indicated by findings already made, Respon- dent was aware that employees were actively considering unionization. D. The Layoff On August 12 Respondent completed a large Govern- ment contract it had been working on for some time. At or about 1 o'clock that day Respondent discharged 15 employees in the Ravenna manufacturing department, 9 hourly paid and 6 salaried. The selections were made by Mitchell, the plant superintendent. Included were six of the seven employees named in the complaint; the seventh, Foster, who was the secretary of the corporate development manager, which was, apparently, part of general adminis- tration, was on vacation, and was not notified of her discharge until August 19. Respondent cut employment back in other departments as follows: in engineering from 13 to 9; in field sales from 13 to 9 ; 13 in sales administration from 9 to 6; and in administration from 14 to 11. Those selections were made by Weber, the president, with the assistance of his secretary and Pierfelice, the controller. A new department, national accounts, was set up with 2 employees, so that the total number of individuals discharged was 27. They were paid to September 1. Respondent stopped a research program on a hydraulic motor on which it had expended $ 160,000 over 2 years, and it reduced its advertising budget from $130,000 to $54,000. Foreman Lloyd told' Suzelis and another discharged employee that the layoff was caused by a cutback in Government orders; Foreman Dale Pratt told Fowler that he could not give any real explanation; Foreman White told William Pratt that he, did, not know the reason; Chief Inspector Hutchinson told Hards that he had had no choice in the matter and did not know the reason ; Pierfelice told Foster that Respondent had placed a plan for recession into effect. Those employees who asked about recall were strongly advised to seek other employment. Following August 12 Respondent continued to keep employees working overtime and to subcontract work. During the period January through July 1970 the total amount of overtime worked in the Ravenna manufacturing department averaged about 3,000 hours per month; the average was substantially the same with August included. For the period September 1970 through April 1971 the average was 2,069 hours per month; with August 1970 included it was 2,561 hours per month. During the period January through July 1970 subcontracting totaled approxi- mately $842,000, for an average of about $120,000 per month ; with August included the average was about $118,000. For the period September 1970 through April 1971 the total was approximately $673,000, for an average of about $84,000 per month; with August included the average ,was about $86,000. The General Counsel did not establish to what extent, if any, the subcontracted work could have, or had customarily, been performed in Respondent's plant. Weber testified as follows: In 1969 business had been good, and he had anticipated that by the time the large Government order would have run out Respondent would have obtained new orders which would keep it busy. However, as completion of the contract approached, new orders fell off, and old orders were being canceled, in some cases even after shipment. Respondent came to the conclusion that it was facing an economic recession and decided that it would have to reduce expenses accordingly. In the latter part of July the various department heads other than manufacturing were instructed to prepare plans for reducing their personnel; and in early August, Mitchell, head of the Ravenna manufacturing department, was instructed to prepare plans for reducing his force by 25 percent. On Monday, August 10, Weber called a meeting of his staff and told them that his recession plan was to be placed into effect. He tacked on the wall a chart indicating the individuals whom Mitchell had selected for layoff from the manufacturing department and, with respect to the other departments, the individuals whom Weber, assisted by his secretary and Pierfelice, had selected for layoff; and he announced that any person so listed as excess could be taken on by another department and some one else placed in the excess category. 12 Cf. Bourne Co. v. N L R B, 332 F.2d 47 (C A 2). 13 Two sales offices were closed down entirely ROTEK, INC. 457 Weber testified that he deliberately kept the pending layoff quiet and carried it out swiftly in order to avoid "personality discussions." He said that the reason he did not resort to assigning employees painting, cleanup, and similar work to tide them over as in the past was that this did not appear to be a temporary slowdown, but a long- term recession. Respondent's business, he said, was cyclical, and was sharply affected by economic conditions, and he testified that even when the time would come that Respondent got new orders, a long time-as much as 18 months-would be needed between a customer's initial interest and the actual filling of his order because it involved a large amount of preliminary work, including the construction and testing of prototypes. Concluding findings as to the discriminatory discharges The decision to reduce the workforce. While the General Counsel may have abandoned the contention he does not urge it in his brief-at the hearing he attempted to establish that Respondent decided on the reduction in force for discriminatory, rather than business, reasons. Respondent's testimony that orders were substantially reduced prior to the layoff and that it completed a large Government contract on August 12 was uncontradicted. Weber's testimony that those facts, together with the economics of the country and of Respondent's business, caused Respon- dent to conclude that contraction was called for was corroborated by the uncontradicted evidence that Respon- dent also reduced its sales force and other parts of its organization not affected by any effort at unionization. It is true that the cutback, accompanied by continuation of overtime, represented a failure to live up to Weber's statement or promise on May 25 that Respondent would cut hours before resorting to layoffs. However, the record does not show that Weber was aware in May that orders would fall off so sharply, nor does it show any experience in Respondent's history comparable with the situation it faced in August 1970. I find that the General Counsel failed to prove that Respondent decided to reduce its work force in order to discourage unionization or other collective activities. There remains for consideration the question whether any of the employees named in the complaint were selected for layoff for discriminatory reasons. Mitchell, head of the manufacturing department, where 6 of the 7 alleged discriminatees worked, testified that he selected the 15 employees discharged in his department on the basis of the comparative "ability, attitude, cooperation," of all his employees. However, except as to Hards, discussed below, neither Mitchell nor any other supervisor testified to any comparative appraisal of any of the discharged or retained employees. Rice, an assembler, was hired not long before July 1, 1970.14 He worked first under Welling, later under White. the Union, which Pratt replied he would do. Mitchell Bradfield, an assembler who started about July 16, was hired at a wage 10 cents per hour higher than Rice's, and White told Rice that Bradfield was worth it. However, when Rice complained, he was granted a 10-cent increase, which brought his rate of pay up to Bradfield's. Rice engaged in some discussion of unions with White, but he did not sign a union card prior to his discharge. While there is no direct testimony about Bradfield's qualifications, Respondent's action in hiring him at a higher wage than Rice's is some slight indication that it had made a judgement at that time that he was a promising employee. Rice's collective or union activity was not outstanding. Therefore, even assuming that Mitchell did give a modicum of consideration to length of employment in making selections for layoff, Rice's seniority over Bradfield's was not substantial enough to warrant the conclusion that his selection was discriminatory. I find that the General Counsel has failed to adduce sufficient evidence proving that the discharge of Rice was discriminatory. Suzelis worked for Respondent approximately 16 months. He was in the shipping department under Foreman Lloyd, and he received at least one wage increase in 1970. He engaged in no activity connected with unionization prior to his discharge other than to tell Lloyd at the meeting already described that "if we were treated right none of us wanted the union." The record does not show which employees, if any, in the shipping department or elsewhere were less useful or desirable than Suzelis. I find that the General Counsel has failed to prove that the discharge of Suzelis was discriminatory. Foster was employed by Respondent for almost 16 months. She was secretary to Bradley Pritts, manager of corporate development. Almost from the beginning of her employment Pritts was aware that Foster's husband was an active union member at Babcock and Wilcox, and that she herself generally favored unions. Foster was a satisfactory employee, having received a merit increase in August.15 The recession plan prepared by Mitchell called for one Kathy Beach to be transferred to work for Pritts and two other executives. Except for Weber's testimony to the effect that he, his secretary, and Pierfelice made the selections on the basis of relative merit, there is no evidence as to the relative merit, relative seniority, or any other basis of comparison as between Foster and Beach or any other employees. I find that the General Counsel has failed to prove that the selection of Foster for discharge was discriminatory. Hards, Arbogast, William Pratt, and Fowler were the four employees who met with the UAW representative on August 8 at Hards' house and signed cards on August 10.16 All were discharged on August 12. Hards, employed 26 months, was the final inspector and in July, when Hutchinson was on vacation, he assumed the chief inspector's duties of finally approving bearings for shipment, assigning work to other inspectors, and ensuring that they kept themselves busy. When Hutchinson 14 The General Counsel did not establish the date of his employment, and virtually all employees who were retained received them. but about July 1 Rice told Welling that he could not comment on working 16 Fowler's card was not produced at the hearing. As already noted, conditions because he had just been hired. there is no evidence that Respondent learned up to August 12 of the 15 Increases were granted by Respondent only on an individual basis, employees' contact with the UAW. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returned, he complimented Hards, as well as Elder, another inspector, for having taken good care of inspection during his absence. Hutchinson testified that Hards was not industrious, that he had to keep after him constantly to get his work done, and that he preferred Elder, who was very competent and could be relied on to carry out instructions. Elder had been employed about 1 year,17 and Hards had helped Hutchinson break him in as an inspector. Fowler's testimony that Hards complained that he was doing two men's work tends to show that Hutchinson's idea of due industriousness was different from Hards'. Whether or not Hutchinson was reasonable in this respect, Fowler's testimony affords a degree of support for Hutchinson's claim that he considered Elder more industrious. This conclusion is not affected by the fact that Elder declined all opportunities to work Saturday overtime. There is nothing in the record which indicates that Hutchinson thought that he would have refused to work on Saturdays if needed. Only one inspector was required, and up to August 12 Hards was always glad to be the man. Hards did no organizing at the plant. As to the gatherings at his house on August 8 and 10 and the signing of the UAW cards, the evidence indicates that the union representative and the four employee participants were the only ones who knew. Notwithstanding that all four found themselves discharged 2 days after they signed the cards, the record does not contain a basis for the inference that Respondent learned of the gatherings or the card signing. I find that the General Counsel has failed to prove that Hard's discharge was discriminatory. Arbogast, employed 1 year, was the inspector on the night shift. His work was satisfactory and he was complimented by Mitchell. In July Turner, his foreman, overheard another employee 18 speak to Arbogast in favor of having a union; and Arbogast testified that in the course of his work he, himself, spoke to other employees, unnamed, in favor of having a union. About a week before his discharge Turner asked him twice whether he had heard any "union talk" and he answered that he had not. The General Counsel contends that Elder, the inspector who was retained, had less seniority than Arbogast. The record, however, does not show any substantial difference between the two men in this respect; as already noted, Elder was also employed about 1 year. Nor is there evidence in the record that Arbogast was a better employee than Elder. I find that the General Counsel has failed to prove by a preponderance of the evidence that Respondent's discharge of Arbogast was discriminatory. William Pratt worked for Respondent almost 4-1/2 years. He was an assembler and was complimented for his performance by Mitchell, the plant superintendent, and by Foremen Lloyd, Williams, Turner, Welling, and White, and from time to time he was granted merit increases.19 When discharged Pratt protested to Mitchell that Bradfield, an 17 Hards testified that Elder was hired 14 months after he was is The other employee, David McElroy, was also discharged on August 12, but he was not named in the complaint is Pratt's testimony as to the above facts was uncontradicted. In 1968, while he was in Respondent's employ, the municipal court of the county imposed on Pratt a sentence of 1 to 6 months. After serving 3 weeks Pratt assembler hired about July 16, had been retained notwithstanding Pratt's substantial seniority . Mitchell replied that he felt that with time Bradfield would make a better assembler. Pratt testified that he, as well as Fowler, did "most of the talking" at the meetings with Welling and Weber. However, except for Fowler's concession that at the Welling meeting "William Pratt spoke up" also, the other witnesses testified only to Fowler's outstanding participation at both meet- ings. As the General Counsel failed to establish that Pratt was outstanding in the employees' meetings with Welling and Weber, or that Respondent knew that Pratt had engaged in union activity or favored unionization, there is insufficient evidence to establish that Respondent's dis- charge of Pratt was violative of the Act. Fowler, employed 7 months, was an assembler until July 6, when he was made production recorder in the scheduling department, an office job within the manufacturing department, which he was awarded pursuant to posting. The new job was of the same grade as assembler but it was salaried, the pay was somewhat higher, and it was considered a promotion.20 Hartline, the head of the scheduling department, told Fowler that he was doing a "real good job," and that it seemed that he would do well. At the time of the layoff Weber instructed the various department heads that anyone listed as excess could be picked up, irrespective of department, and another employee made excess, and Fowler went on and off the list several times before he was finally listed as excess. As Fowler had been promoted on July 6 and had gone "on and off the list" several times when the layoff list was being prepared, the inference is warranted that in his 7 months of employment he had impressed Respondent as a desirable employee, and I so find . Weber's instruction that employees listed as excess could be picked up and others substituted plainly placed Fowler in competition with Bradfield for the assembler job from which Fowler had recently been transferred. Fowler was outstanding among the employees in the meetings with Weber and Welling, and it was he who said that the employees would resort to a union for help to raise wages. It was that statement which brought on Respon- dent's threat, through Welling, to close the plant and move to Irondale. Respondent contends that it "had no knowledge of any specific union organizational activity." However, Respondent was fully aware that the employees were considering unionization, which Respondent opposed, and Mitchell took the step of having at least Foreman Lloyd call a meeting of his employees to ascertain what improvements could be instituted to persuade the employ- ees not to unionize, irrespective of the identity of the Union. Even where seniority is not formally or explicitly recognized as a factor for retention of employees , it does not comport with ordinary business practice for an was released on probation, conditioned on his receiving psychiatric care and treatment. The release was procured with Respondent's active cooperation, and the psychiatric treatment was paid for in part by Respondent's insurer and in part directly by Respondent. Notwithstanding this Pratt bore some resentment against Mitchell who he thought could have obtained his release earlier. 20 In its brief Respondent refers to the transfer as a promotion. ROTEK, INC. employer completely to disregard substantial differences in length of service when compelled to discharge employees for business reasons. Since Respondent was hostile to unionization and even took steps to find out what benefits to grant which would persuade the employees not to unionize, and it retained Bradfield, a recent employee, in preference to Fowler, whose 7 months of employment had resulted in his being considered a desirable employee but who had been outstanding in the employees' collective activity, a prima facie case of discriminatory selection was established. See N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168 (C.A. 7), enfg. 151 NLRB 172, 177; N.L.R.B. v. Deena Products Co., 195 F.2d 330, 335 (C.A. 7), enfg. 93 NLRB 549. Mitchell's bare, general testimony that he had selected the 15 employees for discharge on the basis of "ability, attitude, cooperation," even in conjunction with the fact that Bradfield had been hired at a rate 10 cents per hour above that of another recent employee, Rice, was not sufficient to meet this prima facie case. Nor is it met by the fact that Respondent promoted Fowler, and that it seriously considered retaining him notwithstanding the outspokenness he had displayed to Respondent in advocat- ing unionization. This is not a case where no employee would have been discharged but for Respondent's desire to discourage unionization. A reduction in force was decided on for business reasons, and the only question at issue is whether Respondent's selection of the dischargee was based on the fact that Fowler had been prominent and outspoken in advocating higher wages for all the employees and unionization. In view of the absence of testimony explaining why Respondent considered Bradfield superior to Fowler, I am persuaded by the evidence on the record as a whole that Respondent selected Fowler for discharge because he engaged in concerted activities and advocated unionization. I am also persuaded that Respondent discharged him in order to discourage membership in any labor organization. I find that Respondent thereby violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights, and to take certain affirmative action. I recommend that Respondent reinstate Billy Fowler to 21 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, and recommended Order herein shall, as provided in 459 his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and that he be made whole for any loss of earnings suffered by reason of the discrimination against him. The amount of backpay shall be a sum of money equal to the amount that he normally would have earned as wages from the date of the discrimination against him to the date of his reinstatement or -offer of reinstatement, less his net earnings during said period, such backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294; and it shall include interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall preserve and make available to the Board and its agents for examination and copying all payroll, production, subcontracting, and other records necessary for the computation of backpay. Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Rotek, Incorporated, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ` 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily discharging Billy Fowler, Res- pondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 21 ORDER Respondent, Rotek, Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, discharging, or otherwise discriminating against employees with respect to hire or tenure of employment or terms or conditions of employment, because they engage in concerted activities or in order to discourage membership in labor organizations. (b) Threatening to close its plant or to move its business to a new location if the employees permit themselves to be Section 102.48 of the Rules and Regulations, automatically become the findings, conclusions, decision, and Order of the Board, and all objections thereto shall be deemed waived for all purposes. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organized by a union or if they designate a union as their representative for collective bargaining. (c) Interrogating employees concerning their union sympathies or desires in such manner, or under such circumstances, as to constitute a violation of Section 8(a)(1) of the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the, following affirmative action which, it is found, will effectuate the policies of the Act: (a) Offer Billy Fowler immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. (b) Make Billy Fowler whole for any loss of earnings which he may have suffered as a result of the discrimination against him with interest at 6 percent, in the manner described in section V of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll, production, and subcontracting records, and all other data necessary to analyze and compute the backpay required by this order. (d) Notify Billy Fowler, if presently serving in the Armed Forces of the United States, of his right to full reinstate- ment 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. (e) Post in its office and plant at Ravenna, Ohio, copies of the attached notice marked "Appendix." 22 Copies of the notice, on forms provided by the Regional Director for Region 8, shall, after being signed by a representative of Respondent, be posted 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 to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.23 It is further recommended that the complaint be dismissed insofar as it alleges unfair labor practices not specifically found in this Decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Billy Fowler immediate and full reinstatement to his former job, without prejudice to his seniority and other rights and privileges. If he is in the Armed Forces, we will notify him of his right to have his former job back after discharge from the Armed Forces. WE WILL pay Billy Fowler for any loss of wages he suffered as a result of the discrimination which it has been found we practiced against him. WE WILL NOT lay off or discharge employees or discriminate against them in any other manner because of their concerted activities or in order to discourage membership in any labor organization. WE WILL NOT threaten to close our plant or move our operations to another location if our employees decide to bargain collectively or allow themselves to be organized by a union. WE WILL NOT question you about your union sympathies or desires under such circumstances or in such a manner as to constitute coercion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form, join, or assist any labor organization, to bargain collectively through represent- atives of your own choosing, or to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except insofar as these rights might be affected by a contract with a labor organization, if validly made in accordance with the National Labor Relations Act, whereby member- ship in a labor organization is a condition of employment on or after the 30th day following the date of the contract or the beginning of such employment, whichever is later. ROTEK, INCORPORATED (Employer) Dated By 22 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 Order of the National Labor Relations Board " 23 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be mddifiedto read "Notify said Regional Director for Region 8, in writing , within' 20 days from the date of this Order, what steps Respondent has taken to comply herewith." (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, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.