Universal Manufacturing & Supply Co.

UNIVERSAL MANUFACTURING 605 Universal Manufacturing & Supply Co. and Sheet Metal Workers International Association, Local 399, AFL-CIO. Case 11-CA-4589 July 31, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 27, 1972, Trial Examiner John P. von Rohr issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order, except as modified below. 1. We agree with the Trial Examiner's finding that Respondent violated Section 8(a)(1) of the Act by Foreman Rayborn's engaging in an unlawful surveillance of the May 3 union meeting. It is unnecessary to decide whether or not Supervisor Overcash also drove past the union hall in order to observe the union meeting. 2. We also agree with the Trial Examiner that Respondent selected employees Wright and Ready for layoff for unlawful reasons, but we cannot agree that the General Counsel has proven that the four other alleged discriminatees were selected for layoff. for unlawful reasons.' Our reasons for reversal of the Trial Examiner's latter finding are as follows: According to Respondent President Saum, the Respondent was compelled by economic considera- tion to lay off 14 employees. Saum testified that he personally chose four employees, including Wright and Ready, for layoff because he considered their work to be deficient. According to Saum and Respondent Vice President Craft, the 10 other layoffs, including those of Johns, Johnson, Thomp- son, and Miller, were made after considering factors such as employee work habits and work attitude. As to Wright and Ready, the Trial Examiner concluded from the unlawful interrogation of Ready that Respondent believed these two employees were the leading union adherents and were attempting to bring in a union. Based on this and other circum- stances surrounding the layoffs of Wright and Ready, we agree with the Trial Examiner that the General Counsel has met his burden of proving discrimination in regard to Wright and Ready. As to Johns, Johnson, Thompson, and Miller, the Trial Examiner found a violation of the Act based on Respondent's unlawful surveillance of the May 3 union meeting and Respondent's expressed opposi- tion to unionization of its employees. According to the Trial Examiner, "In the absence of any rebuttal or adequate explanation concerning the reason for these employees having been selected for layoff, I find and conclude that they were terminated in violation of Section 8(a)(1) and (3) of the Act." However, the ultimate burden of proving that the layoffs of these four employees were discriminatorily motivated rests with the General Counsel. Under all the circumstances of this case, we cannot agree with the Trial Examiner that the General Counsel met that burden. We note that at least two employees who, according to witness McGahee, were observed by Foreman Rayborn at the union hall on May 3 were not laid off. Eight other employees, not alleged in. the complaint to have been discriminatorily laid off and not, according to any evidence, observed by Rayborn at the union hall on May 3, were laid off on May 6. Therefore, under these circumstances, we cannot infer, without more evidence than this record contains, that because Respondent was aware that these four employees attended a union meeting on May 3 the Respondent for discriminatory reasons included these four employees in the layoff of May 6.2 Accordingly, as we find that the General Counsel has not sustained his burden of proving that employees other than Wright and Ready were selected for layoff for discriminatory reasons, we shall dismiss the complaint as to them. 4 AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 4 from the Trial Examiner's Decision and substitute the following: 4. By laying off Rodney Ready and Robert Wright on May 6, 1971, for the purpose of discourag- ing union activity, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. I Although 14 employees were laid off , only 6 employees were alleged in the complaint to have been laid off for discriminatory reasons 2 The Trial Examiner apparently concluded that there were two men named Miller involved in this case. However, we find that the record reveals that there was only one Miller involved in this case, namely, the alleged discnmmatee George Fred Miller Further, the testimony by Wright that is referred to in fn . 16 of the Trial Examiner's Decision related to a Hobbs- Overcash conversation and not a Wright-Overcash conversation We note that Wright's version of the conversation is somewhat different from Hobbs' version . Accordingly, we would disregard Wright's testimony about the conversation because such testimony is contradicted hearsay evidence. 198 NLRB No. 88 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 as modified below and hereby orders that Respondent, Universal Manufacturing & Supply Co., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Delete from paragraph 2(a) of the Order the names of all employees except Rodney Ready. 2. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government UNIVERSAL MANUFACTURING & SUPPLY CO. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211. WE WILL NOT interrogate our employees con- cerning their union activities or the union activities of other employees. WE WILL NOT engage in surveillance of organi- zational or union meetings of our employees. WE WILL NOT layoff or otherwise discriminate against our employees in regard to hire or tenure of employment, or any term or condition of employment, in order to discourage membership in any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Sheet Metal Workers Interna- tional Association, Local 399, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make Rodney Ready whole for any loss of pay suffered by reason of the discrimina- tion against him. WE WILL reinstate Robert Wright to his former job or, if such job is no longer available, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges of employment, and make him whole for any loss of pay suffered by reason of the discrimination against him. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge filed on June 1, 1971, the General Counsel of the National Labor Relations Board, for the Regional Director of Region 11 (Winston-Salem, North Carolina), issued a complaint on August 31, 1971, against Universal Manufac- turing & Supply Co., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr in Augusta, Georgia, on October 19 and 20, 1971. None of the parties have filed a brief in this case. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is a South Carolina corporation with its principal office and place of business located at Aiken, South Carolina, where it is engaged in the manufacture of sheet metal products. During the year preceding the hearing, Respondent sold and shipped goods valued in excess of $50,000 to points and places located outside the State of South Carolina. During the same period, it received goods valued in excess of $50,000 which were shipped to it across state lines. The Respondent concedes, and I find, that it is engaged UNIVERSAL MANUFACTURING in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association, Local 399, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue On May 6, 1971, Respondent laid off 14 of its employees. The General Counsel's complaint alleges that six of these were laid off in violation of Section 8(a)(1) and (3) of the Act. Respondent defends on the ground that the layoffs were motivated solely by economic considerations. B. The Organizing; Surveillance; the Layoff The Respondent's manufacturing plant is located in Aiken, South Carolina, where it is engaged in the manufacture of job-ordered sheet metal products. Approxi- mately 50 employees were employed at this plant prior to a layoff which occurred on May 6, 1971. Respondent also has approximately the same number of field employees. These employees work in the plants of other employers where they are engaged in the installation and mainte- nance of various of the Company's sheet metal products. On May 6, 1971, 14 employees were laid off at the Aiken manufacturing plant. The complaint alleges that the following six employees, all of whom were included in this layoff (with the dates of their initial hire being set forth opposite their respective names), were laid off for discrimi- natory reasons: William Johns (hired July 1970) William Johnson (hired July 1968) George Miller (hired February 1968) Rodney Ready (hired May 1965) Robert E. Wright (hired January 1963) William O. Thompson (hired July 1, 1970) The Charging Union unsuccessfully conducted an organizing campaign among Respondent's employees in the fall of 1968. Robert E. Wright, one of the alleged discriminatees herein, acted as observer at the Board- conducted representation election at that time. In March 1971, the Union undertook a second campaign and Wright again became a leading employee union adherent. Thus, at the behest of other employees, Wright initiated contact with the Union to get the campaign started and thereafter actively participated in the organizing, this including his speaking to 90 percent of the employees about the Union and his procuring a number of signed authorization cards from them. About 3 weeks prior to the May 6 layoff,' George L. Rayborn, Sr., Respondent's shop foreman, broached employee Rodney Ready while he was working and asked if Wright was trying to get a union started. Ready I Unless otherwise indicated, all dates hereinafter refer to the year 1971 2 This conversation is set forth in accordance with the undemed and credited testimony of Ready 3 McGahee testified that he could not recall Rayborn going up Park 607 responded with the statement, "Yes, we are working on it."2 On April 28 Wright asked Charles Overcash, Respondent's shop superintendent, if he could come to one of the employee's union meetings. Overcash stated that he was not aware of the meeting. Wright disagreed, telling Overcash that he "knew" another employee, Ray Heider, had told him about the union meeting. Working hours at the Aiken plant are from 8 a.m. to 4:30 p.m. Following working hours, a union meeting was held at the union hall in Aiken on May 3. This hall is located on Park Avenue, approximately 3 or 4 miles from the plant. Thomas McGahee, an employee of the Respondent, customarily rode back and forth to work with Shop Foreman George Rayborn, Sr., ever since becoming first employed with the Company in early January 1969. McGahee gave the following uncontroverted and credited account of what occurred in the late afternoon of May 3: Following work on this date, he (McGahee), George Rayborn, Sr., George Rayborn, Jr., and Maurice Cauley entered Rayborn's car to drive home. Upon leaving the plant, Foreman Rayborn, who drove the car, announced that they would be taking a different route home and stated that they would go down and drive past the union hall to "see what they could see." Taking a route other than he normally did, Foreman Rayborn drove the car down Park Avenue past the union hall.3 As they drove past, a number of company employees were observed coming out of the front door of the hall. McGahee testified that at this point the occupants of the car called out the names of various employees whom they recognized. McGahee recollected that the following names were specifically mentioned: William Johns, Robert Wright, William O. Thompson, Ken Webb, and Charles Gardner. Additionally, McGahee called out the name of William Johnson when it was observed that his truck was parked near the front of the union hail.4 Charles Overcash, Jr., also drove past the union hall about 5 p.m. on May 3. Employees William Johns and Roy Hobbs testified that they observed him drive by while standing near a window on the second floor of the union hall. The meeting, with about 20 employees in attendance, was going on at the time. Overcash testified that he was familiar with the union hall. Denying that he had any intent of spying on the employees, Overcash testified that he drove past the hall six or eight times a week during the spring of the year, quite possibly including May 3, while in route to drive his three young sons to the little league ballfield. On the basis of well-established Board precedent, I find that Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of the May 3 union meeting. While there is no question of Foreman Rayborn's participation in this unlawful conduct, I also think it more than coincidence that Overcash took the same occasion to drive past the union hall while the meeting was being held. Avenue at any other time while on their way home from work 4 Johnson's panel truck, which he owned for 3 years, was readily identifiable because signs were attached to both doors which stated "Johnson's Welding Service Mobile Equipment." 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that he, too, participated in the unlawful surveillance.5 I further find that Respondent violated Section 8(a)(1) of the Act. by Rayborn's above- noted interrogation of employee Rodney Ready. As noted above, Respondent laid off 14 employees 3 days after the May 3 union meeting. The affected employees were first advised of this when handed their ROF (layoff slips) about 2:30 p.m., May 6, a Thursday.6 Edward L. Saum, Respondent's president, testified that the layoff on May 6 occurred because the Company was running out of work and that it accordingly had no need for the services of the employees whom it laid off at this time.? Upon consideration of the entire record in this case, I deem it unnecessary to determine whether or not there was in fact economic justification for the layoff of some or any employees on May 6, 1971.8 I hold only, as will be detailed below, that Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily selecting certain of its employees to be included in the layoff which occurred on this date. C. Additional Facts and Conclusions as to the Layoff of Robert E. Wright I first note certain facets of Respondent's testimony which are applicable to all of the alleged discriminatees herein. Thus, according to the testimony of President Edward Saum and Vice President Herbert Craft, Respon- dent does not follow a policy of making layoffs solely on the basis of employee seniority. While seniority is accorded some weight, these witnesses testified that the employees' working habits, attitude, and working efficiency are also taken into consideration in selecting employees for layoff. Saum further testified that it was at a meeting which he held with Craft and Charles Overcash, the shop superin- tendent, about 3 or 4 weeks prior to the layoff when a determination was made that 14 employees would be laid off. Although he testified that the actual date for the layoff was not determined until he had a further meeting with the same supervisors on the day before the layoff, Saum testified that it was also at the earlier meeting that a decision was reached as to which of the 14 employees specifically were to be laid off. Additionally, Saum testified at the meeting (3 or 4 weeks prior to the layoff) he personally selected four of the employees who were to be laid off. These were Robert Wright, Rodney Ready, M. C. Bryant, and Pat Maroney. After naming these employees, Saum was asked on direct examination to give his reason for selecting them for layoff. Saum responded as follows: Yes, sir, on numerous occasions, these employees had failed to perform their work in a workmanship-like way or efficient way; were continually out of their areas talking to people who would normally work, disrupting the flow of work; and I am not speaking of one time; I am speaking of 20 to 30 times; I have entered the shop 5 In view of Rayborn's undemed conduct, I would recommend issuance of the same remedial order concerning this violation even if Overcash did not also engage in surveillance 8 Although the employees left the plant in the middle of the afternoon when apprized of their layoff, they received full pay for the day. r Saum also gave testimony to the effect that in April 1971 the Company became involved in a "financial crisis" and that it then attempted to and found this to be the case. I had previously talked to supervisors why they were keeping them on; they said they needed people. I said, "all right then"; and on a couple of occasions, I did not lay them off when I was asked by my supervisors to lay them off because I said, "Give them another chance"; but when it had come to this, we had given them too many chances; and we were in too much financial trouble to give them another one. I shall continue here only with the case of Wright. Recalling that Saum testified that he personally selected Wright for layoff, it is significant to note that Saum's testimony quoted above contains the only explanation which he gave to account for taking this action as to Wright. In this connection, it is also pertinent to note that all of the alleged discriminatees, with the exception of Wright, were either subsequently reinstated or were offered reinstatement. Thus, at the above puncture in Saum's testimony on direct examination, Saum was asked this question: "Why didn't you ask Mr. Wright to return?" Saum at this point referred to an incident which he said occurred somewhere between October and December, 1970. He said that at that time he was at home when he received a call advising that Wright and Mr. Faudell, Respondent's bookkeeper, were having an argument at the plant. He said he went to the plant, spoke to both Faudell and Wright, asked them to "go back to work and not let these things happen," whereupon each apologized to the other in his presence. Saum could not recall any details of the incident, nor did he attempt to place any blame on either Faudell or Wright. At this point in his direct testimony, Saum testified concerning another incident involving Wright. Thus, he testified that on one occasion he sought to transfer Wright to the field, but that Field Superintendent Jack Almond would not accept him because he was afraid of "trouble on the job . . . general disagreements . . . arguments with fellow workers." Beyond this Saum did not elaborate. However, Almond was later called as a Respondent witness. Almond is the field supervisor for Respondent employees who perform maintenance and installation work at a Proctor & Gamble plant in Augusta, Georgia. Almond testified that in January or February 1971, Vice President Craft (who also acted as shop foreman) called to ask about possibly transferring Wright to his location. Almond said he told Craft he did not want Wright on his job because he heard that Wright could not get along with anybody. When queried on cross-examination as to what he heard about Wright, Almond testified to an occasion in 1970 when he overheard Craft, Rayborn, and Overcash discuss Wright's involvement in a so-called set down strike at the main plant. Concerning this incident, the evidence reveals only that on this occasion Wright headed some 10 employees who engaged in a work stoppage for 35 to 40 minutes because they did not receive their checks on time. Wright's negotiate a $100,000 loan Unsuccessful at first, this loan was obtained on July 7, 1971 8 President Saum testified without contradiction that Respondent normally has about one layoff each year The last layoff occurred on September 19, 1970, at which time 41 employees, including field employees, were laid off The May 6, 1971, layoff did not include any field employees UNIVERSAL MANUFACTURING 609 participation in this matter, Almond conceded, was the principal reason why he did not want Wright to work for him. Other than the foregoing, Almond testified further only about overhearing Overcash relate some incident relative to Wright's throwing a vise across the plant. Although Almond did not elaborate, Craft testified that about 1969 Wright became angry when advised that he was being transferred from one department to another. Accord- ing to Craft, on this occasion Wright "Threw a vise across the floor at no one; just in a fit of anger." This was the entire substance of the incident. The evidence in this case is unusually clear that Wright was not laid off for the reasons ascribed by Respondent. Hired in 1962, Wright was one of Respondent's most senior and able employees. Indeed, at the time of his layoff, Wright, one of four leadmen employed at the plant, was the lead sheet metal mechanic. As leadman, Wright was paid a 25-cent higher hourly rate than the other mechanics. While this classification, standing alone, attests to his ability and qualifications, Wright testified without contradiction that, just 2 weeks before his layoff on May 6, Shop Foreman Raybom told Superintendent Overcash that he wanted him (Wright) to perform a certain job because he did it "quicker and as good as anybody he had." Further, the record is clear that not only was Wright never warned or criticized about his work or his work habits, but it is also undisputed that Wright had never before been laid off during his entire employment since January 1963. At the May 6 layoff, however, Respondent admittedly retained in its employ a number of employees in the same job classification (sheet metal mechanics) who had less seniority than Wright. Surely, Respondent must have had some more cogent reason for laying off and not recalling his senior and experienced employee than the asserted trivialities, which I find to be obvious after- thoughts, as have been discussed above. As earlier noted, initially responsible for starting the organizing campaign, Wright was also one of the most active union adherents. As also noted, Shop Foreman Rayborn's apparent suspicions of Wright's union activities were confirmed when, upon his questioning about 3 weeks prior to the layoff, employee Rodney Ready advised him that Wright and he (Ready) were engaged in starting a union at the plant. Also, about a week prior to the layoff Wright invited Shop Superintendent Overcash to attend a union meeting. Aside from Respondent's manifestly unlawful surveillance of the May 3 union meeting (at which Wright, among others, was observed by Foreman Rayborn to have attended), it is significant to note that President Saum conceded in his testimony that he held a "strong opposition" to the representation of his employees and that he did not want a union in the plant .9 Finally, and further casting light upon Respondent's true motives herein, the General Counsel proferred the testimony of Roy L. Hobbs, assistant superintendent at a field location 9 While it is manifestly lawful for Saum to take this position , as part of the entire circumstances of this case , Saum's admission may be taken as some indication of union hostility, especially in assessing the merits of the alleged 8(a)(3) violations herein io Counsel for the Respondent initially indicated that there was some question about reinstating Wright because of an incident which occurred after Wright was notified of his layoff. However, in view of Vice President in Orangeburg, concerning a conversation he had at a bar, Mane's Drive-In, with Shop Superintendent Overcash in about the first week of June 1971. Hobbs had an operation about the time of the May 6 layoff and was not at work when it took place. He took the occasion of meeting Overcash at the bar to ask for details concerning the layoff. According to the credited and unrefuted testimony of Hobbs, Overcash at this time stated, inter alia, that Wright had been laid off because he was an "agitator," and further that he (Overcash) "would never work him [Wright] anymore." In view of all the foregoing, including Respondent's knowledge of Wright's union activities, its opposition to the Union, the pretextual afterthoughts advanced by it as reasons for selecting Wright for layoff, the admission by Overcash that Wright was laid off because he was an agitator and that he would not work him again, as well as the other unlawful conduct herein found, I find and conclude that Wright's termination on May 6, 1971, was discriminatorily motivated and therefore was in violation of Section 8(a)(3) and (1) of the Act.10 D. Additional Facts and Conclusions as to the Other Discriminatees I shall consider first the cases of William Johns, William Johnson, and William O. Thompson, all of whose dates of hire have been listed above. As heretofore noted, it is Respondent's position that although seniority was accord- ed some weight, seniority was not followed in making the layoffs, such factors as the employees' ability, work habits, and work attitudes also having been taken into account when determining which of the employees were to be laid off. The three employees here under discussion were not among the four employees whom Saum testified he personally selected for layoff. Beyond this, Saum testified only that he conferred with Craft and Overcash with respect to the selection of 14 employees who were to be laid off on May 6. Significantly, Respondent offered no testimony whatsoever as to the reason or reasons why Thompson, Johns, and Johnson were selected for layoff. Thus, there is no testimony from any Respondent witness that these employees had ever received any warning or reprimand or that their services were in any way unsatis- factory.[[ That they were satisfactory employees is further shown by the fact that John and Thompson were subsequently recalled. Johnson was also asked to return, but declined reinstatement. Significantly, when testifying about these and the other discriminatees who were recalled, Saum testified, "we figured that the layoff may have straightened them out." If Saum intended this to be in reference to the employees work habits or abilities, it is difficult to understand how the employees could have been "straightened out" by the layoff, for none were informed Craft's subsequent statement at the hearing that he deemed Wright to be "rehireable," I deem it unnecessary to discuss this incident , concerning which there is some dispute. 11 Johnson at one time worked as a foreman with the Respondent. He was not laid off during the 1970 layoff, but was retained to perform cleanup and other menial work during this period. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they were laid off because of this or any related reason. It will be recalled that each of these employees were observed attending the union meeting at the union hall on May 3, 1971, during Foreman Rayborn's unlawful surveil- lance of this activity on that date. Indeed, the names of each of these employees were specifically mentioned either by Rayborn or by one of his passengers as he drove past the union hall at this time. On the basis of this unlawful surveillance, Respondent's expressed opposition to the unionization of its employees, as well as the other factors and circumstances noted above (and also those noted in connection with Respondent's termination of Wright), I am persuaded that the General Counsel has made a prima facie showing that these employees were laid off on May 6 because of their known union activities. In the absence of any rebuttal or adequate explanation concerning the reason for these employees having been selected for layoff, I find and conclude that they were terminated in violation of Section 8(a)(1) and (3) of the Act. The case of George F. Miller is substantially the same as that of the above three employees except that there is no testimony by McGahee or any other witness that his name was called out when Foreman Rayborn drove past the union hall on May 3 for surveillance purposes.12 However, Miller not only attended the May 6 union meeting, but he testified that after the meeting he was standing outside the front of the hall when he observed Foreman Rayborn's car drive slowly past. He testified that all those in Rayborn's car looked toward him as they drove past. Foreman Rayborn, although available at the hearing, was not called upon to testify and did not contradict the foregoing testimony. Accordingly, I am constrained to find that Miller was also observed attending the union meeting and that his layoff on May 6, in the absence of any other explanation by the Respondent, was also motivated by discriminatory considerations. As noted heretofore, Rodney Ready was one of the employees whom President Saum testified that he person- ally selected for layoff. In extremely generalized testimo- ny,13 Saum testified that on various occasions he had observed Ready keeping other employees from performing their work by talking to them when he went to the toolcnb. Although this was the reason he cited for personally selecting Ready for layoff, he could not specify, timewise, when any of these incidents occurred and, if these incidents were so disturbing to him, he admittedly did not speak to Ready about them. Ready, employed as a welder 12 Respondent offered no testimony to indicate that Miller was an unsatisfactory employee, nor did it give any particular reason for selecting him for layoff He testified without contradiction that he never received any oral or written reprimands throughout his employment Like the others, he was subsequently reinstated 13 Certain of this testimony, which was applicable to the four employees selected by Saum, including Ready, has been previously quoted in its entirety See infra 14 Rodney acted as leadman over as many as 22 welders until July 1970. Although the record was not fully developed on the point, it appears that he was relieved as leadman at that time due to his leaving the plant early. Respondent has made no claim that Ready was not a competent welder. is Credited and unrefuted testimony of Ready 16 Additionally, Wright testified that several weeks after he was laid off he had a conversation with Superintendent Overcash at Mane's Drive-In by Respondent since May 1965, was one of Respondent's most experienced and senior employees.14 Although there had been yearly layoffs during this period, Ready had never been laid off prior to the May 6, 1971, layoff. At the time of the May 6 layoff, however, Respondent retained approximately four welders who had less seniority than he.15 Ready, it will be recalled, was asked by Foreman Rayborn, about 3 weeks prior to the layoff, if Wright was trying to get a union started. Ready responded that they were both working on it. While this is the sole incident of record involving Ready's union activity, this evidence suffices to unquestionably establish that by this conversa- tion Respondent was given to believe that Ready was one of two employees who were attempting to bring the Union in. Since Respondent's explanation for selecting this experienced employee for layoff does not impress me as being worthy of belief, under the circumstances noted above, including Respondent's opposition to the Union and the various other reasons I have assigned for the discrimination previously found, which reasons are also applicable to Ready, I conclude and find that Ready was selected for layoff because of Respondent's belief that he was a leading union adherent.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, occurring in connection with the operations of Respondent set forth in section I, above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily laid off William Johns, William Johnson, George Miller, Rodney Ready, and William O. Thompson in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent make them whole for any loss of earnings which they may have suffered by reason of the discrimina- tion practiced against them from time of their layoff on May 6, 1971, until the respective dates of their reinstate- According to Wright's credited and undemed testimony, Overcash told him that they had a "little stew down there," and that he (Wright). Rodney Ready, Fred Miller, and M C Bryant would probably never work for the Company again In this connection I should note that Miller and Bryant , as well as Kenneth Webb and Charles Gardner (who were observed attending the May 3 union meeting) are not named in the complaint as alleged discriminatees Concerning these and the other employees who were laid off on May 3, the General Counsel, who would not concede that these layoffs were not discriminatorily motivated, stated only that he felt he did not have sufficient evidence to proceed with the cases of these employees Some of the individuals, but not all of them, were named in the charge I am, of course, precluded from making any finding with respect to employees who are not named in the complaint UNIVERSAL MANUFACTURING ment, or offers of reinstatement. Backpay shall be computed on a quarterly basis with interest at the rate of 6 percent per annum in accordance with F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent discrinu- natorily laid off Robert Wright in violation of Section 8(a)(3) of the Act, it will be recommended that Respondent offer him full and immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of such discrimination, in the manner described above. In view of the nature and extent of the unfair labor practice herein found, I deem it necessary to recommend a broad cease-and-desist order. CONCLUSIONS OF LAW 1. Universal Manufacturing & Supply Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers International Association, Local 399, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. 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 in violation of Section 8(axl) of the Act. 4. By laying off William Johns, William Johnson, George Miller, Rodney Ready, Robert Wright, and William O. Thompson on May 6, 1971, for the purpose of discouraging union activity, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the following:17 ORDER Respondent Universal Manufacturing & Supply Co., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities or the union activities of other employees. (b) Engaging in surveillance of organizational or union meetings of its employees. 17 In the event no exceptions are filed as provided by Sec. 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 Sec. 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. 19 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 611 (c) Laying off or otherwise discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment, for the purpose of discouraging union activity. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole William Johns, William Johnson, George Miller, Rodney Ready, and William O. Thompson for any loss of earnings they may have suffered by reason of the discrimination practiced against them, in the manner set forth in that part of this Decision entitled "The Remedy." (b) Offer Robert Wright full and immediate reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination practiced against him in the manner set forth in that part of this Decision entitled "The Remedy." (c) Notify Robert Wright, if presently serving in the Armed Forces of the United States, of his right to full and immediate reinstatement upon application in accordance with the Selective Service and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, _ all payroll records, social security payment records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (e) Post at its plant at Aiken, South Carolina, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent had taken to comply herewith-19 Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."" 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.