Indian Head Hosiery Co., Inc.

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indian Head Hosiery Company, Inc. and Raymond J. Schnell, Field Representative, AFL-CIO. Case 11- CA-4727 October 4, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On May 22, 1972, Administrative Law Judge' Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions to his Decision and a supporting brief. Pursuant to the provision of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm only such of the rulings, findings, and conclusions of the Administrative Law Judge as are consistent herewith. Based on a charge filed with the Board's Region- al Office on November 15, 1971, the General Counsel issued a complaint, as amended, alleging that Respondent's failure to recall three former employees who were on layoff status, on April 19 and 20, 1971, and Respondent's failure to rehire them in October and November 1971, because of their former union and concerted activities violated Section 8(a)(3) and (1). The facts show that Betty Gurganious, Retha Bur- roughs, and Hilda Powell Peach had worked in Respondent's preboarding department and were numbers 19, 10, and 2, respectively, in seniority in that department. All had been active in the Union during its existence prior to February 1969 when the Union was decertified. On November 2, 1970, Respondent closed its preboarding department for economic reasons and approximately 45 employees from that department were laid off, including the alleged discriminatees. At that time the employees were told that they would be recalled should the department be reopened. The de- partment was reactivated on April 10, 1971, but the three alleged discriminatees received no notice of re- call. Although the three discriminatees were aware that the department was again operating, they did not seek their old jobs back until October and November of 1971, a time when preboarding department was already working short hours, and no jobs were avail- able. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 The General Counsel contends that Re- spondent's failure to recall them on April 19 and 20, 1971, was the first chance Respondent had to discrim- inate against these three most active union adherents and that the failure to recall them was a continuing violation. The Administrative Law Judge agreed with the General Counsel's contentions that Respondent discriminated against them on April 19 and 20, 1971, by failing to recall them and that Respondent was motivated by the fact that approximately 2 years earli- er the employees had engaged in extensive concerted and union activities. The Administrative Law Judge found it unnecessary to determine whether Respon- dent also violated the Act when it refused to rehire them in October and November 1971, as the remedy would be the same, and made no findings regarding the General Counsel's theory of a continuing viola- tion. Respondent claims that the Administrative Law Judge's findings of a violation in April 1971 was time barred since it was beyond the 10(b) period of limita- tion as proscribed in the Act .2 We find merit in Respondent's contentions in this regard. Section 10(b) of the Act specifically prohibits us from finding a violation of the Act when the alleged unfair labor practice has occurred more than 6 months prior to the filing of the charge on which it is based. Since the charge here was, not filed until November 15, 1971, we cannot look beyond May 15, 1971, except for eviden- tiary purposes of motivation, in finding a substantive violation of the Act 3 The record shows and the Administrative Law Judge found that between April 19 and 30, Respon- dent hired a total of 44 employees in the preboarding department, and employee complement almost equal to that in the department prior to the November 1970 layoff. Although Respondent hired new employees between May 3 and June 16, 1971, it had apparently reached a full complement of employees in late April and all available jobs in the preboarding department were filled by early May. As found by the Administra- tive Law Judge, all persons hired after the 10(b) cutoff date were replacements of those either recalled or hired into the new department who subsequently quit. Thus, prior to May 15, Respondent filled all jobs cre- ated by the reopening of the department, and any discrimination evident in the failure to recall had by that date become final. Since the finding of a violation would be grounded on events predating the 10(b) lim- itations period beginning May 15 we are precluded 2 Sec. 10(b) of the Act reads, in pertinent part. "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ...... 3 Local Lodge No. 1424, International Association of Machinists [Bryan Manufacturing Co.] v. N.L.&B., 362 U.S. 411. 199 NLRB No. 75 INDIAN HEAD HOSIERY COMPANY, INC. 489 from finding an unfair labor practice based thereon.4 Accordingly, we shall dismiss that portion of the com- plaint alleging a failure to recall, and a continuing failure to recall, as they occurred outside the 10(b) period of limitations.' Regarding the failure to rehire Peach, Burroughs, and Gurganious when they presented themselves at the plant in October and November 1971, the record shows, and we have found, that Respondent had a full complement of employees in the preboarding depart- ment by the end of April or early May. Some time in June, production in the department fell drastically, and Respondent has not hired and has not replaced any employees who have left since June, and has actu- ally had the department working only on alternate weeks so that any remaining employees will not have to be laid off. Since there is no showing that jobs were available for the alleged discriminatees when they sought employment in October and November 1971, we also dismiss that portion of the complaint alleging that Respondent discriminatorily refused to rehire them when they sought employment on those dates. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 4 Furthermore, there is no evidence that Respondent was recalling employ- ees at any time within the 10(b) period. The record shows that the last date an employee designated as a "recall" began working was May 10, 1971, and this was the only "recall// after April 28, 1971. 5 See Bowen Products Corporation, 113 NLRB 731; N.L.KB v. Pennwoven, Inc., 194 F 2d 521 (C.A. 3, 1952). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner:, This proceeding tried before me at Wilmington, North Carolina, on March 7 and 8, 1972, with all parties present or duly represented, involves a complaint 1 pursuant to Section 10(b) of the Na- tional Labor Relations Act, as amended (herein the Act), which, as amended, alleges that Indian Head Hosiery Com- pany, Inc. (herein Respondent or Company), failed to recall and failed to rehire Hilda Peach, Retha Burroughs, and Betty Gurganious (each of whom had previously been laid off for valid economic reasons), because they joined or as- 1 Issued January 31, 1972, on a charge filed November 15, 1971. sisted a labor organization, or engaged in other union or concerted activities. For reasons hereafter stated, I find the allegations of the complaint sustained by the evidence and recommend an appropriate order. At the trial all parties were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. The filing of briefs was waived, but oral argument presented by counsel for the General Counsel and Respondent, re- spectively, is included in the transcript and has been duly considered. Upon the pleadings, stipulations of counsel, the evi- dence, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 2 Background Respondent is engaged at Wilmington, North Caroli- na, in the manufacture of hosiery. About 1965, Textile Workers of America began a campaign to organize Respondent's employees. In due course a representation petition was filed, and after an election the Union was certi- fied in late 1966 or early 1967, following which the parties began bargaining for a contract. On or about June 7, 1967, a great number of the employees engaged in a 24-hour strike to protest what they regarded as the undue delay on the part of the Company in agreeing to a contract. When the striking employees returned to work the following day, Betty Gurga- nious 3 was given a separation notice which stated that she had been replaced because she failed to report for duty on June 7. Other employees finding that their timecards had been removed from the rack, and were in the possession of supervisors who gave them to some employees but not to others, after waiting for a period, concluded that the Com- pany had fired them and suggested picketing of Respondent's plant, which they proceeded to do. The num- ber of employees who engaged in this picketing is not dis- closed by the record, but it included at least Retha Bur- roughs and Betty Gurganious, two of the three alleged dis- criminatees in this proceeding .4 After picketing about a week the strikers returned to the plant and asked for their jobs, but were told that there were no jobs available for 2 No issue of commerce is presented . The complaint alleges and the answer admits facts which establish this jurisdictional element I find those facts to be as pleaded Although the complaint does not allege that any labor organi- zation is involved, the evidence shows that a local of Textile Workers of America organized the employees and was certified as the representative of the employees of Respondent's Wilmington, North Carolina, plant; that for about a year it had a contract with Respondent covering said employees, and that pursuant to a Board-conducted election held in February 1969 the Local was decertified . On the basis of this evidence , I find that there existed at Respondent's aforesaid plant, a labor organization within the meaning of Sec. 2(5) of the Act. 3 Gurganious had worked for Respondent from 1962 to 1964, when she left for maternity reasons. She was rehired in June 1967 and was scheduled to report for work on the day of the 24-hour protest strike, but did not cross the picket line, reporting for work the following day 4 Hilda Powell Peach, the remaining alleged discrinunatee had not yet been hired at the time of these events. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them. Because of these events, the Union at least on behalf of Gurganious and Burroughs, filed charges with the Board and, in October 1967, both were reinstated with backpay.5 Upon returning to work in October 1967, Gurganious was elected to the Union's bargaining committee and par- ticipated in the bargaining with Respondent until about February 1968, when a contract was signed. After the con- tract was signed, Gurganious was elected secretary of the local and served in that capacity for the remainder of 1968. In addition Gurganious served as a shop steward until Feb- ruary 1969, when the Union ceased to be the bargaining representative of the employees. Additionally, during this period of her employment Gurganious solicited her fellow employees to sign cards on behalf of the Union; passed out union literature in front of the plant on a number of occa- sions; and wore union buttons while at work. Retha Burroughs began working for Respondent in 1958, and was active in support of the Union's campaign from its inception. She solicited a great number of employ- ees both at work and in their homes, to support the Union's cause; handbilled the plant on a number of occasions; wore union buttons while at work, sometime in multiple num- bers; engaged in picketing the plant as above related; and, like Gurganious, served on the Union's negotiating commit- tee until the contract was signed in February 1968. Hilda Peach came to work for Respondent about Sep- tember or October 1967. She promptly became active in the Union's campaign soliciting employees to sign cards, and on a number of occasions handbilled the plant, passing out union literature. Sometime in 1968, while the contract be- tween Respondent and the Union was in effect, Peach testi- fied on behalf of the grievant in an arbitration proceeding between the Company and the Union. The nature nor the results of the arbitration proceeding is disclosed by the rec- ord. In February 1969, apparently prusuant to a decertifica- tion petition, the Board conducted an election among the employees of Respondent's Wilmington plant, and having lost this election, the Union was immediately decertified. The evidence is uncontradicted that, following the decertifi- cation, no union activity of any kind took place among the employees at said plant 6 Sometime in the summer of 1969, there no longer being a collective-bargaining representative in the plant, Respon- dent prepared and distributed to all employees on "Employ- ee Handbook" which, the employees were told, would govern all employment practices. To the extent here mate- rial, the handbook stated that departmental seniority (con- tinuous employment in a particular department), would be used in determining job rights; that in the event of a reduc- tion in force, the employee with the least seniority in the department would be the first laid off; that employees so laid off would be placed on a recall list by departments, and would be recalled to work in their department in inverse order of layoff; that employees to be recalled would be 3 Just how this came about the record does not reflect . Presumably, it resulted from an informal settlement of the aforementioned charges filed with the Board. 6 My finding to this point are based on the uncontradicted and credited testimony of Gurganious, Burroughs, and Peach. notified of that fact by telephone or registered mail; and that recalled employees were expected to report for work or contact the personnel manager within 3 days of receipt of the recall notice. The handbook additionally provides that an employee will lose "all seniority rights" if he (1) quits; (2) is discharged for cause; (3) is laid off for more than 12 months; (4) is recalled from layoff and fails to report for work within 3 days; (5) fails to return from a leave of ab- sence; and (6) is absent from work for 3 consecutive days without notifying the Company. About the same time that the handbook was distrib- uted to the employees, there was also posted in a glass enclosed and locked bulletin board a six-page statement entitled "Personnel Policy Manual, Subject: Seniority." This document also defined seniority and stated that de- partmental seniority would prevail in determining job rights. However, with respect to recall from layoff the policy manual states that for a period not exceeding 3 months after the layoff date employees shall be entitled to recall, with those in layoff status for more than 3 but less than 12 months to be given preferential consideration for employ- ment, but if reemployed seniority shall be reinstated to the preceding date of hire. With respect to the notice to be given a laid-off employee in the event of'recall, the policy manual states that such notice may be given "through friends or by telephone, but official notice ... will be given by means of registered mail (return receipt requested) sent to the employee's address as shown on his personnel record," and will be terminated as a quit unless they report for duty within 3 working days after receipt of the notice unless proper excuse is presented within a reasonable time. With respect to loss of seniority the policy manual is identical with the handbook above referred to .7 On November 2, 1970, Respondent found it necessary to close its preboarding department and to layoff the ap- proximately 45 employees then working in that department, including Gurganious, Burroughs, and Peach, who at the time were numbers 19, 10, and 2, respectively, on the senior- ity list for that department. The General Counsel concedes that this layoff was dictated solely by legitimate economic considerations. At the time of the layoff, Robert Loy, then personnel manager at the Wilmington plant, assembled the employees of the preboarding department by shifts, and told those on the first shift where Gurganious, Burroughs, and Peach worked, that the department was being closed down and all employees laid off; that he hoped the depart- ment could be reopened at a later time and, if it was, the employees would be recalled in the order of seniority, but 7 Johnson, Respondent's director of employee relations, testified that he authorized both the handbook and policy manual ; and that the latter was posted some 2 or 3 months before the handbook was distributed to employ- ees, and that he attended meetings at which the pohcy manual was discussed with an explained to employees by plant supervision ; and that the handbook was merely a synopsis or explanation of the policy manual , the latter prevail- mg where there was a conflict. Gurgamous, Burroughs, and Peach testified that they saw the pohcy manual posted on the bulletin board, after the handbook was distributed they thought, but that it was never discussed with them by supervision, and that they had no recollection that the policy manual stated that recall rights would last only 3 months. In the view I take of the case, it is unnecessary to resolve the conflict INDIAN HEAD HOSIERY COMPANY, INC. 491 if the department was not reopened, he would try to place them in jobs in other departments.8 Current Facts On or about April 14 or 15,9 Plant Manager Horn informed Personnel Manager Loy that the preboarding de- partment would be reactivated immediately, and directed that Loy have from 40 to 50 workers available for that department as soon as possible . According to Horn, he told Loy to utilize the list of preboarding employees laid off the preceding November, to communicate with as many of those as he could, and recall those willing to accept employ- ment, in the order of seniority, and when the list was ex- hausted to resort to applications for employment which the Company had on file. Also according to Horn , he was in- formed by Loy that the latter went through the preboarding list "numerous times," and that some employees Loy con- tacted, for reasons of their own, declined the offer of em- ployment. 10 The record shows that between April 19 and April 30, Respondent hired a total of 44 employees, of which 19 were recalls from among the 45 laid off the prior November, and the remaining 25 were new hires who had not therefore worked for the Company ." Between May 3 and June 16 a total of 40'additional employees were hired, of whom 1 was a recall, and the remaining 39 were new hires.12 The evidence is uncontradicted that neither Peach, Burroughs, nor Gurganious, although they stood number 2, 10, and 19, respectively, on the list of those laid off the prior November, received any communication from Respondent about returning to work . The evidence is also undisputed that at least two people on the preboarding seniority list (Virginia Ganey and Barbara Dixon, who were 5 or 6, and 6 or 7, respectively, on the list), were recalled to work in April by means of a letter sent by certified mail. Ganey did not have a telephone but Dixon had provided Respondent with a telephone number where she might be reached, the number being 13 that of her sister-in-law, or of her neighbor. Respondent's basis defense to the complaint herein is that it tried to communicate with the three employees in- volved, but was unable to reach them . The relevant facts with respect to this defense may be summarized as follows: Respondent introduced into evidence its personnel rec- ords for these employees, each of which shows an address and telephone number.14 With respect to Gurganious, Re- spondent raises no question about the accuracy of the infor- mation thereon. With respect to Burroughs, Respondent 8 Based on the credited testimony Gurgamous, Burroughs, and Peach. Loy, although served with subpena, did not appear at the trial. However, the General Counsel and Respondent stipulated what Loy's testimony would be had he testified . On this point the stipulation is that on November 2, 1970, Loy told the girls "that they would have recall rights." I do not regard Loy's testimony in this regard as in any way inconsistent with or in contradiction of that of the aforementioned employees. 9 This and all dates hereafter mentioned are 1971, unless otherwise stated. 10 The testimony of Loy, received pursuant to stipulation, is not entirely in accord with that of Horn According to the stipulation as to what Loy's testimony would be, he and those assisting him, using the list of the laid-off preboarding employees, telephoned each employee starting with the top of the list, but if they got no answer went to next name down the list, and so on until the list was exhausted, and then they resorted to applications for employment on file with the Company. raises no question about the accuracy of her address as it appears on its records, but claims that it had an inaccurate telephone number for her. Burroughs testified that her tele- phone number was 687-7857, and that there has been no change in that number since her layoff, and that she fur- nished that number to the Company , at its request, approxi- mately 6 weeks before the layoff. Respondent's records, however, show her telephone number as 763-4526. No testi- mony was offered by either party in explanation of the apparent discrependy, or how the error, if it was an error, may have occurred. In the case of Hilda Peach the evidence shows that, when initially employed by Respondent in 1967 , she gave the Company her address as 705 Spofford Circle, Wil- mington, North Carolina, and her telephone number as 762-0487. Actually, this is the address and telephone num- ber of Peach's mother. At some time not disclosed by the record, Peach moved to 4-C Lake Village, where she lived The time and breakdown of the hires are as follows- Date No. hired Recalls New hires April19 6 6 0 April20 9 5 4 April 21 4 2 2 April22 3 2 1 April23 2 0 2 April 24 1 0 1 Apnl26 10 2 8 April 27 3 1 2 April 28 4 1 3 April 29 1 0 1 April 30 1 0 1 Totals 44 19 25 12 Over the period subsequent to April 19, a number of the employees hired for preboarding terminated their employment for one reason or another, which made it necessary to hire additional people , and by March 2, 1972, employment in that department stood at 25. Since June 16, no one has been hired for the preboarding department i3 Plant Manager Horn testified that some people on the list were sent letters because they did not have telephones and could be reached quicker by letter, but gave no explanation as to why letters were not sent to Peach, Burroughs, or Gurganious notwithstanding Respondent's own policy state- ment that `official notice of recall to will be given by means of registered mail :' Neither did he explain why a letter was sent to Dixon although she had provided Respondent with a telephone number where she might be reached. The stipulated testimony of Loy makes no mention of attempts to recall employees by mail I do not credit Horn 's testimony that letters were sent to some employees because they could be reached easier that way Not only did Horn fail to give any basis of knowledge of the facts, but he admitted that Personnel Manager Loy had never informed him that he (Loy) had sent a letter to any girl recalling her to work Moreover, Horn did not impress me as a straightforward witness whose testimony would inspire confidence in its reliability. Rather he impressed me as one who had something to hide and seemed fearful that he might inadvertently disclose something. For example, he professed complete lack of knowledge as to whether the letter to Virginia Ganey (G.C. Exh. 4) was or even that it appeared to be a form letter, when it is perfectly obvious that it was . He also professed inability to explain why new hires were put to work on April 20 and 21, ahead of recalls who were put to work later, and refused to state whether that was, or even that it appeared to be, contrary to his instructions to Loy regarding the practice the latter was to follow in recalling the previously laid-off employees. 141 credit the testimony of Gurganious, Burroughs, and Peach that Re- spondent periodically sent someone through the plant to get updated infor- mation with respect to the addresses and telephone numbers of its employees, and that they supplied such information on the last occasion about 6 weeks prior to their layoff. I do not iegard the testimony of Company Representa- tive Johnson that the practice of asking employees for addresses and tele- phone numbers was abandoned in 1969, as being in conflict with the positive testimony of the alleged discnminatees that such information was requested of them, and that they supplied it pursuant to such request. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until November 1971. A telephone was installed at this loca- tion, the number of which was 762-9244.15 On Respondent's personnel record, the original address furnished by Peach has a line drawn through it, and the new address written in by hand, but there is no change in the telephone number. The evidence additionally shows that at all times material Peach's mother was employed at Respondent's plant, that prior to her layoff the Company at times sent messages to Peach through her mother; and that during Christmas 1970, after her layoff, Respondent sent Peach a message through her mother, that she should call for a ham that Respondent was giving its employees as a gift. Other than the stipulation that Loy, if present, would testify that he and company representatives calling persons from the list would call a certain number, and if that num- ber did not answer would proceed to the next name on the list-testimony which I do not credit-there is no evidence in the record that Respondent had any difficulty communi- cating with the employees involved or, if so, what that diffi- culty was. Indeed there is no specific testimony that the three individuals here involved were in fact ever called; if they were in fact called was the inability to speak with them because the telephone did not answer, or because a wrong number was reached; if the phone did not answer, what efforts, if any, were made to call later; if Respondent reached wrong number what effort, if any, was made to ascertain and call the correct number? As to all of these questions the record is silent. On October 12, Gurganious and Burroughs together went to Respondent's plant, where they conferred with Per- sonnel Manager Loy. They asked Loy why they had not been called back to work and told him they were still inter- ested in their jobs. Loy responded that the Company was calling people back as it needed them, but that he had not had the opportunity to call them, and that those who had been recalled were only working about half time. About a week later Gurganious and Burroughs returned to the plant and again talked to Loy. On this occasion they reminded Loy of their high standing on the seniority list and com- mented that it was their understanding that under Respondent's policy it would recall the employees previous- ly laid off before hiring new employees, as Respondent had done. Loy's response again was that he had not had the opportunity to call them as there was not sufficient work. In neither of these conversations did Loy make any claim that he had tried to communicate with Gurganious or Bur- roughs, but had been unable to reach them.16 15 Peach testified that she had this number until July or August 1971, when the telephone was apparently disconnected. She further testified that in No- vember 1971, which, of course, was after the events here involved, she moved from 4-C Lake Village to 1109 Spofford Circle. Apparently no telephone was installed at the latter location. 16 Based on the credited testimony of Gurgamous and Burroughs. The stipulated testimony of Loy refers only to the October 12 conversation, no mention being made of the October 19 conversation. According to Loy, the employees merely asked about possible employment in preboarding; he that stated such was not available but that perhaps something might be open on the third shift in sewing or knitting , both stated they would be interested only in a first-shift job, he responded there are no first-shift jobs available; and both women then left the plant. To the extent that there is a conflict between the testimony of Loy, on the one hand, and Gurgamous and Burroughs on the other, I credit the latter. After two prior unsuccessful attempts to communicate by telephone with Loy during the preceding month, Peach went to see Loy on November 11. In substance Peach told Loy that she needed and was available for work. Loy told Peach that no work was then available, but that plans were under consideration for the installation of a dye board oper- ation and, if this was done, she would be called back.17 Gurganious testified that she learned in May that Re- spondent was recalling employees for preboarding, and when asked to explain why she waited until October before going to see the Company about work she explained that Personnel Director Loy, whom she had met on the street in June, told her that the Company had hired only a few girls and those were working only part-time, that she had been told at the time of her layoff that employees would be recalled in the order of seniority, and as she was number 18 on the list, she waited for her turn to be reached. Burroughs testified that she first learned that some em- ployees were recalled by Respondent in April, but did not learn that new employees were hired ahead of people on the list until August; that when she learned about the new em- ployees being hired, she telephoned Loy but was unable to get to speak to him; and that she did not go to see Loy until October because he had told the laid-off employees that they would be called back in the order of seniority and ahead of new employees. Peach testified that she learned from her mother about mid-April that Respondent was hiring for preboarding, and that she knew those hired had to be junior to her because she was number 2 on the list. She explained the delay in her going to see Loy by the fact that she was injured in mid- April which incapacitated her for 6 weeks, and that she had to go through a second operation in September, which inca- pacitated her for another 6 weeks. Contentions and Conclusion As has been said with such frequency as to make un- necessary the citation of authority, an employer is free to discharge an employee for any reason, or for no, reason so long as it is not for union or concerted activity protected by Section 7 of the Act. I perceive it to be axiomatic that the same principles are applicable when an employer refuses to hire an applicant for employment, or to recall or rehire a previously laid-off employee. See Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177. Accordingly, under the principles mentioned, if the General Counsel establishes by a prepon- derence of the evidence that Respondent discriminated against Gurganious, Burroughs, and Peach and that such discrimination was motivated by the fact that said individ- uals had engaged in union or concerted activity protected by Section 7 of the Act, there can be no question but that a violation of Section 8(a)(3) of the Act has been estab- lished. On the other hand, if the General Counsel failed to establish either of the two elements above-mentioned, then 17 The findings in this section are based on the credited testimony of Peach. Loy admits the meeting with Powell on November 11, 1971, and admits the discussion about the dye board operation, but claims that he told her that such work, if it became available, would be only on second or third shift, and that Powell replied that she was only interested in first-shift work. To the extent that Loy's testimony conflicts with that of Powell, I credit the latter. INDIAN HEAD HOSIERY COMPANY, INC. 493 the complaint must be dismissed. I turn now to a considera- tion of those questions. Was There Discrimination? That Respondent discriminated against the three peo- ple here involved can hardly be open to question. The "Handbook" and the "Policy Statement" announced to all employees during the summer of 1969, although differing somewhat in the precise procedure to be followed in the event of a layoff, that in the event of such a layoff and subsequent necessity for employees, such employees would enjoy certain preferences.'8 In addition, the uncontradicted testimony is that at the time of the November 2 layoff Personnel Manager Loy told all the laid-off employees that Respondent hoped to reopen the preboarding department and, if it did, they would be recalled in the order of seniori- ty; nothing being said about a time limitation on their recall rights. Nonetheless, it is undisputed that neither Gurgani- ous, Burroughs, nor Peach was recalled nor offered employ- ment by Respondent, as were numerous others on the list of those laid off on November 2. This, I find and conclude, constituted a discrimination against the aforementioned employees with respect to their hire or tenure of employ- ment, and I so find and conclude. As the Supreme Court said in Radio Officers' Union v. N.L.R.B., 347 U.S. 17, 39 "involuntary reduction of seniority, refusal to hire for an available job, and disparate wage treatment are clearly dis- criminatory" (Emphasis Supplied).19 Having concluded that Respondent discriminated against Gurganious, Burroughs, and Peach is not the end, but only the beginning of the issue I regard as critical in the disposition of this case, for not all discrimination is violative of Section 8(a)(3). Retail Clerk's Union, Local 1357 (Lit Brothers), 192 NLRB No. 172 (TXD). To constitute a viola- tion of that section the discrimination must be of a character which "encourage[s] or discourage[s] membership in any labor organization" (Sec. 8(a)(3) of the Act). In applying the quoted phrase, it must be born in mind, as the Supreme Court has held, that with exceptions not here material, the section applies to "discrimination to discourage participa- tion in Union activities as well as to discourage adherence to Union membership." Radio Officers' Union v. N.L.R.B., supra, 39-40. And while in proper circumstances the pros- cribed intent may be inferred from the discrimination itself (Radio Officers'v. N.L.R.B., supra, 45), or at least may cast 18 As heretofore indicated the "Handbook" distributed to employees con- tained nothing to indicate that recall rights of a laid -off employee would expire after some designated period . However the "Policy Manual" posted on the bulletin board stated that recall rights would extend only to those employees who had been in layoff status for less than 3 months, and those laid off for more than 3 but less than 12 months would be given preferential consideration for employment 19 I am not holding, as Respondent argues that I must in order to reach the conclusion that it discriminated against the three employees involved, that each enjoyed recall rights without limitations as to time. To what extent, if at all, an employer may limit or abrograte possible recall right of a laid-off employee is a question as to which I find it unnecessary to express any opinion. All I hold is that whether legally obligated to do so, or not, Respon- dent elected to use, in the order of seniority, the list of those laid off on upon the employer the burden of going forward with evi- dence of legitimate and substantial business justifications for the conduct (N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. at 34), the Board has held that Great Dane is inapplica- ble where the issue turns upon the employer's motive for particular conduct. Standard Times Publishing Company, 169 NLRB 1129, 1131, fn. 8. In such cases the burden rests with the General Counsel to establish by a preponderance of the evidence that the employer had the proscribed mo- tive. Applying the foregoing principles to the instant case, the precise question to be decided is has the General Coun- sel established by a preponderance of the evidence that in failing to recall Gurganious, Burroughs, and Peach in mid- April 1971 Respondent was motivated, even in part, by the fact that approximately 2 years earlier said employees had engaged in "concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection," within the meaning of Section 7 of the Act. Upon careful consider- ation of the entire record, I am convinced, and therefore find and conclude that the question posed must be answered in the affirmative, and that Respondent's contention that it failed to recall the employees solely because it was unable to communicate with them is simply a subterfuge seized upon in an attempt to obscure the true motive for its con- duct, and to give it apparent legitimacy. I reach this conclu- sion upon the totality of the following considerations: 1. Respondent was well aware of the fact that the three employees here involved were deep in prounion activity. Not only did Gurganious and Burroughs handbill the plant and solicit employees to become and remain members of the Union, but they were on the Union's committee that bar- gained with representatives of Respondent. Both filed charges with the Board which resulted in their being rein- stated with backpay. Peach not only handbilled the plant and solicited card signers, but she testified against Respon- dent in an arbitration proceeding between it and the Union. 2. Respondent makes no complaint concerning the work record of any of the employees involved. 3. Instead of recalling the three employees here in- volved, each' of whom had theretofore established a record as a competent and satisfactory employee, Respondent within a period of 11 days hired at least 29 new employees none of whom had theretofore worked for the Company nor had previous experience in the work required of them. Plant Manager Horn admitted that such new employees worked at piece rate, with a guarantee that they would earn at least $1.60 an hour, and that it takes from 6 to 8 weeks for the average employee to reach the level of proficiency that they would earn the guaranteed minimum. I find it difficult to believe that an employer would forego the services of trained and satisfactory employees, and instead hire un- trained and unproven employees that would cost him mon- ey to train, unless there was a reason therefor, and the only November 2 and that, when it failed to recall Gurganious, Burroughs, and Peach, Respondent discriminated against them within the meaning of Sec. 8(a)(3) of the Act. Whether such discrimination is of a type proscribed by the remainder of Sec. 8(a)(3) is the next question to be considered. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason that suggests itself on this record is the union and concerted activity of these employees, of which Respondent was well aware. ° 4. Respondent's sole justification for its failure to recall the employees involved is that it attempted to communicate with them by telephone and was unable to do so, pointing out that in the case of Burroughs it had a wrong telephone number.21 Not only was recall by telephone contrary to the statement in Respondent's "Personnel Policy Manual,"22 but, as I have discredited the testimony of Loy, I find the evidence insufficient to establish that Respondent made any effort to communicate with the employees involved by tele- phone, and it is clear that it did not attempt to use any other method of communication. The only other testimony of- fered by Respondent on this issue is the hearsay statement of Plant Manager Horn, whom I have also found not to be a reliable witness, that he had been informed by Loy that the latter, in recalling employees, went down the seniority list "numerous times." But even assuming that Respondent made an effort to communicate with each of the three em- ployees involved by telephone and for some reason was unable to get them, there is still inadequate explanation as to why Respondent wrote employees Ganey and Dixon recalling them to work, but did not write to Gurganious, Burroughs, and Peach 23 5. What all this adds up to is that the three employees here involved, all with unblemished employment records, are contrary to Respondent's own announced employment practice of officially recalling laid-off employees by letter, passed over for employment in favor of inexperienced em- ployees who, before they will perform satisfactorily will have to be trained at some considerable cost to Respondent, allegedly because it was unable to communicate with them by telephone, although it recalled other employees by letter. This is just not the way employers faced with such a situ- ation normally react. An employer not motivated by a de- sire to discriminate would call several times if a phone did not answer, or would at least make some effort to ascertain if perhaps he was calling a wrong number, or at least write a letter to the last address in its files. But Respondent does not even claim that it did any of these things. Plainly there was some motive which dictated Respondent's course of action, and the only one that suggests itself is that Respon- dent, at the first opportunity that presented itself which it felt it could take advantage of, retaliated against Gurgani- ous, Burroughs, and Peach for the union and protected concerted activity in which they had previously engaged. I so find and conclude. As the Court of Appeals for the Ninth Circuit said in Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470, in language fully applicable here: If he [the trier of fact] finds that the stated motive for a discharge [or a failure to recall] is false, he can cer- tainly infer that there is another motive. More than that, he can infer that the motive is one that the em- ployer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference? Upon the foregoing findings of fact, and the entire record in the case, I make the following: CONCLUSIONS OF LAW 20 Respondent's suggestion that these employees purposely refrained from going to Respondent for employment when they learned that employees were being hired in order to continue collecting unemployment compensation, their right to same not expiring until early November 1971, while having surface appeal, does not withstand scrutiny in view of the provisions of Sec. 96-14(8) and 96-18(f) of the General Statutes of North Carolina (1971) These provide that an employee is disqualified for compensation for any week he has received any sum from his employer or any lump sum payment pursuant to an order of the Board, and if he received compensation to which he is not entitled such sum must be repaid to Unemployment Insurance Fund. Thus, any compensation they received for any week covered by the backpay order recommended herein , they must repay to the State. 21 It may be noted that in the case of Gurganious Respondent made no proof of a wrong telephone number, and in the case of Peach the number Respondent had was that of her mother who was at all times material em- ployed at Respondent's plant. There is no showing that Respondent made any effort to communicate with Peach through her mother, either by tele- phone or otherwise 22 The manual stated that recall notices may be given "through friends or by telephone, but official notice ... will be given by means of registered mail (return receipt requested) ...." 23 The explanation given by Respondent is that it wrote only to those employees who did not have a telephone . Ganey and Dixon both testified that they did not have a telephone. The explanation does not ring true however, in light of Horn's testimony that the purpose of resorting to the telephone was to get the employees to work as quickly as possible. As the letter to Ganey is dated April 16, 1971, and gave her until April 21, 1971, to indicate whether she was interested in returning to work , it is difficult to see how the objective of speed was served. Dixon, according to her testimony, received an identical letter as Ganey. The bona fides of Respondent's expla- nation is also put in question by the testimony of Dixon, that Respondent had a telephone number for her, although the number she furnished was that of her sister-in-law or of her neighbor. Finally it is difficult to understand why, if speed in communication was Respondent's prime objective, it did not even attempt to communicate with Peach through her mother who , as shown on Peach's employment record, is employed at Respondent 's plant. 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The local of the Textile Workers Union certified by the Board as the collective bargaining representative of Respondent's employees is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing to recall Gurgamous, Burroughs, and Peach in April 1971, for employment at Respondent's Wil- mington, North Carolina, plant, Respondent discriminated against them in regard to their hire and tenure of employ- ment, and the terms and conditions thereof, discouraging membership in a labor organization, and thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, I shall recommend that it be required to cease and desist therefrom and take affirmative action 24 Having reached the conclusion that Respondent 's failure to recall the three employees involved in April 1971 violated Sec. 8(a)(3) and (1) of the Act, it becomes unnecessary to decide whether it also violated the Act when it refused to rehire them when they visited the plant in October and Novem- ber 1971 , for whether such a violation is found or not the remedy would be the same. INDIAN HEAD HOSIERY COMPANY, INC. 495 found necessary and designed to effectuate the policies of the Act. The violations found being of a character that go to the very heart of the Act, I shall recommend that Respon- dent be required to cease and desist from in any manner infringing upon the exercise of employee rights protected by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. Having found that Respondent discriminatorily failed to recall for employment Gurganious, Burroughs, and Peach, it will be recommended that Respondent be required to offer each of them employment in their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, and to make each of them whole for any loss of earnings they suffered by reason of the discrimination against them, by paying to them, respectively, a sum of money equal to the amount each would have earned from April 19 in the case of Peach,25 and April 20 in the case of Gurganious and 25 There is some indication in the record that because of her injuries Peach may not be entitled to backpay for a portion of the period after April 19. As this was not fully developed in the record, I leave to the compliance stage of the proceeding the question of what period she would have been available for work. Burroughs, to the date Respondent offers them rein- statement as aforesaid, less any amount each may have earned as wages during said period.26 The backpay herein recommended shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plum- bing & Heating Co., 138 NLRB 716. It will also be recom- mended that Respondent be required to preserve and, upon request, make available to authorized agents of the Board all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due. [Recommended Order omitted from publication.] 26 The evidence shows that Respondent recalled six employees on April 19. As Peach was number two on the seniority list, it is obvious that but for the discrimination against her she would have been recalled on that day. As Gurgamous and Burroughs were numbers 19 and 10 , respectively, it is ob- vious that they would not have been reached for recall on April 19, in the normal operation of the seniority list However, on April 20, Respondent hired nine people, five of whom were recalls and four were new hires. As Gurganious and Burroughs both had seniority over the new hires , I fix their right to recall as beginning on April 20 for the purpose of computing their backpay.