Carbide Tools, Inc.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carbide Tools, Incorporated and Joe Staniszewski, James A. Chadwick, Gary R. Neidenbach, Daniel J. Friedl, Bernard Friedl, Jr., and Roy Trivett. Cases 8-CA-7006, 8-CA-7006-2, 8-CA-7006-3, 8- CA-7149, 8-CA-7160, and 8-CA-7224 August 7, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 19, 1973, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Carbide Tools, Incorpo- rated, Parma, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. In her Decision the Administrative Law Judge refers to the tool depart- ment "where Chadwick was foreman "The record shows that Donald Martin was toolroom foreman and Chadwick, a rank-and-file employee However, this error had no effect on the Administrative Law Judge's consideration and resolution of the issues in this proceeding and, therefore, was, we find, non- prejudicial The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing her findings DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon charges filed in Case 8-CA-7006 by Joe Staniszewski on May 9, 1972,' in Case 8-CA-7006-2 by James A. Chadwick on May 12, and in Case 8-CA-7006-3 by Gary R. Neiden- bach on May 17, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8 (Cleveland, Ohio), on July 18 issued an order consolidating cases, consolidated complaint and notice of hearing, against Carbide Tools, Incorporated, herein called the Respondent. Upon charges filed in Case 8-CA-7149 by Daniel J. Friedl on August 1, in Case 8-CA-7160 by Bernard Friedl, Jr., on August 8, and in Case 8-CA-7224 by Roy Trivett on Sep- tember 6, the Regional Director on September 27 issued an order consolidating cases, consolidated complaint and no- tice of hearing, against the Respondent, in which it is or- dered that Cases 8-CA-7006, -7006-2, and -7006-3, as consolidated, and Cases 8-CA-7149, -7160, and -7224 be consolidated for purposes of hearing, ruling, and decision by an Administrative Law Judge. The consolidated com- plaint alleges, in substance, that the Respondent threatened employees with discharge or other reprisals if they became or remained members of International Union, Allied Indus- trial Workers of America, AFL-CIO, referred to herein as the Union; interrogated employees concerning their union membership, activities, and desires; granted its employees wage increases in order to induce them to refrain from membership in or activities on behalf of the Union; elimi- nated the existing practice of permitting employees a 5- minute washup period before closing time as a reprisal against, and in order to discourage, its employees' member- ship in or activities on behalf of the Union; and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act; and on or about February 4, laid off Willie Chislom, Jr., Mark Frederick, Douglas Edward Free, Daniel J. Friedl, Joseph Holz, Mi- chael Shamatta, and Michael Yakubics, and at all times since then has failed and refused to recall all of them except Yakubics, who was rehired in July 1972, because they had, or the Respondent believed or suspected they had, joined or assisted the Union or engaged in other protected concerted activities, and in order to discourage such membership or activities; on or about March 7, laid off James A. Chadwick and Joe Staniszewski, and at all times since that date has failed and refused to recall them, because they had, or the Respondent believed or suspected they had, joined or assist- ed the Union or engaged in other protected concerted activ- ities, and in order to discourage such membership or activities; on or about March 8, laid off Gary R. Neiden- bach, and at all times since that date has failed and refused to recall him because he had, or the Respondent believed he had, joined or assisted the Union; on March 24, laid off Bernard Friedl, Jr., and on March 27, laid off Stanley Piszczek and Roy Trivett, and at all times since then has failed and refused to recall them, because they had, or the Respondent believed or suspected they had, joined or assist- ed the Union or engaged in other protected concerted activ- ities, and as a reprisal against its employees for supporting the Union in the Board-conducted election held on March 24, 1972; and thereby discriminated in regard to the tenure i All dates hereinafter refer to 1972 unless otherwise indicated 205 NLRB No. 61 CARBIDE TOOLS, INC. or terms or conditions of employment of its employees and discouraged membership in the Union, in violation of Sec- tion 8(a)(3) and (1) of the Act. In its answers, duly filed, the Respondent admits some of the factual allegations of the complaint, denies that it has committed any of the alleged unfair labor practices, and asserts that the employees in question were laid off for lack of work, that they were told the layoffs were permanent because there was no reasonable expectation of their being recalled in the foreseeable future, that certain of them were stipulated by the parties and found by the Regional Direc- tor to be ineligible to vote in the Board-conducted election, that the Respondent's challenges to the eligibility to vote of certain other of the laid-off employees who appeared to vote were upheld by the Regional Director, and that the Respon- dent offered reinstatement to certain of the laid-off employ- ees who failed or refused to accept the Respondent's offer. Pursuant to due notice, a hearing was held before me at Cleveland, Ohio, on November 30 and December 1, 13, and 14, 1972. All parties appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce relevant evidence. Sub- sequent to the hearing, briefs were filed by the General Counsel and the Respondent on or about February 1, 1973, which have been fully considered? Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation with its principal place of business located at 4005 Brookpark Road, Parma, Ohio, is engaged in the manufacture of cutting tools for the metalworking and woodworking industries, and screw ma- chine products. In the course and conduct of its business, the Respondent annually ships goods valued in excess of $50,000 from its Parma, Ohio, plant directly to points locat- ed outside the State of Ohio. The consolidated complaint alleges, the Respondent's answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the Respondent's answer admits, that International Union, Allied Industri al Workers of America , AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 2 The General Counsel also filed a motion to amend official transcript, which is unopposed The motion is hereby granted, and the corrections contained therein are set forth in Appendix B, attached hereto [omitted from publication] III THE UNFAIR LABOR PRACTICES A. The Issues 319 The consolidated complaint alleges in substance that the Respondent by William Sandy, president, Paul Field, assis- tant manager, and Donald Martin, foreman, on specified dates, threatened employees with reprisals because of their membership in or activities on behalf of the Union, interro- gated employees about such activities, granted benefits, and changed established working conditions in order to discour- age membership in or activity on behalf of the Union, and terminated certain employees because they had, or the Re- spondent believed or suspected they had, joined or assisted the Union or engaged in other protected concerted activi- ties. The Respondent admits that Sandy, Field, and Martin occupied the positions set forth above and were supervisors within the meaning of Section 2(11) of the Act, but denies that they were agents of the Respondent acting on its behalf. The Respondent also denies that it engaged in unfair labor practices, asserts that the employees were laid off perma- nently for lack of work as the Board recognized in the representation case procedures,3 that the Respondent had no policy of recalling laid-off employees, that the Respon- dent on advice of counsel nevertheless offered reinstate- ment to some of the laid-off employees, and that it rehired the only laid-off employee who applied for reemployment when a job was available. The Respondent urged, at the close of the General Counsel's presentation of evidence, at the close of the hearing, and in its beef, that the consolidat- ed complaint be dismissed. The Respondent's motions to dismiss the consolidated complaint are denied for the rea- sons set forth below. B. Interference, Restraint, and Coercion 1. Organization of the Union The record shows that employee Chadwick told his broth- er, who was president of a local of the Union at the plant of another employer, that he wanted to get in touch with the Union because employees "at the shop were griping about the working conditions." Chadwick was put in touch with Nick Serraglio and Donald Wagner, regional director and international representative, respectively, of the Union. Ser- raglio visited Chadwick's home on January 27, 1972. Ber- nard and Daniel Friedl, who were present, and Chadwick signed cards, and Serraglio left additional cards for them to distribute. Chadwick distributed cards in the automatic de- partment, of which Field was in charge. Bernard Friedl 3 The Regional Director's Decision and Direction of Election in Case 8-RC-3487 found, on the basis of an agreement of the parties, that the seven employees laid off on February 4 had no reasonable expectancy of recall and were therefore ineligible to vote It was stipulated at the hearing herein that the tally of ballots showed seven votes cast for and six against the Union and four laid-off employees challenged by the Respondent, that the Union "for the purposes of election agreed with the Respondent that the 4 individuals challenged were ineligible to vote ," that the challenges were resolved on that basis, and that the Union accordingly was certified on May 25, 1972, as the collective-bargaining representative of a unit of the Respondent's production and maintenance employees 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributed them in the tool department, where Chadwick was the foreman, as well as a few in the automatic depart- ment as he worked at times in both departments. Some cards were signed during lunch breaks, and others were taken home to be studied, signed, and returned the next day. Chadwick waited on occasion on the parking lot, where employees gave him signed cards which he placed in Ber- nard Friedl's car. On January 29 both Serraglio and Wagner met at Chadwick's home with a few other employees, discussed the Union, and picked up the signed cards. Thereafter meetings were held on February 7, 21, and March 20. Chadwick and Bernard Friedl participated in selecting the dates of the meetings, and spread the word about the scheduled meet- ings around the plant. Each of these meetings was held at a cafe and was attended by 12 to 15 employees. 2. Conduct of Field and Sandy By Friday evening, January 28, about 7 employees had signed union cards. Several of these employees were work- ing overtime that evening with Field. One of these employ- ees, Freed, testified that Field brought up the subject of unions; that this was the first time the subject was brought up; and that Field, who was British, described his experi- ence with unions in England. Another of these employees, Frederick, testified that Field, who had never previously discussed unions with him, brought up the subject of unions "and how bad they were and they weren't really worth it," and that he told Field he would like to have a union "for better working conditions and better pay." Yakubics, one of this group, testified that Field brought up the subject of unions, that this was the first time any management repre- sentative brought up this subject, and that Field said unions were no good based on his experience. And Daniel Friedl testified that while they were working overtime on Friday evening, Field "told me to stick with the company and be patient. Things would be getting better." Field testified that on this occasion "I was discussing unions, all I know about unions, but unfortunately I don't know a great deal about American unions, so, I talked about my experience with British unions or English unions." Asked then by counsel for the Respondent who initiated the conversation, he replied, "The fellow I seem to remember- the fellow whose name I can't recall, who brought the ques- tion up." To the next question, whether he asked any of these men how he felt about the Union, Field replied: "I didn't give them a chance to. I went on about the English unions and I ended-I made it as amusing as I could." Employee Bruce Sherman testified credibly and without contradiction that Field told him at work that Sandy, who is Sherman's grandfather, wanted to see him; that he went to Sandy's office; that Sandy asked if he had heard the men talking about the Union; that he said he had not; and that Sandy thereupon asked him, if he did hear anything, to let Sandy know. This occurred, Sherman testified, at some time from a few days to 2 weeks before the time Field showed the Union's letter to Sherman and other employees, which occurred on February 3 as discussed below. Bernard Friedl testified that on or about February 1, Field walked over to where he was working and asked if he had heard anything about a union being organized in the shop, that he said he had not, and that Field then comment- ed that he did not see what good a union would do in the shop. When Field was asked by counsel for the Respondent whether he ever discussed "unionism" with Bernard Friedl prior to receipt of the Union's letter on February 3, he replied "I rather doubt that because I didn't know of any union activity at all until I received this letter." Asked then if he ever questioned Bernard Friedl about his union activi- ties after that date, he replied "No." The Union sent the Respondent a registered letter signed by Wagner, dated February 1, asserting that it had been designated by a majority of the Respondent's employees as their collective-bargaining representative, offering to prove its majority status, and requesting recognition and negotia- tions. The union also filed an election petition with the Board on February 1. The Union's letter was received by the Respondent on February 3. Sandy showed the letter to Bernard Friedl, William Viancourt,4 and other employees, and Field showed the letter to each of the employees in his department. Daniel Friedl testified that Field showed him the letter, that Field asked if he knew what the letter meant, and that he replied that he did not. Freed testified that Field showed him the letter and asked if he knew what it meant, that he asked Field if they were going to get a raise, and that Field said he did not know. Charles May testified that the first he knew of the Union's recognition demand was when Field showed him the letter; that Field said he did not feel they needed a union and asked what May thought; and that May refused to answer one way or another.5 Other employ- ees testified that they were shown the letter by Field or Sandy. Field testified in this regard that he showed the letter to each employee in the screw machine shop on February 3, asked each of them to read it, and then asked whether each employee understood it. He maintained that he made no further comment about it, but that two of the employees to whom he showed the letter did comment, Viancourt that he was disappointed in the choice of the Union as he wanted a bigger one, and May that he knew about it and was disappointed at the choice of the Union as he had never previously heard of it. Sandy was not questioned about his conduct with relation to the letter. After Field had shown the letter to the employees, he went to Sandy's office. When he came back to the shop, he told the employees they had to discontinue their practice of taking a 5-minute washup break before leaving work. A number of employees testified that the practice had pre- vailed for a long time of taking such a break before lunch and quitting time. Daniel Friedl testified that Field told him they were to discontinue "Five minute wash up time, and there was no going to the johns." Freed also testified that 4 Viancourt, who was discharged on March 16, filed a charge but withdrew it at the request of the Regional Director, and is not a complainant herein 5 May, who had worked for the Respondent several times in the past 4 years, served as the union observer at the election on March 24, and quit his job directly after the election Field testified that May made "a silly mistake on a machine," that he voluntarily quit his job, and that he told Field "he was quitting right now, and that he had done what he came here for, what he joined the company for" I find no merit in the Respondent's contention that this testimony of Field establishes May's lack of credibility CARBIDE TOOLS, INC. Field told him "there would be no five-minute breaks before lunch and before quitting time , and no more running to the bathroom. He said that the old man was mad." Viancourt testified that Field told him Sandy ordered the 5-minute washup times discontinued. Field testified that the practice of a 5-minute cleanup time was for the men to turn off the machines, put away the tools, and clean up the area before leaving, not to go to the washroom ; that the men pretended to carry out these duties but in fact spent the 5 minutes in the washroom ; that he has objected to this practice on occasions prior to and since February 3; and that on February 3 he told the employees they were not to take the 5 minutes to wash up and that they could not use the restroom during that 5 minutes . Asked by counsel for the Respondent if he made any reference to Sandy or the "old man" being "mad," Field's reply was: "I very much thought that because I run the shop , and I don't try to bring a third party to back me up, because that gives the men the impression that I am not running the shop, and they may respect me less because I am not there more than the old man as he's called, Mr. Sandy." Field asserted at various points in the course of his testi- mony that this disciplinary action was his own decision, that he and Sandy made a "joint decision " to take some discipli- nary action but that he decided to apply the decision to the 5-minute washup practice, that "it was a sort of conclusion of the conversation I had with Sandy," and, finally, on cross-examination by the General Counsel , that: "Sandy and I discussed tightening up on discipline . All forms of discipline in the shop . So, we made the decision that we would tighten up on the discipline , and we went out in the shop and told everybody that they must do this wash up thing." Later, on redirect examination, Field was asked whether prohibiting the 5-minute washup periods and re- ceipt of the Union 's letter were connected or coincidental, and replied : "There was a connection . I felt very disap- pointed that a thing like this had been organized . In fact, I didn't even know that anybody was dissatisfied with their employment, and it came as a complete bombshell to me. Instead of the employees coming to me with their problems and requirements they found it necessary to seek assistance elsewhere." Viancourt testified that on the morning after Sandy showed him the union letter , Field asked him how he felt about the Union, and he told Field he had signed a card; that he also commented that if Sandy did not want the Union maybe the employees could work out an agreement with Sandy ; and that Field said he thought it was a good idea but Sandy would not be interested. Field was asked by counsel for the Respondent whether he recalled a conversation with Viancourt "concerning unionism shortly after the day you showed the letters to the employees?" Field's reply was: "Yes, I believe it was after the day I showed the people the letters, not on the day, a day or two after he approached me, and he said that the lads had asked him-the lads had gotten together to form a union, and they had asked him to be their representative. . He said he had agreed to do this reluctantly, and again, he told me that he was disappointed in the choice of unions. I said, `Thank you,' for informing me, and that was the end of that conversation ." After further questioning, Field ex- 321 plained that the conversation was cut short because, "hav- ing received the letter from the union I knew my position as a supervisor, that I was sort of incommunicado in dis- cussing deals with the men." On February 4, the Respondent laid off 7 employees. During the many conversations on the previous day, when Sandy and Field showed employees the Union's letter and told employees of elimination of the 5 -minute washup pen- ods, neither Sandy nor Field made any reference to a pend- ing layoff. Neidenbach, who was laid off on March 8 , testified that on the afternoon of March 7, Field asked him what the Union could do for both of them; that he answered he knew what the Union could do for him, and listed the benefits including a vacation ; that Field then asked how long he had worked for the Respondent; and that , when he answered 9 months, Field said Neidenbach was supposed to get a vaca- tion that summer because he would have been there a year then. About 5 minutes later, Neidenbach further testified, Field asked, "Do you know why you are doing all this," and he replied, "Yes, I sort of do." Field testified that the conversation about vacations took place on March 8 , the day Neidenbach was laid off, and that Neidenbach initiated the conversation , which was as fol- lows: He said, "You wait until the union gets in here," this was a sort of a passing remark . I had to go and see him about some work he was doing, and so I said, "What do you mean?" So he said, "We will get a week's vaca- tion with pay, and Blue Cross.... I said,-I don't like to use the words, but I used a British adjective, and I said you ought to get these things, and that was the end of the conversation. Field testified further that the Respondent provides Blue Cross insurance for its employees and pays the premiums, that he did not know if it was being paid for Neidenbach at that time but "I imagine so, I can't say." He also main- tained that Neidenbach would have been entitled to a vaca- tion that summer upon completion of a year's employment, that he told Neidenbach "he would have a vacation whether the union was there or not," that he was telling Neidenbach that "he was getting as much from the company as the union could give him," and that he further stated that Neidenbach could pick the time for his vacation that summer within reason although he knew when he had this conversation that Neidenbach was to be laid off later that same day. May testified that he had 5 or 6 conversations with Field, sometimes at lunch and other times at the machines, in which Field said that if the union won the election "the company would dispense operations and quit operations here and probably move south , do something of that na- ture." He testified further that Field in about half these conversations said the company "would " move and in the other half that it "could" move. Field testified that he some- times lunched in the shop with May and other employees, but asserted that he never discussed unionism with May at lunch after showing the Union's letter, and that he never said the Respondent would move south or go out of busi- ness if the Union came in. Staniszewski testified that, about 2 weeks after Field 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD showed the Union's letter to him and to other employees, Field "come up and told us that we had a quarter raise and it was going to be on that pay check"; that the raise was included in the paycheck he received that week; that the increase was, therefore, made effective retroactively as em- ployees worked a regular week Monday through Friday and were paid the following Friday; and that after that Field said he would see about their getting another raise in August depending upon performance. Staniszewski admitted that Field made no reference to unions in the conversations about a raise. Field testified that unskilled employees were started at $2 an hour, served a 30-day probation, and re- ceived 25-cent raises from time to time as they acquired job skills. Staniszewski, who was hired by the Respondent on about October 26, 1971, had graduated from high school the previous January. 3. Conduct of Martin and Sandy Foreman Martin had been a union steward on a pnorjob at a plant which was closed down. He admitted that, at some time after he had seen the Union's letter seeking recogni- tion, he talked to employees about his prior union experi- ence, and that he asked employees Karkoska, Piszczek, Bernard Friedl, and others how they felt about the Union. Stephen Mahandge, who later quit the Respondent's em- ploy and is not a complainant, testified that Martin asked him what he thought of the Union coming into the plant, and that he replied that it made no difference to him. Tnvett testified that on one or two occasions during lunchtime he and Martin discussed unions, and that he told Martin on these occasions that he thought the employees needed some kind of union or protection for their jobs. Bernard Fnedl, who worked at times in the tool room under Martin, testi- fied that he had two conversations with Martin during the week prior to the Board-conducted election which was held on March 24; that in the first, in Martin's office at lunch- time, Martin "pointed out the good and the bad points, what could happen if a union would come to a shop, how Mr. Sandy would farm the work out in the shop, and he said in fact, Mr. Sandy was planning on farming-he was just looking into farming out some of the work . . ."; and that in the second, later the same day, Martin came "by my machine and he asked me again how I felt about the union being organized into the shop, and I told him that the main reason would be for job security and seniority rights." This testimony is uncontradicted. Friedl testified further that on the morning of the elec- tion, before the voting, "Mr. Sandy come up to me and said, `This is between you and me,' and he said, 'A union would hamper you because you wouldn't be able to move around from one machine to another. You would be stuck on one machine,' and I go to Mr. Sandy, 'It would kind of hamper my career, Mr. Sandy,' he said, 'You take it as you see it.' " After the voting that same day, Friedl testified that he was at his machine and heard Sandy say to another employee, Motil, at the latter's machine, "John, you're the only one who stuck by me. These guys want to play rough, and I can play just as rough as everyone that has voted for the union is out of a job. We'll keep enough work to keep you people, you faithful employees working, and the other guys are all out of their jobs." Motil was not called as a witness and Sandy was not questioned about these remarks. 4. Concluding findings Most of the employees who testified about the conduct described above were young; some still in their teens. While they were unfamiliar with union organization and with their rights under the Act, they impressed me as candid and forthright witnesses testifying truthfully to the events in question to the best of their recollection.6 Furthermore, their testimony as to the conduct here in issue was in many respects admitted or uncontradicted by the Respondent's witnesses. In those instances where Field did contradict or deny their testimony, I do not credit Field whom I found a hesitant and unconvincing witness whose testimony lacked the ring of truth. Further, on the basis of all the relevant evidence, I dis- credit Field's repeated assertions that he knew nothing of the organizational activities of the employees prior to the receipt on February 3 of the Union's letter requesting recog- nition. Some employees testified that they were told to keep their activities secret from management and did so, and no employees wore union insignia in the plant or informed their supervisors that they had signed union cards. On the other hand, some employees testified that they were told nothing about keeping these activities secret. Cards were distributed, signed, and returned in the plant, in plant areas where employees and supervisors ate their lunches, and on the parking lot. This was a small plant,7 with a total of about 25 employees when the first layoffs were made on February 4. Moreover, credited testimony shows that Field on Janu- ary 28 for the first time discussed union organization with several employees, and on February 1 questioned Bernard Friedl about a union being organized in the shop. Further, it is undisputed that Sandy asked Sherman to report to him anything he heard about the union activities. While Sher- man was not definite about the date when this occurred, he testified that it was at least a few days prior to the day he was shown the Union's letter by Field. I am convinced, therefore, and find that the Respondent had knowledge, by January 28, 1972, that employees were organizing the Union.8 Accordingly, I find that the Respondent, by the conduct of Sandy, its highest officer, as well as Field and Martin, whose conduct is attributable to the Respondent,' threat- ened its employees that it would close or move the plant if the union organization succeeded; interrogated employees about their union membership, activities, and desires, and requested an employee to report such activities to it; and 6 The General Counsel's request for sequestration of witnesses was granted over the Respondent's objection r See N L R B v Sutherland Lumber Company, 452 F 2d 67, 69 (C A 7, 1971), Heath International, Inc, 196 NLRB 318 8 N L R B v Schill Steel Products, Inc, 340 F.2d 568 (C.A. 5, 1965), N L R B v. Dorn's Transportation Company, 405 F 2d 706, 713 (C.A 2, 1969), N L R B v Schoellkopf Products, Inc, 410 F 2d 82 (C A 5, 1969); N L R B v Mid State Sportswear, Inc, 412 F2d 537, 539 (C.A 5, 1969), Webber American, Inc, 194 NLRB 692, Rowe Furniture Corporation of Missouri, Inc, 200 NLRB No 1, Lang Towing, Inc, 201 NLRB No 92 9 N L R B v Kaiser Agricultural Chemicals, 473 F 2d 374 (C A 5, 1973); Pacific Southwest Airlines, 201 NLRB No 81 CARBIDE TOOLS, INC. discontinued the 5-minute washup periods in reprisal for the employees having designated the Union as their bargaining representative, and that the Respondent thereby interfered with, restrained, and coerced its employees, some of them of high school age,10 in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act." I find, however, that the evidence does not sustain the allegation of the consolidated complaint that the Respon- dent granted wage increases to its employees in order to induce them to refrain from membership in or activities on behalf of the Union, and shall therefore recommend dis- missal of this allegation of the complaint. C. The Layoffs 1. The layoffs of February 4 On Friday, February 4, the day after the Respondent received the Union's letter and showed it to the employees, as described above, it laid off Daniel Friedl, Freed, Freder- ick, Yakubics, Chislom, Holz, and Shamatta. Daniel Fried!, who filed the charge naming himself and the 6 other employees, was one of the first to sign a union card along with his brother, Bernard Friedl, and Chadwick. He was one of the group working overtime with Field short- ly after the cards were signed, and was told by Field "to stick with the company and be patient. Things would be getting better." Fnedl testified that he was out sick on the Friday the layoffs were made, but his brother brought his check and word that he had been laid off. He also testified that while he had been employed by the Respondent less than a month, he was running 5 different automatic screw ma- chines whereas other employees were running only 2 or 3 at that time. Viancourt, an experienced employee, testified that, at Field's direction, he was training both Freed and Friedl in the operation of certain machines. Field told Freed, as set forth below, he and Friedl would be the first called back because they were good workers. Nevertheless, when the Respondent later that month advertised in the local newspaper for screw machine operators and trainees, Friedl filed an application, but he was never recalled. Freed 12 testified that within a couple of weeks of the time he was hired, Field told him that, when the Respondent obtained more machines, he would be trained to set up and operate screw machines, and that at about that time, the Respondent received 5 new machines. Freed was one of the employees being trained by Viancourt at Field's direction. 10 See N L R B v Copps Corp, 458 F 2d 1227 (C A 7, 1972), in which the court commented , in finding certain employer conduct coercive , "We cannot ignore the fact, and neither did the Board, that the employees in this unit were unskilled workers, unsophisticated in the rights of labor and in a relatively small unit " 11 See Conolon Corporation v N L R B, 431 F 2d 324, 328 (C A. 9, 1970), NLRB v WKRG-TV, Inc, 470 F 2d 1302 (C A 5, 1973), NLRB v Kaiser Agricultural Chemicals, supra, Spartus Corporation, 195 NLRB 134, Scott Gross Company, Inc, 197 NLRB 420, Monroe Manufacturing Company, Inc, 200 NLRB No 11, Isaacson-Carrico Manufacturing Company, 200 NLRB No 116, Joseph J Lachniet, 201 NLRB 128 12 Freed, who appeared in uniform, testified that he had previously served in the Army over 4-1/2 years, and at the time of the hearing was on leave from his Army base at Fort Stewart, Georgia 323 Freed, who was one of the group working overtime when Field talked about unions on January 28, had signed a union card on January 28 which he received from and re- turned to Chadwick. Freed testified that he called in sick at 7:30 on the morn- ing of February 4; that when he told Field he would not be in that day, Field asked if he could come in for half a day as Field had a week's production to get out and needed him; that he said he would try but did not think he would be in and would see Field on Monday, and Field said "All right." That evening Bernard Friedl called Freed at home, and told Freed he was laid off and that he had Freed's check. Freed called the shop on Monday and asked Field if it was true that he was laid off. He testified that Field said he was and that, when asked the reason, Field said he did not know why, he needed the people there, and if anyone was called back Freed and Darnel Friedl would be the first because they were good workers. Frederick was employed by the Respondent two different times, each time under Field's supervision. During his sec- ond period of employment, he asked Field, sometime prior to the organizational campaign, why he was not put on the new machines the Respondent had acquired whereas Yaku- bics, who had worked there less time than he had was put on the screw machine. Field replied that Frederick was not old enough at 17 to run the automatic machines but that, when he reached 18, Field would start teaching him to do so and also to set up and fix the drill press and other ma- chines. Field admitted he had such a conversation with Frederick, and that he was not then planning to let Freder- ick go shortly. Frederick performed a couple of different jobs, running the broaching and tapping machines, and oc- casionally worked on the milling machine. Frederick signed a union card he got from Chadwick during lunch on Janu- ary 28. He was one of the group that worked overtime with Field on that evening when, as he credibly testified, Field brought up the subject of how bad unions were, and Freder- ick replied that he would like to have a union for better working conditions and pay. Field told Frederick on February 3 he had to let him go because the machines he had been operating were being replaced by automated ones. Frederick was laid off several months before his 18th birthday. When Frederick and some of the other laid-off employees asked Field if he would need help later, Field suggested they leave their telephone num- bers, and Frederick did so. In August Frederick needed a job and went to see Field, who told him that he should file an application and that he would be called when Field needed him. Frederick testified that he noticed at this time that the shop was bigger than it had been because of the new machines, and that the old ones were still operating includ- ing those he ran. Frederick went back about a week later, and was told again that he should file an application and he would be called if Field needed him. He has never been recalled. Yakubics also had been employed twice by the Respon- dent, each time under Field's supervision. He testified that he asked Field, around Christmas 1971, about being put on screw machines; that Field said he was thinking about doing so; and that a few days later Field put him on the automatic screw machines and told him to get some tools 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because Field wanted to teach him setup. Yakubics signed a union card on January 28 which he got from and returned to Chadwick. He was one of the group that worked overtime with Field on January 28 when, as he credibly testified, Field brought up the subject of unions and said they were no good based on his experience. Yakubics also testified that this was the first time the subject was brought up by any company representative. Yakubics testified that new machines were brought in before his layoff, but that he was told by Field his layoff was permanent as there was no more work. He later learned from a friend that the Respondent was hiring so filed an application and was rehired a few days later. He worked on the stem job at this time on two different machines, one of which was the same as the machine he operated before his layoff. He quit his employ with the Respondent when he obtained a better job elsewhere. All four of these laid-off employees had signed cards in the Union prior to their layoff. Chislom, Holz, and Shamatta did not appear at the hearing. Chadwick testified credibly that he obtained signed cards from both Chislom and Holz on about January 28. There is no testimony as to Shamatta. 2. The layoffs of March 7 and 8 On March 3 the Regional Director issued the Decision and Direction of Election in the representation case. An election was scheduled for March 16 but was held on March 24. On March 7 the Respondent laid off Chadwick and Staniszewski, and on March 8 Neidenbach and one other employee, Vovar, on whose behalf no charge was filed. Chadwick was employed by the Respondent about No- vember 22, 1971. He testified that around Christmas 1971 Field "came up and he said he had been watching me and he discussed it with Mr. Sandy that in a year, if I stayed with the company the company would expand and I would be trained as a set up man." This was at about the same time Field transferred Yakubics to the automatic screw machines and told him to get some tools so Field could teach him to do setup work. As described above, Chadwick was the insti- gator of and a leader in the organization of the Union, and carried on organizing activities in and around the plant. Field told Chadwick on March 7 that he was laid off be- cause the new machines that the Respondent had acquired did away with his job. Chadwick testified that he asked about the plans to train him to become a setup man, and that Field answered that the plans had been changed. When Chadwick went to the plant on Friday, March 10, to get his paycheck, Field told him he was laid off permanently. Field called Chadwick at home in May and asked if he was working. Chadwick replied that he had a job starting June 5. He received a letter from Field dated June 1 which stated: "This will confirm my telephone conversation of May 16, 1972 with you, in which you refused recall to your job at Carbide Tools, Incorporated. We want to wish you the best of success in your new work." Staniszewski, who was promised by Field that he would get training on the machines when he became 18 years old, was laid off before his 18th birthday. He testified that on the day of his layoff he was working on an automatic screw machine, that the stems on which he was working would have taken him 8 or 10 hours to complete, and that he was told about 10 minutes before quitting time that he was laid off because the customer had stopped the stem order. On May 17 the Respondent sent Stamszewski a telegram reading "PLEASE CONTACT PAUL FIELD OF CARBIDE TOOLS" On June 1 it sent him a letter signed by Field which stated: "On May 17, 1972, we sent a telegram to you, recalling you to your job at Carbide Tools. Since you have failed to reply to our telegram, we have taken your lack of response to be your voluntary refusal of employment. We wish you the best of success in your new work." Staniszewski testified that he called Field on the day he received the letter and asked what it meant. As he and Field both testified, Field replied that he presumed Staniszewski was not available so got someone else for the job. Staniszewski testified further that Field said he would call again if a job became available, as Staniszew- ski requested, but has not called since then. Field testified that Staniszewski "told me a long story about being ill. He'd been out of town and for some reason or other he didn't seem worried about the letter I sent... . he never said he wanted to come back. . . . he seemed worried about the letter for some reason explaining why he never answered the letter. He told me he had been ill and he had been out of town. It wasn't a letter, it was a telegram I sent him because I couldn't contact him." Neidenbach, who was hired on June 17, 1971, 2 days after his high school graduation, was by March 1972 a machine operator, and was receiving setup training from Field and also from May and Viancourt, experienced employees. He signed a union card on January 28 and returned it to Chad- wick, who had given him the card the preceding day, and attended all 3 union meetings. He testified that a couple of days after the Respondent received the Union's letter, his setup training stopped, and thereafter he fed pieces into a machine, cleaned parts, and swept floors. Viancourt testi- fied that Neidenbach was taken off setup work shortly after the Union's letter was passed around by Field, and that he was told by Field not to give Neidenbach any further train- ing. As set forth above, shortly before Neidenbach was laid off, Field asked him what the Union could do for both of them. He replied that he knew what the Union could do for him and listed the expected benefits including a vacation. Field said Neidenbach would get a vacation that summer and could select the time within reason. A few minutes later Field asked if he knew "why you are doing all this," and he replied that he did. Field laid him off the same or the next day, and told him the following Friday, when he came to get his paycheck, that the layoff was permanent. Field testified that, while he had transferred Neidenbach to operations just before his layoff in order to finish up a particular job, Neidenbach had progressed beyond operat- ing to adjusting a machine, and was going into the next stage of training, which was to set up a new job on the machine; and that when, shortly after these layoffs, the Respondent advertised for screw machine operators, Field hoped that Neidenbach, on whose training he had spent a good deal of time, would see the advertisement and apply. Neidenbach testified that his mother told him Field tele- phoned one time in May and wanted Neidenbach to call him. He received a letter from Field dated June 1 stating: "We have telephoned your home several times over the past CARBIDE TOOLS, INC. few weeks and have left messages recalling you to your job at Carbide Tools and asking that you telephone us. Since you have not replied to any of our messages, we have taken your lack of response to be your voluntary refusal of em- ployment. We wish you the best of success in your new work."" 3. The layoffs of March 24 and 27 The election was held on Friday, March 24. The Respon- dent laid off Bernard Friedl on March 24, and Piszczek and Trivett on Monday, March 27. Friedl had previously worked for the Respondent about 1-1/2 years as a milling machine trainee, left voluntarily and worked elsewhere as a milling machine operator for about 1-1/2 years, and was rehired in June 1971 by the Respon- dent. He worked in both departments of the Respondent's plant in the approximately 9 months prior to his layoff. At one time in about September, when work was slow in the tool room, Sandy offered, and Friedl accepted, a transfer to work on the automatic screw machine rather than a layoff. Friedl, as set forth above, was one of the leaders in organ- izing the Union, and carried on organizing activities in both departments of the plant. He had a conversation with Field shortly after organizing activities began in which Field asked if he had heard about the Union being organized, and said he did not see what good a union would do in the shop. During the week before the election, he had two conversa- tions with Martin, in one of which Martin stated that Sandy would farm out the work if the Union was successful, and in another asked again how Friedl felt about unions, to which Friedl replied that the main reason to have one was for job security and seniority rights. On the day of the election, Sandy told Friedl before the balloting that a union would hamper his being able to move from machine to machine, and, after the balloting, told another employee in Friedl's hearing that everyone who voted for the Union was out of a job and he would retain enough work only to keep the faithful employees working. At just about quitting time that day Martin told Friedl he was laid off because the Respondent was discontinuing all training programs. Friedl was never offered reinstatement. Both Piszczek and Trivett applied for a surface grinder job late in February in response to a newspaper advertise- ment of the Respondent. Both had years of experience in grinding work. Trivett applied first and was given the job. Sandy told Piszczek when he applied that the job was taken but that he would see if another was available. He came back later with Martin and told Piszcek to start work the next day. Both Piszczek and Trivett worked on grinding operations under Martin's supervision. Trivett had several conversations about unions with Martin during lunch in which Martin described his unhappy experience with a union on his prior job. Trivett told Martin that he thought the employees needed a union. On the day of the election Martin told both Piszczek and Trivett Sandy said they were ineligible to vote, and they were to go with him to another room until the election was 13 Neidenbach had obtained another job on April 7 at a higher rate of pay than he earned with the Respondent 325 over. They maintained they were eligible to vote and wanted to do so, and asked him to check. Martin left the room, came back, and told them they could vote. The election was held on Friday. On the following Monday, about noon, Martin laid off both Piszczek and Trivett. Martin told Piszczek he had to let Piszczek go because there was not enough work for the older men, and told Trivett the layoff was for lack of work. He told each of them he would call if things picked up. When each of them asked if he should finish the day or leave right away, Martin told them to leave right away. Neither was ever offered reinstatement. The evidence shows that none of the laid-off employees had been told when hired that his job was temporary, and that none of them was given any warning or notice of the possibility of a layoff. On the contrary, there were indica- tions to some of them by Field of further training and of continued employment. While some of them were relatively inexperienced, the evidence does not show that any of them failed to perform his work satisfactorily or to progress as he received further training on the job. Some of them returned later to the plant to file applications and saw the new ma- chines as well as those on which they had worked in opera- tion. and some at the beginning of a pay period. Those laid off in the middle of the day were required to leave immedi- ately. The Respondent ran advertisements in "The Plain Deal- er" from February 18 to 21 for "AUTOMATIC SCREW MACHINE OPERATORS AND TRAINEES" and for "SURFACE GRINDER," from March 10 to 13 for "AU- TOMATIC SCREW MACHINE OPERATORS AND SET-UP MEN" and for "TOOL GRINDERS," from April 26 to May 1 for "AUTOMATIC SCREW MACHINE OP- ERATOR AND SETUP MAN" and for "TOOL AND CUTTER GRINDERS," and from May 4 to 8 for "MA- CHINISTS-Automatic screw machine operators and trainees." Some new employees were hired during the period that the layoffs were being made, including some who were hired as trainees, Maharidge, who quit his job as a profile grinder about the time of the hearing herein, testified credibly that he was convalescing from an accident from April 14 to July 5; that Sandy called on June 8 and asked him to come in, not to work but to train high school students on profile grinders; that Bernard Friedl had been a profile grinder- trainee; and that, when he returned to work on July 5, he saw three new grinder employees, two of whom were doing work similar to what Piszczek and Trivett had done. Vian- court testified that one of the new employees he saw work- ing, before his discharge on March 16, was apparently a replacement for Daniel Friedl. Also during this period, the Respondent admittedly received five or six new machines, some of which were put in operation prior to the first lay- offs. Viancourt testified that "there was plenty of machines to keep everybody going." The Respondent contends that the evidence shows that all the layoffs were made for lawful economic reasons on the basis of the following considerations. (1) The Respondent points to the fact that the Regional Director, on the basis of a stipulation of the parties, ruled that the first seven laid off were not eligible to vote, and that he sustained the Respondent's challenges to the ballots of 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD four other employees laid off prior to the election, with the Union agreeing to their ineligibility "for the purposes of election." These administrative determinations in a repre- sentation case are not determinative herein, however, as the issues whether any of the layoffs constituted unfair labor practices were not raised or litigated.14 (2) The Respondent also points to the fact that none of the charges were filed by the Union and that the charges as to the first seven layoffs were filed months after they oc- curred. The Board's Rules and Regulations provide, howev- er, that a charge may be filed by any person and all the charges herein were filed within the Section 10(b) statutory linutations period. (3) The Respondent's counsel brought out in examining some of the laid-off employees their relative inexperience in machine shop work, and stated at one point in the cross- examination of Daniel Friedl that his work performance was "the crux of the case." There is no evidence, however, that any of the laid-off employees were not satisfactorily performing their assigned duties, or were not becoming pro- gressively more skilled and higher paid with experience and training. Moreover, while both Sandy and Field testified that the Respondent's advertisements sought applicants more skilled and experienced than those laid off, and some of the advertisements referred to the experience desired, others sought "trainees" and said nothing about experience. Further, Field admitted that some of the new employees hired during the layoff period and shortly after that were trainees, including Parro and Muir, who were hired the week following Bernard Friedl's layoff. He was laid off on March 24 and Piszczek and Trivett on March 27. In addi- tion the record shows that Hughes was hired on about March 14 and McAnespie about the same time. (4) The Respondent asserts that it is a small job shop with a nucleus of about 12 employees, that it hires others when orders are received that require additional personnel, and terminates them when the orders are completed. The record is clear, however, that the laid-off employees were not told when hired that their jobs were temporary, that they were not warned of layoff on completion of the job on which they were working, and that the job on which they were working was rescheduled but not completed at the time of the lay- offs. Field testified that he had hired all seven who were laid off on February 4; that he hired them on different dates over a period of weeks as there was considerable turnover of employees, some staying only a few days; that the seven were hired "as general employees" and as "temporary em- ployees," then that not all seven, nor these particular seven, were temporary, but that "there was a temporary situation there because of this particular job, this stem job. We were going to modernize. We were doing this manually, so, inevi- tably it would be on the temporary basis." He admitted that it was not planned, when the seven were hired, "necessarily" to let them go shortly, or even when the particular job on which they were working was finished, but that there was "a possibility they would be let go." He also admitted that he told some of them individually, as they testified, about 14 See N L R B v Southern Seating Company, 468 F 2d 1345, 1349 (C A. 4, 1972), Viking of Minneapolis, 171 NLRB 1155, McEwen Manufacturing Company, 172 NLRB 990, Triggs-Miner Corporation, 180 NLRB 206, 212 his plans for their further training, and some of them were in the process of being trained to perform more difficult operations. Further, on redirect examination by the Re- spondent, Field asserted that the fact the work for which the seven were hired turned out to be temporary did not neces- sarily mean they would be laid off when the work ended because he expected by that time "a lot of them would have been absorbed" in the Respondent's operations. Field also testified that Sandy told him on February 4 to lay off seven employees, that he decided who the seven would be, and that the only advance indication he received was a discus- sion with Sandy about 10 days previously of the possibility of a layoff but "This wasn't definite." Sherman had been rehired on January 24, less than 2 weeks before the first layoffs. I find, on the record as a whole, not only that the employ- ees were not told they were being hired for a temporaryjob, but also that Field did not hire them on a temporary basis, that he expected some or all of them to be absorbed in the regular complement of employees, that he did not plan to terminate them when the stem job was completed and they were in fact laid off before that order was completed, and that nothing was said about a layoff on the day before the first seven were laid off when Sandy and Field, in addition to their routine communications with employees, also showed employees the union letter and told employees of the termination of the 5-minute washup periods. (5) The Respondent maintains that in any event what occurred with regard to certain stem job and ball job orders warranted making the layoffs when they occurred, the first two groups because of lack of work in the automatic depart- ment, and the last ones because of a resulting reduction in the work of the tool department. The stem job and ball job orders, for items used in shower installations, were placed by American Standard. The Respondent contends that this customer later requested delay in shipments of the stem job order, and that there was a failure for a time to furnish the materials needed for the ball job order. Field testified that while some of the employees laid off were working on the ball job order, he could not say which ones as he switched the men around on different jobs. The Respondent placed in evidence an American Stan- dard purchase order dated September 1971 for 250,000 stems, and one dated December 1971 for 175,000 stems. The stems were to be shipped in various amounts as produced. Sandy has done business with this customer for the 28 years he has operated the Respondent. The customer's plants with which the Respondent was involved were located at Louis- ville, Cincinnati, and Painesville. Sandy testified that the customer in November requested expedition of its order, and that this was the reason he hired additional personnel, but that later there was " some spreading in the delivery dates" which caused the layoffs. Sandy also testified that he was notified when he was at the Louisville plant in about mid-January of the necessity to cut down the production of stems, then that he was given no specific dates or figures at this time but the companies "were pretty close. I practically know what's going on there." When the General Counsel persisted in seeking some indication of just what informa- tion Sandy obtained at this time, Sandy testified that the Cincinnati plant was operating the foundry but the machin- CARBIDE TOOLS, INC ery was being moved to Louisville; that there were buyers at each location, McKeown and Tragesser; that "we had to work very closely with the people there, to shift these orders as they needed them because there was a buyer over in Cincinnati which was changing the schedules and the buyer at Louisville was giving us orders, and, therefore, there was two deals. . . . One had to take care of the inventory and the other one was doing the buying and Painesville, which is another plant, the assembly plant, so we had to work between the three plants to organize us to come in on the schedule. And if the schedule was ahead, we would have to stop." He testified further that all shipments by the Respon- dent were made to Cincinnati until the Respondent received a change order of March 1 directing it to switch to Louis- ville, then that the Respondent always shipped to Cincinnati and the shipments were taken by the customer's truck to Painesville. Although Sandy contended that he laid off the employees because of what he was told and observed at the Louisville plant in mid-January, he finally admitted, reluc- tantly, that he was given no dates and no quantities and no definite information at this time of the changes to be made in shipments of the customer's orders; that he was unable to obtain any specific information thereafter in his frequent telephone conversations with this customer; and, finally, that he got no specific details until the receipt of an official written change order of February 15 from Tragesser. Sandy testified further that he laid off the men on February 4 on his "own initiative" because McKeown told him in Louis- ville to expect a change from Tragesser in Cincinnati; that when no change order came through for a couple of weeks, he had to lay men off on February 4; and that, after he got the change order of February 15, he placed advertisements for new employees including trainees in the automatic de- partment. Field testified that the hold had not been placed on the stemjob before the first 7 layoffs on February 4, then that it was placed on the same day, and further that the layoffs in March were "Partly because of that hold" and partly because of the customer's failure to supply materials for the ball job, but he could not say which layoffs were attributable to which reason. The American Standard orders and change notices that the Respondent placed in evidence had a great many mark- ings on them, in pen, pencil, and in various colors. Some handwritten figures were crossed out on the basis, Sandy testified, of changes which might indicate changes in quan- tity up or down or changes in delivery dates. Sandy testified that some changes were made by him or by Field, but that most of these handwritten changes were made by the secre- tary based on correspondence or telephone conversations with the customer, or on directives from Sandy, from Field, or from other personnel. Sandy did not know what some of the notations meant. The secretary did not testify, and Field was not questioned about these documents. Sandy admitted that shipments were made after receipt of the written change order of February 15, 4,100 parts on February 18 and 20,000 on February 25. While Sandy testi- fied that one of the reasons for delaying the shipments was the customer's failure to receive certain parts, he also admit- ted that the documents showed that the customer received stem job parts from Bridgeport Brass in amounts on Febru- ary 4 of 7,000 pounds and on February 15 of 3,069 pounds. 327 Further, one of the change orders in evidence, dated March 1, bears a handwritten notation that Sandy testified was placed on it by the secretary at his direction, which states as to a March 24 shipment: "Send in as is. Mr. Sandy said he would stick to original schedule." Sandy also admitted that he schedules production on a quarterly basis 3 months in advance, that orders call for deliveries for 3-month peri- ods, and that the indication in mid-January of a cut was to the effect that the cut would be in the second quarter. Fur- thermore, both Sandy and Field indicated in their testimony that the Respondent had orders for other work received during this period. Field also testified that when American Standard told the Respondent to resume work on the stem job, it was resumed with the new equipment, but there was some delay in doing so because the Respondent had other jobs to complete beforehand. Field first testified, on cross- examination by the General Counsel, that the hold on the stemjob continued until the end of the summer of 1972, but admitted after further cross-examination that the customer's order to resume was in fact received in late April. Although Sandy claimed repeatedly that what he learned on his visit to the Louisville plant in mid-January made the layoffs necessary, he admitted that he hired new employees late in January, that there was no particular reason to pick February 4 for the layoff, and that shortly after the layoff of 7 employees on February 4 he advertised for trainees in the automatic department. Although Field testified that Sandy told him the number to be laid off and he selected the employees, Sandy testified that the practice is that he and Field decided on the number to be laid off depending on the incoming work, and that he would not specify the number but only that a certain order had been reduced and Field would then determine the number to be laid off. Asked once again who decides how many are to be laid off, Sandy replied, "Well, it all pertains to the particular job," and, later, that "To put it another way, everybody that was on the stem job would be laid off," although work on the stem job order continued for some time thereafter but at a slowed-down schedule. 4. Concluding findings I find the testimony of both Sandy and Field as to the reasons for the layoffs generally incredible on the basis of their unconvincing demeanor as witnesses and of the eva- sive and self-contradictory nature of their testimony. Fur- ther, on the basis of the record in its entirety, I find the documentary evidence on which the Respondent relies, the American Standard orders and change notices, not proba- tive of the assertions that the Respondent made the layoffs here involved for lawful economic reasons. Field admitted that he was "very disappointed" to learn that the employees had organized. That Sandy was also angry about it is shown by the decision immediately to impose stricter discipline on the employees, and Field's remark to Daniel Friedl, in an- nouncing elimination of the washup periods, that the "old man" was "mad." The evidence indicates that Sandy laid off seven employees on February 4 not on the basis of some vague indication in mid-January of a change in the shipping dates of the American Standard orders, but because of the letter he received on February 3 from the Union claiming 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to represent a majority of his employees. While the evidence does not establish that Sandy knew which employees had joined or assisted the Union, it does establish that he at- tempted to recruit an employee to engage in surveillance of the union activities, that such activities were carried on in and around the Respondent's plant which was a small one, and that both Field and Martin engaged in widespread interrogation as to the union sentiments and activities of the employees and made threats of reprisal for such activities. The evidence also shows that Sandy laid off additional em- ployees thereafter not for lack of work but because of their known or suspected continuing union activities and the pending election, and that he made the final layoffs as a reprisal for the Union's election victory. I have considered all the circumstances relating to the layoffs, including the time of the layoffs in relation to the Respondent's 8(a)(1) violations, to the receipt of the Union's letter seeking recognition, and to the Board-con- ducted election; 1I the precipitate manner, with no warning or notice, in which the layoffs were made; 11 the demand that those laid off early in the day leave the premises immedi- ately; 17 the lack of credible or probative evidence to sup- port the Respondent's asserted reasons for the layoffs; 18 the Respondent's small employee complement; the indications to employees prior to their layoffs of further training and continued employment; Field's indications at the time of the layoffs that he needed the employees; the diverse rea- sons given the employees for their paychecks that the lay- offs were permanent; the evidence that the new machines as well as the old ones were in operation subsequent to the layoffs; the advertising for and hire of new employees, in- cluding trainees, during the period of and shortly after the layoffs;'9 the unlawful threats and interrogation found above; and Sandy's remark to an employee overheard by Bernard Friedl that ". . . everyone that has voted for the 15 N L R B v Stemun Mfg Co, 423 F 2d 737, 742 (C.A. 6, 1970), Scott Gross Company, Inc, supra, Lang Towing, Inc, 201 NLRB No 92 i6 N L R B v Sutherland Lumber Company, supra, quoting with approval the holding that "The abruptness of a discharge and its timing are persuasive evidence as to motivation" in N L R B v Montgomery Ward & Co, 242 F 2d 497, 502 (C.A 2, 1957), cert denied 355 U S 829 (1957) 17 Dobbs Houses, 182 NLRB 675, 679 18 See NLRB v Texas Bolt Company, 313 F 2d 761 (C A 5, 1963), N L R B v Melrose Processing Co, 351 F 2d 693, 698 (C A 8, 1965), Great Atlantic & Pacific Tea Co v. N L R B, 354 F 2d 707 (C A 5, 1966), holding that "The Board is not compelled to accept the employer's statement [of the ground for discharge] when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee 's union activi- ty", Shattuck Dena Mining Corp v N L R B, 362 F 2d 466, 470 (C A 9, 1966), holding Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving In such cases, the self-serving declaration is not conclusive, the trier of fact may infer motive from the total circumstances proved Otherwise no person ac- cused of unlawful motive who took the stand and testified to a lawful motive could be brought to book Nor is the trier of fact-here the Trial Examiner-required to be any more naif than is ajudge If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that infer- ence 19 N L R B v Midwest Hanger Co, 474 F 2d 1 155 (C A 8, 1973) union is out of a fob."20 It is apparent from the totality of the evidence, and I find, that the Respondent's assertions that it laid off the employ- ees for lack of work were pretextual,21 and that the Respon- dent in fact laid off these employees because it "was plainly determined to rid itself immediately of the Union element within its work force .. ," 22 to affect the results of the pending election, and to penalize those who had organized or supported the Union. In all the relevant circumstances, I find without merit the Respondent's contention that the layoffs in issue are shown to be lawful by its failure to lay off certain other employees it knew to be prounion 23 I further find that it is immaterial whether the Respondent had knowledge of the union membership or activities of each individual in the groups laid off 24 or only a clearly evidenced suspicion.25 Accordingly, I conclude and find that the Respondent laid off Daniel J. Friedl, Chislom, Frederick, Freed, Holz, Shamatta, and Yakubics on Febru- ary 4, Chadwick and Staniszewski on March 7, Neidenbach on March 8, Bernard Friedl on March 24, the Friday of the election, and Piszczek and Trivett on March 27, the Mon- day after the election, in order to discourage membership in or activity on behalf of the Union, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act 26 D. Recall of Laid-off Employees The Respondent contends that its practice has always been to hire "off the street"; that in Sandy's 28 years of operating the Respondent he has never had a policy of recalling laid-off employees; that, on advice of counsel, it offered reinstatement to some of the laid-off employees, who failed to accept these offers; that Yakubics was rehired because he walked into apply when ajob was available; and that, if any of the other laid-off employees had reapplied at a time when jobs were available, they would have been rehired. I find these employment policies inapplicable, how- ever, in the case of discriminatonly laid-off employees. As to most of the laid-off employees, there was no offer of reinstatement. There were telephonic and telegraphic mes- sages to call Field or inquiries about current employment, followed by letters to the effect that failure to respond was 20 See N L R B v John Langenbacher, 398 F 2d 459, 463 (C A 2, 1968), cert denied 398 U S 1049 (1969), The Von Solbrig Hospital, Inc, 189 NLRB 273 21 Heath International, Inc, supra, Santa Rita Mining Company, 200 NLRB No 144 22 Waterways Harbor Investment Co, Inc, 179 NLRB 452 23 N L R B v W C Nabors Company, 196 F 2d 272, 276 (C.A 5, 1952), cert denied 344 U S. 865 (1952), Luhr Jenson & Sons, Inc, 177 NLRB 475, 478 24 N L R B v Link-Belt Co, 311 U S 584, 602 (1941), Majestic Molded Products, Co, Inc, 154 NLRB 1185, Webber American, Inc, supra, Scott Gross Company, Inc, supra 25 See N L R B v Clinton Packing Co, 468 F 2d 953 (C A. 8, 1972), holding that "known union activity or membership is not essential since there is substantial evidence that discharge was the result of suspected union activi- tiy", South Point Barge Company, Inc, 200 NLRB No 28. 26 Filler Products, Inc v N L R B, 376 F 2d 369 (C A 4, 1967), N L R B v West Coast Casket Co, 469 F 2d 871 (C.A. 9, 1972), The Circle K Corp, 173 NLRB 713, Alabama Rod and Wire Division, 176 NLRB 181, 184, Rea Trucking Co, Inc, 176 NLRB 520, 525, Treasure Lake, Inc, 184 NLRB 679, Cotton Lumber Company, 185 NLRB 602, Union Camp Corporation, 194 NLRB 933, Scott Gross Company, Inc, supra, Heath International, Inc., supra, Lang Towing, Inc, supra CARBIDE TOOLS, INC. interpreted by the Respondent as rejection of an offer of reinstatement. In fact, however, no explicit reinstatement offers had been made. I find, therefore, that the Respondent's "obligation was to reinstate the employees discriminated against ; in so doing it should bear the burden of notifying the employees of reinstatement...." 27 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's oper- ations 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 Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practic- es found and from in any other manner infringing upon its employees' Section 7 rights,28 and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent terminated Chis- lom, Frederick, Freed, Daniel Friedl, Holz, Shamatta, and Yakubics on February 4, Chadwick and Staniszewski on March 7, Neidenbach on March 8, Bernard Friedl on March 24, and Piszczek and Trivett on March 27, to dis- courage membership in or activities on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act, and that the Respondent has, for reasons violative of the Act, failed or refused to recall these employees, or made offers of rein- statement to certain of the laid-off employees which I have found to be inadequate, the Respondent will be ordered to offer to each of its laid-off employees, except Yakubics, who was rehired, reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and to make each of these laid-off employees, including Yakubics, whole for any loss of pay suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Carbide Tools, Incorporated, is an 27 N L R B v Buckhorn Hazard Coal Corp, 472 F 2d 53 (C A 6, 1973), Amsterdam Wrecking it Salvage Co, Inc v Local 294, International Brother- hood of Teamsters and N L R B, 472 F 2d 153 (C A 2, 1973), holding that "Any doubts regarding the employees' attitudes toward reinstatement prop- erli were resolved against the employer Dobbs Houses, supra s N L R B v Express Publishing Company, 312 U S 416, 437 (1941), N.L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941) 329 employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with reprisals because of their membership in or activities on behalf of the above- named union, by interrogating employees about their union membership, activities, and desires, and requesting an em- ployee to report such activities to it, by eliminating the existing practice of a 5-minute washup period before closing time as a reprisal against, and in order to discourage, union membership or activities, and by other conduct interfering with, restraining, and coercing its employees in the exercise of their section 7 rights, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By terminating Chislom, Frederick, Freed, Daniel Friedl, Holz, Shamatta, and Yakubics on February 4, Chad- wick and Staniszewski on March 7, Neidenbach on March 8, Bernard Friedl on March 24, and Piszczek and Trivett on March 27, in order to discourage membership in or activities on behalf of the above-named union, the Respondent has discriminated against employees in regard to their hire or tenure of employment, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices 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: ORDER 29 The Respondent, Carbide Tools, Incorporated, Parma, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals because of their membership in or activities on behalf of International Union, Allied Industrial Workers of America, AFL-CIO, interrogating employees about their union membership, ac- tivities, and desires, or requesting employees to report such activities to the employer; eliminating established employee privileges as a reprisal against, and in order to discourage, union membership or activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Laying off, terminating, or otherwise discriminating against any employees in regard to their hire or tenure of employment in order to discourage membership in or activi- ties on behalf of International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organi- zation. 29 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 Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Chadwick, Chislom, Frederick, Freed, Bernard Friedl, Daniel Fnedl, Holz, Neidenbach, Piszczek, Shamat- ta, Staniszewski, and Tnvett immediate and full reinstate- ment to their former fobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Chadwick, Chislom, Frederick, Freed, Bernard Friedl, Daniel Friedl, Holz, Neidenbach, Piszczek, Shamat- ta, Staniszewski, Tnvett, and Yakubics whole for any loss of pay each of them may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its plant in Parma, Ohio, copies of the at- tached notice marked "Appendix A." 30 Copies of the no- tice, on forms provided by the Regional Director for Region 8, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the consolidated com- plaint be dismissed insofar as it alleges violations not specif- ically found herein. 30 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 " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with reprisals be- cause of their union membership or activities; interro- gate employees about their union membership, activities, and desires, or request employees to report such activities to us; eliminate established employee privileges as a reprisal against, and in order to discour- age, membership in or activities on behalf of Interna- tional Union, Allied Industrial Workers of America, AFL-CIO; or in any other manner interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL NOT lay off or terminate the employees named below, or any other employees, or otherwise discriminate against any employees in regard to their hire or tenure of employment, in order to discourage membership in or activities on behalf of the above- named union or any other labor organization: James A. Chadwick Joseph Holz Willie Chislom, Jr. Gary R. Neidenbach Mark Frederick Stanley Piszczek Douglas Edward Freed Michael Shamatta Bernard Friedl, Jr. Joe Staniszewski Daniel J. Friedl Roy Trtvett Michael Yakubics WE WILL offer the employees listed above, except Ya- kubics, immediate and full reinstatement to their for- mer jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make whole the employees listed above for any loss of pay each of them may have suffered as a result of the discrimination against him. Dated By CARBIDE TOOLS, INCORPORATED (Employer) (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 direct- ed to the Board's Office, 1695 Federal Office Building, 1240 E. 9th Street, Cleveland, Ohio 44199, Telephone 216-522- 3715.