The Torrington Co.

THE TORRINGTON COMPANY 257 The Torrington Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; UAW. Case 11-CA-4777 November 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 28, 1972, and June 8, 1973, respectively, Administrative Law Judge Eugene E. Dixon issued the- attached Decision and Supplemen- tal Decision in this proceeding. The Employer has filed exceptions to both Decisions, together with briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to-a three-member panel. The Board has considered the record and the attached Decisions in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, The Torrington Company, Union, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Spartansburg, South Carolina, on May 2 and 3, 1972. The complaint, dated March 6, 1972, was issued by the Regional Director for Region 11 (Winston-Salem, North Carolina), on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board). It alleges that Respondent had engaged and was engaging in unfair labor practices by discharging it employee Charles Crumley and by other specified conduct in violation of Section 8(a)(l) and (3) of the Act. In its duly filed answer, Respondent denied the commis- sion of any unfair labor practices. On the entire record and on my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Maine corporation with a plant and place of business at Union, South Carolina, where it is engaged in the manufacture and sale of bearing products. During the 12 months preceding issuance of the complaint (which is a representative period) Respondent shipped products valued in excess of $50,000 from its Union, South Carolina, plant directly to points outside the State of South Carolina. During the same period Respondent received directly from points outside the State of South Carolina goods and materials valued in excess of $50,000. I find that at all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Charles Crumley, the alleged discnminatee, worked for Respondent on three different occasions from 1966 to mid- September 1971-the first two times leaving voluntarily. His work on those two occasions was confined to the inspection department where he was qualified to do spherical inspections, among others, and employment as a maintenance man for some 5 or 6 months. In mid-August 1971 he was rehired as a floor inspector on the second shift which up to this point (like the third shift) had no floor inspector. At the time of his last hiring Crumley was told that Respondent was concerned about the dollar amount of waste occurring on the second and third shifts particularly in the Acme Screw Machine area and that Respondent expected to cut down on this waste by adding floor inspectors to the second and third shifts. It was hoped that the savings in the cost of waste would more than make up the cost of the two additional positions. Accordingly, Respondent had decided to embark on this program on an experimental basis. With this understanding by Crumley he was hired for the second shift. As a new hire he was subject to a 90-day period of probation but was not asked to file a new application form. The third shift floor inspector position was filled by the transfer of an' employee of some years tenure, Stanley Moody, from another position. At the time Crumley was hired, in addition to the foregoing, he was told by the then Personnel Director Mobley Jeter that Respondent's plant was nonunion and that Respondent would like to keep it that way and it did not need a union. He also told Crumley, that he had 207 NLRB No. 46 257a DECISIONS OF NATIONAL LABOR RELATIONS BOARD information that Crumley had been in the union campaign of 19691 and that he hoped that Crumley would "not be involved in the future." Crumley assured him that he would not. Notwithstanding this assurance, Crumley became active in a current organizing campaign soon after his rehire. In this connection he was a member of the union campaign committee; he "got cards signed; ... talked to employees ... went to their homes . . . and . . . met with all the men who had anything to do with it on several different occasions." " On one occasion Crumley and another employee, Jimmy Heatherly, were discussing the previous union campaign and what had happened to it. Heatherly told Crumley that "it all ended rather abruptly" and that nothing more was heard about it. At about this time Price Castle a newly made supervisor and long time friend of Crumley came by. Knowing that Castle had been active on behalf of the Union during that campaign as a rank-and- file employee, Crumley asked him what happened in that campaign. Castle answered, "I can't be talking about the Union if I got caught talking to you about the Union, I might loose my job." Crumley then asked, "Do you mean to tell me you would report me if you find out that I was trying to help the Union?" Castle replied, "My job would require me to.,, 2 Crumley was terminated on September 16, 1971. About a week before his termination Quality Control Manager, Art Nord, had Crumley come into the office where they went over the steadily rising cost of scrap. Nord showed Crumley what they were endeavoring to do and what a job they had ahead of them. Crumley "was very frankly amazed at the amount of dollars on a monthly basis that it amounted to, particularly in the area ... he was acquainted with." At the time of this conversation there had been no decision to discontinue the experiment. However, after this discussion with Cruniley, Nord met with Plant Superin- tendent Donald Klinger about it and it was decided between them that instead of saving money the experiment was costing more than their loss of scrap had been before. Accordingly they decided to discontinue the experiment "immediately." Thereupon Nord had Crumley taken off the job that very afternoon and transferred Moody to a different shift. The day prior to his termination Crumley had had a conversation with fellow employee Louis Jeter about which Crumley testified credibly and without denial as follows: In order to learn more about the work Crumley had gone to Jeter's machine and asked Jeter for an explanation of what his operation amounted to. In the course of the conversation Crumley asked Jeter how many pieces he ran a night. Jeter replied that it did not make any difference whether he ran a hundred or a thousand that the Company was not satisfied and that he could not run enough to keep the Company satisfied= Crumley then commented "that if the Union came into this plant, they would probably set a production scale and you wouldn't have to run it to satisfy them; you could just run a certain amount and that would be it." Crumley had no more than uttered these words when he turned and saw foreman Nicholson standing behind him within- touching distance. At this point Nicholson headed for another machine and Crumley walked off. According to Crumley, he would have had no trouble hearing what was said by him and Jeter had he been standing where Nicholson was standing. Nicholson did not testify. As for the details of his termination Crumley testified as follows: Nord asked him into, the office of Personnel Director Mobley Jeter where they found Jeter and Foreman Nicholson talking. When they came in Nicholson left. Jeter was told then that the job he was hired for had been closed out and he was paid off. In filling out the exit interview form, when Jeter got to the question of whether Crumley would be available for rehire he told Crumley that he would have to indicate no rehire 'because it was company policy not to rehire anyone a fourth time. Crumley heard nothing from Respondent thereafter and made no attempt to be reinstated until early January 1972. At that time having heard that his old job was being reactivated he went to see Plant Manager Norman Cook but instead saw Personnel Director Jeter who told him that he "didn't think" that Crumley could get his job back. Crumley indicated that he would like to talk to Cook about it because he felt that he had been discharged because of his union activities. Jeter indicated that when he was told to lay Crumley off all he could do was what they told him to do and that he did not want Crumley to be mad at him because he had a job to do. In any event, Jeter arranged a meeting with Cook that took place a day or two later. About this meeting with Cook Crumley testified as follows: ... He said that I knew about the job being opened before he did; . . . and he wanted to know how; and I told him that it was through some of the employees at the plant. He told me that he didn't see how he could tell a man that he hired for a job, that he was going to have to lay him off the job and put me back on it; and I told him that it was really rather foolish to hire another man, to train him up; when he had a man already trained; that all he had to do was to call me back; and that I would be glad to come back. And he then asked me why did I get mixed up in the Union; and I told him that I felt like that the plant could use it; that it was pretty well in "foul shape" in my opinion. He then asked me how a guy like Bob Price and Carl Cooper get mixed up in it; and I told him that he would have to ask them about that. And then he asked me, why would a guy who had been there for such a short period "such as you have" want to get mixed up in it; And I told him that I had been twice before; and that the third time I came back that nothing had changed; the plant was still pretty much-everybody was still in turmoil; so I thought that I would try to help the employees out by trying to get the Union in; and said that I wasn't doing it for just myself; but that I was doing it for everybody that wanted it. . . . he said, "If you fill out an I A. couple of years previously, an unsuccessful attempt had been made violation of Sec 8(a)(1) of the Act In the context in which it was made I to organize Respondent's plant. 2 It is contended that the above comment by Castle constituted a reject this contention. THE TORRINGTON COMPANY 257 b application and lay it on my desk, I will study it and see if I can't put you back in the plant somewhere." I said, "Well there is an application out there." He said that he had to have one that was updated; and I told him that I had been there three times before; and that I had never had to fill out but one application; and he disagreed with me; and he said that if I had been there three times that I would have filled.out three applications. And I told him, "no, there wasn't"; that I had filled out three; that I had only filled out one. He told me that he felt that I was doing myself a great injustice by not filling one out. I told him that I didn't know whether I was or not, but that I was kind of "leary" of it, you know; I didn't know if he was "trying to do something to me" or what; I didn't know anything about the legal procedures in that plant; and so I wouldn't fill it out; I didn't see any reason to fill it out; and so I wouldn't fill it out; I had only filled out one before and I had been hired three times. Crumley denied telling Cook that he did not want to be considered for any other job in the plant except that of floor inspector. Cook's version of the foregoing interview vanes in substance with Crumley's in that he claimed that he told Crumley that he "would be particularly anxious to consider him for further employment" and that Crumley said he was interested only in,the job of floor inspector. He also categorically denied that he asked Crumley, either in substance or effect, why or how he got mixed up in the Union. Nonetheless he admitted that he had asked Crumley what had motivated the interest of Price and Cooper in the Union and also testified that he told Crumley that it was Respondent's "wish-to remain a non- union plant"; I credit Crumley's version, together with the foregoing in toto. Louis Jeter testified credibly and without denial as follows about a conversation with Foreman -Nicholson early in November, 1971: I did have a conversation with Mr. Nicholson; the first one was with Mr. Nicholson; and I was sitting at the brass table when he ' walked up. He asked me what did I think about the up coming election. I told him that I thought it was a good thing. He asked me why, And when he asked me why, I told him. I gave a lot of reasons as to why I thought it was good, and then he asked ' me if I thought the rest, you know, a pretty good lot of the employees thought it was a good idea; and I told him yes; that I thought that we had to have at least fifty percent; and he said, "No, it doesn't take that many." And I said, "I don't know how many it takes to have the election but it is coming up." And he asked me, "Do you, know if they have two people?" And I said, "Yes. I mean, I said, No." And he asked me if I knew if they had one, and I said, "Yes, sir," and when ^I told him that, he told me to come on, "let's go into the office." And we went into his office and we talked for an hour about it, and he wanted to know some reasons I was for the Union; and so I told him what I thought were good reasons for having the Union; and some of those; well, I thought that some of the employees were being treated unfairly, particularly black employees; and they seemed not to be promoted; that they were still on low-paying jobs. The following day Nicholson met Jeter when he came in and told him that James Barrett, foreman for the production machine department, wanted to speak to him in Barrett's office. According to Jeter's undenied3 and credited testimony Barrett opened the conversation by asking Jeter if he had signed a union card. When Jeter answered if he had, Barrett asked why he had signed. Jeter's reply was that he "had signed in the hopes that the Union would come into the Torrington Plant.- From this point Barrett, referring to notes that had been made by Nicholson in his conversation the day before with Jeter, proceeded to discuss "the gripes" Jeter had voiced to Nicholson, trying to show that the Union was bad for the Company and for Jeter. When Jeter asked Barrett why he was trying to dissuade Jeter from supporting the Union, Barrett's only comment was that Respondent did not want a union in the Torrington Plant and "would not stand for a union to come into that plant." A couple of times after this occasion Barrett asked Jeter if he had changed his mind. -Being answered in the negative, Barrett told Jeter that maybe he should find out the facts "and make sure that the rest of the employees, particularly the black employees knew what the Union was all about." In addition to Barrett's repeated interrogation, Nicholson also talked to Jeter "almost daily about it" wanting to know if Jeter had changed his mind and giving him reasons why he should. In early October Plant Superintendent Don Klinger went to the gauge room and engaged Robert Price, Jr., in a conversation about the Union. He initiated the conversa- tion with the remark that he had heard through Nord that Price was connected with the Union and wanted Price "to get a thorough knowledge and understanding about the Union." He then proceeded to spend about a half-hour telling Price the "bad points" about the Union. According to Price's further credited testimony sometime prior to the election James White, foreman in the inspection depart- ment, called Price into the office to discuss the Union. White asked Price, "why would [he] get involved in something like that?" Price said he wanted to find out something about the Union. He said that "they" were always telling him the bad points about the Union which led him to wonder "if it was so bad why were there so many people in it." White said that the Union was not good for the economy and that if they did get a union, they would not have a checkoff system.' Price replied that if they did not get a checkoff they would pay the dues out of their own pockets. Respondent's attempt in its brief to write off the interrogation reflected in the foregoing record as innocu- ous and an exercise of Respondent's 8(c) right of free speech is rejected. In the first place its characterization of the union discussion being "argued vigorously by' both 3 Barrett did not testify. 4 White admitted the truth of Price's testimony except this remark about the checkoff which White denied. ,257c DECISIONS OF NATIONAL LABOR RELATIONS BOARD sides" is somewhat inconsistent with its claim elsewhere that the discussions were merely "casual" conversations about unions. Moreover there is nothing "casual" about conversations that take place between rank-and-file em- ployees who are called into the office of high officials of the employer and pointedly questioned at great length about their union attitudes, activity and support. I find that the foregoing clearly establishes the allega- tions in the complaint attributing coercive interrogation by Nicholson, Barrett and White in violation of Section 8(a)(1) of the Act .5 Further evidence in the record shows the following: (1) although no one was hired to fill Crumley's "particular" floor inspector job (or, as Nord put it in his testimony, no new employees were hired to perform a floor inspector's job "in that capacity.") at least four or five people were hired in the inspection department within a relatively short time after the discharge. Thus, Shirley Maness was hired as a "roving inspector" just a week or so after Crumley's discharge. Also hired as spherical inspectors were Stanley Harris and B. H. Ferguson. Ferguson and presumably the other two (who were hired at the same grade as Ferguson) were inexperienced and had to be trained for a couple of weeks .6 For the first 4 or 5 days of Ferguson's employment he spent full time performing the floor inspector duties Crumley had performed but later this was reduced so that he was spending about 25 percent of his total time on such duties. At the time Maness, Ferguson, and Harris were hired Respondent, through its Supervisors James White and Art Nord, knew that Crumley had perviously performed satisfactorily as a spherical inspector and through "hearsay" or "rumor" that Crumley was interested in a job in the inspection department. (2) The three-times- and-out rule was not a publicized or published rule and that it was subject to discretionary variance by Respon- dent's officials. And further that it did not in any case apply to economic layoffs.7 (3) A production machinery scrap summary_ showing monthly scrap figures for each department for the year 1971 was introduced into evidence by Respondent through Plant Superintendent Donald Klinger. According to his testimony on the basis of "numerous reports ... including daily scrap tickets [and] monthly computer-produced records" (the latter being the one he paid most attention to and from which the above 5 1 find no violation in connection with Klinger's conversation with Price. 6 According to Jimmie Heatherly's undemed and credited testimony he spent 2 weeks training Ferguson as a floor inspector 7 According to Personnel Director Jeter's testimony layoffs involving job elimination are not counted as an ordinary economic layoff and thus are encompassed in the three-times-and-out rule. $ Even though Respondent had a valid reason to terminate Crumley, if antiunion considerations played any part in the motivation for the discharge it must be considered discriminatory within the meaning of the Act and a violation of Sec 8(a)(3) thereof. N L R B v. Whitfield Pickle Company, 374 F.2d 576, 582 (C A 5, 1967). 9 Although Personnel Director Jeter testified at one point regarding Crumley's unsatisfactory performance he later explained his use of the word "unsatisfactory" as meaning that the job Crumley was assigned to did not work out satisfactorily 10 There was no evidence whatsoever to show how an inspection function could or would be instrumental in curtailing the amount of faulty production that resulted in scrap. In this connection it may be somewhat enlightening that Klinger testified that it was finally decided that perhaps exhibit was made) he became concerned over the Acme Screw Machine's production scrap. Conclusions While a cursory glance at Respondent's defense here by someone not experienced in the field of labor law might invoke a favorable reaction (an experimental job doesn't work out and the forewarned probationary employee is laid off) it seems to me that careful expert analysis of the entire record requires a rejection of Respondent's defense and a finding that Crumley's discharge was in substantial part motivated by his union activity.8 First, a comment on the scrap figures, introduced by Respondent. These were monthly figures and showed a substantial increase in the cost of scrap in September over August from $1,412 to $1,881 in department 14 which included the Acme Screw Machine production. As noted these were the figures that Klinger paid "the most attention to" in coming to the decision to terminate Crumley. But obviously these figures could not have been available when Crumley was terminated. It is true that Klinger testified that he also had daily scrap tickets that came "over" his desk. But there was no offer of those tickets or even samples of them in evidence and no explanation why they were not produced to support Klinger's oral testimony. Now to the specifics. Two things are of paramount importance in the analysis of this matter: (1) the timing and abruptness of the discharge and (2) the hiring of several untrained inexperienced people after the discharge. It must be borne in mind that Crumley was not let go because of any alleged incompetence .9 On the contrary what evidence there is in the record regarding his competence shows that he was quite capable and that Respondent was aware of his capabilities. Clearly one who can perform maintenance work satisfactorily is not a dolt. Thus when an employer premptorily out of the blue and without a word of warning during the work shift terminat- ed such a employee because a job through no fault of his has not fulfilled expectations 10 one wonders what giv- es-what kind of an employer is this anyway. Then, consider that this termination occurred the day after Crumley was overheard by one of Respondent's supervi- sors making a statement to a fellow employee clearly in support of unionization.ii the best way to approach the scrap problem was to put more effort in the training of the production workers. i i This in itself is sufficient to attribute knowledge on Respondent's part of Crumley's union support and, predilection. But in view of Respondent's pervasive interrogations of its employees about theirs and their fellow employees' union attitudes it could be pretty well taken for granted that Crumley's union attitude was accurately cataloged by the time of his discharge. In this connection it would be well to recall that at his hiring interview Crumley's past support of the Union was adverted to by Respondent coupled with the admonition that Respondent expected a change of heart in Crumley which he readily promised Querry Could this knowledge of Crumley's past union support (and its concomitant warning) have had anything to do with the stated experimental and indefinite nature of the job as offered to Crumley? In other words even though the job actually was to be on an experimental basis, was this communicated to Crumley solely to protect Respondent if it proved that Crumley had not yet seen the light regarding unions since his last employment? It must be remembered that Respondent wanted no part of a union in its Torrington plant and went out of its way to impart this information to its employees THE TORRINGTON COMPANY 257 d All of the foregoing, of course, must also be considered in the light of the four or five hires after Crumley's discharge. Within a week an employee, untrained and untried, was hired in the inspection department . She was hired, Respondent says, as a roving inspector. As an experienced floor inspector and a spherical inspector, not to mention a competent maintenance man, it certainly is logical to assume that Crumley was clearly qualified for the job Maness was hired for. Then occurred the hiring of Harris and Ferguson, also untrained and inexperienced, at a time when Respondent was aware that Crumley, a trained, experienced, competent person, was interested in being rehired. This information on the part of Respondent's supervisors has its significance regarding Crumley's interview with Cook and the latter's testimony that Crumley was not interested in any job but that of floor inspector .12 If such was the case why would Cook even have tried to get Crumley to file an application? And as for Crumley's refusal to file another written application, at that point it made no difference. He had been discharged for discrimi- natory reasons. In view of Respondent's avowed opposi- tion to the Union, and knowing of Crumley's support of it, the filing of another application would have been a useless act. In this connection, it might be noted that Cook's testimony that he was anxious to have Crumley's applica- tion for consideration sounds hollow indeed when Crum- ley's and Respondent's union attitudes are considered. A few other aspects of the evidence that I feel militate against Respondent. Jeter's gratuitous remark to Crumley that he would not be rehirable because of the three-times- and-out rule. In the first place it appears that the rule was flexible and discretionary. Moreover it simply does not make sense to differentiate between layoffs that occur through no fault of the employee as Respondent attempts to do here. Respondent's contention that the reason that Crumley was not kept on was that he was a probationary employee also has a hollow sound when his experience and competence are considered in the light of the expense of training new employees. To summarize, while I do not mean to say that I do not believe that Respondent intended to try the floor inspec- tors jobs on the second and third shifts on an experimental basis, I do mean to say that I believe and find that Crumley was terminated in substantial part because of his union support and activity and that his termination thus violated Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Charles Crumley for engaging in activities protected by the Act, I will recommend that Respondent be ordered to offer him immediate and full reinstatement to his former or substan- tially equivalent position , without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to that amount he .normally would have earned as wages from the date of his discharge to the date of an offer of reinstatement , less the net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291--294 (1950), including interest as held in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent preserve and make available to the Board upon request, payroll and all other records necessary to facilitate the determination of the amount due under this recommended Order. Since the type of unfair labor practices committed by Respondent herein strike at the heart of the rights guaranteed employees by Section 7 of the Act, N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941), I will recommend that Respondent cease and desist from infringing in any way upon the rights guaranteed in Section 7 of the Act. May Department Stores v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company, v. N.LR.B., 120 F.2d 641. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW I. The Torrington Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning o f Section 8(a)(1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Charles Crumley, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. International Union, United Automobile, Aeros- pace, and Agricultural Implement Workers of America, UAW is a labor organization within the meaning of Section 2(5) 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: 12 1 do not credit Cook's testimony in this respect. 257 e DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 13 The Torrington Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, or in any other labor organization of its employees by discharging its employees or discriminating against them in any other manner in regard to their hire or tenure of employment, or any term or condition thereof. (b) Interfering with, restraining, or coercing their employees in the exercise of rights guaranteed in Section 7 of the Act. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Charles Crumley immediate and full reinstate- ment to the position he held at the time he was discharged, or an equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth above in the section entitled, "The Remedy." (b) Upon request make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, personnel records, reports and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its plant in Union, South Carolina, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms to be provided by the Regional Director for Region 11, shall, after being duly signed by a representative of Respondent, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.15 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 14 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." 15 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read -Notify the Regional Director for Region 11, in -writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Goverment WE WILL NOT discourage membership in Interna- tional Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, or any other labor organization of our employees by discharging or otherwise discriminating against any employee in regard to his hire or tenure of employment or any term or condition of employment. WE WILL NOT illegally interrogate our employees regarding their union activities or sympathies. WE WILL NOT in any other manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named labor union or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities. WE WILL offer Charles Crumley immediate and full reinstatement to the position he formerly held, or its equivalent without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered asJ a result of our discrimination against him. TORRINGTON COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300. THE TORRINGTON COMPANY 257 f SUPPLEMENTAL DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: On September 28, 1972, I issued a decision in the captioned matter holding that Respondent had engaged in and was engaging in unfair labor practices by discharging its employee Charles Crumley and by other specified conduct in violation of Section 8(a)(1) and (3) of the Act. In my decision I found that Crumley, on the basis of his undenied and credited testimony, had been overheard by his foreman, Jack Nicholson, talking in favor of a union to a fellow employee. After issuance of my decision the case was duly transferred to the Board. What next happened can best be described in the order of the Board dated January 16, 1973: ORDER The Board having duly considered the matter: IT IS HEREBY ORDERED that the above-entitled proceeding be, and it hereby is, remanded to Adminis- trative Law Judge Eugene E. Dixon for consideration of the transcript of the testimony of witness Jack Nicholson; for reconsideration of his Decision in the light thereof; and, at his discretion, for -reopening the record herein for the purpose of taking additional testimony. IT IS FURTHER ORDERED that the Administrative Law Judge shall prepare a Supplemental Decision contain- ing such resolutions, findings, conclusions, and recom- mendations as he finds are necessary after having given due consideration to the complete record in this case. Copies of such Supplemental Decision shall be served on all the parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, with respect to the rights of all parties to file exceptions and briefs shall be applicable. For some unknown reason the Board's Order did not come to my attention until May 30, 1973. On September 28, 1972, Administrative Law Judge Eugene E. Dixon of the National Labor Relations Board issued his Decision in the above-entitled proceeding and, on the same date, the case was transferred to and continued before the Board in Washington, D.C. Thereafter, Respondent filed exceptions to the Administrative Law Judge's Decision, together with a brief in support thereof. In its exceptions, Respondent argued, inter alia, that the findings of the Administra- tive Law Judge did not take into consideration testimony given at the hearing in this case by witness Jack Nicholson. Respondent cited such testimony as appearing on pages 185(a) through 185(h) of the hearing's transcript. The copies of the transcript that are currently in the Board's possession do not contain any testimony by witness Nicholson or the pages cited by Respondent. Also, we have been administratively advised that the same is true of the transcript that was provided to the Administrative Law Judge. As a result of further administrative inquiry, we have learned that the court reporter responsible for the transcript of the hearing in this case initially delivered, to the Administrative Law Judge and the parties, transcripts which did not contain the testimony of witness Nicholson, but that at a later date supplemen- tary transcript pages containing the missing testimony- -pages 185(a) through 185(h) and a revised page 185-were separately forwarded. However, through inadvertence, said supplementary pages were not brought to the attention of the Administrative Law Judge and were not annexed to the original transcripts in the Board's possession. i His direct examination on the matter was as follows: Q. I asked you if you recall that event? A. Yes, sir Additional Findings of Fact In my original decision I made the following findings: The day prior to his termination Crumley had had a conversation with fellow employee Louis Jeter about which Crumley testified credibly and without denial as follows: In order to learn more about the work Crumley had gone to Jeter's machine and asked Jeter for an explanation of what his operation amounted to. In the course of the conversation Crumley asked Jeter how many pieces he ran a night. Jeter replied that it did not make any difference whether he ran a hundred or a thousand that the Company was not satisfied and that he could not run enough to keep the Company satisfied. Crumley then commented "that if the Union came into this plant, they would probably set a production scale and you wouldn't have to run it to satisfy them; you could just run a certain amount and that would be it." Crumley had no more than uttered these words when he turned and saw foreman Nichol- son standing behind him within touching distance. At this point Nicholson headed for another machine and Crtunley walked off. According to Crumley, he would have had no trouble hearing what was said by him and Jeter had he been standing where Nicholson was standing. Nicholson did not testify. As it now appears from the supplemental pages of the transcript, Nicholson did testify. He denied that he heard any "conversation . . . whatsoever" between Jeter and Crumley, claiming that it was noisy in the area in which they were talking. But Nicholson did not deny Crumley's testimony that he was standing within touching distance of Crumley and Jeter on this occasion. Indeed, it is a fair inference from Nicholson's testimony that such was the case.' Q. What, if anything did you hear? A. I heard no conversation with him whatsoever. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS The foregoing testimony of Nicholson presents the only significant conflict with the General Counsel's evidence. I see nothing in it that would impel me to change the credibility findings heretofore made on this matter. It seems to me that anyone standing within touching distance of two people talking has to be able to hear what is said as well as the two principals can. Moreover, Nicholson's further testimony demonstrates a curiosity about the employees' union attitudes as exemplified by his interroga- tion of Teter (fully described in the original decision) his taking notes on the interrogation and his supplying the notes and information he thus received to his superiors. On the foregoing basis I stand on my decision and recommended order of September 28, 1972, which I incorporate herein by reference.