Simley Corp.

SIMLEY CORPORATION Simley Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW. Cases 25-CA-7989 and 25-RC-6325 November 10, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On December 28, 1976, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a brief in support thereof and a brief in support of the Administrative Law Judge's Decision. 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 Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, to modify his remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),' and to adopt his recom- mended Order, as modified herein.2 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, as modified below, and hereby orders that the Respon- dent, Simley Corporation, Angola, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified herein: 1. Add as paragraphs 1(d) and l(e) the following, relettering the present paragraph l(d) as l(f). "(d) Coercing its employees by asking them to withdraw their union authorization cards. "(e) Interrogating employees about voting in the election and promising them that they will enhance the likelihood of recall if they vote in the election." 2. Substitute the attached notice for that of the Administrative Law Judge. I see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 2 The Administrative Law Judge inadvertently failed to include in his recommended Order remedial paragraphs relating to two 8(a)(l) violations which he found. We correct the recommended Order accordingly. 233 NLRB No. 68 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in International Union, United Automobile, Aero- space & Agricultural Implement Workers of America (UAW), or any other union, by laying off, discharging, or otherwise discriminating against our employees because of their union or concerted activities. WE WILL NOT interrogate any employee con- cerning that individual's union activity in a manner constituting a violation of Section 8(a)(1) of the Act. WE WILL NOT threaten our employees with the closing of our business if a majority become members of, or assist, a labor organization. WE WILL NOT coerce our employees by asking them to withdraw their union authorization cards. WE WILL NOT question our employees about their voting in the election nor promise them that they will increase the likelihood of recall if they vote in the election. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to the following employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges. Brenda K. Barnes Yvonne Boik Paula R. Bolding Diana L. Boyer Joice Boyer Donna Brown Linda M. Clifton Phyllis R. Davenport Jeanine Ellert Claudia Farmer Musser Penny Gaskill Sharon Gulick Dawn Martin Cindy Morrow Velda Munger Donna Ringler Brenda Walter Nancy Walter WE WILL make whole the above-named em- ployees, against whom we have discriminated, for any loss they may have suffered because of our discrimination, by payment to each of them a sum 391 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of money equal to the amount that she normally would have earned as wages from the date of such discrimination to the date of the offer of reinstate- ment, or placement on a preferential list, as the case may be, less her net earnings during said period, with interest thereon. SIMLEY CORPORATION DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This is a consolidated proceeding involving allegations that the above-named Employer engaged in unfair labor practices in violation of Section 8(a)(1) and (3) and also involving challenges to the eligibility of certain voters in an election held pursuant to a petition filed by the above-named Union in Case 25-RC-6325. The unfair labor practice allegations are set forth in a complaint issued in Case 25-CA-7989 on July 15, 1976. By order dated August 20, 1976, the Regional Director for Region 25 consolidated the complaint case with the above- numbered representation matter and directed a hearing. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. The hearing on these consolidated matters was held on October 5, 1976, in Angola, Indiana. At the hearing all parties were represented. All were given full opportunity to examine and cross-examine witnesses, and to file briefs. Oral argument was waived. On November 15, 1976, the Union submitted a memorandum, and on November 22, 1976, the General Counsel and the Respondent submitted briefs.' Case 25-CA-7989 Upon the entire record herein, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Indiana corporation, with its sole office and place of business in Angola, Indiana, is engaged in the retail mail order business. During the year prior to issuance of the complaint, a representative period, the Respondent had gross revenues in excess of $500,000. During that same period, in the course and conduct of its business operations, the Respondent purchased and re- ceived goods valued in excess of $50,000 directly from suppliers located outside the State of Indiana. On the foregoing facts, the Respondent concedes, and it is now found, that Simley Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I Certain errors in the transcript have been noted and are hereby corrected. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and it is now found, that the Union (also known herein as UAW) is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Marvin Finn is the president and sole owner of the stock in the Respondent corporation. The Company, founded in 1961, originally had a plant at Pleasant Lake, Indiana. About 1965, it constructed a new building in Angola, about 6 miles from Pleasant Lake, and since that time the Respondent has conducted its mail order operations from the latter location. From this headquarters the Respondent sends out advertising circulars in great volume to customer prospects throughout the United States who are urged to take advantage of the Company's latest offer. Its merchan- dise consists of women's apparel, and, according to President Finn, during the recent past it has concentrated on the sale of panty hose, printed bikini panties, printed knee-high stockings, and pullover sweaters. Its mass mailings are sent out at third-class bulk postage rates and range in size from a few hundred thousand letters to well over a million. Allan Overgaard, secretary-treasurer of the Company, is also the plant manager and in charge of production. Directly under him is Norma Lanning, an employee of some 15 years' experience who acts as a supervisor on a plantwide basis. At the time in question the Respondent had an employee complement of about 65, most of whom were women. According to Overgaard, about eight or nine employees work in the IBM Department which handles the address lists, the computer work, and related operations. About 10 employees work in the Bulk Rate Department where they take the orders after they have been filled, sort them by zip codes, and tie them up in zip code bundles. The rest of the employees work in what is known as the REG Department and are concerned with opening the mail and filling the customers' orders. The Union began an organizational campaign among the Respondent's employees on or about May 19, 1976.2 On May 24, the Respondent laid off 18 employees. On May 28, the Union filed a representation petition in Case 25-RC- 6325, which ultimately resulted in the holding of a secret- ballot election on July 9. Late in August the Respondent recalled 12 of those who had been laid off the preceding May. The General Counsel alleges that the- Respondent violated Section 8(a)(3) and (1) of the Act both by its layoff of the 18 employees in May and by its failure to recall all of these employees in August. All of these allegations are denied by the Respondent in their entirety. B. The Facts On the afternoon of May 19, a Wednesday, several employees gathered at the home of employee Paula 2 Unless otherwise indicated, all dates hereinafter are for the year 1976. 392 SIMLEY CORPORATION Bolding where they met Dick Zellers, a UAW representa- tive, and Naomi Hoote, president of a UAW local at a nearby plant. Present, in addition to Bolding and the organizers, were employees Cindy Morrow and Claudia Farmer. The employees decided to initiate an organization- al campaign among their coworkers and those present signed authorization cards. The following day, a Thursday, these three employees were joined by Yvonne Boik, a coworker who also signed a card. Thereafter, employees Bolding, Morrow, Musser,3 and Boik embarked on a determined effort to enroll as many of their colleagues as possible in the UAW. In so doing, they launched a door-to- door solicitation of their coworkers, which was conducted that afternoon and on Saturday. They also agreed that on the following Monday morning they would hold a breakfast meeting at the home of employee Clara Rinehart, one of their recruits. The regular reporting time for the plant work force was 7:30 a.m. Shortly after 7 a.m., on May 24, and subsequent to their meeting at Rinehart's home, the five above-named employees arrived at the plant parking lot where they engaged in a determined solicitation of all their arriving coworkers whom they had not previously contacted and from whom they sought to secure signed authorizations before the plant opened. Immediately after 7:30 a.m. and at the start of the shift, Vice President Overgaard called the entire work force together and announced a layoff of 18 employees. Included in this number were Bolding, Boik, Morrow and Musser. Bolding and Boik testified that when Overgaard read the list of those being laid off he called out their names and that of Musser more loudly than the others whom he enumerated. 4 Overgaard told the assembled group that the reduction was dictated by economic conditions, and that, although all the employees on the layoff list were good workers, he would have to let them go.5 Several of the employees testified that Overgaard told them that he "wouldn't put his head on the chopping block [as to] whether he would call [them] back." 6 Overgaard conceded that he may have made the foregoing comment. He also testified that he could not recall having told the employees that they had any prospect of being recalled. It was not unusual for the Respondent's employees to experience a layoff. One month before there had been a reduction in force and about a dozen employees had been let go. In January a number of others were laid off and subsequently recalled. In 1975 a substantial number of employees had been laid off in March and had not been recalled until December. The employees on the layoff list for May 24 were selected on the basis of their seniority and were, in fact, the least senior of all those on the payroll. On the morning of May 24, after Overgaard had announced the layoff, Supervisor Norma Lanning stated to 3 At this time Musser was known as Claudia Farmer, her maiden name. She subsequently married and at the time of the hearing was known as Claudia Farmer Musser. 4 Morrow corroborated the testimony of Bolding and Boik in this connection. However, she also testified that Overgaard did not emphasize her name when he reached it on his list. 5 This finding is based on the credible testimony of Boik and Morrow. Overgaard did not contradict their testimony and, when on the stand. conceded that he might have made this statement. several of the employees who were engaged in opening the mail that she had noticed the soliciting in progress on the parking lot. She then asked the employees present as to what had been going on out there. Some of those present gave noncommittal answers and professed no knowledge of what she was asking about. Lanning herself testified that after a short pause employee Joice Oberlin told her "I think they are trying to start a union." Lanning conceded that when Oberlin made this statement she herself immediately commented "Oh, God, no, he will close the doors." Employee Clara Rinehart, who was present, testified that she heard Lanning say "If he [President Finn] gets a union in, you know he will close his doors." Employee Mary Ann Rinehart testified that Lanning also said that at one time "the girls in Pleasant Lake [the Respondent's former plantsite] were thinking about forming a union, and he [Finn] said he would close the doors." Lanning did not deny or contradict the comments which the Rineharts attributed to her.7 Since the latter were credible witnesses, it is now found that the supervisor made substantially the remarks to which they testified. According to Lanning, shortly after she had commented to the employees as to what President Finn might do if a union organized the plant, she went to his office and told him what she had said. Lanning testified that Finn admonished her for the remarks and ordered that she make a retraction. Sometime later that day, Lanning did tell several of the employees that she had been reprimanded for her comments that morning and that Mr. Finn had directed that she tell them that he would not move out of Angola. Other witnesses corroborated Lanning's testimony to the effect that she made a retraction. However, Lanning conceded that she did not know whether, in telling the employees about Finn's having admonished her, she had spoken to all of the same people to whom she had made the original statement about closing the plant. About II a.m. that morning, President Finn told the employees he had an announcement to make, whereupon he told them that he had heard that a union had begun an organizational campaign and that he knew that a number of the girls had signed authorization cards. Employee Mary Rinehart testified that Finn told them "The ones who have signed the cards, I would like for them to withdraw [them]." A short while later, however, he came out of his office again and this time he told them "Girls, I would like to rephrase what I said ... I would like you to think about withdrawing your cards." s This testimony was corrobo- rated by that of employee Clara Rinehart. The latter further testified that later that day employee Kathy Johnson asked that Rinehart give her back the authoriza- tion card which she had signed a few days earlier because "she was scared." 9 The testimony of the Rineharts was credible and it was undenied by Mr Finn when he was on 6 The quotation is from the credible testimony of employee Linda Clifton. I Lanning conceded that she may have mentioned the Respondent's expenence at Pleasant Lake. She acknowledged "I may have... I can't say I did not," and went on to state that at the time she was too upset to remember clearly what she had said. I The quotations in this paragraph are from the credible testimony of employee Mary Ann Rinehart. 9 The quotation is from Clara Rinehart's credible testimony. 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the stand. For these reasons, it is now found that their testimony as to this incident is a substantially accurate account of what occurred. Brenda Barnes, one of the employees laid off on May 24, testified that she had had several conversations with Overgaard both prior to and subsequent to the election. According to Barnes, on July 6, she happened to meet Overgaard at a shopping center and on the following day he telephoned her. Barnes testified that the plant manager asked whether she planned to vote and when she answered in the negative and explained that she was fearful that if she did so she would lose her job, Overgaard told her "Why don't you come in and vote ... then maybe you will get your job back." According to Barnes, after the plant manager made this comment she promised that she would vote. The election was held on July 9, a Friday. Barnes testified that on the following Monday, Overgaard tele- phoned her home and asked her how she had voted. According to Barnes, when she hesitated to answer this question, Overgaard told her "Well, one or another way, I am going to find out what you voted," and she then acknowledged that she had voted for, the Union. Before concluding the conversation, Barnes asked whether she would get her job back and Overgaard's response was "probably, maybe." When a substantial number of the laid off employees were recalled the following month, Barnes was not among them. Overgaard generally denied that he had promised anyone in layoff status that she would enhance her recall opportunities by voting in the election and he denied that he had made such a statement as Barnes attributed to him. However, he did not deny having interrogated Barnes as to how she had voted in the election. Overgaard's denial that he had promised this employee that her prospects of recall would be increased if she voted in the election was delivered in a very halting and hesitant fashion. It was most unpersuasive. In its brief, the Respondent acknowledges that Barnes and Overgaard had a number of conversations during the period in question, but it contends that much of Barnes' testimony was incredible. That, however, is not my conclusion, after having seen and heard these two witnesses while they were on the stand. It is now found that as to this issue, Barnes' testimony was the more plausible. C. The Alleged 8(a)(1) Violations; Findings and Conclusions With Respect Thereto In its brief, the Respondent contends that Supervisor Lanning's discussion with the employees on the morning of May 24, her questions as to their activity in the parking lot, and her comment about the likelihood of plant closure were harmless and not violative of the Act. Contrary to this position of the Respondent, Lanning's remark that the advent of a union would cause Finn to close the plant, even though subsequently retracted, inherently tended to inter- fere with, restrain, or coerce the employees in the exercise of their rights under the Act. Freeport Marble & Tile Co., Inc., 153 NLRB 810, 817 (1965). It is now found that the threat of a shutdown which she uttered, as well as her interrogation of the employees regarding their protected concerted activity on the morning of May 24, constituted violations of Section 8(a)(l) by the Respondent. President Finn's statement to the employees on May 24 when he told them "The ones who have signed the cards, I would like them to withdraw it," even though modified shortly thereafter when he told the girls what he meant was that he would like for them to "think about withdrawing your cards," was also violative of Section 8(a)(1). Notwith- standing his revision of the original request it obviously had a coercive effect on some of the employees, as witness the testimony that shortly thereafter employee Kathy Johnson asked Clara Rinehart to give back her authoriza- tion card because she "was scared." President Finn's original statement to the employees on this occasion must be, and is, held to have been interference, restraint, and coercion within the meaning of the Act. Finally, the Respondent further violated Section 8(a)(1) of the Act when Plant Manager Overgaard promised employee Barnes that she would enhance the likelihood of her recall if she voted in the election, and likewise violated that same section of the Act when, on July 12, Overgaard questioned Barnes as to how she had cast her ballot in the Board-conducted election that was held the preceding Friday. N.LR.B. v. The Copps Corporation, 458 F.2d 1227, 1228 (C.A. 7, 1972); N.LR.B. v. Midwest Hanger Co. and Liberty Engineering Corp., 474 F.2d 1155, 1161 (C.A. 8, 1973). D. The Alleged 8(a)(3) Violations; Findings and Conclusions with Respect Thereto The General Counsel contends that the layoff of the 18 employees on the morning of May 24 was a discriminatory act, taken by President Finn to discourage the employees from joining the Union. This is denied by the Respondent, according to whom the layoff was dictated solely by economic considerations. The Respondent's business is to some extent seasonal and the summer months are, characteristically, less productive of mail orders than any other time of the year. Customarily, the Respondent has handled the problem posed by a decline in business during this period, by either (1) placing a few employees on layoff status, or (2) working shorter hours and taking advantage of the lull created by numerous employees going on vacation, as well as encouraging as many as possible of the work force to take the entire summer off. From the evidence in the record, it is clear that by mid-May the Respondent had chosen the latter method of retrenchment as the summer decline approached. On Wednesday, May 19, Thursday, May 20, and Friday, May 21 the plant worked only half days and on Saturday, May 22, it was closed. On Sunday, May 23, it was closed. On Friday, May 21, Overgaard, at Finn's direction, announced to all the employees that the time had come for them to sign up for their vacations and that any who wanted to take a leave of absence for the entire summer should see him. A sign-up sheet was posted in the plant and no deadline was set for the employees to register their preferences. These facts, as to which there is no dispute, all indicated that the Respondent would follow the second course of action described above. Nevertheless, Finn testified that on Saturday, May 22, he decided to impose a massive layoff on the following 394 SIMLEY CORPORATION Monday morning, with a reduction of 18 employees, or almost 30 percent of the work force.' 0 Finn testified that he arrived at this decision after checking the flow of responses to the Respondent's most recent mailing. According to Finn, We [presumably Finn and Overgaard] went to work on Saturday and we looked at the mail . . . and it was crystal clear. . . although we had only about a week's mailing, that this mailing was not going to do the job. The record does not support Finn's testimony to the effect that the results of the latest mailing were crystal clear by May 22. This mailing had been sent out at the Postal Service's third-class bulk rate between May 10 and 13 to 275,000 of what Finn described as the Respondent's best customers. Clara Rinehart, a veteran employee who had been working for the Respondent since 1972, credibly testified that in her experience, it usually took at least 2 to 3 weeks to determine the size of the response to any of these solicitations. Rinehart's testimony was corroborated by the data which the Respondent produced at the hearing. Thus, Finn testified that the May 10 to 13 mailing was limited to two new products, printed bikini panties and printed knee- high stockings. Although Finn claimed to have made his projection on May 22 that the May 10 to 13 mailing would be unsuccessful, the data which the Respondent itself produced demonstrates that the results of this mailing were not available at that time. Thus, Respondent's Exhibit I shows that for the week of May 17-21, there was only a marginal increase of around 250 orders for the bikinis from the week before (from 9,253 to 9,510), while printed knee highs displayed a decrease of almost 1,800 (from 14,343 to 12,527). Not until after Finn purportedly made his decision did the results manifestly start to arrive. From May 22 to May 30, the orders for printed panties increased by 1,400 over the preceding week (from 9,510 to 10,927). And an increase in orders for the printed knee highs did not come until the next week, May 31-June 4 (from 10,655 to 13,859). Consequently, from the Respondent's own data it is apparent that there were no measurable returns from the May 10 to 13 mailing until the week of May 31-June 4. All of which corroborates Rinehart's testimony to the effect that it takes at least 2 to 3 weeks to be able to predict the success of a mailing. The experience which the Respondent had with its mailings in March further reinforces this conclusion. The Respondent made several mailings that month, starting on March 10. The data on Respondent's Exhibit I discloses that there was no increase in total orders until the week of March 20-26. During the first 10 days after this mailing began there was an actual decrease in total orders (from 49,493 to 48,631). There was no increase in the volume of orders until the week March 20-26, when the total was 74,242 (in contrast with 48,631 for the preceding week). The Respondent then hired 12 additional employees to supplement the work force after the returns began coming in, but 10 of this number were not hired until March 29 and thereafter, or a full 19 days after the mailing started on March 10. Obviously, during that period, the Respondent did not feel justified in adding any new personnel until after almost 3 weeks had elapsed from the time of the initial mailing. All of this data would indicate that normally at least 2 full weeks, and more likely 3, must pass before the Respondent can make a projection as to the success or failure of its latest postal solicitation. Consequently, it seems highly improbable that any returns of the May 10 to 13 mailing were available to President Finn on Saturday, May 22, let alone enough that would permit him to project the results of that solicitation and enable him to conclude, as he testified, that by that date it was "crystal clear" the May 10 to 13 mailing would be unsuccessful and compel a drastic reduction in the work force. At the hearing, Finn testified that management had been considering a layoff for 2 weeks prior to his decision on May 22. This testimony, however, was in conflict with that of Overgaard, the plant manager in charge of production and personnel. According to Overgaard, he had no serious discussion with Finn regarding a layoff until May 22. Finn acknowledged that he made his decision to layoff the 18 employees on the latter date without consulting the vacation sign-up roster that he had directed Overgaard to establish. Only the day before, acting pursuant to Finn's orders, Overgaard announced to an entire assembly of the employees that they could then begin signing up for their vacations during the summer and that the Company would be happy to accommodate those who desired to take a leave of absence for the entire 3 months. Since no deadline was fixed for the employees to register their vacation preferences, it seems unlikely that, under normal circum- stances, the plant management would suddenly decide on a massive layoff the next day without waiting for the leave and vacation data to accumulate and be available for measuring the need and extent of any reduction. In its brief the Respondent asserts, correctly, that the General Counsel has the burden of proving discrimination, and that the Respondent does not have the burden of establishing the contrary. Indiana Metal Products Corpora- tion v. N.L.R.B., 202 F.2d 613, 616 (C.A. 7, 1953); N.LR.B. v. Soft Water Laundry, Inc., 346 F.2d 930, 936 (C.A. 5, 1965). Moreover, the burden of proof never shifts from the General Counsel and the Respondent does not have the burden of proving that it discharged or laid off an employee for the reason which it asserts. As was said by a court of appeals in an early case, so long as the provisions of the Act are not violated, an employer may discharge an employee for "a good reason, a poor reason, or no reason at all." Edward G. Budd Manufacturing Co. v. N.L R.B., 138 F.2d 86, 90 (C.A. 3, 1943), cert. denied 321 U.S. 778 (1943). And, recently, the Board stated "the National Labor Relations Act does not require that an employer act wisely, or even reasonably; only, whether reasonable or unreason- able, that it not act discriminatorily." Paramount Metal & Finishing Co., Inc., and Paramount Plating Co., Inc., 225 NLRB 464, 465 (1976). At the same time it is also true that an employer does not ordinarily discharge or layoff an employee for "no reason at all," and that support for a 0' As of May 22, the Respondent had 64 employees. 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding of unlawful motivation "is augmented [when] the explanation of the [layoff] offered by the respondent [does] not stand up under scrutiny." N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592 (C.A. 1, 1947). From May 20, employees Boik, Bolding, Morrow, and Musser, accompanied on Saturday, May 22, by employee Clara Rinehart, were engaged in an extensive door-to-door solicitation of their coworkers to join the Union. Knowl- edge of such activity by the Respondent's management before Monday, May 24, can be inferred from the small size of the plant, the fact that Angola is a small town,'I and the extensive nature of the contacts which the prounion group made with their fellow employees over a 4-day period. t2 Moreover, Overgaard acknowledged that as of May 24 he knew that some of the employees were interested in getting a union into the plant and that he had heard rumors about organizational activity before that time.13 Earlier herein, it was found that on the morning of the layoff and after the five above-named employees engaged in open solicitation on the plant parking lot, Supervisor Lanning unlawfully interrogated some of the employees about their activity and later that morning President Finn unlawfully suggested to the employees that they withdraw any authorization cards which they had signed. Also, Lanning's first reaction upon hearing about the employee organizational activity was to declare, that if a union was organizing, Finn would "close the doors." Lanning had been with the Respondent's organization since 1961, and had experienced a previous unionization attempt at the Pleasant Lake plant. It is significant that although she testified that Finn had never told her that he would close the Angola plant if a union organized the employees, she herself believed that he would do so. Thus, she testified "I felt that if anything like this happened, he would [close the plant], I don't know why. That's just the way I feel." This testimony, from a supervisor with 15 years' experience in the Respondent's organization and as one who had witnessed an unsuccessful organizational campaign at the other plant, sheds further light on Finn's motivation in the layoff. From the above congeries of facts it is now found that before the Respondent's management made the decision to lay off 18 employees on May 24, Finn had knowledge of the organizational campaign which Boik, Bolding, Morrow, Musser, and Rinehart had been con- ducting. The record establishes that the May 24 layoff was unprecedented in many respects. (1) It was the largest 1- day severance of employment that ever occurred at the plant. The next largest layoff occurred on April 27. At that time, however, only 12 employees were laid off. (2) The layoff on May 24 was unmatched in its abruptness in view II Marlindale-Hubbell Lawi Direclory. 1976 edition, vol. 1I, p. 743. lists the population of Angola. Indiana. at 5.117. 12 "It was not an unreasonable inference that in a small plant in a relatively small community news of the intense union organizational dnve came quickly to the attention of the plant officers." Angwell Curtain Company, Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951). See also, N.L.R.B, v. Sutherland Lumber Company, Inc., 452 F.2d 67. 69. (C.A. 7. 1971): N.L.R.B. v. Abingdon Nursing Center, 80 LRRM 3232, 68 LC Para. 12, 890(C.A. 7, 1971). 3a Thus, on this issue, when asked whether he knew by May 24 that some employees were interested in the Union, Overgaard answered in the affirmative and added "I was asked it I had heard rumors to that effect by of the total orders that were being received and the fact that a mailing had just gone out.14 (3) In contrast with the prelayoff situation that prevailed in prior years, several employees testified that before May 24 there were no rumors circulating in the plant that a layoff was immi- nent.t 5 (4) Finally, in a number of ways, the layoff on May 24 was handled in a significantly different fashion from prior reductions of the work force. Thus, previous layoffs were made at the end of the workday, or, at least, in the latter part of the afternoon. On May 24, Overgaard made the announcement at the start of the shift on a Monday morning. Moreover, all of those laid off were paid for a full day. This, too, had never been done before. Further, in the past the announcements had always been made by summoning the affected employees to the plant office where they were told, in comparative privacy, of the decision to put them on layoff status. In contrast, on May 24, Overgaard read the names of the 18 employees before an assembly of the entire work force. Finally, at the time Overgaard made the announcement of the layoff he made no promises as to when, if ever, any of the 18 would be recalled. This was a clear departure from past practice. Employee Laura Rothrock testified, credibly and without contradiction, that when Overgaard laid off her and 11 coworkers on April 27 he told them they would be recalled in August and asked that they leave their telephone numbers with him to facilitate their recall. This was done notwithstanding the fact that at that time most of the 12 employees involved had only 3 weeks' experience in the plant. As found earlier herein, Respondent's explanation for its decision to layoff the 18 employees on May 24 was implausible and lends credence to the General Counsel's contention that the asserted reason for the layoff was a pretext whereby the Respondent sought to cloak a stratagem for eliminating the Union's support at the very outset of the organizational campaign. Similarly incredible was another explanation advanced by the Respondent for laying off more employees than at any time in the past and when the incoming orders were climbing, rather than declining. Thus, President Finn testified that, in part, the reason for the layoff was increased labor costs and labor inefficiencies. On the other hand, upon cross-examination, Finn conceded that no raises had been given the employees during the period from 1975 to 1976. Apart from Finn's bald assertion, the Respondent offered no corroborative testimony or any documentary evidence that labor costs had risen. Late in August the Respondent recalled 12 of the 18 employees whom it had laid off on May 24. On September 15, it advertised in the local newspaper for female help and Mr. Finn. And that is all I knew for a definite, and of course, rumors we had heard before previously. "(Emphasis supplied. ) 14 On cross-examination Finn acknowledged that in prior years he waited until total orders were much lower before resorting to a layoff. This admission is borne out by the Respondent's records. Thus, on April 15, 1975, with weekly total orders in the 40,000's. the Respondent still retained 60 employees. Only when the orders fell to the mid and low 30,000's did it layoff nine employees on April 29. 1975. In contrast with that background. on May 24, the Respondent cut its employee complement by 18 even though the weekly total of its orders were in the 40,000's the week before and rose to as much as 44,000 within 2 weeks. II See the credible testimony of Joice Boyer and Yvonne Boik. 396 SIMLEY CORPORATION during the period from September 23 to 29, it hired 12 new employees. In letters dated August 27 the Respondent notified Yvonne Boik, Diana L. Boyer, Joice Boyer, and Donna Ringler that they could return to work. These four apparently had status as permanent employees since their seniority went back to October 1974. The other 14 employees, who were laid off on May 24 and all of whom had been hired in February, were described as "temporary- trial" employees. President Finn testified that because of the unfair labor practice charges which had been filed 16 he devised what he described as an objective callback system based on "work ability" and "absenteeism" for ascertain- ing which of the employees should be reemployed. Finn testified that originally, and until he assembled the data for his "objective" system for recall, he had not planned on reemploying many of those who had been laid off in May. According to the plant president, even before his callback system was established, Overgaard knew who the good workers were and who were not. Of the 14 "temporary-trial" employees, 6 were never recalled. These were Brenda K. Barnes, Paula Bolding, Linda Clifton, Cindy Morrow, Velda Munger, and Brenda Walter. An examination of the basis the Respondent used in determining to eliminate these employees demonstrates that its purportedly objective method was, in fact, highly subjective. As to the consideration which Finn gave to absenteeism, he admittedly did not take into account whether an employee's absentee record included those days when the employee was excused. This was notwithstanding the fact that, in practice, the Respondent required that an employee's absence from work could only be excused for cause. Both Morrow and Barnes testified, credibly and without contradiction, that all of their absences were excused by the Respondent and that they were never criticized when at work for their absences, or for any other reason. On Finn's chart, however, Barnes is listed as being absent 35.8 percent of the time and Morrow as being absent 11.4 percent of the time. As a result, on Finn's rating scale they received the lowest possible score for their attendance. Barnes, of course, was the employee whom Plant Manager Ov'rgaard urged to vote in the election, purportedly because it would help her chance of recall. As found earlier herein, after the election, Overgaard engaged in unlawful interrogation of this employee and ascertained that Barnes had voted for the Union. As to the work ability that Finn used on his callback rating scale the points allotted to each employee were based on the individual's reputed average at filling orders and the opinions of two supervisors. Reliance on the latter, of course, in itself belies the asserted "objectivity" of the rating scales. In selecting the employee's celerity at order filling as a criterion of the individual's skill, the Respon- dent ignored the fact that, according to Finn's own testimony, each of the employees was also engaged in opening mail, sorting orders, processing orders and preparing the mail, or a total of five different operations. "1 The onginal charge was filed on May 28 and an amended charge was filed on July 14. 17 After the effects of its unfair labor practices have been eliminated. the Respondent will, of course, he free, on a nondiscriminatory basis, to drop The data used as to the employee's speed at order filling had been compiled in May by the individuals themselves and with little supervision. Employee Bolding credibly testified that dunng that period she was told by Supervisor Lanning not to worry as to whether she was keeping her order filling record with exactitude because it was not a matter of any importance. Employee Morrow credibly testified that during that same period Lanning told her that the acceptable speed at order filling was 100 orders in 45 minutes, or 133 orders per hour. On the rating scale which Finn devised, however, the acceptable rate was raised to 143 to 150 per hour, in contrast with the standard that Lanning described to Morrow as acceptable. Bolding and Clifton credibly testified that they were never criticized for their work by any of the management. Of the six who were not recalled, there was no evidence that Barnes, Bolding, Clifton, Morrow, or Munger were ever criticized about their work. Employee Walter acknowledged that at one time she was reprimanded for being too slow. On Finn's callback rating scale, however, Walter was eliminated not because of her work record, but because of absenteeism. Concluding Findings Earlier herein, it was found that before deciding on the layoff of May 24, the Respondent was aware that the employees were engaged in organizational activity. In the light of the unpersuasive reasons given by the Respondent for effectuating the largest layoff in its history only 5 days after the onset of the Union's campaign, and, differently from all previous layoffs, announcing the reduction at the start of a work shift, in front of all the assembled employees, with emphasis on the names of the most active union adherents and with no mention of recall, although only I month earlier 12 employees who were laid off were assured of recall in August, and in view of the 8(a)(I) violations by Supervisor Lanning and President Finn later that morning, it is now found that the primary motivation for this precipitate action by the Respondent was discrimi- natory and a violation of Section 8(aX3). Furthermore, in view of the discriminatory layoff on May 24, as well as the action of Plant Manager Overgaard on the eve of the July election in urging employee Barnes to vote by promising that it would enhance her prospects of reemployment and thereafter unlawfully interrogating her as to how she voted, along with the very subjective bases on which the Respondent devised a recall system that eliminated six of the employees from consideration for reemployment in August at a time when the others were brought back to work, it is now found that to remedy the effects of the discriminatory layoff of May 24, the Respondent must offer immediate reinstatement and backpay to all of the 18 employees whom it unlawfully laid off on that date. 7 any of those employees who fail to adhere to the company work standards. Such action may be taken, however, only after there has been full compliance with the remedial order that will be recommended later herein. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case 25-RC-6325 The Challenged Ballots The election in Case 25-RC-6325 was conducted on July 9.18 Out of approximately 39 eligible voters, 16 cast valid votes for, and 18 cast valid votes against, the petitioning Union. There were 23 challenged ballots and no void ballots. After a preliminary investigation, the Regional Director concluded that since the eligibility of 18 of the challenged voters depends on whether they were discrimi- natorily laid off or discharged, an issue in the unfair labor practice case, the hearing on the aforesaid challenges should be consolidated for hearing on the allegations of the complaint in Case 25-CA-7989. An order consolidating the cases was issued on August 20. The findings as to the challenges, based on the testimony developed at the hearing, are set forth below. I. The eligibility of the alleged discriminatees in Case 25-CA-7989 The Board agent conducting the election challenged the ballots of Brenda K. Barnes, Yvonne Boik, Paula R. Bolding, Diana L. Boyer, Joice Boyer, Donna Brown, Linda M. Clifton, Phyllis R. Davenport, Jeanine Ellert, Claudia Farmer Musser, Penny Gaskill, Sharon Gulick, Dawn Martin, Cindy Morrow, Velda Munger, Donna Ringler, Jill Stewart, and Brenda Walter, because their names did not appear on the eligibility list supplied by the Employer. Presently, the Employer contends that none of the above-named were employed during the payroll period critical for establishing eligibility and on the day of the election and that, therefore, none of them are eligible to vote. The Petitioner contends that all were discriminatorily terminated or laid off by the Employer, and that their ballots should be opened and counted. As found earlier herein, 17 of the above named 19 were discriminatorily laid off on May 24. But for the Respon- dent's unfair labor practices, presumptively, they would have been at work during the time of the election. Consequently, it is now found that all of the above-named except Jill Stewart were eligible to vote on July 9, and that their ballots should be opened and counted. 2. Margie Grandin, Norma Noragon, and Betty Simpson The ballots of the above named were challenged by the Petitioner's observer on the ground that they were supervisors. This was denied by the Employer. At the hearing, Grandin, Noragon, and Simpson testi- fied. Grandin credibly testified that she works as a keypunch operator and as backup to run the computer under the supervision of Janet Shawver. She is paid $2.80 an hour, the same rate as other employees engaged in keypunch work. Noragon is a keypunch operator who earns the same wage as all the others who are engaged in that work. For over 5 years she worked in what is known in '8 The petition was filed on May 28. 19 At the hearing, the General Counsel conceded that Jill Stewart had been laid off in 'April, and that she was not an unfair labor practice the plant as the "mixie" room where undelivered packages with incorrect addresses are sorted out and remailed. As a result of her background in that section, employees in the "mixie" room sometimes ask for her help in deciphering illegible addresses. However, she now does keypunch work full time and under the supervision of Janet Shawver. Simpson works as a mail opener and sometimes works on order filling. All of the above named credibly testified that they have no authority to hire, fire, assign work, or exercise any other indicia of supervision. Consequently, it is now found that Grandin, Noragon, and Simpson were eligible to vote and that their ballots should be opened and counted. 3. Sharon Prentice and Judy Simpson The ballots of Prentice and Simpson were challenged by the Petitioner on the ground that both work as office clericals, a job classification that is excluded from the appropriate bargaining unit stipulated to by the parties. The Employer maintains that both are complaint depart- ment employees, a job classification that is included in the unit. At the hearing, Prentice credibly testified that she handles complaints in the complaint department and that she sends out form letters in response to the customers' complaints. She does no typing. She also keeps a running account of the money that is received each day and reports the total amount to Overgaard. Simpson credibly testified that most of her time is spent answering complaints in the complaint department. She also handles "shorts," a plant characterization for an order in which the customer fails to remit the proper amount. In the latter instance, Simpson uses a form letter to apprise the customer of the amount of the shortage and to request that the appropriate amount be forwarded. Simpson, however, does no typing. She also answers the telephone for all incoming calls to the plant. She spends one day out of every 2 weeks on the preparation of payroll checks for all the employees in the plant except the stockboys. After calculating the time and wages to be credited to each employee, she fills out their checks, but does not sign them. The latter function is performed by Plant Manager Overgaard. On the basis of the foregoing facts, it is now found that both Prentice and Simpson are employees in the complaint department. As such, they are members of the appropriate unit and their ballots should be opened and counted. Having found that Brenda K. Barnes, Yvonne Boik, Paula R. Bolding, Diana L. Boyer, Joice Boyer, Donna Brown, Linda M. Clifton, Phyllis R. Davenport, Jeanine Ellert, Claudia Farmer Musser, Penny Gaskill, Sharon Gulick, Dawn Martin, Cindy Morrow, Velda Munger, Donna Ringler, Brenda Walter, Margie Grandin, Norma Noragon, Betty Simpson, Sharon Prentice, and Judy Simpson were eligible to vote in the election on July 9, it will be recommended that Case 25-RC-6325 be remanded to the Regional Director for Region 25, for the purpose of opening and counting the ballots of the aforesaid employ- discriminatee. He thereupon moved to delete her name from the complaint and this motion was granted. 398 SIMLEY CORPORATION ees. Thereafter the Regional Director will issue a revised tally of the ballots and take whatever other action is indicated by the results of that tally. CONCLUSIONS OF LAW I. The Respondent is engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. By discriminatorily laying off 18 of its employees on May 24, 1976, the Respondent violated Section 8(a)(3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily laid off 18 employees on May 24. Whereas the Respondent may have been economically justified in laying off some of its employees during that month and thereafter, and some of the discriminatorily laid off employees might have been affected by such a nondiscriminatory reduction of person- nel, the record furnishes no basis for determining when such a layoff might have occurred or the order in which any of the employees might have been laid off. Under these circumstances, it will be recommended that the Respon- dent be ordered to offer to the employees who were unlawfully laid off in May 20 and who have not been recalled for employment immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and, in the event that there is insufficient work for all such employees, to dismiss, if necessary, all persons who were newly hired after the discriminatory layoffs in May. If there is not then sufficient work for the remaining employees and those to be offered reinstatement, all available positions shall be distributed among them 20 The names of these employees were: Brenda K. Barnes Yvonne Boik Paula R. Bolding Diana L. Boyer Joice Boyer Donna Brown Linda Clifton Phyllis R. Davenport Jeanine Ellert Claudia Farmer Musser Penny Gaskill Sharon Gulick Dawn Martin Cindy Morrow Velda Munger Donna Ringler Brenda Walter Nancy Walter 21 On August 27, the Respondent sent letters offering reemployment to the following: Boik, Diana L. Boyer, Joice Boyer, Brown, Davenport, Ellert, Gaskill, Gulick, Martin. Musser. Ringler, and Nancy Walter. President Finn testified that the Company had no response from Boik. Ellert. or Walter, without discrimination against any employee because of union activities, in accordance with a system of seniority or other nondiscriminatory basis. The Respondent shall place those employees, if any, for whom no employment is available after such distribution, on a preferential list, with priority in accordance with a system of seniority or other nondiscriminatory basis, and thereafter offer them rein- statement as such employment becomes available and before other persons are hired for such work.21 It will also be recommended that the Respondent be ordered to make whole the above-named employees for any losses they may have suffered because of the Respon- dent's discrimination, by payment to each of them of a sum of money equal to the amount that she normally would have earned as wages from May 24 to the date of the offer of reinstatement, or placement on a preferential list, as the case may be, less her net earnings during such period, the backpay to be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 (1962). It will also be recommended that the said Respondent be required to preserve and make available to the Board, or its agents, upon request, payroll and other records to facilitate the computation of backpay due. Since "a discriminatory discharge of an employee . . . goes to the very heart of the Act" (N.LRB. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941), it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended: ORDER 22 The Respondent, Simley Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, discharging, or otherwise discriminating against any employee in regard to her hire and tenure of employment or any term or condition of employment, because of activity on behalf of, or membership in, International Union, United Automobile, Aerospace & and that Musser returned, but at her request was immediately placed on pregnancy leave. According to Finn, all others who were offered reemploy- ment returned to work shortly after August 27. No evidence was taken as to whether these reinstatements were to substantially equivalent employment. That, of course, is a matter that can be disposed of at the compliance stage of this proceeding. In the event that it is evident at that time that the offers of reemployment were sufficient, backpay will be tolled as to the last named employees as of the date when each returned to work, or declined the Respondent's offer. 22 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. 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agricultural Implement Workers of America, UAW, or any other labor organization. (b) Interrogating any employee concerning that individu- al's union activity in a manner constituting a violation of Section 8(a)( ) of the Act. (c) Threatening its employees with loss of jobs or closing its business if a majority became members of, or assist, a labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Brenda K. Barnes, Yvonne Boik, Paula R. Bolding, Diana L. Boyer, Joice Boyer, Donna Brown, Linda M. Clifton, Phyllis R. Davenport, Jeanine Ellert, Claudia Farmer Musser, Penny Gaskill, Sharon Gulick, Dawn Martin, Cindy Morrow, Velda Munger, Donna Ringler, Brenda Walter, and Nancy Walter, immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all 23 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading, "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary, or appropriate, to analyze the amount of backpay due. (c) Post at its office in Angola, Indiana, copies of the attached notice marked "Appendix." 23 Copies of the notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's authorized representative, shall be posted 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 by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 25-RC-6325 be remanded to the Regional Director for Region 25 for the purpose of opening and counting the ballots of Brenda K. Barnes, Yvonne Boik, Paula R. Bolding, Diana L. Boyer, Joice Boyer, Donna Brown, Linda M. Clifton, Phyllis R. Davenport, Jeanine Ellert, Claudia Farmer Musser, Penny Gaskill, Sharon Gullick, Dawn Martin, Cindy Morrow, Velda Munger, Donna Ringler, Brenda Walter, Margie Grandin, Norma Noragon, Betty Simpson, Sharon Pren- tice, and Judy Simpson. Thereafter the Regional Director will issue a revised tally of the ballots and take whatever other action is indicated by the results of that tally. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 400