Gould, Inc.

178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gould, Inc. and International Union, United Automo- bile, Aerospace and Agricultural Implement Work- ers of America, UAW. Case 10-CA-11145 January 13, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 26, 1975, Administrative Law Judge John F. Corbley issued the attached Decision in'this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of-Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in the proceeding to a three-member panel. The Board has considered the record and the at= tached Decision 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Gould, Inc., Cookeville, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order except that the attached notice is substituted for that of the Administrative Law Judge. give, evidence, it has been decided that we, Gould, Inc.,.have violated the National Labor Relations Act and wee have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights including the right: To self-organization To bargain collectively through a represen- tative of your own choosing To form, join or help unions To act together for collective bargaining or other mutual aid or protection or To refrain from any or all such activities. Accordingly, we give you these assurances: WE WILL NOT do anything which interferes with your rights, set forth above.' WE WILL NOT refuse to recall .or reinstate you or take any other reprisal against you because you support or engage in activities on behalf of International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW, or any other labor organiza- tion. WE WILL NOT report you to the Tennessee De- - 'partment of Employee Security in order to har- ass 'you for supporting the above-named labor organization or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer to recall Leota Moss, Linda Mayberry, Betty Barlow, Virginia Williams, Bet- ty Buttram, Ada Ruth Pearson, and Billie Haw- kins-and WE WILL make up all pay lost by them as the result of our refusal to recall them earlier, plus 6-percent interest. 'Respondent excepted to the Administrative Law Judge's denial of its motion for production of pretrial affidavits in the General Counsel's posses- sion under the Freedom of Information Act, 5 U.S.C. Sec. 552, et seq., as amended-by Public Law 93-502 effective February 19, 1975 As General Counsel gave Respondent a copy of each witness' pretrial affidavit after such witness' direct testimony, and as Respondent did not ask the Administrative Law Judge for a continuance of the hearing in order to appeal his ruling, we find that Respondent has made no showing of preju- dice, and thus find it unnecessary to determine the effect of the amended Freedom of Information Act See Case Concrete Co, Inc., 220 NLRB No. 201 (1975), and Gould, Inc, 221 NLRB No. 127 (1975). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to GOULD, INC. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case during the period June 9 through 13, 1975, at Cookeville, Tennessee, pursuant to-a charge, an amended charge and a second amended charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, here- inafter referred to as the Union, on March 4 and 26 and April 11, 1975, respectively, and served on Respondent by registered mail on March 4 and 26 and April 14, 1975, respectively, and on a complaint and notice of hearmg dat- ed April 18, 1975, issued by the Regional Director for Re- gion 10 of the National Labor Relations Board which was likewise duly served on Respondent. The complaint alleges 222 NLRB No. 28 GOULD, INC. 179 that Respondent has violated Section 8(a)(3) and (1) of the Act by failing and refusing to recall some 18 named em- ployees on or about January 6, 1975, and thereafter be- cause of their union and other concerted activities and that Respondent has violated Section 8(a)(1) of the Act by noti- fying the Tennessee-Employment Compensation Claims Center, hereinafter sometimes referred to as the-Center or the Tennessee Department of Employment Security, that certain named laid-off employees receiving unemployment compensation were receiving earnings for appearing as wit- nesses against Respondent at a Board-conducted hearing. In its answer, which was also duly filed, Respondent de- nied the commission of any unfair labor practices. For reasons which-will appear, I find and conclude that Respondent has violated Section 8(a)(1) and (3) of the Act by-failing and refusing to recall-certain named employees but has" not done so by refusing to recall others.' I further find that Respondent has violated Section 8(a)(1) of the Act by sending the aforedescnbed notice to the Center. At the hearing,'the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine "and cross-examine witnesses, to in- troduce evidence, and to file briefs. The parties waived oral argument at the conclusion of the hearing and briefs have been filed-by Respondent-and-the,General Counsel.- Upon the entire record 2 in the case, including the briefs and- from my observation of the witnesses, 1-make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at-all tunes material herein, a corporation with an office and `place of business located at Cookeville, Tennessee, where it is engaged in the manu- facturing of heating elements for commercial; industrial; and comfort heating uses. Respondent, during the calendar year preceding the is- suance of the complaint, which period is representative of all times material herein, sold and shipped finished prod- ucts valued in excess of $50,000 directly to customers locat- ed outside the State of 'Tennessee. 1 Pursuant to the joint motion of the parties at the hearing; I dismissed from the bench the allegations of the complaint in respect to Linda Steward. 2 On August 6, 1975, I issued to all parties a notice to show cause in writing to me at my office in Washington, D C., on or before August 22, 1975, why the transcript of the record in these proceedings should not be corrected in certain particulars Inasmuch as-no party responded to this notice, certain errors in the transcript are_hereby noted and corrected. The parties were also directed to show cause'in writing at the same time and location as aforesaid why I should not take administrative notice that the following language appears as a footnote 'on the,original of a standard NLRB subpena (Form NLRB-32, dated 11-74y-even though said language does not appear Ion the subpena.copy (inadvertently received in evidence herein instead of the original): The complaint alleges, the answer admits, and I find that the Respondent is, and has been at all times material-here- in, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the-answer admits, and I find that the Union is a labor organization within the meaning of the Act. III. BACKGROUND AND SEQUENCE OF EVENTS A. Respondent's Supervisors The parties stipulated, and I find, that the following indi- viduals occupied the positions stated before their re- spective names during the periods set forth after their re- spective names and were supervisors of Respondent within the meaning of Section 2(11) of the Act at such times: Supt. of Mfg. Ray Bittner Sept. 1973--- Plant Manager at m apr. 19fi5. Apr. 1975 to date of hearing. Plant Manager W. P. Leggitt Sept. 1972 Sept. 1973. Mfg. Mgr . Sept .- 1973--- Apr. 197-5 Personnel Mgr. Ray Wilhoit ' May 1974 Mar. 1975. Personnel Mgr. Bob Ferris Jan. 1973- Jan. 1974. Gen. Foreman James Luper Sept . 1973 Sept. 1974. Supervisor Ken Klingler June 1974 to date of - hearing. 3J Supervisor Don Malone Mar. 1974 to date of hearing. Supervisor Margaret'Way June 1974 to date of hearing. Supervisor Dick Somme rs Mar. 1974 to date of hearing. Supervisor Virgie Null June 1974--- Dec. 1974. Supervisor Reba Gentry June 1974 to date of hearing. Notice to Witness-Witness fees for attendance, subsistence, and mile- age, under this subpoena are payable by the party at whose request the witness is subpoenaed. A witnessappearing at the request of the Getter- - al Counsel of the National Labor Relations Board shall submit this subpoena with the voucher when claiming reimbursement - Inasmuch as the parties likewise failed to respond to this aspect of the instant show cause order, I take administrative notice, accordingly Supervisor Edith - June 1974 to Holzhausen date of hearing. 3 Ken Khngler has been a departmental supervisor in department 415 and elsewhere at the Cookeville plant 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ted Filson has been the general manager of Re- spondent's heating division (consisting of the Cookeville plant and a,plant in Canada) since June 3, 1974. Inasmuch as Filson determined to shut down the Cookeville plant and lay off all its employees on December 20, 1974, and to reopen the plant in January 1975 and since he directed the activities of Respondent's plant manager, personnel man- ager, and other officials named above at all times pertinent hereto, I conclude that he was.at such times a supervisor within the meaning of Section 2(11) of the Act and Respondent's agent within the meaning of Section 2(13) of the Act. B. The Background of these Proceedings; Summary of Earlier Board Proceedings Involving the Same Plant Respondent's plant at Cookeville, Tennessee, here in- volved, was opened on November 1, 1972.. Additional product lines were added in 1973. During the period 1973 to 1975 the Cookeville plant has manufactured, inter alia, duct and strip heaters. _ The complement of the Cookeville plant reached a peak of about 380 in the summer of 1974. Through attrition this complement decreased to about 325 employees-in October 1974. Layoffs began thereafter and, on or about December 20, 1974, the plant was shut down completely. The plant was reopened on January 6, 1975, but with a sharply reduced work force. Thus, the employee comple- ment between January 6, 1975, and the hearing in mid- June 1975 averaged only 100 to 110 employees. The principal allegation of the complaint in this case is that Respondent has discriminatorily refused to recall 17 employees since January 6, 1975, in violation of Section 8(a)(1) and (3) of the Act.4 The Union's organizational campaign began in the sum- mer of 1973. Subsequently, unfair labor practice charges were filed by the Union against Respondent for its activi- ties in opposition to the Union's campaign. These charges ripened into a complaint and after an appropriate hearing before Administrative Law Judge George Powell the Board essentially adopted Judge Powell's findings 5 that Respon- dent during the summer and fall of 1973 had violated Sec- tion 8(a)(1) of the Act by engaging in coercive interroga- tion, threats and other forms of restraint and coercion of its employees in the exercise of their Section 7 rights to engage in union activities; that Respondent violated Sec- tion 8(a)(1) and (3) of the Act by discriminatorily discharg- ing four employees after the Union had held its initial or- ganizational meeting at the home of one of them in Sep- tember 1973 and, further, that Respondent had violated 4 As noted, the allegation of the complaint in respect to the failure to recall an eighteenth employee, Linda Steward, was dismissed by me from the bench based on the joint motion of the parties Another alleged discrimi- natee, Virginia Williams, has been recalled from time to time since January 6, 1975, but has not worked continuously since then 5 The Board's decision as well as Administrative Law Judge Powell's deci- sion are reported at 216 NLRB No 183 Section 8(a)(1), (3), and (4) of the Act in February 1974 by reprimanding employee Billie Hawkins (also an alleged discriminatee in the present case) who had testified in a prior Board proceeding against Respondent. A Board-conducted election was held among Respondent's employees on September 13 and 14, 1974 (Case 10-RC-10079). A majority of the employees voting in that election cast ballots against the Union. The Union, however, filed timely objections to this election based on Respondent's claimed misconduct. The Union's objections were consolidated for hearing with a complaint alleging various unfair labor practices by Respondent and the complaint came on for hearing before Administrative Law Judge Arnold Ordman in February 1975. Administrative Law Judge Ordman's decision in that case (Cases 10-CA-10735, 10830, 10937 and 10-RC-10079) was issued on May 21, 1975. Administrative Law Judge Ordman found that Respondent had violated Section 8(a)(1) of the Act during 1974 by coercive interro- gation of its employees, threats against their union activi- ties, promises of benefit to encourage their abandonment of the Union, creation of the impression of surveillance of their union activities, and solicitation of grievances to deter their unionizing efforts. He further found merit in the Union's election objections and recommended that the election in Case 10-RC-10079, be set aside by the Board and that a new election be held. Although the General Counsel stated in his brief that exceptions to Administra- tive Law Judge Ordman's decision had been filed, the Board, as of this writing, has not issued its decision in that case. 6 The Respondent moved at the outset of the hearing in the present case for summary judgment in its favor, relying on the Board's decision in Jeffer- son Chemical Co, Inc , 200 NLRB 992 (1972). I denied this motion from the bench. In Jefferson Chemical the Board affirmed a (then) Trial Examiner's Order granting summary judgment in favor of a respondent when the -complaint against it alleged unlawful surface bargaining in violation of Sec. 8(a)(1) and (5) of the Act Noting that the General Counsel had already prosecuted a complaint against the same respondent , the gravamen of which was an un- lawful unilateral action in violation of Sec 8(a)(5) and ( 1), and further noting that the earlier complaint had derived from a separate , but broad, 8(a)(5) and (1) refusal-to-bargain charge, the Board affirmed the Trial Examiner's ruling The Board held that , on the basis of the broad gauged charge and in light of essentially contemporaneous events from which the earlier complaint emerged, the General Counsel was on notice to investigate all aspects of the 8(a)(5) and ( 1) allegations of the charge and that his failure to litigate bad-faith bargaining in that case did not Justify his later attempt to litigate surface bargaining on the basis of a subsequent charge and com- plaint The Respondent seeks to bring the present case under the ambit of the Jefferson Chemical rule by averring that the earlier complaint herein (in Administrative Law Judge Ordman's case) involved violations of the same Sections of the Act (Sec 8(a)(1) and (3) and that the events on which the allegations of the present complaint are based-i e., the limited recall of employees on and after January 6 , 1975-had already taken place when the hearing in Administrative Law Judge Ordman's case occurred in the second half of February 1975 I disagreed because the Board 's decision in Jefferson Chemical is inapposite. Administrative Law Judge Ordman's case did not involve a complaint emanating from a broad 8(a)(3) and (I) charge (if there is such a phenomenon) nor does the present case constitute a different aspect of the same 8(a)(3) and ( 1) violation alleged in the complaint in Judge Ordman's case The earlier complaint alleged an unlawful discharge of one person at a certain time whereas the present complaint involves an alleged unlawful refusal to recall totally different employees at a later time GOULD, INC. 181 The February 1975 hearings by Administrative Law Judge Ordman also come into play in the present case in that the attendance thereat of a number of union adherents as witnesses or spectators was reported by Respondent to the Department of Employment Security of the State of Tennessee. Respondent's action in reporting their atten- dance is, as previously mentioned, the subject matter of the allegation of the present complaint that Respondent there- by independently violated Section 8(a)(1) of the Act. C. Administrative Notice of the Aforementioned Prior Board Proceedings At the hearing I was asked by the General Counsel and Respondent to take administrative notice of portions of the transcript of the proceedings in Administrative Law Judge Ordman's case and I agreed to do so. Respondent 's-counsel particularly noted in this regard that he had no objection to my taking of such notice where that transcript indicated Respondent's knowledge of the union activities of its em- ployees. I shall also take notice of the Board's decision at 216 NLRB No. 183 to the extent that the Board's findings therein and its conduct shown by the record in the present case indicate Respondent's continuing animus towards the union activities of its employees. Should Respondent file exceptions to my decision herein, it will have the opportu- nity at such time to show why the taking of such notice is improper.7 Further, there is no essential relationship between the acts (discharge and refusal to recall) which constitute, respectively, the gravamen of the 8(a)(3) and (1) complaint in the - two cases. Consequently, I see no basis for con- cluding that the General Counsel was on notice to investigate the possibility of an alleged unlawful refusal to recall (the substance of the charge herein) on the basis of the charge (m Administrative Law Judge Ordman's case) alleging an earlier unlawful discharge. The General Counsel is , after all, not empowered by the Act to file his own charges and his investigation is usual- ly limited to inquiry into the allegations of charges filed with him by private parties. Were the General Counsel to take it upon himself, as a policy, to go beyond those allegations, any charge filed with him would become a hunt- ing license and such a license would have no prospective seasonal limitation. The resulting disruption to the affai rs of a charged party, the administrative quagmire which the office of the General Counsel would become and the inordinate delays in obtaining justice as to the normally limited matters alleged in a charge are hardly difficult to imagine 7 I reject Respondents contention at the hearing and in its brief that no notice should be taken of facts in respect to anmrus as established in prior hearings. This argument rests on Respondent 's assertion that Administra- tive Law Judge Ordman in his Order denying consolidation (G.C Exh 1(k) herein) "could see no relationship between allegations in the outstanding complaint and the matters heard before him in the previous trial." This assertion, however, is directly contrary to Administrative Law Judge Ordman's conclusion which was that: ... the facts and issues involved [in the present case] apse from and are directly related to, at least in substantial part, the events involved in those consolidated cases [previously heard by Judge Ordman] (See G. C. Exh. 1(k) herein at p. 5; brackets mine). In any event the notice taken here of facts indicating Respondent's animus relates to the Board decision in Administrative Law Judge Powell's case and, as noted,-is supplemented by facts which are set forth in the record of the present case and which will be discussed hereinafter. Finally, it is Board policy to consider an employer's historic animus towards the union activi- ties of its employees in evaluating the employer's subsequent activities to alter or discontinue the employment status of employees so engaged. E.g, Paramount Cap Manufacturing Company, 119 NLRB 785, 787 (1957), enfd 260 F 2d 109 (C.A 8, 1958) D. In Further Regard to the Layoffs; the Interrelation of the Causes of the Layoffs and the Basis Upon Which some Employees Were Recalled While the layoffs themselves are not alleged to be an unfair practice there is, of course, a correlation between the layoffs and the recall. On December 18, 1975, Ted Filson, the general manager of Respondent's heating division gave a speech to the em- ployees of the Cookeville plant in which he announced the plant shutdown which occurred on or about December 20, 1975. In this speech Filson attributed the need to close the plant to the general economic condition of the United States at that time and more particularly to Respondent's economic losses at the Cookeville plant since its opening. He stated that Respondent's losses had been caused by: 1. The inefficiency of the employees ("some people not caring whether this plant survives or not"); 2. absenteeism; 3. disciplinary problems, hostility , and friction ; and 4. in- flation (price increases and increased labor costs). In addition to these remarks by Filson dealing with Respondent's economic condition at the time and bearing on the specific subject of Respondent 's manufacturing problems, Respondent presented a considerable amount of testimony and exhibits dealing with complaints from its customers during the latter part of 1974 wherein the cus- tomers took Respondent to task for the improper manufac- ture, assembly, or packaging of heaters which the custom- ers had received from Respondent. Shortly prior to the time the plant was reopened in early January 1975, Filson testified that he determined that indi- vidual employees would be recalled based on certain crite- ria. These criteria were: 1. productivity (or efficiency), i.e., the ability to produce products at a,reasonable rate of speed ; 2. absenteeism i.e., whether the employee had a good prior record for showing up for work , when sched- uled; 3. the record of the employee for staying at his work station and keeping on the job ; and 4. the employee's ver- satility, viz, his or her ability to perform different jobs. Respondent argues that it did, in fact, apply these crite- na in recalling employees and that this method of recall has paid off by enabling it to have a better , albeit smaller, work force since the recalls began on January 6, 1975. Thus, Respondent points out the uncontradicted testimony of its witnesses that whereas plantwide employee produc- tivity prior to the layoff was in the range of 76 to 83 per- cent of expected output, it has been in the range of 90 to 95 percent subsequent to the recall. Respondent also points to the testimony of its line supervisors that the quality of heat- ers produced since the recall has improved and Respon- dent notes in its brief the absence of evidence of further customer complaint on this score. From the foregoing Respondent asserts that since its se- lection of employees for recall has borne fruit in enhancing the efficient operation of the plant, this, proves its conten- tion that employees must have been selected for recall on the basis of the nondiscriminatory criteria to which Filson testified. I reject this line of argument . What Respondent is at- 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tempting to establish here is the following cause-effect rela- tionship. It seeks to argue that since its plant efficiency immediately improved with the elimination of these 17 em- ployees, then these 17 must have been the employees who were the least efficient, most absent, etc., whereas the em- ployees recalled must be more efficient, less absent, etc., than the 17. But such an argument is invalid on the basis of the record here, that is, it could only have validity if the instant 17 employees were the only employees not recalled. However, as Respondent concedes in its brief, some 180 other employees likewise have not been recalled.8 Hence, it has not- been established on the basis of the present im- proved plant 'efficiency that the 17-as a group-are less efficient, worse in attendance, etc., than the employees re- called. Such a determination could only be arrived at after comparison of the records of the 17 with the records of the 100 to 110 recalled. No such demonstration appears in this record. - For his part the General Counsel presents an argument (by way of introduction to his contentions with respect to each individual alleged discriminatee) which- passes through the same area as the foregoing argument of Re- spondent, albeit in the opposite direction. Since this argu- ment of the General Counsel, although not presented as such, could, if meritorious, dispose of the entire case on the 8(a)(3) allegations of the complaint I will treat it as if it had been offered for that purpose. - Thus, the General Counsel concedes that the Respondent's recall system-whatever it was-was obvi- ously designed to reestablish the work force with people who would not cause the same problems which had in sub- stantial part resulted in the shutdown of the plant in De- cember 1974. Against the background of this concession the General Counsel then proceeds to analyze these problems as out- lined in Filson's speech on December 18, 1974. Such prob- lems again, according to Filson, were inefficiency, absen- teeism, disciplinary problems, hostility, friction, and, finally, inflation (high cost of labor and materials). Taking these problems seriatim the General Counsel first notes that there is nothing that Respondent could do to control inflation. As to the other problems-leaving aside for the moment the matter of employee hostility and friction-the General Counsel points out that during 1974, and, particu- larly, the second half of the year, Respondent vigorously pursued a program of doing away with the employee prob- lems of inefficiency, absenteeism, and misconduct through the gradual steps of counseling, oral warning, written repri- mand, suspension, and, ultimately, discharge of malinger- ers. By means of this program, the General Counsel asserts, the Respondent should have been able to identify those employees experiencing difficulties in these various perfor- mance areas long before the layoff in December 1974 and should have either-eliminated the problem or the employee himself by that time. From this, the General Counsel would deduce that the criteria which Filson claimed he used in recalling employees, i.e., individual efficiency, good S And, indeed, one of the alleged discnmmatees herein, Virginia Williams, has been recalled from time to time since January 6, 1975, as previously mentioned attendance, etc., were all redundant. The General Counsel, having thus rejected Respondent's claimed criteria for recall, then proceeds, in effect, to argue that the only employee problem adverted to by Filson in his instant speech which still remained at the time of the layoff was employee hostility and friction. And, equating such "hostility and friction" with the union activities of some of the employees, the General Counsel asserts that the real criterion which governed Respondent's decision as to which employees to recall was whether or not the em- ployee was a union adherent. Since all 17 alleged discrimi- natees herein were union adherents, the General Counsel concludes that Respondent's refusal to recall them must, therefore; have been for this reason. While I agree, as will appear, that Respondent's stated company philosophy was opposition to labor unions, I find no merit in such a simplistic approach to the case. For there are varying degrees of efficiency, absenteeism, steadfastness, etc., among employees and there is no reason why an employer in the exercise of good-management in a limited recall after layoff may not recall his best employ- ees, that is, those whose past performance has been the most efficient and characterized by the least amount of absenteeism or dereliction, etc. On such a basis, an em- ployee with a lower performance-albeit not a problem performance-would not be among the first recalled. This is not to say that Respondent did in fact recall only its best employees here. What I hold here is that Respon- dent obviously had the right to do so. By the same token I do not hold that Respondent was only motivated by a de- sire to improve, plant efficiency when it selected certain employees for recall on and after January, 6, 1975, but re- jected others. Nor do I now hold-that Respondent was only motivated by a desire to eliminate union adherents (the causes of hostility and friction) when it rejected these 17 for recall. Thus, all that can be said at this juncture is that there is no easy way to resolve the 8(a)(3) allegations of the com- plaint. Hence the question of the illegality of Respondent's refusal to recall any-one of the 17 employees must turn, as usual, on establishment by the General Counsel by a pre- ponderance of the relevant probative evidence that such an employee was denied recall because of his or her union activities rather than-since Respondent here has ad- vanced this affirmative defense-the failure of such em- ployee to meet its criteri a for recall. In evaluating the Respondent's defense the validity of the criteria as purportedly applied to each discriminatee will be- analyzed and some comparison will be made be- tween the capabilities of the 17 alleged discriminatees and the performance of employees who have been recalled in the various areas of the plant where the instant 17 employ- ees worked prior to the layoff. This analysis will also con- sider the factor of employee seniority in view of the asser- tion of Respondent's plant manager, Bittner, at the hearing that seniority was used as a tie-breaker (in cases where two or more employees of equal ability were considered for recall to onejob), and likewise in view of the circumstances that some 180 or more other employees are still laid off in addition to the alleged discriminatees. - E. Work Areas of the Plant Involved Herein; Job Functions,- Some Nomenclature GOULD, INC. 183 No. 183) in respect to Respondent's animus towards the organization of its employees at the time of the hearing in Administrative Law Judge Powell's case in 1974: The plant areas where-the alleged discriminatees, vari- ously, worked were departments 405, 406, 415, and 416. While there- was some confusion -in the testimony of Respondent's witnesses on the division of work between departments 405-and 406, it appears that 'both before the December 1974 layoff and since the recall the basic weld- mg, sheet metal; and wire cutting work for the -frame or support structures of -both strip heaters and duct heaters has been performed in departments 405- and 406.9 In department 415 strip heaters were and are now assem- bled and packed. Prior to the layoff there were three as- sembly fines, the third- of which was discontinued after the December 1974 layoff. Line "1" did and now does consist of employees working under an overhead merry-go-round conveyor. The support structure (racks) for strip heaters are placed on this conveyor. Employees sitting at tables below and to the side of this conveyor remove the rack from the conveyor, string coils on it and return it to the conveyor. The next group of employees along the conveyor then remove the rack plus coils and "tie off" the wires attaching the appropriate nuts, bolts, and washers. The completed heater is then checked, packed, and sent to stor- age for shipment. A certain amount of welding may also be performed on line 1. - The functions of line 2 of department 415 include in essence the same functions as line 1, that is, stringing of coils, "tying off," checking, and.packmg. Between the lines are operators of miscellaneous but re- lated machines such as coiling machines and punch press- es. Certain work has been and is still done off line from lines 1 or 2-where employees working-at their own pace perform the entire heater assembly; i.e., stringing and tying off. Department 416 handles the assembly of duct heaters. There is a standard heater line and a special heater line. On the'standard duct heater line the standard heaters are run down a roller conveyor- where operators install compo- nents, wire the components, assemble the heaters, attach the doors, inspect the completed products, and package them. - On the special line each operator usually performs the entire assembly of the heater on which he or she is work- ing. These employees Out the rack together, put wrappers on, assemble all the components, wire the components, put heater doors on, attach the manual disconnect switches, clean and inspect the heater, and box it for shipment. Other miscellaneous operations are also performed in department 416- off line. F. Respondent's Animus Towards the Union As I have previously noted, I have taken notice of the following finding in -this, regard by Administrative Law Judge Powell which was adopted by the Board (216 NLRB 9 With their subdivisions 407 and 408. Respondent's attitude toward unions is demonstrat- ed by its policy of questioning prospective employees at job interviews as to their union membership or sym- pathies. Job applicants were told that Respondent did not have a union and did not need a union. Frank Howard, a machinist who at one time had-conducted several interviews as the only representative of Re- spondent in Cookeville,, admitted asking employees if they had been- involved in any union activities, ex- plaining that he "did not want to be responsible for hiring or being instrumental in hiring someone with a union background." He advised one applicant (An- derson) to deny the fact that he had once been the vice president of a local union if anyone asked him. The "stated Company philosophy" concerning la- bor unions was also revealed by Leggitt (Manager of Manufacturing) at meetings with employees to.be that Respondent did not desire to have third party repre- sentation "because we feel like we don't need anyone to speak for [the employees].,, Nor had Respondent's attitude towards ` the Union changed by the time of the events in question in the present case. Thus, as will appear -in the next section of this Deci- sion, Respondent engaged in a particularly vindictive har- assment of its union adherents by reporting to the Tennes- see Department of Employment Security the identity of employees who were in attendance at the hearing of the Union's charge against the Respondent which was heard by Administrative Law Judge 'Ordman in February 1975. Further at the time of the hearing in the present case a notice was published on Respondent's bulletin board at the plant in which Respondent adverted to Administrative Law Judge Ordman's recommendation to set the Septem= ber 1974 Board-conducted' election-aside and to hold a new one. In this notice Respondent exhorted its employees to vote against the Union in any new election. - G. The Independent 8(a)(1) Allegation that Respondent Reported the Attendance-of Union Adherents at Administrative Law Judge Ordman's Hearing to the Tennessee Department' of Employment Security Administrative Law Judge Ordman's hearing in consoli- dated Cases 10-CA-10735, et al. was'conducted during the period February 18 through 27, 1975. On February 21, 1975; Respondent sent the following letter to the Tennessee Department of Employment Security: Clyde Warren Claims Center, TDFS 263 W. Spring St. P.O. Box 509 Cookeville, Tennessee 38501 Dear Mr. Warren: Enclosed is a partial list of Gould employees pres- ently on layoff and drawing unemployment compere sation. A number of these people contained on this list 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been appearing in court as witnesses against Gould-and will be paid $20 per day plus mileage and expenses. This list is not complete by any means, but I thought it would serve as a reminder to you to check their earnings. If you need any further information from me please call. Ray A. Wilhoit Personnel Manager The list of employees enclosed contained names of em- ployees who were called as witnesses by the General Coun- sel but also, as Respondent concedes in its brief, numerous others who were merely in attendance at the hearing. Clyde Warren, the official to whom the letter was directed, did call the listed employees into his office to inquire whether they had received witness fees and either Warren or one of his assistants interviewed them. Those who had merely been spectators at the hearing so informed Warren. Some of the employees on the list who were merely spectators, and not witnesses, were Ina Gore, Virginia Dietz, Joe Far- ley, Linda Grider, Reba James, Ruth Myers, Mary Hunt, Bertha Gibbons, Mary Pistole, J. B. Davis, Gary Burgess, Linda Anderson, Conroe Moss, and William Nevins. Em- ployee Ken Romines was also reported even though he was not in the State of Tennessee at the time. Respondent contends that it reported these employees to the Tennessee Department of Employment Security in or- der to keep its unemployment taxes at a minimum. That is, says the Respondent, it is customary for employers to re- quest a check on the earnings, of their laid-off employees, because any laid-off employee who has obtained other em- ployment cannot claim unemployment compensation for such period. By maintaining such a check, says Respon- dent, it can hold down the number of unemployment claims against its state account and thereby reduce its un- employment tax. And it is clear that the State of Tennessee considers witness fees and fees for jury duty as income due to employment.10 I reject this contention for the simple reason that the above-named employee spectators did not testify and there is no evidence that any of them were subpenaed by the General Counsel to testify. Moreover, had Respondent been willing to wait until the last day of Administrative Law Judge Ordman's hearing (February 27, 1975) it would have known they would not testify. Respondent also contends that its list was nondiscrimi- natory because it contained the name of Gary Burgess, a supervisor. While Burgess is not on the list of stipulated supervisors within the meaning of Section 2(11) of the Act submitted at the hearing, the record shows that he was a line supervisor in 1974 with duties similar to those of stipu- lated supervisors, Margaret Way and Reba Gentry. I, ac- cordingly, find that as, of 1974 Burgess was a supervisor within the meaning of Section 2(11) of the Act. Even though I find that Burgess was a supervisor at that time, I nevertheless reject this contention. I so hold for the reasons that others named on the list were employees and the list was discriminatory, that is, it was very carefully drawn to 10 Warren credibly so testified isolate and identify employees which constituted the group from which witnesses against Respondent were to be drawn, that is, employees who supported the union in the case. This implication in the letter is clear from the letter's statement that individuals on the list had been appearing as "witnesses against Gould." The letter made no mention of witnesses for or supporters of the Respondent, itself. Moreover, several of the above-named spectators had been union adherents long prior to February 1975 hearing which, as will appear, Respondent well knew. These in- cluded Ruth Meyers and Betty Buttram, both of whom are alleged discriminatees in the present case. Another alleged discriminatee, Virginia Williams, whose name also ap- peared on the list but who did appear as a witness for the General Counsel in the February hearing had, in fact, been recalled by Respondent during the period in which she tes- tified, hence could not have been considered by Respon- dent as an employee drawing unemployment compensa- tion chargeable to Respondent's account. From the foregoing, I conclude that Respondent sent this letter to the Tennesse Department of Employment Se- curity, at least insofar as the named employee spectators and Williams are concerned, in order to harass these em- ployees for supporting the Union's charges against Re- spondent and that Respondent thereby interfered with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act. H. The Allegedly Unlawful Refusal To Recall Laid-off Employees 1. Leota Moss Leota Moss began her employment at the Cookeville plant on March 19, 1973, and was laid off on December 19, 1974. She worked in department 416, the duct heater as- sembly department, where she was assigned to the assem- bly line. She ran wire machines, assembled all types of duct heaters, and built sample heaters from blueprints, some of which were for customers and others were used as models by operators on the assembly line." She was sixth in se- niority in her department-the employees above her in se- niority being Billie Hawkins, Virginia Williams, Lois Rog- ers, Sue Gant, and Sandy Stover. In approximately May 1974 Moss signed a union card. She handed out union literature (which she also kept at her desk); she attended most of the union meetings and testi- fied at the February 1975 Board hearings before Adminis- trative Law Judge Ordman. Her adherence to the Union was, however, well known to the Respondent because she showed her union organizer's card to admitted Supervisor Margaret Way about a week after the Board-conducted election in September 1974 (at the same time as employees Virginia Williams and Billie Hawkins showed Way their 1 These findings are based on the credible testimony of Moss in this regard To the extent that Moss' testimony about building samples disagrees with that of Respondent's witness, supervisor Margaret Way, I do not credit the testimomy of Way. For Way admitted that she was not Moss' supervisor and could not observe Moss' work as closely as Way watched the work of her own supervisees Moss' direct line supervisor, Burgess, and Moss' de- partmental supervisor, McClain, did not testify GOULD, INC. 185 organizer's cards). Respondent's present plant manager, Ray Bittner, was the Respondent representative who was contacted by the Regional Office during the investigation of the Union's charges herein and provided the explanation to the Region- al Office why each of the alleged discriminatees were not recalled. Bittner also testified at the hearing. Supervisors who worked in the same departments as the alleged dis- criminatees also testified. According to Bittner, Moss was not recalled because she spent most of her time "crimping" wires (fastening termi- nals on to lead wires using a machine) whereas this job has not been eliminated as a full-time job and is instead done by the employee who performs the other assembly work on the duct heaters. The implication in Bittner's testimony is, of course, that Moss was insufficiently versatile to do other work in the department. The further implication in Bittner's testimony is that this is the only reason why Moss was not recalled because he conceded that Moss was a good employee, did -good work, and had no disciplinary problems. Moss credibly testified, and Respondent's witness, Su- pervisor Way, confirmed, that Moss spent about half of her time building or wiring standard duct heaters or assisting employee Sue Gant mounting components for the standard duct heater line. Way also confirmed Moss' testimony that Moss would build an entire heater by herself. This testimo- ny is not essentially disputed by Bittner who conceded that Moss could build some heaters and had worked on the assembly line. From the foregoing it is clear, contrary to the implica- tion in Bittner's testimony earlier referred to, that Moss is a versatile employee. Moreover it was further shown that three other employees-Jean Barlow, Linda Clouse, and Judy Cherry-all of whom are junior in seniority to Moss-have been recalled and perform the wiring of duct heaters 100 percent of the time, viz, were recalled without any apparent requirement that they do other work. Since the wiring of duct heaters was one of the jobs which Moss was performing at the time of the layoff-along with others-it follows that the matter of versatility had nothing to do with the decision not to recall Moss. Moreover, even at this function, it was not shown that Moss' speed at wir- ing duct heaters is less than that of any of these three named employees. Hence, based on objective consider- ations, since Moss is more versatile than these three em- ployees and is more senior to them, she should have been recalled before them. In reaching this conclusion I am not unmindful of Respondent's argument that an employer is not required by law to recall laid-off employees on the basis of seniority when an employer had no contractual obligation in this respect. However, as I have previously pointed out in this Decision, Bittner admitted that seniority was applied by Respondent in recalling laid-off employees in 1975 consis- tent with the seniority provisions of Respondent's person- nel handbook (at least where there,was a tie in the relative qualifications of two or more employees considered for re- call to the same job). Since I have found that Moss is at least the equal of the three instant employees from the standpoint of versatility-the only reason given why she was not recalled-and since she has considerable experi- ence in the same work they are now doing, the true expla- nation why she was not recalled ahead of them based on her seniority must lie elsewhere. In these circumstances and against the background of Respondent's animus towards the Union, I conclude-that Respondent did not recall Moss because of her union ac- tivities and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. 2. and 3. Betty Barlow and Linda Mayberry Inasmuch as Respondent's reasons for refusing to recall these two employees are in large measure the, same and since they worked together in the same area, I will combine for purposes of discussion hereinafter the issues with re- spect to the failure to recall each of them. Both were active and well known union adherents. Thus, Betty Barlow signed a union card; helped get cards signed; attended union meetings; handed out union literature in- side the plant building before worktime; testified in behalf of the General Counsel- in the February 1975 hearing be- fore Administrative Law Judge Ordman; showed her fore- man, Carlos Turner,12 her union organizer's card about a week after the election in September 1974, and served as a union observer in that election. Linda Mayberry signed a union card in December 1973 and solicited other employees to sign union cards. She at- tended most of the union meetings, about 15 in number, wore a union decal on her purse, and showed, her union organizer's card to supervisors Carlos Turner and Don Malone. Linda Mayberry also testified on behalf of the General Counsel in the February 1975 hearing before Ad- mimstrative Law Judge Ordman. Betty Barlow and Linda Mayberry were both good, ex- perienced, and versatile employees with high seniority in department 405-the department from which they were laid off. Neither had any oral or written reprimands, nor was either shown to have had any disciplinary problems,or to have required counseling for any performance problem. Both had been complimented on their work by,Supervisor Sommers and another supervisor by the name of Kirby. Sommers on one occasion told Linda Mayberry and Betty Barlow that they were very skilled. Betty Barlow began work for Respondent on December 4, 1972, in department 415 as ,a welder, where she also pulled leads, strung, and tied off. Thereafter she bid into department 406 where she ran a brake press, a welder, and a shearing machine, and also did work on layout and on punch presses-five different functions. She was first .in seniority in her department (406) at the time she was laid off on December 19, 1974. Mayberry began work on November 7, 1973, in the crank case department where she formed heaters, "high pot" tested, performed packing and molding work, ran a 12 Inasmuch as Turner occupied the position of department foreman and inasmuch as Dick Sommers, stipulated to be a supervisor within the mean- ing of the Act, occupied the same position in another department, I find that Turner like Sommers is a supervisor within the meaning of Sec: 2(11) of the Act. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD welder and a punch press, and cut wire. Thereafter, she transferred to department 406 where she did layout and ran shearing machines, punch presses, and the brake press. She also performed set up on the brake press and shearing machines. She'likewise trained other employees. Thus, in- cluding training she performed five different functions. She was fifth in seniority in 406 at the time of the layoff. _ Betty Barlow and Linda Mayberry worked together when running the brake press machine. Since they also per- formed setup work on this machine they received 10-cent- per-hour extra pay for this duty. The variety of work experience of Barlow and Mayberry was essentially corroborated by Respondent's witness, Dick Sommers, their supervisor. Sommers further testified that they worked on the brake press 80-90 percent of the time, whereas Linda Mayberry testified that she worked on this machine only half to five-eighths of her time . -While Betty Barlow could not recall how much of her time was spent on" other jobs besides the brake press, I conclude, since-Mayberry would have a better idea than her supervi- sor as to how much time she{ spent on the brake press, that her testimony is more -reliable on this -point than that -of Sommers. I therefore conclude that she'did indeed spend from half to five-eighths of her time- on that machine prior to the December layoff, and I further conclude, since she and Betty Barlow worked together on that machine, that Barlow's time spent at such work was about the same as that of Mayberry.t3 Bittner claimed at the hearing that Barlow was not re- called because others who were recalled were more versa- tile than she- He'then mentioned that some four recalled employees could each- perform four or five of the department's functions. Bittner and Sommers both testified that the brake press is now run only about 20 percent to 30 percent of the time. Bittner also asserted at the hearing that he heard from Respondent's nurse that Barlow has a back problem which causes her to have trouble lifting. Bittner asserted at the hearing that Linda Mayberry was not recalled for essentially the same reasons as Betty Bar- low, i.e., -she could not do other work, other recalled em- ployees were 'more versatile than she, and that the brake press is now operating only part of the time. As to Bittner's contention that Betty Barlow has a back problem and cannot do lifting,-these matters were not men- tioned by Bittner when he provided the Board investigator with Respondent's'reasons for refusing to recall Betty Bar- low. In any event, Barlow's testimony, which I credit, was that she has' had no back trouble for 2 years and was never unable to perform work for this reason . She did suffer a pinched nerve in her neck due to an injury to her cervical rib suffered at'work during the early part of 1974 and was off for 2 months at that time but she was dismissed by the doctor in June 1974. Thereafter she did lifting when neces- sary but also obtained assistance at times from male em- ployees-which was not an uncommon occurrence at the plant. 14 13 I do not credit the testimony of Plant Manager Bittner that Barlow only worked the brake press because'this testimony is at odds with the testimony of Sommers, the supervisor on the scene. 14 Sommers admitted that Barlow did lifting in the second half of 1974 Bittner's claim that Betty Barlow and Linda Mayberry could not perform other work is'not borne out by the testi- mony of either Barlow -or Mayberry or Sommers. Other employees described by Bittner as "more versatile" than Mayberry or Barlow could only perform about four or five assignments altogether=the same, as I have found, that Barlow and Mayberry could perform.--Still other recalled employees have performed only one or primarily one job both before and since the December 1974 layoff. While Sommers - testified- that Barlow and Mayberry were not good at operating the shear-when he, Sommers, first came into the department he admitted he never reprimanded them for their performance and he did not deny that he had complimented them. Sommers further admitted that both operated the shearing machines up until the time of the December 1974 layoff. , While it is true that the brake press-now operates only 20-30 percent of the time, other functions which Barlow and Mayberry can perform, such as operating the shear machine and punch, press, doing, layout work, welding (which Linda Mayberry did in the crank case department and Barlow did in department 406) are still being carried out. There are at least 12 employees now working in depart- ment 406, all of whom are junior in seniority to Barlow and 8 of whom-at least-are junior to Mayberry. While it has been shown that Betty Barlow and Linda Mayberry are as versatile as,- or more versatile than, these employees the seniority of Barlow and Mayberry was not used as a "tie breaker" to cause their recall, despite Bittner's testimony that seniority was relied upon where ties occurred. As with Moss, the reason why Betty Barlow and Linda Mayberry were not recalled lies elsewhere than in the explanation offered by Respondent. Against the background of Respondents animus towards the Union and its desire to do away with employee "hostili- ty and friction" I conclude that Betty Barlow and Linda Mayberry were not recalled because of their union activi- ties, and that by refusing to recall each of them, Respon- dent violated Section 8(a)(1) and (3) of the Act.ls 15 In dealing with the cases of Betty Barlow and Linda Mayberry I have in several instances credited their testimony particularly where , as noted, it involved matters where their knowledge would be greater than that of Respondent's witnesses, Bittner and Sommers Both Betty Barlow and Lin- da Mayberry impressed me as sincere witnesses who testified in a straight- forward manner I reject the attack on Barlow's credibility based on statements made by her to the Tennessee Department of Employment Security that she received $20 only as "expenses" (and not as a witness fee) from the Board when she testified in the prior proceeding in February 1975. At the time she spoke to Tennessee State officials about this matter, she had received no money, hence had no written explanation as to what she would be paid for. More- over, her subpena did not clearly advise her that she would receive witnesses fees qua fees for testifying Thus the subpena states: Notice to Witness-Witness fees for attendance , subsistence, and mileage under this subpoena are payable by the party at whose request the witness is subpoenaed. This can be read in such a manner that "attendance, subsistence, and mileage" are the compound objects of the preposition "of " While the sentence may also be parsed to the result that "witness fees . . subsis- tence and mileage" are the compound subjects of the verb "are" (paya- ble), it is not surprising in my judgment that a subpoena recipient might give the sentence the alternative construction, supra GOULD, INC. 187 4. Virginia Williams Williams was hired on January 3, 1973. Since that time she has assembled and wired duct heaters, has worked on the strip line, welded, assisted the welder, strung and tied, pulled leads, put on lids and dust covers, cleaned heaters, swept the floor, and built some of the larger special heaters. Williams was laid off on December 20, 1974, but unlike the other alleged discriminatees herein, she has been recalled on occasions since that time. Thus she worked from Febru- ary 14 to March 14, 1975, again from April 7 to May 6, 1975, and was working at the time of the hearing herein, having been recalled again on June 2, 1975. Williams is first in seniority in her department (No. 416) at the present time and was second behind alleged discri- mmatee Billie Hawkins at the time of the December 1974 layoff. She has-been complimented for her work by various supervisors and officers of Respondent such as . Burgess, McClain (department supervisory for department 416), Leggitt, Malone, and Wilhoit. She signed a union card, attended union meetings, and showed her union organizing card to Supervisor Margaret Way at the same time the other alleged discriminatees, Bil- lie Hawkins and Leota Moss, showed their organizing cards to Way in September 1974. Williams also testified in behalf of the General Counsel in the February 1975 hear- ings before Administrative Law Judge Ordman. In its brief Respondent contends that Williams has been recalled only sporadically when there has been work in the standard duct heater line. Respondent contends, however, that Williams has not been recalled to work at other func- tions because she "consistently complained" when she had been assigned other work. In support of its contention that Williams was only re- called when there was work for the standard line, Respon- dent cites Williams' own testimony wherein Respondent claims she testified that she was recalled and laid off with the same group. Her ultimate testimony in this regard, however, was that different ones were laid off when she was and that there was a possiblity that she "would get the names mixed up." More importantly, however, her testimo- ny is undisputed that, while she was in layoff status, other employees were performing the same type of work as she performed. As to Williams' constant complaining the record indi- cates some two complaints having largely to do with her preference to work under the supervision of Burgess rather than that of Way. I, accordingly, conclude that the failure of Respondent to recall Williams on a continuing basis had nothing to do with lack of work she could perform proficiently nor with her complaining. I conclude rather, against the background of Respondent's animus towards the Union and its particu- lar animus towards the support of Williams for the Union-as shown by its aforementioned effort to report her to the Tennessee Department of Employment Security at a time when she was actually working for Respondent- that Respondent has refused to recall Williams to work continuously since January 6, 1975, because of her Union activities and that Respondent has thereby, violated Section 8(a)(1) and (3) of the Act. 5. Billy Mayberry Billy Mayberry was hired on or about October 9, 1973, in department 406 and was laid off on December 19, 1974. At the beginning of his employment- he worked about 3 months as a welder, then for about-3 months as a brake press operator and thereafter until his layoff he did layout at which he was engaged 90 percent of his time. He also did work on the shearing machine and trained other employees to do layout work. Mayberry signed a union authorization` card, attended union meetings, passed out union literature from his table in his department, and discussed the upcoming election in September 1974 with his supervisor, Sommers, at- which time he told Sommers that employees would vote for the Union because of the way Respondent had been treating the employees. According to Bittner, Mayberry was not recalled be- cause he was slow, repeatedly made mistakes, and caused rework. This was confirmed by Mayberry's supervisor who testified that Mayberry's errors in layoff caused a consider- able amount of scrap most of which could not be -reused. This scrap problem also resulted in downtime to operators and also to supervisors or stockers when the latter had to replace the scrapped parts. Mayberry admitted causing scrap. While he contended that some of this was due to errors in engineering, he further admitted that he had diffi- culty making new layouts, thus suggesting that he himself suffered from some lack of expertise. He also admitted he would permit as many as 300 to 400 improperly designed pieces to be run on a machine before calling it to anyone's attention. Finally, he conceded that there were other jobs in the department which he could not perform such as op- erating the n.c. press, performing rack assembly, fabricat- ing flexatherm, or setting up the power punch press. The layout work in this department is- now being- per- formed by Ronnie Malone and it takes 30 to 50 percent of Malone's time. Malone does all of the set up work now and there is no-longer a scrap problem. Malone also does weld- ing, sets up and operates the n.c. press, fabricates flexat- herm, and sets up the punch press-most of which May- berry cannot do. From the foregoing it is clear that Respondent recalled Malone as a better and more versatile employee than May- berry and that Malone's performance since recall has ex- ceeded that of Mayberry prior to the layoff. Since it is well settled that union adherence does not insulate the adherent from the process of employee selection based on economic necessity I conclude that Respondent's failure to recall Mayberry was for good cause and not for discriminatory reasons and that Respondent did not thereby violate Sec- tion 8(a)(1) and (3) of the Act. I shall, accordingly, recom- mend dismissal of this allegation of the complaint. 6. Betty Buttram Betty Buttram began working for Respondent on April 4, 1973. She is now in layoff status. She worked on line two in department 416, the duct heater department. Her duties involved wiring of the heater and performing the complete assembly of its components including the stringing of coils, 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrapping of coils, putting on doors and door panels, and installing the frame and box.16 As with other employees in line two she received 10 cents more per hour because she assembled special heaters. She was ninth in seniority in her department prior to the, layoff. Way named some 18 people who have been recalled to work in department 416-also, as noted, alleged discrimmatees Moss and Hawkins, who are senior to Buttram, have not been recalled. Buttram signed a union authorization card, attended union meetings, carried a union key chain with her locker key on it, was offered an antiunion badge by her supervisor which she took off after an hour, and attended the hearing before Administrative Law Judge Ordman as a spectator on February 26, 1975, which was, however, the only day she so attended. The fact that she was reported by Respon- dent-in its aforementioned letter dated February 21, 1975 (5 days before her attendance at the hearing) to the Ten- nessee Department of Employment Security shows beyond cavil that Respondent was already aware that she support- ed the Union. As I have already held with respect to her and other spectators at the hearing who were identified in Respondent's letter, this fact also shows Respondent's har- assment of her because she gave the Union such support. Bittner testified that she was not recalled because she lacked the versatility of other employees, was below aver- age in productivity and was warned about leaving her work area early on one occasion to go to the timeclock. Way likewise testified that Buttram's only job was to wire spe- cial duct heaters, that she lacked versatility and was slower than the other girls. As to the matter of leaving early, some 15 to 20 other employees were lined up at the timeclock on the same oc- casion as that on which Buttram was warned. One of them, Polly Cowan, has been recalled to work in department 416. As to the testimony of Bittner and Way that Buttram could only wire special duct heaters, I specifically discredit it. It is not only contrary to Buttram's testimony but is also contrary to the testimony of Bittner that employees on the special line in this department did the whole heater assem- bly (except on'those occasions when a rush order comes in at which time some people do one part of the operation and others do the rest). As to the matter of Buttram's versatility, Bittner stated that, but for her claimed lack of the degree of this quality possessed by employees now working in this department, she would probably have been recalled. Consistent with my rejection, supra, of the other claims of Bittner and Way that Buttram could only wire special heaters, I likewise reject this contention. Buttram performed all aspects of heater assembly as noted. Further, she assisted in the as- sembly of the largest heater ever produced by Respon- dent-a photograph of which appeared in a local newspa- per. Buttram and others who worked on the heater are also in this photograph. Buttram installed the frame compo- nents and box and did the wiring on this particular heater. Finally some four employees recalled in this department each did only one job both before and after the layoff. As to the testimony of Way that Buttram was not as fast as "other girls," Way did not specify who the "other girls" were. Hence there is no basis to conclude that she was slower than all other girls recalled in her department. Fur- ther, Buttram was never counseled for slow productivity, nor is there any indication that she was reprimanded about this matter. I conclude, therefore, that the reason why Buttram was not recalled was because of her union activities and her support for the Union and that by refusing to recall But- tram for these reasons Respondent violated Section 8(a)(1) and (3) of the Act. 7. Cecil Barlow Elmer Cecil Barlow is the husband of Betty Barlow. Ce- cil Barlow began his employment with Respondent on Oc- tober 7, 1973, in the duct heater department (416). He was laid off on December 19, 1974. He began in the assembly and wiring of heaters. After 3 months he became a materi- als handler until about 2 months before his layoff when he was replaced by Anna Lisa Hammock and Shirley Rogers in that work and he returned to assembling heaters. His work when he returned to the heater assembly included putting coils into a heater, wiring it, and putting doors on it-as he said, the complete job "start to finish." Cecil Barlow signed a union card, attended all the union meetings, and showed his union organizer's card to four different supervisors, including Ken Klingler and Margaret Way. He testified in the February hearing before Adminis- trative Law Judge Ordman. His testimony was that he showed Klinger his union organizer's card about 3 weeks before the Board-conducted election in September 1974. According to Bittner, Barlow was not recalled because of low efficiency, lack of versatility, low seniority, and disci- plinary problems. The record indicates that Barlow was in fact disciplined on one occasion for insubordination to Supervisor Way. He was also counseled by Supervisor Tilton for "goofing off." He was written up by Tilton for this offense in Janu- ary 1974.17 While he did in fact do complete assembly of heaters as well as materials handling work, he made no claims in respect to his speed at this work. He further ad- mitted goofing off at times which I conclude was more than the one incident for which he was written up-which is consistent with the testimony of Way on the subject. Finally, he admitted that he was the least senior "man" in department 416. And his later use of the word "man" to admit further that he was the least senior employee on line two indicates that he meant least senior "person" by the expression "man" wherever he used it in the context of discussing his seniority. His prior job of materials handler to the extent that it is still being carried on has been combined with the function of coordinator. And the combined job is now being per- formed by Anna Lisa Hammock. I find no indication in the record that Shirley Rogers has been recalled. As noted, Rogers, along with Hammock, replaced Barlow at materi- als handling prior to the layoff in December 1974. 17 The writeup incorrectly shows the date as January 1973 However, as 16 These findings are based on the credible testimony of Buttram in this found, Barlow was only employed from October 1973 to December 1974, regard hence the writeup must have been given in January 1974. GOULD, INC. 189 Union membership and activities do not, of course, insu- late a union adherent from the hazards of selection for recall based on past performance nor does union adher- ence create a right to recall prior to employees more senior. From the foregoing I conclude that Respondent has es- tablished that Barlow was not recalled for the reasons of his low seniority, his work output and disciplinary prob- lems-at least insofar as his "goofing off" was concerned. I further conclude that by failing to recall Cecil Barlow, Re- spondent has not violated- Section 8(a)(1) and (3) of the Act and I shall recommend that this allegation of the complaint be dismissed. 8. Barbara Allen Barbara Allen began her employment with Respondent on May 13, 1974, as an assembler in department 415. She was one of the last employees hired and one of the lowest in seniority in her department. She was laid off on Decem- ber 7, 1974. In department 415 Allen performed the jobs of stringing and tying off. She also installed thermostats, made boxes, packed, did repair work, hung racks, and stamped. She worked in lines one and two and the low volume line, which have been previously described in this Decision. She signed a union card after the election, passed out union literature, attended union meetings, and wore a union sticker on her pocketbook. On the day of the elec- tion in September 1974 (or the day before) she refused to wear a "Vote No" pin offered her by Personnel Manager Wilhoit. Bittner testified that Allen was not recalled because of her low efficiency, lack of mutual dexterity, her trouble keeping up with the line, and that there were more versatile and efficient employees to recall before Allen. Allen received a verbal warning in October 1974 for low efficiency and a written warning for low efficiency in No- vember 1974. She also admitted having racks pile up on her when she was working on the production line. The General Counsel presents a lengthy argument sug- gesting that various discriminatees including Allen were placed, purposely and discriminatorily, in low volume work-where their production is measured-that her repri- mands for low production came that time and that, in any event, other employees have been recalled who had been given warnings for low efficiency. In these circumstances, the General Counsel argues, Respondent's failure to recall Allen has to have been because of her union activities. I disagree. Allen's inefficiency-racks piling up-began before she was put on the low volume line. And she was put on the low volume line on or about September 1, 1974, almost 2 weeks before the election and some 10 days before Respon- dent would have any basis to believe she was a union sup- porter (by her refusal of the "Vote No" button) heretofore described'and, in any event, the record does not show that only the alleged discriminatees from this department were relegated to the low volume line. Her problems with low efficiency continued in October and November. This means that she had low production problems in about half of the 6 plus months that she worked. Her efficiency was measured at an average of 65 percent during 7 weeks in September, October and Novem- ber, -1974 18 which sharply contrasts with the average effi- ciency rating of the recalled employees which is 90-95 per- cent. As with Cecil Barlow, Allen's union affiliation cannot serve to protect her from rejection for recall based on a past history of inadequate performance.- I conclude that Allen was not recalled because of her low production and that by failing to recall her for this reason Respondent did not thereby violate Section 8(a)(1) and (3) of the Act. Hence, I shall recommend that this allegation-of the com- plaint be dismissed. 9. Doris Cowan Doris Cowan was employed by Respondent on Decem- ber 10, 1973, and was laid off on December 20, 1974. She worked in department 415, performing such functions as tying off, stringing, hanging racks, stocking, and installing thermostats. -Her principal job, however, was stringing coils at which she was engaged most of the time. Cowan signed a union card 2 months before the Septem- ber 1974 election and attended union meetings. She, also attended the February 1975 hearing before Administrative Law Judge Ordman. Bittner testified that Cowan was not recalled because of low efficiency (low productivity). Cowan's supervisor, Reba Gentry, confirmed that Cowan did not keep up with production when Cowan was assigned to assembly line work. This was noticed because units would stack up at her work station, on her table and on the floor beside her. She told Gentry on one occasion that she did not care how high they stacked up and that she would get to them when she could.19 For her part Cowan admitted that units sometimes piled up on her. The record also shows that she was assigned to off-line work periodically from June to December 1974 consistent with Respondent's practice for such assignments where an employee was having efficiency problems. Since off-line work was measured, unlike the production line, these efficiency problems could be isolated, and an em- ployee working would have the opportunity to develop greater efficiency without the pressure of keeping up with the conveyor belt pace of the production line. On the basis of the foregoing it is clear, as Respondent argues, that Cowan did indeed have efficiency problems. It further appears that these problems extended over a signif- icant portion of her employment. In all the circumstances I am satisfied that this is the true reason why she was not recalled. For there is no probative showing that Respondent had any valid basis for knowing 18 This is established by G C Exh. 12 which shows that she was on the efficiency report beginning on September I The efficiency report shows that the productivity of employees in the low volume line where work was measured 19 The findings as to this remark are based on the credible testimony of Gentry in this regard. Cowan waffled in her testimony on the point, first denying she made the remark but later saying she could not remember making it 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or assuming that Cowan was a union supporter 20 until she was a spectator at the February 1975 hearing where she sat with other union supporters behind the General Counsel's table. Even if I were to assume-which I do not-that Cowan was noticed by Respondent at that time 2' I am contrained to observe this event occurred about _a month and a half after the January 1975 recalls began and at a time after .a recall peak in the employee complement 22 Thus, insofar as this record shows, Respondent had al- ready decided not to recall her and such decision was made at a time when Respondent did not know she was a sup- porter of the_Umon. I, accordingly, conclude that by failing to recall Cowan Respondent did not violate Section 8(a)(1) and (3) of the Act and I shall recommend that this allegation of the com- plaint be dismissed. 10. Tim La Fever La Fever began his employment with Respondent in De- cember 1973 and was laid off on -December 20, 1974. He worked in department 415 where he spent half of his time welding and most of the remainder as a materials handler. He also spent 2-3 percent of his time stringing and 2-3 percent of his time tying off when there was no work for him to do in his principal functions. His seniority was somewhere about the middle in his department. La Fever passed out union cards and had them signed and distributed union literature. He wore a "Vote Yes" button on the day of the Board-conducted election.-About a month before the election he was queried about his feel- ings in regard to the Union by his supervisor, Vergie Null (heretofore found to be a supervisor within the meaning of Sec. 2(11) of the Act). According to Bittner, La Fever was not recalled because he lacked versatility and had low efficiency, a high record of absenteeism and tardiness, and on a number of occa- sions he left work early. Bittner added that La Fever re- peatedly left his work area without authorization. In fur- ther explanation of the claim that La Fever was not versatile, Bittner testified that La Fever had no training in other areas besides welding and that there is little welding which is now required under Respondent's reduced opera- tions. In this same regard Bittner testified that La Fever 20 General Counsel asserts , as a basis to establish Respondent 's knowl- edge of Cowan's union activities, that Cowan closely associated with other union adherents and the evidence advanced by the General Counsel to support the latter contention is the fact that Cowan ate lunch most days in her work area with such union adherents I reject this contention . Some of the employees with whom Cowan ate lunch were shown to be union advocates, but as to others there is no such showing In describing her luncheon associates Cowan states simply that the group she lunched with were "mainly the tie off" personnel and that this group usually ate lunch together 21 It is not certain that she was noticed. For her name was not listed in the group of union supporters, previously discussed, whose names were fur- nished by Respondent to the Tennessee Department of Employment Securi- ty on February 21, 1975 22 The existence of this peak on or about February 16, 1975, is established by the facts that discriminatee Virginia Williams (who, as previously found, has been recalled from time to time) was recalled along with some four other employees on or about that date (whereas recalls initially took place on or about January 6, 1975) and the further fact that a number of these five individuals including Williams were subsequently again laid off. had told a supervisor that La Fever could not do lifting work because of a back problem. La Fever admitted that he injured his back 2 or 3 months after he began employment with Respondent, that he took off work several times because of it, and that his supervisor got help for him to do lifting work up until 2 or 3 months before he was laid off. He also admitted that his back continued to hurt until he was laid off and-that he still goes to the doctor once per month for checkups on his back. He also admitted that he has no training in tying off even though he has occasionally done this work. La Fever further conceded that he was given a warning by his foreman, James Luper, for excessive absences and that his line supervisor, Holzhausen,,spoke to him two or three times about leaving the job. He also testified that Ken Klingler spoke to him on one occasion about the low level of La Fever's efficiency rating during at least 3 weeks of his employment. The efficiency ratings for these weeks were, respectively, 16, 40 and 36 percent. From the foregoing it is,clear that La Fever's principal functions were welding and materials handling. Insofar as the limited welding now going on is concerned it is carried out by Jackie Farley who, according to La Fever, is a faster welder than La Fever, and Edmondson23 Edmondson can also perform stringing, tying off, staking, lead pulling (for which La Fever testified, he has not been trained), and materials handling. Farley can also do materials handling and packing. While La Fever did material handling work up until his layoff his back continued to hurt him and he would thus not be a prime candidate for recall in that ca- pacity. It was not shown whether Edmondson and Farley are senior to La Fever whose seniority, as noted, was about in the middle of those employed in his department before the layoff. - In all the circumstances I am satisfied that welding, un- der Respondent's reduced operations, is now being carried out only in a limited manner and is better performed, at least by Farley, than it was by La Fever. La Fever's recall to materials handling work, at which he spent most of the remainder of his time, would not have been well advised- certainly not prior to healthy employees-because of his continuing back problem of which Respondent was aware. Finally, serious questions are also raised as to his efficiency and his staying on the job. I therefore conclude that Respondent's reason for refus- ing to recall him was not because of his union activities and therefore said refusal did not violate Section 8(a)(1) and (3) of the Act. I shall, accordingly, recommend dis- missal of this allegation of the complaint. 11. Mary Hunt Mary Hunt began her employment with Respondent on November 26, 1973, in department 415 and was laid off on December 20, 1974. Her initial assignment was on the strip heater line. After about 3 or 4 months she became a check- 23 Respondent would have me take official notice from the transcript in Administrative Law Judge Ordman's hearing that Edmondson was a known union adherent However , Bittner admitted that he was not aware at the time Edmondson was recalled of her feelings in regard to the Union GOULD, INC. 191 er-packer or inspector which became her principal employ- ment thereafter. However, at various times,- she also per- formed such functions as hanging racks, stringing racks, tying off, installing thermostats, ink stamping, spot weld- ing, ceramic-installation, and rack bending. She did quite a bit of stringing and tying off during the last 4 months of her employment in addition to her checker-packer duties. Hunt never signed a union card. However, she attended union meetings, carried a union organizer's card and asso- ciated with other union adherents. She was also a spectator at the hearing before Administrative Law Judge Ordman in February 1975. Bittner testified that Hunt was not recalled because of high absenteeism and tardiness (including 21 late arrivals in 1974) and also because she was reprimanded for dis- tracting the work of others and for disciplinary problems. Hunt admitted receiving a reprimand for distracting the work of another employee 2 weeks before the election in September 1974, and also received a reprimand from her supervisor, Holzhausen, about 2 weeks before her layoff on December 20, 1974. She also admitted leaving work early on- a number of occasions and she acknowledged that she received a warning in May 1974 for her failure to wear safety glasses. The record also shows, under the general rubric of disciplinary problems, that on one occasion in the summer of 1974 Hunt let her racks pile up while she took an unauthorized break. - Some five - checker-packers (inspectors) have been re- called. These include Pat Cantrell Klingler, Pat Goodman, Nellie Elmore, Evelyn Allison, and Mildred Horner. While Goodman, and Klingler were shown, like Hunt, to have received reprimands both have more seniority than Hunt 24 Allison is also more senior than Hunt according to Hunt. It is uncertain what is the seniority of Elmore and Homer. 5 There is no indication that Allison, Elmore, and Horner received any warnings or reprimands nor was any other question raised in respect to their performances before or after the layoff. In all circumstances I do not conclude that the General Counsel has established by a preponderance of the proba- tive credible evidence that Hunt was discharged because of her union activities. To- begin with there is no direct evi- dence that-Respondent had any awareness of her support for the Union until Hunt was a spectator at the hearing before Administrative Law Judge Ordman in February 1975 (and was reported by Respondent as a potential Gen- eral Counsel witness in Respondent's letter to the Tennes- see Department of Employment Security), But, as I just pointed out in respect to the discussion of Cowan (supra) this occurred after-the peak of the recall had already passed. The only direct evidence bearing on the subject of 24 While Hunt at first testified that she thought Goodman, who started work the same day as Hunt, became a checker-packer a week later, Hunt later testified that she was unsure of this While uncertain of her seniority, generally, Hunt admitted that Pat Cantrell Klingler was more senior than she and that Goodman was likewise more senior based on Goodman's al- phabetical listing prior to Hunt on the day Hunt and Goodman both began work. 25 Gentry testified on direct that she believed that both were senior to Hunt but admitted on cross that she, Gentry, did not really know the senior- ity among the girls Respondent's awareness was a report by Hunt to Respondent's officials that she and her husband had re- ceived obscene phone calls which she thought constituted a threat against her by the Union. The implication of this evidence is that Respondent had every reason to believe that Hunt was opposed to the Union. While a respondent's knowledge of the union activities of its employees may also be established on the basis of the circumstances, I find no probative circumstantial evidence on which such a finding, in my judgment, can properly be made here?6 Added to this, of course, is Respondent's proof of its assertions that she was absent, tardy, left work early, had received reprimands, and had caused disciplinary prob- lems. I accordingly, conclude that Respondent's failure to re- call Hunt was not because of her union activities and I find that such failure did not violate Section 8(a)(1) and (3) of the Act. I shall, therefore, recommend that this allegation of the complaint be dismissed. 12. Harold Underwood Harold Underwood began working for Respondent on February 20, 1974, and was laid off on December 19, 1974. His initial employment was in running a shear machine cutting sheet metal. In April 1974 he was transferred to the wire department (#405) where he set up and ran wire cut- tmg and wire bending machines for fabrication of strip racks for strip heaters. His supervisor in department 405 was Carlos Turner. His seniority was number one in de- partment 405. On or about December 1 he and at least one other employee were transferred to the supervision of Dick Sommers who had until that time been the department 406 supervisor in charge of fabrication of duct heaters. From that time on Sommers was in charge of the wire cutting and bending operations for both strip and duct rack fabri- cations?" After his transfer, Underwood testified, his se- niority was second from the bottom in department 406. Underwood signed a union card shortly after his em- ployment with Respondent and attended practically all the meetings held at the labor temple. He also testified on be- half of the General Counsel in the February 1975 hearing before Administrative Law Judge Ordman. He refused to wear on his shirt a pin saying "Gould is all right with me" which was offered to him by his supervisor, Carlos Turner. Bittner testified that Underwood was not recalled be- cause of his seniority and that there are three people in the z6 Thus, while Hunt testified that she associated "with the Union girls" she did not name them nor did she explain whether this occurred at work where it would be expected to have been noticed or away from work where all her union activities shown here occurred. Although Hunt also testified that she accepted a "Vote No" sticker from Bittner, which she thought was later thrown away, there is no evidence that Bruner saw her throw it away, whether Hunt threw it away after first wearing it, whether Bittner or any other supervisor saw her not wearing it after it was thrown away, etc. Had she on the other hand refused to accept the sticker when Bittner offered it, the implication-of Respondent's knowledge of her union preference would be clear. 27 Due to the confusion in testimony of Respondent's witnesses, Supervi- sors Turner and Sommers, and the testimony of Bittner, it is not clear whether the consolidated operation is now under department 406, whether it is newly created department 408 or a combination of departments 407 and 408 The consolidated operation is, however, supervised by Sommers. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department who can run the machines previously operated by Underwood. With Respondent's reduced operations, the wire cutting and bending is now performed for both strip and duct rack fabrication essentially by one individual, Ralph Cumbie.28 Cumbie has greater plantwide seniority than Underwood and was already working in department 406 when the oper- ations were consolidated. Cumbie has worked on the wire machines, according to the undisputed testimony of Turn- er, then became a materials handler, then returned to the operation of the wire machines some months before the layoff. While Underwood testified that he, Underwood, trained Cumbie to operate the machines at the time Cum- bie left his job as materials handler to return to wire cutting duties, I conclude in the light of Turner's foregoing testi- mony that such "training" by Underwood was only- in the nature of a refresher for Cumbie. Cumbie was clearly com- petent in his work for Underwood testified that both Un- derwood and Cumbie had been assigned to train yet other employees in the operation of the wire machines prior to the layoff. Cumbie also told the supervisor of the wire sec- tion, Sommers, prior to the December layoff, that he, Cum- bie, believed in the UAW. Finally, the testimony of Turner is undisputed that Underwood told Turner that he, Under- wood, desired to be laid off. In all the circumstances, I do not conclude that Respon- dent refused to recall Underwood because of Underwood's union activities or, stated another way, I do not find that Respondent recalled Cumbie over Underwood because of Underwood's union activities. I further conclude that Respondent's failure to recall Underwood did not violate Section 8(a)(1) and (3) of the Act and shall recommend that this allegation of the complaint be dismissed. 13. Reba Jones Reba Jones began her employment with Respondent on February 4, 1974, and was laid off on December 20, 1974. She worked in department 415 where she performed such jobs as hanging racks, stringing, tying off, installing ther- mostats, checking, packing, and bending racks. Her senior- ity was about 35th of some 70 employees in her department prior to the layoff. Jones signed a union card, had a union sticker on her toolbag, and attended union meetings. Jones commented on one occasion at a gathering of personnel in her depart- ment which included her supervisor, Reba Gentry, that Jones' husband worked for a company by the name of McCords and that her husband liked the union at that company. Jones attended the Board hearing before Ad- ministrative Law Judge Ordman in February 1975 and was thereafter reported by Respondent to the Tennessee De- partment of Employment Security. Bittner testified that Jones was not recalled because of low efficiency and for being a troublesome employee who constantly complained about her job. He also stated that she did not have manual dexterity in that she could string only and was not "versatile on other jobs." 28 According to the credible testimony of Sommers in this regard Bittner's testimony was inaccurate in respect to Jones' principal assignment which was not stringing, as he said, but was rather tying off according to Jones' supervisor, Gentry, who said that Jones strung only occasionally.29 , Gentry however, confirmed most of the other reasons advanced by Bittner. Thus Jones did have only one princi- pal assignment (tying off rather than stringing, as noted). Further, Jones could not keep up with production line either in stringing or in tying off and racks frequently piled up beside her. As to Jones' manual dexterity and trouble- someness, Jones on several occasions installed fuses upside down, caused ceramic parts to crack, installed lock washers loosely, etc. These failings necessitated considerable re- pairs on racks she had assembled. On one occasion when Gentry took Jones to task for a poorly assembled rack Jones denied that it was hers even though Jones' initials were on it30 Jones received a verbal warning for her low efficiency in September 1974, and in October 1974 she re- ceived two written disciplinary warnings for problems un- covered in her work, such as parts broken, fuses or washers loose, parts broken or in the wrong position, etc. Because of personal invective directed at Ken Klingler at the time of the second of these warnings, Jones was given an addi- tional written warning for insubordination. While it was further shown that Respondent had prob- lems in efficiency and quality in department 415 during the fall of 1974, that these problems involved other employees besides Jones, and that some (unnamed) employees who had received reprimands prior to the layoff have been re- called, still other employees with such problems and repri- mands have not been recalled. There is no indication that the only employees with reprimands who were not recalled are union adherents. No named employee with less senior- ity but with the same or a worse record than Jones in re- spect to the particulars discussed above was shown to have been recalled. Some such recalled employees junior in se- niority to Jones were named by her and are Roberts, Li- brary, Haney, Nelson, and Diane Smith. Smith and Rob- erts, according to the credible testimony of Gentry in the regard, were more efficient than Jones with no quality problems. While there is no showing as to the individual performances of Library, Haney, and Nelson, the efficien- cy of the department in the aggregate has improved since the recall with significantly fewer quality problems. Jones' union affilitation provides, of course, no basis to require her recall ahead of more competent employees. In view of Respondent's establishment of its defense that Jones' performance prior to the layoff was marked by low efficiency and poor quality, I conclude that she was not recalled for these reasons and that Respondent's failure to recall her did not violate Section 8(a)(1) and (3) of the Act. I shall recommend that this allegation of the complaint be dismissed. 29 Since Gentry was the supervisor on the scene, I credit her over Bittner in this regard 30 These findings are based on the credible and generally straightforward testimony of Gentry in this regard as supported in substantial part by rec- ords of warnings, to be discussed, which were put in evidence. To the extent that the testimony of Jones disagrees I do not credit it I found Jones, particularly on cross-examination, to be argumentative , hence evasive, as the record substantially shows GOULD, INC 193 14. Ada Ruth Pearson Pearson began work for Respondent on November 26, 1973, in department 415 and was laid off on December 20, 1974. Pearson inspected racks to be hung on the line, strung coil, tied off and straightened racks, and installed thermo- stats. She also worked in the coiling operation stretching coil and pulling leads.31 Pearson signed a union card about 4 months prior to the September 1974 election and attended all the union meet- ings She also made known her preference for the Union at the plant by talking about the Union on shopbreaks and at lunchtime and she associated with other union adherents such as Reba Jones, Emmaline Simpson, and Mary Myers On one occasion Pearson refused to wear an antiunion pin proffered her by Pat Cantrell.32 Bittner testified that Pearson was not recalled because she was not versatile and could only string. I have already specifically discredited the testimony that she could only string because it is at odds with the testimony of Pearson who would be in a better position to know what Pearson did. No line supervisor testified in respect to Pearson's work on the line. Bittner's statement that Pearson was not versatile is at variance not only with the testimony of Pear- son but with Bittner's own testimony that Pearson was as- signed to off-line production for a period of 3 weeks at one time during her employment. As has been pointed out else- where in this decision, an employee on off-line work in department 415 performed the entire assembly of the heat- er not just its stringing. And Bittner admitted that Pearson's productivity in off-line work was not bad, which I conclude, means that her work in all assembly operations was not bad.33 It follows from the foregoing that Respondent's defense has failed. Accordingly, in the light of Respondent's animus to- wards the Union, heretofore described, I conclude that its 3' To the extent that the testimony of Bittner (that Pearson could only string and lacked versatility) disagrees, Bntner's testimony is discredited Bittner was not a line supervisor and could not be expected to know all the activities of each employee He was also in error , as previously pointed out, in respect to the work of Reba Jones 32 Cantrell is now Pat Cantrell Klmgler, the wife of supervisor, Ken Klm- gler, whom Pat Cantrell married on February 14 1975 1 find that Pat Cantrell Klingler was an agent of Respondent at the time of its antiunion campaign during September 1974 This campaign consisted of Respondent's supervisors , such as Butner , along with Pat Cantrell Klm- gler passing out such antiunion materials as "Vote No" stickers Even if Cantrell were not the agent of Respondent at that time , I would still be satisfied , in the circumstances, that Respondent through Pat Cantrell Klm- gler learned of Pearson 's union adherence For Pat Cantrell Khngler is the sister of Supervisor Reba Gentry and Khngler, Gentry, and Pearson all worked in department 415 I conclude that Pearson refused the pin from Pat Cantrell Klingler in September 1974 Just prior to the election which was the time Respondent was passing out such materials Pearson 's refusal to accept the pin, of course , showed her preference to vote "Yes" for the Union 33 Evidence was also introduced that Pearson received a verbal warning from Ken Klingler on October 7 concerning the quality of certain racks produced by her on September 19 and 20, 1974 This warning, however, was not mentioned by Bittner as playing a part in the decision not to recall her There is no indication that the problem ever again cropped up and its lack of seriousness, in any event, can easily be assessed from the fact that it was not mentioned to Pearson until some 3 weeks after it occurred refusal to recall Pearson was because of her union activities and sympathies and that Respondent thereby violated Sec- tion 8(a)(1) and (3) of the Act. Emmaline Simpson Simpson began work on November 26, 1973, and was laid off in December 1974 She was an assembler in the strip heater line in department 415. She tied off, did string- ing, bent racks, installed thermostats, put wrappers on, did rework, checked, and sometimes stamped. She was one of the first five employees hired on line 2 in department 415 Simpson signed a union card on May 1, 1974, she at- tended all the union meetings, wore a UAW sticker on her purse, asked other employees to sign union cards, and gave other employees union stickers to wear on their purses. Simpson also attended the February 1975 hearings before Administrative Law Judge Ordman. According to Bittner, Simpson was not recalled because she had low efficiency or productivity and lacked versatili- ty Simpson, in her full testimony, admitted that her main job had been tying off and that after she had trouble keep- ing up with the line on tying she was given stringing assign- ments where she also had trouble keeping up. Her supervi- sor, Gentry, confirmed that Simpson had trouble keeping up with the line in both stringing and tying off, that Simp- son let units pile up and that, in addition to her low effi- ciency, Simpson had poor quality 34 Simpson received a written disciplinary warning on November 7, 1974, for poor efficiencies in 3 successive weeks in October 1974- her performance being, respectively, 53 percent, 68 per- cent, and 62 percent. Simpson admitted that she received a verbal reprimand from Ken Klingler in October 1974 for 15 bad heaters, at least six of which she was certain had been assembled by her Gentry testified that there is no comparison between the performance of the girls working on the line now and that of Simpson (as has been previous- ly noted, the efficiency of department 415 has improved since the layoff and there were few quality problems at the time of the hearing) For her part Simpson admitted that she is not as fast as several employees-who have been recalled-McCloud, Stanton, and Roberts-and that she was not aware of any quality or efficiency problems in respect to these named employees. From the foregoing it is clear that Simpson's efficiency was low in view of her relative lack of success in maintain- ing efficiency or high quality in either stringing or tying off-the principal assembly line functions. This same lack of success in both areas further indicates that she could not validly be considered versatile. Her union activities provide no warrant to require her recall ahead of more competent employees. I, accordingly, conclude that she was not re- called by Respondent by reason of her low efficiency and inadequate versatility and that the failure to recall her did not violate Section 8(a)(1) and (3) of the Act. I shall recom- mend that this allegation of the complaint be dismissed. 34 While it is true that Simpson was timed on three different occasions and on each such occasion assembled a heater in standard or better time. this does not change the picture in respect to her overall performance If anything it suggests that her overall performance was less than her capabili- ty 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16. Mary Ruth Myers Myers began her employment with Respondent on Feb- ruary 22, 1974, and was laid off on December 20, 1974. She worked in department 415 where she was assigned at dif- ferent times to all three lines and performed such functions as stringing, tying off, installation of thermostats, packing, and sweeping the floor. As will appear, however, her prin- cipal function was tying off. She believed that her seniority was at about the middle of some 60 employees working in her department at the time of the December layoff Myers signed a union card in May, attended all of the union meetings and was an observer for the Union in the Board-conducted election in September 1974 She also at- tended the hearing which was held before Administrative Law Judge Ordman in February 1975. She was thereafter reported by the Respondent to the Tennessee Department of Employment Security. She had a union sticker on her purse which she kept at her work station. Bittner testified that the principal reason why Myers was not recalled was because of low efficiency but that her lack of versatility also played a part in the decision not to recall her. According to the testimony of Gentry, Myers' supervi- sor, whom I credit in this regard, Myer's performance was principally as a tie-off girl and that occasionally Myers did stringing. 55 In neither assignment was Myers able to keep up with the line. She was also reprimanded on one occa- sion in October 1974 for poor quality work on 2 days in September 1974. Myers in her testimony did not essentially dispute any of the foregoing. She admitted that she previously did tie-off work and had trouble keeping up with the line. She did not deny having efficiency problems and she admitted that Klingler spoke to her about putting out bad racks. While she claimed that her ability to keep up with the line was no worse than some (unnamed) employees now working, she was unaware that any employee now doing work which she, Myers, had performed was junior to her in seniority. Here again as with other employees discussed, supra, Myers' union adherence provides no basis to require her recall when her performance was wanting. I therefore con- clude in the light of the foregoing that the General Counsel has not established by a preponderance of probative credi- ble evidence that Respondent's failure to recall Myers was because of Myers' union activities I shall accordingly, rec- ommend that this allegation of the complaint be dismissed. 17. Billie Hawkins Hawkins began work with Respondent on December 4, 1972, and was laid off on December 19, 1974. She had top seniority in her department (#416) and was 12th in senior- ity plantwide. Hawkins wired and assembled duct heaters, stacked, coiled, put wrappers and covers on the heaters, cleaned heaters, strung, tied off, operated the coiling ma- chine, and prewired heaters. 35 1 credit Gentry here for the reason that Myers, on cross-examination, admitted that she did not string much stating rather that she "tied off " This response suggests , consistent with the testimony of Gentry that Myers' prin- cipal function was tying off Her union activities were extensive and well known. She signed a union card, passed out union literature inside the plant and on the road outside, attended all the union meet- ings, and showed her union organizer's card to Supervisor Margaret Way on September 10, 1974. She has also testi- fied on behalf of the General Counsel on three separate occasions prior to this one in respect to complaints brought by the General Counsel against Respondent The Board has held that Respondent, on February 8, 1974, took repri- sals against Hawkins for testifying in behalf of the General Counsel in one such proceeding (on February 7, 1974) and that by engaging in such reprisals, Respondent violated Section 8(a)(1) and (3), and (4) of the Act. Q After testifying at Administrative Law Judge Ordman's hearing in Febru- ary 1975, Hawkins was reported by Respondent to the Tennessee Department of Employment Security. Bittner's testimony in respect to the reasons why Haw- kins was not recalled is not clear At first he stated that Respondent refused to recall her because she was just an average worker who had disciplinary problems. Later, upon being confronted with his own admission that other average workers have been recalled to work in department 416, he changed the reasons for refusal to recall Hawkins to lack of versatility and disciplinary problems, which con- cerned lateness and absenteeism A line supervisor in the department where Hawkins worked, Way, admitted that Hawkins kept up with the production line and had no problems of efficiency, production, or performance. Inso- far as Bittner's belated claim that Hawkins was not versa- tile is concerned, it is, of course, at odds with her own testimony, which I credit on the point since she is in a better position to know.37 While Way also testified in re- spect to the assignments of Hawkins and stated that for the past year before the layoff Hawkins' job was wiring up standard duct heaters, Way admitted that she, Way, did not always supervise Hawkins directly. Burgess did. And Way was not familiar with all assignments given Burgess' supervisees. In any event other employees who performed one job prior to the layoff have been recalled in depart- ment 416. This leaves only the matter of disciplinary problems which were limited to absences and tardiness. Respondent introduced none of its attendance records. Way testified, however, that Hawkins was habitually late and "missed a good deal." 38 Taking first the absences, Hawkins (I find, based on her undisputed testimony) was absent three times in 1974. All three absences were excused-two for a Board hearing and one because of an automobile accident. Other employees such as Cherry, Rogers, and Gant have been recalled by Respondent despite the fact that they were ab- sent as much as three or four times per month during the last 6 months of 1974 even though their absences, like that 36 Gould, Inc, 216 NLRB No 183 (1975) 77 An attempt was made at the hearing to discredit Hawkins because Hawkins told an official of the Tennessee Department of Employment Se- curity in February 1975 that she, Hawkins, was paid expenses by the Gov- ernment when she had previously testified I find no reason to discredit Hawkins on this basis Hawkins' position in the matter , she testified, was based on the wording of the Board's subpena Her reading of the Board's subpena, as I have previously held in respect to Betty Barlow is not unrea- sonable 38 1 decline to reconsider any matter where an alleged attempt to disci- pline Hawkins has been found by the Board to be an unfair labor practice GOULD, INC. of Hawkins, were apparently excused.39 - Respondent's case against Hawkins thus narrows to the matter of tardiness. Indeed its -brief states, "In conclusion, Hawkins was not recalled because of her disciplinary prob- lems-involving `exceeding tolerable tardiness in 30 days pe- riod as described on page 2 and 3 of Handbook.' " - Hawkins admitted that she has been tardy on occasion, although, according to her `undisputed testimony, she al- ways called in as the employees had been instructed to do by the then personnel manager, Bob Ferris, when Hawkins was first employed. III any event she was suspended for 3 days because of tardiness on September 19, 1974, shortly after showing her supervisor her union organizer's card. This suspension was contrary to the requirement of the very employee handbook (G.C. Exh. 13) upon which Re- spondent relies. Thus, the handbook states that prior to any suspension a two-step procedure will occur-first, counseling after the employee has accrued three absences or -tardiness in 30 days and second, if there is no improve- ment, a written warning. Only after the written warning and further lack of improvement will the suspension occur. According to Hawkins' unrebutted testimony on the point, she had not been counseled or warned prior to September 19, 1974, in respect to tardiness or absences. The only prior warning shown 'by this record was a warning from Fore- man Luper in October or November 1973 for leaving work after 8 hours apparently without remaining to work over- time.40 - While the General-Counsel has not proceeded on Haw- kins' charge (in another case) that her foregoing suspension was an unfair labor practice, this failure does not preclude me from holding, as _I do, that the suspension was contrary to Respondent's own rules, hence invalid if only for that reason. After returning to work -in, September 1974, Hawkins, according to her undisputed testimony, was not tardy nor absent again before the layoff in December 1974 and she received no more warnings or reprimands on this subject. In the circumstances, I find no merit in Respondent's defense(s) to the charges that it discriminatorily refused to recall Hawkins. Against the background of Respondent's animus towards the Union, generally, and also its animus towards the union-related and protected activities of Haw- kins particularly, I find that Respondent refused to recall Hawkins because she was an active union adherent and that Respondent hereby violated Section 8(a)(1) and (3) of the Act 41 39 Filson admitted that excused absences did not count against an em- plooee Hawkins' suspension notification contains a notation that this warning (suspension) was the second written warning for the same offense . This note was put on after Hawkins saw the suspension notification and the note itself has not been received in evidence In any event the only other warning to Hawkins shown by the record was the above mentioned Luper matter deal- ing with Hawkins leaving work at the end of the day Moreover, in rejecting Respondent's defense that it failed to recall Hawkins because of excessive tardiness and absences and in crediting the testimony of Hawkins in regard to these matters, I have especially taken into account the fact that Respondent did not introduce its attendance rec- ords. Its failure to do so gives rise to the inference , which I drew, that such records would be inconsistent with its defense Georgia Highway Express, Inc., 165 NLRB 514, 517 (1967), 403 F 2d 921 (C A D.C., 1968). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 195 The activities of Respondent, set forth 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 sev- eral States and tend to lead. to labor disputes burdening and obstructing commerce and the free flow of -commerce. V. THE REMEDY The recommended Order will contain the conventional provisions involving findings of interference, restraint, and coercion and unlawful refusal to recall employees in viola- tion of Section 8(a)(3) and (1) of the Act. Such order will direct Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which also state the affirmative action Respondent will be re- quired to take to remedy its unlawful refusal to recall Leota Moss, Linda Mayberry, Betty Barlow, Virginia Williams, Betty Buttram, Ada Ruth Pearson, and Billie Hawkins. Thus, Respondent will be ordered to offer Leota Moss, Linda Mayberry, Betty Barlow, Virginia Williams,42 Betty Buttram, Ada Ruth Pearson, and Billie Hawkins full and immediate reinstatement to their former positions or, if their jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges. Each will also be made whole for any loss of earnings she may have suffered by reason of the discrim- ination against her by payment to her of the sum of money she would have earned from the date of the discrimination against her until she is offered reinstatement, less net earn- ings, if any, during such period to be computed in the man- ner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended in view of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941) ), that Respondent be ordered to cease and desist from in- fringing in any other manner upon the rights guaranteed its employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By failing or refusing to recall Leota Moss, Linda Mayberry, Betty Barlow, Virginia Williams, Betty Buttram, Ada Ruth Pearson, and Billie Hawkins because of their activities on behalf of the Union, the Respondent has en- 42 While Williams was working at the time of the hearing, it was also shown that she had been recalled and again laid off since the recall began on January 6, 1975. Accordingly, I do not feel that her present status consti- tutes a full reinstatement as the Board normally requires . That is, in the light of her several recalls and subsequent layoffs, her recall poor to the hearing can only be considered temporary. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 4. By reporting employees to the Tennessee Department of Employment Security in order to harass them for ap- pearing as spectators in support of the Union at a hearing, Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent has not committed any unfair labor prac- tices alleged in the complaint (in Case 10-CA-11145) ex- cept as found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 43 Respondent, Gould, Inc., Cookeville, Tennessee, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities in behalf of, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or in any other labor organization, by discriminatorily re- fusing to recall or reinstate Respondent's employees, or by discriminating in any other manner in regard to the hire or tenure or any other term and condition of employment of any of Respondent's employees in order to discourage union membership or activities. (b) Reporting employees to the Tennessee Department of Employment Security in order to harass them for sup- porting the above-named labor organization. 43 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. (c) In any other manner interfering with, coercing, or restraining employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Leota Moss, Linda Mayberry, Betty Barlow, Virginia Williams, Betty Buttram, Ada Ruth Pearson, and Billie Hawkins immediate and full reinstatement to their former positions or, if their positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges, and make each of them whole for any loss of pay she may have suffered as the result of the discrimination against her in the manner set forth in The Remedy section herein. (b) Preserve and, upon request, make available to the Board or to its agents, for examination and copying, all payroll records, social security payment records, personnel records and reports, and all other records necessary to ana- lyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in or near Cookeville, Tennessee, copies of the attached notice marked "Appen- dix." 44 Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges unfair labor practices not found herein. as 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "