Hy-Gain Electronics

HY-GAIN ELECTRONICS Hy-Gain Electronics and International Union, Allied Industrial Workers of America, AFL-CIO. Case 17-CA-7368 September 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On May 25, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge, to modify her remedy, 3 and to adopt her recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Hy-Gain Elec- tronics, Lincoln, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 We agree with the Administrative Law Judge's conclusion that Respondent violated Sec. 8(aX3) of the Act by discharging Robert Howard because of his activities on behalf of the Union. Thus, we find it unnecessary to consider whether Howard's discharge was also in violation of Sec. 8(a)4) of the Act, as the remedy in either case provides for reinstatement and backpay. 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current seven-percent rate for periods prior to August 25, 1977, in which the "adjusted pnme interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge and an amended charge filed respectively on November 5 and December 13, 1976,' by International Union, Allied Industrial Workers of America AFL-CIO, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17 (Kansas City, Kansas), issued a complaint and notice of hearing on December 28. The complaint, as amended at the hearing, alleges in substance that Hy-Gain Electronics, herein called the Respondent, has, by various acts and conduct during the period September-November, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended; discharged Robert Howard on or about November 3, and failed and refused thereafter to reinstate him, because of his activity on behalf of the Union and/or because he filed a charge with the Board; and thereby engaged in unfair labor practices within the meaning of Section 8(aX1), (3), and (4) of the Act. In its answer, duly filed, and amended at the hearing, the Respondent admits some of the factual allegations of the complaint, but denies that it engaged in conduct violative of the Act. Pursuant to notice, a hearing was held before me in Lincoln, Nebraska, on February 3, 1977. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties waived closing argument. Subsequent to the hearing, the General Counsel and the Respondent filed briefs on or about March 15, 1977, which have been fully considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation, is engaged in the manufacture of electronic products at its plant in Lincoln, Nebraska. In the course and conduct of its business operations at this plant, the Respondent annually pur- chases goods and materials valued in excess of $50,000 directly from sources located outside the State of Nebras- ka, and sells goods and materials valued in excess of $50,000 directly to customers located outside the State of Nebraska. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. All dates hereinafter refer to 1976 unless otherwise indicated. 232 NLRB No. 20 85 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint, as amended at the hearing, alleges that the Respondent, in or about September and continuing through November 3, by Kenneth and Don Janssen, supervisors, imposed illegal restrictions on Howard regard- ing distribution of union campaign literature; in or about September, by Kenneth Janssen, interrogated Howard concerning his union membership and activities including Howard's communications with union personnel; in or about October unlawfully assisted employees opposed to the Union by printing certain materials containing threat- ening language for distribution by said employees; at all times material herein, promulgated and enforced an illegal no-solicitation rule; on or about November 3 discharged Howard and thereafter failed and refused to reinstate him, because of Howard's activity on behalf of the Union and/or because he filed a charge with the Board; and thereby engaged in unfair labor practices in violation of Section 8(a)(I), (3), and (4) of the Act. The Respondent in its answer, as amended at the hearing, admits that it discharged Howard and has failed and refused to reinstate him, but denies that it was for the discriminatory reasons asserted in the complaint. It also denies that it engaged in certain other conduct set forth in the complaint, and that conduct in which it engaged was violative of the Act. The issues are, therefore, whether the Respondent discharged Howard for cause or for discriminatory rea- sons; whether it engaged in other conduct set forth in the complaint; and, if so, whether such conduct constitutes violations of the Act. B. Interference, Restraint, and Coercion 1. The Respondent's rules Two employee handbooks of the Respondent are in evidence as joint exhibits. The parties stipulated that the first was effective from about January 1975 until December 20, 1976, when it was amended and the second one issued. The first one provides that: Solicitations: Collection and solicitation of funds for gifts or for any other reason will not be allowed on Company time, or property without express Company approval. The distribution of unauthorized literature or the posting or removal of notices, or signs, or [sic ] any description on or about the premises during work time without permission is prohibited. The revised edition provides that: Solicitations: Collection and solicitation of funds for gifts or for any other reason will not be allowed on Company time, or property without express Company approval. Both handbooks provide that: 2 The witnesses for both the General Counsel and the Respondent were vague about dates. Trespassing: Employees shall enter Company property only when they are here on specific business or on duty at assigned working hours. At other times, they must obtain Company permission before entering the build- ing. Anyone attempting to enter without permission will be considered a trespasser and treated accordingly. 2. Union organization Howard was hired by the Respondent on or about August 27, 1973, as an inspector in the quality control department. Kenneth Janssen, referred to herein as Janssen, was the quality control manager, and Don Janssen was the quality control supervisor. The parties stipulated that both Janssens were supervisors within the meaning of the Act. Howard's immediate supervisor for approximately a year after his hire was Powers. Howard's work, which took him to different departments of the plant, was to check parts for conformance to specifications. He rejected parts he found not to conform, which occurred frequently. During the fall of 1974,2 Howard got in touch with an organizer for International Brotherhood of Electrical Workers, herein referred to as IBEW, and requested organization of the Respondent's inspectors. Howard attended organizing meetings, talked to employees about IBEW, and obtained cards and signed up several inspec- tors. He testified that on one occasion during this period he was in Janssen's office when Powers was there also, that Janssen made an unfavorable comment to him, and that Powers said, "The office has been upset with Bob since they heard he's been attending union meetings." Powers was not called as a witness and Janssen did not contradict this testimony. During the IBEW campaign, Howard handed a card to Grundmayer, an employee, who declined it.3 Shortly after that Grundmayer was promoted and became Howard's supervisor. Howard testified, without contradiction, that he initiated conversations about IBEW with Janssen and with Whitcomb, then the personnel director, in their respective offices, "to get the company's point of view about ... the issue of the union." The IBEW campaign fizzled out in late 1974 after 2 or 3 months of organizing activity. In the summer of 1976, Howard heard there was another campaign in progress to organize the Respondent's employees. When Howard learned it was the Union that was organizing, he discussed it with Pratt, a union organizer, was assured this campaign would continue longer than 2 or 3 months, and volunteered his assistance. Howard attended a number of meetings held at a motel; got both membership and organizing committee cards to distribute; solicited employees in the plant cafeteria, the parking lot, and at employees' homes; and began wearing a committee button, as did some other employees, in about September. Pratt testified that he held employee organizing meetings on June 10 and September 21. On October 4 he sent a telegram to Sachs, plant manager, about the in-plant organizing committee, listing 39 names including Howard. He filed a charge on October 15, later withdrawn, alleging unlawful conduct by the Respondent with regard to 3 Grundmayer was not called to testify. 86 HY-GAIN ELECTRONICS Howard and Schwartz, who was also an active member of the organizing committee.4 3. Distribution of union literature Schwartz, a former employee and member of the union organizing committee, testified that he handbilled in August with Pratt at the front entrance, outside company property, about 20 feet from the highway and about 10 feet from the Respondent's fence; that the personnel manager said this was on company property so they moved about 2 feet toward the highway; that on October 5 he was distributing copies of the union telegram at the employee entrance when Price and Robinson, supervisors, told him to take this material and get off company property; and that he moved closer to the highway but, as it was dark and he was almost hit by passing cars, Pratt told him to stop the distribution. DeLunger, a former employee and member of the union organizing committee, had been distributing the telegram with Schwartz but went in on his shift while Schwartz was still distributing. Schwartz' was called by Robinson to General Foreman Garrison's office that day. 5 Schwartz testified credibly, and without contradiction, that Garrison said the supervisor found him violating the company distribution rule in August and again that day, and asked Schwartz to sign a reprimand; that he refused on the grounds he was not sure of the company policy nor that he did anything illegal; and that, about a week later, Garrison called him to the office again, said the company would forget the reprimand, and tore it up. Schwartz and DeLunger both testified credibly that they had seen political candidates distributing cam- paign materials at the employee entrance. This testimony was unrefuted. Sometime in the fall of 1976, Howard distributed union literature on company premises near the employee en- trance. He testified that he saw both Janssens in a nearby area looking at him, that he never previously saw either of them in the area at that time of day, and that he never saw them there together. At or about 3 o'clock Peterson, the safety director,6 told Howard there was a problem and Sachs, the plant general manager, wanted to see Howard in the office. Howard said he was not due to start work until 3:30 and preferred to see Sachs then. Peterson agreed, and waited nearby while Howard completed the distribution. Howard tried to reach one of the union organizers on the telephone but was not able to do so. Peterson directed Howard to go to the personnel office. Sachs was not there but both Janssens were. Howard testified that Janssen said, "he was going to tell me the ground rules of this campaign on handing out literature . . . I could hand it out in the cafeteria during break times, but I wasn't to hand it out in the parking lot, I wasn't to come to work early or to stay late after work, or I would be trespassing and might be arrested." Howard asked for these rules in writing so he could refer to them but, he testified, Janssen replied that the rules were fair, there was no need of them in writing, and there should be no further problems. Howard testified that Janssen then asked whether the Union said that 4 The charge was sent to Sachs, who sent it to O'Gara, the plant personnel manager. I Neither Robinson nor Garrison was called to testify. Howard could distribute as he had been doing, or was aware that he was doing so. Janssen testified that Peterson notified him, in Septem- ber or October, that Howard was passing out literature at the door that was the only entrance and exit for plant employees, and that was near the driveway used by employees in their cars and also by trucks; that he went to observe Howard doing so; and that he, with Don Janssen also present, spoke to Howard about this in the personnel office after Howard clocked in. Janssen testified that: I said, "Robert, we're not going to do anything to you for passing out those literatures, however, we would appreciate it if you would discontinue the practice in the future"; and I went into explaining that it was not only against our solicitation policy, but it was also a safety hazard.... I said he would not receive a reprimand.... He went on to say after I explained to him what the rules were of handing out the literature thing, he said something to the effect, "But I have my rights" . . . I replied, I realized he had his rights . . . and he could exercise those rights during breaks, during lunch hours in those areas provided for breaks and lunch.... He more or less acknowledged that he would do that. .... He asked if he could have that in writing, and I understood that to be our solicitation policy, and I said, "No, it is not necessary to put that into writing, it's already in writing in our employee's manual." And as I recall, I told him not to come to work early and not to stay late because there again it is a security problem. When you have 500 people milling around after work. I think that was about the extent of our conversation.? Janssen admitted that there was a security guard who patrols the employee entrance; that he did not know of any pedestrian or vehicle accidents at that location; that Howard was the only one distributing literature and people were "flowing around him on both sides"; that he asked Howard to refrain from distributing literature at the employee entrance in the future; and that he never after that spoke to Howard about passing out union literature, and did not know whether Howard did so. Janssen testified that he was not aware that policital candidates had been allowed to distribute literature in the same location. Don Janssen, who did not take part in the conversation with Howard, testified similarly to Janssen as to what Janssen said. 4. The antiunion committee At the time some employees were wearing union buttons, other employees who had formed an antiunion committee wore badges, one imprinted with the name "Hy-Gain" and the message "You've got a friend," the other imprinted the same way with the added message "Like it or leave it." The parties stipulated at the hearing that the Respondent permitted the printing of the "Like it or Leave it" message on company presses, and that the "Love Hy-Gain Commit- 6 Peterson was not called to testify. ? The Respondent's employees worked on three shifts. 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tee" was an independent employee committee. Damian, a former pressroom employee, testified credibly, and without contradiction, that he printed the "friend" badges and other committee materials in late September or early October on company printing presses, that no work could be done on these presses unless authorized by a supervisor, and that this work was so authorized. Sorenson, a tool clerk, called as a witness by the Respondent, testified that she was one of about six members of the Love Hy-Gain Committee; that the employee who thought of the "Love it or Leave it" slogan made a sign and put it on her truck and badge, and the others liked and adopted the slogan; that she passed out the committee badges on breaktime in the lunchroom and had a box of them on a toolcrib shelf where anyone could reach through the window and take one; and that supervisors never handed them out to her knowledge. Concluding Findings I find, based upon the entire record, that the Respondent promulgated and enforced a rule forbidding solicitation "on Company time, or property" which was invalid on its face.8 Further unrefuted testimony shows, and I find, that the Respondent permitted the distribution of political campaign materials at the employee entrance but criticized Howard and other employees for distributing union literature at or near that entrance. The evidence also shows, and I find, that Janssen called Howard to the office to discuss his distribution of union literature, that Janssen imposed restrictions on such distribution by Howard in the future, and that this restriction was not pursuant to a valid rule nor required as a safety measure, but was designed to discourage union membership and activities. I find, however, that Janssen's interrogation of Howard about union distribution instructions was not coercive and I will, therefore, recommend dismissal of this allegation of the complaint. Accordingly, I find that the Respondent promulgated an unlawful solicitation-distribution rule and enforced it disparately as to distribution of union litera- ture.9 In addition, I find that the Respondent, while discouraging union activities, gave assistance to an anti- union employee committee by authorizing the printing of committee materials on company presses.'m Accordingly, I conclude, and find, that the Respondent promulgated and disparately enforced an unlawful solicita- tion-distribution rule, imposed unlawful restrictions on distribution of union literature, and unlawfully assisted an antiunion employee committee, and that the Respondent, by the foregoing conduct, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices in violation of Section 8(a)(I) of the Act. I The Ohio Masonic Home, 205 NLiRB 357 (1973); Riverside Indu.stries, Inc., 208 NLRB 311. 320 (1974); Florida Steel Corporation, 215 NLRB 97 (1974). 223 NLRB 174 (1976); C & E Stores, Inc.. C& E Supervalue Division, 221 NLRB 1321, 1325 (1976); The Presbyterian Medical Center, 227 NL RB 904 (1977). 9 Eastex, Inc v. N.L.R.B., 550 F.2d 198 ((C.A. 5, 1977); Innkeepers of C. The Discharge of Howard 1. Howard's performance reviews Howard was hired on or about August 27, 1973. During the first year of his employment, his work was reviewed every 3 months by Powers, his immediate supervisor, who showed Howard the reviews and discussed them. The first three were, as Howard testified, "quite favorable." Ho- ward, who began working at or about $2.40 an hour, got a 10-cent increase at each of these reviews. At the third, Powers said Howard was thereafter eligible for merit increase reviews. When Howard was reviewed by Powers in August 1974, the anniversary month of his hire, Howard received a promotion from C to B class inspector and a 15- cent raise, and Powers commented on the written review that Howard was "doing good job in seven areas he is covering. Progress in printed circuit and welding area very good." Thereafter Howard took a leading role in the IBEW campaign, and later an active role in the campaign to organize the Union. His participation in both campaigns was known to management as well as to Grundmayer, who replaced Powers as Howard's supervisor. After that change in supervisors in or about January 1975, Howard received from Grundmayer and Janssen a series of unfavorable reviews and reprimands. The Respondent prepared a work record file pertaining to Howard which was placed in evidence as a joint exhibit. It contains copies of reviews and reprimands. The Respondent admitted that one of the favorable reviews was missing from this file as it had been unable to locate a copy. Howard received a verbal reprimand in January 1975. He was called to Janssen's office and was told there were five areas of complaint covered in the reprimand which would go into his file. He signed the document and requested a copy, which he testified he took home to review and to try to improve on the points listed. The first point referred to lack of tact in rejecting production materials, and to complaints about this made to Janssen. Howard, who had since his hire been rejecting materials many times a day for failure to meet specifications, maintained there had been no previous reference to his lack of tact in doing so, and denied that he had known of the complaints. Howard, during 1975, received a poor review in Febru- ary, a review in April stating that he had improved but was not being given a good review, a verbal reprimand on September 8 for absenteeism for 32 hours missed since January 27, a written reprimand on October 13 for carelessness of inspection and poor work habits, a poor review on October 27, a 3-day suspension for poor work record on October 31, and a review on December 22 stating there was slight improvement but he was given a poor review, and, during 1976, a poor review on June 2 and a written reprimand for violation of company policy on October 26. His pay increases were deferred or reduced at Ohio, Inc., d/b/a Ramada Inn of Fremontr, 221 NLRB 331 (1975): C & E Stores, supra; Head Ski Division, AMF, Inc., 222 NLRB 161 (1976); Mangurian's, Inc., 227 NLRB 113 (1976):; Chrysler Corporation, Eight Mile Road Stamping Plant, 227 NLRB 1256 (1977). m Graham Ford, Inc., 218 N LRB 980 (1975). 88 HY-GAIN ELECTRONICS times as a result of these reviews. Howard denied the assertions that he was doing poor work. The reprimand for violation of company policy referred to reading noncompa- ny literature at his work station. Howard testified that he received this about 3 weeks after handing out union literature at the employee entrance, and that he thought what he was reading was company literature as it was critical of unions. 2. The layoffs Although the General Counsel does not allege that the November layoff was motivated by other than economic considerations, the Respondent prepared for the hearing herein, and introduced into evidence, many voluminous computer printouts and other records pertaining to the economic necessity for the November layoff and the methods of implementing the reductions in personnel. The Respondent's records include financial reports, inventory reports, production and planning reports, finish goods stock status reports, notes and memoranda of Material Manager Neberman, employee attendance records, factory personnel requirement reports, seniority rosters, and lists of those hired, laid off, retained, or recalled in August and November. The testimony of some of the Respondent's witnesses was based on these records. The Respondent manufactures about 300 products, with CB radio antennas constituting about 50 percent of its business. Although it laid off a number of employees in August, it found a further reduction necessary a few months later because of a ruling by a Government agency in the summer of 1976 permitting the change on January 1, 1977, from 23-band to 40-band CB sets, as a result of which consumers in the interim ceased buying CB radios. Sachs, the plant manager, testified that production planning meetings are held twice monthly; that at such a meeting held on a Wednesday in late October it was decided that many products were overstocked and there should be another layoff; and that, at a regular Monday staff meeting in early November, he discussed with the department managers the economic situation and the necessity for another substantial layoff. Sachs also testified that he thought the prior layoff was in August but he was not sure of the date; that he did not know if he told the managers how to make the selections for that layoff, thought he did, but was not positive; and that he did not recall the number affected by that layoff but it was less extensive than the one in November. As to the November layoff, Sachs testified that he told the department managers to "Get rid of the slobs first" and, when asked what that meant, explained that it was those with the worst work and attendance records, then to select on the basis of seniority, and to start immediately to make the selections. Sachs, who was not sure of the criteria for determining who had poor work or absenteeism records, of the number laid off or when during the first 2 weeks of November, or of the number discharged except that most were layoffs, testified that these facts were not shown on the company exhibits. Sachs also testified that he left the determination of the numbers to be laid off to the managers; that this was difficult to determine in some of the large departments but easy as to the inspectors, who are employed in a particular ratio to manufacturing personnel; and that he did not know if anyone other than Howard was laid off or terminated on November 2, the day after he issued the layoff directive, or if any other inspector was terminated. Sachs testified that those laid off were told it was for lack of work and they would be rehired if business picked up, that quite a few who were laid off have come back, and that he thought virtually everyone on the layoff list had been asked to do so. Each department manager who was at the Monday staff meeting with Sachs promptly held a meeting with the supervisors in his department and discussed the staff reductions. Each supervisor keeps a personnel jacket on the employees he supervises in addition to the files kept in the personnel office. Neberman, the materials manager, who controls invento- ries and production, testified that he was at the late October planning meeting and the staff meeting on Monday, November 1, that Sachs told the managers at the November I meeting that the slobs with poor work or attendance records were to go first, and that Sachs discussed numbers only as to the production people. Neberman also testified that he held a staff meeting that afternoon with the supervisors in his operations and told them of the layoff; that he directed them to screen employees by poor work and absenteeism, and then by seniority, and he would review their lists; that no distinction was made, regarding number of absences, as to the reason for the absence; and that, of the approximately 80 employees in the materials department on November 1, about 20 were laid off early in November. He testified further that the documents relating to his operations showed the first one laid off was DeLunger on November 19, that no dates were shown for five others laid off prior to that date, and that he could name two of the five but not the others. Finally, he testified that he did not instruct his supervisors as to the factors for determining whether to discharge or lay off, as he considered all those selected to be "permanent type layoff terminations" not to be recalled. Vibral, who described his position as the "production manager" with "the overall responsibility of the manufac- turing department . . . as well as quality throughout the manufacturing area," had about 380 employees in his department in the summer of 1976. He testified that he attended the planning meeting in late October at which the decision was reached that "The indicators were that we would probably be faced with a layoff.... Due to the overstock situation"; he also attended the Monday staff meeting on November 1; the same people were present plus the quality control and personnel departments; it was decided there would be a cutback in production personnel of about 140; and he was told to eliminate the slobs first and, other than poor performance, was given no criteria to follow, but would consider seniority after poor perfor- mance. Vibral met immediately after that with his 17 supervisors and told them to give him a list of slobs within 2 days. They gave him a list of about 40 whose files showed disciplinary actions or attendance problems. He testified that he reviewed these files with supervisory and personnel people and they decided about 35 had corrected their problems; 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that 6 came under closer scrutiny "but the final evaluation among the group of us was that there was not enough difference to effect termination at that point in time.... that they were not so different from other people in that department"; that no one in manufacturing was terminat- ed; that 168 out of 345 were selected for layoff based on seniority; that third-shift people were laid off on November 5, and others on "about the 10th or 12th"; and that status reports were not prepared as to any of these layoffs. O'Gara, personnel manager, testified that a change in employee status is recorded on a status voucher by the supervisor, with copies for payroll, personnel, and the supervisor, but not the employee; that it is prepared in the case of layoff or permanent layoff; and that permanent layoff is the same as discharge. One of the Respondent's exhibits lists a great many names as laid off on November 5. O'Gara testified that most of these employees were on the third shift as the entire shift was laid off on that date, that a few may have been listed on that date through clerical error, that the date may indicate when the personnel office recorded it whereas the layoffs in question were possibly made earlier, and that vouchers were not prepared when large groups such as this were involved. O'Gara testified that among the documents prepared for the hearing were lists as to the effect of the layoffs on the 39 employees named in the Union's telegram to the Respon- dent and on the 6 employees named as discriminatees in the November charge but not in the amended charge filed in December; that it showed, as to those named in the charge, 3 were laid off, I was terminated for cause, and 2 resigned, and, as to those named in the telegram, several were still employed, some did not respond to recall from layoff so were terminated, some who were not laid off resigned, some were still on layoff status since the August or November reductions, some were recalled but dismissed for cause after the layoffs, and one was on permanent layoff which is the same as termination. O'Gara also testified that the list showed that Howard was dismissed for poor performance. The parties stipulated that in September there were 522 employees in manufacturing, 80 in the materials department, and 47 in quality control. O'Gara testified that there were 47 in quality control before and after the first layoff as none were laid off in August, that the number was reduced to 34 before the November layoff due to "Normal attrition, or transfers or whatever. I don't have that ... "; and that 8 were laid off, 2 were transferred, and Howard was terminated in November. O'Gara testified that a number of those laid off were recalled, that permanent layoff is the same as discharge, and that none of those permanently laid off were to be recalled. Janssen, quality control manager, testified that he attended the November 1 staff meeting; those at the meeting discussed a reduction of about 140 in production manufacturing; and, while materials and quality control operations are not part of production, they are affected by production flow. He also testified that the rule of thumb in the industry as to the ratio of quality control inspectors to production personnel can be based "upon about anywhere Don Janssen was not questioned when he testified about this discussion or Howard's termination. from ten to one, twenty to one," that the ratio at the Respondent's plant is "approximately ten to one," and that this ratio varies depending upon the degree to which quality is to be controlled. Janssen testified that Sachs directed the department managers at the staff meeting to effect an "immediate reduction in force. .... get rid of the slobs immediately," and then, if the numbers necessary were not reached, to proceed by seniority; and that Sachs defined slobs as, "Those people that would have a history of reprimands on file, repeated violations of company policy, high incidents of violation of tardiness and things like that." 3. Selection of Howard for discharge O'Gara testified that the first department he met with concerning the layoffs in November was quality control, and that the earliest layoffs were in quality control although he did not have the specific dates. O'Gara also testified that employees were laid off on the same date they were notified, that that was the effective date of the layoff, and that the earliest date for layoff or permanent layoff was November 5. Howard was terminated on November 2. O'Gara testified that Howard was discharged for poor performance and that he had the poorest record by far in 'the quality control department, which is made up of inspectors and supervisors. He also testified that he thought there was one other than Howard terminated rather than laid off in November, and that it was DeLunger. Shown Respondent's exhibit listing DeLunger as permanently laid off, O'Gara testified that he could not recall anyone terminated for poor performance as Howard was and he would have to look at records that were not at the hearing to determine this. Shown another Respondent's exhibit listing DeLunger as laid off, he testified that that was probably a typing error because, as Neberman previously testified, all the people in Neberman's depart- ment were permanently laid off. Shown other Respondent exhibits, O'Gara testified that there were seven termina- tions in November, from November 3 to 11, for various reasons that were not related to the layoff. Janssen testified that immediately after the staff meeting he reviewed the employee files with Don Janssen," who maintained these department files, and found Howard was the one whose poor performance stood out from all the rest of the inspectors. He also testified that Howard was the only one in the department who had a series of reprimands. Asked what this meant, he explained that, "It is our policy that on violation of company policy the employee is given a graduated reprimand. The first one will normally be verbal reprimand that is signed. The only thing that you sign for that you acknowledge about the verbal reprimand. The next violation will be a written reprimand. The third violation will result in a three day suspension of pay, and a suspension of work without pay, and further violations will be termination." Janssen testified that Howard's performance reviews, all of which he reviewed, were repeatedly poor. Janssen himself wrote on a Howard review in February 1975 that 90 HY-GAIN ELECTRONICS "Bob does have excellent attendance record, never tardy," but added, "However, Bob does have extreme poor rapport with all areas of manufacturing lead and supervisory personnel. Has been cautioned several times but condition seems to continue to exist. He gets over involved in product problems during inspection which actually slows down inspection rate per hour. Not objective enough in reporting defects on MRR's and this has been continual complaint by engineering personnel. Above problems will be pointed out to Bob at this review. Recommend no increase at this time and request another review in 3 months to check on improvement at that time." This review lists Howard's present job as an Inspector B, Grade 3, since 8-20-74, and date hired as 8-27-73. A review dated April 28, 1975, notes that Howard's attendance was excellent over the long run, comments that "Overall Bob has been improving particularly in his attitude and cooperation with fellow employees," but suggests, "However, Bob should seek to improve himself further" in particular aspects of his work. This review lists Howard's present job as Inspector B, Grade 3, since 8-27- 73, and date hired as 8-19-74. The reviews contain recommendations as to wage increases. Janssen testified that in a review of May 19, 1976, Howard was recommended for a 2-percent increase, which was "slightly below average because of poor performances listed on the form." Janssen also testified that, while he wrote on a review of Howard in early February 1975 that "Bob does have excellent attendance record, never tardy, ... " and a review in late April 1975 stated "Attendance is Excellent over long run," Howard nevertheless on August 8, 1975, was given a reprimand for attendance because Howard "obviously missed some hours" but he did not know how many; and that a notice of verbal reprimand for absentee- ism signed by Grundmayer on September 8, 1975, states that Howard "missed 32 hours since 1/27/75." The earlier handbook provides that employees with 100 or more hours of time off "will be terminated for excessive absenteeism." The revised handbook provides that, "As a guideline the company will use an average of one day per month as a basis for disciplinary action or termination due to excessive absenteeism." Both handbooks provide that absence "for three consecutive days without notifying the Company will be considered as a voluntary quit." Neither handbook says anything about a reprimand after 32 hours of absence in 8 months. Janssen explained, as to reprimands for absenteeism, that "you take it in graduated steps.... They may receive a notice after 50 hours, and get on up toward 100 hours, you would receive another notice"; that absences preceding a 12-month period are not accrued so an employee with a number of absences may in the 13th month have the number greatly reduced; that an employee may be listed for disciplinary action for absences of "anywhere from 25 to 100 hours," or "after about 25 hours, 50 hours, 80 hours"; that Howard had reached the first step at 32 hours as he "could get reprimanded at 25 hours, just from memory now, something like 50 hours, 80 hours," and a 12 One other employee, designated as a "permanent lay-off 11/5/76," had this same item listed. Another "permanent lay-off' is marked "rehire" and one is listed as having been rehired. man who is reprimanded may get credits reducing the number; that these standards are used by the supervisors plantwide and were written down somewhere; and that "We terminate them when they reach 100 hours, that's policy." Janssen also testified that the supervisor's record of absences shows the reasons therefor, that medical leaves of absence are not counted, that an employee disciplined for absenteeism could get a very good rating if there were extenuating circumstances as in the case of one employee who had a terminally ill mother, but that that was an isolated instance and absences generally are counted whatever the reason. Respondent's exhibit showing the reduction in quality control personnel notes there were seven layoffs, one discharge, two transfers, and "[an asterisk] designates lay- off for discharge." There is an asterisk at Howard's name. It also shows Howard with 10.5 absences, fewer than all but one other employee. It lists as to Howard, in a column headed disciplinary actions: 10/20/76 Reaading literature at work station during working hra. 12/ 10/13/75 careless performance 10/31/75 Poor inspection procedure. 3-day suspension 9/8/75 attendance 1/9/75 warning mneo of general performance It also lists under performance review and other: 5/19/76 12/22/75 10/27/75 4/25/75 2.0: 2.12 review deferred 5.02 - poor performance -- poor performance-Discharge - poor performnece - improving good attendance Janssen testified that, after the personnel reduction in November, about 23 or 24 were left in quality control inspection. He also testified that he considered a layoff temporary and subject to recall, but a permanent layoff was the same as a discharge and meant no intention to recall. Janssen admitted, however, that one employee listed as a permanent layoff was reemployed a month later, and explained that it was because an inspector was needed on a new program and, in reviewing the records of those permanently laid off, that employee's "job knowledge and background related to what we were looking for." He testified that Howard's position had not been filled and there were no plans to fill it, but that one position terminated in November has been filled. He did not indicate what the difference was in Howard's position and the one that was filled. Janssen testified that, if it were not for the directive to reduce personnel in November, Howard "would not have been terminated at that time, probably not"; that, when he reviewed the records, "It came to light that he did have a very bad work record, that, in fact, I was late in carrying out termination." Janssen admitted that he knew at the time of the termination that Howard was involved in the 91 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union campaign. As set forth above, Powers had comment- ed in Janssen's office, at the time of the IBEW campaign, that, "The office had been upset with Bob since they heard he's been attending union meetings," and Janssen had unlawfully criticized Howard for distributing union litera- ture and curtailed his engaging in such distribution in the future. The Union filed a charge on October 15, later withdrawn, alleging this conduct of Janssen vis-a-vis Howard to be violative of the Act. Howard was terminated on November 2. About an hour after he began work on that date, he was called to Janssen's office, where Don Janssen gave him a note headed "For the Record," dated November 2, signed by Janssen, stating that Howard "was terminated this date after a review of his work history. A recap of his work history is attached." He was also given this one-page recap, listing reviews and reprimands, and showing his hourly rate increases from $2.40 to $3.88. Don Janssen told Howard that many employees were to be laid off. Howard then asked when he might be called back, but Don Janssen said he was terminated, not laid off, and would not be recalled. Howard was the senior inspector on the second shift and the only one discharged. Concluding Findings I found Howard a straightforward and believable witness. The testimony of the Respondent's witnesses, on the other hand, as well as many of the documents prepared by the Respondent for the hearing herein, contains numerous gaps, contradictions, and inconsistencies. Nei- ther Powers nor Grundmayer was called to testify and Don Janssen, the quality control supervisor, was not questioned about Howard's selection for termination. I found Janssen, quality control manager, a vague and unconvincing witness, and his testimony contains many evasions and improbabilities. I therefore credit Howard's testimony where it is in conflict with that presented by the Respon- dent's witnesses. The record shows that Howard worked for over a year under the supervision of Powers and during that time received favorable reviews, raises, and a promotion and a review after his work of a year found he was "doing good job in seven areas he is covering. Progress in printed circuit and welding area very good." After Powers was replaced by Grundmayer, however, who knew, as did Janssen, of Howard's attempts to organize the employees, Howard received from Grundmayer and' Janssen a series of unfavorable reviews and reprimands, including some that were apparently not based on company rules, policies, or standard procedures, and one for absenteeism of 32 hours in 8 months although his overall attendance record was admittedly excellent.' 3 I find, on the record as a whole, that Grundmayer and Janssen prepared these reviews and reprimands in an attempt to show that Howard's work and attitude had deteriorated after a year of good work 14 and to establish an "ostensibly legitimate basis" 15 for getting rid of Howard, because of Howard's repeated attempts to organize a union. 1:1 Gerald F Hinkle d/b/a Akron Noveltv Manufacturing Company, 224 NLRB 998 (1976): Curtin Matlheson Scientifir. Inc., 228 NLRB 996 (1977). 14 See Ajax Magnethermic Corporation. 227 NLRB 477 (1976). No quality control employees were laid off in August. The charge alleging unlawful action with regard to Howard was filed in October. The department managers were directed at the staff meeting on November I to effect a further reduction in personnel. The earliest layoffs, limited for the most part to the third shift, took place on November 5, and other layoffs thereafter. Howard, however, was terminated by Janssen on November 2. The Respondent's witnesses stated that quality control personnel were employed, and would be laid off, in some ratio, variously defined, to manufacturing personnel. Howard was termi- nated before any manufacturing personnel were laid off. Some employees were transferred to other jobs at the time of the layoffs. The Respondent decided not to discharge any of the 40 production employees, selected by supervi- sors because of records showing disciplinary actions or absenteeism, on the ground that most had corrected their problems and the others did not appear to be "so different from other people in that department." There is no evidence that any consideration was given to transferring Howard.' 6 There is likewise no indication that Janssen, after examining Howard's record, gave any consideration to the fact that Howard had been employed over 3 years and received favorable reviews for over a year, to the comments about improvement in his unfavorable reviews, to his admittedly excellent attendance record, or to the nature of some of the criticisms of Howard such as the one for absences of 32 hours in 8 months. Instead of considering such factors in Howard's favor, as was done in regard to other employees, Janssen precipitately terminat- ed Howard, a senior inspector, about an hour after he began work on a Tuesday, the day after Sachs had directed a reduction in force. I do not credit Janssen's testimony that he suddenly discovered, on reviewing Howard's file, that Howard's work performance, very good for over a year, had deteriorated to the point that Janssen was compelled to terminate Howard, a senior inspector, summarily, and not in accord with the Respondent's usual policies or practices. The Respondent asserts repeatedly in its brief that "Howard was discharged incident to an economically justified reduction in force." Howard, however, although the senior inspector on the second shift, was the only one terminated, and the only plant employee terminated at this time. Many of those laid off were later recalled, including some who were laid off permanently, which the Respon- dent's witnesses maintained was the same as discharge. Howard, however, as a terminated employee, was ineligible for recall. Howard's discharge followed shortly after Janssen, as found above, had discriminatorily criticized him for distributing union literature at the employee entrance and curtailed his future distribution activities, and after a charge was filed with the Board alleging this conduct of Janssen to be violative of the Act. I am convinced from the evidence in its entirety and find that Howard was discharged because of his active role in successive organizational campaigns by the IBEW and the Union and because of the charge pertaining to Howard 15 Calcite Corporation, 228 NLRB 1048 (1977). 16 See Federal Yeast Corporation, 226 NLRB 1046 (1976). 92 HY-GAIN ELECTRONICS filed with the Board, and that the Respondent's assertions that the discharge was incident to the November reduction in force or was based upon the Grundmayer-Janssen reviews and reprimands are pretextual. In conclusion, therefore, I find that the Respondent discharged Howard because of his union activities and because he filed a charge with the Board, in order to discourage activities on behalf of the Union, and thereby discriminated against its employees in regard to their hire or tenure of employment in violation of Section 8(aX 1), (3), and (4) of the Act. 7 The Respondent's motions to dismiss the complaint, made at the hearing and in its brief, are accordingly hereby denied. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l), (3), and (4) of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from in any other manner infringing upon its employees' Section 7 rights,' 8 and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent discharged Howard on November 2, 1976, and thereafter failed and refused to reinstate him, because of his union activities and because he filed a charge with the Board, in order to discourage activities on behalf of the Union, in violation of Section 8(a)(l), (3), and (4) of the Act, the Respondent will be ordered to offer Howard immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make Howard whole for any loss of pay he may have suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: " Eubank Tire Sales, Inc., 226 NLRB 1103 (1976): Hambre Hombre Enterprises, Inc., d/ba Panchito's, 228 NLRB 136 (1977); Calcie Corpora- tion, supra; Head Division, AMF, Inc., 228 NLRB 1406(1977). Is N.L.R B v. Express Publishing Co.. 312 U.S. 426. 437 (1941); N L. R.B. v. En twistle Manufacturing Compan,. 120F. 2d 532, 536 (C.A. 4, 1941). 19 In the event no exceptions are filed as provided by Sec. 102.46 of the CONCLUSIONS OF LAW I. The Respondent, Hy-Gain Electronics, is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Howard on November 2, 1976, and thereafter failing and refusing to reinstate him, because of his union activities and because he filed a charge with the Board, in order to discourage activities on behalf of the Union, the Respondent discriminated against employees in regard to their hire or tenure of employment, and has thereby engaged in unfair labor practices within the meaning of Section 8(aX 1), (3), and (4) of the Act. 4. By promulgating and disparately enforcing an unlawful solicitation-distribution rule, by imposing unlaw- ful restrictions on distribution of union literature, and by unlawfully assisting an antiunion employee committee, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER ' 9 The Respondent, Hy-Gain Electronics, Lincoln, Nebras- ka, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, failing and refusing to reinstate, or otherwise discriminating against any employees in regard to their hire or tenure of employment, because of their union activities or because they have filed charges with the Board, in order to discourage activities on behalf of International Union, Allied Industrial Workers of Ameri- ca, AFL-CIO, or any other labor organization. (b) Promulgating or disparately enforcing an unlawful solicitation-distribution rules, imposing unlawful restric- tions on distribution of union literature, unlawfully assisting an antiunion employee committee, or in any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Howard immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. 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. 93 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make Howard whole for any loss of pay he may have suffered as a result of the Respondent's discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in Lincoln, Nebraska, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(1) of the Act other than specifically found herein. 20 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 .abor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, fail and refuse to reinstate, or otherwise discriminate against any employees in regard to their hire or tenure of employment, because of their union activities or because they file charges with the Board, in order to discourage activities on behalf of International Union, Allied Industrial Work- ers of America, AFL-CIO, or any other labor organiza- tion. WE WILL NOT promulgate or disparately enforce an unlawful solicitation-distribution rule, impose unlawful restrictions on distribution of union literature, unlaw- fully assist an antiunion employee committee, or in any other manner interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Robert Howard immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of pay he may have suffered as a result of the discrimination against him. HY-GAIN ELECTRONICS 94