Niagara Gear Corp.

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Niagara Gear Corporation and District No. 76, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 3-CA-6167 June 24, 1976 DECISION AND ORDER On March 18, 1976, Administrative Law Judge Julius Cohn issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and 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, Niagara Gear Corpora- tion, North Tonawanda, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Issues Whether Respondent laid off Timothy E. Phillips be- cause of his activities on behalf of the Union rather than for both his poor work performance and economic reasons. Whether Respondent laid off three other employees be- cause of their union activity rather than for economic con- siderations. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The General Counsel and the Respondent submitted briefs which have been carefully considered. On the entire record in the case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, a New York corporation, maintains its principal office and place of business in North Tonawan- da, New York, and is engaged there in the manufacture, sale, and distribution of metal gears and related products. During the past calendar year, in the course of its business operations, Respondent manufactured, sold, and distribut- ed at said North Tonawanda, New York, plant, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of New York. The complaint alleges, the answer admits, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED ' The following inadvertence contained in the Decision of the Admmis- The Union is a labor organization within the meaning of trative Law Judge is hereby corrected In the last sentence of par 5, sec III, A, the date June 19 is changed to July 19 Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge: This case was heard at Buffalo, New York, on November 10, 11, and 12, 1975. Upon a charge filed and served July 31, 1975, the Regional Director for Region 3 issued the complaint in this proceeding on September 11, 1975,' alleging that Niagara Gear Corporation, herein called the Respondent or Com- pany, violated Section 8(a)(1) and (3) of the Act by laying off certain employees because of their activities on behalf of District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union. Respondent filed an answer denying the commis- sion of unfair labor practices z ' All dates hereinafter refer to 1975 A. The Facts The Respondent operates a gear manufacturing business furnishing gears which are component parts required by large manufacturers The operation as it existed during the period under scrutiny had its inception in October 1974, when Matthew Babisz, now the president, purchased ma- jority control in the company from John Cerra who contin- ued as vice president and minority stockholder. Babisz had been formerly employed by Riley Gear Company in some managerial capacity. As a result of that association he re- cruited for Respondent its plant manager, Robert Rees, Donald Eggleston, quality control inspector, and a number of employees including all of the alleged discriminatees. At Riley, the Union represented the employees and the dis- criminatees herein were all members while employed there 2 At the hearing the General Counsel withdrew par 6(c) of the complaint which alleged that Respondent had laid off employee Marvin Meyers 225 NLRB No. 16 NIAGARA GEAR CORPORATION 123 At the time of the events involved in this matter the Com- pany had 14 employees in its shop. Timothy Phillips, who had been hired on April 28 by Babisz to operate a milling machine as well as certain other equipment, commenced talking to some of the employees after July 4 concerning the Union. He conversed first with John Duerr and Dennis Odrzywolski discussing working conditions such as safety, unclean restrooms, and the fact that there was no set policy concerning raises, holidays, vacations, and fob protection. These discussions took place over a period of time inside the plant while the employees were having lunch or immediately outside the plant at a picnic table and where it was customary for employees to eat and play horseshoes during the luncheon breaks. On July 17 after having spoken to Duerr, MacDonald, and Odrzywolski, Phillips telephoned Allen Bowe, a busi- ness representative of the Union whom he knew from Riley Gear. Phillips told Bowe that some of the people at Re- spondent were interested in the IAM and they wanted to obtain some more information. They made an appoint- ment to meet at 7:30 that night at a restaurant . Duerr and Odrzywolski accompanied Phillips to the meeting during which Bowe spoke to them about their rights to organize and gave them literature and cards for distribution. All three signed authorization cards that night and gave them to Bowe who told them that they should try to get a majori- ty of the employees to sign cards and the employees replied that they would get them on Friday and Saturday Early in the morning of July 18, before the workday commenced, Odrzywolski approached Douglas O'Neal just outside of the plant near the picnic table and spoke gener- ally concerning benefits without specifically mentioning a union . O'Neal responded negatively, according to Odrzy- wolski, and when the latter mentioned the possibility of joining some organization, O'Neal stated that he did not want to hear about it. At lunchtime Odrzywolski also spoke to Gary Beiersdorf concerning a labor organization but did not get any authorization card from him. At or about the same time during the lunch period, John Duerr spoke to Henry Kursten, a shipping clerk, and LaVern Reilly, a machine operator, and asked them what they thought of a union, stating that a couple of the people were thinking of joining a union. Duerr asked them what their ideas were and they said that they did not care to discuss it. Also during lunchbreak that day Phillips and Duerr spoke to Marvin Meyers on the way to the bank and asked him what he thought about the Union. Meyers said he thought it was a good idea. Later that day before leaving the plant Meyers signed a card and filled it out on top of Phillips' toolbox near the milling machine. Meyers requested that he did not want Plant Manager Rees, his brother-in-law, to know about this. During the evening of July 18, Phillips and Odrzywolski visited the plant and spoke to the employees on the second shift during their lunchbreak about 8 p.m. They distributed cards which MacDonald and Petrovs signed but Tom Bors stated that he wanted to take the card home and think about it. The same night Phillips and Odrzywolski deliv- ered the three cards (MacDonald's, Petrovs', and Meyers') to Bowe at his home. On Saturday, June 19, Duerr picked up the card from Tom Bors and delivered it to Bowe. On Monday, July 21, during lunch hour Phillips went over to the picnic table to talk to O'Neil and Beiersdorf. He had spoken to Beiersdorf about a week or so previously and the latter had told him to watch what he said because he could get into trouble. This had occurred just before work started one morning. On this occasion, Phillips told O'Neil and Beiersdorf that a union was being organized, that they already had a majority, and he wanted them to know about it. Beiersdorf turned his back and said that he did not want anything to do with it because they were going to get into trouble. Phillips repeated what he had said but Beiersdorf again said that he did not want to get into any trouble and he walked away to play horseshoes. Neither Beiersdorf nor O'Neil signed cards. Both Beiers- dorf and O'Neil, who testified at the hearing in behalf of the Respondent, confirmed that Phillips spoke to them at this time. Beiersdorf stated that he told Phillips he was not interested and O'Neil testified he told Phillips he did not want to know anything about it and that he walked away. Phillips had observed Babisz at the plant that day about 8 a.m. when his car was being loaded with some material. He next saw Babisz that afternoon at approximately 2:30 or 3 o'clock apparently returning and Babisz asked Phillips to help him unload his car which he did. About 4 p.m. Babisz told Phillips he wanted to see him in his office and discussed some labor tickets with him.3 Babisz talked to Phillips concerning four labor tickets telling him that these were jobs on which he had spent too long a time. As a result Babisz said he had a recommendation from John Cerra, vice president, to lay him off. Babisz stated that he had intended to offer Phillips a job on a different machine but he felt Phillips would not be happy with it and he was just going to let him go. In addition Babisz mentioned that the salesman, Ferguson, did not get an order they were expecting, and also some jobs on which they were not mak- ing money would have to be sent out. For these reasons, there was not enough work for Phillips' machine but they expected something in 2 weeks. Babisz also told him he was being paid $5 an hour and that the Company would have to cut down. Although Phillips asked Babisz for a layoff slip he was told that he would not need it. His paychecks were all made out and ready for him at that time, and he received a check for the previous week as well as a check for that Monday, July 21. Phillips has not been recalled although he called the Company several times. That evening Phillips called Bowe who had written that day demanding recognition for the Company, and in- formed the union representative of his layoff. Later the same evening Phillips met Duerr and Odrzywolski and went to see MacDonald during his lunchbreak at the plant. They gave MacDonald some literature and IAM decals. MacDonald proceeded to sign two pieces of literature and left them on top of his toolbox. He also placed IAM decals on his toolbox as well as on the toolboxes of Duerr and Odrzywalski. It was also decided that Duerr and Odrzy- wolski would wear IAM buttons on their clothing when they went in to work the following day. 3 The so-called labor tickets were actually job tickets on which employees were instructed to note the amount of time they had spent on the particular order 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Odrzywolski and Duerr came to work very early on the morning of July 22. Both were wearing a number of union buttons prominently on their shirts and they clipped union pencils to their shirt pockets . Odrzywolski spoke to Beiers- dorf and O'Neil again near the picnic table. He offered them pamphlets and pencils and cards but they turned him down. O'Neil said that he did not want to hear it and that "you guys are crazy, leave me alone." Beiersdorf said noth- ing turning his back.' About 8:30 a.m ., while Duerr was working at his ma- chine, another employee, Frank Speck, a machine opera- tor, came to him and said "what's all the garbage with those buttons." Duerr said that he felt it was a good idea that they form a union. Speck then said that when the manager comes in and sees those buttons he is going to fire him and then he walked away. Odrzywolski who was work- ing nearby observed this incident and immediately thereaf- ter Speck came over to him and asked "what the hell he was doing in there with those damn buttons on." Speck then asked what he was trying to prove and Odrzywolski said he was supporting the IAM. Speck then told him he should reconsider what he said and asked whether he knew what would happen if higher supervision heard about this. Speck told him he could be laid off or fired. Speck who testified on behalf of Respondent acknowledged having discussions with both Duerr and Odrzywolski regarding the wearing of the buttons. Speck testified that he told them that if they wore the buttons in the plant they would get in trouble and that he definitely was not for it. He could not recall telling them they could be laid off or fired, merely testifying "I can't say that I said that in those words, no." He did remember telling these employees that Matt Babisz did not care for the Union, adding that he, Speck, would not care for a Union if he owned the busi- ness. Although Speck admitted conversing with manage- ment he denied talking to anyone in management concern- ing the layoffs of Duerr or Odrzywolski. About a half hour after the conversation with Speck, Duerr was informed by Quality Control Inspector Eggle- ston that Babisz wanted to see him in the office. Babisz told him that he would have to lay him off because work was getting real slow . Duerr asked if this was because of his union activity. Babisz said , "What union?" Duerr asked him whether he could see his buttons and Babisz replied that he sees them all the time. Babisz told him that things might pick up in a couple of weeks so Duerr should call in He also told Duerr that he could leave at once or finish the day as he wished. Duerr was then paid for the previous week as well as for the full day on July 22. A few minutes later Eggleston told Odrzywolski that Ba- bisz wanted to see him in his office . Babisz told him the workload was not as heavy as it had been and they were having trouble getting contracts and pulling in more work so that they were going to have to lay off some people He said Odrzywolski would be paid for the rest of the day. 4In their testimony, Beiersdorf and O'Neil discussed the conversation they had with Phillips on July 21, but neither of them referred to this July 22 incident with Odrzywolski in the presence of Duerr , nor did they specifically deny that it had taken place In any event I credit Odrzywolski and Duerr concerning this conversation Ordrzywolski asked Babisz whether this had anything to do with his organizational ideas and Babisz asked "what organization" to which Odrzywolski replied any organiza- tion and Babisz repeated "what organization." Babisz said that he could leave right away and Odrzywolski received a check for a whole day's work as well as a check for the previous week. He was also told to call again in a couple of weeks, that perhaps work would have picked up by then. Richard MacDonald was employed from April 22 to July 22, as a machinist grinder. A couple of weeks before his layoff he was one of the employees approached by Phil- lips, who asked if he was interested in a union and Mac- Donald said that he was. Thereafter on July 18, as previ- ously noted, MacDonald signed a card during the lunch break of the second shift . On July 21, he obtained some literature from Phillips, Odrzywolski, and Duerr and he took two pieces of literature, signed his name on each, and placed them on his toolbox near his machine in view of anyone who may be walking through. He did this at quit- ting time and also placed IAM decals on his toolbox as well as on those of Duerr and Odrzywolski. About 9 a.m. on July 22, MacDonald received a call at his home from Babisz who told him that Ferguson had lost an order and that therefore he was going to be laid off. He did not tell MacDonald what order was lost. MacDonald asked Babisz if the layoff was because of his union activity and Babisz replied "what union." MacDonald said the IAM and then Babisz asked him what he could tell him about the Union to which MacDonald did not respond. Babisz told him that he could pick up his check and toolbox which MacDonald did that afternoon noticing that the literature he had placed on his box was no longer there . Babisz who testified in the hearing solely with relation to this telephone call stated that when MacDonald asked whether his layoff was because of the Union he replied : "What union . I was not aware of any union activities." The fifth employee to be laid off on July 22 was Marvin Meyers, a brother-in-law of Plant Manager Rees. As re- counted above Meyers had been solicited by Phillips and the others and signed a card on July 18. He was told by Babisz that he was being laid off for lack of work. Of the employees laid off on July 21 and 22, Meyers was the only one recalled to work. All five employees were the lowest in seniority although Duerr had greater seniority in the plant than Meyers. Respondent contends that it recalled Meyers to work rather than Duerr because Meyers was a gear cut- ter, work which Duerr was not qualified to perform. Discussion It is contended by Respondent that it had no knowledge of the union activities of the laid-off employees , that the layoff was caused by economic conditions, and, in the case of Phillips, additionally, his poor work performance. While it is conceded that there is no direct knowledge by the Respondent of the employees' activities herein , knowledge of concerted activities may be shown by circumstantial as well as direct evidence .' Any circumstances which make it logical to infer that Respondent knew about the protected 5 Famet, Inc, 202 NLRB 409 (1973) NIAGARA GEAR CORPORATION 125 activities must be considered. In a small plant where the supervision has close contact with the employees and the concerted activity is carried out in an open manner, an inference is warranted that the Company does obtain knowledge .6 The evidence reveals a number of factors which would indicate that Respondent possessed knowledge of the union activities of the four alleged discriminatees herein. There are a small number of employees at the plant (14 during relevant times including three on a second shift) and the managers and supervisors maintain very close day- to-day contact with the employees in the production areas by virtue of their personal involvement in the fabrication of the plant's product. Employees operating machines and various pieces of equipment were assisted in making setups by Rees, plant manager, by Vice President Cerra occasion- ally, and Eggleston. While it is clear from this record that Eggleston was not a supervisor within the meaning of the Act, it is equally clear that he relieved Rees during the latter's absence on vacation and, as a result, acted in the capacity of an agent of the employer. Vice President Cerra himself at times went out on the floor to assist in various ways. In addition to the managerial people it is noted that the senior employees (none of whom signed cards) also assisted the laid-off employees in connection with their work duties. At least one of them, Speck, indicated a hostil- ity toward the Union and, though only an employee, had warned Duerr and Odrzywolski as to the consequences of their activity, particularly the wearing of union buttons. Plant Manager Rees was actually related to two of the card signers: Meyers was his brother-in-law and Rees' wife is the niece of Bors. Although Meyers was one of the employ- ees laid off on July 22, he was the only one recalled on August 4. Most important in this consideration is the timing of the layoffs which followed so closely on the heels of the card signing. Authorization cards were signed on July 17 and 18 and, after the intervening weekend, additional solicitation occurred on July 21 and the early morning of July 22. Phillips was laid off on July 21, and the remainder of the employees on July 22. Moreover, not only was the timing closely related to the card signing and solicitation but the layoffs themselves occurred precipitously. Thus, all the lay- offs occurred during the workday while employees were still working on orders, a manner not consistent with the Respondent's contention that the layoffs were economi- cally motivated, a matter which shall be hereinafter dis- cussed more fully. Finally, Babisz seemed to be dissem- bling when he asked Duerr at the time of the exit interview "what Union" in response to Duerr's question as to wheth- er his union activity caused the layoff, since at the time he surely could not help but observe the IAM buttons promi- nently displayed on Duerr's shift Similarly as to the but- tons indicating the name of the Union on Odrzywolski's shirt when he laid him off. This was repeated when thereaf- ter he spoke to MacDonald on the telephone and inquired as to what union he was interested in. Incidently the testi- mony of these three employees concerning their conversa- 6 N L R B v Long Island Airport Limousine Service Corp. 468 F 2d 292 tions with Babisz at the time of their layoffs was uncontra- dicted since Babisz did not testify concerning his talks with Duerr and Odrzywolski and admitted asking MacDonald about the Union. On the basis of all the above circum- stances, I conclude that the evidence is sufficient on which to infer that the Respondent's managers were aware of the efforts of the employees on behalf of the Union. Phillips was the only one of the employees concerning whom it is contended that in addition to the economic conditions which would otherwise have promoted his lay- off, he was also laid off because of his poor work perfor- mance. To this end Respondent introduced 10 job tickets which, according to Vice President Cerra, show that Phil- lips had spent an unduly long period of time on the partic- ular jobs described on the ticket. According to the uncon- tradicted testimony of Phillips he was only confronted by Babisz on July 22, with four tickets of which only three are in evidence All the tickets relate to work done from vari- ous periods of time ranging from I month to 1 week prior to his layoff. It is uncontroverted and even stated affirma- tively by Plant Manager Rees that the matter of the job tickets as an indicator of Phillips' slow work habits was never discussed or brought up with Phillips at any time prior to his layoff. The only time that Cerra spoke to Phil- lips, according to his own testimony, was in connection with the washing of some parts for a Mack Truck order which Cerra stated had to be shipped on that particular day. On this occasion Cerra did not reprimand or remon- strate with Phillips but merely asked him whether he was going to get out the parts. Phillips said he would but the parts did not get out until the following day. Cerra stated he then spoke to Babisz and Rees recommending that Phil- lips be terminated. Cerra said that this occurred about July 16, approximately a week before Phillips was laid off, but he may have been mistaken because Rees was on vacation at that time. In any case, according to the testimony of both Cerra and Rees, Babisz and Rees disagreed with Cer- ra concerning his recommendation to terminate Phillips. Plant Manager Rees testified that he had known Phillips to be a fine employee while working at Riley Gear but that he did not perform commensurate with his ability at Re- spondent. Rees believed that this was due to the fact that Phillips, a friend of his, was bothered by severe financial problems due to the illness of his wife. Because of this, Rees recommended to Babisz that they put him on another machine which would be easier for Phillips to operate. Rees stated that he never spoke to Phillips about his poor performance but just prior to leaving on vacation he did tell him about possibly changing to another machine. It is clear that no one from management ever spoke to Phillips about his work performance. Despite the asserted sympa- thy for Phillips' financial plight, Babisz at the time he laid Phillips off merely stated that he was considering moving Phillips to another machine but felt that he, Phillips, would not be happy with it In addition, the precipitous nature of Phillips' layoff during the afternoon of July 21 arouses sus- picion. Babisz had returned from Rochester about an hour before, and Phillips had even assisted him in unloading his car, but Babisz said not a word to him. Moreover, the only other employee ever laid off for poor performance, Dan- (C A 2, 1972), Weise Plow Welding Co. Inc, 123 NLRB 616 ( 1959) iels, was terminated on March 14, a Friday, at the end of 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the workweek and was mailed a check on the following week. This was unlike the situation of Phillips where his checks were ready and waiting for him while Babisz spoke to him about his layoff. Finally Babisz did not follow Cerra's recommendation a short time before to terminate Phillips. In all the circumstances, I conclude that Respondent's contention that Phillips was laid off for his poor work performance is pretextual. There remains for consideration the economic defense set forth by Respondent. It is contended that as a result of a meeting between Babisz and Thomas Ferguson, a manu- facturers' representative and the sole sales agent of Re- spondent, on July 21 in Rochester, Babisz returned to the plant and laid off first Phillips on that date and the four other employees the following day. It is stated that Babisz and Ferguson discussed the condition of the business at the present time and the prospects for future orders from their principal customers and, because of the gloomy picture presented, Babisz was forced to take the action of laying off the employees. Ferguson was the sole witness as to this matter. He testified concerning the situation, past, current, and future with eight of Respondent's customers whom he contends represented approximately 50 percent of Re- spondent's business. In addition to Ferguson's oral testi- mony, certain exhibits consisting principally of purchase orders and invoices were submitted into the record. Re- viewing this evidence it first appears that International Harvester was never a customer of Respondent because no orders had ever been received from that Company. In the words of Ferguson, Harvester was a prospect not a custom- er. However, he stated that whereas it appeared that no orders would be forthcoming for several months Respon- dent was still in a good position for further orders, a posi- tion no worse than ever. In a similar posture was Respondent's relationship with Xerox from whom it had never received any orders until October 1975, long after the layoffs. Likewise Moore Special Tool Co., another Compa- ny relied on in Ferguson's summary, had only given Re- spondent two orders on January 9, which were completed on September 22. With regard to these three "customers" from whom Respondent had received either none at all, or no orders since January, there could have been no startling news imparted by Ferguson to Babisz on July 21, which Babisz could not have known before. Respondent had received in January a rather substantial order from Mack Trucks. The customer extended the deliv- ery date of this order so that Respondent completed it on September 30, sometime after the layoff. However, it ap- pears that Respondent was considerably late in its ship- ments against this particular order which, even with a stretched out delivery date of June 30, was not completed until September 30. Ferguson testified concerning another order dated January 21, received from Mack Truck and stated that this order was canceled in May. Actually the documents submitted in evidence show that the order was really canceled on March 12. Ferguson contended that they did not know the order was canceled until May. In any case Ferguson was not able to explain what was the new element in July concerning an order canceled in May at the very latest. Nor was Ferguson, as an independent sales agent, sufficiently aware of what was taking place in Respondent's plant so as to satisfactorily explain the rea- son for the delays in shipping the Mack Truck orders. As to Univac, the records show that Respondent re- ceived a steady stream of orders, dating as far back as December 1974, on an almost monthly basis, except the months of April, May, July, and August, and resuming in September. The shipments against these orders indicate that certain orders received in January were shipped as late as August and September. In any case the orders from Univac were not of such substantial size as would warrant a company to rely on this customer as a mainstay of its existence. Thus 15 orders totaled less than $16,000. This type of order and their dollar values were obviously known to Respondent, long before July, and the failure to obtain one or two more of these small orders could not have made any great difference in the Company's business, at least so as to cause the precipitous action taken by Bibisz on July 22. Ferguson testified at length concerning the relationship of Respondent with IBM. During the early part of the year, Respondent had received and shipped a number of small orders from IBM. However, in May, Respondent was in position to obtain a large order for about 10,000 gears from IBM. It first received 100 slugs from which Respondent was to cut gears. But a considerable problem developed because the slugs furnished by IBM did not provide a suffi- cient tolerance for Respondent to cut the gears. As a result the engineers agreed that it was not practical to run an order of 10,000 pieces with such a small tolerance as the rejection rate would undoubtedly be very high. Thereafter, on August 26, Respondent received this same order from IBM but was forced to subcontract it to another company which had the capability of doing this work and Respon- dent was limited to inspection and packing and shipping that order. Despite the loss of this substantial order, of which Respondent was aware in May and June, it contin- ued to work overtime in the months prior to the layoff and thereafter. In his testimony Ferguson also discussed two other cus- tomers concerning which Respondent provided no docu- mentation. One of these was Trottnow whom he stated had given Respondent orders in 1975, valued at more than $13,000. Ferguson said that Trottnow requested that ship- ments be stopped because of a problem with core hardness. No further explanation was given by Ferguson as to this matter. Ferguson also referred to an order from Stromberg Carlson for 20,000 pieces. This order was not canceled but the customer just changed the delivery date so that the final approximately 9,700 pieces were to be delivered on September 19, rather than August 25. As a matter of fact one of the laid-off employees was working on that order at the time of the layoff. In sum, Respondent's economic defense rests mainly on the fact that as of July 21, it had not received business from three large companies who had never given any orders and Respondent had been operating without depending on them. The records of the other customers discussed by Fer- guson, with the exception of IBM, merely show a stretch- ing out of some orders rather than any substantial cancel- lations. The only loss of any consequence was the IBM order. However, on cross-examination Ferguson stated NIAGARA GEAR CORPORATION 127 that General Electric was placing large orders, in fact an order of $50,000, considered very large to a company such as Respondent. In addition, the Respondent was receiving larger orders from an old customer, Moog, Inc., as well as a new customer, New Bould, and Lindy Division of Union Carbide. Moreover, Ferguson as an independent sales agent, does not see all the orders, he dust gets copies of invoices after shipments are made He is therefore in no position to know the exact status of Respondent's backlog of orders. Babisz did not testify as to this issue, and the uncontradicted testimony of Phillips, MacDonald, and Odrzywolski is to the effect that at various times Babisz told them that business was good, and that he discussed plant expansion with Phillips. I am not persuaded that Respondent laid off the employ- ees on July 21 and 22, because of economic conditions If indeed Ferguson had detailed any losses of orders or busi- ness, they all were well known to Respondent a good deal before July 21. As previously noted Respondent's records indicate that overtime was worked all during this period including the months of June and July and extending thereafter into August, September, and October Finally it is perhaps a truism that an economic layoff must be based on good business judgment. I do not consider it prudent as a matter of business for an employer, citing economic con- siderations, to lay off employees early in a workday, with work orders in their machines at the time, and paying them for a full day to boot. There was nothing arising from Ba- bisz' meeting with Ferguson, as related by the latter, that should have caused such precipitous action as was under- taken in this case It is therefore my finding that Respon- dent laid off Phillips, Odrzywolski, Duerr, and MacDonald for their union activities rather than because of economic reasons Accordingly, I conclude that by this conduct, Re- spondent violated Section 8(a)(3) and (1) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, 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 Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily laid off the employees set forth above, I shall recommend that Re- spondent be ordered to offer immediate and full reinstate- ment to Phillips, Odrzywolski, Duerr, and MacDonald to their former positions or, if no longer available, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges; and make each of them whole for any loss of earnings or other monetary loss each may have suffered as a result of the discrimination against them, less interim earnings, if any, plus interest at 6 percent per annum. Any backpay due is to be determined in accordance with the formulas set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 By discriminatorily laying off employees Timothy Phillips, Dennis Odrzywolski, John Duerr, and Richard MacDonald, Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed- The Respondent, Niagara Gear Corporation , North To- nawanda, New York, its officers, agents, successors, and assigns, shall: 1 Cease and desist from. (a) Discouraging membership in, or activities on behalf of, District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor or- ganization, by laying off employees or otherwise discrimi- nating against them in any manner with regard to their hire and tenure of employment or any terms or condition of employment because of their union activities. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights guar- anteed by Section 7 of the Act, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer Timothy Phillips, Dennis Odrzywolski, John Duerr, and Richard MacDonald, immediate and full rein- 7In 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 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement to their former positions or, if those jobs no lon- ger exist , to substantially equivalent positions, without prejudice to their seniority or other rights previously en- joyed , and make them whole for any loss of pay due to the violation against them in accordance with the manner set forth in the section of this Decision entitled , "The Reme- dy" (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records neces- sary to analyze the amount of backpay due under terms of this Order (c) Post at its North Tonawanda, New York , plant, cop- ies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by the Company's authorized representative , shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Company to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith 8 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 " 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 give evidence , the National Labor Relations Board has found that we violated the National Labor Relations Act, and we have been ordered to post this notice. The Act gives the employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from the exercise of any or all such activities. WE WILL NOT layoff or discharge any employee for engaging in union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights under Section 7 of the Act. WE WILL offer Timothy Phillips, Dennis Odrzywol- ski, John Duerr, and Richard MacDonald immediate and full reinstatement to their former fobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights, and WE WILL make them whole for any loss of pay or any benefits they may have suffered by reason of our dis- crimination against them. NIAGARA GEAR CORPORATION