Enclosure Corp.

ENCLOSURE CORPORATION 629 Enclosure Corporation and United Automobile, Aero- space, Agricultural Implement Workers of America and Its Local 585, UAW. Case 4-CA-7433 July 6, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On February 13, 1976, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed an answer to Respondent's exceptions, cross- exceptions, and a supporting 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 only to the extent consistent herewith. The Administrative Law Judge concludes that both of the alleged discriminatees, Arthur Bink and Stephan Evans, although once possessed of supervi- sory authority, no longer possessed such authority at the time they were allegedly disciminatorily laid off. On the basis of this finding, and her further finding that Respondent's actions were motivated by their respective union activities, she concludes that Respondent's layoff of Bink was unlawful.' Respon- dent excepts. We find merit in its exception in that we do not agree with the Administrative Law Judge's finding that Bink and Evans no longer possessed su- pervisory authority at the time of the layoffs. The facts are fully set forth in the Administrative Law Judge's Decision. Briefly they are as follows: Evans was hired as a sales estimator, and he some- ' The General Counsel excepts to the failure of the Administrative Law Judge to find that Respondent's assertion that Evans and Bink were confi- dential employees, raised for the first time in Respondent's closing argu- ment, was improperly and untimely raised A review of the record indicates that the facts surrounding this issue were fully litigated, and that the Gener- al Counsel was not prejudiced by the timing of Respondent's assertion Accordingly, the General Counsel's exception is denied The Respondent has requested oral argument This request is hereby de- nied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 The Administrative Law Judge dismisses as to Evans on the basis of her finding that he was a managerial employee We agree with this finding for the reasons stated by the Administrative Law Judge Member Fanning does not reach this issue in view of his finding that Evans is a supervisor times used the title of "sales manager" or "office manager." He was among the four highest paid indi- viduals on Respondent's payroll. He was primarily responsible for the preparation of price quotations for Respondent's customers.' The Administrative Law Judge found, in our opin- ion correctly, that Evans had effectively recommend- ed the hire of secretary-receptionists. Thus, between about September 1973 and June 1974, Evans con- ducted approximately 30 job interviews to fill the secretary-receptionist position whenever it became vacant. Other interviews were also conducted by Respondent's president, Edelman, and other person- nel. Subject to a maximum set by Edelman, Evans was able to make commitments to interviewees re- garding salary. Evans would report to Edelman after the interviewing process had been completed some- times including an indication as to "first choice," "second choice," or other notations. Edelman made the final hiring decision, but before doing so he asked Evans' opinion of such matters as the applicant's appearance, voice, conversational ability, poise, and transportation situation. He always hired an applicant from among those Evans considered most desirable. Of the five secretary-receptionists hired between September 1973 and December 1974, Evans interviewed all but the last one. Three of those four interviewed by Evans were hired without Edelman's having seen them beforehand. Evans was also responsible for directing the work of the secretary-receptionist in that he would assign her such tasks as the rearranging of the files or the checking of catalogues. It was Evans who determined the priority of her various duties. As to Bink, he had been working for Respondent since 1967 or 1968 as a "design engineer." He had the second highest salary on Respondent's payroll, behind only Edelman. His primary job duties in- volved making the drawings for customers' made-to- order requirements. Bink also had telephone conver- sations with customers, discussed production prob- lems with Respondent's employees, and did some sales work. The Administrative Law Judge concluded, in our opinion correctly, that Bink had effectively recom- mended the hire of employees. In 1969, Respondent sought to hire a second draftsman. All but one or two of the applicants were interviewed by Bink. Bink was given authority to discuss salary with these appli- cants subject to a maximum set by Edelman. After the interviews, Bink discussed with Edelman the ap- plicants and their drawings, a prime consideration in 3 Respondent designs and manufacturers sheet metal cabinets for the electronics industry 225 NLRB No. 82 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's decision as to whom to hire. In 1969, one of these applicants was hired by Edelman al- though he had never met him, apparently on the strength of Bink's recommendation. In May 1974, Respondent needed another draftsman and Edelman told Bink to hire someone. Bink prepared and put an advertisement in the newspaper and interviewed all of the three or four applicants. After discussing the applicants with Bink and seeking his opinion, Edel- man decided to hire Monitzer although they had nev- er met. In addition, on two other occasions, in De- cember 1973 and on another unspecified date, Bink interviewed applicants for a draftsman position. Bink discussed these applicants with Edelman but no one was hired. However, in November 1974, Edelman hired draftsman Parsons without the consultation or participation of Bink. Thus, Bink and Evans are basically in the same position. Both had participated in the hiring process in the recent past. Bink, over a 5-year period, had done so twice .,hen applicants were hired and twice when no one was hired. Evans had done so on four occasions over a period of a year. Neither had since been told that there was any change in his authority or responsibilities in this regard. The Administrative Law Judge concluded that nei- ther Bink nor Evans any longer possessed this super- visory authority, relying on the fact that neither had participated in the hiring process for about a year and did not do so the last time an employee was hired in his respective area of competence. Contrary to the Administrative Law Judge we find that con- c usion unwarranted. Where, as here, it has been es- tablished that an individual has possessed superviso- ry authority, the mere failure of an employer, over a relatively short period of time, to call on that individ- ual to exercise such authority is insufficient to dem- onstrate that it has been withdrawn. We find, there- fore, that the fact that Evans and Bink did not participate in the limited hiring which occurred in the year prior to their layoff is insufficient to estab- lish that they had lost their supervisory status. Since there is no other evidence to the contrary, we con- clude that both ^-ere supervisors at the time of their layoff and, hence, that they are not entitled to the protection of the Act. Accordingly, we shall dismiss the complaint in its entirety. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding was heard at Philadelphia, Pennsylvania, on October 23 and 24, 1975, pursuant to a charge filed on June 6, 1975, and a complaint issued on August 28, 1975. The question presented is whether Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (the Act), by laying off Stephen Evans and Arthur Bink, allegedly because of their activity on be- half of United Automobile, Aerospace, Agricultural Imple- ment Workers of America and its Local 585 (the Union) Upon the entire record, including my observation of the witnesses , and after due consideration of the briefs filed by Respondent and counsel for the Acting General Counsel (the General Counsel), I make the following. FINDINGS OF FACT 1. JURISDICTION Respondent is a New Jersey corporation whose plant is located in Cornwells Heights, Pennsylvania , where it de- signs and manufactures sheet metal cabinets for the elec- tronics industry . During the year preceding the issuance of the complaint, Respondent sold and shipped goods valued at more than $50,000 to points outside Pennsylvania. I find that, as Respondent admits , it is engaged in commerce within the meaning of the Act, and that assertion of juris- diction over its operations will effectuate the policies of the Act The Union is a labor organization within the meaning of the Act. If. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that the June 3, 1975, layoff of Evans and Bink was motivated by their union activities. Respondent contends that they were laid off for economic reasons. In addition, Respondent contends that their layoff would not be unlawful even if motivated by their union activity, on the ground that each of them was a supervisor, managerial employee, and/or a confidential employee. The General Counsel denies that either of them occupied any such status, but concedes that if either occu- pied any such status, his layoff for the reasons alleged by the General Counsel would not violate the Act. Cf. General Nutrition Center, Inc., 221 NLRB 850 (1975).I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. i At the hearing, the General Counsel expressly took this position with respect to the contention that the complainants were supervisors and mana- gerial employees Respondent did not raise until the close of the hearing the contention that they were confidential employees However , the General Counsel's brief does not suggest any contention that the layoffs would be unlawful assuming them to be confidential employees See N L R B v Wheeling Electric Company, 444 F 2d 783 (C A 4, 1971), N L R B v North Arkansas Electric Cooperative, Inc, 446 F 2d 602 (C A 8, 1969) Cf Service Technology Corp, a subsidiary of LTV Aerospace Corp, 196 NLRB 1036, ENCLOSURE CORPORATION 631 B. The Claimants' Job Duties Respondent's plant employs about 40 production and maintenance employees. Both of the claimants worked in the office attached to the plant. At the time of the layoffs, six more individuals also worked in the office-Company President Robert Edelman, Bookkeeper Midge Edelman (Edelman's wife), Comptroller/Purchasing Agent Eugene Goldner (the Edelmans' son-in-law), quality control man James Monitzer, draftsman Gary Parsons, and secretary- receptionist Diane Gaynor. 1. Evans Evans was hired by Respondent in March 1973 at $10,000 a year. His annual salary at the time of his June 1975 layoff was $17,004, including a $1,404 increase effec- tive about 3 weeks before his layoff. He was paid almost the same salary as Plant Foreman Fred Bauer, admittedly a supervisor of the production and maintenance employ- ees, and more than anyone else on the payroll except Bink (Respondent's only engineer) and Edelman. Evans' post- high school education consists of 2 years of college, where he majored in physical education. Hisjob title when he was hired was sales estimator, ajob in which he then had about 13 years of experience. From time to time during his em- ployment, he also used the title of "sales manager" or "of- fice manager." Neither Evans nor any other salaried em- ployee punched a timeclock. On occasion, Evans was reprimanded for coming in late or overstaying his lunch hour. On an undisclosed date before September 1973, Edelman gave Evans keys to the plant. Among Evans' principal duties was the preparation of qutotations for customers, who would request such quota- tions by mail or telephone. If the customer's order called for Respondent's standard parts, Evans prepared the quo- tation on the basis of the prices in Respondent's catalogue and sent the quotation directly to the customer, usually if not always without its being seen by Edelman or any other agent of Respondent. If the customer's order did not call for standard parts and did not include a drawing, Evans would refer the order to engineer Bink, who prepared the necessary drawing. On the basis of the customer' s or Bink's drawing, Evans would determine the number of hours which would be required to manufacture each item on the drawing. He credibly testified that he made this determina- tion "from past experience. In most companies you have industrial standards which you work with These are indus- trial engineering standards that you apply against different manufacturing operations. We did not have anything of that nature, so there was strictly a feel for what thejob was going to take. This was a scientific approach based on ex- perience." After thus determining the total number of hours required, Evans would then multiply this by a dollar figure referred to in the record as the "labor factor" or "hourly rate," which lumped together profit and overhead as well as labor costs. The "labor factor" fluctuated ac- cording to the customer and the job, and in each case was set by Edelman. Evans would then prepare a quotation by adding this figure to the materials price, as established from the customer's or engineering bill of material or a valuation of the product. He would also insert a delivery date, frequently after discussions about production sched- ules with Edelman or Plant Foreman Bauer. Whenever the order called for parts other than standard parts, Evans submitted to Edelman the quotation thus pre- pared by Evans.' Evans' and Edelman's estimates were within 5 percent of each other from 60 to 70 percent of the time. If the difference exceeded 5 percent, Edelman decid- ed on the estimate after consulting with Evans, and after considering, inter aha, his own "feel of what the market would bear." Written quotations for both standard parts and other parts were sent out in a form letter, generally over Evans' signature but sometimes over the signatures of both Evans and Edelman. In either event, such quotations, if accepted by the customer, bound Respondent to supply the parts in question at the quoted price. The quotations in whose preparation Evans participated ranged from $25 to $150,000, the average value being $2,000 to $3,000. Edel- man testified that he "did talk about" the $150,000 con- tract with Evans before he committed Respondent. The record fails to show whether this order covered other than standard parts. Edelman testified without contradiction that "many times" a customer did not want to agree to the price that was on a quotation in a "negotiated contract" situation- inferentially, a contract not limited to catalogue items. In such cases, Respondent would engage in discussions with the customer that normally led to a lessening of the price. Evans did almost 90 percent of the negotiating. Edelman testified without contradiction that Evans would not go to him prior to committing Respondent to a certain price, because Evans "had access to all the numbers. He pretty much knew whether we were going to make money or not make money on the job." The contracts which Evans thus negotiated with customers amounted, normally, to $2,000 or $3,000.3 No dollar limit was imposed on the contracts to which Evans could commit Respondent during this negoti- ation process. The record contains no evidence about the number of contracts which Evans thus negotiated or the size of the price changes to which Evans committed Re- spondent during such negotiations. Edelman instructed Evans to accept all orders. Edelman further instructed Evans to obtain a credit report on every new customer. This report was sent first to Edelman, and 2 This last finding is based on Evans' testimony Edelman testified that in the estimating and quoting of a price, "Sometimes I would get involved and sometimes I would not if he felt that there was something questionable about it or he wanted a little assurance, we would sit down Many of the quotes I never even saw" Edelman further testified that "generally"-that is, unless Evans approached him or he happened to see an interestingjob on Evans' desk-Edelman did not review for pricing purposes any drawings for modification of Respondent's standard parts When asked whether Evans would come to him with anything minor in nature, Edelman replied, "I doubt it"-a somewhat evasive answer, in view of Edelman's firsthand knowledge of all the relevant facts I accept Evans' version of what kinds of quotations were always approved by Edelman 1043 (1972), enfd 480 F 2d 923 (C A 5, 1973) (decided , however, prior to J As previously noted , Evans and Edelman discussed the largest contract N L R B v Bell Aerospace Company, Division of Textron, Inc, 416 U S 267) Edelman could remember, amounting to $150,000, which may or may not have consisted entirely of catalogue items 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then to Evans. If the item was to be shipped before the credit report came in, Edelman's wife, who is Respondent's bookkeeper, would telephone the bank for a credit rating. Edelman himself always determined before shipments were made whether to extend credit to a new customer. Mrs. Edelman gave Evans a monthly credit list setting forth which customers' accounts were overdue and which were on time. Evans extended credit to customers on this list whose accounts were on time, but did not extend credit to the others without obtaining Edelman's prior approval. Where credit was not extended, all shipments were made C.O.D. After Respondent decided to fill an order, Evans, Edel- man, or (before Septemer 1974) the purchasing agent would log it in Respondent's sales record book, listing the shop order number, the customer' s name, the value of the job, the start date, and the customer-expected shipping date. On the basis of the information in the book, Evans would prepare a schedule as to the number of jobs on order for the next 2 or 3 months, their dollar value, and what the shipments were proposed to be, in order to enable Edel- man to decide whether to hire more people or to work overtime. Evans gave this schedule to Edelman every month and to Plant Foreman Bauer every week. Evans also prepared preinvoicing statements from which billings could be typed up, and called trucks to pick up shipments. It is undisputed that the Edelmans, Evans, Bink, the sec- retary-receptionist, Foreman Bauer, and Assistant Fore- man George Snedden had access to files and records re- garding any job done in the plant. Evans testified that such records were also accessible to the remaining office person- nel-namely, Purchasing Agent/Comptroller Goldner, draftsman Parsons, and quality control man Monitzer. Be- cause Evans' testimony in this respect is supported by the nature of these persons' duties, and in view of the witness- es' demeanor, I credit Evans, and discredit Edelman' s testi- mony to the contrary.4 These records show, inter aka, the "labor factor" figure whose content is described above, and which is used in preparing quotations. Edelman testi- fied that "Union personnel" (inferentially, the plant em- ployees, who are union-represented) did not have access to these records, because "if you are dealing with Union per- sonnel and they see that the company is charging X amount of dollars for an hour, it may be difficult for them to realize that there is rent and taxes and salaries of service people that have to be paid and all that has to be incorpo- rated. The impression is-'Well, gee I get X amount and you are charging Y amount. I want some more money.' It is not the sort of thing that you want to have known by everyone. There is nothing wrong with having it known by people but it just leads to problems." On no more than five occasions during Evans' 2-year tour of duty with Respondent, he prepared, negotiated, and settled with the carrier, claims for damage to Respondent's products during shipment. If the damaged merchandise was repairable, Evans either estimated what the repair costs were going to be or found out from the foreman the materials and number of hours already used ° Respondent's brief tacitly concedes that Goldner had access to the "la- bor factor" to make the repair. If the merchandise had to be replaced, Evans established the value on the basis of the prequota- tion estimate . One of these claims and the $922.50 settle- ment were signed by Evans on Respondent's behalf. An- other claim was signed by "S. Evans, Office Mgr." and amounted to more than $600; the record fails to show the amount of the settlement . The size of the other claims and settlements is not shown by the record. Edelman did not participate in preparing, negotiating, or settling these claims, which were handled by Evans alone.5 During Evans' tour of duty with Respondent, the office force normally included a secretary-receptionist. Between about September 1973 and June 1974, whenever this posi- tion became vacant Evans interviewed most of the appli- cants therefor; altogether, he conducted about 30job inter- views. However, some interviews were conducted by the Edelmans and by then purchasing agent Palucci. Before Evans conducted his first interview, Edelman told him to look for whether the applicant was neat, whether she had any secretarial or receptionist background, and the wages she wanted. Before being interviewed, an applicant would have to fill out a written application form and type a sam- ple letter, which was attached to the application forwarded to Evans. Subject to Edelman's instructions about the max- imum amount Respondent would pay, during the interview Evans was able to commit Respondent to the amount to be paid the applicant if she were hired. After interviewing ap- plicants for the vacancy, Evans would give Edelman the written applications from the applicants whom Evans re- garded as most desirable. Such applications contained Ev- ans' notations about salary arrangements, and sometimes also included "first choice" or "second choice" evaluations or other notations which Evans had added to the applica- tions to refresh his own recollection but which could be seen by Edelman. Edelman would review the applications given him by Evans, and would ask Evans' opinion of such matters as the applicant's appearance, voice, conversation- al ability, poise, and transportation situation. Edelman made the final decision about whom to hire, but he always selected an applicant from among the group (usually, about three whom Evans had said were most desirable). After Edelman had made the selection, Evans would tele- phone the successful applicant and tell her to come to work.' The record fails to show the total number of secretary- receptionists who were hired between September 1973 and December 1974, although Evans testified that he could re- call only five-i.e., Rowen (hired about September 1973), Klotz (hired about November 1973), Bixler (hired in March 1974), DiCriscio (hired in late June 1974), and Gay- nor (hired about December 1974).7 Of these five secretary- 5 This last finding is based on Edelman's testimony In view of Evans' evasive testimony in connection with his settlement activity, I do not credit his testimony regarding Edelman's alleged participation 6 MY findings in this paragraph are based on Evans' testimony For de- meanor reasons and (as to Rowen) the probabilities of the situation, I do not credit Edelman's testimony that he had nothing to do with the hire of Rowen (who was interviewed by Evans alone, and was the first applicant hired after Evans began to participate in the interviewing) and Bixier For similar reasons, I do not credit Edelman's testimony that Evans had unlimit- ed discretion with respect to the secretary-receptionists ' salaries 1 Respondent's counsel indicated that Carolyn James was also hired dur- ing this period, but there are no exhibits or testimony about her ENCLOSURE CORPORATION 633 receptionists, Evans interviewed all but the last-hired, Gay- nor. Edelman did not see Rowen, Bixler, or DiCriscio be- fore hiring them.8 Although Evans noted on Klotz' applica- tion that she was his second choice, Edelman hired her because he happened to see her during her interview with Evans and found her appearance attractive .9 Gaynor, the last secretary-receptionist hired by Respondent before Ev- ans' June 1975 layoff, was hired by Edelman about Decem- ber 1974 without any participation by Evans. So far as the record shows, Evans conducted no interviews after Di- Criscio's hire in late June 1974, about 11 months before Evans' layoff. When Evans, Edelman, or Purchasing Manager/Comp- troller Goldner prepared a letter or quotation to be typed, he would give it directly to the secretary-receptionist. Ev- ans regularly asked her to telephone a trucking company to pick up equipment and sometimes asked her to make a telephone connection for him. Also, Evans would tell her to rearrange the files or check the catalogues, and would determine the priority of her various duties. On one occa- sion he reprimanded Klotz for taking too much time off and on another occasion reprimanded DiCriscio for late- ness, absenteeism, and overstaying her lunch hour. He is- sued each of these reprimands after Edelman instructed him to do so.10 2. Bink Bink has a bachelor's degree in anthropology with a spe- cialty in human engineering. Before being hired by Re- spondent, he worked for 10 years at RCA as a mechanical designer, which encompassed all phases of sheet metal, chassis, and cabinets and some machine shop practice. In addition, he worked for 6 months with each of two other companies, where he worked on "small mechanisms" and on three-dimensional layouts, respectively. Bink was hired by Respondent in 1967 or 1968 in re- sponse to an advertisement for a draftsman illustrator. Edelman testified that Bink's title when hired was "design engineer," and Bink so described himself at the hearing. Bink was Respondent's only engineer During an undis- closed period prior to his 1975 layoff, Bink sometimes used the title of "chief engineer" (to impress outside customers, according to Bink) and sometimes the title "engineer." Edelman testified that Bink was a "chief engineer." At the time of his layoff, Bink was receiving $20,384 a year This salary, which included a $1,404 raise effective about 3 8 DiCriscio, a 17-year old with 3 years of high school as a business major, was hired in late June 1974 with the understanding that she would not stay on the job after the move to Pennsylvania, an event then expected to occur in a month or so The record fails to show whether she remained in Respondent's employ until December 1974, when the move in fact occurred 9 This finding is based on Evans' testimony In view of the witnesses' demeanor and Evans' notation on Klotz' application blank, I do not believe Edelman's testimony that Evans hired Klotz I need not and do not de- termine whether Edelman described Klotz in the somewhat tasteless lan- gua^e testified to by Evans and denied by Edelman 1 This last finding is based on Evans' testimony Edelman was not asked about the DiCriscio incident Edelman denied that he directed Evans to reprimand Klotz, but admitted, "I may have discussed [with Evans] the fact that she had been taking too much time off " In view of Edelman's vague- ness and demeanor considerations, I accept Evans' version of the Klotz incident weeks before his layoff , was higher than anyone else's on Respondent's payroll except Edelman's. Bink described this salary as in the low range of general engineering. As previously noted , Respondent manufactures cabinets for operator-controlled consoles. Initially, Bink would con- fer with the customer about the customer's cabinet require- ments. If these requirements could not be satisfied with standard cabinets listed in Respondent's catalogue, Bink would make the drawings from which the shop built the needed cabinets . After Bink had completed a drawing to be used for quoting a price , the drawing was reviewed for pricing purposes (but not for drafting errors) either by Edelman or jointly by him and Bink and/or Evans . II After the job had been priced out by Evans and Edelman, and the drawing and price had been approved by the customer, the drawing was submitted to the shop . When a customer thereafter requested a design change which would necessi- tate a change in the drawing, Bink would make the change but would make Edelman aware of it because it was likely to involve additional cost. Bink spent about 95 percent of his time making these manufacturing drawings . Monitzer, who took over part of Bink's job after his layoff, testified that Bink was one of the finest draftsmen Monitzer had ever seen. Bink also had telephone conversations with cus- tomers, discussed cabinet fabrication problems with the shop foreman and other shop personnel, delivered blue- prints to the shop, and did a little outside sales work, with- out, however, extending credit to customers. During 60 percent of Bink 's 1967-75 tenure with Re- spondent, he was the only person who performed drafting work . In 1969, Respondent placed a newspaper advertise- ment for a draftsman . Most of the applicants were inter- viewed by Bink, although one or two were interviewed by Edelman . Edelman gave Bink authority to determine with- in specified limits the salary to be offered, but Bink credi- bly testified that he never discussed a salary with anyone lower than the maximum amount "because it was tough to get people to work for what was being offered. . . . If they came in and told me they would work for something that was lower than we were offering, I would, of course, go along with that, and talk it over with Mr. Edelman." In interviewing applicants, Bink gave principal consideration to the quality of the applicant's drawings. Thereafter, he took their drawings to Edelman , discussed their employ- ment applications with him, and, if requested by Edelman, described their personal characteristics (e.g., their man- ners). Bink interviewed Trilly, and eventually told him he was hired, although Trilly had never met Edelman .12 About 1971, because of an altercation between Trilly and Edelman's wife (who is Respondent's bookkeeper), Edel- man directed Bink to discharge Trilly, and Bink did so.13 11 This last finding based on a composite of Bink's and Evans' testimony For demeanor reasons, I do not credit Edelman's testimony that in most cases, he never saw the drawings Edelman has a bachelor's degree in elec- trical engineering, and is capable of judging the quality of drawings 12 My findings in this paragraph are based on Bink's testimony When asked whether Bink had discussed Truly with Edelman before Trilly was hired, Edelman replied, "I do not remember, but I do not think so " Edel- man further testified that Bink set Trilly's salary I credit Bink's testimony about Trilly's hiring, and discredit Edelman's partly equivocal denials 13 My findings in this last sentence are based on Bink's testimony Edel- Continued 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For 2 or 3 years after Tally's discharge, Bink was the only person who performed drafting work . About May 1974, the amount of drafting work increased to a point where Bink did not have time to do it all . Accordingly, Edelman told Bink to hire someone and to put an adver- tisement in the newspaper for that purpose . Bink drew up the advertisement . Edelman told Bink to offer $ 120 a week, and Bink replied that he did not think Respondent could get a draftsman for that low a salary . Edelman then au- thorized Bink to offer up to $150 a week . 14 The advertise- ment brought in three or four applicants , all of whom were interviewed by Bink . One walked out because the salary offered was too low. Another applicant was rejected by Edelman , with Bink's approval, because the applicant had served a 2-year prison sentence for armed robbery. Appli- cants had been instructed to bring in drawings done by them, and after Bink's interviews, he and Edelman went over the drawings to check their neatness and accuracy. Edelman asked Bink his opinion of each applicant, and told Bink not to get anyone who smoked . After Bink inter- viewed Monitzer, Edelman expressed concern over Bink's report to him about Monitzer 's slight stutter. Bink and Edelman agreed that Monitzer's drawings were far superi- or to those of any other applicant's. On the basis of these drawings, Edelman authorized Bink to call Monitzer and tell him he was hired . 15 This call was made on May 28, 1974, the evening of the day that Monitzer applied for the job. Edelman never met Monitzer before he was hired. Bink was also involved in interviewing applicants for a draftsman's job in December 1973, and on another occa- sion which date is not fixed by the record , when the work- load had become too heavy for him. In each instance, he was told to put an advertisement in the paper ; he was told to and did interview applicants , in general accordance with appointments made by Edelman ; and Bink and Edelman talked over the results of these interviews. For reasons which are not shown by the record , no draftsmen were hired in consequence of such interviews. In October 1974, Edelman offered Monitzer a $15- a-week raise to go into Quality Control . Monitzer accepted, and did no more drafting work until after Bink 's layoff. Shortly after Monitzer's transfer, and without consulting Bink, Edelman hired draftsman Gary Parsons, who came in off the street. Parsons was hired primarily to make draw- ings for a new catalogue , which Bink had started to work on but in Edelman's opinion did not have time to do. How- man testified that Bink d.scharged Trilly because Bink and Edelman decid- ed there was not enough work to keep Trilly busy, and that Mrs Edelman did not tell Edelman about her altercation with Trilly until after he was discharged Mrs Edelman did not testify, nor was her absence explained Nor did Respondent produce Tally's personnel record In view of demeanor considerations and this absence of corroboration of Edelman's testimony, I credit Bink 14 My findings in these two sentences are based on Bink's testimony For demeanor reasons, I do not credit Edelman's testimony that Bink decided on the wages to be paid Monitzer, who was the applicant eventually hired, that Edelman did not know what Monitzer was being paid until after he was hired, and that Edelman then remarked, That is not very much money " 15 My findings as to Bink's conferences with Edelman about these appli- cants are based on Bink's testimony For demeanor reasons, I do not credit Edelman's testimony that he did not review the drawings of any of the potential draftsmen, and did not recall discussing any of such draftsmen with Bink ever, while Bink was still working for Respondent, Parsons did make a few drawings for special cabinets needed by customers. Before Monitzer's November 1974 transfer to Quality Control on a full-time basis, Bink gave him all or practical- ly all his work assignments except during the relatively short periods when Monitzer was working for Quality Con- trol. Bink kept the harder jobs for himself and gave Monit- zer the easier ones After laying out the basic concept of the order, Bink would give Monitzer the shop order num- ber and the drawing number and Monitzer would proceed from that. When Monitzer's job assignment was relatively complex, Bink would show Monitzer how to do it (such as where to locate cutouts, what the shop was used to seeing on drawings, and what tooling was available in the shop) or give him suggestions. Monitzer's prior training and ex- perience consisted of 1-year high school and college cours- es in drafting and 6 months' practical experience. He testi- fied that when he started working for Respondent he was "learning on the job." Monitzer testified at the October 1975 hearing that the work given him by Bink between June 1974 and November 1974 "was really not difficult looking at it now. It was not really as hard as it was to me back then." "Many times" Monitzer would ask Bink for help, such as where to put a cutout. Monitzer testified -that Bink never "ordered" him to do anything over, but would say, "Well, this is wrong and we will change this ... and you change that," whereupon Monitzer would make the necessary changes. Bink testified that he was sure he some- times "directed" Monitzer to change drawings. During the earlier portion of Monitzer's employment as a draftsman, he gave all his drawings to Bink to check. During the latter part of this period, he gave Bink about 60 to 70 percent of his drawings, using his own judgment about which ones Bink should check.16 If Monitzer decided that a particular drawing need not be checked by Bink, Monitzer would prepare blueprints of the drawing, send some to the cus- tomer for his approval, and send some to Evans for pricing purposes. If Monitzer gave a drawing to Bink for checking, Bink would check it for dimensional errors and to see that the drawing contained the information in the customer's requisition, and would initial the drawing after approving it. In March 1975, after Monitzer had been transferred to Quality Control work, Bink told Monitzer that Edelman wanted to know when Monitzer was going to leave. Monit- zer believed that this statement was prompted by certain mistakes in his Quality Control work, and constituted a warning to improve or else look for anotherjob. It is undis- puted that Bink exercised no supervisory authority with respect to Quality Control work. This incident aside, nei- ther Bink nor anyone else ever reprimanded Monitzer at the plant. It is undisputed that, between Parsons' November 1974 16 My findings in the last two sentences are based on a composite of Monitzer's and Bink's testimony and on the probabilities of the situation No dates were attached to Bink's testimony, and I conclude that his testimo- ny about how much work he checked was directed to the latter part of Monitzer's association with him Monitzer testified that he had always given Bink all his work to check However, Monitzer's testimony as a whole indi- cates that his abilities and self-confidence increased with time, and I con- clude that he eventually began to bypass Bink as to routine drawings ENCLOSURE CORPORATION 635 hire and Bink's June 1975 layoff, Parsons spent most of his time preparing drawings for a new catalogue. Edelman tes- tified that he told Bink "that I would like him to monitor the catalogue because effectively [Parsons] would be work- ing for . . . Bink. Subsequently, after the catalogue was done, I wanted him to do engineering work. I was trying to get the idea across to [Bink] that [Parsons] worked for him and he was not going to be a replacement or a substitute or anything of this sort. [Bink], for some reason, had a lack of security." Bink testified that his duties as to Parsons' cata- logue work were limited to checking Parsons' notoriously poor spelling. In view of Parsons' unexplained failure to testify and Edelman's concession that his alleged state- ments to Bink were largely motivated by a desire to reas- sure him, and after considering the witnesses' demeanor, I credit Bink's testimony regarding his duties as to Parsons' catalogue work. While Bink was in Respondent's employ, Parsons made very few drawings for customers. The record fails to show who assigned such work to him. Bink may have checked and initialed such drawings as Parsons elected to submit to him. As previously noted, Bink had access to records showing the "labor factor" used by Respondent in estimating the cost of a job. Edelman testified that the "normal proce- dure" was for Bink to make a drawing and Evans to quote it. As described in detail infra, on one occasion Bink par- ticipated with Evans in preparing a quotation for a big job, the Aeronutronics job. This quotation was given to Edel- man, who thereafter disapproved it and submitted his own and higher quotation to the customer. Evans testified that Bink also prepared quotations on an undisclosed number of small jobs, on which Edelman gave him the appropriate "labor factor." There is no specific evidence about the ex- tent of review over quotations prepared by Bink. In view of the probabilities of the situation, I infer that Edelman re- viewed Bink's quotations to the same extent as Evans' quo- tations. C. The Allegedly Discriminatory Layoffs 1. Background Respondent's production and maintenance employees have been represented by the Union for 8 or 9 years. No finding that Respondent has committed any unfair labor practices has ever been made by an Administrative Law Judge or by the Board, and Respondent has never been a party to a settlement agreement which required it to post a notice that Respondent would not violate the Act. Compa- ny President Edelman testified that he had a "very good" working relation with the president of the local Union, Mi- chael DiPinto, "I like him very much and I think he is very ethical and a good man. I do not think we always see eye to eye, but I have a very good regard for him. Obviously we have had problems. Whenever you negotiate you have problems. They have always been resolved." DiPinto, who signed the instant charge on the Union's behalf and repre- sented it at the hearing, did not testify. About June 1973, during a period when Respondent was considering a plant transfer from its then location in Pe- sauken, New Jersey, Edelman remarked to Evans that by moving to Delaware, Edelman would not have to take a Union with him." In May 1974, Respondent obtained a contract for 630 units from Hamilton Standard Division of United Aircraft, the largest single contract Respondent had ever had. When Evans told Edelman about this con- tract, Edelman told him, "Do not enter it into the book at once . . . I am in the middle of union negotiations and I do not want it picked up by anyone. I do not want the Union aware of it." Evans made an immediate entry of only part of the order.)B In the summer of 1974, Edelman remarked that there was a possibility of disbanding the Union if the plant moved outside of a certain mile radius.19 In August or September 1974, Edelman told the employ- ees that the plant was going to be moved from Pesauken, New Jersey, to Cornwell Heights, Pennsylvania. Re- spondent's salaried employees, most of whom lived a few minutes from the Pesauken plant and ate lunch at home every day, anticipated that the move would increase their commuting and lunch expenses by $25 or $30 a week. They drafted a statement reciting these anticipated disad- vantages and requesting some additional type of remunera- tion. The statement was signed by Evans, Bink, Assistant Foreman Snedden (admittedly a supervisor), and perhaps others.20 By drawing straws, the signers selected Evans to bung this document to Edelman. Edelman' s initial re- sponse was an obscene epithet, but immediately thereafter he said, "Do not tell them that. Tell them I will consider it." 21 Evans returned to the other employees and repeated the conversation. The employees decided that they would have to wait and see. Every 2 or 3 weeks thereafter until the plant moved about January 1975, Evans asked Edelman whether he had reviewed the document and decided on anything. Edelman's response was that the request had no validity. However, when the plant moved, each employee began to receive a $5 bill with each paycheck. 2. The union activity among the office employees On various occasions after September 1974, Evans had discussions with General Foreman Bauer and Assistant Foreman Snedden (both admittedly supervisors) about the possibility of bunging in a union. About November 1974, Bink joined these discussions, during which he made pro- union remarks. The union stewards for the plant unit also "badgered" the nonunit employees about obtaining union 17 This finding is based on Evans' undenied testimony 18 My findings about the Hamilton Standard incident are based on Evans' testimony Because Edelman was not asked about this incident and Respondent's records were not produced, I credit Evans' testimony even though Bink, who was also present, was not asked about it either 19 This finding is based on Bink's undenied testimony Because Edelman was not asked about this conversation, I credit Bink, although Evans was also present and was not asked about it either 20 My finding that it was signed is based on Evans' testimony On the basis of the probabilities of the situation, I do not credit Edelman's testimo- ny that the document bore merely a list of names rather than signatures 21 This finding is based on Evans' testimony, indirectly corroborated by Bink's testimony regarding Evans' report of the conversation immediately thereafter Edelman testified that he said he was "amazed" by the com- plaint, and that "I will not do what is on [the document], but I will do something " He denied using the obscenity On the basis of the witnesses' demeanor, I credit Evans 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation. About May 1975, the union discussions among the four named nonunit personnel, which up to that point had been rather infrequent, became very frequent. On a date between May 16 and 23, 1975,22 Edelman called Bink to the office and told him that he was being given a wage increase of $27 a week-from $365 to $392 a week-effective May 9.23 During this interview, Edelman "expressed surprise that in spite of the fact that we had a move, he was surprised that we were doing as well as we were actually doing." Edelman also said that "Unions were the ruination of the country . . . Unions were the responsi- bility of the cost of living going up . . . the cost of ev- erything was going up because of Unions." 24 About May 23, Evans had a conversation with Bauer in Bauer's office, during which Bauer indicated that he "was all fired up" for a union. Three or four times during this 10-minute conver- sation, Edelman's son-in-law, Purchasing Agent/Comp- troller Goldner,25 walked up and down in the plant area in front of Bauer's office, which on that side has unglazed window frames. During part of this period, Goldner was only 2 feet from the window where Bauer and Evans were talking. I infer that Goldner overheard material parts of this conversation. 26 About the same time, Bauer and Sned- den raised a question about their own eligibility for a union with Evans and Bink. On May 25, Evans and Bink visited the union hall, where Evans obtained blank authorization cards. About May 26 or 27, Bauer remarked to Bink, "I thought this was supposed to be a secret and four people have just come up to me today and . . . said, `I've heard you are joining a Union."' Up to this point, the nonunit personnel had been attempting to keep their union discus- sions "down low." On the morning of May 27, Evans and Bink approached Parsons, Monitzer, Bauer, and Snedden to arrange for a meeting to discuss the Union at secretary-receptionist Gaynor's house during the lunch hour that day.21 Parsons agreed to come. Monitzer, Bauer, and Snedden refused to come-Monitzer because he had a previous engagement, 22 All dates hereafter are 1975 unless otherwise stated 23 Respondent simultaneously discontinued its prior practice of enclosing with each paycheck a $5 bill which was not entered on the employee's withholding statement 24 My findings as to the substance of Edelman's remarks are based on Rink's testimony Edelman testified that unions were not mentioned He further testified that when giving Bink the raise, Edelman said "that there was not a heck of a lot of money to play with I considered that he was doing an outstandingjob and I wanted him to know that I wanted to reward him in some way I could not give him what I thought he should be getting, but I wanted him to know that I appreciated what he was doing" After considering the witnesses' demeanor and in view of Edelman's demonstrat- ed untruthfulness as to other matters (infra, sec 11,D,1), i credit Bink 25 Goldner is not a corporate official 26 Bauer, who was called by Respondent, was not asked about this inci- dent, and Goldner, who was also called by Respondent, was not asked whether he overheard material parts of this conversation while in front of the office The men's room is next to Bauer's office, but conversations in that office cannot be heard from the men's room, at least if the door to the men's room is closed Evans testified that, after the conclusion of this con- versation, he found Goldner in the men's room with the door open and the light off Goldner testified that he did not recall standing in the men's room in the dark except when leaving it Although I credit Evans' testimony about seeing Goldner there, I regard the evidence as failing preponderantly to show that Goldner's presence was for the purpose of eavesdropping or con- cealment of prior eavesdropping 27 Her house had been selected because it was closest to the plant and the others because their lunch period was a half-hour instead of the hour afforded to the others.28 Evans gave blank union cards to these three individuals prior to the noon meeting, and blank cards to the others during the meeting. After this meeting was held, news of the office workers' union activity was all over the shop and they took no further pains to hide it. During the period here involved, Evans, Bink, Monitzer, Goldner, and Gaynor shared an open office about 40 by 100 feet. Evans' desk was immediately in front of the desk used by Goldner, Edelman's son-in-law; Bink's desk was immediately in front of Evans' desk. Attached to this large office space was Edelman's private office, where he spent about 60 percent of his time. Mrs. Edelman (Respondent's bookkeeper) and draftsman Parsons also had private of- fices attached to this large office space. The afternoon of May 27, Gaynor, Parsons, and Monit- zer returned signed cards to Evans while he was sitting at his desk. That same afternoon, Evans and Bink discussed the Union in the office while they were filling out their own cards, which, however, are dated May 28. Also that af- ternoon, Bauer told Evans, "I do not think I can join the Union because it is the same one that represents the shop." On an undisclosed date between May 27 and 31, Snedden returned a signed card to Evans. However, because Sned- den had filled the card out wrong, Evans returned it with a blank card to fill out again. Snedden never returned this card. During the rest of the week following the May 27 meet- ing, Bink made several telephone calls from his desk during which he stated that he favored a union, including one request for a copy of a union contract with another firm. Bink also openly discussed the Union with other office per- sonnel during working hours. Evans had telephone conver- sations at his desk with union representatives both before and after the May 27 meeting. On Saturday, May 31, Evans mailed to the Union all the cards signed by office personnel 29 The following Monday, June 2, Bauer and Snedden told Evans and Bink that Bauer and Snedden were not going to join the Union be- cause they were supervisors and ineligible. Bauer said that there were rumors in the shop about the office personnel's union activity "and the boss is going to hear about it." Evans said, "I have already sent the cards into the Union and I still believe we still need one." Bauer replied, "OK." Evans then asked Bauer whether he was "very happy" with his raise. Bauer replied no, that he was going to talk to Edelman about it that night, June 2 30 28 My finding in this sentence is based on Bink's testimony Snedden did not testify Monitzer testified on Respondent's behalf, but was not asked about this matter Evans testified that Bauer, Snedden, and Monitzer did not come to the meeting because "their lunch hour was different from ours " Bauer testified that he had never been invited to the meeting, and that his lunch period is "half an hour, but if I need more time, I can take it because I am on salary " He was not asked about the conversations before and after this meeting as to his execution of a union card On the basis of the witness- es' demeanor and the probabilities of the situation, I credit Bink 29 On May 27, while on the job, he had kept these cards in his shirt pocket, above which they protruded about an inch and a half Although Evans did not usually keep similar pieces of paper in his shirt pocket while on the fob, I do not infer that their mere appearance led management to suspect that these were union cards They are white and in no way superfi- cially distinctive 30 My findings in this paragraph are based on a composite of Evans' and ENCLOSURE CORPORATION 637 3. The layoffs As previously noted, between May 16 and 23 Edelman advised Bink that he was receiving a $27-a-week raise ret- roactive to May 9. About the same time, Edelman advised Evans that he was receiving a like raise, from $300 to $327 a week, likewise effective as of May 9. On the morning of Tuesday, June 3, as Evans walked into the office lobby at 8:15, Edelman opened the inside door and took him into the conference room, which is partitioned off from the rest of the office. Edelman then told him that he was being laid off because "The business is bad." Evans said that he had just checked the sales book and sales were at a normal level. Edelman said, "That is my decision and not yours." Evans mentioned that the previous week he and Bink had prepared a bid on the Aeronutronic job, and that just prior to that he had bid large jobs for Western Union and for NASA which he thought Respondent had an excellent chance of getting.31 Edelman did not want to discuss any of that. Evans said that he could and had done the jobs of others in the office who were junior to him, and asked .. why me?" Edelman replied, "That is it and that is the way it has to be." Evans asked Edelman for a layoff slip, which Edelman refused to give on the ground that giving such slips was not company policy. Evans said that former purchasing agent Palucci had received such a slip when laid off about September 1974 to make room for Edelman's son-in-law. Edelman replied that he did not know how to make one up. During the termination interview, Edelman gave Evans his paycheck (dated June 2 or 3) for the pay period ending on June 2, for which he would normally have been paid on June 5.32 Bink stayed home from work that day, June 3, because he was sick. At 9:30 a.m., Edelman telephoned Bink and asked how he was feeling. Bink replied that he could hardly talk. Edelman then said that he had really called Bink to tell him he was laid off. Bink asked why. Edelman replied, "We are having financial problems." Bink said, "What about Gary Parsons?" who, as noted supra, had been hired in November 1974 to do catalogue drafting work which Bink had no time for. Edelman testified at the hearing that when hiring Parsons he had told Bink that Parsons "was not going to be a replacement [for Bink] or a substitute or anything of this sort." However, Edelman told Bink when laying him off that Parsons "is staying in there." Edelman said that he would put Bink's check in the mail immedi- ately. Edelman told Bink not to come to the plant to pick up his personal effects, that Respondent would mail them to him. However, Bink said that he would have to return to the plant, because he had drafting tools and books there.33 Both Evans and Bink were paid for the week ending June 6, 4 days after their last day of work, and Bink also received an additional week's pay. Several weeks after their layoff, both of them also received their vacation pay. After Evans left, Edelman did his j ob. After Bink left, his job was done by Edelman, Parsons, and Monitzer. Parsons had previously spent practically all his time performing the drafting work for a new catalogue, at $13,000 or $14,000 a year; after Bink's layoff, Parsons spent most of his time performing the kind of drafting work which Bink had done. For about 8 months before Bink's layoff, Monitzer had been working full-time in quality control, at $165 a week; after Bink's layoff, Monitzer spent half his time per- forming the kind of drafting work which Bink had done. The record fails to show who, if anyone, did the quality control work which Monitzer then became unable to do. Edelman testified that when laying off Evans and Bink he did not discuss with either of them the possibility of reduc- ing their wages, which had been retroactively increased about 2 weeks earlier. He further testified that he did not discuss with either of them the possibility of part-time em- ployment.34 So far as the record shows, between Evans' and Bink's June 1975 layoff and the October 1975 hearing, Respon- dent did not lay off any of the production and mainte- nance employees. Both before and after the layoff of Evans and Bink, the production and maintenance employees were working overtime.35 After the layoffs, Respondent adver- tised for welders and formica workers. Edelman testified that he did not lay off any shop employees on June 3 be- cause there was already work in the shop to keep them busy through the end of the month. D. Analysis and Conclusions Bink's testimony Snedden did not testify Bauer testified on Respondent's behalf, but was not asked about this conversation Bink testified that this conversation occurred on Friday, May 30 In view of the reference to the May 31 mailing of the union cards, I accept Evans' testimony as to the June 2 date 31 As set forth in detail infra, Respondent obtained the Aeronutronic job a week later Edelman testified that Respondent also obtained "a" Western Union job in "the early spring" of 1975 but did not get the NASA job 32 My findings in this paragraph are based on Evans' testimony Edelman testified, inter aim, that he told Evans that Respondent was not getting the Aeronutronic job, as discussed infra, Evans and Bink had just prepared a new bid on that job, Respondent submitted a new bid (not the one prepared by Evans and Bink) the day after their layoff, and it was accepted a week after their layoff I do not credit Edelman's testimony that during the dis- charge interview he made what amounted to misrepresentation (which Ev- ans would have known to be such) about the Aeronutronic job Nor do I credit Edelman's further testimony that Evans said he did not need the job because he had an income of $12,000 a year, a conversation and an income which Evans credibly disclaimed In view of Edelman's inaccuracies in these respects, I credit his testimony about the interview only to the extent that such testimony was corroborated by Evans 1. The reasons for the layoffs The undisputed evidence establishes that in June 1973, May 1974, and the summer of 1974 Edelman made re- marks indicating that he did not care for the Union and 33 My findings as to the content of this conversation are based on Bink's testimony Edelman testified that he told Bink he was being laid off because Respondent had not obtained the Aeronutronic job Bink was not specifi- cally asked whether Edelman made this representation I find that he did not, since such a representation would have been inaccurate and Bink would have known this 34 Edelman testified that Bink also works for his own design consulting company, and that Edelman may have asked Bink to supply some drawings to Respondent "if we run into trouble" The record contains no other evi- dence as to this matter 35 My finding in this sentence is based on Evans' credible testimony that the employees told him this Respondent neither objected to this testimony on hearsay grounds, nor offered any evidence to the contrary See American Rubber Products Corporation v N L R B, 214 F 2d 47, 52 (C A 7, 1954), Rule 103(a)(1) Federal Rules of Evidence, and see cases cited infra, In 40 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would prefer that it not represent Respondent's production and maintenance employees. As previously indicated, I find that in May 1975, within 2 weeks of the layoffs, Edel- man told Bink that "Unions were the ruination of the country . . . Unions were the responsibility of the cost of living going up . . . the cost of everything was going up because of Unions." In contending that I should discredit this testimony by Bink regarding Edelman's remarks, and should instead credit Edelman's denial, Respondent relies heavily on the fact that in late September 1975 Bink signed a form "Additional Claim for Unemployment Benefits," submitted to the New Jersey Division of Unemployment and Disability Insurance, on which the unemployment claim agent had inserted the language "Lack of work" after the printed language, "I am not working for my last em- ployer because." Bink denied giving this reason to the claim agent, and such a belief, if Bink had entertained it, would not affect his rights either to unemployment com- pensation or to relief under the National Labor Relations Act.36 On the other hand, as shown infra, Edelman gave untruthful testimony, which was impeached partly on the basis of his own testimony elsewhere as well as by Evans' uncontradicted testimony, regarding the date on which Edelman found out that Respondent was no longer the low bidder on the Aeronutronic job-a date critical to Respondent's case regarding the reason for the layoffs. Be- cause Edelman thus gave untruthful testimony as to a dif- ferent and crucial matter, whereas any misstatement made by Bink in this unemployment compensation claim was as to an immaterial matter,37 because it is undenied that Edel- man had previously expressed distaste for the Union, and in view of the witnesses' demeanor, I have credited Bink as to the content of the May 1975 conversation. Further, I conclude that before laying off Evans and Bink, Edelman knew about their union activity. The cred- ited evidence, mostly direct and uncontradicted, estab- lishes that supervisors Bauer and Snedden and Edelman's son-in-law, Goldner, were well aware of Evans' distribu- tion of union authorization cards, the May 27 organiza- tional meeting attended by Evans and Bmk, and their union sympathies. Although still in Respondent's employ at the time of the hearing, Snedden did not testify, nor was his absence explained. Further, neither Bauer nor Goldner, both of whom testified for Respondent, was asked whether he reported Evans' and Bink's union activities to Edel- it would be natural for all three to make such re- man.3 ports, particularly Goldner (in view of his family relation- ship with Edelman) and Bauer, a personal friend of Edelman.39 On the basis of the probabilities of the situation 36 Nash v Florida Industrial Commission, 389 U S 235, N L R B v Ford Brothers, 170 F 2d 735, 739 (C A 6) 37 This was not Bink's first claim for unemployment compensation No contention is made that his previous claim or claims had averred that he was laid off for lack of work 38 Bink testified that, while union cards were being circulated , Goldner appeared to be following him around in an effort to eavesdrop While I believe Bink was sincere in believing that Goldner was trying to put him under surveillance, I credit Goldner's denial that this was his intention 39 About 5 or 6 months before the October 1975 hearing, the Bauers accompanied the Edelmans on a business trip from New Jersey to Boston Until 1974, Bauer and Edelman were partners in another business concern Bauer has been in Respondent's employ since its incorporation in 1964 and the absence of contrary testimony from Snedden, Bauer, or Goldner, I infer that they did make such re- ports.40 Moreover, circumstances in addition to the fore- going point to Edelman's knowledge. Edelman spent much of his time circulating in the plant or in the office area occupied by Evans and Bink. It is undenied that, while the union activity was taking place, Edelman was frequently in the plant in areas where Bink and others were temporarily working. Further, only 5 persons other than the Edelmans and their son-in-law worked in the office, among whose personnel the organizational activity was taking place; 2 shop stewards in the 40-employee plant unit had told Ev- ans how to get in touch with the Union; and after the May 27 meeting, news of the office personnel' s union activity was all over the shop. These circumstances alone indicate that Edelman found out about Evans' and Bink's union activity from family connections or otherwise.41 Moreover, Evans' September 1974 presentation and subsequent press- ing to Edelman of the office personnel's concerted request that they be compensated for move-related expenses, which petition initially annoyed Edelman although about December 1974 he did give the petitioners part of what they asked for, suggested Evans' subsequent leadership in the concerted union activity. Furthermore, Edelman's mid- May 1975 criticism of Unions to Bink, at a time when Bink and Evans were favorably discussing Unions with Supervi- sors Bauer and Snedden but before Evans obtained union authorization cards, indicates that even then Edelman was aware of at least Bink's interest in a Union. In view of all the foregoing circumstances and Edelman's demeanor, I find that, before laying off Evans and Bink, Edelman knew of their union activity, and I do not credit Edelman 's testi- mony otherwise 42 Moreover, I do not believe Edelman's testimony about why he decided to lay off Evans and Bink, whom he de- scribed as "valuable employees and friends." Edelman tes- tified that Bink was doing an "outstanding" job; that Ev- ans was also a highly desirable aide; and that Edelman was reluctant to lay them off, particularly Bink in view of his 8 years' service with Respondent. Edelman further testified that he would recall both of them when business conditions warranted such action. Edelman testified that the event which triggered his decision to lay off Bink and Evans on June 3 was a telephone call which Edelman allegedly re- ceived on Friday, May 30, from the purchasing agent of Aeronutronic Ford Corporation advising Edelman that fl Respondent was no longer the low bidder on an Aeronu- 40 Golden State Bottling Company, Inc, d/b/a Pepsi-Cola Bottling Compa- ny of Sacramento v NLRB , 414 U S 168, 174 (1973), NLRB v Sam Wallick and Sam K Schwalm, d/b/a Wallick and Schwalm Company, 198 F 2d 477, 483 (C A 3, 1952), International Union, United Automobile, Aero- space and Agricultural Implement Workers of America [Gyrodyne Company of America] v N L R B, 459 F 2d 1329, 1335-45 (C A D C, 1969) 41 Grismac Corporation, 205 NLRB 1108, 1117 (1973), enfd 492 F 2d 1247 (CA 7, 1974) 42 Respondent's internal telephone system is such that Edelman could have overheard Evans' and Bink's telephone conversations to and about the Union However, any such overhearing would almost certainly have been accidental , and I see no reason to suppose that it in fact occurred Bink's credible testimony shows that Edelman recorded some of the telephone conversations at the Pesauken plant However , there is no evidence that Edelman did this at the Pennsylvania plant ENCLOSURE CORPORATION 639 tronic job for which Respondent had submitted a May 15 bid of about $132,000. Edelman testified that he had been concerned about Respondent's poor cash-flow position, and that he decided to lower "costs" by laying off Bink and Evans "mostly because they were paid the highest salaries and these were the two people that I could get along with- out. It would mean that I would have to do most of the work myself." In this connection, Respondent offered into evidence exhibits, prepared from Respondent's business re- cords, relating to its cash-flow position. Such exhibits show that Respondent's May 1975 cash-flow position was worse than at any other time during the period covered by the exhibits (that is, October 1973-May 1974 and October 1974-May 1975). Edelman further testified that Aeronu- tronic had previously advised him by telephone on a date between May 15 and 23 (see infra, fn. 43) that Respondent was the low bidder on that job, that he usually reviewed wages every May, and that on the strength of this informa- tion from Aeronutronic he gave raises to a few persons, including the raises to Bink and Evans previously referred to, retroactively effective to May 9.43 However, the undisputed evidence, including other por- tions of Edelman's own testimony, is inconsistent with his testimony regarding the date (May 30) when he allegedly found out that Respondent was no longer the low bidder. Thus, Edelman testified that after the May 15 submission of the $132,000 bid and before he himself prepared the $106,000 bid (eventually accepted) which was submitted to Aeronutronic on June 4, Evans and Bink prepared a draft lower bid. Edelman's testimony in this respect corroborates Evans' testimony, which I credit by reason of such corrob- oration and Evans' demeanor, that about May 28 (infra, fn. 45) (the day after the employees began to sign union cards) Edelman said that he had bid the Aeronutronic job "way high," said that "they have called and told me that at this price I do not have a chance," and directed Evans and Bink to go to the conference room and prepare a new and lower bid, which they gave to Edelman about May 30.1 This testimony establishes that Edelman had found out several days before May 30 that Respondent was no longer the low bidder, and that his reaction at that time (a day or so before or after the card-signing activity began) was not to lay off Evans and Bink, but was to direct them to draw up another bid.45 43 Edelman testified that the decision to give these raises was made a week or two after May 9 Accordingly, if Edelman's testimony is to be accepted at full face value, he learned about Respondent 's low-bidder status before May 23 44 Edelman regarded this bid prepared by Evans and Bink as too low, and it was never submitted to the customer Edelman testified that the Evans- Bink bid was about $85,000 Evans testified that the bid could have been this low, but he doubted it, that it probably was in the low ninety thou- sands , and that it could have been as high as $100 ,000 Although Bink was not asked about the amount, I am inclined to believe Evans ' testimony that it was probably in the low ninety thousands In any event, the amount of the Evans-Bink bid is immaterial No conten- tion is made that their layoff was motivated by any alleged errors by them in preparing this bid Evans credibly denied Edelman's testimony that he pointed out to Evans the alleged errors in his bid Edelman testified without denial that he also pointed the matter out to Bink on an unspecified date 45 Bink testified that, on the afternoon of May 27, he and Evans were doing a lot of work in the conference room on a proposal It seems to me likely that this was the Aeronutronic proposal which Aeronutronic's call Moreover, Bink's layoff caused little or no improvement in Respondent's cash-flow position. The amounts which Respondent had to pay the employees who performed Bink's work after his layoff totaled nearly the same as Bink's salary.46 Moreover, following his layoff Bink re- ceived 2 weeks' pay for one-half day's work, plus 3 weeks' vacation pay. Furthermore, Respondent submitted no records regard- ing its cash-flow position after the layoffs, nor does it con- tend that its poor May 1975 cash-flow position just before the layoffs persisted thereafter. Indeed, Edelman's testimo- ny indicates that Respondent's cash-flow position im- proved when, a week after the layoffs, it obtained the Aeronutronic contract pursuant to a quotation made, the day after the layoffs, on a nonprofit basis but not contend- ed to involve a loss.47 Nonetheless, as of the October 1975 hearing Respondent had not yet carved out its announced intention to recall these admittedly valuable aides, even part-time or at a pay cut, as soon as business conditions permitted. Also, Respondent's counsel conceded at the hearing that its exhibits regarding its cash-flow position do not show Respondent's profit-and-loss situation even dur- ing the prelayoff periods which they cover;48 nor did Re- spondent submit any records showing its profit-and-loss situation at any relevant time. Cf. Wallick, supra, 198 F.2d at 483. For the foregoing reasons, I conclude that Evans' and Bink's leadership in the union activity was the real reason for their layoff. Although Respondent retained the three other office personnel who signed union cards and there is no evidence of any reprisals against them, none of them was as active on the Union's behalf as Evans and Bink. In any event, "a discriminatory motive, otherwise established, is not disproved by an employer's proof that it did not weed out all union adherents." Nachman Corp. v. N.L.R.B., 337 F.2d 421, 424 (C.A. 7, 1964). admittedly stimulated Edelman to request Evans and Bink to recalculate If this is true , Aeronutronic 's call to Edelman occurred no later than the morn- inp of May 27, before the card-circulation activity began 6 Bink was being paid $18,980 annually, not including a $1,404 -a-year raise which he had been told about 2 weeks before his layoff After his layoff, practically all of Parsons' $13,000 or $14,000 annual salary and about $4,290 of Monitzer's annual salary were paid for work formerly per- formed by Bink 47 Edelman testified in part as follows Q [By Respondent 's counsel] When you got the contract , why did you not bring Mr Bink and Mr Evans back on the payrolh A As I explained before , my reasoning in lowering my price was so that I could have enough money to continue and to operate the factory In other words, this is a no-profit deal Q Why did you enter into it9 A So that I would not have to lay off people in the factory and so that it would help cash flow Even though I made no profit, it was at least transferring money, which is what I needed at that point [Emphasis sup- plied ] 48 However, the exhibits reflect only Respondent 's obligations to its ven- dors and to persons on its payroll, Edelman credibly testified that they fail to reflect Respondent's obligations with respect to overhead, taxes, utilities, commissions, or rent (which he himself received as landlord and paid to the holder of a mortgage on the plant property) 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Whether Evans and Bink are employees protected by Section 7 of the Act a. The contention that they were confidential employees Respondent's contention that Evans and Bink were con- fidential employees is based solely on their access to the "labor factor," on which Respondent's quotations are largely based, and which includes both wages and other costs. I find that they were not confidential employees, be- cause mere access to personnel and confidential materials or files does not render an employee a confidential employ- ee excluded from the protection of the Act.49 b. The contention that they were supervisors I also reject as unmeritorious Respondent's contention that Bink and Evans were supervisors within the meaning of Section 2(11) of the Act at the time of their June 1975 layoff. I agree with Respondent that Bink exercised the authority, in Respondent's interest and in the use of inde- pendent judgment, effectively to recommend the hire of draftsman Trilly in 1969 and of draftsman Monitzer in late May 1974, about a year before Bink's layoff. I also agree with Respondent that the same is true with regard to Ev- ans' activity in connection with the hiring of secretary-re- ceptionists between September 1973 and late June 1974, about 11 months before Evans' layoff.50 However, the evi- dence fails to show that Bink and Evans participated in the hiring process after June 1974 and, further, shows that dur- ing this 1-year interval Respondent hired a draftsman with- out consulting Bink and at least one secretary-receptionist without consulting Evans. The prevailing rule appears to be that the existence rath- er than the exercise of a supervisory power determines su- pervisory status; but the power's exercise vel non consti- tutes evidence highly relevant to determining whether the power exists in fact. l On the record as a whole, including the claimants' year-long failure to exercise this power, I conclude that at the time of their layoff they no longer possessed it. Bink neither exercised nor is claimed to pos- sess hiring authority except with respect to a draftsman to act as his assistant. During 60 percent of Bink's 8-year ten- ure with Respondent, including the last 7 months, Bink had no assistant. Moreover, before Monitzer became Bink's assistant, Bink had had no assistant for 2 or 3 years; and nothing in the record suggests that he would likely have had occasion in the foreseeable future to interview applicants for a job as his assistant. Indeed, about 7 months before Bink's layoff, Edelman hired draftsman Parsons without consulting Bink, although Edelman testi- fied that Parsons would be working for Bink. As to Evans, Respondent gave no explanation for Evans' failure to par- ticipate in the hiring process with respect to secretary-re- ceptionists for many months prior to his layoff, even though at least one secretary-receptionist was hired during this period.52 Because Respondent would certainly know the reasons for Evans' omission and Evans might well be ignorant, I regard his unexplained omission from the hiring process for an appreciable period prior to his layoff as neg- ativing the continuation of his earlier power with respect to hiring. Because concomitant to their activity with respect to hir- ing, Bink's and Evans' activity with respect to wages, even if supervisory, would not render them supervisors at the time of their layoff. In any event, the employee's wages consisted as a practical matter of whatever he was willing to accept within the maximum limit set by Edelman. I do not regard Bink's and Evans' wage activity as involving the use of independent judgment. Respondent also contends that Evans responsibly direct- ed the secretary-receptionist, and that Bink responsibly directed Monitzer until October 1974 and Parsons thereaf- ter. I regard Evans' duties in this connection as being of a routine or clerical nature rather than as requiring indepen- dent,ludgment and, therefore, as failing to indicate that he is a supervisor. The credited evidence shows that Bink's responsibility with respect to Parsons was limited to cor- recting his spelling, manifestly a clerical and routine func- tion. I conclude that Bink's responsibility with respect to Monitzer before the latter's October 1974 transfer to Qual- ity Control was not supervisory in nature but, rather, was essentially that of a highly skilled draftsman with respect to a less skilled draftsman.5 In any event, even assuming such responsibility to be supervisory, it would not render Bink a supervisor at the time of his layoff, because Bink had not exercised such responsibility for 8 months, and the record fails to show that he was expected to exercise it again with- in the foreseeable future.54 Respondent's contention that Bink and Evans had the authority to reprimand employees is rejected on the ground that such reprimands were issued on Edelman' s instruc- tions and, therefore, did not involve the exercise of inde- pendent judgment. The contention that Bmk had certain discharge powers with respect to the draftsman is based solely on previously discredited evidence regarding Trilly's termination. 49 California Inspection Rating Bureau, 215 NLRB 780 (1974 ) (accounting clerks), Minneapolis-Moline Co , 85 NLRB 597, 601 ( 1949) (insurance clerk) 50 Southern Maryland Electric Cooperative , Inc, 220 NLRB 979 (1975) In so finding, I am impressed by the evidence that applicants who were inter- viewed solely by Evans or Bink were hired by Edelman without his ever seeing them No such circumstances are suggested by Boston After Dark, Inc, 210 NLRB 38, 40 ( 1974), cited by the General Counsel But see Musical Theatre Association, 221 NLRB 872 (1975) 51 N L R B v Beaver Meadow Creamery, Inc, 215 F 2d 247, 251 (C A 3), Capital Transit Company , 114 NLRB 617, 619 ( 1955), enfd 38 LRRM 2681, 31 LC ¶ 70,236 (C A D C ); Sasser Tractor Co, Inc , 179 NLRB 43, 49 (1969) 52 1 note that about September 1974 purchasing agent Palucci , who had been sharing the interviewing with Evans and the Edelmans , was replaced by the Edelmans' son-in-law 53 Material Service Division, General Dynamics Corp, 144 NLRB 908,911- 912 (1963) 54 Rembrandt Lamp Corporation , 128 NLRB 905, 907 ( 1960) (Woodson) Edelman testified that, when hiring Parson , Edelman intended to assign him to engineering work after he had completed the catalogue The record fails to show how long the catalogue work (still in progress at the time of the layoffs 7 months later) was expected to take Further, it is unclear whether Edelman intended to give Bink any authority-let alone supervisory author- ity-over Parsons when he began to do engineering work ENCLOSURE CORPORATION 3. The contention that they were managerial employees Finally, as to Respondent's contention that Evans and Bink are both managerial employees, I agree as to Evans but not as to Bink . Respondent's contention that Evans was a managerial employee because of his activity in con- nection with preparing price quotations is rejected, on the ground that as to catalogue prices he had no discretion, and as to other prices did not make any quotations to customers until he had obtained Edelman's approval. Vul- canized Rubber and Plastics Company, Inc., 129 NLRB 1256, 1262 (1961); E jer Co., 108 NLRB 1417, 1420 (1954); Brotherhood of Locomotive Firemen and Enginemen, 145 NLRB 1521, 1533 (1964); Bell Aerospace, a Division of Tex- tron, Inc., 219 NLRB 388 (1975). Respondent' s contention that Bink was a managerial employee because he prepared price quotations is rejected on the second ground set forth above, and on the further ground that he prepared such quotations only occasionally. Brotherhood of Locomotive Firemen, supra, 145 NLRB at 1527-28. Respondent's fur- ther contention that Evans was a managerial employee be- cause of his activity in connection with extending credit is rejected on the ground that Evans had no discretion in determining which customers should receive credit . Fairfax Family Fund, Inc., 195 NLRB 306, 306-307 (1972). Respondent's similar contention based on Evans' settle- ment of claims against carriers is rejected, on the ground that preparing such claims required little or no indepen- dent judgment, the largest claim shown by the record was $922, and Evans settled five claims at most during his 2- year tenure of duty with Respondent . Continental Insurance Company v. N. L. R. B., 409 F.2d 727, 730 (C.A. 2, 1969) cert. denied 396 U.S. 902 (1969). However, I agree with Respondent that Evans' activities in connection with negotiating contracts with customers rendered him a managerial employee. Aeronca, Inc., 221 NLRB 326 (1975) (estimators). 4. Conclusions In view of my finding that Evans was a managerial em- ployee when he was laid off, and in view of the General Counsel's concession that such a finding would require dis- missal of the complaint as to him, I conclude that his layoff did not violate the Act even though it was motivated by his union activities. In view of my finding that Bink's layoff was similarly motivated and that he was not a confidential employee, a supervisor, or a managerial employee, I con- clude that his layoff violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 641 1. Respondent is engaged in commerce within the mean- ing 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. Respondent laid off Stephen Evans and Arthur Bink on June 3, 1975, because of their activities on behalf of the Union. 4. Stephen Evans was not at the time of his layoff either a supervisor within the meaning of Section 2(11) of the Act, or a confidential employee. 5. Stephen Evans was a managerial employee at the time of his layoff. 6. Respondent did not violate the Act by laying off Ste- phen Evans. 7. Arthur Bink was not at the time of his layoff either a supervisor within the meaning of Section 2 (11) of the Act, a confidential employee , or a managerial employee. 8. Respondent violated Section 8(a)(3) and ( 1) of the Act by laying off Arthur Bink. 9. The unfair labor practice found in paragraph 8 affects commerce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom . Because the unfair labor practice found consists of the layoff of an employee because of his union activity , Board precedent calls for a broad order. SKRL Die Casting, Inc., 222 NLRB 85 (1976); Brom Machine and Foundry Co., 222 NLRB 74 (1976). Ac- cordingly, I shall recommend that Respondent be required to cease and desist from infringing on employee rights in any other manner. I shall also recommend that Respon- dent be required to offer Bink immediate reinstatement to the job from which he was unlawfully laid off or, in the event such job no longer exists , a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned, but for the discrimination against him, from the date of his layoff to the date of a valid offer of reinstatement, less his net earnings during this period, to be computed in the manner described in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, I shall recommend that Re- spondent be required to post appropriate notices. [Recommended Order omitted from publication.]