International Signal and Control Corp.

INTERNATIONAL SIGNAL AND CONTROL CORP. International Signal and Control Corp. and Interna- tional Brotherhood of Electrical Workers, Local 414 (AFL-CIO, CLC). Cases 4-CA-7671 and 4-RC- 11851 November 1, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On June 28, 1976, Administrative Law Judge John M. Dyer issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief,I and General Counsel filed a brief in answer to Respondent's exceptions and 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,2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein 4 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, as modified below, and hereby orders that the Respondent , Inter- national Signal and Control Corp., Lancaster, Penn- sylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph 1(d): "(d) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer Harold J. Scott, Jr., and Thomas Craig Frey immediate and full reinstatement to their for- mer jobs or, if their jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered by them by reason of their discriminatory discharges, in the man- ner set forth in the section herein above entitled `The Remedy.' " 3. Insert the following as paragraph 2(d) and relet- ter the subsequent paragraphs accordingly: 661 "(d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 4. Substitute the attached notice for that of the Administrative Law Judge. i Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A 3, 195 1)., We have carefully examined the record and find no basis for reversing his findings In adopting the Administrative Law Judge's findings, we do not rely on his comments regarding Respondent's ranking system in the penultimate paragraph of part II, E, of his Decision. Whatever system of ranking Re- spondent uses is irrelevant as long as it does not relate employees' job status or qualifications to the exercise or surrender of rights protected by the Act. 3In the absence of exceptions; we adopt pro forma the Administrative Law Judge's conclusion that certain of the 8(a)(1) allegations be dismissed 4 The discriminatory layoff of an employee because of his union activities goes to the very heart of the Act Consequently, as it is found that Respon- dent unlawfully laid off two employees, we shall issue a broad cease-and- desist order herein. N L.R.B v Entwistle Mfg. Co, 120 F.2d 532 (C.A. 4, 1941) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT lay off employees for engaging in union or concerted activities with other em- ployees for their mutual aid and protection. WE WILL offer Harold J. Scott, Jr., and Thomas Craig Frey immediate and full rein- statement to their former jobs and reimburse them for the pay they lost as a result of our ac- tion. WE WILL permanently withdraw and withhold recognition from, and completely disestablish, Pipeline, or any successor thereto, as a bargain- ing representative of any of our employees. WE WILL NOT misapply or discriminatorily en- force our no-solicitation rule and will rescind any warnings or discipline issued to employees because of alleged infractions of such rule. WE WILL NOT in any' other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed under Section 7 of the Act. INTERNATIONAL SIGNAL AND CONTROL CORP. 226 NLRB No. 97 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: International Brotherhood of Electrical Workers, Local 414, (AFL-CIO, CLC), herein called IBEW, or the Union, filed a charge on November 3, 1975,' later amended on January 14, 1976, against International Signal and Control Corp., herein called the Company or Respondent, alleging that Respon- dent had violated Section 8(a)(1), (2), and (3) of the Act. On January 30, 1976, the Acting Regional Director for Re- gion 4 of the Board issued an order consolidating cases, consolidated complaint, and notice of hearing. The com- plaint alleges in addition to the standard service and juris- dictional allegations that Respondent dominated or inter- fered with the formation or administration of an organization known as Pipeline in certain specific ways and thereby violated Section 8(a)(2) of the Act. The com- plaint also alleges that Respondent, through statements of President Guerin and Manufacturing Manager Tuley, and by discriminatorily enforcing a no-solicitation rule, vio- lated Section 8(a)(1) of the Act. It is further alleged that Respondent laid off employees Harold Scott and Craig Frey because of their support of and activity on behalf of the Union in violation of Section 8(a)(3). Respondent's timely answer admitted the jurisdictional and service allegations, admitted in essence the various allegations concerning domination of and interference with the formation and administration of Pipeline, but denied that Pipeline was a union within the meaning of the Act, stating it was a management tool for communication with employees. Respondent admitted that it laid off Scott and Frey, but denied that it violated the Act thereby or that it had violated the Act in regard to the 8(a)(1) allegations. The representation petition was filed on October 7 by the Union, and the parties agreement for consent election was approved by the Regional Office on October 23 and the election in a P and M unit was conducted on November 6. Of the approximate 179 eligible voters, 54 voted for IBEW and 111 against, with 1 ballot void and 2 ballots being challenged. On November 12, the Union filed objections to the election which were thereafter investigated by the Re- gional Office. On January 29, the Acting Regional Director filed his report on objections to election and notice of hear- ing, finding that the six union objections were not meritori- ous, but in view of the imminent issuance of a complaint on the charges filed by the Union which would allege un- fair labor practices occurring after the filing date of the petition, that the representation case would be consoli- dated with the unfair labor practice case for hearing be- cause the Board has traditionally set aside an_ election where such unfair labor practices are found. Accordingly, the order in this case provides that the representation case be severed and transferred to the Regional Director for further processing after my decision. 1 Unless specifically stated otherwise the events in this case took place in 1975 The hearing in this matter was held on March 23, 24, and 25, 1976, in Lancaster, Pennsylvania, and the parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. General Counsel and Respondent have filed briefs which have been fully considered. In regard to the allegations in this case, I have concluded that Pipeline does come within the Board's definition of a labor union and that Respondent by its domination and maintenance of the organization within the critical periods violated Section 8(a)(2) and (1) of the Act. I have also con- cluded that Respondent violated Section 8(a)(1) of the Act in some respects but not others and violated Section 8(a)(3) in the layoff of Scott and Frey because of the manner in which these employees were ranked by Respondent. On the entire record in this case, including both my eval- uation of the reliability of the witnesses based on the evi- dence received and my observation of their demeanor, and upon all the evidence received, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATIONS INVOLVED Respondent is a Delaware corporation engaged in the design and manufacture of communication and electronic systems and products with its plant in Lancaster, Pennsyl- vania, where during the past year Respondent sold and shipped to points directly outside the Commonwealth of Pennsylvania goods valued in excess of $50,000. Respondent admits and I find that it is engaged in com- merce within the meaning of Section (6) and (7) of the Act. Respondent admits and I find that International Broth- erhood of Electrical Workers, Local 414 (AFL-CIO, CLC), is a labor organization within the meaning of Section 2(5) of the Act. As stated previously Respondent denies that Pipeline is a labor organization within the meaning of Section 2(5) of the Act. On the evidence to be detailed below, I find that it is such an organization and comes within the Board's defi- nition. Section 2(5) of the Act includes in the definition of "la- bor organization" any organization, agency, committee, or plan "in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." As established by the evidence in this hearing, Pipeline consists of employee representatives elected by defined groups of employees on an annual basis. Therefore em- ployees do participate in Pipeline and it is an organization, agency, committee, or plan "in which employees partici- pate." Pipeline representatives canvassed employees for their gripes, problems, or suggestions on company time and then met privately in a room provided by Respondent where these gripes, problems, suggestions, etc., were formulated in an orderly manner by the head of Pipeline for presenta- tion to Respondent. After this preparation, the Pipeline INTERNATIONAL SIGNAL AND CONTROL CORP. representatives met with President Guerin, Personnel Man- ager Mary Ellen Kauffman, and other management repre- sentatives and the presentation was made and the items were discussed. According to a stipulation by the parties, Personnel Manager Kauffman makes notes at the meetings and prepares the minutes which are then typed, distributed to some of the personnel, and posted for the employees. According to testimony, and from minutes of Pipeline meetings, the topics discussed at the Pipeline meetings with Respondent representatives included : whether an employ- ee had been laid off or fired because he had signed a union authorization card ; inquiries about an increased vacation period, a management wage survey, a 3-day notice for lay- off, the cost-of-living,increase, night-shift premiums; ques- tions as to what the union election meant in regard to Pipe- line, what happens to a Pipeline representative who is laid off and whether his constituency would be reassigned or another representative elected, whether employees could get copies of written reprimands, why new employees were receiving more pay for the same job than older employees; requests to rearrange the break schedule and to do some- thing about the noise level in the cafeteria ; questions con- cerning cost-of-living and merit raises ; and complaints about conditions in restrooms. Respondent stated that actions were taken or answers were given on some of the issues, and that such were unila- teral actions which it decided upon after these issues were raised . While Respondent seeks to establish a hiatus be- tween the questions and corrective action, there is no ques- tion but what such actions were taken because these ques- tions were raised by the Pipeline committee. The subjects listed above clearly come within the defini- tion of- "grievances, . . . rates of pay, hours of employ- ment, or conditions of work," and I therefore conclude that Pipeline is a labor organization within the meaning of Sec- tion 2(5) of the Act? II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Respondent was founded by President Guerin and others as a small company which grew fairly rapidly into an organization of about 200 employees by the fall of 1975. The Company has several divisions and produced radios for commercial sale, and on government contracts for re- search and development produced radio-directed or con- trolled systems. Under President Guerin are Vice President Donald Pe- terson, the head of operations, and Carl Dreyer, vice presi- dent for finance and administration. James Tuley is in the next rank of administration as the manager of manufacture and started in that position with Respondent on July 28, 1975. Reporting to him are the manager of manufacturing engineering, the production superintendent, and the man- 2 Respondent cited sunnen Products Inc, 189 NLRB 826 (1971), in sup- port of its contention that Pipeline was not a labor organization That case found the organization therein was a labor organization, but the complaint was dismissed because of Sec 10(b). See also Erie Marine Inc, Division of Litton Industries, 192 NLRB 793 (1971) 663 ager of facilities engineering. Somewhere,in this level of administration is Personnel Manager Mary Ellen Kauff- man. At the next level of supervision are the foremen of the individual departments. Vice President Peterson testified that in early 1975 he started working on a system to rank employees on their worth to the Company and began by gathering informa- tion on the employees as to their training background, the number of years of experience they had with the Company, and their total experience. Peterson said his attempt to es- tablish a ranking system did not prove out and, when Tu- ley was being interviewed for his position in latter June, Peterson discussed with him the problem of getting up a ranking system for Respondent's employees. After Tuley started near the end of July, he got into the ranking prob- lem and, working with supervisors such as Gary Jacobs, devised a system which was later approved by Peterson. Tuley testified that the ranking was the sum of a ranking in five major areas which consisted of: (1) job performance, under which were subtopics of quality, quantity, job knowledge, and housekeeping care; (2) length of service with Respondent; (3) schooling, training, and experience; (4) growth- potential; and (5) attitude and association with others. It was noted that this latter category could have a minus number. Respondent's Exhibit 1 contains a ranking of 16 employ- ees who were in Gary Jacobs' department. In almost all cases there are two figures, giving a range on the final rank- ing. Peterson testified he felt the figures given to him by Tuley and Jacobs were comparatively lower than the fig- ures from other departments based on his knowledge of the plant personnel so he added the higher figure. The ranking of the 16 employees is from a 3-4 to an 8-9. Tuley testified that this ranking was finished in August and he had no knowledge ,of a layoff coming up. Towards the last of September, Tuley said he did a man- power loading chart to measure the amount of contractual work left for Respondent with the manpower needed as against the manpower available at the Company. He testi- fied that the commercial contracts had decreased to a point that the chart showed an excess and that a layoff was nec- essary. General Counsel does not challenge the necessity for a layoff at that point. On October 1 Respondent laid off 20 employees including Scott and Frey. None of the employees was notified as to what their ranking was. Pauline Trostle testified that she contacted the Union, set up the first meeting, and after that talked to employees concerning the Union, but did not solicit authorization cards or speak to employees at their work stations ; she said she talked to employees at lunchtime, breaks, and while in the ladies room. Scott testified that the union campaign began around the first week of July and that he and Frey distributed union literature at the plant gates and spoke to people and went to IBEW meetings . Scott denied soliciting employees to sign authorization cards at work, but stated he had IBEW pamphlets and authorization cards on his desk and employees came by and took them. The testimony established that supervision had been loose or lax in the department where Scott and Frey worked before Gary Jacobs took over in 1975. Jacobs talked to them and ' others concerning taking extensive 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lunch periods or breaks and about people gathering and talking in the small screenroom where Scott and Frey worked. In response to the union campaign and pamphlets, Com- pany President Guerin spoke to the employees concerning the Union on three or four occasions . The first time was at the quarterly meeting held sometime in July. Although Scott and Frey talked about receiving merit raises in July, the testimony was that at that meeting a cost-of -living raise of 11 cents per hour was announced to all employees. As stated above the umon campaign continued after the layoff in which Scott and Frey were included and culminated in the election noted above. B. Pipeline President Guerin stated that he organized Pipeline some 4 years ago when he felt that there was not enough time at the quarterly meetings to hear from all the employees and that it was difficult if not impossible to meet with all of the employees because of their number. Guerin and Personnel Manager Mary Ellen Kauffman set up Pipeline so that each 20 employees would elect a representative and the representatives after caucusing would meet with him and other management representatives on a monthly basis. He testified that working conditions were discussed as they affected company policy. In an affidavit Guerin stated that at the monthly meetings they discussed working condi- tions, salary procedures, and almost every aspect of the business and that Pipeline was structured to have the same effect as a union . Guerin stated that the Company looked into the items mentioned at the monthly meetings and es- tablished antinoise procedures in the cafeteria , installed microwave ovens, and checked on night-shift differential rates and raised the amount paid. Pipeline meetings were held on company property dur- ing worktime and the representatives were paid for the time they spent interviewing employees as to their sugges- tions or complaints, the time when the representatives cau- cused, and the time for their meeting with management. As noted above, I have found that Pipeline fits the Board's definition of a labor organization. At the begin- ning of the hearing Respondent agreed that it had formu- lated and run Pipeline , but considered it a management procedure in the same' way as a giant suggestion box. Re- spondent agreed that, if Pipeline was a labor organization within the Board's definition, then what it did brought it within the framework of an 8(a)(2) violation, since it had structured, controlled, paid for, and in essence ran Pipe- line. Both on the admissions of Respondent and on the facts found, I- conclude that Respondent violated Section 8(a)(2) and (1) of the Act because Pipeline is a labor organization which is dominated and controlled by Respondent and continued to be dominated and controlled by Respondent during the 10(b) period and through the date of the elec- tion. Therefore I will recommend that Pipeline be dises- tablished. Further, it is sufficient for the purpose of the representation case that this organization was in existence during the time preceding the election and based on this violation I would recommend that the election be set aside. C. Guerin Speeches The complaint alleges that Guerin , in a speech made around October 7, threatened to cut back production jobs if the Union won the election. The testimony offered by General Counsel was in conflict as to what was said and when. All parties recalled and Guerin acknowledges that he did make one speech which he started off by saying that he was glad his attorney was not there because the attorney might have a heart attack if he heard what Guerin was going to say. The most consistent version of Guerin's speech, according to General Counsel's witnesses, was that if the Union got in and Guerin could not afford the Union's wages he would turn the Company into a research and development company. In essence this would mean that the production line jobs performed by a lot of the technicians would be abolished. Guerin testified that in the "heart attack" speech he told the employees that the profitable part of the Company was in the engineering and research contracts and they were experiencing some losses under the production contracts. He said that if there was anything which would further complicate the profit picture in the production end of the Company-and the umon propaganda during this time talked about wages of $5 .02 an hour, which was consider- ably more than what he was paying-and he found himself in a position where he could not pay what the Union de- manded, he would have to cut loose the unprofitable'part of the Company and go solely into that which was produc- ing a profit. During his testimony he acknowledged that he did not know whether the people in the production end could be transferred to the engineering-oriented jobs that would be in research and development. He acknowledged that he told the employees he did not feel the Union was appropriate for the Company because of the size of Re- spondent and its management and its philosophy and its newness in the market and that he felt unions were more attuned to larger and more established corporations. In assessing the testimony and noting some of the con- flicts, I do not feel that General Counsel has sustained complaint allegation 6(a) by substantive evidence. I be- lieve, as Guerin testified, he qualified his statement to the extent that, if they were faced with a situation where they were not able to make a profit in the production end due to union demands, they would then be forced to consider dropping the production end of the business and go solely into research and development. Accordingly I will dismiss complaint allegation 6(a). D. Tuley's Statement and the No -Solicitation Rule The complaint alleges that Tuley violated Section 8(a)(1) of the Act by warning employee organizers that action would be taken against them if they did not stop asking employees to support the Union. The complaint further alleges that Respondent permitted Pipeline representatives to hold meetings with employees on Respondent 's time and premises while preventing and discouraging union sym- pathizers from engaging in similar activities and that such discriminatory treatment was improper under Respon- dent's no-solicitation rule and that both actions violated Section 8(a)(1) of the Act. INTERNATIONAL SIGNAL AND CONTROL CORP. 665 Scott and Frey testified that Jacobs told them on one or two occasions not to talk about the Union to other employ- ees during worktime and not to solicit for the Union. Supervisor Jacobs testified that Scott and Frey violated the Company's no-solicitation rule during work hours by soliciting at times other than lunch or break time. His testi- mony was self-contradictory in that he said that he spoke to them once about it and stated later that he had spoken to them before about it, and finally said that he spoke to them approximately three times about breaking the rules. He acknowledged that they were average with the other employees in regard to overextending lunch and break pe- riods. As to the no-solicitation rule, Supervisor Jacobs said that he had never read it, but that the subject was discussed in supervisory meetings only with relationship to union orga- nizational activity. He said that he understood the rule to forbid employees "to engage the attention of a fellow em- ployee, to try to coerce that employee to sign a card, to point out the benefits of the Union, for example." Asked if he meant that prounion talking on company time was for- bidden by this rule he said , "On Company time, yes, sir." Employee Pauline Trostle was spoken to by her supervi- sor, Ron Roschel, who said that he had heard she was trying to organize a union and was not permitted to talk about it during work hours. A few days later she was called back by Roschel who said he heard she was still trying to organize a union and if she continued she would be given a written warning and if she continued thereafter, a 3-day layoff, and if she persisted she would be terminated. Tros- tle was called in a third time and was given a written memo which noted her prior verbal warnings and stated that Su- pervisor Roschel had received complaints from employees about being bothered by Trostle concerning the Union while they were in the restroom and that those employees felt harassed and that this was a final written warning to her. Shortly thereafter Trostle, Scott, and Frey were called to Manager of Manufacturing Tuley's office where Personnel Manager Kauffman and Supervisors Roschel and Jacobs were present. Scott, Frey, and Trostle agreed that Tuley introduced himself, said he had been told threatening tele- phone calls were being made to employees , and told these three employees to stop it or the Company would bring a civil suit. Further they were to stop soliciting in the build- ing at any time and to stay at their work stations. They were told to go back to work and had no opportunity to defend themselves or make any remarks. Tuley testified that some of the supervisors told him that some employees were complaining that other employees were away from their work stations during work hours for long periods of time and some of the employees were being harassed on company property and elsewhere and the su- pervisors asked him to take some action . He told the super- visors to bring to the personnel office the employees they felt were causing the problems. Tuley said he apologized to Trostle, Scott, and Frey for meeting them in this circum- stance, but said that he felt some of the employees were being harassed at night by telephone calls and other em- ployees were being harassed in restrooms during working hours. He testified that: "I said that this just had to stop, that there should be no harassment , solicitation, during working hours." He continued that if the employees were harassed at home and so desired, that the Company would support them in a civil suit. Having previously found that Respondent violated Sec- tion 8(a)(2) of the Act by dominating and supporting Pipe- line, which I have found to be a labor organization, and that Respondent allowed Pipeline representatives to talk to employees on company time and premises , and further finding that Respondent sought to discourage not only so- licitation for the Union but also sought to discourage con- versation or talking about the Union, it appears that Re- spondent is discriminatorily enforcing its no -solicitation rule and in fact enforcing the rule where there was no solic- itation but only conversation. The word solicitation is used fairly loosely in a number of areas. Here "solicitation" is defined by Supervisor Ja- cobs as meaning talking favorably for a union. Solicitation ordinarily means that someone is asking an employee to join union by signing a union authorization card ; similarly, charitable solicitation means asking someone to contribute to a charitable organization or in the commercial context exhibiting a product or a picture of a product and asking the person to buy it. That is not the same thing as talking about a subject. Tuley's talk to Trostle, Scott, and Frey did not occur after an investigation which led Respondent to believe they were guilty of violating company rules , but rather was a blanket warning to them not to "harass" employees by telephone calls to their homes or by solicitation during working hours. Tuley's definition of harassment included a person saying something to another person which the sec- ond person did not want to listen to or which irritated that individual. While Tuley may have thought he was justified in his comments from what his supervisors allegedly told him, it would appear from the context that Tuley overspoke him- self, since the implicit accusations were not founded on knowledge of the guilt or innocence of the three employees on everything of which he accused them, and they were discriminatorily inhibited by his speech from exercising their Section 7 rights. I conclude and find that Tuley's speech to the employees and Respondent's discriminatory application of the no-so- licitation rule both violate Section 8(a)(l) of the Act. E. The Rankings and Layoff of Scott and Frey The subjects which Respondent stated went into the ranking of employees in 1975 consist mainly of subjective considerations and, as it pertained to Scott and Frey, these considerations were determined principally by Supervisor Jacobs in consultation with Tuley. Tuley, due to his recent employment with Respondent and lack of personal knowl- edge of the employees, relied on the supervisor's recom- mendations . The subjective considerations had to do with job performance, quality, knowledge of the job, and the supervisor's estimation of what care employees took of the equipment and their housekeeping, their growth potential, and their attitude in association with others. The only ob- jective criteria used were the length of time with the Com- 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany and what schooling, training, and prior experience the employees had. There is no question but that Foreman Jacobs knew of the union activities and proclivities of Scott and Frey and that he had warned them as noted above. Although Tuley denied that he knew anything about Scott and Frey's union activities or proclivities, it is clear, as he later admitted, that he did know something of them since he had warned the employees concerning such activities. Jacobs testified that in making up the rankings of Scott and Frey he considered their job performance, their failure to adhere to lunch and break schedules, which he first testi- fied was one of their worst offenses, and what he consid- ered their violations of Respondent's no-solicitation rule. Jacobs was asked whether their deviation from this no- solicitation rule was the, worst of their deviations from company policy and said no. He-was then shown a copy of his affidavit in which he stated: "Craig Frey was laid off on the basis of ranking, quality of work in general, disregard for company policy in regard to his activities on behalf of the Union on company time." This statement according to Jacobs also applied to Scott. In the affidavit there is no mention of violations of company rules on breaks or lunch schedules. Later during his testimony Jacobs admitted that Scott and Frey were no worse on the lunch and break pe- riods than any of the other employees in that department. Although maintaining that the job performance of the two was the prime consideration, in their rankmg, Jacobs ad- mitted he took the no-solicitation violation, as he saw it, into account in ranking both men. Jacobs referred to the quality of their work as deteriorat- ing, but based his statement only on the repair work done by Scott and Frey on some nine radios which were re- turned to Respondent from two to four times within a short period of time for more repairs. Examination of the repair sheets and instructions on some 10 radios (Resp. Exh. 3) showed that not just Scott and Frey worked on them, but that others, including Clark and persons with the initials of B.S., B.M., G.H., and R.L., worked on them and that these radios were inspected by some of these individuals before being returned to the own- ers. There was further testimony by Scott and Frey that they were told there were design deficiencies in these radios which caused performance problems and it was almost im- possible to fix them. Jacobs admitted that there were tech- nological problems with these radios, which I take to mean that either the design of the radios or the method in which they were manufactured contributed to their deficiencies and required their continued return by customers. It would seem therefore that Jacobs' downrating of Scott and Frey in regard to their work, based on these 10 radios, would not be a valid gauge of their job performance, since the radios were technically deficient. Tuley, having been with Respondent just a short period of time when these rankings were prepared, depended on Jacobs for his judg- ment of the men and in this case the subjective judgment on Scott and Frey. Since I have previously found that Respondent violated the Act by its treatment of Scott and Frey in regard to the no-solicitation rule, which Jacobs interpreted to mean as forbidding prounion talk, it is evident that -basing their ranking in part on this "rule violation" results in an im- proper ranking of them. Further, where Jacobs downrated their job quality and used as a guide the work they did on these 10 radios, this again would appear to be an improper factor since the radios had technological deficiencies. Thus I cannot credit Jacobs when he said that, without the rule violations, Scott and Frey still would have been the em- ployees to be laid off. Scott and Frey testified that their educational back- grounds were superior to some of the employees who re- mained with Respondent and in some cases their experi- ence with the Company, "seniority," was-more than some of the employees who were retained by Respondent. It is clear from the above analysis that the rankings given to Scott and Frey were improperly influenced and errone- ously based on some factors considered by Jacobs and Tu- ley and therefore that their rankings were not valid- Since the employees were laid off in accordance with their rank- ing, it becomes evident that Scott and Frey's rankings were lower than they should have been and that their layoff was caused by factors which violated the Act. Therefore I con- clude and find that Scott and Frey were improperly laid off and that, to remedy this violation of the Act, they must be reinstated. If Respondent continues to use a ranking system of its employees, Scott and Frey must be properly ranked by Respondent on factors which would normally be consid- ered and not based -on any bias because of their union activities or proclivities. The ranking system which Re- spondent states-it is trying to make more objective should be as objective as possible, particularly where the question of knowledge of employee union activities is concerned and Respondent has an animus towards the Union. I conclude and find that Respondent violated Section 8(a)(3) and (1) of the Act by its ranking of employees Scott and Frey and by laying them off in accordance with such ranking. III. THE REPRESENTATION PROCEEDING Having found above that Respondent violated Section 8(a)(1) and (2) of the Act both before and after the petition in the representation case was filed, I recommend that the election held by the Regional Director on November 6, 1975, be set aside and a new election held when the effects of the unfair labor practices found have been remedied. I hereby sever Case 4-RC-11851 from this proceeding and return it to the Region for further processing. ' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, and therein found to constitute unfair labor practices in viola- tion of Section 8(a)(1), (2), and (3) of the Act, occurring in connection with Respondent' s busines's operations as set forth above in section I, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. INTERNATIONAL SIGNAL AND CONTROL CORP. 667 V. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I shall recommend that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act as fol- lows: Having found that Respondent discnmmatorily ranked and thereafter laid off Harold J. Scott, Jr., and Thomas Craig Frey in October 1975 and did not thereafter offer them reinstatement, I recommend that Respondent offer them immediate and full reinstatement to their former po- sitions or, if such positions have been abolished or changed in Respondent's operations, then to any substantially simi- lar position without prejudice to their seniority or other rights and privileges and that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's discriminatory termination by payment to them of a sum equal to that which each would have nor- mally received as wages from October 1, 1975, until Re- spondent offers them reinstatement, less any net earnings for the interim. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I further recommend that Respondent make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpay due them and any other rights they might be enti- tled to receive. Having found that Respondent structured, dominated, and controlled the organization known as "Pipeline," I rec- ommend that Respondent permanently withdraw and withhold all recognition from and completely disestablish Pipeline, or any successor thereto, as a bargaining repre- sentative of its employees. Having further found that Respondent misapplied and discriminatorily applied its no-solicitation rule and gave verbal and written warnings to its employees for their al- leged infractions of that rule, I recommend that Respon- dent remove from its personnel files and destroy any mem- oranda or notice of warning given to its employees regarding such alleged infractions and that Respondent ap- ply such rule solely to solicitations in an evenhanded man- ner if such rule is continued by Respondent. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent violated Section 8(a)(1) and (3) of the Act by its discriminatory termination of Harold J. Scott, Jr., and Thomas Craig Frey because they engaged in union and concerted activities with other employees for the pur- pose of mutual aid and protection. 3. Respondent violated Section 8(a)(1) and (2) of the Act by interfering with, dominating, and controlling Pipe- line. 4. Respondent violated Section 8(a)(1) of the Act by misapplying and discriminatorily enforcing its no-solicita- tion rule. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The Respondent, International Signal and Control Corp., Lancaster, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily ranking and terminating employees because they engage in union or concerted activities with other employees for their mutual aid and protection. (b) Misapplying and discriminatonly enforcing its no- solicitation rule. (c) Dominating and controlling the administration of Pipeline and otherwise interfering with the representation of its employees through a labor organization of their own choosing. (d) In the same or any similar manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make Harold J. Scott, Jr., and Thomas Craig Frey whole for the loss of pay they suffered by reason of Re- spondent's discrimination against them in accordance with the recommendations set forth in the section of this Deci- sion entitled "The Remedy." (b) Withdraw all recognition from Pipeline and com- pletely disestablish it, or any successor thereto, as a bar- gaining representative of its employees. (c) Remove from its personnel files any memoranda or warnings given its employees for alleged infractions of its no-solicitation rule in accordance with the recommenda- tions set forth in the section of this Decision entitled "The Remedy." (d) Post at its plants, warehouses, and offices copies of the attached notice marked "Appendix." 4 Copies of said notices, on forms provided by the Regional Director for Region 4, after being duly signed by an authorized repre- sentative of Respondent, shall be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- 3 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 4In 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 " 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent 'to insure that said notices are not altered , defaced, or IT IS ORDERED that complaint allegation 6(a) be dismissed. covered by any other material. [It is further ordered that Case 4-RC-11851 be severed (e) Notify the Regional Director for Region 4, in writ- from this proceeding and remanded to the Regional Direc- ing, within 20 days from the date of this Order, what steps for for further action.] Resr ondent has taken to comply herewith.