Ajax Magnethernic Corp.

AJAX MAGNETHERMIC CORPORATION 477 Ajax Magnethernic Corporation and Robert Keith Hall, Doris Beachler, and Kenneth N. Shaw. Cases 8-CA-9412, 8-CA-9439, and 8-CA-9440 December 21, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On June 30, 1976, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting-brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief' and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 In making this determination, we disagree with our dissenting colleague's view that Robert Keith Hall was not discriminatorily discharged. The record is replete with evidence indicating that, prior to Re- spondent's learning that Hall held another full-time job, Hall's position with Respondent had become precarious because of Hall's union activities. Against this background,' the conclusion is inescapable that Hall's discharge was motivated, at least in part, by his union activities and was thus violative of Section 8(a)(3) and (1) of the Act 4 Nor are we persuaded otherwise by the testimony of Respondent's vice president for manufacturing, Milton Schaefer,' and industrial relations manager, David Holmquist, concerning a prior termination as proof of the existence of a rule against employees holding two full-time jobs. Both referred to an employee terminated in 1969.5 Hall, however, was not hired until 1973. Inasmuch as the record indicates that Respondent's purported policy was unwritten and was never formally communicated to employees until after Hall's discharge, we agree with the Respondent's request for oral argument is hereby denied inasmuch as the record and briefs adequately set forth the positions of the parties. 2 We construe the Administrative Law Judge's discussion relative to the complaint's various 8(a)(1) allegations to be findings that Respondent interfered with, restrained, and coerced employees in violation of Sec. 8(a)(1). Encompassed thereby is Respondent 's August 8, 1975, letter to employees, which we find, in the total circumstances -of this case, tended to interfere with employees' Sec. 7 rights in violation of Sec . 8(a)(l). -i In a letter dated September 11, 1976, Respondent advised the Board that diseriminatee Robert Keith Hall was ' offered reemployment on August 24, 1976. Respondent's offer was subject to the condition that Hall comply with Respondent's purported policy, assertedly published to all employees 227 NLRB No. 63 Administrative Law Judge that Respondent's reliance upon it was a pretext for the termination. ORDER Pursuant to Section -10(c) of the National Relations Act, as amended, , the National Labor Relations Board adopts as its Order the recommended Order, of the Administrative Law Judge and hereby orders that the Respondent, Ajax Magnethermic Corporation, Warren, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the- said recommended Order. MEMBER WALTHER, dissenting in part: I disagree with the affirmance by my colleagues of the Administrative Law Judge's finding that Respon- dent discriminatorily discharged Robert Keith Hall. Hall applied to Respondent for a job on January 10, 1973. In his application he failed to' reveal that he was already employed by another company, Copper- weld Steel Company, on a full-time basis from 11 p.m. to 7 a.m. On January 23, 1973, he was hired by Respondent for the 8 a.m.-to-4:30 p.m. shift. Respon- dent was unaware of Hall's employment by Copper- weld Steel. On or about August 11, 1975, Hall's supervisor, Brodowski, learned from a chance remark of his secretary that Hall had a full-time job at Copperweld Steel. Brodowski checked Hall's person- nel record which revealed nothing about Hall's employment at Copperweld Steel. Brodowski then consulted with Milton Schaefer, Respondent's vice president for manufacturing. After verifying that Hall was also employed full time elsewhere, Schaefer told Brodowski to terminate Hall because of Respon- dent's policy against permitting employees to hold two full-time jobs. Hall was terminated on August 15, 1975. The Administrative- Law Judge concluded that Hall, a leading union proponent known to be such by Respondent, was discharged because of Respon- dent's hostility to the unionization of its employees, and that the asserted reason-Hall's failure to reveal his employment with Copperweld Steel on his em- ployment application-was a pretext. The Administrative Law Judge rejected Respon- dent's explanation that it had a policy against on February 23, 1976, that "no Ajax Magnethermic employee may be employed in another full-time job" According to Respondent's letter, Hall reported for work on September 7, 1976, but advised Respondent's director of industrial relations that he would not relinquish his other full-time job at Copperweld Steel Company which he has held since 1566 If Respondent's assertions are corroborated during the compliance stage of this proceeding, then the Administrative Law Judge's recommended Order shall be amended to terminate the make-whole remedy relative to Hall as of September 7, 1976. 4 See The Youngstown' Osteopathic Hospital Association, 224 NLRB 574 (1976), where this same. panel agreed that if a discharge is partly in reprisal for protected concerted activity it is unlawful. 5 Both cited the termination of employee Robert Miller 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees holding two full-time jobs on the ground that the policy had not been clearly communicated to employees by way of memoranda or postings on the employee bulletin board, other employees had in the past held second jobs, at least on a part-time basis, and Hall was refused the option of choosing between a job, with Respondent and Copperweld Steel. In order to find that no policy against the holding of two full-time jobs existed, the Administrative Law Judge had to discredit the uncontradicted testimony to the contrary- of President John Logan, Vice President for Manufacturing Milton W. Schaefer, Industrial Relations Manager David K. Holmquist, and Supervisor Arthur Brodowski. All these witnesses testified that the policy had existed for years and was well known to them, but did not exist in writing just as other commonsense company policies were not in writing. The fact that the policy had not been reduced to writing and posted on employee bulletin boards is not sufficient to overcome the categorical uncontra- dicted testimony of the above witnesses that the policy did in fact exist. Indeed, a policy against employing individuals who would perforce work 16 hours out of every 24 hours would seem to be a commonsense requirement for any sort of industrial establishment. Industrial Relations Manager Holmquist testified that in 1969 another employee had been terminated for violation of the no two full-time jobs rule. There is no testimony of disparate enforcement of the rule. Respondent does tolerate some part-time employ- ment elsewhere on the part of its full-time employees providing the part-time employment does not inter- fere with the work for Respondent. But part-time employment of a few hours a week is not the equivalent of full-time employment and is not evi- dence of disparate enforcement. Finally, I can perceive no evidence of discriminatory motivation in the circumstance that Respondent did, not give Hall the choice of work for- either Copperweld Steel or Respondent. Hall, from Respondent's point of view, had falsified his employment application and would not have, been hired if he had revealed his full-time employment with Copperweld Steel. It was not inappropriate therefore to discharge him for his misconduct rather than, as implied by the Adminis- trative Law Judge, to treat him as if he had done nothing wrong and give him the choice of retaining one or the other of his two full-time jobs. Although Hall was a leader in the employee organizing efforts and Respondent was opposed to the organization of its employees, Hall was not thereby insulated from discharge for a nondiscrimi- natory reason even if Respondent was happy to terminate him. Long ago in Klate Holt Company, 161 NLRB 1606, 1612 (1966), the Board said: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome concerted activities does not, of itself, establish the unlawfulness of a subsequent dis- charge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful. Respondent has established by uncontradicted testimony including evidence of a prior termination that it has a rule against, the employment of any individual who has full-time employment elsewhere and that Respondent discharged, Hall pursuant to that rule.- Accordingly, in the absence of evidence that the Employer had condoned Hall's holding two jobs, I would not find that the discharge violated Section 8(a)(3) and (1) of the Act. Neither would I find that Respondent's letter of August 8, 1975, was unlawful. The letter written by Respondent's president and addressed to employees first discussed the fact' than an English company was considering purchasing Respondent, but that the purchase if effected would not result in any change in management or operations. The letter then men- tioned the organizational campaign of the Steelwork- ers and made the following comment: You, of course, have the legal right to consider membership in a Union if your job is one that may be covered by a union. Your officers and directors are firmly convinced that its relationship with the office and technical employees is of such a nature that any problems that exist can best be solved between Management and such employees with- out the interference of a third party. Because of the nature of our work we must employ highly skilled and intelligent personnel and-we sincerely believe such employees are better served by direct contact than through a union. The majority finds that this letter, in "the total circumstances of this case, tended to interfere with employees' Sec. 7 rights in violation of Sec. 8(a)(1)." I disagree. To me the letter, whether considered separately or in context, is in the clearest sense an expression of "views, argument, or opinion" protect- ed by Section 8(c) of the Act. I therefore dissent from the finding of an 8(a)(1) violation based on the letter. AJAX MAGNETHERMIC CORPORATION 479 DECISION STATEMENT OF TILE CASE IvAR ' H. PETERSON, Administrative Law Judge : I heard this case in` Warren,-Ohio, on February 9, 10, and 11, 1976, based on charges filed by three individuals, Robert Keith Hall and-Dons -Beachler on August 27 and Kenneth N. Shaw on -September- 8, 1975. The complaint was issued by -the Regional Director for Region 8 on December 2. In substance, it alleged that Respondent had violated Section 8(a)(1) and (3) of thin= Act -through various named agents and supervisors, in that it had questioned and threatened employees concerning their union membership, activities, or sympathies and had discharged the Charging Parties on specified dates in August because it believed they had joined or assisted the Union, United Steelworkers of America, or because they engaged in protected concerted activities for the purposes ,of collective bargaining or other mutual aid or protection. In its answer, dated December 10, Respondent admitted certain jurisdictional allegations and that it , had discharged Hall but denied that it had dis- charged Beachler or Shaw; it denied all other allegations of the complaint and, byway of affirmative defense; alleged that--Shaw and Beachler were -terminated, because of a decline in business activity and that-both were in layoff status at the time they filed charges. With respect to the charge relating to Hall; Respondent= alleged that he was terminated because he made a misrepresentation ,of a material fact on his application for employment in that, from January 22,1973, until his discharge, he continued to retain another full-time- job;; contrary to Respondent's policy. _ Upon the entire-record in the proceeding, including my observation of the -witnesses, as they testified and consider- ation of the briefs I received.from- counsel for The General Counsel and Respondent on or about March 22, I make the following: FINDINGS OF FACT - - I. JURISDICTION Respondent, an Ohio corporation, with its principal office and place of business in Warren, Ohio, is engaged in the manufacture and sale of industrial heating and melting equipment. Admittedly, it is engaged in commerce within the meaning of the-Act and comes within the jurisdictional standards of the Board, It is also admitted that the Union at all, material times has been a labor organization within the meaning of Section 2(5) of the Act. Respondent also admits that the following persons- occupied the positions set opposite their names and, at all times material, have been supervisors and agents within the meaning of Section 2(11) of the Act: John A. Logan Covelle J. Newman James D. Marshall Arthur J. Dezagettis Robert J. Brindiar John A. Seifert President Vice President of Finance Controller Manager of Replacement Parts Supervisor of Production Scheduling Maintenance Foreman II. ,THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction In substantial part, each of the three cases stands on its own footing; they do, however, have certain elements in common. At this juncture, it may be helpful to set forth the basic and substantially uncontroverted - facts concerning each of the three complainants. Hall applied for employment with Respondent on Janu- ary 10, 1973. In response to the inquiry on the form concerning prior employment, Hall indicated that he was then employed by Champion Steel, in Orwell, Ohio, as a warehouseman. He made no reference to the fact that he was also then employed by Copperweld Steel Company, and had been so employed since January 17,- 1965. Respondent employed him on January 17, 1973. With respect to this matter, Respondent contends it has a policy that any individual who applies foremployment and-, at that time, is employed on a regular full-time basis by another concern will not be employed . Respondent alleges that, when it learned Hall had not revealed his full-time employment at Copperweld, he was discharged on'-August 15. According - to Respondent, at no time during Hall's employment did any of his superiors know that Hall was engaged in any union activity. Beachler was employed on November 9, 1973, in the accounting department as a general purpose clerk, and continued in this position until August 4, 1975, when she was transferred to the accounts payable section of that department. Sometime during 'the latter part of August of that year, Respondent decided to reduce the accounts payable sectionfrom three persons to two and Beachler was temporarily laid-off on August 19. Respondent asserts, and the record appears to sustain this position, that the , accounts payable work since August 29 has been handled by two clerks more senior to Beachler and, moreover, that no new employees had been hired into that; department. Beachler was recalled to work late,in January, which, according to Respondent, was "the very first opportunity." Respondent contends that at no time prior to Beachler's layoff did any of her supervisors or any other management official know that she was engaged in any union activities. Concerning Shaw, who was employed on September 23, 1974, as a material and schedule analyst in the production control department, it is the contention of Respondent-that he ' failed properly to perform his duties. In the view of Respondent, Shaw's duties were "critical" with respect to the proper processing of an order ; thus, he was required to keep complete and accurate records in an engineering log showing the status , of the job and in other respects it was necessary for him to prepare information concerning the sources of material, how and where it was to be obtained. Respondent asserts that, although Shaw's superior, Brind- iar, "frequently explained the absolute necessity of main- taming correct and complete records" to Shaw , the latter failed to do so and, in consequence, received repeated warnings from Brindiar. A few months before August, Respondent's orders for 60 cycle equipment , with respect to which Shaw had been assigned to work as a material and 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD schedule analyst, declined. In consequence, the production control department was requested to review its personnel in order, if possible, to reduce overhead . According to Respondent, Shaw was laid off on August 29, because of his work record and because he was the most junior schedule analyst. It further asserts that before August 29 it had no knowledge that Shaw was engaged in any union activities. In his brief, counsel for Respondent states that in the event business increases Shaw will be recalled. B. Interference, Restraint, and Coercion; the Layoffs and/or Terminations Hall was employed by the Respondent from January 27, 1973, until August 15, 1975. He was hired as a receiving clerk and about 3 months later he was promoted to scheduling analyst in the production control department under the supervision of Brindiar , on the day shift, the hours of which were from 8 in the morning until 4 :30 in the afternoon. He testified that in July 1974 the Union sought to organize the plant and that he and another employee, Mike Coffey, were engaged in that effort and obtained some 13 signed authorization cards. In June 1975, after the termination of an employee, Coffey and Hall again spoke of the possibility of forming a union and , so he testified, he was shortly thereafter approached by Brindiar in the plant, who stated that he had heard rumors about union talk and that, if Respondent found out who was behind it, that person or persons would be terminated. Hall replied that he also had heard rumors but said nothing further. About the first of August a group of employees, consisting of Hall, Shaw, Beachler, Coffey, and Joann Taylor, formed them- selves into a committee and determined that the Respon- dent's office workers needed a union to protect them. About August 4 or 5 , members of this committee, but not including Hall, attended a meeting with representatives of the Union . On August 6, the Union sent a letter to Respondent's office workers asking them to sign cards to join the Union. On August 7, Hall spoke to Foreman Arthur Racco, and informed him that letters would be coming out from the International Union to the office workers and laboratory technicians , asking them to sign union authorization cards. Logan, president of Respondent, wrote a letter on August 8 to employees, in which he referred to the membership solicitation letter sent them by the Union. He stated that employees "have the legal right to consider membership in a union if your job is one that may be covered by a union," but that management was "firmly convinced that its relationship with the office and technical employees is of such a nature that any problems that exist can best be solved between management and such employees without the interference of a third party" and that, in view of the nature of Respondent's work, which required highly skilled and intelligent personnel , "we sincerely believe such employees are better served by direct contact than through a union." He further added that the Respondent "will vigorously oppose the unionization of its office and technical employees because, as we stated above, we believe such unionization would be contrary to the best interest of the employees and the Company." He concluded by saying that if employees signed an authorization card sent them "on impulse or as a result of some present dissatisfaction with the Company, it is an act which could lead to undesirable consequences for you and the Company even though you might not vote for a union at a later date. Consequently, we urge you to disregard the union solicita- tion material." Hall related that during the morning of August 8, as he was walking through the shop , Foreman John Schaefer stopped him and asked why the foremen had not received a copy of the International's letter and a card to sign. According to Hall , Foreman Schaefer stated that Respon- dent was aware of who was behind the union effort and that Hall was responsible ; to this, Hall replied by asking, "Is that right?" According to Hall, between August 8 and 14 the employee committee had another meeting with the International representatives , Robert Villa and Ed DeJaci- mo. On August 15, Hall was discharged . He testified that about 4:15 in the afternoon , while he was in the shipping department, his immediate supervisor, Brindiar, came to him and Hall told Brindiar that he felt that the Respondent had "pin pointed" him as the instigator of the union effort to which Brindiar replied, "I don't know who they have pin pointed, but I hope they get the right one." Shortly before 4:30, Brodowski, the head of the produc- tion control department , called Hall into his office and, according to Hall , told him that the Respondent had found out that he was working two full -time jobs, contrary to the Respondent's policy, and that for that reason he was being terminated. Hall asked if there was any other reason and Brodowski replied in the negative ; Hall then stated that he was aware that "quite a few people at Ajax" were also working at Copperweld and that that fact was no secret. Thereupon, Brodowski gave Hall his severance pay and his regular check. During the conversation, Hall asked if he would be given a choice as to which job he could work, and related that Brodowski said, "No, we made the decision for you" With respect to the fact that he held two jobs, Hall testified that he had discussed this matter with Foreman Racco quite some time before he was terminated , as well as with other management representatives. Hall testified that he was unaware of any policy of Respondent against holding two jobs. Indeed, he related that other employees, including foremen, held other jobs . Hall stated that he had received several raises during the course of his employment and that he had been told that he was doing a fine job. Hall testified that on or about August 12, when Supervi- sor Brindiar returned from vacation, he asked Brindiar if the latter had heard what was taking place concerning an effort to organize a union in the office and that Brindiar replied that he had heard of the matter and, according to Hall, "said he wouldn't want to be one of the ones that were instigating this . . . because, if the Company finds out they will be looking for a new job." Brindiar testified that prior to beginning his vacation during the last week in July he did not have occasion to discuss union activities with any of his people and knew nothing about such activities, but that when he returned from vacation on August I l or 12, he first found out about union activities from Respondent 's letter of August 8. When he returned to work the following Monday he asked his superior, Brodowski, about the matter and Brodowski said he knew nothing about efforts being AJAX MAGNETHERMIC CORPORATION made to form a union. Brindiar denied that he threatened any employees with reprisals because of their union membership, activities, or sympathies. The Union held its second meeting on August 14, which was attended by five employees, including Hall and Union Representatives Villa and DeJacimo . During that meeting Hall stated, so he testified, that he believed that Respon- dent would discharge someone because of union activity and felt that that person would-be himself. Shortly before Hall's termination, Brodowski mentioned to his secretary that Hall's desk appeared to be somewhat cluttered and Brodowski testified that she then said, "No wonder, he has got two full-time jobs," and that she stated that his other job was at Copperweld . Later that day Brodowski obtained Hall's personnel record , which reveal- ed nothing about Hall being employed at Copperweld. Brodowski then consulted with- Milton Schaefer, Respon- dent's vice president of manufacturing, and after verifying that Hall did in fact work at Copperweld, Schaefer told Brodowski ,to terminate Hall _ because of Respondent's policy - against permitting employees to hold another full- timejob. Witnesses for Respondent gave a somewhat different version of the circumstances which -led to Hall's termina- tion. President Logan, who had been employed by Respon- dent in that capacity since 1948, testified that Respondent has "always had a unwritten policy prohibiting" an employee holding two full-time jobs and that it "discour- aged part-time employment, but our industrial relations people tell me we have to sort of condone this in cases of hardship, but we have never tolerated full-time employment where we knew it existed." He stated that during his 25 years as-president he never knew of anyone being employed by Respondent if, at the time he made application , he held another full-time job or retaining an employee once it learned that he had another full-time job . Supervisor Brindiar testified that he had nothing to do with the termination of Hall and did not know of it until after it had occurred, but that hewas told, and relayed this information to Shaw and another employee, Don Harnett, that he understood Hall had been terminated the evening before and testified that he said, "the reason I assume was because he had held two jobs , because that is what was told to me . 11 Brodowski, supervisor of production control since April 1974, testified that he first became acquainted with Hall in April or May 1973 when Hall was working in the storeroom and Brodowski was the receiving clerk. He related at this time , his supervisor stated that he was considering moving Hall into the schedule analyst position and "asked me to take a look at this guy, talk to him, and see what I think." He testified that during his discussion with Hall the latter did not tell him he was employed at Copperweld. As related previously, Brodowski first learned that Hall held another job on or about August 11, when he made the remark to his secretary that Hall's desk seemed to be cluttered and she replied, "No wonder, he has got two- full time jobs." Brodowski testified that he did not ask his secretary how she knew this and that later in the day he went 'to Personnel Manager Turner and asked to see Hall's personnel record, which did not reveal anything about Hall working at Copperweld . Brodowski then consulted Schae- 481 fer and, after the fact of Hall's employment at Copperweld was verified, Schaefer told Brodowski to terminate Hall. According to Brodowski, and employee working under his supervision as an inventory analyst, Robert Wilson, "works at a department store downtown ." He testified that he had talked to Wilson about this and ascertained that his employment at the department store was intermittent, mostly during peak sales periods . He also related that several years previously Brindiar held another job. At the time Brindiar worked another job, Brodowski was his supervisor. He testified that-he did not think he informed his employees of Respondent's policy concerning holding another job. Brodowski testified that- some 7 or-8 years ago he worked 8 to 10 hours on weekends tending bar and that he told his supervisor about it , who inquired how many hours he worked and, upon being told, "just passed it off. That was all." Vice President Schaefer testified that he first learned of Hall holding two full-time jobs "late on a Monday night or early on-a Tuesday morning of the week that we terminated him, which event took place on Friday , August 15." He related that he obtained this information from Brodowski and that he had had no prior knowledge that Hall was working elsewhere. He stated that he was not aware of any other employees holding other full-time jobs but that he was "sure we have a number employees that have a part- time job." He stated that he had communicated Respon- dent's policy to all of his staff many times and that he felt sure they had transmitted this information to the employ- ees, although he could not state of his own knowledge that this was a fact. He further stated that Hall was not given an opportunity to quit his employment at Copperweld because Respondent terminated him "on the basis that he falsified his employment record." Beachlerbegan work in November 1973 . She testified that on Friday, August 8, 1975, her superior, Marshall, called her into his office and asked if she had received a card in the mail and that she replied in. the affirmative . He then asked her, so she related, what she thought about it, to which she replied, "There is good and bad to everything," and Marshall responded by stating that if the Union did come in employees could lose their benefits and, if they were absent, they would not be paid sick leave and would' lose their merit raises. Marshall acknowledged that he had called Beachler in and asked her if she had received a letter from the Union and that when she acknowledged that she had he testified he merely told her to "just give it consideration." He denied that he told Beachler or any other employee in his department what might happen if a union came into the plant ; he further stated that he was not aware of any of Beachler's activities in support of the, Union. Respondent contends that Beachler was laid off as part of a general ,cutback in employment necessitated by a substan tial decrease in orders. President Logan sent Executive Vice' President Clarence Hanson a memorandum on August 1, in which he stated that, because orders had decreased and the outlook for new orders was not very strong, it would be, necessary to take steps to reduce overhead . He recommend-, ed a reduction of 10 percent "in overhead salaries in all service areas including sales, engineering, research, produc 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion control, purchasing and accounting be effected imme- diately." He further stated that in areas "where attrition has taken its toll we should not replace the men at the present time," but that in other areas where this had not occurred "steps should be taken to reduce the work force so as to minimize the effect of reduced shipping volume for the balance- of the year-, and the first part of next year." Controller .Marshall;- Beachler's supervisor, testified that Vice President Newman toldhim that in view of the decline in orders he Fshould consider laying off a person in the accounting department. Marshall testified,thathe selected Beachler and that at the. time, he did so he was not aware she was engaged in any union activities. Marshall related that, he selected Beachler because on several occasions he had found it necessary to complain about .the quality and quantity of her work, that he had reprimanded her a number of times for abusing coffeebreaks, her general work habits, and the fact that she engaged in extensive telephone conversations and held social meetings during working hours, all of which caused a general deterioration in her efficiency. - In his brief, counsel for the General Counsel states that aside from the foregoing "general assertions there was no evidence that she [Beachler ] took longer breaks or used the telephone more than other employees and there was no evidence as to the comparison of the quantity or quality of her work with that of other employees." In addition, he points out that Respondent had not given Beachler any warnings concerning- "any of the alleged deficiencies in her work or work habits." She received merit increases on schedule and had never been denied one. He also contends that, it is "not believable that Respondent would have transferred Beachler to a more critical and more responsi- ble position if it were dissatisfied with her work." With respect to the contention of Respondent that it was necessary to reduce the total number of employees, government counsel points out that, following President Logan's directive, Respondent hired a new employee as a general purpose accounting clerk. He contends that if the motivation for the layoff of Beachler was'in fact economic Respondent would not have hired the new employee immediately after the directive to reduce personnel and, he asserts, Respondent "would not have retained an employee with less than one month's experience while laying off one with approximately two years experience." Shaw went to work for Respondent on September 23, 1974, as a material and schedule analyst in the production control department, being assigned to work in connection with the 60 cycle channel furnace equipment. In this capacity, his duties, as aptly,stated by counsel for Respon- dent, "were critical in the proper processing of an order." It was necessary for him to keep complete, clear, and accurate records in an engineering log showing the status of each job. He also received engineering production order releases and prepared information on the engineering bill of material showing- the source of the material. On the basis of the latter, other departments were informed if the material was to be obtained from stock, purchased from other suppliers, or built by the maufacturing department. Also, he saw to it that all proper drawings were provided to other departments if-required. While Hall was in Supervisor Brodowski's office the afternoon of August 15, Shaw remained at his desk in the production control office for some 5 minutes after the other employees had left work. Shaw's desk was so located that it was in Brodowski's line of vision and thus the latter was in-a position to observe Shaw :waiting for Hall. The following morning, Brindiar.told several employees in the production control office that Hall had been terminated because he held two jobs. To this Shaw-said-that that was "a damn lie" and that Hall was terminated "because-he was engaged in union activities." According to Shaw, Brindiar then said, "Maybe, but I don'tknow, I'can't say that." Later.in the day, Shaw, while -at the machine shop, spoke to a fellow employee, Dick Hivick, who, so Shaw testified, appeared to be upset at Hall's discharge. Shaw told Hivick, "Don't worry, Bob Hall will be back." It is Shaw's testimony that present on this occasion were Machine, Shop Foreman Bill Gromley, General Foreman Joe -Mitten, and Foreman Phil Magnetta. Shaw testified that Mitten- and Gromley said Shaw did not know what he was talking about to which Shaw replied, `.`When the NLRB gets ahold of this, we will see whether I know what I am talking about or not." Shaw testified-, that on the Tuesday or Wednesday following Hall's termination he was in the personnel office and Tina Bonannb, who works for Personnel Director Turner, told him that he "had better watch what I was saying, because the Company was aware of the incident that happened in the Machine Shop, and that if I didn't watch what I was saying I could be looking for another job like Bob Hall." Bananno was not called as a witness. About a week after .Hall's termination, Shaw discussed the organizing campaign with employees Don Harnett and Frank Sciullo, in the lunchroom, while Personnel Director Turner was standing in front of him. The three employees, so Shaw related, "were talking at this time about how many cards we had ... and I mentioned that we had 20 some cards, and they had asked me about what was the Union going to do about Bob Hall'-being discharged." Shaw indicated that action would be initiated before the Board with respect to Hall's termination. Shaw testified that on the Saturday before he was, terminated, while working overtime, Supervisor Robert Wilson came into the produc- tion control office and asked Shaw if he knew where he could obtain a union card fora Mr. Quigley, and that Shaw replied he did and that he would have a card for him the following Monday morning. He testified that he did in fact give Quigley a card. On cross-examination, Shaw was asked whether orders were declining in June and August. He answered that he did ' not "know if the orders were declining, but I was working overtime." Asked whether he knew whether sales had in any way been affected during that period, Shaw replied that he did not know. Shaw testified that at the time he was informed of his layoff, "things were not slow" and that his "workload was fullto the extent that I was working overtime every week, plus daily during the week on occasion." In fact, according to Shaw, two or three of the five people working on the same job as he were working overtime. Evidence produced'by Respondent-is that follow- ing Shaw's layoff only 37 hours of overtime were worked, mostly in the 2 weeks after August 29. Counsel for AJAX MAGNETHERMIC CORPORATION Respondent, in his- brief, states that Shaw's testimony- "contains not only reckless and inaccurate statements but appears to include deliberate, false and misleading state- ments and lends very little credence to the testimony of Shaw." Respondent contends it had no knowledge of Shaw's union activities and in support points to the testimony of Holmquist, Respondent's house counsel and industrial relations manager. Holmquist testified that on August 27 he sent a letter to the executive director of Junior Achievement of Trumbull County, Inc., appointing Shaw as one of the Junior Achievement counselors- representing the Respondent. Counsel for the Respondent suggests that, if Respondent then "had knowledge of Shaw's alleged union activities ... and if it were going to discriminate against him on that basis, it is-reasonable to assume that the recommendation - made . . . would not have been-Shaw." The position of Respondent is that the work performance of Shaw, "although good at the time of hiring and for- a period thereafter, nevertheless deteriorated into the viola- tion by Shaw of company rules, a great number of mistakes, failure to follow his superior's directions, and general performance. In short, it became obvious that Shaw had become extremely derelict in his duties." Upon the receipt of President Logan's directive to reduce the number of employees, Brodowski consulted with Brindiar to deter- mine who should be selected for layoff. Brindiar recom- mended that Shaw be laid off, noting that he was "finding quite a few mistakes" in Shaw's work, which he had previously reported, that-the volume of work in Shaw's area was low, and because Shaw happened to be "low in Company seniority in that particular section." Brodowski testified that he did not then know that Shaw was active in the Union but learned of that fact from Shaw after the layoff, when Shaw "went off the deep end and told me .. . that the reason that this was happening was because of his Union activities." Brindiar testified in considerable detail about Shaw's work performance. He stated that Shaw was doing good work in 1974 and in the early part of 1975, but that his work "started to decline", about the month of June. According to Brindiar, he told Shaw that he had noticed that Shaw. "was making numerous errors in his paper work" and that he should be more careful. Brindiar testified that Shaw admitted he had made errors. Brindiar stated that he was receiving complaints from other departments to the effect the Shaw's errors were delaying the fabrication and production of equipment. Brindiar went through a number of engineering log forms which contained errors or omis- sions. Counsel for Respondent also points out that Shaw's position, up to the time of the hearing, had not been filled by another employee; Respondent produced testimony that Michael Yuhas was performing the work which he and Shaw previously had done. Shaw testified that after Hall was terminated a Dennie Kerns was brought from the storeroom, which, is part of the production control depart- ment, to fill that vacancy and a- new man, Marc Kollat, was hired to fill Kern's position. This individual was hired approximately a week before Shaw was terminated. Coun- sel for the, -General Counsel thus points out that "no reductions of the total work force in either the Production 483 Control Department or -the Accounting Department was effected by the layoff of Shaw-or_Beachler." C. Discussion and Concluding Findings While the conclusions to be drawn from the evidence in this case are by no means crystal clear, upon analysis I am of the view that Respondent interfered with, restrained, and coerced- employees substantially in the manner alleged in the complaint and, further, unlawfully discriminated against Hall, Beachler, and Shaw, thereby-violating Section 8(a)(l) and ( of the Act. The following factors lead me to these conclusions. - These three employees were leading proponents of-the Union. There is no question .that Respondent, as stated by President Logan -in his letter of August 8 to the employees, was "firmly convinced" that any problems that might arise between its office and technical employees could "best be solved between Management and such employees without the interference of a third party" and that, considering the nature of Respondent's business, which required highly skilled and intelligent -personnel, Respondent was con- vinced that these employees would be "better served by direct contact than through a union." He concluded his message by stating that Respondent would "vigorously oppose" the unionization of these employees inasmuch as Respondent believed that unionization would be contrary to the best interest of the employees and Respondent. As we have seen, the Union sent letters to the employees on August 6, urging them to sign cards, following the earlier meeting of several employees, including Hall, Shaw, and Beachler, with representatives of the Union. Foreman Racco, on August 7, was informed of this by Hall and, the next day President Logan directed a letter to the employees urging them to disregard the solicitation material received from the Union. As found above, on August 8 Hall was told by Foreman Schaefer that Respondent was aware of who was behind the union effort. A week later, on August 15, Hall was terminated and, according to his testimony, which I credit, he was told by his supervisor,-Brndiar, that, while he did not know who was behind the union effort, he hoped that "they get the right one." The reason advanced by Respondent for terminating Hall was that he held another full-time job, and that he had not revealed this on his application form. This policy of Respondent had not been clearly communicated to em- ployees by way of memoranda or postings on the employee bulletin board. Moreover, other employees,, including members of supervision, had in the past held other jobs, at least on a part-time basis. Precisely what constituted a "full- time" second job was not spelled out. Moreover, Hall was refused the option of choosing between a job with Respon- dent and his job with Copperweld. I am convinced that Respondent seized upon this circumstance as a pretext to eliminate Hall from its employ, and that the real reason, or certainly a contributing reason, was his activity on behalf of the Union. I so fmd. As we have seen, Beachler was questioned by her superior as to whether she received a card from the Union and, when she stated she had, he told her that if the Union came-in the employees could lose, their benefits and, in the event of absence, would not be paid sick leave, and would lose their 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merit raises. The reasons advanced by Respondent for Beachler's termination are very general in nature. As counsel points out, she had not been given any warnings with respect to the alleged deficiencies in her work or work habits; moreover, she had received merit increases on schedule and had never been denied one. Indeed, had she been as deficient in her work as the Respondent would have us believe, it seems more than strange that she would have been transferred to a more critical and responsible position shortly before her termination. With respect to Shaw, he concededly did good work in 1974 and the early part of 1975. He impressed me as an intelligent and articulate person, and one who gave every appearance of being conscientious in the performance of the duties assigned to him. I find it difficult to believe that, having performed his duties in a creditable fashion until approximately June 1975, he should suddenly, and for no apparent reason, become inefficient, negligent, or inatten- tive to his work. There is no question that he was a leading exponent of the Union and by no means reluctant to voice his views with respect to action or statements by members of management. I come to the conclusion that Respondent regarded Shaw as a "hair shirt," whose termination would to a substantial extent blunt the interest of the employees in organizational activity. IV. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully discnmi- nated against Robert Keith Hall, Doris Beachler, and Kenneth N. Shaw. I will, therefore, recommend that Respondent offer them Immediate reinstatement to their former positions, or, if such no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges, discharging if necessary any replacements hired, and make them whole for any loss of earnings they may have suffered by payment to them of a sum of money equal to the amount each normally would have earned from the date of the discrimination against them to the date of Respondent's offer of reinstatement, in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER' Respondent, Ajax Magnethermic Corporation, Warren, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against any employee because of membership in or activity in behalf of the Union or any other labor organization. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement conforming to the provisions of Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert Keith Hall, Doris Beachler, and Ken- neth N. Shaw immediate reinstatement to their former positions or, if no longer available, to substantially equiva- lent positions, without loss of seniority or other rights or privileges, discharging if necessary any replacement, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them, in accordance with the provisions of the section of this Decision entitled "The Remedy." (b) 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 determine the amount of backpay due under the terms of this recommended Order. (c) Post at its premises in Warren, Ohio, copies of the attached notice marked "Appendix.' 12 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by a representative of Respondent, shall be posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I 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 Y In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Fosted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any employee because of membership in or activity in behalf of United Steelworkers of America, AFL-CIO, or for engaging in protected union activity or exercising rights guaranteed by the National Labor Relations Act. AJAX MAGNETHERMIC CORPORATION WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Robert Keith Hall, Doris Beachler, and Kenneth N. Shaw immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to 485 their rights or seniority, and WE WILL make them whole for any wages lost as a result of our discrimination against them plus interest at the rate of 6 percent per annum. AJAX MAGNETHERMIC CORPORATION