Sonicraft, Inc.

766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sonicraft, Inc. and Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 13-CA-22020 June 15, 1989 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On February 14, 1984, Administrative Law Judge Robert A. Giannasi issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party each filed a brief supporting the judge's decision. On March 27, 1985, the Board remanded the case to Judge Giannasi to address the propriety of an amendment to the complaint relating to Decem- ber 1981 employee layoffs and subsequent recalls in light of Ducane Heating Corp., 237 NLRB 1389 (1985), a decision that had issued after Judge Gian- nasi's decision. On December 11, 1985, Judge Giannasi issued the attached supplemental decision . The Respond- ent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed an- swering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions, 2 to modify the remedy, 3 and to adopt the recommended Order. 1 The Respondent has excepted to some of the judge 's credibility find- ings The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. ' In the absence of exceptions , we adopt pro forma the judge 's findings that the Respondent did not violate Sec. 8(a)(1) by Supervisor Rufus Denson's questioning employee Oliver Harper on the day of the repre- sentation election about how he was going to vote and by Company President Jerry Jones' references to layoffs during his November 25 ad- dress to assembled employees We note that any violations found regard- ing either incident would be cumulative and not affect the remedy or the Order As the parties have had the opportunity to brief the 10(b) issues of this case fully before Judge Giannasi and before the Board , we deny the Re- spondent's August 10, 1984 motion to strike portions of the General Counsel's and the Union's briefs addressing these issues and, in the alter- native, for leave to file a reply brief. As to the judge's analysis of the 10(b) issue in his supplemental deci- sion, we find, in agreement with the judge, that the discriminatory mass layoff, the selections for layoff, and certain refusals of selection for recall from layoff are "closely related" to the outstanding timely filed charge ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sonicraft, Inc., Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. CHAIRMAN STEPHENS, dissenting in part. In accordance with the views expressed in my dissenting opinions in Redd-I, Inc., 290 NLRB 1115 (1988), and Kanakis Co., 293 NLRB 435 (1989), I would find the complaint allegations regarding the December 1981 employee layoffs and subsequent failures to recall to be barred by Section 10(b) of the Act except for the allegations concerning dis- criminatory failures to recall four individuals named in the original complaint .' Even though the complaint allegations regarding the layoffs and large group of subsequent recalls may be "closely related" to the allegations raised in the timely filed charge, the sequence of charge filings and with- drawals here is such that the Respondent would not reasonably have believed at the expiration of the 10(b) period that it might have to litigate alle- gations pertaining to the December 1981 discharges and subsequent refusals to recall , except for the four referred to above. The original charge, filed February 22, 1982, al- leged that the Respondent violated the Act by laying off employees and thereafter refusing to recall employees for discriminatory reasons. On April 29, 1982, the Regional Director sent a letter to the Union stating that he was refusing to issue a complaint on that aspect of the charge that alleged See Redd-I, Inc, 290 NLRB 1115 (1988) In his dissent, Chairman Ste- phens agrees that the allegations raised the timely filed charge and allega- tions of the complaint amendment are all closely related The dissent relies, however, on procedural due process and fairness concerns in con- cluding that the complaint prior to amendment did not put the Respond- ent on notice that it would have to defend against mass layoff, layoff se- lection, and recall selection allegations because the latter groups of alle- gations had been set forth in the original charge but had been dismissed prior to hearing As stated in Redd-I, it is the function not of the charge but of the complaint to give notice to a respondent of specific claims made against it. See NLRB v Font Milling Co, 360 US. 301, 307-308 (1959), see also NLRB Y. Atlas Linen Supply, 322 F.2d 216, 219 (6th Cir 1963), cert. denied 376 U.S 951 (1964) ("a complaint may be amended to conform to proof adduced on the hearing") In the absence of a showing of surprise that would have hampered presentation of the Respondent's defense at hearing after the complaint was amended, we find that the Re- spondent has suffered no denial of due process See Redd-I, supra at 1116-1117. As we reject the 10(b) defense based on the judge 's findings, consistent with the Board's analysis in Redd-I, that the allegations in the complaint amendment are closely related to the content of the original charge, we find it unnecessary to reach the fraudulent concealment issue on which the judge alternatively based his rejection of the 10(b) defense. a Interest will be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). 1 In all other respects I join my colleagues in affirming the judge and adopting his recommended Order 295 NLRB No. 78 SONICRAFT, INC. 767 that the original layoff was unlawful but that the "dismissal is not intended to affect . . . allegations concerning [Respondent's] failure to recall certain employees which are alleged in the complaint." The complaint, which issued the same day, con- tained several 8(a)(1) and (3) violations concerning the refusal to recall or reinstate employees Arm- strong, Barlow, Lynch, and Sherron . Thus, when the 10(b) period had run in June 1982, the Re- spondent knew that the Regional Director had considered, and rejected, claims that the Respond- ent had unlawfully laid off employees in December 1981 and subsequently refused to recall them as a group and the Respondent would not reasonably have contemplated litigating those matters. I also disagree with the judge's finding that the Respondent fraudulently concealed operative facts underlying the alleged violation that would war- rant reinstatement of the original charge allegations outside the 6-month limitations period of Section 10(b). As stated in my dissenting opinion in Kana- kis, there may be cases in which the General Coun- sel should be allowed to toll Section 10(b) where fraud is perpetrated against his or her office; how- ever, this is not such a case. Here, following a timely charge alleging a mass layoff and subsequent refusal to recall employees , the Regional Office commenced an investigation of the allegations. From the start, the Regional Office was aware of the operative facts concerning the alleged viola- tion-that there was a mass layoff on the heels of a union victory in a certification election. Further- more, during the investigation, the Regional Office interviewed various employees' witnesses who stated that Respondent's president had threatened to lay off employees if the Union was voted in. Al- though the Regional Office sought, as part of its in- vestigation, to obtain a series of tape recordings of question-and-answer sessions between the Respond- ent's president and its employees that, when played during the course of the trial, confirmed that the Respondent did indeed unlawfully threaten to lay off employees, the Respondent did not turn them over during the investigation, asserting that the tapes were "indecipherable." Based on its investiga- tion, the Regional Office decided not to prosecute the mass layoff and subsequent refusal to recall al- legations of the complaint. The General Counsel now asserts, and the judge found, that the Respondent's failure to turn over the tape recordings of the question -and-answer ses- sions constitutes fraudulent concealment warranting the reinstatement of the original charge allegations outside the 6-month limitations period of Section 10(b). Because the Regional Director was aware of all the operative facts underlying the alleged viola- tions when he opted, within his statutory discre- tion, not to prosecute that aspect of the case con- cerning the mass layoff and subsequent refusals to recall employees to work,2 I do not believe that there has been any fraudulent concealment from the General Counsel that would warrant equitable relief from Section 10(b). 2 It is also noteworthy that the Respondent's inaccurate statement about the clarity of the tape recording in no way contradicted the testi- monial evidence supporting the charge. Jacalyn Zimmerman, Esq., for the General Counsel. Bettye S. Kitch, Esq. and James Baird, Esq. (Seyfarth, Shaw, Fairweather & Geraldson), of Chicago, Illinois, for the Respondent. Margo R. Newman, Esq. (Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Ltd.), of Chicago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge. This case was tried for 24 days beginning on October 6, 1982, and ending on May 24, 1983, in Chicago, Illinois. The first 7 days of hearing were held before Administra- tive Law Judge James J. O'Meara . On January 5, 1983, Judge O'Meara withdrew from the case, and , on that date, the case was assigned to me. The complaint, as amended several times, alleges that Respondent violated Section 8(a)(1) of the Act by virtue of certain threats, in- terrogations, and statements of coercion. It also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off some 50 employees 2 days after the Charging Party Union (the Union) had won representation rights in a Board-conducted election and by thereafter refusing to reinstate or recall those em- ployees for the same discriminatory reason . Respondent denies the substantive allegations in the complaint and strongly urges procedural objections to the major amendment to the complaint because it contained a part of the Union's charge which the Regional Director earli- er had decided against including in the original com- plaint. The parties filed briefs and reply briefs totalling 398 pages which I have read and considered. Based upon the entire record , including the testimony of the witnesses and my observation of their demeanor, I make the following FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, an Illinois corporation, maintains its office and principal place of business at 8859 South Greenwood, Chicago, Illinois, where its it engaged in the research, development, and manufacture of electronic and electro-mechanical systems . Respondent also oper- ates a facility at 9501 South Dorchester Avenue in Chi- cago, Illinois . During a representative 1-year period, Re- spondent, in the conduct of its operations, shipped goods 768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and materials valued in excess of $50,000 from its facili- ties in Illinois directly to points located outside the State of Illinois. Accordingly, I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent, a minority-owned business which has been in operation since 1966, is essentially headed by Jerry Jones, its majority stockholder, who also acts as its president, general manager, chairman of the board, and director of marketing . Respondent employs a large com- plement of engineers as well as production and office personnel . All products manufactured and services per- formed by Respondent are pursuant to specific contracts with particular buyers. These contracts are almost exclu- sively with the Federal Government , particularly the Department of Defense. Thus, almost all of Respondent's revenue is derived from the United States Government. Approximately one-third of this revenue is the result of contracts for the manufacture of specific products; the remainder is derived from the sale of engineering serv- ices in the form of research and development . Respond- ent receives aid from the Small Business Administration and has had various loan agreements with the First Na- tional Bank of Chicago from about 1968 through the period covered in this proceeding. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. PROCEDURAL BACKGROUND The Representation Case On October 7, 1981, the Union filed a petition with the Board seeking an election among the Respondent's em- ployees. On Friday, December 11, 1981, a Board-con- ducted election was held in the following unit: All full time and regular part-time production, maintenance and warehouse employees employed by Respondent at its Chicago facilities, but exclud- ing office clericals, engineers, draftsmen, techni- cians, guards and supervisors as defined in the Act. The employees voted for union representation by a vote of 45 to 35. There were no challenged ballots . The Re- spondent did, however , file objections to the election which were overruled . The Union was certified by the Board on July 16, 1982. Respondent declined to recog- nize and bargain with the Union and, on July 8, 1983, the Board issued a decision finding that Respondent's re- fusal to bargain with the Union was violative of Section 8(a)(5) and (1) of the Act. The decision of the Board is reported at 266 NLRB No. 189 (July 8, 1983) (not re- ported in Board volumes).' 1 The case was on appeal to the Seventh Circuit Court of Appeals but, on January 4, 1984, the court granted the Board's motion to withdraw its enforcement petition, without prejudice, "to permit further consideration by the Board." The Unfair Labor Practice Proceeding On February 22, 1982, the Union filed a charge alleg- ing certain violation of the Act, including an allegation that Respondent had violated the Act by laying off em- ployees on December 13, 1981 , and thereafter refusing to recall employees for discriminatory reasons . On April 29, 1982, the Regional Director sent a letter to the Union stating that he was refusing to issue a complaint on that aspect of the charge which alleged that the original layoff was unlawful. He indicated that "this dismissal is not intended to affect . . . allegations concerning [Re- spondent's] failure to recall certain employees which are alleged in a Complaint issued in this case on this same date." The Union appealed the Regional Director's action to the General Counsel's Office of Appeals in Washington, D.C. The General Counsel affirmed the "Regional Director's partial refusal to issue complaint" in a letter dated May 28, 1982 . Thereafter, on July 7, 1982, the General Counsel denied the Union's request for reconsideration of his earlier decision . Thus, the General Counsel's original complaint herein, which issued on April 29, 1982, alleged certain violations of Section 8(a)(1) of the Act as well as the violation of Section 8(a)(3) limited to the refusal to recall or reinstate em- ployees Lula Armstrong, Ernest Barlow, Weader Lynch, and Marion Sherron. When the trial opened before Judge O'Meara, the General Counsel was permitted to amend the complaint to allege two other violations of Section 8(a)(1) of the Act by President Jerry Jones. Several days into the trial, counsel for the General Counsel, citing new evidence obtained through the recent interview of an employee witness and in response to a supoena of Respondent's records-primarily the production of a tape recording of a preelection speech by President Jerry Jones, sought to amend the complaint further by alleging that the original layoffs were unlawful. Thus, on December 1, 1982, the Regional Director sent a letter to the Union's counsel stating that "upon consideration of new evidence pre- sented, I have granted your request for reconsideration and hereby revoke my partial dismissal in the above-cap- tioned case, dated April 29, 1982." The same day, a writ- ten motion to amend the complaint was submitted , alleg- ing, inter alia, that Respondent laid off approximately 30 employees on December 13, 1981, and failed and refused to recall them for discriminatory reasons in violation of Section 8(a)(3) and (1) of the Act. Judge O'Meara denied the December 1 motion to amend the complaint. The General Counsel requested special permisssion to appeal the ruling and filed a brief in support of the appeal . The Respondent filed a state- ment in opposition. On December 8, 1982, the Board issued a telegraphic order granting the General Counsel's request for special permission to appeal, reversed the ad- ministrative law judge, and directed him to grant the motion to amend. The motion to amend was subsequent- ly granted. On January 25, 1983, Respondent moved the Board for in banc reconsideration of its decision approving the amendment of the complaint, relying particularly on the Board's decision in Winer Motors, Inc., 265 NLRB 1457 SONICRAFT, INC. 769 (1982), which had issued on December 16, 1982. On Feb- ruary 7, 1983, the Board denied Respondent's motion "without prejudice to Respondent's right to renew its contentions through the filing of an appropriate excep- tion...." When I took over this proceeding, I was confronted with a number of motions and subpoena issues all relat- ing to the contested amendment to the complaint. Grant- ing Respondent's request in this respect, I directed that the General Counsel specify the employees discriminated against. Counsel for the General Counsel provided a list of such employees which turned out to number 50 in- stead of the "approximately 30" alleged in the amend- ment. In addition, the Respondent was permitted to file an answer to the amended complaint which preserved its objections to the granting of the amendment. In an at- tempt to rebut Respondent's procedural objections as set forth in its answer to the amendment complaint, the Union sought the General Counsel's permission to allow the Board investigator to testify. The Regional Director apparently also made a similar request. In two separate telegraphic orders dated March 4, 1983, the General Counsel granted his permission for the Board investiga- tor to testify in this proceeding. In pertinent part, the General Counsel's telegram permitted the investigator to testify "with respect to whether the evidence relied upon by counsel for the General Counsel was previously of- fered and/or provided to Board Agent Klaeren during the investigation of the charge." The General Counsel also answered an earlier request by the Respondent for material contained in the investigatory file and permitted Respondent to obtain "copies of all material, if any, in the case file indicating whether the Regional Director was aware or should have been aware, at the time the disputed allegations were dismissed, of the evidence now relied upon in amending the complaint to include those same allegations." During the hearing, counsel for the General Counsel resisted turning over some parts of the investigatory file. However, after an in camera inspection of the file and in view of the General Counsel's grant of permission for the investigator to testify and his partial waiver of any confidentiality interests in the file, I ruled that the entire investigatory file be turned over to the Respondent. After the completion of the case on the merits, I took evidence on the procedural issue raised by the Respond- ent concerning the propriety of the amendment to the complaint. The evidence took the form of testimony by the Board investigator, Edward Klaern, Respondent's president, Jerry Jones, and its attorney, Bettye Kitch, as well as the introduction of documentary evidence from the Board's investigatory file. The Propriety of the Amendment Respondent asserts that a major portion of the com- plaint in this case-the allegation that the December 1981 layoff was unlawful-should be dismissed because it became part of the formal litigation by virtue of an amendment which violated Section 10(b) of the Act. Re- spondent contends that the amendment was improper be- cause the General Counsel had earlier decided against proceeding on the layoff issue and his subsequent change of position occurred more then 6 months after the layoff. The General Counsel and the Charging Party, on the other hand, contend that a valid charge was filed within 6 months of the layoff, and, although part of it was not included in the original complaint, Section 10(b) was fully complied with.2 The most important fact of this issue is the Board's role in deciding it. The Board itself reversed Judge O'Meara and ordered the complaint amended. It was presented with voluminous briefs discussing the 10(b) issue as well as the applicable case law. Again, on motion for reconsideration, after the Board handed down its decision in the Winer Motors case, the Board consid- ered the entire issue in the context of Winer Motors, ap- proved the amendment, and, in effect, ordered me to proceed with the hearing on the legality of the layoffs. Although the Board's Order had an ambiguous cast to it-permitting Respondent to raise the issue on excep- tions, it seems to me that the Board made the determina- tion, that in this case, the amendment was proper and that Winer Motors did not apply. Accordingly, I believe that I am bound by the Board's determination that the amendment was proper. Contrary to Respondent's contention, the Board's de- termination appears to be consistent with Board and court precedent. Winer Motors is distinguishable from the present case. In that case, the Board held that the rein- statement of a withdrawn charge was inconsistent with Section 10(b) of the Act because after a voluntary with- drawal of a charge no charge existed and more than 6 months had elapsed since the events alleged to be unlaw- ful had occurred. Member Zimmerman's swing vote for the majority in Winer Motors makes clear that the situa- tion involving the reinstatement of a dismissed charge, or, more precisely, a reversal by the General Counsel of his initial determination not to issue a complaint, war- rants a different result. The Board thus did not overrule California Pacific Signs, 233 NLRB 450 (1977), which recognizes the General Counsel's virtually unlimited dis- cretion to proceed on such charges after he has initially refused to issue complaint on them. Member Zimmer- man's rationale is that, in this situation, a valid charge has been filed, and, technically, the strictures of Section 10(b) have been complied with. This seems an even stronger case than Calfornia Pacific Signs because the General Counsel did not dismiss the entire charge but proceeded to complaint on only part of it, and, at trial, amended the complaint to bring in the remainder of the charge. There seems to be no authority for the proposition that Section 10(b) runs against the General Counsel in circumstances where the Charging Party has done all that is required under Section 10(b) (see Machinists Local Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960)), and where the Charging Party has consistently pressed for full litigation before the Board. The General Counsel does not initiate charges but has exclusive statu- tory authority with respect to the investigation and issu- 2 Sec. 10(b) of the Act provides, inter alia, that "no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board . " 770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance of complaints. This point is illustrated by Mourning v. NLRB, 505 F.2d 421 (1974), where the District of Co- lumbia Circuit upheld the reversal by the General Coun- sel of his initial decision to refuse to issue a complaint despite the Board's disagreement. In that case the charg- ing party, Robert Mourning , through his attorney , filed a motion for reconsideration by the General Counsel of his initial refusal to issue a complaint on the basis of newly discovered evidence. Because a similar motion had been previously filed and denied, the General Counsel's Office of Appeals treated this as a "second motion for reconsid- eration" and denied it on the basis of the Board's deci- sion in Forrest Industries, 168 NLRB 732 (1967). Over 2 years later, pursuant to Mourning's further requests through his attorney, the General Counsel reopened Mourning's appeal, reversed his earlier decisions and issued a complaint in Mourning's behalf. In an answer and motion to dismiss presented to the administrative law judge, the employer argued that Forrest Industries had been properly applied by the General Counsel when he had refused to entertain the "second motion for re- consideration." The administrative law judge rejected this argument, but the Board reversed the administrative law judge on appeal and dismissed the complaint, hold- ing that Forrest Industries prevented the General Counsel from prosecuting the case. On Mourning's petition for review to the District of Columbia Circuit, the court re- versed and remanded to permit the General Counsel to refile the complaint on behalf of Mourning . 505 F.2d at 423. The court rejected the contention that a general policy of laches precluded the General Counsel's reversal of po- sition and emphasized that Section 10(b) acts as a statute of limitations with respect to the conduct of a charging party and not the General Counsel . Id. at 424 fns. 9, 10. As the court stated, "To permit the General Counsel to negligently cause the elimination of the charging party's rights would raise very fundamental questions about the nature of the charging party's 'rights' upon suffering the effects of an unfair labor practice and the nature of the General Counsel's prosecutorial responsibilites ." Ibid. See also Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 568 (2d Cir. 1967), cert. denied 392 U.S. 908 (1968). This is not to say that the General Counsel 's reversal of an initial decision not to proceed to complaint on part of a charge may not raise problems of fairness or proce- dural due process. For example, the Board has dismissed complaint allegations because those allegations could have and should have been litigated in prior unfair labor practice proceedings. See Jefferson Chemical Co., 200 NLRB 992 (1972), and ITT Lighting Fixtures, 267 NLRB 709 (1983). The instant case, however, is different and contains no elements of unfairness or lack of due process so far as I can determine. There was, in this case, no prior unfair labor practice litigation during which the mass layoff issue could have been litigated. The General Counsel obtained certain evidence by virtue of supoena actions during the initial stages of this litigation, and, upon studying it, rescinded his earlier decision not to in- clude certain matters in the complaint . When the com- plaint was amended, full opportunity was given to the Respondent to prepare its defense and to answer the new not attend any others or thereafter work with the committee. complaint allegations. Not only was the layoff issue pre- sented in the amendment reasonalby related to the recall from layoff issue in the original complaint, but evidence of the former was effectively intertwined with evidence of the latter. Finally, both at the time of the General Counsel's refusal to go to complaint on the layoff issue and at the time of the amendment, Board law was quite clear that the General Counsel had broad and unlimited discretion in this area . It is thus difficult to see how Re- spondent suffered any cognizable prejudice. In any event, as noted above, in the posture of the case before me, I believe that the Board has spoken and has ruled, consistent with Winer Motors and California Pacific Signs, that the General Counsel acted within his statutory discretion when he decided to proceed on the layoff aspect of the Union's charge by amendment even though he had earlier indicated he would not proceed to complaint on this issue. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background: The Union Campaign, the Election and the Layoff The Union began its organizing campaign on August 28, 1981 , when Union Representative Roy Blake and other officials began distributing union literature and au- thorization cards in front of Respondent 's 88th Street fa- cility. That same day, President Jerry Jones distributed a letter to employees urging them not to sign union au- thorization cards. The Union, however, obtained a suffi- cient number of cards to support a petition for an elec- tion, which was filed on October 7, 1981. Thereafter, the employees were flooded with literature from both the Union and the Respondent on the advisability of voting for union representation. During the campaign, Blake and other union representatives distributed literature or solicited employee support near Respondent's premises about once a week . The Union also held three general meetings for employees. On September 29, the Union held its first general meeting for Respondent's employees at a local restau- rant. During that meeting, several employees volunteered to serve on an employee organizing committee whose purpose was to solicit the signature of authorization cards, promote the Union and provide information about Respondent's campaign efforts . During the campaign, the committee met several times at Blake's home . The com- mittee members were Lula Armstrong, Ernest Barlow, Weader Lynch, Annette Payne, Alyce Seay, Marion Sherron, and Bernice Wells. Eva Henry , James Lewis, Cheryl Shorty, and Helen Woodard attended some of the meetings and worked closely with the committee.3 Respondent's president, Jerry Jones, made three speeches to assembled employees on company time, urging them to vote against union representation. These speeches were delivered in Respondent's cafeteria, a rather small room with six tables, which were removed for the speech, chairs and vending machines . The first 8 Several other employees attended the first committee meeting but did SONICRAFT, INC. speech was delivered on November 25, the second on December 3, and the third on December 10, the day before the election . Two of the speeches were followed by question-and-answer periods . Two of the sessions were taped . The two tapes were subpoenaed for use in this proceeding. One of the tapes was not decipherable, but the other, that of November 25, which was partially erased, was transcribed and both the transcription and the tape itself were received into evidence. The Union won the election , which was held at Re- spondent's facilities on Friday , December 11. The vote count was held on Friday afternoon in the cafeteria and it revealed that 45 employees had voted for union repre- sentation and 35 against. Jerry Jones and a number of other officials of Respondent and the Union were present. Also present were employees Lula Armstrong, Ernest Barlow, and Marion Sherron, who had served as the Union's election observers. That evening, after work, a group of union supporters met for a "victory celebra- tion" at a local pub . Those attending were union observ- ers Armstrong and Barlow and employees Eva Henry, Weader Lynch, Annette Payne, Alyce Seay, Bernice Wells, and Helen Woodard. Two other nonunion em- ployees, Durrell (Skip) Smith, who several employees believed was the son of Supervisor Cora Robinson, and Clayton Starks, appeared at the pub, stood or seated themselves separately from the celebrants and observed them for a time.4 On Sunday, December 13, Respondent laid off 50 of the 92 employees in the election unit. The employees were called at home by supervisors who came into the plant on Sunday for this purpose . Only one nonunit em- ployee was laid off and no supervisors were laid off or demoted.5 The laid off employees received letters, dated December 14, informing them that the layoffs were in- definite; on December 18, they were notified that their insurance coverage had been terminated effective De- cember 15. Several employees were recalled within days after the layoff. A larger number were recalled in February 1982. Thereafter, a number of new employees were hired. Be- tween February 1982 and February 1983, Respondent hired about 10 new employees classified as "storeroom clerk" or "janitor." In February 1983, Respondent re- hired Lula Armstrong, Weader Lynch, and Alyce Seay, after requiring them to pass a three-part test which was different and more difficult than that which had been re- quired at the time of the employees ' initial hire . The new testing program was apparently implemented sometime after December 1982. None of the existing employees was required to pass the test. No other laid off employ- ees returned to work, and, beginning in March 1983, Re- spondent hired a number of new employees for unit posi- tions and was continuing to do so at the time of the hear- ing. 4 Neither Smith nor Starks was included in the December layoff, but they had either quit or been terminated by the time of the hearing. Nei- ther testified in this proceeding 5 The nonunit employee who was laid off was a technician, Bruce Hickman, who also served as one of Respondent 's election observers There was no evidence as to why he was laid off. 771 B. Allegations of Coercion and Evidence of Union Animus and Unlawful Motive The General Counsel relied on a number of statements made and incidents engaged in by Respondent's officials which were alleged as violative of Section 8(a)(1) of the Act as well as several other statements and incidents, which, although not alleged as independent violations, were alleged to show Respondent's animus against the Union and its unlawful motivation for the layoffs. Except for the November 25 remarks of Jerry Jones, which were tape-recorded, the other statements and incidents involve conflicts in testimony which I am called upon to resolve. I have resolved these credibility conflicts by considering not only the cold record but also the de- meanor of the witnesses-the facial impressions, the in- flection of voice, the halting or straightforward character of speech and other intangibles which are difficult to ar- ticulate but form the basis of a trier-of-fact's observation of witness demeanor at a hearing. 1. Cora Robinson's statements to employee Henry In September 1981, Supervisor Cora Robinson had a conversation with employee Eva Henry near Robinson's desk. Robinson said that she "had heard that Faye [Beeks] and [Henry] were Union organizers."5 Henry asked from whom Robinson had heard this information. Robinson said she "had her ways of finding out." Robin- son also asked if Henry had been to any union meetings or had signed a union card . Henry replied "yes" to both questions. In another conversation during the same day, Robinson asked Henry if she knew how the "girls on her line" were voting. When Henry said she did not, Robin- son asked her to ask them how they were voting. Henry gathered five employees together for this purpose, but did not actually question them. Robinson later asked for a report and Henry said, "everything's OK." The above is based upon the testimony of Henry. Cora Robinson essentially denied the statements attributed to her. I credit Henry's testimony . Henry impressed me as an honest witness whose testimony survived vigorous cross-examination . Robinson, on the other hand , testified that she had been fired by Respondent for lying about whether her son had been employed by Respondent. At the hearing there was an issue as to whether Respondent had learned the identity of certain prounion employees because Durrell (Skip) Smith, who some employees be- lieved was Robinson's son, was present at the victory celebration after the Union won the election and wheth- er he reported this fact to Robinson . Robinson denied that Smith was her son, although she conceded that em- ployees thought him to be her son. She testified that former employee Durrell Robinson was her son-al- though at one point in her testimony, she made a mo- mentary slip and named Smith as her son . She also testi- fied that, in February of 1982, President Jerry Jones or Plant Manager Willie Taylor asked her whether Durrell Robinson was her son and she denied it. According to 6 Henry testified only to the name Faye, but documentary evidence confirms that the only Faye among the employees was Beeks Robinson supervised both employees. 772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Robinson, when they found out the truth, she was shown her son's birth certificate and fired . Robinson was unable to identify where her son worked and there is no other evidence that a Durrell Robinson was ever employed by Respondent. I found Robinson 's testimony on this point totally unbelievable. Why would Respondent investigate or be concerned about the employment of Robinson's son in February 1982 when, according to Robinson, he had been employed only a short period of time and had not been employed for some 4 months? And what reason would Robinson have to lie about the employment of her son? Contrary to Robinson's testimony, there appears to be no rule against employing children or other relatives of employees at the plant. Jerry Jones' son and stepfather were employees and Dorothy Jones' daughter and Jerome Jones' wife also worked at the plant. There was testimony that Dorothy Jones had told employee Weader Lynch that Cora Robinson had informed man- agement officials of the celebration and identified its par- ticipants. Robinson's evasive and dissembling testimony not only lends credence to this testimony , but also casts considerable doubt on Robinson 's own reliability as a witness. In accordance with the credited testimony, I find that Robinson unlawfully interrogated Henry about her union activities, sought to enlist her aid in polling employees as to their union activities, and created the impression that Respondent had the union activities of employees under surveillance. These were not isolated violations. There were several interrogations and they were interspersed with a request to engage in polling and a statement which indicated that Respondent had ways of finding out about union activities . Accordingly, I find that, by virtue of Robinson's statements and conduct, Respondent vio- lated Section 8(a)(1) of the Act. 2. Rufus Denson's statements to employee Harper One day in November 1981, just before lunch, while he was working at his punch press in the machine shop, employee Oliver Harper was approached by his supervi- sor, Rufus Denson. Denson, who had no work-related reason for approaching Harper, asked Harper how he felt about having a union. Harper stated that he was once "a member of the UAW" and stated that he did not have anything against labor unions. Denson said he had been a member of the Teamsters Union and had been a union steward. He said, however, that labor unions were "no good" and caused "confusion and problems." Denson also mentioned a book he had about the Team- sters Union which he wanted to show Harper, but could not because of the election. At some point during this conversation, apparently after the first question , Jerome Jones, the son of President Jerry Jones, and Robert Free- man, Jerry Jones' stepfather, walked over and remained for the rest of the conversation. They nodded assent to some of Denson's remarks.' Freeman did not testify about this matter Jerome Jones denied being present at any such conversation , but I found him not to be a reliable witness and do not credit his denial. Later, about 1 week before the election, in the after- noon, Denson approached Harper and fellow employee, Bertram Hayes, at their work station. He asked them how they were going to vote. Harper described this as a "kind of funny question." Harper said he did not know but that he would vote in his "best interest." Hayes also told him he did not know. Denson thereafter stated that "if the Union did get in" Jerry Jones could "either move the company, hire new employees or lay off the employ- ees he had" and that the employees "would be the ones to not have a pleasant Christmas and be in the unem- ployment line." Harper testified that Denson also approached him, on the day of the election, "smiled in a joking way" and said, "[H]ow are you going to vote? You can tell me." Harper responded, "I really don't know." The above is based on the testimony of Harper, who impressed me as a candid and reliable witness. He placed the conversations in context and testified in meaningful detail. His candor was demonstrated by his admission that he could not place in context or give detail about the speeches of Jerry Jones and that he had less experi- ence than other employees in the machine shop. This was significant because it would have been in his interest to demonstrate his flexibility-which was supported by his experience at other jobs before coming to Sonicraft- in order to bolster his case that he was discriminatorily laid off. Supervisor Denson denied that he questioned Harper about his union activities. He testified to a conversation, about a week before the election, between him and Harper in the presence of Hayes, but denied asking "how anybody was going to vote." Denson also testified that, after one of President Jones' speeches, Harper called him over to the place where Hayes and Harper were work- ing and asked if "the company was going to move or have a layoff, because there had been rumors of it." Ac- cording to Denson, he told Harper "anything was possi- ble." Hayes also testified about the latter conversation but did so only briefly and in a conclusory manner. He testified that he did not hear Denson discuss with Harper how the latter would vote and he denied that Denson had ever asked him, Hayes, that question. Hayes did not give any other details about the conversation and said nothing about who initiated the conversation or whether there was any discussion about layoffs or a move. Denson did not impress me as a reliable witness. Nor did he testify in as detailed or candid a manner as did Harper. Further, in a very significant piece of testimony, Denson was shown to have contradicted himself con- cerning another prounion employee under his supervi- sion, Ernest Barlow, whose selection for layoff was al- leged to be discriminatory. Denson first testified that Barlow had never performed any spray painting and he denied telling anyone that Barlow had performed such work. Yet, in a memorandum dated August 21, 1981, Denson had indicated that Barlow was "doing spray painting" and sought a raise for Barlow. Denson's effort to explain this inconsistency did not reflect favorably on his reliability as a witness. SONICRAFT, INC. 773 In accordance with my assessment of the evidence and the witnesses set forth above, I credit Harper's account of the conversations in November of 1981 and on the day of the election. As to the conversation which took place 1 week before the election , I must take into ac- count Hayes' version . He denied hearing Denson ques- tion Harper as to how he would vote in the election and denied that he himself was questioned by Denson . This is directly contrary to Harper who testified that both em- ployees were questioned. I have no reason to reject Hayes' testimony. He was not effectively cross-examined on this point and had no reason to testify falsely. Thus, even though I was impressed generally by Harper, it is possible that he was mistaken about the interrogation portion of the conversation, and I find that the General Counsel has not proven by a preponderance of the evi- dence that Denson questioned Harper in the conversa- tion which took place 1 week before the election. How- ever, I do credit Harper's version of that part of that same conversation that dealt with a possible layoff rather than Denson's version. It is obvious from the testimony of both Harper and Denson that there was some discus- sion of a possible layoff. Hayes did not testify about such a discussion. He corroborated neither Hayes nor Denson on this score. In these circumstances, I view Hayes' testi- mony, limited as it was, as having no significance in de- termining what was said about possible layoffs in the conversation between Harper and Denson 1 week before the election. In accordance with the credited testimony, I find that, in November 1981, Denson unlawfully interrogated em- ployee Harper as to how he viewed unions and how he would vote in the upcoming election . The interrogation was followed by a discussion by Denson of the "trouble" with unions, and, thereafter, Respondent's production manager and the president's son joined Harper and Denson. No purpose for the questioning was given and no assurances against reprisals were offered . In all the circumstances, I find that the interrogation was coercive. In addition, I find that Denson's statement that Respond- ent would lay off employees or move the plant if the em- ployees selected the Union constituted a violation of Sec- tion 8(a)(1). Since the statement was not based on eco- nomic considerations it amounted to an unlawful threat of reprisal. I do not find a violation, however, in Denson's ques- tioning of Harper the day before the election about how he was going to vote. Harper's own testimony strongly suggests that the question was a simple one followed by no further discussion about the union campaign and was done in a joking manner. In these circumstances, I do not find that the question amounted to a coervice inter- rogation and I shall dismiss this portion of the complaint. 3. Dorothy Jones' statements to employee Lynch in November and December 1981 Sometime in November 1981 , employee Weader Lynch had a conversation with her supervisor, Dorothy Jones, at Jones' desk. Jones asked if Lynch had attended the union meeting held the night before . Lynch said that she had. Jones also asked if employee James Lewis had attended the meeting. Lynch said he had not and asked why Jones was asking about him. Jones said that Lewis was being "watched by personnel" because of his union activities. She also said that Lynch should watch herself and that she and Lewis should stay busy. She was told to pass the message on to Lewis and she did. On the day of the layoff, Sunday, December 13, 1981, Lynch was notified of her selection by Rufus Denson who told her that she was being laid off because of "lack of materials." Lynch said she did not understand because there was "plenty of work" when she left work on Friday. She also questioned why her supervisor had not called her. Denson replied that there were so many calls that he was helping out. That day or the next, Lynch called Jones at home . When Lynch questioned her about who was kept and who was not, Jones said "it wasn't up to her to determine who was being kept ." Jones told Lynch that Cora Robinson had given Jerry Jones a list of the people who had attended the victory celebration on Friday night after the election results had been an- nounced. She also said that Jones was very upset "be- cause the union had won" and that Jones said that "these people would definitely not be coming back to work." Lynch replied that she did not believe that Cora Robin- son, followed the group as Jones reported , but that she noticed that Robinson's son was present at the victory celebration. The above was based on the testimony of Lynch. Jones denied that she had engaged in any of the above- mentioned conversations . I credit Lynch's version of both conversations. She impressed me as an honest wit- ness who was employed by Respondent when she testi- fied and was testifying against her employer's interests. Her testimony also survived vigorous cross-examination. Jones, on the other hand, seemed to me not to have been a candid witness. In observing her demeanor, I thought she was holding something back. For example, her denial that she even talked to Lynch about the layoff seems to me implausible. Lynch was one of Jones' group leaders and she was notified of her layoff by a different supervi- sor. It is thus plausible that Lynch would have sought direct confirmation from her own supervisor, Jones. Jones' failure to confirm even this aspect of Lynch's tes- timony calls into question her reliability as a witness. Moreover, Lynch's testimony concerning Jones' wanting to have Lynch back is confirmed by Jones' own testimo- ny that, in February 1982, she had recommended the recall of Lynch but that her superiors overruled her. That Jones would have been so frank with Lynch is not unusual since Lynch had greater seniority than Jones at the plant, and , according to uncontradicted testimony, had supported Jones when some employees exhibited re- sentment that she had been appointed a supervisor from outside Respondent. This created a "bond" between the two, and, indeed, Jones had attended a party for Lynch shortly before the layoff. Also adversely reflecting on Dorothy Jones' credibil- ity is the fact that certain documents which she prepared after the layoffs attempting to justify her selection of some union adherents for layoff were inconsistent with performance reviews or evaluations prepared by her a week or two before the layoff. The justifications were 774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prepared on December 14, the Monday after the layoffs, but they were clearly altered to reflect the date of De- cember 13, the Sunday when the layoffs took place. These justifications were attached to a position statement submitted by Respondent's counsel, Bettye Kitch, to the Regional Director during the original investigation of this case. They were introduced at the hearing by the General Counsel to impeach Jones' testimony and they do just that. For example, on December 4, Jones rated Lula Armstrong "excellent" on productivity; on Decem- ber 14 she rated her "good." On December 9, she rated Weader Lynch "excellent" as to productivity and attend- ance; on December 14, she rated her "good" on produc- tivity and dependability. On December 4, she rated An- nette Payne "excellent" on productivity; on December 14, the rating had changed to "good." And, on Decem- ber 4, she rated Alyce Seay's productivity "good," but, on December 14, she rated it "fair." Since the perform- ance evaluation forms specifically listed four ratings-ex- cellent, good, fair, unsatisfactory-and since so little time elapsed between the different ratings, it is unlikely that these discrepancies were inadvertent mistakes. The post- layoff justifications were submitted with Respondent's position statement; the prelayoff evaluations were not even mentioned in the statement. In accordance with my credibility determination, I find that Jones unlawfully questioned Lynch about her union activities and those of employee Lewis. Such inter- rogation was unaccompanied by assurances against re- prisal and there was no purpose given for the question- ing. Thus, the interrogation violated Section 8(a)(1) of the Act. I also find that Jones' statement to Lynch that Lewis was being "watched by personnel" because of his union activities and Jones' subsequent comment that Lynch should watch herself and that she and Lewis should stay busy created an unlawful impression that the employees' union activites were under surveillance, in violation of Section 8(a)(1). Furthermore, these remarks added to the coercive circumstances surrounding the in- terrogation, particularly since Lynch, as a group leader, was told to, and actually did, report the message to Lewis. In addition, I find that Jones' statement in De- cember 1981 that employees would not be coming back to work because Jerry Jones was upset with the outcome of the union election not only reflected Respondent's union animus and its motivation for the layoffs, but also constituted an independent violation of Section 8(a)(1). See Rogers Mfg. Co., 228 NLRB 882, 886 (1977); Circus Circus, 244 NLRB 880, 884 (1979), enfd. in pertinent part 646 F.2d 403 (9th Cir. 1981). 4. Robert Freeman's remark to employee Durham Employee Mary Durham testified that, on Monday morning, December 14, she went to the plant and learned that she was one of the laid off employees. She talked to Production Supervisor Robert Freeman and asked permission to go to her work station to pick up her personal belongings. According to Durham, as Free- man accompanied her to her work station, Durham asked why the employees were laid off. Freeman replied that work was slow, "plus the Union came in." Freeman admitted to having a conversation with Durham about her being on the layoff list and escorting her to her work station but denied saying anything more to her. I credit the testimony of Durham. She reaffirmed her testimony during cross-examination. Moreover, I be- lieve it plausible that she asked Freeman why the em- ployees were laid off. She had not been notified of the layoff as the others had the day before and she would naturally have been curious about it. Freeman seemed to me the kind of person who, at the time and in the cir- cumstances of the moment, would have made an un- guarded but revealingly truthful response to Durham. On the other hand, as a witness, Freeman seemed less than candid not only on this issue but also on other issues such as his denial that he intentially observed union offi- cials passing out literature. His effort to counter this alle- gation by stating that it was his normal practice to take his coffee outside the plant was strained. In addition, I thought his testimony concerning the recall of two em- ployees for the packaging department was vague and evasive. Finally, Freeman was Jerry Jones' stepfather and I perceived, in his demeanor, a reluctance to give testimony adverse to Respondent's interests. In accordance with my credibility determination, I find that Robert Freeman did indeed tell employee Mary Durham that a reason for the layoff of December 13 was because "the Union came in." No allegation was made that the statement constituted a violation of Section 8(a)(1), but it was alleged that it bears on Respondent's motivation for the layoff. I agree. Freeman was part of management and, as production manager, he was privy to the deliberations undertaken by Respondent to effectu- ate the layoff. Cora Robinson testified that she discussed her selections both for layoff and recall with Freeman. And, according to Jerry Jones, he talked with Freeman in early December about the conditions which led to the layoff 5. Jerome Jones' statements to employees and union representatives The General Counsel, relying on the testimony of sev- eral employee witnesses and that of Union Representa- tive Roy Blake, alleges that the son of President Jerry Jones, Jerome Jones, a clerical employee who is alleged to be an agent of Respondent, made statements which show Respondent's union animus and its unlawful moti- vation for the December 1981 layoffs. Three separate in- cidents are relied upon. First, it is alleged that Jerome Jones had an altercation with Blake while Blake was dis- tributing union literature to employees and revealed the Respondent's opposition to unions. Second, it is alleged that Jones told a fellow clerical employee, Hameeda Bahah, that his father was going to lay off employees and actually did lay off employees because of union ac- tivities.8 Third, it is alleged that Jones told employee 8 I do not accept Bahah's testimony. Her testimony was quite vague on cross-examination and she appeared to harbor some personal animus toward Jerome Jones and toward Respondent for having discharged her. Jones himself was not a reliable witness , particularly when pitted against Blake and Berryhill, who were impressive witnesses. Jones' testimony Continued SONICRAFT, INC. Linda Berryhill that his father would lay off employees "if the Union gets in." These allegations require certain credibility determinations because Jerome Jones denied making the objectionable statements. But a more signifi- cant threshold issue is presented because Respondent denies that Jerome Jones is an agent and disputes wheth- er his statements can be used to show Respondent's animus or motivation. On the issue of agency status, and, more particularly, on the question of whether the remarks of Jerome Jones are reliable indicators of Respondent's motive, I agree with Respondent. The crucial and determining factor in establishing the nature of an agency relationship is the scope of authority, actual or apparent, conferred upon the alleged agent by his superiors. See F & D Enterprises, 251 NLRB 1199, 1207 (1980). In turn, the reliability of any statement that an agent might make concerning com- pany policy depends on its relationship to matters over which he has been granted authority. See 4 Wigmore, Evidence, section 1078 (Cladbourne rev. 1972 & Supp. 1983). Jerome Jones began working for the Respondent in June 1978. At the time of the election, he was a bid clerk earning $7.50 per hour. His job involved receiving gov- ernment bid solicitations, recording them in a log, and notifying his father and other management officials that they had been received. If a bid decision was made, he would coordinate the assimilation of information from various departments and present it to his father. Howev- er, he had no voice in the decision making process and generally checked the assembled information for accura- cy only. There is no evidence that he utilized independ- ent judgment in any of his responsibilities. Nor is there any evidence that he had any responsibility in the area of employee relations. He was a clerical employee who worked in a different area than the production employ- ees. It appears that his contact with production employ- ees was minimal . It is, of course, true that employees knew he was the president's son. However, he was a married adult who did not live at home, and, so far as the record shows, received no special help from his father. He had no financial interest in Respondent and was not, so far as the record shows, privy to manage- ment decisions or deliberations. The General Counsel relies on several rather neutral pieces of evidence such as the fact that Jerome attended one or two of his father's campaign speeches and that he was present with his father when the ballots were count- ed in the union election. I do not view this evidence as significant in showing agency status, at least insofar as at- tributing to Respondent the statements of Jerome Jones. The General Counsel has not alleged that Jerome's state- ments were violative of Section 8(a)(1). Thus, whether the employees reasonably believed that Jones was ex- pressing management policy or were, in fact, coerced by his statements is not at issue here. Compare Airborne Freight Corp., 263 NLRB 1376 (1982). The central issue about his encounter with Blake was implausible and his denial that he was present at the vote count after the election was counter to the credi- ble testimony of several witnesses . Nevetheless, as between Bahah and Jones, two unreliable witnesses, I cannot sustain the General Counsel's version of their conversations. 775 here is whether Jerome Jones' statements were a proper reflection of Respondent's animus and motivation. I think not. Jones was merely a clerical employee; he was nei- ther a part of management nor was the position he occu- pied related to labor relations. Thus, it cannot be implied that these statements reflect information to which he was privy during the normal course of his employment. Fur- thermore, there is no independent evidence that he was a party to, or informed of the nature of, the deliberations prior to the layoff, dealing with the union campaign or the layoff itself. Nor is there any indication that at any point Jerome Jones was taken into management's confi- dence. It therefore follows that Jerome's statements could be considered reliable only because he is the son of Jerry Jones. The Board, however, has held that "family rela- tionship is but one of the factors to be considered" in de- termining the existence of an agency relationship. Air- craft Plating Co., 213 NLRB 664 (1974). Thus, a simple father-son relationship, without some other indicia of managerial responsibilities or identity, is not sufficient to establish agency. See Byrd's Terrazzo & Tile Co., 227 NLRB 866, 867 (1977). I therefore -find that, without more, the familial relationship of Jerome and Jerry Jones is insufficient to establish the agency of Jerome for the purpose of imputing his statements to the Respondent. Jerome's statements could have been based on specula- tion or on his own perceptions of unions or of the harm they might have on his father's operation. Whatever strands of evidence must be put together to determine Respondent's motivation for the layoffs, Jerome Jones' statements to employees are not, in my view, particularly reliable indicators of such motivation and I do not rely on such statements. 6. William Robinson's statement-to employee Shorty Employee Cheryl Shorty testified that she was not in- formed of the layoff on Sunday and, when she learned about it from other employees, called the plant. She spoke to Dorothy Jones about why she was selected for layoff. Jones indicated that it was because of her absen- teeism. Shorty protested that her absenteeism had been primarily due to excused medical absences including sur- gery and hospitalization. Jones responded that she "was doing what she was told to do" and that, if it were up to her, Shorty would still be there. I credit this testimony of Shorty. It is compatible with the credited testimony of Lynch wherein Dorothy Jones similarly protested that she had nothing to do with the selections. Shorty also testified that she thereafter called Person- nel Director Bill Robinson to protest her selection for layoff. In the course of a long conversation with Robin- son, she asked him why all the union supporters had been laid off. According to Shorty, after some hesitation and unrelated comments, Robinson did admit, "You know the reason why you was laid off. They use like a word 'economics' [W]e [were] here to help you all and we [were] going to change things. But you all just took matters into your own hands." 776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Robinson denied making the comment , although he did concede that he and Shorty had a lengthy telephone conversation on December 14. This is a difficult credibil- ity determination . Shorty seemed like an honest witness. She also seemed like the type of person who would insist on an explanation for the layoff from someone like Rob- inson. On the other hand, Robinson testified only about this one incident . He was not cross-examined by counsel for the General Counsel and only briefly by counsel for the Union. Although Robinson did give an unusual em- bellishment to some of his answers when denying he made the statements attributed to him, I am not persuad- ed that this makes him an unreliable witness . Moreover, I find it hard to accept the fact that Robinson would have made such an unguarded and blatantly offensive com- ment in view of his position and his demeanor. It is more likely that Shorty testified to what she believed had hap- pened rather than what Robinson had said . Accordingly, I do not credit Shorty's testimony concerning her con- versation with Robinson. 7. Jerry Jones' remarks in a preelection speech On November 25, Jerry Jones gave a prepared speech to the approximately 90 unit employees, who had been assembled in the Respondent's cafeteria. His purpose was to express opposition to their voting for union represen- tation. The speech was composed by a member of Re- spondent's management staff. Its presentation was fol- lowed by a period of some 45 minutes during which Jones responded to various employee questions.9 After being greeted by restrained applause, Jones com- menced reading from his prepared text . Among other things, he informed the employees that he had been told "that at least one of you went to a union meeting before you even started working here . . . [and] that at least one of you was actually a union organizer and [sic] that will soon leave the company, rather than actually intend- ing to stay here." The first description fit employee Alyce Seay, who several weeks before, had attended a union meeting after being hired but before actually start- 9 Both the speech and the subsequent question -and-answer period were recorded by a management official . The tape, which contained a gap of approximately 10 minutes because Jones had recorded over and thus erased that portion, and a written transcript were submitted into evi- dence. The transcript was stipulated as authentic , but, thereafter, Re- spondent contended that there were four statements in the transcript that were erroneous I have carefully listened to the tape several times. Three of the four contested statements are not crucial points in the tape. The other, which appears at p. 25 of the transcript, deals with whether the word "compete" should be "fulfill"as Respondent alleges. On this point, I agree with Respondent. As Respondent has suggested , I have paid par- ticular attention to the actual tone and manner of Jones ' remarks as well as the employees' reactions thereto in order to evaluate not only the pos- sible coercive nature of Jones' statements, but the general atmosphere of the meeting See Electic Motors & Specialties, Inc., 149 NLRB 1432, 1439 (1964). Respondent contends that the laughter and chuckling which is audible on the tape reflects a friendly , jocular atmosphere. I disagree Serious matters were being discussed. Employees were being addressed in a formal setting by the chief operating official of Respondent. And Jones' voice rose on several occasions. Except for a few instances where the words spoken were inherently disarming or humorous , such as Jones' ref- erence to himself as being "ugly," much of the laughter seemed to me to be nervous laughter, normally used by people to dissipate tension, particu- larly since the context or the words used would not normally result in laughter ing work. As Jones made this statement , a number of em- ployees looked in Seay's direction. 10 Upon the completion of his prepared remarks, Jones initiated a question-and-answer period. In response to an employee's question concerning Jones' statement in his prepared remarks about the possible freezing of wages during contract negotiations, Jones noted that such nego- tiations are, in most cases, "lengthy." He then added, "[A]nd I don't want to say how long this might be `cause I don't know . . . but that means we cannot raise your salary [or] benefits . . . during that whole year." Another employee observed that an employee suggestion box might be an appropriate vehicle for improving cer- tain unsafe conditions at Respondent 's plant, adding, "I'm not no union organizer or anything like that." Jones responded that he too was concerned about safety and he further stated, "I also have another dilemma. I can close off that part of the [inaudible] and lay off some folks, too . . . . You know I can hear all kinds of com- plaints from everybody.... Okay, I'm trying as best we can to offer some employment and do within . [W]e can get into hassles about all kinds of things all the time and I think the Company tries to do its best about them... [I]f you have some real concerns . . . you tell me." Thereafter, an employee commented that Jones often appeared in the work areas "look[ing] mean." Jones began his response in a lighthearted vein, noting that per- haps he was "just ugly." He then observed , "We're not making our production goals ." At this point, the employ- ees began to protest and Jones interjected "Hey, wait a minute, let me tell you some other things about it- there's some other things you should think about. Al- though we're not doing and most companies probably would have had some layoffs . . . we have kept every- body. On the other hand , you got to understand it puts me under a lot of pressure, because I'm paying you and I shouldn't." In connection with Jones' observation that the employees were not meeting production goals, one person noted that the employees were often forced to work without proper tools and equipment. Jones admit- ted that this was true, but added , "Now the one thing that you know, you should know and I can't promise this will last forever, but you have not been laid off as a result of it and nothing else, okay? [Y]ou got to look at the benefits as well as the problems." Later on, an em- ployee complained about being assigned to tasks other than those for which she had been hired. William Robin- son attempted to explain that this was due to "things [being] really slow." Jones then interrupted , "[M]aybe we're going about things the wrong way," and added, "Maybe people would rather go home." Jones also said that he was doing what he thought he would like 10 Jones acknowledged that he personally inserted this particular state- ment into the prepared text after being given this information by either William Robinson or Yvonne Shelton, officials in the personnel office. At one point in his testimony , he denied any knowledge of the actual identi- ty of the person, asserting that he had been informed only that it was "an employee" and that he had taken no steps to determine who this person was At another point, however, he testified - "Later on I found out that the person that I was referring to here was somebody else," thus indicat- ing that he did have someone in mind when he made this statement. Jones' testimony on this point was contradictory and evasive. SONICRAFT, INC. 777 "people to do to me" and concluded , "I mean if that's not what you want, we can do it differently , you know." In response to another question Jones stated that he was more concerned about his competitors than about the Union . However, in the course of his answer, he told the employees that they had to put what he had said before "in perspective" and discussed the impact of a union victory. He said that the employees were "gonna probably, if [the Union] get[s] in, suffer more than the Company." He then explained that he currently moved employees from their normally assigned jobs to others when work was slow. However, if the Union were se- lected, he would "have to ask the Union if I can move you from here to here. I don't want to get into that. On the other hand, if you don't mind going home, maybe we should-you know. Because that's what [it] would mean probably what will have to happen." Thereafter, in answer to a question about whether Jones would have given the employees more benefits if he was able, Jones stated that Respondent had lost money in the past but that "now we're trying to come back and you said you may think things are really great. ... The Company is making money hand over fist, let me tell you the reason is that I went out and borrowed some money that that I got to pay back. . . . That's why you see something like that happening because I'm trying to get things so that we can create some more jobs-so we can do some more things." Continuing to respond to the question of whether he would grant benefits, Jones stated as follows: I may not if there's a union. And the reason is simple. OK? I don't-if you decide that you want the Union representing you, then you don't need me. I'm going to fight everything, the law, every- thing as much as I can. You don't need me any- more. You said I want this man here to represent me. Well, let him get for you what he can get. I'm not going to offer you anything, alright, cause you already said, hey, I want him to do it, so let him do it. OK. It's that simple and I'm gonna tell you. I'm gonna take as hard a line-I'm gonna fight every bit I can, cause I've already told you , you know, and we don't have no misunderstanding about it. The General Counsel and the Union contend that the aforementioned statements made by Jones included threats of reprisal for choosing union representation and remarks which created the impression that the employ- ees' union activities were under surveillance, all in viola- tion of Section 8(a)(1) of the Act. Respondent essentially disputes that any of these statements amounted to a vio- lation. Alleged Impression of Surveillance Jones' statement that "he had been told" that an em- ployee had attended a union meeting prior to starting to work with the Respondent and that another was a "union organizer" created the impression that the em- ployees' union activities were under surveillance by Re- spondent and thus violated Section 8(a)(1). All union meetings were held away from Respondent 's premises. Thus, absent some explanation by Jones as to the source of this information , it would be reasonable for the em- ployees to assume that their union activities were being monitored by the Respondent . See Redwing Carriers, Inc., 216 NLRB 530, 536 (1976). The coercive effect of these statements was demonstrated by some employees' looking at one specific employee and by the express dis- claimer of union activity mentioned by a subsequent em- ployee questioner. Alleged Threats of Reprisal It is alleged that Jones threatened to lay off employees and take other reprisals if the Union won the election. On several occasions during the question-and-answer period Jones referred to the fact that he had avoided lay- offs in the past, but that such layoffs were possible if Re- spondent's position on safety, job assignments, and pro- duction were not followed . However, Jones' statements came in response to questions by employees complaining about the Respondent's position on these subjects. Jones simply stated that the employees had a choice of being laid off or working in the allegedly unsafe conditions, ac- cepting different assignments and increasing production. In short, Jones was taking a hard economic line in re- sponse to their complaints. He was saying, in effect, "take the jobs as they are." There was little if any refer- ence to the Union in Jones' remarks in this respect and I do not find anything unlawful in most of his responses to employee questions even though they may have con- tained references to the possibility of a layoff. In two instances, however, Jones' remarks did relate rather specifically to the Union and what he would or would not do with respect to employee benefits and working conditions in response to the Union. In these in- stances, Jones crossed the line between lawful and un- lawful comment. The first was Jones' statement that the employees "would suffer" more than Respondent if the Union won representation rights. He explained that he currently moved employees from job to job when work was slow, but that he did not want to talk with the Union before doing so, and, therefore, "if you don't mind going home, maybe we should-you know . Because that's what [it] would mean probably what will have to happen." A fair reading of these remarks is that, if the Union were selected, the employees would "suffer" and lose benefits-for example, the ability to work in slow periods-which they enjoyed in a nonunion environ- ment. The second instance was Jones' statement in response to questions relating to employee benefits . It was clear that both the questioner and Jones were talking about benefits Jones could afford . He specifically told employ- ees that he "may not" grant benefits "if there's a union." He followed this remark by stating, "[I]f you decide that you want the Union representing you then you don't need me . . . . You said I want this man here to repre- sent me. Well, let him get for you what he can get. I'm not going to offer you anything , all right, cause you al- ready said . . . I want him to do it, so let him do it. 11 A fair reading of these remarks is that Jones threat- 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ened that he would not grant unspecified benefits to em- ployees if the Union won representation rights. Jones' observation that the employees would suffer more than the Company if the Union prevailed, com- bined with his explanation that he would then no longer be able to move employees from their normally assigned jobs when work was slow, thus resulting in their being sent home, as well as his statement that he might not, if the Union were elected, grant employees those benefits he could afford amounted to improper threats of retalia- tion and thus violated Section 8(a)(1). Jones' statements, which suggested detrimental treatment of employees, were neither couched in, nor based on, reasonably objec- tive facts which were beyond his control. Rather, Jones made it clear that the forthcoming consequences would be the product of his own action, taken as a result of a union election victory. As such, the statements were overt threats of retaliation, and thus violative of the Act. See NLRB v. Gissel Packing Co., 395 U.S. 575, 619 (1969). Furthermore, the fact that they were made in re- sponse to employee inquiries or observations at a meet- ing whose sole purpose was to permit Jones to express his opposition to unionization is of crucial import. In Gissel, supra, the Supreme Court made clear that , in ana- lyzing the coercive impact of employer statements, the Board must focus on "[W]hat did the speaker intend and the listener understand?" Id. at 619. Accord : NLRB v. Federbush, 121 F.2d 954, 957 (2d Cir. 1941)(L. Hand). The Court also observed, in Gissel, that an employer who has control over the employer-employee relation- ship "and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his be- havior. He can easily make his views known without en- gaging in 'brinkmanship' when it becomes all too easy to `overstep and tumble [over] the brink,' Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967). At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees." Id. at 620. Jones' remarks did not meet the test of Gissel for protected speech. I t 8. Dorothy Jones' February 1982 statements to employees Henry and Lynch Employee Eva Henry was among the employees re- called in February 1982. Upon her return to work she had a conversation with Dorothy Jones. Jones asked Henry how Weader Lynch, Henry's friend, was doing. " It is unclear whether it is alleged that other parts of Jones' state- ments are unlawful because neither the General Counsel's nor the Union's brief is a model of clarity on this point . For example, there is a reference in the General Counsel's brief about Jones' failure explicitly to deny a rumor which was brought to his attention by an employee who asked if it were true, as rumored, that Respondent would close the plant if the Union won the election . In its brief, the Respondent answers an anticipat- ed argument by asserting that Jones' remarks in this respect were not im- proper. I am uncertain as to whether this issue is before me, but , assum- ing it is, I find no violation. It is open to inference that Jones, who react- ed to the question by saying that it put him on the spot , did not go out of his way to put the rumor to rest as he should have. However, the thrust of his response seemed to be that he had so much invested in the oper- ation that he would not close it down. I think the employees would rea- sonably have understood this to have been his intended response. Ac- cordingly, I do not find that Jones' response to the question dealing with the rumored plant shutdown was unlawful. Henry replied that Lynch was fine and asked when she would be recalled . Jones replied that she "needed help" and that she had "submitted Weader's name" several times "to come back to work." Several days later, Henry again asked Jones when Lynch would be returning to work. Jones shook her head and replied that Lynch, "wasn't coming back." When Henry asked why, Jones replied that Lynch was on a "no-no list." Henry relayed this information to Lynch. On or about February 17, 1982, Lynch called Jones to verify the information. Lynch asked Jones "if there was a list." Jones replied that "there were two lists, one of people who would come back and one of people who would not come back." Jones admitted that she had sub- mitted Lynch's name "to the office" but that at her supe- riors had overruled her. Jones also stated that she had discussed Lynch's possible recall with Willie Taylor, and that Taylor had told Jones that Respondent "had re- ceived phone calls" about Lynch's participation "in union activities." Jones told Lynch that she had also dis- cussed Lynch with Assistant Personnel Administrator Yolanda Shelton. Shelton told Jones that "Jerry Jones' lawyer had advised [Respondent] against calling [Lynch] back because she was a troublemaker and affiliated with the Union." Jones argued that Lynch's "work perform- ance and conduct at work was good" and that her union activities should not be held against her , but Shelton re- plied that "she had nothing to do with it" and "was doing what she was told." A few days later, Lynch called Shelton. She asked what criteria had been used to select employees for re- tention and recall. Shelton replied that flexibility was the primary factor. Lynch explained that she had been a group leader and, as such, was one of Respondent's most flexible employees. Shelton replied that she knew that but that Respondent, at that time, did not need any group leaders. Lynch asked to return to work as a "line girl," a regular employee . Shelton said that she would have to talk to Personnel Manager Bill Robinson . Short- ly thereafter, Lynch called Robinson. He told her that the recall decision was that of Dorothy Jones and Willie Taylor. Lynch told him that she had already spoken with Jones and that Jones had no objection to her recall and had, in fact, already submitted her name for recall. Robinson told Lynch that he would "get back to her." Robinson, however, never contacted Lynch. The above was based on the testimony of Lynch and Henry whom I credit on this issue . Their testimony was credited in a previous portion of this decision and it meshed on this issue . Jones conceded that she talked to both employees and that she had indeed recommended that Lynch be recalled. This tends to support Lynch's testimony. Moreover, I have discussed at length in a pre- vious part of this decision the reasons why Jones did not impress me as as reliable witness . There is no reason to treat her testimony about this issue as having any greater reliability. For example, Jones testified that Lynch asked no question about the fact that she was not recalled. However, in view of Lynch's position as a group leader, I believe that she would have questioned Jones on this matter. The undisputed fact that Lynch then called She]- SONICRAFT, INC. 779 ton and Bill Robinson, seeking recall, supports the view that Lynch pressed the matter of her reemployment. I also credit Lynch's testimony that she was willing to return to work as a regular employee as her friend Eva Henry had done. This is confirmed by her determined effort to get reemployed, and, indeed, she was eventually reemployed as a rank-and-file employee. In accordance with my credibility determination, I find that Jones' statements to Lynch and Henry reflect Respondent's union animus with respect to both the reason for the original layoff and the subsequent recalls. C. Analysis of the Alleged Discriminatory Mass Layoff The timing of the layoffs strongly supports a finding of discrimination. The layoffs were decided upon over the weekend immediately after the Board election. The an- nouncement that the Union had won the election was made near the end of the workday on Friday. The em- ployees were called at home on Sunday and told not to report for work on Monday. President Jerry Jones did not even await a written report of an inventory taken on Saturday which allegedly caused him to decide that em- ployees had to be laid off. He acted only on a verbal report from Materials Manager Irene Glatter. And, except for one person, Respondent limited its layoff to production employees who voted in the union election despite the fact that it employed an equal number of office and engineering employees. No supervisors were affected. Thus, by the next working day after the elec- tion results were announced, Respondent had effectuated an "indefinite" layoff of over 50 percent of the employ- ees in the election unit. t 2 Respondent's animus against the Union had been ex- pressed on several occasions prior to the election and unfair labor practice were committed by various supervi- sors. Supervisor Denson threatened the very action which took place-a layoff-if the Union won the elec- tion. The day after the layoffs, Production Supervisor Freeman admitted that they had taken place in part be- cause "the Union came in." In a preelection meeting with employees, President Jerry Jones made two unlaw- ful threats of loss of benefits if the employees selected the Union. One of those benefits mentioned by Jones was the ability of employees to work during slow periods. His statement that employees would "suffer" more than Respondent if the Union won the election proved pro- phetic. In addition, Supervisor Dorothy Jones told em- ployee Weader Lynch that Respondent had found out about a victory celebration among union supporters after the election results were announced, that Jones was upset about the union victory and that he said that those employees would not be coming back to work. This shows that Respondent was interested in retaliating against the celebrants-all of whom were laid off-be- cause of the election results. Indeed, not only did the layoff reach all of the union victory celebrants but it also reached all of the union election observers. As shown 12 The precipitous nature of the layoffs is also shown by the rather im- mediate recall, within days, of about 7 employees and the recall of an- other 13 employees in February These recalls are discussed in the next section of this decision. elsewhere in this decision, there is evidence that Re- spondent discriminatorily elected a number of these em- ployees for layoff, including two highly regarded group leaders, Eva Henry and Weader Lynch. This evidence gives meaning to the timing and the number of the lay- offs and demonstrates a prima facie showing of discrimi- natory motive. In the face of this evidence, Respondent has failed to show that the layoff-in such numbers with such alacri- ty-would have taken place absent the selection of the Union by the employees. Respondent's defense, based primarily on the testimony of Jerry Jones, is as follows: At the beginning of December 1981, Jones learned that an official of Respondent's bank had called about over- drafts in two of its bank accounts. On December 3, 1981, Jones also learned that there was an accumulation of nearly completed products and requested an immediate inventory. Apparently there were many products that were not ready for shipment either because they had de- fective parts or because there was a shortage of parts necessary for their completion. Jones decided that the weekly scrap report he utilized was inadequate and he directed that a new reporting system be instituted to better inform him of the status of his inventory. Accord- ing to Jones, shipping completed products would allevi- ate an alleged cash flow problem because Respondent was paid when products were shipped. From, December 3 to 11, Respondent was able to cover the overdrafts, and, on December 12, the day after the election, an in- ventory was finally taken. According to Jones, on the day of the inventory, he received a verbal report which revealed that $700,000 worth of products could be com- pleted in short order and shipped. As a result, Jones 'de- cided that he would stop building new subassemblies and simply complete those that were almost ready for ship- ment. He therefore decided to lay off over 50 percent of his production work force. He implemented this decision on Sunday by calling in his frontline supervisors, having them decide which employees to retain and having them notify those who were laid off. Jones, amplified in part by Secretary-Treasurer Bar- bara Birthwright, Materials Manager Irene Glatter and Production Manager Willie Taylor, suggested that cer- tain parts problems and the inability to pay vendors con- tributed to the Respondent's decision to lay off. employ- ees. I found these suggestions unpersuasive. The evi- dence is overwhelming that parts problems had plagued Respondent since at least October 1'981. Respondent's own witnesses testified to this effect and documentary evidence shows that Respondent had not met its produc- tion goals on the products that had parts problems attrib- uted to them. These parts problems were discussed at weekly production meetings and no personnel reductions were undertaken as a result. Indeed, Jones testified that, in the past, he had always -dismissed the option of a layoff "because we don't like to have layoffs and we generally try to avoid layoffs." This was also the thrust of some of his remarks to employees in the November 25 preelection meeting. Likewise unpersuasive is the suggestion that an unusu- al inability to pay vendors was a motivating factor in the 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD layoffs. Barbara Birthwright's testimony concerning such difficulties is belied by documentary evidence . Monthly reports submitted by Respondent to its bank show that Respondent's accounts payable were lower in December than they had been for some 5 months and they were also lower than the first 2 months of 1982. And its net sales and gross profits remained relatively constant during this period. Both Birthwright and Glatter testified concerning a threat from a vendor against Glatter's like if he was not paid . But when Jones found out about the threat, he directed that the vendor be paid immediately and he was. It was hard to see how this incident in and of itself was indicative of a serious cash flow problem or forced the layoff of employees. Stripped of the above subsidiary contentions, Respond- ent's defense is basically that two problems, surplus in- ventory, particularly in nearly finished products, and cash flow difficulties combined to cause it to decide to lay off half its production workers. And, as Respondent pointed out in one of its briefs-although identifying the inventory problem as a parts problem : "If one of these factors had been present without the other, as had occ- curred to a lesser extent in times past, perhaps a layoff might not have been necessary ." An analysis of Re- spondent's defense, however, reveals nothing that would have required the layoff of such a great number of em- ployees on such short notice in the absence of the Union's election victory and thus it fails to overcome the General Counsel's prima facie case of discrimination. I turn first to the inventory problem . As essential in- gredient of Jones' rationale for the layoffs rests on his testimony-and that of Birthwright and Glatter-con- cerning their consultations on December 3, 1981, a date some 8 days before the union election, when, according to Jones, the inventory problems first caused him some concern. However, an analysis of Jones' testimony re- veals serious flaws and inconsistencies that reflect ad- versely on his credibility and ultimately weaken Re- spondent's explanation for the layoffs. Jones testified that in a December 3 meeting between him, Glatter, and Birthwright suggested laying off employees , and that he took the decision under advisement . Later, he testified that both Birthwright and Glatter had mentioned a layoff "several times prior" to the December 12 meeting in which he made the final decision to effectuate a layoff. The suggestion here was that layoffs were considered well before the union election as a component of Re- spondent's economic problems . However, neither Glatter nor Birthwright supported Jones on this point even though they testified about their December 3 meeting with Jones and at length about their concens over cash- flow and inventory problems prior to December 12. Both Birthwright and Glatter testified to having had sep- arate meetings with Jones on December 3 and Birthw- right specifically testified that she could not remember making any recommendations to Jones on December 3. Similarly, Glatter's testimony indicates that the first men- tion of layoffs was made by Birthwright at the Decem- ber 12 meeting. Thus, Jones was not corroborated and indeed contradicted in his attempt to show that his pree- lection deliberations with Birthwright and Glatter specif- ically dealt with layoffs. A second major conflict revolves around the Decem- ber 3 request by Jones that an inventory be taken. Jones testified that on this date he was told by Birthwright and Glatter that the earliest an inventory could be taken was on December 12. The suggestion here was that the spe- cific date for the inventory was decided well before the election results were known and that it was keyed to a concern over an accumulation of inventory. However, neither Glatter nor Birthwright support Jones on this point. Glatter testified that, on December 3, she did not mention a specific day for the inventory. Nor did Birthwright, in her testimony about the December 3 meeting, mention a specific day for the inventory. Indeed, both Birthwright and Glatter testified rather clearly that the specific date for the inventory was decid- ed some 2 days before December 12, when it was actual- ly taken. A third incongruity in Jones' testimony about the De- cember 3 meeting deals with his own reaction to his tour of the production floor on that date . He testified that he discovered a great number of completed subassemblies with defective parts; he estimated that there were a "couple hundred thousand dollars worth of completed units." He then told Birthwright and Glatter that he wanted a new reporting system which would give him a "better feel for the total amount of materials on the floor" and that the so-called scrap report that he re- ceived weekly was inadequate. Indeed, Jones testified that he was extremely annoyed by the inadequacy of the reporting system and that he brought it to the attention of Birthwright and Glatter in such a manner that they were "almost in tears." Yet there is scant evidence that the reporting system was ever changed or augmented. Jones later testified that, as of the time of his testimony in April 1983, a new reporting system was "undergoing change now." Apparently, only part of the new report was prepared, and, as of April 1983, he had seen only one or two such reports. None was produced at the hearing. However, Jones was still receiving the weekly scrap report which, in December 1981, he had told Glat- ter and Birthwright to change or augment. Thus, early in his testimony, Jones clearly stated that he needed a new reporting system to help him decide how much invento- ry he had on hand so that he knew "what goes out from the store room." Yet, after a year and one half, he still did not have such a system in effect . This renders sus- pect Jones' alleged concern over the accumulation of in- ventory. Had he been truly concerned about this prob- lem he would have implemented the changes he suggest- ed in December 1981. Indeed, his lack of concern, or even explanation, for his failure to follow through on this new reporting system contrasts sharply with his pre- cipitous layoff decision, which was allegedly based on in- ventory problems. Several other factors render unpersuasive Respond- ent's economic justification based on the accumulation of inventory. First of all , a full formal inventory is normally taken in May of each year by Irene Glatter and her staff. She had taken such an inventory in May 1981. Jones al- legedly directed an inventory to be taken on December 3, 1981. It was not taken until December 12, the day SONICRAFT, INC. after the election, and Jones did not await the written in- ventory report from Glatter. He acted only on her verbal report before effectuating the layoff on Sunday, even though Glatter informed him that her verbal report ..was based solely on what I'd seen" and she would follow it up with a "precise" report on Monday, the next working day. Secondly, Jones initially suggested that he was concerned that he get the completed subassemblies on the production floor ready for shipment because this was the only way he could get paid. Later, it became ap- parent that Respondent, essentially a government con- tractor, was able to obtain payments from the Federal Government-in the form of progress payments and ad- vance payments-during the production process even before shipment. Respondent was apparently able to cover its overdraft situation in early December with such payments. Birthwright testified that she covered the payroll account overdraft in December 1981 by contact- ing the Department of Defense and obtaining a progress payment in the amount of about $117,000. Thirdly, and perhaps most importantly, the so-called inventory problem was not apparent in the documentary evidence. In materials prepared by a certified public ac- countant and introduced into evidence in this proceed- ing, a large, rather stable, inventory figure appears from the end of the September 1981 through the end of March 1982. There was a slight decrease of about 4 percent in December but a much greater decrease in inventory- about 45 percent-took place in April 1982. No unusual personnel decisions were under taken in April and indeed employees had been recalled in February. Thus, not only was there no significant accumulation of inventory in December 1981, but it does not appear that there is any discernible relationship between the inventory figures in the documentary evidence and employment. This evi- dence, which was submitted by Respondent, shows that there was not an unusual inventory problem at the time of the layoffs. I turn now to the Respondent's cashflow situation. Ac- cording to Jones, there was a cashflow problem in De- cember 1981 and this contributed to his decision to layoff half of his production employees. The evidence, howev- er, fails to show that the alleged cashflow problem in December 1981 was significantly different from the cash- flow problems Respondent had experienced in the past. Cashflow analysis statements prepared by an independ- ent public accountant for Respondent's books and records were placed into evidence by the Respondent itself. These statements relate only to the Respondent's regular bank account,13 but they show that Respondent had a negative cashflow position in that account almost continuously from June 1980 through December 1981. Indeed, even after December 1981, Respondent contin- ued to suffer deficit daily balances in its regular account. The pattern shown by this documentary evidence, Re- spondent's Exhibit 51, is that, on various days through- out the 2-year history covered by the evidence, Re- spondent was in a negative position in its regular ac- 13 In some of the testimony and the documentary evidence this ac- count is also referred to as the general account. 781 count, but it was able to cover its deficits by intermittent or periodic infusions of cash.14 Other evidence confirms that the Respondent's cash situation as reflected in its regular account at the time of the layoff was no worse than it was in the past. Barbara Birthwright testified that Respondent's regular bank ac- count was in an overdraft position on the books more than 50 percent of the time in October and November 1981 and at least 25 percent of the time at the bank. Documentary evidence bears this out. Respondent's Ex- hibit 51 shows that, in the month of November, Re- spondent was in a deficit position on every single day, up to a maximum of over a quarter of a million dollars at the end of the day on November 11. In December 1981, Respondent was in a less severe deficit position, and, indeed, had, by virtue of an infusion of receipts of some $213,000 on December 4, managed to get the regular ac- count into a positive cash position. Reference to Re- spondent's bank statements for the regular account con- firms this view. Respondent had been in an overdraft po- sition at the bank on November 6, 9, 10, 12, 24, 25, 27, and 30, 1981. Respondent 's bank statements also show overdrafts in October 1981 and in other months both in 1980 and 1981. However, the bank statements show that 14 Respondent was in a negative cash position in its regular account each and every day from January 1 through May 29, 1980. Thereafter, the figures are as follows: Month/Year Days in Negative Position June 1980 19 July 1980 24 August 1980 25 September 1980 24 October 1980 24 December 1980 2 January 1981 24 February 1981 21 March 1981 21 April 1981 8 May 1981 21 June 1981 27 July 1981 15 August 1981 17 September 1981 25 October 1981 18 November 1981 30 December 1981 20 January 1982 18 February 1982 2 March 1982 3 April 1982 11 May 1982 2 June 1982 18 July 1982 21 August 1982 13 September 1982 12 October 1982 2 November 1982 11 December 1982 13 782 . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's regular bank account, if anything, was in better shape at the time of the layoff than it was in the past. Thus, Respondent was in an overdraft position for the first 3 days of December, but on December 4, after two large credits, the regular bank account was in sur- plus where it remained throughout December. On the last banking day before the layoff-December 11, 1981- Respondent had a surplus at the bank of some $23,000 in its regular account. Despite the evidence of deficits and overdrafts in the regular account both in November 1981 and in earlier periods, which appeared to be worse than those existing at the time - of the layoff, there is no evidence that Re- spondent considered layoffs as a result of such deficits and overdrafts. This renders unpersuasive Respondent's reliance on whatever difficulties were present in the reg- ular account in early December to effectuate the layoff on December 13. Those difficulties had been resolved about a week before by an infusion of cash into the regu- lar account.15 Even more significant, however, is the fact that Re- spondent's regular account, which was almost continu- ously in a negative position; and its payroll account do not give the complete picture of Respondent's cashflow situation. Respondent had numerous other bank and cash accounts. There was no evidence that these other bank accounts were in an overdraft position at the bank or in a deficit position on the books. Indeed, documentary evi- dence submitted to Respondent's bank on a monthly basis showed that the cash on hand from all accounts was in a positive or surplus position at all times through- out 1981 and- 1982. From January 1980 to December 1982, Respondent's overall cash account was in a nega- tive position only once-in March 1980. An analysis of these documents, which have some inherent reliability because they were provided monthly to Respondent's bank as required by its loan agreement , fail to show a significant overall cashflow problem.16 It is true that most of the Respondent's other bank ac- counts, which were in surplus , were restricted, that is, their monies could be used only to pay expenses on cer- tain contracts and the checks had to be approved or countersigned by government official. 17 Yet it is clear 16 Jones also referred to overdrafts in Respondent's payroll account. Checks are apparently drawn on that account and covered by a deposit from the regular account every 2 weeks . That account was in overdraft briefly twice in December of 1981 . The overdrafts were covered within short order through an infusion of cash. It appears that the payroll ac- count serves as a clearing account and that the status of the payroll ac- count is ultimately reflected in the status of the regular account. Re- spondent focused, in its defense , on the 'precariousness of its regular ac- count, and the only bank statement relating to the payroll account sub- mitted by Respondent was that for December 1981. 16 These documents also show that Respondent 's net worth position improved significantly throughout 1981, even though it continued to be in'a negative position until July 1982 , after it received a $700,000 pay- ment from a claim it had against the United States, a claim which it had used to secure a loan of about half a million dollars in July 1981. Also, Respondent's gross profits and net income were in a positive position throughout 1981, although by the end of 1981 , its net income had dipped. 17 According to documentary evidence , Respondent had a total of 12 cash accounts. Four were unrestricted. Of the eight restricted accounts one covered J-boxes and another covered amplifiers; others covered spe- cific job numbers. that funds from these accounts or revenues from these accounts or from other sources were available to Re- spondent because it was able to cover overdrafts by drawing upon them. In other words, whether one fo- cuses on the overdrafts at different periods since June 1980 or simply in the months of November and Decem- ber 1981, Respondent was able to, and did, come up with the cash to cover its overdrafts . It is obvious that these funds were made available to Respondent by the United States either from progress or advance payments on ex- isting contracts or they came from the surpluses in the restricted accounts. The pattern of Respondent's oper- ations, as I have perceived it by analyzing the documen- tary evidence, is that its infusion of revenue from gov- ernment contracts was intermittent and irregular. At times, the regular account or the payroll account may have been low or even in deficit or overdraft, but Re- spondent's overall cash position was not in deficit and it was not in deficit in November or December 1981. Jones' testimony concerning the severity of cashflow problems in December 1981 is thus refuted by the docu- mentary evidence . Moreover, his testimony on this aspect of the case does not really address the substance of the cashflow situation. He simply testified that his banker told him that no more overdrafts would be pre- mitted. Jones admitted that he had been warned by his banker about overdrafts "at various times during our company's association with the bank ." He had even had an entire payroll returned in the past-a situation that did not occur in December 1981. However, Jones testi- fied that the December 1 call from his banker was differ- ent from past warnings since it raised fears that the bank was "taking action that might close us down ." He also suggested that the bank might withdraw or terminate its loan agreement and cause Respondent to "go out of busi- ness." I consider this testimony exaggerated . There was no evidence to support Jones' testimony that Respond- ent's loan agreement was in jeopardy of being terminat- ed. And the documentary evidence on Respondent's cashflow position refutes the suggestion that the bank's decision to stop overdrafts in Respondent 's unrestricted accounts had the impact that Jones mentioned in his tes- timony. Nor is Jones' testimony supported by the other evidence. Jones testified that he asked another official of Respondent, a Judge Watt, to intercede with the bank. But it is unclear what if anything happened as a result. Neither Watt nor the banker was called to testify. There was no documentary evidence to show that the Decem- ber 1 call from the banker involved any particular sanc- tion. And there is no evidence that this particular prob- lem required the layoff of employees . In short, Jones' testimony shows that he was warned by his banker to avoid overdrafts in the future, but this testimony does not establish that Respondent had a cashflow problem that required the layoff of over half of its production workers. Nor does the decision to lay off such a large number of employees on such short notice make sense in view of other evidence in this case which suggests that Respond- ent believed it had a sound financial future . In October 1981, Respondent hired a significant number of new em- SONICRAFT, INC. 783 ployees, and, in December 1981, it was working on an amended proposal for a large government contract, which it later obtained . In addition, at the time of the layoffs, Respondent had a $1 million claim against the United States-$700,000 of which was realized in July 1982. And, in the summer of 1981, Respondent had agreed to a new lease for additional space for its produc- tion facilities . 18 Finally, on December 7, just several days before the election and the layoff, Respondent insti- tuted wage increases for 64 of the 92 unit employees.'.9 These raises ranged from 11 to 55 cents per hour. Re- spondent thus had a fundamental soundness which, to- gether with the complete failure of support for its inven- tory and cashflow defense, makes it highly unlikely that it would have laid off such a great number of employees on such short notice under ordinary circumstances. In analyzing all of the evidence, I believe that Re- spondent has failed to prove, in response to the General Counsel's showing of discriminatory motivation , that it would have laid off indefinitely over 50 percent of its production employees in the absence of the Union 's elec- tion victory on December 11. The evidence does not show a severe problem either in inventory or in cashflow that would justify such a precipitous and far reaching layoff. Thus, the entire mass layoff was unlawful without regard to whether individual employees were known or suspected union advocates. See NLRB v. Link Belt Co., 311 U.S. 584, 602 (1941); Majestic Molded Products v. NLRB, 330 F.2d 603, 606 (2d Cir. 1964); NLRB v. Rich's Precision Foundry, 667 F.2d 613, 628 (7th Cir. 1981).20 D. Analysis of the Alleged Discriminatory Selection of Union Adherents for Layoff and Recall The General Counsel alleges that individual employees were discriminatorily selected for layoff and discrimina- torily denied recall, even assuming that the Respondent had a valid economic reason for the general layoff. Al- though I have found the general layoff unlawful, I shall make additional findings under the selection theory which was fully litigated at the hearing . In this connec- 18 On July 1 , 1981, Respondent agreed to a new lease for additional space for its production facilities at the 95th Street building. The lease, which was to terminate on January 31, 1984, consisted of three phases. During the first phase, which commenced on July 1 , Respondent was to occupy $16,080 square feet of the building at a cost of $2680 per month During the second phase, beginning October 1 , Respondent was to occupy an additional 20,544 square feet at a total rent of $6106 per month. And during the final phase, which was to commence no later than April 1, 1982, Respondent was to occupy the entire building , 60,125 square feet, at a total rent of $10,020 .83 per month Thus, Respondent chose to assume a significant, progressive, long-term obligation, presuma- ly based on existing and projected government contracts Indeed , the evi- dence indicates that Respondent honored its payment commitment under the lease issue even though it did not expand its operation from the origi- nal 16,080 square feet until sometime in 1982 19 Of the remaining 28, 18 had received increases in September, Octo- ber, or November Thus, 82 members of the unit had received increases within 3 months of the layoff. 20 While the Respondent correctly asserts that those employees re- tained after the layoff may have included some union supporters, this does not detract from the finding that the decision to lay off employees en masse was discriminatorily motivated . For "it is well established that a discriminatory motive, otherwise established , is not disproved by an em- ployer's proof that it did not weed out all union adherents " Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir 1964). tion, I dismissed some 31 employees from the selection theory aspect of the complaint at the conclusion of the General Counsel's case because a prima facie case of a violation was not made out. Of the remaining 19 alleged discriminatees , 5 engaged in few, if any, union activities which would have target- ed them for discriminatory treatment. Thus, Karen Adam's only apparent union activity was her attendance at the first general union meeting. The only activity of Marcia Staine and Johnnie Murphy was their attendance at the general union meetings . The General Counsel cites evidence that Supervisor Cora Robinson told employee Eva Henry that she had heard that Beeks was a union organizer. However, neither Beeks nor the other em- ployees mentioned above testified in this proceeding and there is no evidence that they even signed cards. An- other employee, Mary Durham, did testify, but her union activities were limited . She attended one union meeting and took literature from union officials outside the plant at a time when, as Durham testified, no official of Re- spondent was present. Based on the limited evidence of union activity offered above, I cannot conclude that the General Counsel has made out a prima facie case that Respondent discriminatorily selected these employees for layoff because of their union activities. Three other employees, Frank Nissen, Cheryl Shorty, and Linda Berryhill, participated to a somewhat greater degree in the union campaign. Shorty signed a union au- thorization card and attended some organizing committee meetings. However, there is no evidence that Respond- ent's officials talked to her about the Union or mentioned her name to other employees in connection with union activities . Berryhill also signed a union card. The Gener- al Counsel alleges that she "spoke up" during Jones' No- vember 25 meeting with employees. However, there is nothing in her remarks or those of Jones that would have identified her as a union supporter . She simply complained about certain working conditions and she disclaimed being a "union organizer." In Nissen's case, the General Counsel offers no direct evidence . Nissen did not testify and he was not identified as having en- gaged in any union activity . The General Counsel con- tends, however, that Respondent alleged, in its excep- tions to the Regional Director's Report on Objections to Election, that Nissen was an agent of the Union. This was based on employee affidavits obtained by the Re- gional Director during his investigation after the elec- tion. I do not consider the evidence described above to be sufficient to establish a prima facie case that Respond- ent discriminatorily selected Shorty, Berryhill, and Nissen for layoff because of their union activities. As to the 11 remaining alleged discriminatees under the so-called selection theory, there is sufficient and compelling evidence that they were known or suspected union leaders and that they were signed out for discrimi- natory treatment. Three, Lula Armstrong, Ernest Barlow, and Marion Sherron, were the Union's election observers. Most were organizing committee members and Armstrong, Barlow, Eva Henry, Weader Lynch, Annette Payne, Alyce Seay, Bernice Wells, and Helen Woodard attended the Union's victory celebration. 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dorothy Jones stated that news of this celebration reached Jerry Jones and that he expressed the view that the participants would not be working for Respondent. Henry, Lynch, and Oliver Harper were subjects of unfair labor practices by Respondent 's supervisors in circum- stances which showed that they were known or suspect- ed union supporters. Seay was identified during a meet- ing by President Jones. James Lewis, who had signed a union card and attended both general and committee meetings, was identified by Dorothy Jones as one whose union activities were being watched. Jones also stated that there was a list being kept of union supporters, that Lynch, for one, was on that list, and that she would not be recalled because of her union activities . In view of Respondent's other unfair labor practices, its expressed union animus and the timing of the layoffs immediately after the Union's election victory, the above evidence sufficiently establishes that-at least prima facie-these 11 leading union employees were discriminatorily select- ed for layoff and were not recalled from layoff for the same discriminatory reason, even assuming that Respond- ent's economic defense would have supported the layoff of some employees. Respondent's explanations for the selection of the union adherents for layoff are based essentially on the testimony of Supervisors Denson , Robinson, and Doro- thy Jones. I note that Respondent's witnesses testified that several criteria were used to retain employees: com- petence, experience, productivity, flexibility, and attend- ance. Useful to the analysis of this issue is the fact that certain employee performance reviews or evaluations- most of them prepared shortly before the layoff in early December 1981-were introduced into evidence. These evaluations reflected the breadth of experience of its em- ployees and their competence , in an objective setting- prior to the layoffs. 21 I therefore place greater emphasis on these documents than I do on the testimony of Denson, Robinson, and Dorothy Jones, whose testimony was shown to be unreliable in other parts of this decision and whose testimony on the selection of particular em- ployees was often conclusory and occasionally inconsist- ent. Based on my consideration of all of the evidence, in- cluding the demeanor of the witnesses, I find that most of the 11 employees were the specific objects of discrimi- nation: 8 were improperly selected for layoff; and 10 were improperly denied recall. I turn first to employees Barlow and Harper who were supervised by Denson. They were among the six or seven employees in the machine shop, which was located at the 95th Street facility. Barlow was a machine opera- tor who had been employed since May 7, 1980. He was highly regarded . In August 1981 , he was promoted to utility man by Denson with an increase in pay, effective September 1, of about 20 percent. Harper had been hired on September 3, 1981, and he received a "good" evalua- tion on December 8, 1981. Both men were active in the union campaign, but Barlow was more of a leader since 21 Cora Robinson testified that she went over the performance reviews of the employees under her supervision before making her selections for layoff. he passed out union cards, talked about the Union and acted as an election observer. Several employees were retained in Denson 's depart- ment: silk screener Thelma Cotton and machine opera- tors Bentram Hayes and Warren McCullum, as well as Johnnie Pullum, who had been on sick leave since No- vember 9, 1981. Hayes was clearly a more experienced and valued employee than Barlow . However, both McCullum and Pullum had barely more seniority than Barlow-actually, by virtue of his loss of time because of sick leave, Pullum had less overall experience-and they would not likely have been retained over Barlow under ordinary circumstances . In Barlow's last evaluation, Denson listed his attendance record as "excellent" and noted that he worked "well without supervision." Of course, Barlow had been promoted to utility man in Sep- tember with a substantial raise. McCullum had an attend- ance problem that led to his discharge in June 1982. He was earning a dollar an hour less than Barlow at the time of the layoffs, a figure that clearly and objectively shows the relative value of the two men prior to the layoff. Pullum was making 37 cents per hour less than Barlow, and, not only was he on sick leave at the time of the layoff, but it is clear that his was a terminal illness. He returned to work in February of 1982 for about 3 weeks. He died shortly after completing this 3-week stint. Indeed, Barlow was so flexible-he did spray painting and coated PC boards-that it is possible that he would have been retained even over Cotton if nondiscrimina- tory reasons had been utilized in the layoff selections. In any event, he clearly was superior to McCullum and Pullum. Based on the above analysis of objective evi- dence, I cannot accept Denson 's testimony that he select- ed Barlow for layoff because of his lesser seniority and lack of flexibility. In addition, as I have indicated earlier, Denson's testimony on the very issue of Barlow's qualifi- cations was shown to have been inconsistent and there- fore unreliable. Accordingly, I find that the Respondent discriminator- ily selected Barlow for layoff in December 1981. More- over, I find that Barlow was discriminatorily denied recall when he was not recalled instead of Pullum in February 1982 and when McCullum was discharged later in 1982 . At neither point, nor at any time thereafter, was any consideration given to recalling Barlow. By March 1982, Respondent had taken the position that Barlow was a union agent and it was seeking to overturn the election partially because of some of his actions and conduct. I find that Respondent's failure to recall Barlow was motivated by the same discriminatory reason which caused him to be selected for layoff in December-his prounion activities. Harper's situation is different . He was the least senior and experienced machinist . Moreover, there is no evi- dence that new machinists were hired or that other em- ployees performed work in the machine shop after the layoff which Harper could have performed. If there was more work available, as there was when Pullum returned to work in February 1982 and when McCullum was dis- charged, Barlow, a more senior and experienced machin- ist, would have been recalled before Harper. In these cir- SONICRAFT, INC. cumstances, I find that Harper was not unlawfully select- ed for layoff and was not unlawfully denied recall. The remaining nine union adherents were classified as wirer-solderers or assemblers under Dorothy Jones and Cora Robinson . The explanations of Jones and Robinson for not retaining group leaders Eva Henry and Weader Lynch were limited to statements that the other group leaders who were retained were more senior, experi- enced, and competent. However, this does not provide an adequate answer because both were outstanding em- ployees, as their evaluations and job positions clearly show. Their breadth of experience, and therefore their flexibility, is confirmed not only by their evaluations but also by their own detailed and uncontradicated testimo- ny. No reasons were offered why they were not retained as rank-and-file employees . They clearly had more expe- rience and were more highly regarded than retained em- ployees, some of whom had been hired in the summer of 1981 and had been trained by Henry and Lynch. Not only were these former group leaders not retained over less qualified people, as they should have been at the time of the layoff, but they were not recalled when obvi- ously less qualified people were recalled to jobs for which they were clearly qualified . Dorothy Jones' state- ments to Henry and Lynch demonstrate that Lynch was not recalled because of her union activities. Accordingly, I find that Respondent not only discriminatorily selected Lynch and Henry for layoff, but also discriminatorily re- fused to recall them , on and after December 14, 1981. Of the remaining seven employees , three-Wells, Sher- ron, and Helen Woodard-were assemblers under the su- pervision of Cora Robinson . Her explanation for the se- lection of these employees was basically that the specific jobs they were doing before the layoff no longer needed to be performed. This explanation, however, does not take into account the factors of flexibility and compe- tence that were supposedly important in the selection process. Robinson did not discuss the comparative abili- ties of those assemblers who were retained and Respond- ent did not submit their evaluations for comparison pur- poses. All six assemblers who were retained by Respond- ent had less seniority than Helen Woodard and Sherron, some considerably less. Moreover, Woodard and Sherron had been recommended for and received pay increases after their December 1981 evaluations. They were rated "excellent" and "good" in the two assembly portions of the evaluations and were rated as having "good" attend- ance records. In contrast, Respondent retained employ- ees under Robinson's supervision who were apparently less highly regarded . According to Cora Robinson, one of the factors she considered in retaining employees was attendance. Yet Respondent retained assembler Yvonne Woodard and employee Albert McFadden, both of whom worked under Cora Robinson. According to their most recent evaluations, introduced into evidence by the Union and the General Counsel, both had attendance problems. On September 3, 1981, Yvonne Woodard was denied a full increase in salary because of attendance problems. Her attendance was rated "unsatisfactory" in both February and September 1981. McFadden 's Decem- ber 1981 evaluation also mentioned that his attendance needed improvement. Indeed, Cora Robinson testified 785 that in mid-October 1981 she placed McFadden on 60 days' probation for "excessive tardiness ." Thus, McFad- den would still have been on probation at the time of the layoff. Since there is nothing in the record to indicate that Yvonne Woodard engaged in any union activity and McFadden's activity was confined to attending the first union meeting, their retention over that of more depend- able prounion employees is unusual and contrary to Re- spondent's expressed standards for the retention of em- ployees. After analyzing the above evidence, I find that Sher- ron and Woodard would not have been selected for layoff but for their union activities . Wells' situation is somewhat different . She was the most junior assembler and, although her December 1981 evaluation was mostly "good," I cannot conclude that she was more competent than the more senior and experienced employees re- tained. I therefore do not find that she was unlawfully selected for layoff. I turn now to employees Armstrong , Seay, and Payne, wirer-solderers under the supervision of Dorothy Jones. She too seemed to focus on the specific job duties of par- ticular employees selected for layoff without regard to the acknowledged factors of flexibility and competence. Thus, Jones testified that she laid off Lula Armstrong be- cause she was a "new" employee who was short on pro- ductivity and flexibility . However, in her December 4, 1981 evaluation of Armstrong just 1 week before the layoff-Jones had rated her "excellent" as a solderer and "excellent" in production . Armstrong was also rated in the assembly and harness fabricating categories, thus confirming her flexibility . Jones also noted that Arm- strong "is a steady worker and has the abilities to learn fast." Although Armstrong was a "new" employee, having started work on July 20, 1981, two other wirer- solderers-Guider and Barbara Williams-who had been hired on July 7, 1981, just 2 weeks before Armstrong- were retained . There is no evidence of their flexibility, competence, or productivity and their evaluations were not placed into evidence. Indeed , Jones apparently re- tained an employee named Debra Hasty who had been hired in October 1981 and who thus was "newer" than Armstrong. Hasty was fired in February 1982. With the exception of Barbara Williams' attendance at the first union meeting, there is no evidence that these three re- tained employees participated in any union activities. In these circumstances, I find that Respondent has not shown that Armstrong would have been selected for layoff notwithstanding her union activities and thus has failed to rebut the General Counsel's showing of antiun- ion discrimination. 22 22 In its brief, Respondent also asserts that Armstrong was laid off be- cause of a "lack of experience and knowlege in key skills required for completing J-boxes." Respondent arrives at this position by juxtaposing Armstrong's testimony, in which she admitted that she had "no experi- ence building harnesses for the J -box" and "had never wired or soldered PC boards," with that of Dorothy Jones and Cora Robinson, who assert- ed that these were the only tasks which needed completion as of Decem- ber 13 However, both of these skills involved completion of sub-assem- blies. And, as I have previously noted , one of the basic positions of Re- spondent throughout these proceedings has been that no new sub-assem- Continued 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Jones, she selected Annette Payne for layoff because she was a new employee whose work dealt with the large J-box but not the small J-box. There was really no adequate - explanation as to why experience with one J-box and not the other was a disqualifying factor for the retention of employees . Indeed, most of Jones' testimony about the specific jobs of particular em- ployees selected for layoff is of questionable import be- cause flexibility was considered a significant factor in the retention of employees and there is no evidence concern- ing the flexibility of the employees retained. Moreover, Respondent's evaluations made no distinction between work on the large J -box or the small J-box, and, because they were prepared before the layoffs , they are a more reliable indicator of the breadth of experience deemed significant by Respondent than after-the-fact testimony by Jones. Payne's evaluation shows she was rated "excel- lent" as a solderer and in production . On her December 4, 1981 evaluation, Jones noted she was "adaptable and a very good worker." Although, here again, Payne was hired on July 13, 1981 , Guider and Williams were hired just 1 week before and their evaluations were not placed into evidence by Respondent. Nor did Jones or any other official of Respondent testify about their compe- tence, experience, or flexibility. Payne was much more senior than Hasty, the retained employee who was fired a few months later, and she was regarded highly enough to be recalled in- February 1982. In these circumstances, Respondent has failed to show that Payne would have been. laid off notwithstanding her union activities. Jones also testified that Alyce Seay was laid off be- cause she was a new employee and there was no need to perform the particular job that she was doing before the layoff. Seay was indeed hired on September 30, 1984. Her evaluation shows that she was rated "good" in sol- dering and production. Although Respondent has not shown tht the,retained wirer-solderers were more com- petent than Seay, they were all more senior. The least senior employee retained had 2 months' more experience than Seay . Nor was her evaluation outstanding. More- over, Payne and Armstrong would have been retained before her. Thus, I believe it is unlikely that Seay would have displaced either of these employees or any of the other more experienced employees even assuming a non- discriminatory selective process had been used . Accord- ingly, I find that Seay was not discriminatorily selected for layoff. James Lewis testified that his main job was "mechani- cal assembly," which he performed 75 percent of the time. He also operated a device called the "wave solder machine." He also testified that he trained an employee named Melvin Olive to "do the mechanical assembly on the junction box." Olive did not operate the wave solder machine. However, Olive was retained and Lewis was laid off. Lewis had been employed by Respondent since blies were to be completed after December 13 . Moreover, in her testimo- ny, Jones did not refer to this lack of skill as a basis for Armstrong's layoff. She instead testified only about Armstrong 's purported lack of flexibility and productivity. In view of this obvious inconsistency in Re- spondent's positions as well as Jones' lack of reliance in her testimony on Armstrong's inability to perform the aforementioned tasks , I reject these factors as a legitimate justification for the layoff of Armstrong. August 19, 1980. Olive had been employed since the same date. No reason was given for the retention of Olive, who was classified as an assembler , and no com- parison was made between Lewis and Olive or the other less senior employees who were retained over Lewis. And Hasty, a less senior employee who was later dis- charged, was retained over Lewis. Lewis appears to have had broad experience. He was rated in a number of different categories by Dorothy Jones in her December 4, 1981 evaluation of him. He was rated "good" in most of these categories, inclulding production, but was rated "fair" in one soldering catego- ry. However, Jones said that Lewis was "adaptable" and had the ability "to learn new job[s]." Neither Jones, his last immediate supervisor before the layoff, nor any other official of Respondent gave a reason for the selec- tion of Lewis for layoff. However, in its brief, Respond- ent refers to Jones' testimony that Lewis "had the habit" of leaving his workplace and that she warned him once about this. I am unable to accept this testimony as show- ing why he was selected for layoff. Jones never specifi- cally testified that this was the reason why Lewis was se- lected for layoff. And Lewis' December 4 evaluation contains no adverse comments about his leaving his work station. Lewis credibly and candidly testified that he was in a group of employees who were verbally warned about leaving their work stations on one occasion. There is, however, no evidence to show that this was though to be a significant matter by Respondent or that it adverse- ly reflected on Lewis' work record. Indeed, Lewis was recommended for a raise , which he later received, short- ly before he was laid off. Since there was no showing why Lewis, a more experienced employee was laid off and another employee whom Lewis had trained was kept, or why less senior or experienced employees were retained over him, Respondent has failed to rebut the General Counsel's prima facie showing that Lewis was discriminatorily selected for layoff. According to Cora Robinson, "a couple of days after the layoff a shipment of U-22 connectors arrived at the plant and "some soldering" and "some assembly" work was required to be performed because of that shipment. She testified that subassemblies were built at this time and that these were then transferred to Dorothy Jones' group of employees for completion. Robinson was unable to testify as to how many employees were needed for these functions, but the record shows that, on De- cember 15, Respondent recalled assemblers Karen Adams, who had worked for Respondent only since July 18, 1981, and Jerome Pogue, who was hired on August 5, 1981, and, in the next few days, recalled assembler Georgia Robinson, whose seniority dated from January 2, 1981, and wirer-solderers Mae Rose Kelly, Beverly White, and Yolanda Morgan . Kelly and White had been hired in October 1981 and Morgan had been hired on September 28, 1981 . Respondent also recalled employee Ronald Carson, who had been employed since August 3, 1981, in a job category called "material/kit control." His last evaluation, dated December 7, 1981, shows that his job involved "component prep." No one testified as to why he was recalled or what he did after he was re- SONICRAFT, INC. 787 called. Dorothy Jones' testimony is somewhat different than that of Robinson. She testified that she had need for employees White, Kelly, and Morgan because certain switches were discovered in a storeroom and that these switches had to be wired and soldered to the small J- boxes.2 a Even assuming that Respondent had a good business reason to select prounion employees Armstrong, Lewis, Payne, Woodard, and Sherron for layoff, its failure to recall them was unlawful . 24 They all had considerable seniority over many of the employees actually recalled and a comparison of their latest evaluations with those of the employees recalled shows that they had greater expe- rience and were more highly regarded than those re- called. Recalled assemblers Adams, Pogue, and Robinson had less seniority than assemblers Woodard and Sherron, and Pogue had had attendance problems, which were mentioned in his December 7, 1981 evaluation. More- over, Sherron had been given an "excellent" rating for her assembly work whereas Robinson and Pogue were only rated "good" in this category . Nor was there any evidence that Robinson or Pogue was involved in any union activity . Finally, none of the 10 assemblers ulti- mately recalled had more seniority with the Respondent than Woodard and Sherron, and some had been em- ployed with the Respondent only a matter of months prior to the layoff. As for the wire-solderers, Kelly, White, and Morgan had less seniority than Armstrong, Lewis and Payne and their evaluations showed that the latter were more highly regarded. Armstrong and Payne, for example, received "excellent" ratings for both "pro- duction" and "soldering," whereas Kelly received only a "good" for production and Morgan and White were rated "good" in both production and soldering. Lewis, who had received "good" marks in these categories, had a broader experience in different kinds of soldering than did the three employees recalled . It also reflects adverse- ly on Dorothy Jones' credibility that she emphasized the lack of seniority of employees when making selections for layoff but when it came to recalling employees just a 23 Respondent took the position that Karen Adams and Jerome Pogue were recalled within days after the layoff because they had some experi- ence in packaging work and that they were needed to perform such work However, this was not their main function before the layoff and there is no evidence that they continued doing only packaging work after they were recalled Indeed , Pogue returned to production work. More- over, if experience, competence, and flexibility were criteria in the layoff of December 13, they would likely have been factors in the recall of em- ployees 2 or 3 days later. Yet neither Adams, who could not perform sol- dering, nor Pogue, who had been hired just 4 months before, would have been recalled under those criteria. 24 The substance of Dorothy Jones ' and Robinson's testimony was that the recalled employees were the only ones skilled in particular positions which became available in December and February . However, at no time in their testimony concerning the recall of employees did Robinson and Jones refer to the benchmarks of competence, experience , productivity, flexibility, and attendance, which Respondent's witnesses had originally asserted were the factors to be utilized in determining which employees were to be retained . Documentary evidence in the form of typed memo- randa from Dorothy Jones to Respondent's personnel office, which were apparently written after the recalls , indicate that these factors were indeed utilized, at least in the cases of Lula Armstrong and Annette Payne Thus, as in the case of the layoffs, I find the performance review evaluations, which were prepared before the fact, to be a more accurate reflection of the skills and competence of the employees in question few days after the layoff she demonstrably overlooked seniority. Accordingly, in the first round of recalls, Armstrong, Lewis, Payne, Woodard, and Sherron were not recalled and less competent and experienced employees were re- called. In view of the evidence that these individuals were known union adherents, I find that they were not recalled for the same discriminatory reasons that resulted in their selection for layoff. In February 1982, six assemblers and seven wirer-sol- derers were recalled . Henry and Payne who had been discriminated against to this point were among those re- called. Thus, there were 11 additional positions to be filled. But the other discriminatees were not recalled to these positions . An analysis of the evaluations and the se- niority of the employees involved confirms that the dis- criminatees had greater experience and competence than those recalled . Surely, at this point, at least Lynch, a group leader who had made clear her willingness to return as a rank-and-file employee, should have been re- called. Dorothy Jones, herself, had recommended that she be one of the employees recalled. Yet Lynch was not recalled and the credited testimony conclusively shows that Respondent refused to recall Lynch because of her union activities. It is likely that this expression of Re- spondent's union animus explained the failure to recall other union adherents at this time. As to Alyce Seay, a wirer-solderer who had been em- ployed since September 30, 1981 , and Bernice Wells, an assembler employed since September 21, 1981, I cannot find that, by virtue of seniority, experience or compe- tence, they were more highly regarded or qualified than the employees recalled in December 1981. However, with regard to the February 1982 recalls, I reach a dif- ferent conclusion. In February, Respondent recalled six assemblers. In analysis of the evaluations and the seniority of all em- ployees involved reveals that Bernice Wells had greater experience and competence than three of those recalled. In her December 1981 evaluation, Wells was rated "good." Although the only production category in which she was rated was "assembly, mechanical," her supervisor, Cora Robinson, specifically noted that she was "very flexible" and recommended her for an in- crease, which she received on December 7. Among those assemblers recalled in February was Nettie Wilson. Wilson received an evaluation similar to that of Wells- she was rated good and the only production category in which she was rated was "assembly, mechanical." How- ever, the evaluation contained no special annotation con- cerning her flexibility, and Wilson did not begin working with the Respondent until October 12, 1981, almost 3 weeks after Wells. Assemblers Callie Hollins and Clara Nash also were recalled in February 1982. Both started working with Respondent after Wells: Hollins began on October 21, 1981; Nash on September 28. Both received good evaluations in December, but, unlike Wells, neither was rated in the "assembly, mechanical " category. Thus, Wells was employed by Respondent longer than any of the three recalled employees and was apparently more experienced than Hollins and Nash . It is true that the 788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD three recalled employees were, unlike Wells, supervised by Dorothy Jones. However, there was no reason given why assemblers from one line could not be recalled to work on the other line. In any event, Robinson also had an assembly position available on her line in February 1982. Respondent chose to recall Ossie Perkins, who was not only less senior than Wells, but was actually a wire solderer, and who, on her December 1981 evaluation, was not even rated in any of the assembly categories. Lastly, although it is clear, as previously noted, that Wells was active in the Union , there was no evidence in- troduced which suggested that the three recalled em- ployees took any part in the union campaign . According- ly, I find that Wells would have been recalled in Febru- ary 1982, but for her union activity. I next turn to Alyce Seay . As I previously noted, Re- spondent also recalled seven wirer -solderers in February. Because two of these recalls involved Henry and Payne and because wirer-solderer Perkins actually assumed as- sembler duties, only four wirer-solderers position were available. Earline Leavy, Ozell Buchanan, Elaine Lind- say, and Alice Thompson were recalled to fill these va- canies. Based on the evaluations of all of these employ- ees, which are in evidence, I am convinced that Leavy, Buchanan, and Lindsay were properly recalled instead of Seay. Each had been employed by the Respondent only slightly longer than Seay, but their evaluations clearly in- dicated that they were more competent , highly regarded, and flexible. Thompson, however, presents a somewhat different situation . She began working with Respondent on October 5, 1981 , approximately 1 week after Seay. Like Seay, she was supervised and evaluated by Dorothy Jones. Seay received a "good" performance review in December. She was rated in both the "harness fabrica- tion" and "soldering wire connection" categories. Thompson also received a "good" performance review in December. However, Thompson was rated only in the "soldering, wire connection" category. Moreover, Jones testified that she chose Thompson for recall because she was an "almost excellent" wire solderer. Yet Seay re- ceived the same rating as Thompson in their last evalua- tions. Since Seay had been employed longer and, accord- ing to the evaluations, seemed more flexible, Respond- ent's selection of Thompson over Seay is contrary to its own standards. Moreover, Seay was an active participant in union affairs. On the other hand, the record is devoid of any evidence indicating any such participation by Thompson . Accordingly, I find that Seay would have been recalled in February 1982 , but for her union activi- ty. In summary, I find that, by discriminatorily selecting employees Weader Lynch, Eva Henry, Ernest Barlow, Lula Armstrong, Annette Payne, Helen Woodard, James Lewis, and Marion Sherron for layoff, and by discrimin- atorily refusing to recall them from layoff because of their union activities, Respondent violated Section 8(a)(3) and (1) of the Act. Respondent also violated Section 8(a)(3) and (1) by discriminatorily failing to recall em- ployees Bernice Wells and Alyce Seay in February 1982. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with layoffs, loss of benefits, and other forms or reprisals if they selected the Union in the upcoming election ; by interrogating its em- ployees about their union activities and those of other employees; by attempting to enlist the aid of an employ- ee in polling other employees as to their union activities; by informing an employee that certain employees would not be recalled to work because of their union activities; and by creating the impression that its employees' union activities were under surveillance, Respondent had vio- lated Section 8(a)(1) of the Act. 4. By laying off some 50 production employees on De- cember 13, 1981 , because of the Union's victory in the December 11, 1981 representation election and to dis- courage union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 5. By discriminatorily selecting for layoff and refusing to timely select for recall employees Lula Armstrong , Ernest Barlow , Marion Sherron, Eva Henry, Weader Lynch, Annette Payne, Helen Woodard, and James Lewis because of their union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 6. By refusing to select for recall employees Alyce Seay and Bernice Wells because of their union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. The above are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 8. Except as found herein, Respondent has not com- mitted any other unfair labor practices alleged in the complaint. THE REMEDY I shall recommend that Respondent be ordered to cease and desist from engaging in the conduct found un- lawful herein and to post an appropriate notice. I shall also recommend that Respondent be ordered to offer re- instatement to those employees who were unlawfully laid off or denied recall, as found herein. Respondent will also be ordered to make whole all those employees who have suffered any loss of pay or compensation due to the unlawful actions of Respondent, as found herein, com- puted as provided in F. W. Woolworth Co., 90 NLRB 289 (1965), and Florida Steel Corp., 231 NLRB 651 (1977).25 On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed26 25 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962). 26 If 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 to them shall be deemed waived for all purposes. SONICRAFT, INC. 789 ORDER The Respondent, Sonicraft, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with layoffs, loss of benefits and other forms of reprisal for voting for the Union in a representation election. (b) Interrogating employees about their union activities and those of other employees. (c) Attempting to enlist or enlisting the aid of employ- ees in polling other employees as to their union activities. (d) Creating the impression that union activities are under surveillance. (e) Informing employees that they would not be re- called to work because of their union activities. (f) Laying off, refusing to recall, or otherwise discrimi- nating against employees with regard to their hire, tenure of employment, or any term or condition thereof, because of their union activities or in order to limit or discourage union activities. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to those employees laid off as a result of Re- spondent's unlawful conduct as found herein, who have not already been recalled or rehired to their previous jobs, immediate and full reinstatement to their former jobs, or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them and all other laid off employees whole for any loss of earnings, benefits, or compensation connected with their employ- ment status which they may have suffered as a result of Respondent's unlawful action in the manner set forth in the remedy section.27 (b) Remove from its records and files any notations dealing with the layoffs of the employees found to have been discriminated against herein and notify them in writing that this has been done and that evidence of such layoffs will not be used as a basis for future personnel action. (c) Post at its Chicago, Illinois facilities, copies of the notice and marked "Appendix B."28 Copies of this notice shall be provided by the Regional Director for Region 13 and, after being signed by Respondent's au- thorized representative, shall be posted immediately upon receipt and maintained for 60 consecutive days in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Preserve and, upon request , make avaiable to the Board or its agents , for examination and copying, all 27 The employees unlawfully laid off are listed in Appendix A to this Decision 28 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " payroll records and all other records necessary or appro- priate to analyze the amounts due employees under this Order. (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps Respondent has taken to comply. IT IS FURTHER ORDERED that those allegations of the complaint not found to be sustained are hereby dis- missed. APPENDIX A Unit employees laid off on December 13, 1981: Karen Adams Yolanda Morgan Lula Armstrong David Morrison Della Balark Johnnie Murphy Ernest Barlow Clara Nash Faye Beeks Frank L. Nissen Linda Berryhill Annette M. Payne Frederica Bishop Jerome Pogue Lionel Bland Laur Porter Ozell Buchanan Jonathan Rhodes Ronald Cason Georgia Robinson Lydia Cuevas Alyce M. Seay Fred Dorsey - Lillie Seals Mary Durham Mattie Shaw Oliver Harper Vivian Shaw Eva Y. Henry Marion Sherron Bernice Hill Cheryl Shorty Callie Hollins Osie Perkins Talma Jackson Mary L. Smith Laverne Jackson Marcie Staine Earline Leavy Alice Thompson James Lewis, Jr. Bernice Wells Elaine Lindsay Beverly White Weader Lynch Nellie Wilson Mae Rose Kelly Patricia Wines Annie Moody Helen Woodard APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten employees with layoff, loss of benefits or other forms of reprisal for voting for the Union in a representation election. WE WILL NOT interrogate employees about their union activities and those of other employees. WE WILL NOT attempt to enlist or enlist the aid of em- ployees in polling other employees as to their union ac- tivities. WE WILL NOT create the impression that union activi- ties are under surveillance. WE WILL NOT inform our employees that they will not be recalled to work because of their union activities. 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT lay off, refuse to recall, or otherwise discriminate against employees with regard to their hire, tenure of employment, or any term or condition thereof, because of their union activities or in order to limit or discourage union activities. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their Section 7 rights. WE WILL offer those employees laid off as a result of our unlawful conduct, as found by the Board, who have not already been recalled or rehired to their previous jobs, immediate and full reinstatment to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them and all other laid off employees whole for any loss of earnings, benefits or compensation connected with their employment status which they may have suffered as a result of our unlawful action. WE WILL remove and expunge from our records and files any notations dealing with the layoffs of the em- ployees found to have been discriminated against by the Board and notify them in writing that this has been done and that evidence of such layoffs will not be used as a basis for future personnel actions. SONICRAFT, INC. Brian Steinbach, Esq., for the General Counsel. Gerard C. Smetana, Esq. (Arvey, Hodes Costello & Burman), of Chicago, Illinois, for the Respondent. Margo R. Newman, Esq. (Asher, Goodstein, Pavalon, Gittler, Greenfield & Segall, Ltd.), of Chicago, Illinois, for the Charging Party. SUPPLEMENTAL DECISION ROBERT A. GIANNASI, Administrative Law Judge. My original decision in this case issued on 14 February 1984. I found that Respondent violated Section 8(a)(1) of the Act by making various statements and threats and Sec- tion 8(a)(3) and (1) of the Act by virtue of its mass layoff of some 50 employees in December 1981 for discrimina- tory reasons. Alternatively, I found that Respondent dis- criminatorily selected 8 employees for layoff and discri- minatorily refused to recall 10 employees in a timely manner. I also rejected Respondent's contention that Section 10(b) of the Act precluded litigation of an amendment to the complaint concerning conduct which was the subject of a charge partially dismissed by the General Counsel and which occurred more than 6 months before the amendment. The original charge al- leged as unlawful the layoffs and the refusal to recall the laid-off employees, as well as a number of 8(a)(1) allega- tions and "other acts." The General Counsel issued com- plaint on four of the refusals to recall and certain 8(a)(1) violations, and dismissed the mass layoff allegation. Citing new evidence, the General Counsel thereafter granted the Charging Party's request for reconsideration, revoked his partial dismissal, and sought to amend the complaint to include the allegations which had earlier been dismissed. My rejection of the Respondent's 10(b) argument was compelled by interim orders of the Board in this case, which not only permitted, but required, liti- gation of the complaint amendment. See my original de- cision at 768-770 for a full exposition of the procedural history of the case. On 11 January 1985, the Board issued its decision in Ducane Heating Corp., 273 NLRB 1389 (1985); in which it overruled California Pacific Signs, 223 NLRB 450 (1977), and Winer Motors, Inc., 285 NLRB 1457 (1982), two cases the Board presumably relied on when it decid- ed that the amendment in this case was proper. On 27 March 1985, the Board remanded the instant case to me "for the limited purpose of addressing the Section 10(b) issues relating to the complaint amendment pertaining to the December 1981 employee layoffs in question in light of Ducane Heating." By July 1985 I had received briefs from all parties and reply briefs from the General Coun- sel and the Respondent. Based on those briefs, an analy- sis of the applicable authorities, and a reconsideration of the relevant evidence, including the demeanor and credi- bility of the witnesses, I make the following findings and conclusions. Before Ducane Heating, Board law clearly permitted an amendment to a complaint based on charges that had earlier been dismissed by the General Counsel, so long as the original charges had been timely filed and the Gener- al Counsel discovered new evidence concerning the dis- missed charge. See California Pacific Signs, Inc., supra. In this case, the then General Counsel set aside his partial dismissal because, during the trial, the discovery of new witnesses and consideration, of material obtained by sub- poena justified granting charging party's request for re- consideration of the earlier decision not to litigate the layoff issue. Respondent argued that since the General Counsel had dismissed the allegation that the December 1981 layoffs were unlawful, that part of the charge was extinguished and, since no charge involving the layoffs existed, the December 1982 amendment was barred by Section 10(b). That view was rejected by the Board twice in this case. See also Mourning Y. NLRB, 505 F.2d 421, 424 (D.C. Cir. 1974) (the 6-month limitations period of Section 10(b) runs against a charging party, not the General Counsel); and NLRB v. Complas Industries, 714 F.2d 729, 734 (7th Cir. 1983) ("The six month limitation period applies only to the filing and service of a charge and not to the issuance or amending of a complaint," citing NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959)). In Ducane Heating, the Board held that "a dismissed charge may not be reinstated outside the 6-month limita- tions period of Section 10(b) absent special circumstances in which a respondent fraudulently conceals the opera- tive facts underlying the alleged violation. Where there is a fraudulent concealment, the limitations period begins to run when the charging party knows or should have known of the concealed facts." (Supra at 1390.)1 I In Ducane Heating, the Board did not discuss the principles in the Mourning or Complas cases or whether the new rule was to be applied retroactively. Normally, the extinguishment of a cause of action by a new interpretation of a statute of limitations warrants a careful analysis of ret- roactive or prospective application See Chevron Oil v. Huson , 404 U.S. Continued SONICRAFT, INC. 791 A. The Fraudulent Concealment Issue The General Counsel and the Union allege that there was fraudulent concealment in this case sufficient to pro- vide an exception to the Ducane Heating rule because (1) During the investigation of this case , Respondent de- clined to provide tape recordings of question -and-answer sessions between President Jerry Jones and employees and represented that the tapes were "undecipherable." When the tapes were later provided pursuant to subpoe- na, one of them-that relating to the 25 November ses- sion-was clearly audible and provided evidence of un- lawful conduct and motive ; and (2) Respondent's 29 March 1982 position statement submitted to the Regional Office during the investigation contained material that later proved incorrect and incomplete.2 Initially, I must say that I have difficulty in determin- ing what the Board means by fraudulent concealment in this context. In Ducane Heating the Board stated "the limitations period begins to run when the charging party knows or should have known of the concealed facts." However, both in this case and in Ducane Heating, the Charging Party filed a timely charge . The operative facts in this case-that a mass layoff had occurred-were clearly known by the Charging Party at the time it filed the charge. The General Counsel decided not to litigate the mass layoff issue based on his initial investigation. Ducane holds that, even though a charging party has filed a timely charge, the General Counsel cannot revive a dismissed charge after the 10(b) period has run. The thrust of the Board's holding in Ducane Heating is that the General Counsel's action or inaction caused the limi- tations period to run. I therefore assume that Ducane Heating refers to fraudulently concealed facts which, if not concealed, might have caused the General Counsel initially not to dismiss the charge.3 Respondent argues that what is relevant in determin- ing fraudulent concealment is the knowledge of the "ad- versely affected" party, here the Charging Party, and not the General Counsel, citing numerous authorities. See, e.g., Wisconsin River Valley District Council (Skippy Enter- prises), 211 NLRB 222, 226 (1974). Since, in Ducane Heating, the Board first applied the 10(b) limitations period to the General Counsel , it is not surprising that the prior authorities would speak of fraudulent conceal- ment in terms of the charging party's knowledge. And since, in Ducane Heating, the charging party had filed a timely charge, when it spoke of fraudulent concealment, the Board must have referred to the knowledge of the General Counsel. See also Winer Motors, supra, 265 NLRB at 1458 fn. 12 and accompanying text, where the Board defined fraudulent concealment as conduct which causes the charging party either to withdraw a timely filed charge or not to file one at all. 97, 106 ( 1971); Landahl v. PPG Industries, 746 F.2d 1312, 1314-1316 (7th Cir. 1984); Gray v. OPM, 771 F.2d 1504 (D.C Cu. 1985). I do not view the remand order as permitting a discussion of these issues here. 2 The Respondent actually submitted several position statements but the one upon which the General Counsel focuses was that of 29 March 1982. (See G C. Exhs. 4, 4(b), and R. Exh 65.) 9 Respondent is presently represented by different counsel from coun- sel who represented it dung the investigation and trial. Thus, although, in Ducane Heating, the Board spoke in terms of fraudulent concealment, it appears more likely that the Board meant to address the issue of misrepresen- tation by a respondent during the General Counsel's in- vestigation . I am unsure of the exact contours of the so- called fraudulent concealment or misrepresentation ex- ception when the charging party has filed a timely charge and the statute of limitations is applied to the General Counsel. Its definition is essentially a matter for the Board . However, I believe it is appropriate in this case to apply at least some of the criteria that are applied in fraudulent concealment cases which toll the statute of limitations for the Charging Party. Thus, the evidence al- legedly concealed by misrepresentation must not only be material but must not have been discoverable by the ex- ercise of due diligence. See Ladies Garment Workers (McLoughlin Mfg.) v. NLRB, 463 F.2d 907, 921-923 (1972); Amcar Division v. NLRB, 592 F.2d 422, 429-431 (8th Cir. 1979); NLRB v. Don Burgess Construction Corp., 596 F.2d 378, 382-384 (9th Cir. 1979). See also Duff- Norton Co., 275 NLRB 646 (1985), and Northwest Tow- boat Assn., 275 NLRB 143 ( 1985).4 Turning first to the alleged misrepresentation relating to the tape recordings, I note that the record shows that President Jerry Jones made three speeches to assembled employees. Texts of Jones' prepared remarks were turned over to the General Counsel during the investiga- tion. However, on two of these occasions, there were discrete question-and-answer periods after the speech. The meetings were taped by the Respondent. When the tape recording of the 25 November meeting was pro- duced pursuant to subpoena during the hearing in this case, the General Counsel was able for the first time to listen to the tapes. He concluded that Jones' remarks were unlawful and bore on the motive for the 11 Decem- ber layoffs. He then sought to amend the complaint to add 8(a)(1) allegations and the mass layoff allegations ini- tially dismissed. I found that Jones did indeed make two unlawful threats of retaliation, including one that the em- ployees might be sent home or laid off (see my decision at 776-777). These threats demonstrated unlawful motive for the layoffs. The General Counsel alleges that the Respondent made serious misrepresentations about the tapes during the investigation. In analyzing this issue, I accept the tes- timony of Board Agent Edward Klaeren that, during the investigation, Respondent's agents refused his request for the tapes and told him, falsely, that the tapes were not understandable. Klaeren testified that he asked Respond- ent's Attorney Bettye Kitch and President Jerry Jones for the tapes of Jones' remarks to employees at group 4 The fraudulent concealment exception is, of course, an equitable doc- tnne read into all federal statutes of limitations. As the Supreme Court has stated: Where a plaintiff has been injured by fraud and "remains in igno- rance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discov- ered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party." Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), quoting from Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348 (1894). 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meetings. Actually, only two of the meetings were taped. Kitch first said she would "consider" the request, but then told Klaeren that the tapes could "not be deci- phered" and that she would try to get an expert to deci- pher them. Kitch also said she had listened to the tapes and "all she could hear were telephones ringing in the background" and that parts had been "taped over." Klaeren testified that he never was offered the tapes and never heard them. Kitch and Jones testified that Klaeren was offered the tapes and actually listened to portions of both of them. Kitch testified that "all of us decided it was very difficult to understand." I credit Klaeren's testimony. I found him to be the more candid and credible witness and his testimony sur- vived vigorous cross-examination. I had earlier found Jones not to be a reliable witness on other very signifi- cant matters in this case. (See my original decision at 779-783 and 776 fn. 10.) I found him no more reliable when testifying about this issue. And Kitch appeared to me to be tailoring her testimony to fit her litigation theory. The testimony from Respondent's agents that the tape was not understandable also flies in the face of reali- ty. I listened to the 25 November tape and, except for a few words and a taped over segment, Jones' remarks were clearly understandable. Indeed, the parties were able to agree to a transcription which was received in evidence as (G.C. Exh. 3). I find it implausible that an experienced field examiner like Klaeren, if he had heard any part of the 25 November tape, would have agreed with Jones and Kitch that it was "very difficult to un- derstand." Nor do I believe that Klaeren would have lis- tened to only a portion of the 25 November tape, as Kitch and Jones testified. It seems more likely that, if given the opportunity, he would have listened to all or a substantial portion of it and, in so doing, he undoubtedly would have concluded that the tape was understandable. In addition to falsely representing that the 25 Novem- ber tape was undecipherable, the Respondent made cer- tain exculpatory representations about the 25 November question-and-answer period in its 29 March 1982 position statement. Thus, the statement asserts that "at no time during the two question and answer sessions" did Jones "state or imply that the Company had never had a layoff' or state that "if the Union gets in, there probably would be a layoff." (G.C. Exh. 4(b), p. 2.) This was ap- parently the substance of charges made by employee wit- nesses during the investigation. Actually, the tape re- vealed, and I found, that Jones made these very state- ments. He pointedly told employees that he had avoided layoffs in the past (see my decision 776-777) and he sug- gested layoffs if the Union won the election (if he had to "talk with" the Union it would "mean probably" em- ployees "going home," see my decision 776-777). It is true, of course, that, before dismissing the mass layoff allegation, the General Counsel had available the results of interviews with employee witnesses who relat- ed what Jones said at the question-and-answer session of 25 November. But the investigator's report to the Re- gional Director (R. Exh. 66, p. 14) states that "the union witnesses are not in agreement as to what they heard." Thus, the General Counsel accepted the Respondent's benign representations of what Jones had said. Indeed, the failure to listen to the tape was crucial because the investigator had transcripts of Jones' prepared remarks, and he concluded that Jones would not have made un- lawful remarks during a question-and-answer period after his speech that were at odds with his prepared remarks. The investigator stated (at p. 14 of his report) as follows: As the Union points out, regardless of what Jones may have read from the scripts, he may have devi- ated from the script or he may have [made] some of the alleged remarks during the question and answer sessions which followed the speeches (Jones claims he did not have such a session after the final speech on December 10, 1981). While this is entirely possi- ble, I find it unlikely. Jones made it a point to tell his listeners that he was reading the speeches be- cause he was under certain restraints. Jones'had the benefit of both experience (a 1971 election cam- paign) and of labor counsel (who read and ap- proved his speeches). Thus, I find it unlikely that he would have deviated during the reading or that he would have answered questions with answers which were, if said, so obviously contradictory or incon- sistent with what he had just read minutes before. I conclude that the investigator's failure to focus on the question-and-answer period and to assess accurately Jones' remarks therein was attributable, in great part, to the Respondent's misrepresentations about what Jones had said and its false statement that the tapes of his re- marks were undecipherable. In addition, the investigator's acceptance of the Re- spondent's assertions directly affected his recommenda- tion that the General Counsel not issue a complaint on the layoff issue. He stated, "[n]or does the fact that in the past the Employer may have moved employees around from job to job support an unlawful motiva- tion. . . ." (R. Exh. 66, p. 15). Yet, as the tape and my findings make clear (decision at 777), Jones explained that moving employees from job to job instead of laying them off was a benefit which would be halted if the Union won the election. I found this statement unlawful and reflective of an unlawful motive for the layoffs. There is no way, in my opinion, that the General Coun- sel could have concluded that Jones' statement was not reflective of an unlawful motive had he had the tape re- cording during the investigation.5 Thus, Respondent's misrepresentations-that the tape was undecipherable and that Jones did not make unlaw- ful remarks during the question-and-answer period- 5 Indeed, even though I only found two specific violations in Jones' remarks during the question-and-answer period, the General Counsel urged that other references by Jones to possible layoffs were also unlaw- ful. (See my decision 776-777) Even though I found no violation in these other references, the question was certainly a debatable one. Moreover, on this issue, the General Counsel need not succeed on the merits. The question is whether a complaint would have issued . Thus, the General Counsel may not only have believed that these additional references to layoffs were violations of the Act, but he may also have considered that references to no layoffs in the past were incongruous in view of actual layoffs 3 weeks later. At the very least, these references might have tended to buttress the credibility of employee witnesses whose testimony was not originally accepted. SONICRAFT, INC. 793 were material and they influenced the General Counsel's decision not to issue complaint on the mass layoff issue. Nor did the General Counsel exhibit a lack of due dili- gence in accepting the representations of Respondent's counsel. When an attorney-who has certain ethical obli- gations-represents that a tape is undecipherable when it is not, how is a public prosecutor supposed to react? Must he or she, in every case, use an investigatory sub- poena to see if the attorney is telling the truth ? I think not. By the same token , must he or she issue complaint based on what is viewed as uncertain testimony of em- ployee witnesses when the respondent denies that any unlawful remarks were made and a tape of what hap- pened-the best evidence-is misrepresented as being un- decipherable and is not provided? The answer it seems to me is the same. The General Counsel may have been naive in relying on the representations of Respondent's counsel but I believe that the real blame lies with the Re- spondent. In reaching this conclusion, I am mindful of the District of Columbia Circuit's admonishment 'con- cerning fraudulent concealment in Ladies Garment Work- ers (McLoughlin Mfg. Co.) v. NLRB, supra, 463 F.2d at 923, that [w]hen a clue is passed over by so many competent individuals, the fair inference is that exercise of rea- sonable diligence does not assure its notice and that lack of such diligence is not the explanation for its nondiscernment. A more likely explanation is simply that the clue was sufficiently hidden so that it was capable of nondetection even given reasona- ble diligence. To be sure, once the clue is uncov- ered, its significance seems patent and its discovery is easy, but it is not a new phenomenon that the seemingly obvious becomes so only after its discov- ery has eluded a good many others. Hindsight does not convict these others of want of reasonable dili- gence. I find that the General Counsel's dismissal of the mass layoff allegations was influenced by Respondent's mis- representations concerning the 25 November tape and what was said by Jones in the question -and-answer period on that occasion. In these circumstances , the Re- spondent's misrepresentations tolled the 10(b) statute of limitations as it might have applied to the General Coun- sel. Accordingly, the General Counsel's subsequent re- versal of his dismissal decision was not violative of Sec- tion 10(b) and the complaint amendment was proper. The General Counsel and the Union make other con- tentions of misrepresentation with respect to the 29 March position statement. While the Respondent shaded its assertions and discussion of evidence in the position statement to its own ends, I do not find that Respondent made any other material misrepresentations which could not have been uncovered by the exercise of due dili- gence. The General Counsel alleges that certain supervisory justifications of layoff selections were provided by the Respondent in its 29 March 1982 position statement. She alleges, however, that those justifications run counter to employee job evaluations, which were much more reli- able because they were prepared about 1 week before the layoff. But, she continues, the more reliable evalua- tions were not provided to the Region during the investi- gation and were not mentioned in the position statement. I cannot conclude that the Respondent's reliance on the layoff justifications and failure to provide the evaluations amounts to misrepresentation or fraudulent concealment. The General Counsel surely knew the difference be- tween layoff justifications and preexisting employee eval- uations. The Investigatory Report to the Regional Direc- tor (R. Exh. 66) makes it clear at page 16 that the Gener- al Counsel knew that the supervisory justifications were "made after the selections for layoff." If the General Counsel wanted more objective evidence of employee performance before the layoff, he could have asked em- ployees whether they were evaluated and, given an af- firmative answer, he could have asked for those evalua- tions. a The General Counsel also alleges that the Respondent submitted "limited production sales figures" with its posi- tion statement in support of an alleged "cash flow crisis." The General Counsel alleges that more complete sales figures submitted at trial refuted Respondent's contention that little or no revenues were being received during the critical period before the layoff. The more complete sales figures showed fluctuating revenues over a longer period of time . Although Respondent's sales figures were per- haps incomplete, their interpretation was a debatable matter. It was obvious that Respondent was a defense contractor who had access to certain advance payments from the Government. And there was nothing in Re- spondent's presentation of the sales figures which would have prevented the General Counsel, by the exercise of due diligence, from inquiring about a broader set of fig- ures. Moreover, the existence of several other bank ac- counts which were in a positive position effectively re- futed the alleged cash -flow crisis in Respondent's regular account. The position statement mentioned that Re- spondent was able to cover overdrafts in the regular ac- count by using funds from another account . According- ly, I do not believe that the Respondent 's sales figures contained any particular misrepresentation about Re- spondent's cash-flow situation which would toll the stat- ute of limitations as it might apply to the General Coun- sel. In sum, I have found that, on one particular issue, Re- spondent made material misrepresentations that the Gen- 6 is true, as the General Counsel suggests, that certain of the original written justifications had their dates altered to reflect that they were pre- pared the day of the layoff rather than the next day. For example, it ap- pears that the original written justifications prepared by Supervisor Dorothy Jones had their dates altered. They were not provided in the position statement because they were "apparently misplaced ," according to Respondent's attorney Kitch. These documents were later provided pursuant to subpoena and used to impeach Jones. There is no contention that these documents were significantly different from the justifications provided in the position statement, although, of course, they were differ- ent from the prelayoff employee evaluations The General Counsel in brief makes reference to these original justifications , but makes no specif- ic allegations in connection with the failure to provide them In any event, I fail to see how the failure to provide the originals had any impact on the investigation or the initial decision not to issue complaint on the layoffs 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD eral Counsel could not have uncovered through due dili- gence and that would have affected his initial decision not to litigate the mass layoff issue. Thus, the statute of limitations was tolled until discovery of the true facts. Since the amendment to add the mass layoff allegation to the complaint came after such discovery during the trial of this case, the amendment was proper and not violative of Section 10(b) of the Act.7 B. The "closely related" Issue The General Counsel and the Union also urge that the amendment allegations must be sustained because they are "closely related" to the original complaint allega- tions. Member Dennis made specific reference to the "closely related" doctrine at footnote 9 of the Ducane decision. I find that the amendment in this case is indeed "closely related" to the original complaint allegations and thus must be sustained under well settled authorities that predate Ducane. In NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), cited by Member Dennis in Ducane, the court reviewed authorities on the issue and rejected the con- tention that Section 10(b) precludes the amendment to a complaint based on a timely filed charge simply because the amendment comes more than 6 months after the al- leged unlawful act. The court summarized settled law as follows: (1) A complaint, as distinguished from a charge, need not be filed and served within the six months, and may therefore be amended after the six months. (2) If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) oc- curred within six months before the filing of the charge. See also NLRB v. Hotel Conquistador Inc., 398 F.2d 430, 433 (9th Cir. 1968); NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 746 (7th Cir. 1973); NLRB v. Com- plas Industries, 714 F.2d 729, 734 (7th Cir. 1983); Kelly- Goodwin Hardwood Co., 269 NLRB 33, 36-37 (1984), enfd. mem. Nos. 84-7243 and 84-7351 (9th Cir. 1985). As the Board has stated: It is well settled that the timely filing of a charge tolls the time limitation of Section 10(b) as to mat- ters subsequently alleged in an amended charge which are similar to, and arise out of the same course of conduct, as those alleged in the timely filed charge. Amended charges containing such alle- gations, if filed outside the 6-month 10(b) period, are deemed , for 10(b) purposes, to relate back to the original charge. This practice is wholly consistent with the statutory scheme, which establishes the charge merely as a vehicle for setting in motion the Board's investigatory machinery and, additionally, affords the Board leeway to issue a complaint on grounds other than those specifically set forth in the charge. [Footnotes omitted.] Kelly-Goodwin, supra, 269 NLRB at 36-37. The so-called "closely related" doctrine is broadly construed to give meaning to public rights . The relation- ship between the existing charge and the amendment al- legations "need be close enough only to negate the possi- bility that the Board is proceeding on its own initiative rather than pursuant to a charge." NLRB v. Central Power & Light Co., 425 F.2d 1318, 1321 fn. 3 (5th Cir. 1970).8 Thus, in Kelly-Goodwin, the allegations in the original charge involved different sections of the Act than those in the amended charge . And, in Braswell, amended allegations involved discharges at different and widely scattered locations of the same employer. The Seventh Circuit nevertheless approved the amendment, stating as follows: The practices complained of all occurred within the same general time period , a one to two month span of time. Although different locals were involved at each location, they were all members of the Inter- national Brotherhood of Teamsters . When the testi- mony concerning the specific unfair labor practices is viewed in the context of the respondent's past re- lationship with the teamsters, it is clear that the company's conduct at the three locations was part of an overall plan to resist organization by the Teamsters. Too, the specific allegations in the com- plaint with respect to the Atlanta and Jackson ter- minals were of the same class and character as those set out in the original charge. Thus, we conclude that the respondent's conduct at its Atlanta and Jackson terminals was properly before the Board. 486 F.2d at 746. In all of the cases, there is a recognition that Section 10(b) is no impediment to the amendment of a complaint or charge which involves incidents that are "similar to and arise out of the same course of conduct as those al- leged in the timely filed charge." Kelly-Goodwin, supra. Under these well settled principles, it seems clear to me that the amended allegation here was sufficiently re- lated to the undismissed portion of the charge which 7 The Respondent argues that it should not be faulted in this case for having cooperated with the General Counsel during the investigation be- cause there is nothing that requires it to submit any evidence to the Gen- eral Counsel in the absence of a subpoena . The Respondent's argument misses the mark. The issue here is not whether a respondent should coop- erate dung an investigation. The issue rather is whether the statute of limitations applies when a General Counsel dismisses a charge based on misrepresentations during an investigation. Had Respondent not cooperat- ed at all, the General Counsel would have been unlikely to have dis- missed the charge since the dismissal was based primarily on assertions in the Respondent's position statement. a See also Fant Milling, supra, 360 U S. at 307, where the Court ap- proved the issuance of a complaint which contained allegations "related to conduct alleged in the charge and developed as one aspect of that con- duct" while the proceeding was pending before the Board. In that case, as here, the Regional Director had dismissed the charge , but apparently an appeal was still pending before the General Counsel when the Region- al Director reversed his decision to dismiss the charge . In any event, the Court stated that "[a] charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry." Ibid. SONICRAFT, INC. 795 spawned the complaint . The amendment involved the layoff and refusal to recall all employees, the same dis- criminatory basis and section of the Act that undergirded the four refusals to recall that were the basis for the original complaint . Both allegations involved the same employer and the same unit and arose out of the same campaign, which ended in a union victory in the election of 11 December.9 They are also closely related in time. The layoffs were announced on Sunday 13 December, but some employees were recalled within a few days- two were recalled on Tuesday 15 December. Supervisor Cora Robinson testified that a "couple of days" after the layoff, a shipment arrived at the plant that required the recall of employees. And another supervisor stated that President Jerry Jones was "upset" because the Union had won the election, that Jones had a list of union sup- porters and said "these people would definitely not be coming back to work" (see decision 773 and 779). More- over, the complaint also alleged that numerous state- ments and threats both before and after the layoffs illus- trated Respondent's unlawful motive and independently violated Section 8(a)(1) of the Act. The layoffs were cer- tainly related to those allegations . Finally, since the laid- off employees were recalled at different dates, it was vir- tually impossible to determine which, if any, employees were discriminatorily recalled without considering all the recalls as well as the original reason they were laid off. Surely the reason for the layoffs provided a backdrop to explain the reason for the recalls and, since some recalls took place within days of the layoff, the question lingers why a layoff occurred in the first place. For all of these reasons, I find and conclude that the allegation that all the employees were discriminatorily laid off and denied recall is "similar to" and "arises out of the same course of conduct" as the allegation that four laid-off employees were discriminatorily denied recall "as of December 14," the day after the layoff itself. Even if the mass layoff allegation were found to be in- sufficiently related to the allegations of the original com- plaint, the failure to recall all the laid-off employees cer- tainly was closely related to the allegations of the origi- nal complaint. The amendment alleged not only that 50 employees were discriminatorily laid off but also that they were discriminatorily denied recall . Since the origi- nal complaint alleged that four employees were not re- called for discriminatory reasons, the failure to recall the other 46 is sufficiently related to the original complaint under Kelly-Goodwin and its antecedents. As I have indi- cated, a number of laid-off employees were recalled within days of the layoff and the president of Respond- ent vowed that union supporters would not come back to work. Since Respondent began recalling some laid-off employees shortly after the mass layoff, it is appropriate to consider the recall issue under the so-called selection theory, which I analyzed at pages 783-788 of my deci- sion. 9 At the time of my original decision, the Board had upheld the validi- ty of this election. Upon reconsideration, in a supplemental decision and order, the Board overturned the election results and ordered a new elec- tion. 276 NLRB 407 (1985). In considering Respondent's defense on this issue, I note that it is based solely on application of the 10(b) statute of limitations. (See p. 38 of its brief.) Respondent does not allege that there is something inherently wrong with the General Counsel's revival of a dismissed charge or that it was prejudiced by the General Counsel's amendment in this case . Indeed, the amendment was ap- proved before either Winer Motors or Ducane was decid- ed; thus, as I stated in my earlier decision , Respondent could not have been prejudiced because the law in exist- ence at that time permitted the amendment. Here, as in Kelly-Goodwin, "the Respondent's argument is addressed only to the validity of the complaint under Section 10(b) of the Act, and raises no question of unfairness with re- spect to the preparation and litigation of its case." (269 NLRB at 36.) Compare NLRB v. Hotel Conquistador, supra, 398 F.2d at 433 with NLRB v. Complas, supra, 714 F.2d at 73. More specifically, Respondent contends that Ducane meant to overrule Kelly-Goodwin and that Kelly-Goodwin "cannot stand in light of Ducane. These are basically contentions that are better addressed to and by the Board. But I doubt very much that the Board overruled a case that it did not cite or discuss. Nor do I believe that the Board intended to overrule sub silentio not only a case, but the entire well settled court approved doc- trine upon which it was based. Indeed, Kelly-Goodwin was decided after the Board's Winer Motors decision which applied Section 10(b) to withdrawn charges and which, according to Respondent, presaged Ducane. Rather; I believe that the Board left open the application of Kelly-Goodwin and its antecedents to this situation be- cause the issue was never raised in Ducane.10 Since the "closely related" doctrine predates Ducane and was not addressed by the Board in that decision, it must be presumed to be compatible with Ducane. I be- lieve that it is. The "closely related" doctrine recognizes that new allegations may be amended into an existing case even though they were time barred by Section 10(b). There, as here, there were other viable charges which matured into complaint allegations thus permitting the General Counsel to bring time-barred allegations into existing litigation. There is no difference-in terms of the 10(b) rationale of Ducane-between allegations in a dis- missed charge which "ceases to exist" (at 1391) and alle- gations which were never made part of a charge. If the latter time-barred allegations can properly be amended into a case pursuant to the "closely related" doctrine-as the cases clearly hold-then the former should also be susceptible to amendment if they likewise are "closely related." The policy behind Section 10(b)-that stale al- legations should not be litigated after records are lost and memories dim-applies equally to both types of cases. 1 1 10 The Board also did not pass on Delta Metals, Inc, 236 NLRB 1665 at fn. 2 (1978), and Ace Drop Cloth Co., 178 NLRB 665 fn. 1 (1969), where the "closely related" doctrine was applied even though the time- barred allegations had previously been dismissed. 11 The purpose of the 10(b) limitations period is to prevent respondents from being "brought to book upon stale charges" and to bar litigation over past events "after records have been destroyed , witnesses have gone Continued 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thus, there is no reason, based on the application of Section 10(b), to treat any differently a "closely related" allegation which has previously been dismissed from one that has not. Nothing either in the statute or in the Ducane decision itself suggests that there is anything in- herently wrong with the General Counsel 's revival of a dismissed charge. The Board's decision in Ducane Heat- ing was not based on procedural or due process consider- ations. Its decision is based solely on the application of the 6-month statute of limitations period of Section 10(b). To illustrate this point, in Ducane itself, the Board ap- proved reconsideration by the General Counsel of a pre- viously dismissed charge even though the ultimate deci- sion to go to complaint took place more than 6 months after the conduct alleged to be unlawful . The Regional Director's original dismissal was affirmed by the General Counsel but the charging party filed a motion for recon- sideration which the General Counsel ultimately granted. The Board thus specifically approved the General Coun- sel's revival of a dismissed charge after the limitations period had run, requiring only that the charging party's motion for reconsideration be filed or accepted within the 10(b) period. (See Ducane, id. at 1389, discussing the Robinson charge.)' 2 Application of the "closely related" doctrine to a pre- viously dismissed charge does no greater violence to Section 10(b) than the Board's approval of the revival of the dismissed Robinson charge in Ducane. In both situa- tions, the General Counsel 's ultimate decision to include the dismissed allegations in the complaint takes place outside the 10(b) limitations period. However, in both sit- uations, Section 10(b) is not violated . In Robinson, Sec- tion 10(b) was satisfied because the charging party's motion for reconsideration was filed and accepted within the 10(b) period. Here, Section 10(b) is satisfied because a "closely related," viable and undismissed charge was filed within the 10(b) period.' 3 elsewhere, and recollections of the events in question have become dim and confused." Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 419, 425 (1960), quoting from the legislative history and NLRB V. Pennwoven. Inc., 194 F.2d 521 , 524 (3d Cir. 1952). 12 Compare the Mourning decision of the District of Columbia Circuit cited supra. is The instant case is factually distinguishable from Ducane in two other significant respects In Ducane the General Counsel dismissed those portions of a charge (11-CA-8748) which involved two suspensions of employee McCrea However, there, unlike here , there was no appeal by the charging party of the dismissal and the General Counsel sua sponte revoked his earlier dismissal . Here, the Charging Party appealed the original dismissal and "requested reconsideration " by the Regional Direc- tor of his earlier dismissal (see my original decision at 768). It would appear that these differences would warrant not applying Sec. 10(b) in this case. A party who does not appeal the dismissal of a charge is similar to the party who has withdrawn its charge When a charging party has thus acknowledged that no charge exists, the respondent may rightly assume that after 6 months have passed it need not defend against that charge. By the same token, where a General Counsel sua sponte revives the nonappealed charge, it appears that a public official is proceeding on his or her "own initiative"-a procedure contrary to the statutory scheme. I realize that, however meritorious these factual distinctions might be, the Board's Ducane holding is broad enough to envelope them, absent application of the "closely related" doctrine However, when one applies the "closely related" doctrine, consideration of these factors might serve to distinguish Ducane. For the General Counsel's sua sponte revival of the unappealed, previously dismissed charge in Ducane appears Application of the "closely related " doctrine in this case also leaves untouched the essential holding in Ducane, based as it is on Section 10(b). Thus, whether or not a charge has been dismissed , where other charges against a respondent have resulted in the issuance of a complaint, the respondent knows that it will be going to trial . A consequence of going to trial is that new evi- dence may come to light and that "closely related"-but not unrelated-allegations may be litigated by amend- ment even though the 10(b) period has run.'4 On the other hand, when all charges against a respondent are dismissed, no trial is contemplated and the respondent can be assured that the dismissed charges may not be re- vived after the 10(b) limitations period has passed. Finally, there is every equitable reason to apply the "closely related" doctrine in this case. First of all, if it is not applied, employees would lose a cause of action through no fault of their own or of the Charging Party who espoused their interests . The Charging Party ap- pealed the partial dismissal to the General Counsel and was precluded by law from obtaining court review of that determination . See Vaca v. Sipes, 386 U.S. 171, 182 (1967). Thus, even though the Charging Party did every- thing required of it by Section 10(b) of the Act and pressed the matter as far as permissible, the employees would still be without a remedy. On the other hand, the Respondent has not suffered any prejudice . At the time of the amendment, Board law clearly permitted the amendment under Section 10(b). The amendment came during the trial of a "closely related " issue when neither the lapse of time nor the loss of memory or records hin- dered Respondent's defense . Respondent had no difficul- ty retaining records since it needed and used them in connection with the recall case, and , in any event, had preserved them by submitting position statements with copious attached documents and data. Respondent vigor- ously contested the issues presented by the amendment and suffered none of the adverse consequences suggested by the policy reasons underlying application of Section 10(b). Thus, if the allegation in the amendment is, as I have found, "closely related" to the timely filed charge which spawned the complaint, the fact that the conduct occurred 11-1/2 months rather than 6 months before the date of the amendment should not preclude litigation of such a "closely related" allegation. In sum, I conclude that my findings with respect to the discriminatory mass layoff and the discriminatory se- lection of employees for layoff are still viable because they were based on amended allegations "closely relat- ed" to the original complaint allegations . I also conclude that my findings with respect to the discriminatory refus- al to recall specific employees are still viable because they too were based on amended allegations "closely re- lated" to the original complaint allegations. to pierce the outer limits of the "closely related" doctrine See NLRB v. Central Power & Light, supra. 14 Cf. Carpenters Local 720 (Stone & Webster), 274 NLRB 1506 (1985) (time-barred amendment and original charge "not closely related and did not anse out of the same course of conduct" because they "were separate and distinct acts, carried out at different times, for different reasons")