Sumco Mfg. Co., Inc.

SLUMC() MANUFACIURING C). INC 427 Sumco Manufacturing Co., Inc., Summit Grinding Company ad United Steelworkers of America, AFL-CIO-CLC. Case 8-CA- 11702 August 25, 1980 DECISION AND ORDER BY MIMBERS JENKINS, PENl I. O, ANI) TRUESDAIF On April 15, 1980, Administrative Law Judge John C. Miller issued the attached Decision in this proceeding. Thereafter, the Charging Party and Respondents filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law I Respondents have excepted to the Adminislratole ias* Judge's find- ing that there is common ownership and fiznancial control of Sumco M ani ufacturing Co, Inc., and Summit Grinding Company, because Respond- entis contend that no corporaionl named Summit Grinding Conmplan hs ever existed Rather. Respondents assert that the correct name of the cor- poration involved in the takeover of Sumco Manufacturing Co, Inc, is Summit Grinding & Machine Co Hovsever. we note that Respondents specifically admitted that Summit Grinding Company as an Ohio cor- poration in their answer to the complaint in this case and never raised any issue as to the correct name of Summit C rinding Compans until they filed exceptions with the Board Therefore. we find their exceptions on this point to he untimely Furthermore. we note that Respondents hase not contended that they have suffered any prejudice due to the use of al alleged incorrect name to refer to Summit Grinding & Machine Co it this case. and it is clear that counsel for Summit Grinding & Machine Co has actively participated at every step of the proceeding, herein The Charging Party and Respondents have excepted to certain credi- bility findings made by tile Administrative Las Judge It is the Hoard's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950) enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings : In adopting the Administratlie Law Judge's Decision in this case. vse do not rely upon his statement in the fourth paragraph of sec I.D,3(d), that "As a general rule. if an employer becomes more strict with employ- ees after union organizing begins, it is deemed to he a reprisal for such union actisities and is violative of the Act." Rather, we are satisfied that the record in this case supports the Administrative l.a Judge's conclu- sions that Respondents' threats to take aas employee breaks were in fact made in retaliation against the employees' union organizing actisities, especially noting that Respondents have advanced no legitimate business reasons to justify such threatened changes in emploee workilg condi- lions In par. 5 of the Conclusions of Law section of his Decision, the Ad- ministrative Las Judge failed to list the follo'sing independent 8(a)(1) viilations which he had previously found to have occurred a pronise of a raise to an employee to deter him from supporting the Union and a statement creating the impression that employees' union actiitices were under surveillance, made by Donna olock, more stringetil enforcemenl of plant rules in retaliation against employees' union actis ities and a state- ment that the reason fior the layoffs was to get rid of uilon orgazizers. made by William Desatnik: and a threat to lay off and not recall ullion suppo)rters. made by Dominlic Romeo We therefore correct these nlad- xertenlt misiolis We agree swith the Admilistratise lo. Judge's con- clusion that a bargaining order is not 'arranted in this case under 251 NLRB No. 46 Judge and to adopt his recommended Order, as modified herein.:' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respond- ents. Sumco Manufacturing Co., Inc.. and Summit Grinding Company. Mogadore, Ohio, their offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. as so modified: I. Substitute the following for paragraphs l(b), (c), (d), and (e): "(b) Discriminatorily hiring new employees for Summit, while former employees of Sumco are still laid off, in an attempt to displace employees who support the Union. "(c) Belatedly offering laid-off Sumco employees an opportunity to be considered for employment with Summit as probationary new employees with- out their old wages and fringe benefits because of their activities or support of the Union. "(d) Interrogating employees about their union activities or support for the Union; threatening to discharge or lay off employees because of their union activities or support for the Union; threaten- ing to close the plant if the Union became the em- ployees' bargaining representative; stating that the reason for the layoffs was to get rid of the union organizers; stating that laid-off employees who sup- ported the Union would not be recalled; creating .:L.R.B. Gssel Packing Co.. Inc.. et al., 395 S 575 (1969), inasmuch as the Gieneral Counsel has not met her burden of pros lng that the Charging Party eer represented a majority of the emplosees i an ap- propriate unit WVe note that there is insufficient eidence in the record to establish the number and identity of the employees actuall) emplio,ed in the appropriate unit after the payroll period ending February 26. 1978. and that, therefore. we are utilable to determine hether or not the Charging Party ever attained actual majority status after that tinte s1; the subsequently signed cards which are in the record. The Charging Part! contends in its exceptions. however. that despite its lack iof majori status a bargaining order is nevertheless warranted in this case under 'nired Dair Farmers Cooperaurive Asociarion. 242 NLRB 1026 (19791 We find that the conventional remedies provided in the Administrative l.as Judge's Decision are sufficient to dissipate the effects of Respondents' unfair labor practices in this case and. for the reasons set forth in our re- spectise opinions in nirtd Dairy Farmers. supra. dechlne to issue a bar- gaining order in the absence of an) proof of actual majority status : We find that a broad remedial order is warranted in this case, under the standard of Ilickmorr Foodi, Inc.. 242 NLRB 1 5' (19791. inasmuch :1s the Respondents here have engaged in numerous serious violations of Sec 8a)1l) and (3) of the Act aid hase hereby demonstrated a general disregard for the employees' fundamental statutorv rights Accordingls. we shall modify the Administraive Lass Judge's recommetnded Order h) inserting the broad "ili anN other manner" cease-alid-desist language 'We shall alo modify the langiuage f the Admilistratic I xs Juldg's rccom- menided Order to coinform ilth his ('lConluson of I as Fimalls I. e shall modify the Admlnistratixe l.ais Judge's inolice to coliform ni ith his rec- ommended Order 428 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD the impression that employees' union activities were under surveillance; promising employees raises to deter them from supporting the Union; en- forcing plant rules more stringently; and threaten- ing to take away employees' breaks in retaliation against their union activities. "(e) In any other manner, interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JNKINS, concurring in part and dissent- ing in part: I agree with my colleagues that Respondents, in a successful attempt to undermine the employees' exercise of their Section 7 rights, committed seri- ous and flagrant violations of Section 8(a)(l) and (3) of the Act.4 However, I dissent from their re- fusal to grant a bargaining order, which is the only adequate remedy for Respondents' egregious mis- conduct. In response to employees' attempt to secure union representation, Respondents discriminatorily laid off union supporters and hired new employees to replace them. Respondents, inter alia, interrogat- ed employees about their union activities; threat- ened to discharge or lay off union supporters; threatened to close the plant should the employees select the Union; acknowledged that employees were laid off to get rid of the union organizers; created the impression of surveillance of union ac- tivities; made promises and threats to deter employ- ees from selecting the Union; and imposed more onerous working conditions in retaliation for the employees' union activities. My colleagues appar- ently agree with the Administrative Law Judge that if a union majority had been established, a bar- gaining order would have been appropriate in light of Respondents' serious unfair labor practices. However, because of the absence of proof of actual majority status, my colleagues find that the con- ventional cease-and-desist and offer-of-reinstate- ment remedy is sufficient to dissipate the effects of Respondents' unfair labor practices. In United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979), and Haddon House Food Products, Inc. and Flavor Delight, Inc., 242 NLRB 1057 (1979), Chairman Fanning and I set forth our reasons why a bargaining order should not be denied solely because majority support has not been demonstrated with certainty. There is no need to repeat the same arguments here. We stated that we would grant the bargaining order where the 4 I would award interest on the backpay due in accordance with my dissent in Olympic Medical Corporation, 250 NLRB No. II (1980) record clearly establishes that the employer has been guilty of most serious unfair labor practices which not only prevented the holding of a fair election but which also may have prevented the union from achieving majority status. There is little doubt that this is such a case. In Haddon House, supra, we stated that the ma- jority's failure to grant a bargaining order ". . . serves only to reward this Respondent for its seri- ous and extensive flouting of the Act, to encourage others to engage in similar pervasive and egregious unfair labor practices, and, thus ultimately to un- dermine and frustrate the policies and purposes of the Act." Regrettably, that presage was accurate. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDt)R OF THE NATIONAIl LABOR RELATIONS BOARD An Agency of the United States Government Wti WI.lL NOT discriminatorily select em- ployees for layoff out of seniority because of their union activities or support for the Union. WE WILL NOT discriminatorily hire new em- ployees for jobs at Summit, while former em- ployees of Sumco are still laid off, in an at- tempt to displace employees who support the Union. WE WILL.. NOT belatedly offer laid-off Sumco employees an opportunity to be considered for employment with Summit as probationary new employees without their old wages and fringe benefits because of their union activities or support for the Union. WE WILL NOT interrogate employees about their union activities or support for the Union; threaten to discharge or lay off employees be- cause of their union activities or support for the Union; threaten to close the plant if the Union becomes the employees' bargaining rep- resentative; state that the reason for layoffs is to get rid of union organizers; state that laid- off employees who support the Union will not be recalled; create the impression that employ- ees' union activities are under surveillance: promise employees raises to deter them from supporting the Union; enforce plant rules more stringently in retaliation against employees' union activities; or threaten to take away em- ployees' breaks in retaliation against their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed by Section 7 of the Act. SUMC() MANUFACTURING CO.. INC. 420 WE wiil. make valid offers of reinstatement to Sheila Smith, Betty Hoover, Linda Booth, Dale Carder, Phyliss Young, Bonnie Thomas, Jayne Freiman, Beverly Claar, Diane Fridley, Ruth Duncan, Sandra England, Agnes Tanner, Connie Votaw, Mary Adamson, John Mesko, and Sheryl Legg, and make them whole for any loss of earnings they incurred as a result of their unlawful selection for layoff, or our unlawful refusal to recall them, or our invalid offers of reinstatement, with interest, less any interim earnings. In the event any of said em- ployees have been reemployed, the remedy as to them will be modified accordingly. SUMCO MANUFACTURING CO., INC. SUMMIT GRINDING COMPANY DECISION STATEMEN I r TIHE CASE JOHN C. MILI ER, Administrative Law Judge: This case was heard before me in Akron, Ohio, on January 23-26, 1979. The complaint alleged that Respondents: discriminated against some 25 employees by laying off or terminating them on January 4, 1978; discriminatorily terminated another employee; interrogated and threat- ened employees; and, lastly, refused to bargain upon re- quest, in violation of Section 8(a)(l), (3), and (5) of the Act. Counsel for the General Counsel, the Charging Party, and counsel for the Respondent, all filed briefs which have been duly considered. On the entire record in this case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent Sumco, an Ohio corporation, located at 3985 Mogadore Road, Mogadore, Ohio, was engaged in the manufacture of automobile jacks. In the preceding calendar year 1977, Sumco shipped goods in excess of $50,000 from its Ohio facilities directly to points located outside the State of Ohio. Respondent Summit, an Ohio corporation, is located at 3991 Mogadore Road, Mogadore, Ohio, and is essentially a screw machine shop. It also makes jack stands and parts and automobile ramps. In the calendar year 1977, Summit shipped goods from its Ohio facility valued in excess of $50,000 directly to points located outside the State of Ohio. The complaint alleges, and I find, that both Respond- ents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. An issue to be resolved is whether Respondent Summit is to be deemed a single or joint employer with Sumco, or an alter ego of Sumco. The complaint alleges, Respondents admit, and I find that the United Steelworkers of America, AFL-CIO- CLC, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE AI.IEGED UNFAIR IABHOR PRACTICEs A. Background Sumco and Summit existed as separate corporations occupying adjacent quarters in the same building. Prior to the incidents herein, Sumco primarily manufactured scizzor jacks and jack stands and procured some compo- nent parts for the jacks from Summit. Sumco manufac- tured, assembled, and shipped these items to customers. Approximately one-half of its orders it shipped went to customers of Summit, and the remainder being direct customers of Sumco. Summit was essentially a machine shop operation and in the process it made component parts for jacks for Sumco. It also made auto ramps and other machine shop items. A more detailed discussion of their operations occurs later herein. I credit the testimony of Sumco employees Sheila Smith, Mary Adamson, and Denise Coontz that begin- ning in November 1977, and thereafter, they visited with a union representative, attended union meetings, distrib- uted union literature, and actively solicited their fellow employees to sign union authorization cards. Respond- ents conceded they became aware of employees' union activities beginning sometime in November 1977. During the holidays, beginning with Christmas 1977, Sumco, as was customary in past years, closed for inven- tory. On January 3, 1978, certain employees returning to work wore union T-shirts and union buttons, and pieces of literature urging support for the Union were circulat- ed and posted around the plant. On the afternoon of Jan- uary 4, 1978, Respondent Sumco, primarily through General Foreman Bill Desatnik, notified some 27 em- ployees that they were temporarily laid off and that they hoped to recall them within 2 to 4 weeks when business improved. A lack of orders or a slowdown in business was given to most employees as a reason for the layoff. On February 22, 1978, pursuant to posted notice, the remaining employees of Sumco were informed that oper- ations of Sumco were being taken over by Summit effec- tive February 27, 1978. Sumco's manufacturing, assem- bly, and maintenance operations were transferred to Summit, and Sumco was restructured and became essen- tially a sales organization. The employees of Sumco at the time of the takeover were transferred to the payroll of Summit and continued to receive the same wages and benefits they had enjoyed at Sumco. On January 6, 1978, the Union filed a representation petition seeking an election in a production and mainte- nance unit at Sumco. A hearing was held on January 23, 1978, and on February 3, 1978, the Regional Director for Region 8, dismissed the petition finding that a unit limit- ed to Sumco alone was inappropriate, and inferentially finding that a unit including employees of both Sumco and Summit appeared appropriate. On February 10, 1978, the Union filed charges against both Sumco and Summit alleging violations of Section 8(a)(l) and (3) which were served on Respondents on February 13, 1978. On March 8, 1978, the Union submit- 430 DECISIONS OF NATIONAL LABOR R LATIONS BOARD ted amended charges alleging a refusal to bargain, which charges were served on Respondents on March 10, 1978. By letter dated February 24, 1978, the Union had re- quested recognition and bargaining on behalf of employ- ees of Sumco and Summit. Respondents concede they re- ceived such a request and apparently responded, denying the request for recognition. At the hearing herein, the representative of Respondents conceded that they re- fused recognition because as a matter of policy they would not recognize a union absent an election and certi- fication by the Board. The date Respondents initially re- fused to bargain is not indicated in the record. B. Contentions of the Parties Counsel for the General Counsel contends that Re- spondents constitute a single or joint employer, or alter- natively that Summit is an alter ego of Sumco. The Gen- eral Counsel further contends that 15 named employees were discriminatorily terminated or laid off on January 4, 1978, because of their union activities or support; that Respondents hired new employees without recalling em- ployees on layoff; and that conduct of Respondents' agents and supervisors in interrogating and threatening to discharge employees, or stating that the plant would be moved or closed because of the Union or their union activities, makes a fair election impossible, and requests that a bargaining order be issued, as the Union represent- ed a majority. Counsel for the Charging Party asserts views similar to those of the General Counsel. He specifically asserts that there are 112 employees in the appropriate bargain- ing unit, and contends that 64 signed union authorization cards constitutes a majority of the bargaining unit. He also requests a Gissel bargaining order because of Re- spondent's alleged unfair labor practices. Respondents' representative asserts that Respondents are separate corporations; that neither Donna Bolock nor Dominic Romeo, who allegedly threatened or coerced employees, is a supervisor: that the layoff of January 4, 1978, was economically motivated and was in accord with seniority; and that offers of employment have been made by Summit to all former employees of Sumco since the takeover of Sumco by Summit on or about February 27, 1978. He also asserts that certain individuals whom the Union seeks to exclude from the unit are not supervi- sors but employees. C. Issues 1. Whether Sumco and Summit are deemed a single or joint employer, or alternately, whether Summit is an alter ego of Sumco. 2. Whether Donna Bolock and Dominic Romeo were supervisors. 3. Whether Supervisors William Desatnik and Elmer Hamrick and alleged Supervisors Bolock and Romeo en- gaged in interrogation and threats and other conduct vio- lative of Section 8(a)(l) of the Act. 4. Whether the discharge of Denise Coontz on or about December 19, 1977, was discriminatorily motivat- ed. 5. Whether the layoff of 15 employees on January 4, 1978, and subsequent recall efforts were discriminatorily motivated. 6. Whether the Union represented a majority of em- ployees in an appropriate unit when it requested recogni- tion and bargaining on February 24, 1978. 7. If the Union is found to have a majority, was the conduct of Respondents so egregious as to preclude a fair election and warrant the issuance of a bargaining order? D. Resolution of Issues I. Whether Summit and Sumco are deemed to be a single or joint employer, or whether Summit is an alter ego of Sumco. Respondents conducted their operations in the same building, which was personally owned by Harry Foley and his wife. Each Company has a separate address and separate entrances. The corporations (at least prior to February 27, 1978) kept separate payrolls, separate pur- chasing and sales, and advertised separately. The banking and insurance policies for each corporation are separate- ly maintained in separate offices by each of the corpora- tions. As to elements in common, both corporations have Harry Foley as president and chairman of the board, a common secretary in Harry Schwab, and a common labor relations consultant in Harvey Rector. Foley was president of Summit since its inception in 1945, owns 100 percent of the common stock, representing 85 percent of the outstanding stock. Foley became president of Sumco sometime in 1977 when he owned 60 percent of Sumco's stock, and he currently owns more than 60 percent of the stock. Foley exercised authority over managerial em- ployees at both Summit and Sumco although day-to-day operations were handled by the respective managerial employees. He exercises final authority over wages and fringe benefits at both Companies and has set the finan- cial policy for both Companies since 1976. There is evidence that Respondents had integrated op- erations. For example, a joint maintenance service was provided for both Companies and Sumco toolroom em- ployees used grinders and other equipment in the Summit toolroom. Richard Griffin, a Sumco employee, went through a 4-year apprenticeship, was paid by Summit who in turn billed Sumco for his wages. When he completed his apprenticeship, he was placed on the Sumco payroll. Dominic Romeo worked on the second shift at Sumco from July 1977 to January 1978 but re- mained on the Summit payroll. Sumco completed the manufacture and packaging of the jacks, after getting component parts from Summit. Summit owned the Sumco product line and leased it to Sumco. On February 22, 1978, a notice was posted for em- ployees announcing that the operations of Sumco were being transferred, effective February 27, 1977, to Summit and that current employees of Sumco were being trans- ferred with the same benefits and wages. The effect of the transfer was that approximately 23 production em- ployees of Sumco were transferred to Summit. The Sumco equipment was not relocated but was leased by StMC() NIANUFACIURING CO. INC 431 Summit and additional equipment of Summit's was moved into the so-called jack division. Foley testified that it was his decision to shut doiwn the manufacturing operations of Sumco. Elmer Hamrick, vice president and plant superintendent of Sumco. became superintendent of the jack division at Summit. William Desatnik, general freman of Sumco, became general foreman of the jack division at Summit. Since the shifting of manufacturing operations to Summit, Sumco has acted as a sales agency, and approximately a third of its sales are on behalf of Summit. In determining whether Summit and Sumco constitute a single employer or joint employers, the critical criteria considered by the Board include: common ownership or financial control; integration of operations; common management; and centralized control of labor relations.' From the above undisputed facts, there appears little doubt that Harry Foley had a majority ownership of both corporations and, according to Foley, set the finan- cial policy for each Company since 1976. 1 find a common ownership and financial control for both corpo- rations. As to integration of operations, Sumco completed the manufacture of jacks commenced by Summit and, in effect, the completed product was the result of the work output by employees of both corporations. As a result of the hearing held in the representation case, 8-RC-11196, and the record developed therein, the Regional Director made certain factual findings which are relevant here. He concluded that Sumco and Summit had a high degree of functional integration, noting that: they operate in contiguous facilities in the same building; that Sumco uses Summit's shipping dock and tool and die room: that Summit owns and leases the equipment which constitutes Sumco's production line; that they share the same main- tenance employees; that Sumco purchases the component parts for its scizzor jacks from Summit and that they jointly produce ramps and jackstands; that approximately one-half of Sumco's production is sold and distributed through Summit. There is nothing in my record to con- tradict the factual findings of the Regional Director with which I am in accord. Thus, I conclude that there is a high degree of functional integration of operations be- tween Summit and Sumco. Centralized control of labor relations. It is not disput- ed that Foley approved wages and benefits at both cor- porations and that Harvey Rector, a labor relations con- sultant, was in fact consulted by Foley as to labor rela- tions matters. It does appear that day-to-day operations. namely, the supervision of employees and the routine matters that arose during the workday, were largely han- dled by the respective managerial employees of both cor- porations. Inasmuch as the ultimate control of wages and benefits rested with Harry Foley, and he utilized the same labor consultant with respect to both corporations, I am satisfied that there was centralized control over the important aspects of labor relations and so find. As to common management, the only evidence is the ultimate authority which rested with Harry Foley. As he I See Intcrnational (t'nin o/ Opwruling Engmeinr., Local 428 4iL-(IO. 169 NLRH 184 (1 9h8: ); Grr (;rmnt 1f1, ('ompran,. Inc. 221 N R H 7h. 737 (1975) testified, it was he who decided to transfer Sumco's man- ufacturing operations to Summit. It appears that as to policy matters in the management area, it was Foley who exercised ultimate authority. Again, as to routine management matters the respective managerial employ- ees of both corporations had operational authority. In effect there was only partial common management exist- ing at the top. In normal operations, prior to the demise of the manufacturing element in Sumco on February 24. 1978, the respective corporations operated semi-indepen- dently. Subsequent to February 27, 1978. Sumco was es- sentially taken over by Summit. I find that there was common ownership and financial control, integration of operations. and centralized control of labor relations, and a partial degree of common man- agement during the critical period beginning in Novem- ber 1977, so as to warrant the conclusion that Summit and Sumco constitute a single employer. 2 2. Whether Donna Bolock and Dominic Romeo were supervisors within the meaning of the Act. Donna Bolock, an employee since 1968, was employed in the shipping division of Sumco, earned approximately $3.30 an hour, and exercised some authority over some four to six employees. Respondent's witnesses, General Foreman William Desatnik and General Manager Robert White, testified that Bolock did not possess any supervi- sory authority although White indicated that, in addition to performing the same duties as other employees, she engaged in routine record keeping. These consisted of orders or information regarding daily production but did not include specific orders on assignment of employees to certain tasks within the shipping department. Desatnik testified that Bolock received orders from him and Elmer Hamrick, shop superintendent and vice president of Sumco, with respect to hat type of jack would be hung or packed, and that Bolock was engaged in produc- tion work 95 percent of the time. Donna Bolock did not testify. Sandra England credibly testified that when she was hired in 1975 and began working in the shipping depart- ment Donna Bolock told her that she (Bolock) was her boss and if she had any problems to come to her. She further testified that Bolock assigned her work. and eval- uated her work once a month as to attitude, attendance, and quantity and quality of work. Desatnik conceded that he received reports from Bolock on the people in the shipping department but stated that he also checked with other employees. The pre-hearing affidavit of Donna Bolock, dated March 20, 1978. was read in part to Desatnik as follows: After I gave the evaluations to Bill [Desatnik], he would read it in my presence and ask me to make changes or he would make changes. The basic sub- jects I covered were quality, quantity, attendance and attitude. He basically had the records regarding the attendance and attitude, but he usually had no other way of knowing of girls' quantity or quality (;rar (r,,u,' II (ImpaUnL, i t. I' ,pro cI .o .Strurbrut Irat! Corp . 203 NRI.t 4,5 (1971) In 11 i flk irm conclusionl. I ird t unneccs- ,ar' to ltlidcr helher Sunlmilt s; i, all a r go f Sunco 432 DECISI()NS OF NATIONAL LABOR RELAT1IONS BOARD Basically, even though he always read my evalua- tions, he usually took my evaluation as is in all four categories. When asked whether the above statement was correct Desatnik responded. "No, not in its entirety." No further explanation was asked or given. Dale Carder, an employee of Sumco from approxi- mately September 1976 until February 1977, credibly tes- tified that he acted as a stockboy for Donna Bolock and that occasionally Bolock would come over and get him to get some stock for her. When asked if he was ever told that Bolock was a supervisor, Carder responded that he was told "that she was like packaging foreman. She would tell them-she gave the orders to all the girls in the packaging line there." Sheila Smith credibly testified that she believed Bolock was a supervisor because she disciplined people, specifically, that "she was yelling at Diane England that if she missed any more [work], she was out." She further testified that Bolock took her off her job when they were short in shipping and that Bill Desatnik introduced Bolock as one of her bosses and told her if she had prob- lems to go see her. John Mesko, a former employee of Sumco, credibly testified that he worked for Sumco from April 1977 to January 1978, and for part of this time he was a stock- boy. He was later transferred to the shipping department, where Desatnik introduced him to Donna Bolock as his supervisor and stated that he was to listen to her because she was the boss. He further testified that he got permis- sion from Bolock to leave work early and that on one occasion she reprimanded him for talking to an employee in the handle room. He also stated that she evaluated him every month. The record establishes to my satisfaction that Bolock, did not hire, fire, promote, or effectively recommend such actions. It is well settled that an individual need have or exercise only one attribute of a supervisor. If Bolock is a supervisor, it would have to be primarily on the basis of her assigning employees work and utilizing independent judgment in the process. She received her production orders daily either from Hamrick or Desatnik as to the numbers and types of jacks to be packaged and shipped, and she utilized a work force of six employees and a stockboy to accomplish that purpose. I further conclude that she was represented to employees as a "boss" or packaging foreman, that she did written evalu- ations on the employees in the shipping department, granted employees time off, and did have the authority to impose minor discipline of employees for poor work or absenteeism without necessarily having the right to discharge or effectively recommend their discharge. I further find that, although she was given the production orders to be shipped, she normally determined what person to assign to which job. I find that such job assign- ments required independent judgment based on her knowledge of the abilities of the persons involved. On :' Research Designing Service. Inc.. 141 NLRB 211. 213 (19h3), Ohio Power Company r N.L.R.B.. 176 F 2d 385. 387 (6th Cir 1949) such basis, I conclude that she is a supervisor within the meaning of the Act. 4 Dominic Romeo. Again White and Desatnik testified unequivocally that Romeo did not have the authority to hire, fire, promote, etc., but merely handed out the work in accordance with the instructions of Desatnik or Ham- rick. As with Bolock, the issue here is whether Romeo is merely a leadman or whether he was a supervisor. In his prehearing affidavit, dated March 28, 1978, and present- ed to him at the hearing, Desatnik stated that Romeo was a salaried employee, a second shift foreman over some 12 employees. Desatnik further noted: From sometime in August 1977 until the end of De- cember 1977, he was second shift foreman for Sumco. Except for the period when first and second shift overlapped, there was no other foreman or su- pervisor at the plant but Romeo on second shift. He was in charge of the plant on second shift. In his testimony at the hearing, Desatnik stated that Romeo had none of the attributes of a supervisor, that he merely followed the orders he laid out for him. Further, if something arose later, Romeo called either Desatnik or Hamrick for advice or instructions. I find his affidavit in- consistent with his later testimony and, for reasons de- tailed elsewhere, I cannot credit his testimony. In addition, I credit the testimony of employees Thomas, Claar, Tanner, Hoover, Booth, Young, and Frieman that Romeo was their supervisor. Tanner testi- fied that Hamrick told employees when Romeo was first assigned there, that Romeo was night shift foreman and supervisor and employees could take their problems to him. Also according to Hoover, Romeo would tell them what job to perform and if an employee ran out of parts or if the machine broke down, Romeo would transfer the employee to another job. Frieman also testified that she waited each day for Romeo to assign her a job. Romeo wore a little white coat, did not engage in production work and when he was not observing the work of other employees he sat at a desk located in the plant. He also initialed timecards and evaluated employees' work. Romeo did not testify. In light of the fact that Romeo was the only foreman on the second shift, which had some 12 employees, the credited testimony that he assigned employees to jobs, and his description as a night foreman by both Hamrick and Desatnik, I find and conclude that Dominic Romeo is a supervisor within the meaning of the Act.s 3. Whether Supervisors Bolock, Romeo, Desatnik, and Hamrick engaged in interrogation and/or threats viola- tive of Section 8(a)(1). 4 See Resp Exh , p. 41. where Robert White, general manager of Sumco, stated Bolock could transfer employees from one job to another in her area. If Bolock is not a supervisor. Respondent has only 4 supcri- sors over 50 employees ith the lowsest ranking supervisor in the jack division with approximately 40 employees, being Desatnik, the general foreman. ' Phalo Plastic Corporation. 127 NRB 151 1 1513 (190h); Research De- signing Srvice, Ince. supra. I further note that at the representation hear- ing Respondent stipulated that Romeo was a supervisor Resp. Exh . p. 104 SUMC() MANUFACTURING, CO., INC 433 (a) Donna Bolock. As noted previously Bolock did not testify. Consequently, the testimony of many employees as to Bolock's conduct is uncontroverted. Allegations: unlawful interrogation and creating the impression of surveillance; unlawful interrogation and promise of a raise; unlawful threat of plant closure; un- lawful threat of discharge because of signing a union card (par. 7(A)-(D) of complaint). John Mesko credibly testified that Donna Bolock, sometime in December 1977, asked him if he had signed a union card and he told her no. She approached him subsequently, and informed him that she had seen his card and he then admitted signing a union card. In fur- ther conversations Mesko had with B3olock she asked him why he wanted the Union, and when he responded for better wages she said she would go to Elmer (Ham- rick) and try to get him a raise. Bolock also called him a traitor for signing a card and told him if the Union ever got in, Foley would close down the plant and move south. She also told him that because he signed a card he probably would not have his job much longer. In these same conversations, according to Mesko, Bolock would "try to guess who were the union organizers, if it was Sheila [Smith] or Mary [Adamson] or something like that but I never answered." Mesko is presently employed at Lee Lumber Co. I find his uncontroverted testimony credible. Accordingly, I find the allegations proved and find each allegation (par. 7(A)-(D)) violative of Section 8(a)(1). Additional allegations against Bolock include: telling employees to keep their nose out of the Union if they wanted their jobs (par. 8, complaint); unlawful interroga- tion (par. 9); threats to discharge employees if she got union literature (par. 10); telling employees to bring in any (union) mail within 3 days and turn it in to her or lose their jobs (par. 11). Sandra England credibly testified that around Decem- ber 4, 1977, Donna (Bolock) asked her if she knew about the Union and when England responded no, Bolock stated that "if you girls want to keep your jobs, keep your noses clean and keep out of it." Bolock also asked her where her card was and told England to bring it in and she would take it into the office. England further testified that after her layoff on January 4, 1978, she con- tinued to visit the plant to have lunch with her mother who also worked there. During such visits, Bolock asked her if she went to union meetings and what her opinion was about what other people had said at the meetings and what went on. Sheila Smith credibly testified that she heard Bolock tell one of the girls that if she, Bolock, received any trash from the Union she would see to it that she lost her job. She further testified that after they started mailing out letters and union cards in the mail Bolock told em- ployees that they had 3 days to turn it in to her or they would lose their job. Smith stated that Bolock made this statement to, inter alia, employees Mesko, Peggy Buck- ley, Sandy Summers (England), all of whom worked in the shipping area. In light of the credited and uncontroverted testimony noted above, I find that Donna Bolock did unlawfully in- terrogate employees, promised an employee a raise, and threatened employees with discharge if they did not keep their noses clean and keep out of the Union or if they did not bring to her union material received in the mail. Each of the above allegations is supported by credited testimony and each is violative of Section 8(a)(1). (b) Allegations involving Dominic Romeo. Romeo did not testify and the testimony of employees is uncontro- verted. The allegations involve threats of loss of employ- ment and plant closure. Agnes Tanner's uncontroxerted and credited testimony is that on the night of the layoff she heard Dominic (Romeo) telling Betty Hoover that "anybody that had union buttons onil or supported the Union would not be called back to work." Linda Booth testified similarly that she overheard the conversation between Romeo and Hoover, wherein Romeo said something about any girls wearing union buttons or stickers would not return to work and that Harry Foley (the owner) would shut down and reopen under another name and they would not have their jobs any longer. Hoover testified credibly to the same effect and added that Romeo put his arms around her and said, "If you repeat any of this. I will deny it to my dying day." The testimony is uncontro- verted and credited that Romeo threatened that employ- ees supporting the Union would not be called back, and that Foley would close the plant or reopen under an- other name. I find these comments violative of Section 8(a)(l) of the Act. (c) William Desatnik, general foreman, originally of Sumco and more recently of Summit, and an admitted supervisor allegedly interrogated employees in Decem- ber 1977, restrained and coerced employees on or about January 3, 1978, by informing them that certain employ- ees were being laid off because of their union activity, and discriminatorily enforced work rules in reprisal for employees' union activities. John Mesko credibly testified that sometime in De- cember 1977 Bill Desatnik asked him if he had gotten any union mail, and he did not respond. Sandra England credibly testified that on or about December 16, 1977, she was called to Desatnik's desk and asked by him if she had been confronted by anyone running the union cam- paign, and named employee Mary Adamson. When she replied no, he asked her opinion about the Union and how her mother would feel. Although Desatnik testified, he did not deny such conversations. I find the interroga- tion of Mesko6 and England violative of Section 8(a)(1) of the Act. Sheila Smith credibly testified that there was a change in management's conduct after union literature surfaced at the plant. Specifically, she stated that before they got involved in union activity the rules were pretty lenient at Sumco. Afterwards, she had difficulty getting drills changed on her drill press, her breaks were timed, and her machine was not stocked. She testified credibly that on one occasion Desatnik kicked the bathroom door open and said, "Smith, get back to work." At that time ' Whil the lntcrrgtnlr1 I Mtk L, rtanldig alone might he deemed innocuous, '.hen considered Ailh the lestlim e f F'rigland and Smith. it warrants a finding of .a iolaion 434 I)4 CISIONS OF NATIONA. LABOR()K REI.AIIONS O)ARI) there were four others in the bathroom who were also on their break. Sandra England testified that on the day of the layoff Desatnik notified her, and stated you know the reason, "we are trying to get rid of the people that are trying to organize the Union for this Company." Desatnik denied asking this statement. I credit England over Desatnik. Desatnik had a penchant for overstatement, his prehear- ing affidavit was in part inconsistent with his testimo ny at the hearing, he contradicted himself in several in- stances, did not dispute testimony involving certain 8(a)(1) allegations, and appeared to tailor his testimony as best he could without being too accurate or too factu- al.7 F or all of these reasons I concluded that Desatnik's testimony is not credible whenever there was a critical conflict with that of other witnesses in this hearing. I find that Desatnik did unlawfully interrogate Mesko and England about the Union, and engaged in restraint and coercion of employees by advising England that the layoff was to get rid of people organizing for the Union: further that he discriminatorily enforced plant rules against Smith. all in violation of Section 8(a)(1) of the Act. (d) Allegations involving Elmer Hamrick, vice presi- dent of Sumco and shop superintendent of Summit. Hamrick is alleged to have threatened to take away the employees' coffee break in reprisal for employees' union activities. Mary Adamson testified that on or about December 1, 1977, she, Roberta Stull, Peggy Chaney, and Deborah Fridley left work 10 minutes early to go wash up, and were called into the office by Bill Desatnik. Desatnik told them there were going to be big changes, that they knew they were not supposed to wash up before a break. According to Adamson, he never said that to them before. She also stated that Hamrick said there were going to be changes and threatened to take away their breaks because they knew they were not supposed to leave early to wash up. She further testified that she had 7 As to overstatement. for example. when Desatnik was asked if cer- tain authority wras taken a:lay frorm him because of the union activities and orders from Foley and Rector, he responded: "Wa ltotally taken away from lme At hat point, I could not function as a foreman atnlymore, and at that point I advised Jones that I would staN on a little while longer with the Company until this niess was over, and at that time, I was getting another job because a folreman cannot funcltio under these conditions here is no way" His prehearing salement, which as read to him at the hearing, ideli- fied Dominic Romeo as a salaried employee, the oreman on the second shift over some 12 employees, and d as the personll in charge ,of the plant after top management left. In his estimlony, he slated unequisoically that Romeo had nione of the attributes of a superisor. As to contradictions, he testified that no one was discharged onlce unmon activities began He later conceded that Denise Coontz seas dis- charged onl December 19. 1977. A another point he stated there cre o plant rules After being conflronted ith a copy if plarlt rules, lie ad- mitted that it as posted oil the bulletin board but that he did n fllos it in most instances. At p 598 of the transcript, he stated he mistrusted Romeo stating "I will be honest sith you. I heard that he attended union meetings Right then and there that tells nme something is wrong This does not a;ppear t be the type of comment someone would make on the actlix ite lf all erl- ployee III ally eent it establishes Desatlik's continung iterest ill uion activities at the plant. Desatnik's testinlmony did nol dispute certain testimony o( NMIeskol anid England as tio his interrogatiotn about their union synpathies or activities washed up early prior to that without being called into the office. Hanmrick denied threatening to take away any coffee breaks i reprisal for their union activities and further denied threatening to take a coffee break away from any individual. As a general rule, if an employer becomes more strict with employees after union organizing begins, it is deemed to be a reprisal for such union activities and is violative of the Act. I conclude the incident did occur and credit Adamson in this regard. While I vould ordinarily be reluctant to hold that a employer cannot require employees to work on working time. here it has been established that prior to the advent of the Union employees were permitted to leave work prior to their break without being reprimand- ed. Accordingly, I find that the threat to take away their breaks if employees did not cease leaving early for their breaks, while justifiable in ordinary circumstances, was in retaliation for their union activities, and was violative of Section 8(a)(1) of the Act. 4. The alleged discriminatory discharge of Denise Coontz It is undisputed that on or about December 1, 1977, Denise Coontz was called into the office of Elmer Ham - rick by Bill Desatnik and informed that she was dis- charged because of absenteeism. It is also undisputed and Coontz readily admitted that her attendance at work was not good. According to Coontz whom I credit in this regard, she was one of the principal union organizers in the shop. She had been an employee from May 1976 until her dis- charge in December 1977. She stated that she and Mary Adamson went down to the Akron union hall and talked to Joe Jacobs, a union representative, about getting a union started. She passed out union authorization cards to employees and talked to other employees about the Union in the plant bathroom where employees ate lunch, and that this occurred in November and December 1977. She admitted having an attendance problem from the time she started working there and was warned "lots of time," about 10 or 11 times, about it. She admitted re- ceiving a written warning about her attendance but stated that she received no written warnings the week of her discharge and did not recall whether she was absent or received any verbal warnings that week. On the day of her discharge, Desatnil called her into Hamrick's office and told her she was missing too many days and that they had to fire her. Factors tending to support a finding of discriminatory termination include: the timing of her discharge approxi- mately a month after union activities became known to Respondent: the fact that although her attendance had been poor since she began work, it was tolerated: lastly, she was active on behalf of the Union and was one of the original organizers. In defense of her discharge, it should be noted that she acknowledged that she was warned 10 or 11 times, and that she had received a written warning. The written warning, received in evidence as General Counsel's Ex- SUMC() MANUIFACTUtRIN(i C). INC 435 hibit 10 was dated October 18, 1977. addressed to Denise Coontz and stated: As you know Elmer Hamrick and myself talked to you in September about your absentee record. At that time ou assured us it would be improved. As you knosw it has not improved. This will be your last warning. If it does not improve considerably. you will be dis- missed immediately. The written warning was signed by Desatnik and Hamrick, and also by Coontz, apparently as an ackniowl- edgment of the warning. The issue, simply posed, is whether Coontz was dis- charged for her union activities or for her absenteeism. In view of her admittedly poor attendance record and the fact that her final warning on absenteeism was dated October 18, 1977, prior to any alleged union activity, I am not persuaded that her discharge was discriminatorily motivated. Just because an employee engages in union activities does not insulate her from discharge if good cause exists. I find and conclude that her discharge was in fact caused by her poor attendance and not her union activities and I recommend dismissal of the allegation that it was violative of the Act. 5. Whether the layoff of 15 employees on or about January 4, 1978, or subsequent attempts to recall were discriminatorily motivated" The essence of this allegation is threefold: whether the layoffs were based on valid economic grounds or were discriminatorily motivated; secondly, even assuming the initial layoff was lawful in terms of cause, was the selec- tion of certain employees for layoff out of seniority dis- criminatorily motivated; lastly, whether the method of recall constituted a valid offer of employment particular- ly where Respondent hired new employees while old employees were on layoff. In determining these issues, the record and briefs of the parties disclose many factors, some of which are sup- portive of a finding of a discriminatory intent, while others appear supportive of contentions that valid eco- nomic reasons prompted the layoffs and recalls. These various factors will be discussed at length hereafter. a. Was the layoff of 15 employees discriminatorily motivated Timing of the layoffs. Previously noted facts, including admissions by Respondent's officials and counsel, estab- lished that Respondent became aware in November 1977 that union organizational activity was taking place at the Sumco plant. Organizational activity increased in De- cember and included the circulation of literature and "The complaint alleged that 26 employees, including Denise Coont. were discriminatorily laid off and not reinstated Counsel for the General Counsel now urges in her brief that 15 named employees were discrimin- atlrily laid off and at he hearing amended the complaint to delete the name Conl from par 19 of the complaint as Coonlllt as alleged a dis- criminatory discharge or layoff i par 18 of he complaint The chalge of position and the impact of a letice layoff are discused more ully hereafter union strikers and on January 3-4, 1978, at least a half dozen employees wvore union T-shirts or union buttons at work. The layoff announced and implemented on Janu- ary 4, 1978, was without warning. although previously when layoffs occurred, notices were posted in advance. Connie Votarw credibly testified that she took off work in September 1977 to have a baby and when she called Elmer Hamrick shortly before Christmas and asked him if she could return to work. he told her to come back to work on January 3. 1978, that there was plenty of work. Respondent contends that the layoff was prompted by a large inventory and slowdown in orders. Since the cus- tomary inventory was made during the holiday season, the amount of inventory on hand should have been known shortly before employees returned to work on January 3. While the timing of the layoff is arguably sus- picious, standing alone it is not conclusive but must be considered in conjunction with other factors. Layoffs and seniority. While Respondent contends that seniority was followed in selecting those for layoff, the testimony of Robert White, general manager of Sumco, indicated that there were a number of variations from se- niority. He stated that three or four people were retained because of a specific job they were doing. Thereafter, he conceded that a number of employees, namely, Ruth Duncan, Sandra England. Agnes Tanner, Beverly Claar, Sheryl Legg, Betty Hoover, were laid off out of senior- ity because of either their absentee record, or limited availability such as being able to work only the second shift. The limited availability was attributed to employees Beverly Claar and Betty Hoover,9 to the effect that they could only work the second shift. However, Hoover cre- dibly testified on rebuttal that, while she had listed the second shift as preferred when intially employed, she was not offered work with respect to either first or second shift at the time of the January 1978 layoff. While the retention of three or four people out of se- niority on the basis of their job skills is a legitimate reason and nondiscriminatory, laying off some six people out of seniority because of their absentee record or limit- ed availability, without heretofore relying on absenteeism or ascertaining their availability, establishes a substantial variation from seniority and raises substantial questions as to the real motivation in the selection of certain people for layoff. b. Transfer of orders from Sears and Western Auto There is a conflict in the testimony of Respondent's managerial employees as to whether orders from Sears and Western Auto were pulled back or transferred back from Sumco to Summit, resulting in whole or in part for the layoff of Sumco employees. Robert White, general manager of Sumco, admitted on cross-examination in the representation hearing that the layoff was caused in part by Foley's taking away the two big orders (Sears and Western Auto) from Sumco and that the employees of Sumco were working on such ' At the representlation hearing. Respondenrt stpulated that the onll reason Hoover uas laid off as seonirity Re,,p Exh . p 92 Moreocr. all six emplohee, laid off, ul of ,seniorill had signed union card, 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD orders in December 1977 and January 1978 prior to the layoff. I In the representation hearing held on January 23, 1978, Respondent sought to establish that Respondent Summit did lift the orders from Sumco because Sumco had in- curred financial losses and in fact owed money to Summit. Since Foley owned and controlled both corpo- rations, it is, at the least, highly implausible that Sumco could not or would not pay Summit for parts secured from Summit before paying their creditors. Based on White's testimony which I credit, it is clear that the transfer, or lifting the Sears and Western Auto orders from Sumco was a contributing factor in causing the layoffs of January 4, 1978.1 Still in issue, however, is whether the decision to lift such orders from Sumco was discriminatorily motivated. The record does not dis- close that the jacks previously made by Sumco were sub- contracted elsewhere or that Summit immediately began manufacturing its own jacks. It does disclose that 2 or 3 weeks after the layoff Summit transferred approximately three to six employees to work in the jack division of Sumco, at least two of whom became permanent trans- fers. 1 2 Sumco continued to operate its jack division with ap- proximately half of its normal work force until Foley de- cided on or about February 20, 1978, to have Sumco taken over by Summit which was done on February 27, 1978. In effect Summit took over Sumco's production of jacks and reorganized Sumco, relegating only sales func- tions to Sumco. Again the key issue, namely, what moti- vated the change-valid economic reasons or the desire to rid itself of individuals supporting the Union-must be reserved pending a careful examination of all pertinent factors. c. Evidence of discriminatory motive for layoffs I have credited the uncontroverted testimony of em- ployee Tanner that on the night of the layoff she heard Dominic Romeo telling Betty Hoover that anybody that had union buttons on or supported the Union would not be called back to work. This was corroborated by the credited testimony of Hoover and Booth. Booth testified in addition that Romeo stated that Harry Foley, the owner, would shut down and reopen under another name and they would not have their jobs any longer. With respect to to William Desatnik, the general fore- man, I have credited Sandra England that Desatnik told her on the day of the layoff13 that the reason for the layoff was to get rid of the people who were trying to organize the Union for this company. lo Resp. Exh 1, p. 50. " White indicated that orders for Sears and Western Auto constituted approximately one-half of Sumco's business. This is borne out by the fact that 27 employees were laid off at Sumco while 23 remained at work and ultimately were transferred to Summit's payroll 2 Francis Anderson and Sue James. :' I note the uniron authorization card sas signed by England on Janu- ary 4 178, and that Janice Hiner. an original supporter of the Union, attended union meetings shen cards were signed in November and De- cember 1977. and was dating Desatnik the general foreman In sum De- satnik may have believed England was not a union supporter when he made that remark While the testimony as to Romeo's comments on the layoff might arguably be the personal comments of a low level supervisor, when a similar view is expressed by the general foreman, I am persuaded that the views ex- pressed reflected a discriminatory motivation in the se- lection for layoff. Wage increases. A 9.2-percent wage increase notice was posted during the holiday shutdown (December 25-January 3, 1978) which apparently became effective in early January 1978. The General Counsel argues that the layoff of selected employees who either favored or were active on behalf of the Union was coupled with an increase for the employees who remained and was an in- centive to reject the Union. I credit undisputed testimo- ny that the Company gave an annual age increase every year at the beginning of the year. I conclude that the granting of increases in such circumstances is not a factor in determining whether the layoffs or failure to recall were discriminatorily motivated. d. tHiring of new employees at Summit prior to recall of Sumco employees A number of employees credibly testified that when the layoff occurred they were told it was temporary and that they would be recalled within 2 weeks to a month. Subsequently, the layoff became permanent, and on or about February 20, 1978, Foley testified that he decided to cease the production, assembly, and maintenance oper- ations at Sumco. The record reveals' 4 that five new employees were hired by Summit between January 13 and February 15. Further, there were 13 new employees hired by Summit between February 27 and March 30, 1978. While both Jones and Hamrick testified that they were instructed to hire Sumco employees back before hiring new employ- ees, such instructions were not strictly followed. Ham- rick admitted that as of March 28, 1978, 6 former em- ployees of Sumco had been recalled to work by Summit, as in contrast to 18 new employees hired by Summit be- tween January 13 and March 30, 1978. Upon being re- called, Jones testified that: Jesse Bibby was hired as a stockboy in the jack division; Trena Eldridge was hired for the jack division (first shift); Patricia Gaines was hired for the first shift in the jack division: Rhonda Rus- sell was hired for the first shift in the jack division; Nancy Reeves was hired first shift in the machine divi- sion; Narda Sullivan, Bernard Parsons, and Vicki John- son were hired for the first shift. In explaining why new employees were hired in the jack division, Jones testified: . . it was my responsibility to get the laid off em- ployees at Sumco Manufacturing back to work as soon as possible without destroying the production we already have, which we didn't have very much of. As I stated in previous testimony, we were ex- perimenting, trying to time study, and quite frankly, I did want to try some new people. '4 See C P Exhs 5and .. SUMCO MANUFACIURING CO, INC 417 So, as I say, if there was a discrepancy of not call- ing back some Sumco people, it was strictly on my shoulders. [Emphasis supplied.] Further on in the record, Jones was asked if former Sumco employees could not have done the work, and he responded indirectly by stating: I was experimenting. I figured I could use no former employees that were set in their ways when I wanted to try something new. We knew we were going to call these people back. I wanted to possi- bly change the set-ups and the procedures and have it down pat by the time we actually got back into production. Jones conceded that Russell, Gaines, Sullivan, John- son, and Parsons were newly hired in February 1978, before the final callback of the Sumco employees. He ex- plained in part, however, that Rhonda Russell had quite a few years of experience at General Electric. Again, in explaining why new employees were hired prior to recalling former Sumco employees, Jones stated: I would like to emphasize on my own behalf I was told to bring them back efficiently without hinder- ing production in any way, shape or form. I was not told to bring them back indiscriminately. On the basis of the previously recited facts, I find that Summit hired a number of new employees for the jack division while the former employees of Sumco who worked in the jack division were still on layoff, and before they were informed that Summit was hiring and that they should apply to Jones for a job. Hamrick testified that he went down the layoff list and attempted to contact all 25 employees on layoff. While he did not recall when he made the calls, he estimated approximately 3 weeks after the layoff. If he failed to contact a person by phone after several attempts, he would turn the name over to Summit and they would send that person a letter. He did not know if or how soon thereafter, Summit sent letters to those people. If he did personally contact employees, he told them if they were interested in going back to work they should come down and see Jones about a job, that he was no longer doing the hiring. Respondent's Exhibits 5 through 9 are copies of letters dated either April 11 or 12, 1978, two of which confirmed that an offer of a job at their old rate of pay had been made while three informed them of pos- sible job opportunities.' The text of the latter letter stated: Please be advised that Summit Grinding & Ma- chine Co. is still looking for good dependable em- ployees. If you are interested in a job at Summit, come into the office in person and make application. When we have a job opening commensurate to your ability we will consider your application with, 's In view of the dates on Resp Exhs 5-9, and the testimon of Ruth Duncan that she was telephoned and recalled in May 1978, Hamrick's or Jones' recall attempts occurred from mid-February through May 1978 at least, the same rate you had at Sumco Manufac- turing Co. The record established to my satisfaction that Summit did in fact hire new employees for the jack division while having former jack division employees at Sumco on layoff. Further. in contrast to the employees who were not laid off by Sumco but were transferred to Summit and retained their wages and benefits, the laid- off employees had to make application for a job, and many were told that they would have to start as new employees, including probation without the fringe bene- fits they previously enjoyed at Sumco. As a result of the limited nature of employment offers several employees rejected employment offers. 8 e. Factors supporting a valid economic layoff Selective layoff Respondent laid off approximately 27 employees on January 4, 1978. While the complaint al- leged 25 employees were discriminatorily laid off, coun- sel for the General Counsel has contended in her brief that 15 of the individuals selected were for discriminato- ry reasons. I construe this position as an abandonment of any allegations with respect to nine employees, 7 the balance of those laid off on that date. While employers have been known to cloak illegal layoffs by laying off other employees, the fact that nine other employees were laid off adds some credibility to employer contentions of a valid economic layoff. Foley testified credibly that Sumco had lost money the last 6 months of 1977, and that banks and other creditors wanted some reorganization or takeover of Sumco to assure that existing loans and indebtedness of Sumco would be satisfied. He stated that Sumco's jack division was cut back on January 4, 1978, after a review of in- coming orders, and the amount of jack division's inven- tory on hand. It was sometime after the closedown and after several meetings with his attorney and bank repre- sentatives that he decided that Summit would take over the manufacture of jack operations, and Sumco was rel- egated to the function of a sales organization. The deci- sion to reorganize Sumco, and for Summit to take over the task of manufacturing jacks was made on or about February 20 or 22, 1978, and a notice was posted on February 22 that effective February 27, 1978, all produc- tion, maintenance, and assembly employees of Sumco were transferred to the payroll of Summit with their ex- isting wages, and fringe benefits. The only exception was that if existing wage scales were higher in a particular operation, the former Sumco employees would receive the higher rate. i" Betty Hoover, Mary Adamson, Agnes Tanner, and John Mesko. " In view of the General Counsel's position on p I of her brief, and except for Sheryl Legg, there was no or little testimony adduced to sup- port that portion of the complaint alleging that Carol McCleary Vern Galloway. Michael Goodpasture. Lynda Gorman, I.yn Postlethwait. Robert Michaels, Peggy Chance. Robert Hazelett, Denzil Linton. were discriminatolrily laid off or terminated I shall dismiss uch allegalions. particularly in light of m) findings that the layoff itself was for alid eco- nomic reasons. SherlI Legg ssas selected for laolff out of seniority. which I find was discriminalors in light of Respondent's estabhlished union animus 438 DECISIONS OF NATIONAL LA()OR RELATIONS BOARD filing of representation petition. The record discloses that a representation petition for an election in a produc- tion and maintenance unit at Sumco was filed on January 6, 1978, 2 days after the layoff was announced and im- plemented on January 4, 1978. There is no evidence to indicate that Respondent or even prounion employees were aware if or when the petition for election was to be filed even though Respondent had been aware of union organizing going on since November 1977, and a number of employees circulated union literature and openly wore union buttons or union T-shirts. 6. Findings and conclusions on allegations of discriminatory layoff and recall For the reasons set forth hereafter, I find that the ini- tial layoff of employees on January 4, 1978, was for valid economic reasons. While I find the layoff was prompted by a large inventory and a slowdown in orders, I further find that the selection of certain employees for layoff was discriminatorily motivated and that Respondent's hiring of new employees for the jack division of Summit (which had been transferred from Sumco) before offering employment to former employees of Sumco, is further proof of a discriminatory motive. In concluding that the layoff of January 4, 1978, was economically motivated, I credit the testimony of Foley that Sumco had been losing money for 6 months prior to the layoff. Further, I credit the testimony of Wilfred Jones, general manager of Summit, that after the layoff at Sumco, no jacks were produced, and that ultimately he utilized some Summit employees and that a new ma- chine was ordered to update the jack line, and thereafter only Summit produced jacks.'8 In concluding that Respondent discriminatorily select- ed certain employees for such layoff, I note and rely on the following factors: (I) despite claims of layoff by se- niority, at least six employees were selected for layoff out of seniority; (2) the uncontroverted and credited testi- mony that Supervisor Bolock engaged in extensive threats to employees and Supervisor Romeo told union supporters they would not be called back; (3) the cred- ited testimony that Supervisor Desatnik stated that the layoff was prompted by employees' organizational efforts on behalf of the Union; (4) Respondent conceded that it hired new employees, including at least four to six em- ployees for the jack division before offering former Sumco employees the opportunity to be employed; (5) the invalid offers to former Sumco employees in that they were merely offered the opportunity to be consid- ered for employment, rather than offered employment. Further, to the extent that offers of employment were made, they were as new employees of Summit without their prior benefits and for a probationary period. As a consequence, several employees turned down offers of employment; (6) Summit hired 18 new employees and 6 former employees of Sumco, or a total of 24 employees by late March or early April 1979, as contrasted to the 27 employees of Sumco laid off on January 4, 19 7 9.'9 '" See Tr p 548. 551. iH While some f this hiring may have been caused by attrition. Wilfred Jones tesirfied hat he only hired one or two skilled people All of the above factors convince me that Respondent utilized its temporary layoff to selectively rid itself of certain employees, and then belatedly install a recall pro- cedure which tended to discourage former employees from coming back to work. I find, therefore, that the six employees selected out of seniority were discriminatorily selected and should not have been laid off. I further find that the belated offers to consider former Sumco employ- ees was an inadequate offer, discriminatorily motivated, and designed to discourage former employees from seek- ing employment with Summit as part of a continuing effect to create a turnover of employees, and to erode union support among the employees. Lastly, Respondent Summit's hiring of employees for the jack division and elsewhere while employees of Sumco were still on layoff confirms my views that Summit's actions were discrimin- atorily motivated. I find, therefore, that former employ- ees of Sumco were discriminatorily denied employment when Summit hired new employees for the jack division and for other areas in which Sumco employees were qualified. The exact determination of which employees were entitled to be recalled and the dates will be deter- mined in compliance proceedings as more fully detailed in the remedy section of this Decision. 7. Whether the Union represented a majority on February 24, 1978 The complaint alleges that the Union represented a majority of employees in the production and mainte- nance unit of Sumco and Summit since on or about Feb- ruary 24, 1978, and that Respondents have refused to bargain despite request. It is further contended that the unfair labor practices committed by Respondent since December 1, 1977, have made a fair election impossible. As a remedy therefor the General Counsel and the Charging Party request that a bargaining order be issued. A threshold question is whether the Union did in fact have an authorization card majority of employees in the appropriate unit at the time of the request for bargaining. If the Union did represent a majority, then the unfair labor practices found against Respondents will be re- viewed to determine whether such conduct precludes a fair election and warrants the issuance of a Gissel bar- gaining order.20 Conversely, if it is found that the Union did not have a majority on or about February 24, 1978, further discussion about the applicability of a bargaining order is unnecessary. Did the Union represent a majority of employees in the appropriate unit? In determining whether a majority exists, the total number of employees in the appropriate unit must be de- termined. The Charging Party's Exhibit, identified as 5A and 5B, is a list of Sumco employees as of January 3, 1978, a day prior to the layoffs, and totals 55 in number. Charging Party's Exhibit 6A, B, and C is a list of Summit employees as of February 22, 1978, and lists the names of 91 employees. Both lists were obtained from Respondents. The parties differed as to whether certain "' N.L.R.B. r. Gissel Puacking Co.. Inc.. 395 U.S 575 (1969). SUMC() MANUFACTURING C(). INC. 4I') individuals on the lists were properly includable in the unit and their status must still be resolved. The General Counsel contends that the Union had ap- proximately 64 signed cards at the time of the request for recognition in late February 1978. and that, the parties stipulated to exclude Terry Cotten, Larry Gough, Donald Emerson, Philip Hendricks. and Todd Pollack, they should not be included in the unit. She further con- tends that the parties agreed to delete Lynn Postlethwait from the list of employees, and to add the names of Gary Buckbee and Mark Coontz to the list of employees (Exhs. 5 and 6); that Clement Knapp has no community of interest with the employees and should be excluded; that student employees Dziados, Pollack, and Hendricks, who were students at local high schools and were em- ployed under "outside work experience" or OWE pro- grams, should be excluded because their employment tenure is brief, and the percentage of those remaining employed after graduation from school is significantly low. Finally, she urged that Norman Forshey, who filled Romeo's job subsequently, be deemed supervisory and excluded from the unit. Counsel for the Charging Party, in reviewing the em- ployee list introduced herein as the Charging Party's Ex- hibits 5 and 6, urges elimination from the Exhibit 5 list as supervisors, Elmer Hamrick, Ernest Kemppell, William Desatnik, Donna Bolack, and Frank Heisler. The Charg- ing Party further notes that 2 names were added to Ex- hibit 5, totaling 50 names and then 10 should be re- moved, leaving a total of 40 names on Exhibit 5 who are properly included in the unit. As to Exhibit 6, counsel for the Charging Party notes that it contains 91 names and contends that 19 of these should be eliminated. In addition to the contentions set forth by counsel for the General Counsel which were joined by the Charging Party, the following additional eliminations from the unit lists are urged on the grounds that certain leadmen, named hereafter, earned as much or more than Dominic Romeo and should be held to be su- pervisors. These were listed as Raymond Roth, Lee Frame, Jr., Carl Lewis, John Mathia, Richard Seiter, Harold Queer, James Stottlemyer, and Kenneth Bonner. In summary, the Charging Party contends that there are 112 employees properly in the unit (40 listed on Exh. 5, as modified. and 72 on Exh. 6, as modified), and that the Union introduced 64 signed representation cards, repre- senting a majority of employees in the unit on or about February 24. 1978, the date of request for recognition. Respondents in their brief did not reach or discuss the question of how many employees are properly in the unit, and primarily relied on defenses to the unfair labor practice allegations. To the extent Respondents have contested on the record either the supervisory status of certain leadmen or the proper placement of employees in the unit, the record testimony has been carefully consid- ered. Certain preliminary matters should be noted before considering the issues of unit placement of named indi- viduals, and the effect of certain stipulations. I note, for example, that 21 of 25 alleged discriminatees signed union authorization cards and that conversely, 4 employ- ees, Carol McCleary, Lynda Gorman, Robert Michaels, and Denzil Linton, who were alleged as discriminalces. apparently did not sign union authorization cards. Sec- ondly, five alleged discriminatees, namnelx. Linda Booth. Beverly Claar, Carol McCleary, Lynn Postlctlhsait. ianl Bonnie Thomas were listed on the Summit pas roll of' February 20-26, 1978, and were apparenllx rehired sometime prior to February 20, 1978. The origiiial charges alleging discriminatory laxoff or termination were filed on February 10, 1978, and served on Fcbruarx 13. 1978. The amended charges, alleging a refusal to bar- gain, were filed on March 8, 1978. and sered on March 10, 1978. The ffect of stipulations. Ordinarily, the stipulation of the parties as to the status of employees on their inclu- sion in the unit will be given full effect, particularly i a representation proceeding and makes unnecessary litiga- tion on those aspects. However. this is litigation n a complaint and in a number of instances in the record. there were stipulations received that a cerlain individual be excluded from the unit because he or she wxas no longer employed, was deceased. or was discharged ecen though said events occurred subsequent to the date of re- quested recognition. Whether or not individuals ere currently employed as of the date of the hearing is irrele- vant, if in fact they were employed at the critical date. on or about February 24, 1978. and were il anl employee category deemed within the appropriate unit. Therefore. I have rejected some of these stipulations as improper and irrelevant. The only critical elements for me to decide are the total number of employees properly iii- cludable in the unit and the number of signed authoriza- tion cards at the critical time. The Charging Party's Exhibit 5. As to Exhibit 5. the parties stipulated that Elmer Hamrick, Ernest Kemippell, and William Desatnik were supervisors and should he deleted. Further, in view of my prior findings that Donna Bolack was a supervisor, she too is deleted from Exhibit 5. The Union also contends that Frank }leislcr is a supervisor. The only evidence in the record as to Heisler indicates that he was utilized as a die repair man Absent evidence of supervisory attributes. he is ilncltd&L in the unit. All parties have agreed that employees Carol McCleary, Bonnie Thomas. Linda Booth, Beverly Claar, and Lynn Postlethwait were properly stricken from E x- hibit 5 because they were also listed on Exhibit . the Summit payroll for February 20-26, 1978. As I previous- ly found, Denise Coontz was properly discharged on or about December 19, 1977, I shall also exclude her name from the list. My review of Exhibit 5 reveals that the 2-page list to- taled 55 employees, including the names of Mark Coonltz and Gary Buckbee which were added by agreement. The Union contended that the amended list contained 5() names and that 10 should be deleted leaving 40 on the list as properly in the unit. Contrary to this contention, I find that the Charging Party's Exhibit 5 contains 55 names (including Mark Coontz and Gary uckhee). and deleting therefrom 10 names (rejecting the name of Heisler) leaves a total of 45 employees deemed properlx includable in the unit on Exhibit 5. 440 I)tCISI()NS OF NATIONAL L.ABO()R REL.ATI()NS B()ARD I:'xhihil . he Charging Party contends that the list contains 41 names and that 19 of such names should be deleted, leaving a total of 72 names properly included in the unlit. A review of the 19 names urged for deletion tol low s: Alleged supervisors. (1) Dominic Romeo-the record re- veals that Romeo was transferred from the second shift of the jack division at Sumco shortly after the layoff, and was returned to his position as a machine operator. As the layoff occurred on January 4, 1978, 1 find that Ronmeo had returned to his position as an employee in the die department at the time the Union requested rec- ognition. Accordingly, I conclude that he was no longer a supervisor and was a part of the appropriate unit at the time recognition was requested on or about February 24, 1978. (2) Norman Forshey-while the record established that Forshey succeeded to Romeo's job as second shift foreman, the record indicates he succeeded to that post in the summer of 1978. As he did not function as a fore- man on the critical date, I shall not exclude him from the unit. In addition, Guy Galloway, who signed a card, ad- mittedly succeeded Romeo as second shift foreman after the January 4, 1978, layoff, until he in turn was replaced by Forshey. To be consistent and for majority purposes, therefore, I shall include Forshey in the unit and exclude Galloway, as well as Galloway's signed card, as I find him to he a supervisor. (3) Terry Cotton-the parties stipulated that Cotton was a supervisor, and therefore he is properly excluded from the unit. (4) he Charging Party contends that leadmen Ray- mond Roth, Lee Francis, Jr., Carl Lewis, John Mathia, Richard Seiter, Harold Queer, James Stottlemyer, and Kenneth Bonner all received wages equal to or in excess of that paid to Dominic Romco and therefore they should be classified as supervisors. Respondent denies these men held supervisory positions. The only testimony adduced as to such men establishes that they were skilled workmenie who have none of the attributes of a supervi- sor. UWage rate standing alone is not a conclusive factor in determining who are supervisors. Accordingly, I find that the previously enumerated leadmen are employees and properly in the unit. Stipulations. The parties stipulated that Lynn Postleth- wait, Larry (or Harry) Gough, Donald Emerson, and student-workers Philip Hendricks and Todd Pollock should he excluded from the unit. The basis for the Postlethwait stipulation was that he was no longer employed. The Charging Party's Exhibit 6 establishes that Postlethwait was on the Summit payroll of February 20--26, 1978, and therefore, there being no other disability offered for his noninclusion in the unit, I find that he is properly included in the unit.21 Larry (arry) Gough. There was a similar stipulation by the parties that he was not in the unit because he had quit his job. The critical question is whether he was an employee in the unit on the critical date. I find that he was and include him in the unit. 2 If hic \:as excluided, hi, signed card would also be excluded Donald Emerson. The parties stipulated to exclude him on the basis he was deceased. Whatever his present status, i.e., now or at the time of the hearing, is irrele- vant. The record established that he was employed as a full-time janitor at the critical time and is properly in- cluded in the unit for purposes of determining the Union's majority. Kevin Whittaker. The parties stipulated that he left the Company and is now deceased. As previously discussed, what happened to employees subsequent to the critical period is immaterial, if in fact they are properly included in the unit. The record discloses that he was a full-time apprentice diemaker. As I find he was in the unit at the critical time, he is properly includable in the unit for pur- poses of determining majority. Phillip Hendricks and Todd Pollock. The parties stipu- lated to exclude them from the unit on the ground they voluntarily quit their jobs. They were high school stu- dents working part-time under an OWE (outside work experience) program established by the Company with local high schools. The record indicates that almost the entire second shift was made up of OWE student-em- ployees, ranging from 8 to 9 employees, that after they finished high school, they could work full-time and that approximately 75 percent stayed with the Company for a short time as full-time employees. As they were em- ployed at the critical time and were regular part-time employees, their subsequent departure is irrelevant, and I see no basis for deleting them from the unit. David Dziados. The record establishes that he too was a student worker under the OWE program. However, he worked regularly 6 hours a day for 5 days a week over an extended period of time. I find that he was a regular part-time employee, and properly includable in the unit. Clarence Knapp. The record discloses that Knapp worked primarily for Harry Foley, the principal owner of Respondents herein, on his farm and other related en- terprises and that while he was listed on the Summit pay- roll, he worked only sporadically on the plant premises. It was conceded that 70 to 80 percent of his time was spent in working on special work assignments for Foley outside the plant. I find that he has no community of in- terest with the regular production and maintenance unit and will exclude him from the unit. I agree that the Charging Party's Exhibit 6 contains 91 names. For the reasons previously discussed, I conclude that Cotton, Galloway, and Knapp are properly ex- cluded from the unit. From a list of 91 names, the three individuals above are deleted, leaving a total of 88 names on Exhibit 6. Adding 88 to the 45 individuals found in the appropriate unit on the Charging Party's Exhibit 5, the total number of employees in the appropriate unit is 133, of which a majority is 67. Union authorization cards (whose validity was stipulat- ed) were submitted as General Counsel's Exhibits 3 and 5, and established that as of February 24, 1978, the Union had signed cards from 62 employees (excluding Coontz and Galloway), 5 short of a majority. Additional cards were executed by Rick Cockenbaum on February 26, 1978, and by John Frost on February 28, 1978. As- suming, arguendo, that the request for recognition, dated SUMIC() MANUF'IACtLRIN(i C(). INC4 441 February 24. 1978, could not hase been received before February 26, 1978, and further that Respondent's reply by return mail was received by February 28. 1978, and therefore these 2 cards should be counted, the addition of 2 cards for a total of 64 would still fall short of a needed majority. 2 2 As I have concluded that the Union did not have a majority at the time it requested recognition, I ill dis- miss the allegation of refusal to bargain 2:1 CON( I LSIONS O()I L.xsN 1. Respondents, Sumco Manufictluring Company, Inc.. and Summit Grinding Company are a single employer engaged in conimerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents were discriminatorily motivated in not adhering to seniority in selecting individuals to he laid off on January 4, 1978, and discriminatorily selected Ruth Duncan, Sandra England, Agnes Tanner, Beverly Claar, Sheryl Legg, and Betty Hoover for layoffs and thereby violated Section 8(a)(3) and (1) of the Act. 3. Respondents' hiring of new employees for Summit while former employees of Sumco were still on layoff during the period between January 13 and March 30, 1978, was discriminatorily motivated, and an attempt to displace employees who favored the Union constituted conduct violative of Section 8(a)(3) and (1) of the Act. 4. Respondents' offer to consider former employees of Sumco for employment with Summit as new probation- ary employees without their prior benefits was not timely, did not constitute a valid offer of employment, and was discriminatorily motivated and violative of Sec- tion 8(a)(3) and (1) of the Act. 5. The interrogation and threats to discharge employ- ees and comments that the plant would close or be moved somewhere else if the Union came in or that union supporters would be recalled, made by Donna Pol- lock and Dominic Romeo. and instances of interrogation and threats by William Desatnik and Elmer Hamrick. each separately constitute violations of Section 8(a)(l) of the Act. 6. The Union did not represent a majority of employ- ees on or about Febrnary 24, 1978, when recognition was requested. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondents have not otherwise violated the Act. THI R}rNmIt, The recommended Order will require Respondents to cease and desist from the unfair labor practices found, to offer reinstatement to the same job, or a comparable job or to a job for which they are qualified, to Sheila Smith, : I-he record tloe nl disclos hen Respolndenlls rplied Iie the re quest fr r ogitillon A, o the airgUITilIi than there "sai a iiioilnuing demnand for ILogilitioil idtt sihsequerlJ signed alp. .IIIoitd hbe cOtlillt- (eg. cards ,glncd h Nicholson in 3/l ,7'h .', righ on 4 18 7K and SilI on 5/8/78, it Iac Ces UIlli'1llill . hal other chilllgt n ha,\e -tilrred the unit in he inlcrim i:( If a Unioln nllajorirl had hienl esitlh tlltd, il rls nie :a (,i\ I hir gaining order Suould he appropriate in lighti o the crIlIOtl tui11Air i ahil practices fIlld against Rr,ponllts HleIts ooscr. )al c Carder, p I ali you g Ja ni I l.Lt- man, Diane FridleN. Ruth l)uicallI, Salldra L I liglatil, Agnes Tanner. Connie Votaxs . Mary Adanison i John Mesko. and Sherl I .egg. an.d lo iake hole tle ati.rci- anlied eniploecs ad linda JHootlh. Bievcrl\ (Claar, dr llll lit' t ionll;as tfr ;an\ loss of carliigs tle\ irtcullrr d ;I the result of the infair labor pactices found helein I11 tlle case of Tniploees Rutl Il)tllit.;l. SIItdra llt lalnd Agnes I anler, le crlx C;laa-. Sls.! I Clg. L Hett Floo er whon I foud were discrimill;ltoril s.- lected for layoff out of seniorit. their hackpa shall rll]l froTi tle (date of the !;iofltf oil Jal tlll-r 4, I ') . tlril] thLe\ received a valid offer of reinstatenteill. less ir\ 111trtlim earnings. As to the remainder of the dirliscrinlill;lets, thct backpay period shall un beginning frott theL dale t ployces 'sscr trallsferred front Suinit t) iork on tli t jack division of Sumco or the date that it lie\ cmeilplocc were hired for the jack division for johbs hich form.r Sumco employees could perform, lhicheevr came first TIhe record indicates tt at least 2 ciiplovccs s crc transferred permlanientil to Sumco from Summit 2 oi 3 weeks after the January 4 1978, layoff. and that bet wcni January 13 and March 30. 1978. Summit hired 18 nesw employees, at least 4 of whom. Hibby, Eldridge. Gaines, and Russell, went to work in the jack division. Four others were also hired---Reeves in the machine division. and Sullivan. Parsons, and Johnson. The jobs in the jack division could have been filled by the Sumco emploees on layoff. I determining which employees should ha C been hired, seniorit\ shall be utilized and the individuals in question can be determined in compliance proctccd- igs. As to) other jobs fr Nhich ne\\ emplotes vsicrc hired at Sunimmit, laid-off employees of Sumco are ienti- tled to backpay from the date they should hac been cm- ployed in accordance s\ith seniority. provided they \ere qualified to perform such jobs.24 The a mounts of back- pay are to be computed in the maniner prescribed 1 W Woolwvorth Company, 90 NLRB 289 (1950). less al net earnings, with interest, as set frth in Iorilda Scei Corporation, 231 NLRHB 651 (1977). 2: In carrying out the remedy provided herein. Respondents shall be required to dismiss any employees hired subsequent to the JaniL- ary 4. 1978. layoff, if their hiring was for positions ftr which the laid-off Sumco employees. founld to be discri- minatees herein. were qualified. If insufficient ohs still exist, a preferential hiring list ill be estahlished for dis- crimmnatees. Upon thile basis of the foregoing findings of fact, con- clusions of la, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I herebh issue the follo-ing recommenllded Order: i aset on tlheir 'y cit' cn'I ' alid ,l .hii \ s t'' tl'r skillld 1lts g. ta1 l it ir TiIIIIIC t, 1iii . It .i iI('s h sA it-a Ciii lt x iikilIl M 1 ellde s .iCh l r.i l h'ls g l ii h 1 1 11lil. lll l t . i R r SCe, gclr i .IIt 1l)]1/.? . tll i1 R -t1)lt l (, i 1 N Rl t l I 'P)O11 442 DI)F.CISIO)NS ()F NATI()NALI. AABOR RELATIONS BO)ARD ORDER 2 ; The Respondents, Sumco Manufacturing Co., Inc., and Summit (irinidinig Company, Mogadore, Ohio, their offi- cers, agents. successors, and assigns, shall: 1. Cease ad desist from: la) Diserillnatorily selecting employees for layoff out of selliority because of their union activities or support for te Ullnion. (h) iring new employees for Summit for positions for ishich laid-fiTf Sumco employees were qualified to per- fornl. (c) Belatcdly offering laid-off Sumco employees all op- portlunily to he considered for employment with Summit as pobationary new employees vithout their old wages and fringe benefits. Id) Threatening employees with discharge or loss of breaks or stating that the plant will be closed or moved, or stating union supporters would not be recalled, be- cause employees were supporting the Union. (e) lin any like or related manner, interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: ,i In the c.cnt it, exception, are iled as provided by Sec 102.46 of lith Rule, and Regulatlions of Ihe Nationall .abor Relations Board, the filllings, conclusions, aid recommended Order herein shall, as provided ilt Sc 1(1248 of he Rules and Regulations, be adopted by the Board and hecome its findings, conclusions. a;nd Order, and all objections thereto shall he d'teemed s;aived fior all purposes (a) Make a valid offer of reinstatement to Sheila Smith, Betty Hoover, Linda Booth, Dale Carder, Phylis Young, Bonnie Thomas, Jayne Freiman, Beverly Claar, Diane Fridley, Ruth Duncan, Sandra England, Agnes Tanner, Connie Votaw, Mary Adamson, John Mesko, and Sheryl Legg, 27 discharging if necessary any employees hired by either Sumco or Summit after January 4, 1978, provided however, that these were positions for which the aforenamed persons were qualified, and make them whole with interest in the manner set forth in the remedy portion of this Decision. (b) Post at the plant premises of both Sunico aid Summit in Mogadore, Ohio, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 8. after being duly signed by Respondents' authorized repre- sentative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 6) consecutive days thereafter, in conspicuous places, i- eluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondents to insure that said notices arc not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 27 To the extent certain employees have been reemplo ed, their enti- tlement to remedies, including backpa, would he modified accordingl\ 2, In the event that this Order is enforced by a Judgment If the United States Court (if Appeals. the words i Ihe notice reading "Posted b\ ()rdcr of the Nalional l.abor Relati ons Board" shall read "Posted I'ilr- sua;lt a Judgmenl of the United Slates Court of Appeals nlfifrcinlg ani Order If the Natilonal I habor Relations Board "