Hamilton Electronics Co.

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 206 (N.L.R.B. 1973)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton Electronics Company and International Un-
ion of Electrical , Radio and Machine Workers, and
its Local 679, AFL-CIO-CLC. Case 6-CA-6032
April 25, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY. AND PENELLO
On December 12, 1972, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent I and the Charging
Party filed exceptions and supporting briefs, the Gen-
eral Counsel filed limited cross-exceptions, and Re-
spondent filed an answering brief to the General
Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The General Counsel and the Charging Party have
excepted to the Administrative Law Judge's failure to
recommend that six employees (including the two dis-
criminatees) not recalled in order of seniority be made
whole for any loss of pay due to Respondent's unilat-
eral departure from its past practice of recalling laid-
off employees in order of seniority. We find merit in
these exceptions. It is the Board's customary policy to
direct a respondent to restore the status quo where the
respondent has taken unlawful unilateral action to the
detriment of its employees. In the instant case, had
Respondent fulfilled its obligation to bargain with the
Union before altering its practice of recalling by sen-
1 Respondent has also filed a motion to reopen the record to permit the
introduction of a letter from the Charging Party's International representa-
tive to Respondent 's president consenting to the granting of a wage increase
In our view , this letter does not constitute newly discovered evidence or
evidence which has become available only since the close of the hearing, as
required by Sec. 102.48 of the Board's Rules and Regulations , we note that
Respondent's counsel states at the hearing that he was not requesting more
time to produce further evidence In any event, the letter in question cannot
affect the outcome of this case , as the Charging Party's acquiescence in a
wage increase would not justify Respondent 's granting the increase almost
a year later without notice to the Charging Party Accordingly, the motion
to reopen the record is hereby denied
2 Like the Administrative Law Judge, we conclude that the General Ct,un-
sel has sustained his burden of establishing that the failure to recall Peterson
and Marbury was based in substantial part on their union activity We
further agree that the Respondent has not shown legitimate and substantial
business justification for not recalling these employees , but do not adopt the
Administrative Law Judge's statement in this regard insofar as it might be
taken to imply that proof of such justification would be required under the
circumstances herein in the absence of evidence of unlawful motive
iority, the employees in question might well have been
recalled sooner than they were. In any event, the con-
sequences of Respondent's disregard of its statutory
obligation should be borne by Respondent, the
wrongdoer herein, rather than by the employees.' Ac-
cordingly, we shall order Respondent to make whole
the employees adversely affected by its unlawful uni-
lateral action.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Ham-
ilton Electronics Company, Carolina, West Virginia,
its officers, agents , successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(a) of
the Administrative Law Judge's recommended Order:
"(a) Offer Loretta Peterson and Diane Marbury
immediate and full reinstatement to their former posi-
tions , or, if these no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges previously enjoyed,
and make each whole for any loss of pay she may have
suffered by paying to her a sum of money equal to the
amount she would have earned from the date she
would have been recalled according to seniority to the
date of her recall, less her earnings during said period,
to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plum-
bing & Heating Co., 138 NLRB 716."
2. Add the following as paragraph 2(b) and renum-
ber paragraphs 2(b) through (d) as 2(c) through (e),
respectively:
"(b) Make the employees listed below whole for
any loss of earnings they may have suffered by reason
of Respondent's unilateral change in the method of
recalling laid-off employees, by paying to each a sum
of money equal to the amount she would have earned
from the date she would have been recalled according
to seniority to the date she was recalled, less her earn-
ings during said period, to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co. 138 NLRB 716:
Gloria Randle Linda Kincaid
Cynthia Marbury Nancy Lee"
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint herein be,
and it hereby is, dismissed insofar as it alleges unfair
3 Cloverleaf Cold Storage Co, 160 NLRB 1484, 1493
203 NLRB No. 40
HAMILTON ELECTRONICS COMPANY
labor practices not found herein.
MEMBER KENNEDY, dissenting in part:
I would affirm the decision of the Administrative
Law Judge in this matter. The majority's modification
of the remedy recommended by the Administrative
Law Judge is unwarranted, in my opinion.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law and we have been ordered to post this
notice. We intend to carry out the Order of the Board
and abide by the following:
WE WILL offer immediate reinstatement to Lor-
etta Peterson and Diane Marbury to their former
jobs, or, if these no longer exist, to substantially
equivalent positions, and will pay them backpay,
as provided in the Board's Decision and Order.
WE WILL NOT discourage membership in Inter-
national Union of Electrical, Radio and Machine
Workers, and its Local 679, AFL-CIO-CLC, or
any other labor organization, by refusing to rein-
state employees on layoff status, or in any other
manner discriminate against employees in regard
to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT change the wages of employees,
or fail to abide by previously existing seniority
rules without notifying the above Union and giv-
ing it an opportunity to bargain collectively
about such matters.
WE WILL pay the following employees for any
loss of earnings due to our failure to recall them
according to seniority:
Gloria Randle Linda Kincaid
Cynthia Marbury Nancy Lee
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their right to form and join unions,
to engage in concerted activities for their mutual
aid of protection, and to engage in collective bar-
gaining through their representative chosen in
accordance with the provisions of the National
Labor Realtions Act.
HAMILTON ELECTRONICS
COMPANY
(Employer)
Dated By
207
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This case,
heard at Fairmont, West Virginia, on October 10, 1972,1
pursuant to a charge filed on April 21 (amended July 31),
and a complaint issued on July 31, presents the following
questions for decision: (1) Whether Hamilton Electronics
Company (herein the Company or Respondent) violated
Section 8(a)(5) and (1) of the National Labor Relations Act,
as amended (herein the Act), when it unilaterally took cer-
tain actions with respect to the wages and working condi-
tions of its employees without notice to or consultation with
the International Union of Electrical, Radio and Machine
Workers, and its Local 679, AFL-CIO-CLC (herein the
Union) as the collective-bargaining representative of its
production employees; and (2) whether it discriminated ,
against certain of its employees in violation of Section
8(a)(3) of the Act, upon its failure and refusal to recall
certain of its employees following a layoff and/or recalling
other of its employees without following seniority rules.
At the close of the hearing, counsel for the General Coun-
sel and counsel for the Respondent made brief statements
on the record in support of their respective positions. In
addition, both counsel filed posthearing briefs within the
time allowed, all of which has been duly considered.'
Upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, a West Virginia corporation with its
principal office and plant located at Carolina, West Virgin-
ia, is engaged in the manufacture and nonretail sale of elec-
tronic component parts. During the past 12-month period,
i All dates hereinafter refer to the calendar year 1972, unless otherwise
specified
2 Attached to the brief of the General Counsel was his motion to correct
transcript in certain respects Such motion having been served upon the
parties hereto , and no objection having been filed, the motion to correct
transcript is hereby granted
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent shipped products valued in excess of
$50,000 from its Carolina, West Virginia, plant directly to
points outside the State of West Virginia.
Based upon the foregoing facts, I find, as the Respondent
admits, that it is, and has been at all times material, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since 1954 , Respondent has been engaged in the manu-
facture of electronic component parts at its Carolina, West
Virginia, plant. At the beginning of the calendar year 1971,
its approximately 35 production and maintenance employ-
ees were not represented by a labor organization. However,
commencing in the late winter or early spring of 1971, the
Union carried on an organizational campaign among the
employees which culminated in an NLRB-conducted elec-
tion on April 23, 1971, pursuant to a stipulation for certifica-
tion upon consent election.3 Following the election, which
was won by the Union, the Respondent filed timely objec-
tions alleging preelection misconduct by union agents. The
Board overruled such objections and, on October 7, 1971,
certified the Union as collective-bargaining representative
of the Company's production and maintenance employees.
On or about October 18, 1971, the Union requested the
Respondent to bargain collectively with it as the exclusive
collective-bargaining representative of the aforesaid em-
ployees, and commencing on or about October 18, 1971,
and continuing at all times thereafter, the Reondent has
failed and refused to bargain with the Union.?
In a Decision and Order dated March 7, 1972, the Board
found that by refusing to bargain collectively with the Un-
ion, the Respondent had engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act and
ordered the Respondent, upon request, to bargain with the
Union as the exclusive representative of all the employees
in the bargaining unit.5 However, as above stated, the Re-
spondent has not complied with the Board's Order, and the
case is presently pending for enforcement before the United
States Court of Appeals for the Fourth Circuit.
B. The November 1971 Layoff and Subsequent Events
At all times material , Western Electric Company, a divi-
sion of American Telephone and Telegraph Company, was
3 Case 6-RC-5741
In its answer in the instant proceedings, Respondent asserts that its
refusal to bargain was based upon its position taken in the representation
proceedings , and it was the only manner in which it could have the whole
matter reviewed by a circuit court of appeals The matter is presently pending
in the Court of Appeals for the Fourth CircuitS Case 6-CA-5738, reported at 195 NLRB 716
Respondent 's principal customer , accounting for over 50
percent of the Respondent's business . In November 1971,
for the first time in the history of the Respondent , Western
Electric rejected some of the Respondent 's products be-
cause of inferior work . Western Electric further directed the
Respondent to discontinue further shipments pending reso-
lution of the production problem . This resulted in a layoff
of a substantial number (approximately 19) of Respondent's
employees in November, which was done by seniority in
accordance with established company practice.'
After some discussions between representatives of West-
ern Electric and the Respondent 's president , it was appar-
ently determined that Respondent could resume shipments
to Western Electric but only-at least initially-in very lim-
ited quantities and on a test basis . Accordingly , the Respon-
dent recalled nine employees in April, 1972, but admittedly
deviated from seniority with respect to such recall.' This
was explained by Respondent 's president as being required
by the absolute necessity for maintaining strictest standards
of production . That is to say, as he testified , the Company
received from Western Electric in March a "go ahead" for
one pallet of production ; and that he took existing employ-
ees off other work to produce that one pallet and held up
further production until that was approved by Western
Electric . Such approval was received by the Respondent on
or about April 11, and the "go ahead" was given to ship one
pallet per week. This resulted in Respondent 's recall of some
employees in April , and the employees were selected not on
the basis of seniority but upon their individual ability to
perform quality work . Respondent's president explained the
situation in the following manner:
Q. Why weren 't they recalled according to seniori-
ty?
A. Well, in operating a plant , there 's maybe thirty or
forty employees , and some at the top , all the way down
to the worst one, and being close to the operation, I, in
my mind , knew who these were that we could depend
on, without checking everything that they did.
Q. How would you go personally about that, how
would you know personally about the work quality of
the employees?
A. I was always involved in the operations , I worked
in dungarees , seven days a week , twelve , fourteen hours
a day with that company , I was right in the heart of
things , and I have the feel of each of the employees and
the operators , and I knew who I felt I could count on,
in this critical period , to give me the quality of work,
that I would need to survive.
In May and June, Respondent recalled the remainder of
the employees on layoff except for Diane Marbury and
Loretta Peterson . Accordingly , near the end of June or the
first of July , these two persons called upon Charles Keyser,
Respondent 's president , in his office at the plant, to inquire
as to the reason they had not been recalled . Keyser told
6 The record reflects that , although not required to do so by any labor
contract, the Company maintained a policy and practice of laying off and
recalling employees by seniority when such layoffs were required due to
economic circumstances
3
The record reflects that three employees were recalled by Respondent in
December 1971, in accordance with seniority However, it does not appear
that these employees were recalled in connection with-or as a consequence
of-the Western Electric discussion
HAMILTON ELECTRONICS COMPANY 209
them that as a result of events which took place prior to the
Union's coming on the scene, the Company had been facing
bankruptcy and was still in a critical area; that in order to
survive , he felt that he had to hire the best people who would
give their "best efforts," and were "loyal to the Company";
and that the reason that the two women (Marbury and
Peterson) were not recalled was that they had been "trouble
makers." However, when Peterson asked him what kind of
trouble they caused, he was not responsive.'
C. The October Wage Increase
It is undenied that on October 5, 1972, the Respondent
granted its employees a 30-cent-an-hour wage increase
"across the board." This action was done without notice to
or consultation with the Union, apparently on the theory
that-like the deviation from seniority upon recall of em-
ployees-Respondent had no obligation to treat with the
Union until its certification had been upheld by the Court
of Appeals for the Fourth Circuit .9
Analysis and Concluding Findings
1. The 8(a)(5) allegation
The General Counsel contends that Respondent violated
Section 8(a)(5) and (1) of the Act by taking,the following
actions without notice to or consultation with the Union as
the collective-bargaining representative of its employees:
(1) deviating from seniority, i.e., departing from past prac-
tice with respect to the recall of its employees following the
November 1971 layoff; and (2) granting the "across-the-
board" wage increase in October. Respondent, while con-
ceding that it did not notify the Union with respect to (1)
above, contends that it had no obligation to do so since it
had called the Union's certification into question through
the filing of a petition for review of the Board's Order in the
Court of Appeals for the Fourth Circuit. It makes the same
contention with respect to point (2) above and asserts, addi-
tionally, that it met with the Union on this subject in June
1971, wherein the Union gave Respondent permission to
grant the increase. I reject the Respondent's defenses of this
issue for the reasons set forth below.
It is by now well established that unilateral action, such
as was taken by the Respondent in this case, which has a
substantial impact upon employees' wages, hours, and
working conditions, violates Section 8(a)(5) of the Act when
undertaken without notice to or consultation with the em-
ployees' collective-bargaining representative. 10 The duty to
B The foregoing findings are based on the testimony of Keyser, Peterson,
and Connie Quedens, Keyser 's secretary, who overheard the conversation
from an adjacent bathroom . Marbury testified that Keyser stated that he did
not intend to call the two women back because they were "talking up union
talk " However , this was not corroborated by Peterson and was denied by
Quedens and Keyser Under all circumstances I do not credit Marbury's
testimony to that extent
9 There was some rather vague testimony in the record by President Keyser
that the subject matter of a wage increase did come up with a union repre-
sentative in a discussion immediately after the election, but that nothing was
agreed to Clearly, in view of the time lapse of over a year between that
conversation and the institution of the wage increase, such could not be
considered notice to or acquiescence by the Union
bargain obtains even though the employer is prompted to
take the action solely because of "economic considera-
tions," as in that case at bar." Contrary to the Respondent's
position, the duty to bargain is not obliterated or stayed
pending an appeal of the Board's Order in a United States
court of appeals.12
As previously indicated, I do not consider as substantial
evidence the rather vague testimony of President Keyser to
the effect that he did discuss the matter of a wage increase
with union representatives shortly after the election. The
inchoate nature of such discussions , taking place well over
a year prior to the institution of a wage increase , cannot be
considered notice to or acquiescence by the Union.
Accordingly, I find and conclude that by altering its prac-
tice and policy with respect to recall of employees by senior-
ity, and by instituting the wage increase in October, all
without prior notice to or consultation with the Union, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
2. The 8(a)(3) allegation
The issues on this aspect of the case may be stated as
follows:
(1) Whether Respondent altered its prior practice of re-
calling employees by seniority because they selected the
Union as their collective-bargaining representative, thereby
delaying the recall of certain of its employees; and (2)
whether Respondent refused to recall two of its employees
because they had engaged in union activities . I find, for
reasons hereafter stated, that the Respondent did not vio-
late Section 8(a)(3) of the Act with respect to (1) above, but
that it did with respect to (2), above.
As the evidence reflects, Respondent, by President Keys-
er, exhibited its strong opposition to the organizational ef-
forts of its employees prior to the election by writing several
letters to the employees in which such opposition was ex-
pressed. Thus the letters pointed out that a union brought
with it dangers of "strikes, restrictive work rules, and harass-
ment" which could hurt the Company badly and that a
union was "neither necessary or desirable for [the employ-
ees'] security and well being"; and that the Respondent
intended to oppose the Union in "every legal way we can
because we sincerely believe that a union would be a serious
mistake in this plant at this time." 13
While such statements are not attacked by the General
Counsel as being coercive or threats in violation of Section
8(a)(1) of the Act, and therefore may be considered protect-
ed by Section 8(c) of the Act, they may be considered as
bearing upon the issue of motivation under Section 8(a)(3)
of the Act.14
As previously set forth, following the November 1971
layoff, the Respondent, on December 6, 1971, recalled three
of the laid-off employees by seniority. However, it does not
10 See Assonet Trucking Company, Inc, 156 NLRB 350; Winn-Dixie Stores,
Inc, 147 NLRB 788, enfd. as modified 361 F.2d 512 (C.A. 5, 1966).
11 Assonet, supra at 352
12 See Sec 10(g) of the Act; Old King Cole, Inc v N L R B, 260 F.2d 530
(C A 6, 1958), J P Stevens & Company, Inc., 186 NLRB 180, N.L.R.B. v.
Winn-Dixie Stores, Inc, supra
13 See G C. Exh. 2.
14 See Southern Deck Company , 116 NLRB 1168 , enfd . 246 F.2d 53 (C A
4, 1957)
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear that these employees were recalled in order to per-
form work on Western Electric products since the negotia-
tions between that company and Respondent had not been
nearly completed by that date. Rather, it was not until the
latter part of March or the first part of April that Respon-
dent received the "go ahead" from Western Electric to pro-
duce a test batch of electronic component parts. Thus, it was
not until on or about April I1 that Respondent began recall-
ing employees from layoff to work on that particular pro-
ject. Respondent concedes that it deviated from seniority
for the first time in its history in the recall of employees
because of the absolute necessity that production standards
of the highest quality be maintained. Considering the sub-
stantial impact which Western Electric as a customer of
Respondent had upon the continued economic prosperity
of the latter, it was certainly reasonable and prudent of
Keyser to carefully select-as he testified that he did-the
employees to be recalled based upon their relative compe-
tency as to quality (as opposed to quantity) production.
Keyser testified that such judgment was made by him on a
subjective basis in consultation with the production fore-
man (the only other supervisor in the plant). However, he
also testified without refutation that his was a small opera-
tion, that he worked "in dungarees" many hours in the plant
in all aspects of production including inspection, and that
he was therefore intimately knowledgeable respecting the
individual capabilities of the employees.
It should be noted, additionally, that there is no evidence
in the record to show that the employees recalled were not
competent or proficient in their work skills. Of course, coun-
sel for the General Counsel argues that there is no evidence
that the employees higher on the seniority list were not
equally capable of performing the work. However, the bur-
den of proving discrimination is upon the General Counsel,
and I am not convinced on the limited evidence in this
record that the Respondent was compelled by antiunion
considerations rather than economic motivations as re-
spects the recalling of employees from layoff. In reaching
this conclusion, I deem significant the fact that , as the evi-
dence showed, Respondent experienced an economic layoff
during the spring of 1971 when the union campaign was in
full flower.) It is acknowledged that the recall on that occa-
sion was by seniority. Thus, had Respondent desired to
discriminate against the leaders of the union movement, it
would seem that it would have utilized that occasion rather
than waiting until a year later.
Under all circumstances, as previously indicated, I find
and conclude that General Counsel did not prove by a
preponderance of the evidence that Respondent discrim-
inated against employees in violation of Section 8(a)(3) of
the Act when it deviated from seniority with respect to the
recall of employees during the spring of 1972.
However, as previously noted, Respondent failed to con-
vince me that it was prompted by "a substantial and legit-
imate business end" 6 when it failed and refused to recall
Peterson and Marbury to its employ in June, hiring in their
place new employees. Thus the evidence showed that both
these employees were active in the union campaign, each
15 This layoff was apparently occasioned by an imbalance of inventory
6 See N L R B v Great Dane Trailers, Inc, 388 U S 26, 33-34 (1967)
having attended five or six union meetings. While the Re-
spondent may not have known of such activities at the time,
it was certainly made aware of these employees' union pro-
clivities by April 21 when the employees' names appeared
in the original charge in this case.
There is absolutely no evidence that either employee,
both of whom had worked for the Company well in excess
of a year pnor to the November 1971 layoff, had been other
than a competent and exemplary employee; there is nothing
in the record to show that either had been disciplined for
reasons relating to either production or personal deport-
ment. However Keyser testified that the reason the two
women were not recalled was because-as he told them in
the July interview-they were "troublemakers." He was
careful to point out that by use of that term he meant no
conduct in connection with the union campaign but that
such referred to various personal delinquencies which had
been reported to him by other employees after the Novem-
ber layoff occurred. 17
As respects Marbury, Keyser was quite vague and testi-
fied simply that the objectionable conduct respecting her
was "just gossip and telling tales about employees, and so
forth , and we felt that it was in the interest of the Company
not to recall her." However , as regards Loretta Peterson,
Keyser was much more specific, testifying that there were
four items upon which he based his decision not to recall
her. These were:
1. The relationship between Peterson and two of his "top
employees"-a Mr. and Mrs. Cypold. It appears that this
couple is the mother and father of Peterson 's brother's ex-
wife. The record is not clear what, if any, derogatory infor-
mation they (or other employees on their behalf) communi-
cated to Keyser respecting Peterson . The latter was unaware
of any particular animosity with the Cypolds, testifying that
Mrs. Cypold was the "one that got me my job in the first
place," but that she did not consider Mrs. Cypold to be a
close friend.
2. Peterson allegedly assaulted another employee while
at work."B It was reported to Keyser that an employee, Con-
stance Osborne, had stepped on Peterson's foot by mistake
and apologized; however, Peterson later approached Os-
borne and slapped her . On rebuttal , Peterson denied that
there had been any assault on Osborne , who is her cousin.
She related an incident with Osborne while the two were on
vacation in Atlantic City but denied that there was any
animosity involved because "they got along fine." 19
3. Keyser testified that it was reported to him that Pe-
terson was "running around with another of my employee's
husband, and she went to that employee and told her right
there about it, which upset one of my good workers." Pe-
terson , on rebuttal, acknowledged that about 10 years previ-
ously she had dated a male person whom at the time she did
not know to be married ; that following the election the man
received a telephone call from an unknown source who
advised that unless he told his wife (an employee of Respon-
dent) to stay out of union activities , the caller intended to
17 He testified that he had no personal knowledge of any of the misconduct
reported to him
18 Keyser testified that although the incident allegedly took place pnor to
the November layoff , he became aware of it in 1972, after the layoff
19 Osborne was not called as a witness.
HAMILTON ELECTRONICS COMPANY
advise the wife that he had previously dated Peterson. The
man related this to his wife who in turn came to Peterson
and asked if it was true . Peterson acknowledged affirmative-
ly, and reasoned that the call was made in an effort to
"create confusion" between Peterson and the employee,
both of whom were union adherents.20
4. Keyser stated that Peterson was "generally disliked by
the majority of the employees in the Company ." This con-
clusion was not substantiated by the testimony of any em-
ployee witness.
It thus appears that, after scrutiny , the proffered reasons
are so insubstantial as to cast serious doubts upon their
validity as a basis for refusal to recall . This particularly
where the employees had never been reprimanded during
the term of their employment , and Keyser did not even give
them an opportunity to deny or explain the asserted reasons
during the July interview .2
All of this leads the Administrative Law Judge to believe
that the reference to the term ":troublemakers" by Keyser in
the July interview was a euphemism for union activities,
which is not an infrequent occurrence in labor-management
parlance 22 Accordingly, I am convinced that the union ac-
tivity of the two women was "a factor in the employer's
decision" to discharge them .23 I therefore find that as of
June 24 (the date the record shows Respondent hired its first
new employee after having exhausted the seniority list of
former employees), Respondent discriminated with respect
to the hire and tenure of employment of its employees Di-
ane Marbury and Loretta Peterson , in violation of Section
8(a)(3) and ( 1) of the Act 24
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth above , occurring in
connection with the interstate operations of Respondent,
have a close , intimate , and substantial relation to trade,
traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and upon
the entire record , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
20 The female employee involved-named Judy-was not called as a wit-
ness.
21 See , e.g., United States Rubber Company v. N. L R B, 384 F.2d 660 (C.A.
5, 1967), where the court stated - "Perhaps most damning is the fact that both
[employees] were summarily discharged after reports of their misconduct.
without being given any opportunity to explain or give their version of the
incidents."
22 Cf Detroit Industrial Clinic, l99 NLRB No. 67, In. 3
23 N.L.R.B v Hanes Hosiery Division, 413 F 2d 457 (C A 4, 1969), and
cases cited therein.
24 1 find that the record evidence fails to sustain the allegation of the
complaint that Keyser violated Sec . 8(a)(I) of the Act "by telling employees
that it would recall from layoff status only those employees who have not
engaged in union or concerted activities " I shall therefore recommend that
that allegation of the complaint be dismissed
211
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees of the Re-
spondent at its Carolina , West Virginia, location , excluding
all office clerical employees, guards , professional employees
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. By unilaterally changing wage rates and disregarding
previously existing seniority rules without notifying, con-
sulting, or bargaining with the Union as the collective-bar-
gaining representative of its employees in the aforesaid
appropriate unit, the Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
5. By discriminating with regard to the hire and tenure of
employment of Loretta Peterson and Diane Marbury, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
6. By the acts described in paragraphs 4 and 5 above,
Respondent has interfered with, restrained , and coerced
employees in the exercise of the rights guaranteed in Section
7 of the Act, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent unilaterally changed
some of the working conditions of its employees in the unit
hereinabove found appropriate, without notice to or con-
sultation with the Union as their collective-bargaining rep-
resentative , it will be recommended that the Respondent
cease and desist from such unlawful conduct 25
Having found that the Respondent discriminated against
Loretta Peterson and Diane Marbury by failing and refus-
ing to recall them on and after June 24, 1972, I will recom-
mend that the Respondent be ordered to offer them
immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to seniority or
other rights and privileges previously'enjoyed, and to make
each whole for any loss of pay she may have suffered as a
result of the discrimination against her. Backpay shall be
computed in accordance with the formula prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law,
25 However, nothing herein contained shall be construed to require the
Respondent to rescind the wage increase of October 1972.
1 will not specifically recommend that Respondent be ordered to reinstate
the seniority list of its employees because I do not consider, based upon the
evidence in this record, that the Respondent has destroyed or abolished such
list; rather, I have interpreted the events herein to mean that Respondent
deviated from the list on this one occasion pursuant to what it considered
to be overriding business considerations.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER26
Hamilton Electronics Company, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of
Electrical, Radio and Machine Workers, and its Local 679,
AFL-CIO-CLC, or in any other labor organization of its
employees, by refusing to recall employees in layoff status
or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of em-
ployment.
(b) Unilaterally changing wage rates or seniority rules or
other terms and conditions of employment without notify-
ing, consulting, or bargaining with the above-named Union
as the exclusive representative of all the employees in the
following appropriate unit:
All production and maintenance employees at the
Respondent's Carolina, West Virginia, location, ex-
cluding all office clerical employees, guards, profes-
sional employees and supervisors as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their right
to self-organization, to form labor organizations, to bargain
collectively through representatives of their own choosing,
and to engage in any other concerted activities for the pur-
pose of collective bargaining or mutual aid or protection, or
to refrain from any or all such activities, except as authoriz-
26 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
ed in Section 8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer Loretta Peterson and Diane Marbury imme-
diate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
each whole for any loss of pay she may have suffered as a
result of the discrimination against her in the manner pro-
vided in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records relevant and
necessary to analyze and determine the amount of backpay
due under the terms of this recommended Order.
(c) Post at its Carolina, West Virginia, plant copies of the
attached notice marked "Appendix." 27 Copies of this no-
tice, on forms provided by the Regional Director for Region
6, after being duly signed by its authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations in the com-
plaint be dismissed except to the extent that they have been
found to have been sustained by the foregoing findings,
conclusions and recommendations.
27 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "