International Signal and Control Corp.

National Labor Relations Board - Board Decisions

Nov 1, 1976

226 N.L.R.B. 661 (N.L.R.B. 1976)

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