Sumco Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1980

251 N.L.R.B. 427 (N.L.R.B. 1980)

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
9
h8: ); 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 it' 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 ltx iikilIl M 1
ellde s .iCh l r.i l h' s g l ii h 1 1 11lil. lll t . i R
r SCe, gclr i. IIt 1l)]1/.? . tll i1 R -t1)lt l (, i 1 N l 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 "