Instrument Corporation of America

National Labor Relations Board - Board Decisions

Mar 23, 1982

260 N.L.R.B. 1153 (N.L.R.B. 1982)

INSTRUMENT CORPORATION OF AMERICA
Instrument Corporation of America and Internation-
al Brotherhood of Electrical Workers, Local
Union No. 24, AFL-CIO. Cases 5-CA-12223,
5-CA-12375, and 5-RC-11199
March 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On July 24, 1981, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, the General Coun-
sel filed a brief in response, and the Charging Party
filed a brief in opposition to Respondent's excep-
tions.
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 conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Instrument
Corporation of America, Baltimore, Maryland, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
IT IS FURTHER ORDERED that Case 5-RC-11199
be remanded to the Regional Director for Region 5
for further action in accord with the directions
contained in the Administrative Law Judge's Deci-
sion.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Drv Wall Products.
Inc., 91 NLRB 544 (1950)., enfd. 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no hasis for reversing his findings
260 NLRB No. 158
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, lay off, terminate,
or otherwise discriminate against our employ-
ees because they join, support, or engage in
activities on behalf of International Brother-
hood of Electrical Workers, Local Union No.
24, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Elizabeth Lynn Brown,
Frank Ferrell, Fay Gray, Grace A. Harry, and
Richard C. Schucker immediate and full rein-
statement to their former jobs or, if those jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
any other rights or privileges previously en-
joyed, and WE WILL make each of them whole
for any loss of earnings each may have suf-
fered by reason of the discrimination practiced
against them by paying each of them a sum
equal to what each would have earned, less
any net interim earnings, plus interest.
INSTRUMENT CORPORATION OF
AMERICA
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard in Baltimore, Maryland, on February
26 and 27, 1981, upon complaints issued in the above
cases,' as thereafter amended, consolidated by an order
dated August 7, for hearing with the issues set forth in a
Report on Challenges and Objections to the election held
in Case 5-RC-11199. The complaints allege that the
above-named Respondent violated Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended (herein
called the Act), by the termination of Elizabeth Lynn
Brown, Frank Ferrell, Fay Gray, and Grace A. Harry
on May 13, and Richard C. Schucker on May 16. The
challenges to ballots, which are sufficient to affect the re-
sults of the election, and the objections to the election in-
volve the validity of the terminations of the employees
named above. The answers to the complaints deny the
T' he complaint in Case 5-CA 12223 issued on July 10, 1980 (all dates
in this DIecison hereinafter are in 1980, unless otherwise noted) based on
charges filed on May 20 and July 2 The complaint in Case 5CA 12375
issued on Juls 31, based on charges filed ln July 7
1153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices alleged, but admit allegations suffi-
cient to justify the assertion of jurisdiction under current
standards of the Board (Respondent, engaged at Balti-
more, Maryland, in the manufacture of electronic sup-
plies and equipment, during a recent annual period sold
and shipped from its Baltimore facility directly to cus-
tomers outside the State of Maryland materials and sup-
plies valued in excess of $50,000), and to support a find-
ing that International Brotherhood of Electrical Work-
ers, Local Union No. 24, AFL-CIO (herein called the
Union), is a labor organization within the meaning of the
Act.
Upon the entire record in this case,2 from observation
of the witnesses and their demeanor, and after due con-
sideration of the briefs filed by the General Counsel, the
Union, and Respondent,3 I make the following:
FINDINGS AND CONCI USIONS
A. Summary of Facts and Issues
Within 5 days after Respondent's president, J. D.
Bryan, learned, on May 8, that the Union had filed a pe-
tition for certification as representative of Respondent's
production and maintenance employees, Bryan directed
that Elizabeth Lynn Brown, Frank Ferrell, Fay Gray,
Grace A. Harry, and Supervisor Mary Lee Brown be
"permanently laid off."4 Three days later, Bryan directed
that Richard C. Schucker be terminated.
As set forth in more detail hereinafter, Respondent
contends that it had actually selected Lynn Brown, Fer-
rell, Gray, Harry, and Mary Brown for termination in
March, because of loss of business occurring about that
time, before it was aware of any union activity in 1980.
Respondent also asserts that it was unaware that any of
these employees, except Ferrell, had engaged in activities
on behalf of the Union, and the latter only in a union
campaign in early 1979. It is further asserted that
Schucker was terminated for cause.
The General Counsel and the Union dispute these con-
tentions (except that Respondent knew of Ferrell's union
activities). It is argued that the record as a whole is con-
vincing that Respondent did not decide in March to ter-
minate these employees, but only did so in May, immedi-
ately after receiving notice of the Union's petition, in
order to blunt the Union's chance of winning the repre-
sentation election. 5 The General Counsel questions Re-
spondent's need for a permanent layoff, noting that in
April Respondent actually hired a new employee in the
mechanical assembly department, where several of the
layoffs in May occurred, and in July hired a number of
2 A separate order has been issued correcting the record
3 The Union submitted a letter memorandum answering an argument
made in Respondent's brief Respondent replied objecting to the Union's
memorandum The argument largely concerns assertions of fact not con-
tained in the record. I have disregarded these documents
' The layoff of Mary Brown, then supervisor of the mechanical assem-
bly department, and mother-in-law of Lynn Brown, is not alleged as a
violation of the Act. Respondent's use of the term "permanently laid off"
is synonomous with "discharged," for the record makes clear that Re-
spondent intended that these employees should not be recalled even if
work became available in a short time.
s In the representation election the year before, on March 23, 1979. 14
employees voted against the Union, 12 for
other new employees, as well as working its employees
overtime in July to take care of the work.
The General Counsel and the Union assert that al-
though there is no direct evidence that Respondent knew
of the prounion activities of the terminated employees in
1980, such knowledge, or suspicions of their prounion
sentiments, should be inferred from their activities and
outspoken statements in 1979, and from activities and
talk about the Union in 1980, in light of the small
number of employees involved (approximately 27 in the
unit in 1979 and 22 in 1980) and the fact that almost all
of these employees work in a single room of relatively
small area.
Although Respondent did not campaign against the
Union in 1980, the record shows that, prior to the elec-
tion in 1979, Respondent made it clear by letters and
talks to employees and supervisors that it opposed the
Union and did not want it in the plant. Bryan stated that
he did not vigorously campaign against the Union in
1980 because he was then hospitalized and he felt that
the employees would remember what he had said the
year before.
There is a dispute as to whether Bryan told supervi-
sors in 1979 that he would close the plant rather than
deal with the Union. This is denied by Bryan. Manufac-
turing Manager Paul Z. Bosnick testified that he never
heard Bryan make such a statement. Mary Brown testi-
fied that she heard Bryan make such a statement at a su-
pervisors' meeting she attended (though she had some
confusion as to when this occurred). Lynn Brown assert-
ed that, after returning from such a meeting, Mary
Brown told her that Bryan would close the plant if the
Union came in. Fay Gray testified that Supervisor Doro-
thy Wenk told her that Bryan would close the doors if
the Union came in. Wenk was not called to testify. On
the record as a whole I credit Mary Brown. As dis-
cussed hereinafter, I have difficulty in crediting Bryan's
testimony on other critical points as well. 6
After the election in 1979, in response to complaints
about Respondent's wage practices which had surfaced
during Bryan's meetings with the employees, Bryan
made adjustments in Respondent's policies and practices
to meet these complaints. (See, e.g., G.C. Exh. 8.)
B. Union Activities
As has been noted, Respondent's plant is a small oper-
ation. During the times material to this matter, the
number of employees in the appropriate production and
maintenance unit does not appear to have exceeded 30.
The three major departments, electrical assembly, me-
chanical assembly, and testing, each with its own imme-
diate supervisor, performed their functions in a single
6 Respondent's counsel objected at the hearing and continues to con-
tend vigorously that because of the limitations of Sec. IO(b) of the Act.
Respondent's conduct occurring more than 6 months prior to the filing of
the charges herein should not be received or considered It is well estab-
lished that conduct which occurred beyond the limitations period may be
considered to shed light on acts within the period and to indicate motiva-
tion. See, eg, N.L.RB. v. Laredo Coca-Cola Bortling Company, 613 F.2d
1338, 1341. fn 6 (5th Cir. 1980) Respondent also argues that the occur-
rences in 1979 were too remote in time to be considered. This contention
is without merit.
1154
INSTRUMENT CORPORATION OF AMERICA
room of about 5,000 square feet, which also served as a
lunch area for the employees.
In early 1979, when a group of employees, including
Manufacturing Manager Bosnick's son, were discussing a
work stoppage to protest employee grievances, employee
Gray suggested that they contact a union instead. The
younger Bosnick, after obtaining the Union's telephone
number from Supervisor Mary Brown, contacted the
Union.' Union cards were distributed and the employees
talked about the Union at the job.
After the Union filed a petition for certification on
January 15, 1979, Respondent, as has been noted, distrib-
uted a series of letters to the employees and held a
number of meetings designed to inform them that Re-
spondent opposed unionization and desired that they
vote against the Union. During these meetings, and even
after the election, several employees, including Ferrell,
Lynn Brown, Schucker, and Gray, questioned Bryan
about Respondent's personnel practices and voiced dis-
satisfaction with working conditions. Bryan became par-
ticularly annoyed with Schucker's comments concerning
the Union at one such meeting.8
Mary Brown and other supervisors were instructed to
report on employee union activities to management. It
would appear that, in carrying out Respondent's instruc-
tions, the supervisors engaged employees in conversa-
tions about the Union. Supervisor Wenk's assertion to an
employee that the plant would close if the Union came
in has been noted. In addition, Schucker testified to con-
versations with Supervisor Frank Rhein (erroneously
spelled "Ryan" in some places in the record) in which
Schucker felt impelled to state his strong support of the
Union.
Notwithstanding, Bryan asserts that, in 1979, he could
make "only the vaguest of guesses" as to the union sup-
porters, except for Ferrell, Drummond, and Bosnick's
son. He also asserts that, in 1980, he likewise had no
basis for identifying union supporters until Lynn Brown,
Ferrell, Harry, Gray, and Schucker testified at the hear-
ing in this matter, asserting that there was no "overt or
any other type of action that I knew about at any time
up to yesterday that anybody had anything to do with
union activity in the company." However, as noted, Re-
spondent had been informed some 7 months previously
through the charges filed in this matter that these em-
ployees had been union supporters. I was not favorably
impressed with Bryan's candor in these matters.
In the latter part of April 1980, Ferrell, Schucker, and
another employee, Willin, went to see the Union and se-
cured authorization cards. Ferrell and Schucker distrib-
uted the cards to the employees on the parking lot adja-
cent to the plant before and after work, and at lunch-
' According to Manager Bosnick, his son left Respondent's employ
before the election in 1979 to avoid embarrassing his father, but did tell
his father that employees Ferrell and Drummond had accompanied him
to the Union to obtain cards. Ferrell's termination is a subject of this
case. Drummond became a supervisor in 1980
s The General Counsel also presented proof. but does not seem to par-
ticularly rely on the fact, that some immediate supervisors in 1979 attend-
ed one union meeting at which the alleged discriminatees herein, and
others, were present. At this or another union meeting, the sister of a su-
pervisor took notes
time.9 It is indicated that all of the alleged discriminatees
in this case continued to support the Union in 1980.
The Union filed a petition for representation in this
matter on April 28, and an election was conducted on
June 6, pursuant to a Stipulation for Certification Upon
Consent Election. The valid votes counted were 10 to 7
against the Union. As noted, the challenged ballots of
Lynn Brown, Ferrell, Gray, Harry, and Schucker are
sufficient to affect the results.
C. The May 13 Layoff
1. The alleged reasons for the layoff
Respondent's principal product, an electronic stencil
cutter for use on mimeograph duplicating equipment, is,
for the most part, sold to a single customer, Gestetner.
Beginning in 1976, Respondent and Gestetner entered
into an agreement whereby Respondent would produce
and Gestetner would accept a specified number of stencil
cutters each month, which action would provide, ac-
cording to President Bryan, relatively stable employment
for Respondent's employees. L0
In February 1980, Bryan attended a meeting with Ges-
tetner in which the officials of that company requested
that Bryan agree to amend their agreement so that Re-
spondent would not send any machines to Gestetner
Yonkers' facility during April, May, and June, then
resume a normal rate of shipment for July and August,
and finally ship at a reduced rate for September, Octo-
ber, November, and December of that year. Bryan
agreed.
Bryan asserts that he decided that this change in ship-
ments to Gestetner would require Respondent to reduce
its work force about 15 percent, and that he, therefore,
conferred with Manager Bosnick about this. He says that
the two of them decided that Mary Brown, Lynn
Brown, Ferrell, Gray, and Harry should be laid off.
Nevertheless, according to Bryan, he decided not to lay
these employees off until he and his wife returned from a
trip to South America, where he states he thought he
might pick up some additional business. This is con-
firmed by Bosnick. Bryan left for South America April
19 and, after obtaining no additional business, returned
on May 6. As noted, he discovered, about May 8, that
the Union had filed a petition for representation, and so
he thereafter directed Bosnick to lay off, on Tuesday,
May 13, the four employees and the supervisor they had
discussed.
However, derogating from Bryan's insistence that he
decided in March to lay these employees off, before he
Willin apparently has left Respondent's employment.
'o Bryan referred to a layoff of two employees in 1975 because of a
general business recession and asserted that there was a layoff of four em-
ployees in January 1980 due to a reduced demand for a product Re-
splondent was then making. Employee witnesses who were asked recalled
no layoffs for lack of work during their tenure, but remembered some
employees swere let go for "losing time,'" or because the employee was
"part-time," or "quit" to go back to school Bryan contends that all of
these were permanently laid off. He testified that this was Respondent's
policy, so that the employee could obtain unemployment compensation
(the General Counsel points out that Maryland law makes no distinction
between a permanent or temporary layoff for this purpose), and to re-
lieve Respondent of any obligation to recall the employee
1155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
became aware of any union activity, rather than in May,
after learning of the Union's petition, is an 11-page letter
(with 14 exhibits attached), dated June 19, submitted in
this matter, by Respondent to the Regional Director, ex-
plaining in detail Respondent's defense to the charge
herein. As the General Counsel points out, Respondent
nowhere in this letter refers to any decision in March to
lay off employees, asserting only:
It became obvious to Mr. Bryan after the meeting
on February 25 [with Gestetner] that the Company
faced a drastic cut-back in production unless some-
thing was done to increase sales. However, he de-
layed laying off anyone or taking any other action
until he had an opportunity to determine if addition-
al orders would be obtained elsewhere.
[Before] entering the hospital on the following
Monday [after his return from South America], it
was necessary for Mr. Bryan to decide between
May 7 and May 9 on the size of the layoff and to
determine who would be laid off. "
Upon careful consideration of the entire record, I am
convinced that Respondent's position here, that a firm
decision was made in March, is much overstated. While
it is quite conceivable that it may have occurred to
Bryan in early March that a layoff might be a possibility,
the facts are convincing that this idea did not harden into
a firm decision at that time, nor was it then determined,
as the June 11 letter clearly indicates, who would be laid
off. First, since the timing of the decision is obviously a
critical factor, if it had been made in March, as now con-
tended, I would have expected it to be pointed out in the
June 11 letter. It was not. Further, since an immediate
layoff was not contemplated, it is difficult to understand
why Bryan and Bosnick then went through the asserted-
ly lengthy process of determining precisely who was to
be laid off in the event a layoff became necessary in the
future. In addition, if Bryan and Bosnick had, indeed, in
March, selected those to be laid off, it is strange that
they did not carry through and make the layoff at that
time, as good business practice would seem to dictate.
Respondent's explanation-that it was hoping for new
business-is more superficial than satisfying. Respondent
could have readily foreseen in March, and apparently did
foresee, the excess inventory and poor cash position
which it now complains required layoffs in May, both of
which would have been avoided by reducing the work
force in March. No reason appears why Respondent
could not have recalled the laid-off employees if the new
business materialized, 2 or-as later events demonstrat-
ed-hired new employees in their place. On the whole it
seems clear that Respondent did not decide in March
that there would be a layoff in the future, or at that time
select specific employees for layoff.
" The letter was prepared by an attorney after conferences with Bryan
and Respondent's supervisors. Bryan read and approved the letter before
it was sent.
"1 The record is persuasive that Respondent has in the past rehired em-
ployees who assertedly had been permanently terminated.
2. Selection of employees for layoff
The selection of employees for layoff on May 13
seems to have been largely subjective. No consistent
principle seems to apply throughout. It is not denied that
Manager Bosnick, after the end of the union campaign in
1979, told employees that, if there would be a layoff, it
would be made in the order of seniority. However, the
layoffs, when made, were not in the order of seniority. It
is further not disputed that the employees let go were
good workers who had not previously been reprimand-
ed, or warned, or advised that they might be laid off.
Employee Gray, employed in electrical assembly, was
the most senior in that department. Bryan states that she
was let go because she was the highest paid employee in
the department and others could do the work she did.
However, Gray's testimony that the next most senior
employee in the department, Shauck (who was retained),
was scheduled shortly to be advanced to Gray's wage
rate is not denied.
But no other employee, except possibly Supervisor
Mary Brown, was selected for layoff because that em-
ployee was receiving the highest rate in the department.
Thus employee Harry, who was receiving next to the
lowest wage rate in the electrical assembly department
(see Exh. N, attached to G.C. Exh. 7, which was pre-
pared by Respondent), was assertedly released because a
higher rated employee, who Bryan says he felt would be
more productive than Harry, could do her job.
The remaining two employees laid off, Lynn Brown
and Ferrell, were employed in the mechanical assembly
department, which, it was testified, did not require par-
ticular skill or experience. According to Bryan, Ferrell,
who was next to the lowest paid employee in the depart-
ment, was replaced by Howland, a higher rated employ-
ee, who Bryan and Bosnick felt could do Ferrell's job as
well as his own. 3 On the other hand, it was stated that
Lynn Brown was laid off because "we felt we had a
backup . . . who could step in there and do that job .
[who] happened to be a lower wage person."
3. New hires-overtime work
As previously noted, 2 weeks before the layoff on
May 13, Respondent hired a new employee, Pistorio, in
the mechanical assembly department to replace a recent-
ly terminated employee. The new employee was also re-
tained during the layoff, quitting Respondent's employ-
ment in July. Another employee, Cheryl Wilkinson, who
had been terminated in January, was reinstated in the
same department on April 8.14 Both of these acquisitions
13 Bosnick, on cross-examination, did not seem well acquainted with
Howland. When asked if he was a good employee, Bosnick first replied,
"I supposed so," then assented to the suggestion that he was "versatile."
Bosnick also stated that Howland had more senionty than "many of the
employees in that department," when, in fact, he was in the lower half
among employees in the department.
14 It was stipulated that Respondent's records show that she had been
terminated. Respondent's counsel asserted that she was on maternity
leave to which the General Counsel also agreed. I conclude that this is
another instance in which Respondent decided to reinstate a previously
terminated employee.
1156
INSTRUMENT CORPORATION OF AMERICA
occurred, obviously, after the date Respondent asserts it
had selected four other employees for layoff.
In July, Respondent hired seven employees in the me-
chanical assembly department, one part time, for various
reasons; in the test department, three employees were
hired in May (two of these just for the summer), one in
June, and one in August. Two of these three full-time
employees quit before the end of the year; in electrical
assembly, Respondent hired four employees in October.
Three of these were terminated by January 20, 1981; Re-
spondent also hired seven rank-and-file employees (one
for the summer) in other departments between May and
September. Five of these full-time employees terminated
their employment by mid-September.
In July, Respondent received new orders from Ges-
tetner and from other sources which it had not expected.
In addition to hiring new employees as indicated above,
Respondent decided to "subcontract" the work out to
employees presently employed to be performed at home.
For this work, which was performed from July until
mid-February 1981, Respondent paid at overtime rates of
time and a half.
Certain lists of employees in the record show that the
numbers of employees in the appropriate unit remained
approximately the same throughout the relevant period,
indicating that Respondent, in fact, may have replaced
the laid-off employees, or most of them, by the end of
June. Thus, as noted, as of the date of the election, June
6, there were approximately 22 employees in the unit (if
Ferrell, Lynn Brown, Gray, and Harry are included). At
the end of June, according to Respondent's pension lists,
there were 21 in the unit, and at the end of September,
20.
D. The Discharge of Schucker
At the time of his termination on May 16, Schucker
had been employed in Respondent's testing department
for about a year and 8 months. The job requires some
considerable skill' and there is no contention that
Schucker's work performance on the job was inadequate.
Indeed, he was used to train new employees on the job.
During Schucker's tenure with Respondent, working
hours in the testing department tended to be flexible.
Unlike the mechanical department and the electrical de-
partment, which were assembly line operations, the test-
ing department required only that employee achieve cer-
tain standards of personal production. So long as these
standards of production were met, it does not appear
that Respondent objected to testing department employ-
ees coming in late, or leaving early, or taking longer
lunch periods.
In January 1980, during a period when Schucker was
not maintaining personal production on his job-because,
he asserts, of difficult working conditions and certain
special work assignments-his supervisor, Rhein, told
him that Bryan had directed that Schucker be laid off.
Before this layoff was actually put into effect, Bryan
called Schucker into his office where he explained that
"s In Respondent's statement of position submitted to the Regional Di-
rector it is stated that "the position requires 2 years of electncal engineer-
ing," possibly something of an overstatement.
he had ordered Schucker laid off because the latter had
missed too much time, and hence did not meet produc-
tion, and because Bryan had heard that Schucker was
seeking new employment. Nevertheless, since Bryan had
just been informed that Rhein was leaving Respondent,
Bryan asked Schucker to continue his employment with
Respondent. Schucker agreed.
During the first quarter of 1980 until Schucker was
terminated he agrees that he did not work a full 40 hours
in any workweek. Nevertheless, Schucker was not repri-
manded or admonished about this until May 16, 3 days
after the layoffs noted above.
On May 13, in the morning, Schucker advised his su-
pervisor, Robert Sikora, that Schucker had a number of
hours of vacation remaining and wanted to use them at
various times during the week, noting with Sikora the
shortage of testing work to be done at the time. Sikora
assented to this suggestion. Schucker punched out for
lunch about noon with employee Willin who was leaving
that day for another job. The two of them did not return
to the plant until about 5 p.m. Upon his return, in re-
sponse to Sikora's query as to where he had been,
Schucker said he wanted this to be taken as part of his
vacation hours. Sikora replied, "Okay, that would be
fine." 16
According to Bryan, who at the time of these events
was in the hospital, on Thursday evening, May 15, an
employee in Respondent's sales department who was vis-
iting Bryan mentioned Schucker's long absence from
work on Tuesday and surmised that Schucker might
have been drinking at lunch. On Friday, May 16, Bryan
called Sikora and informed him, according to Sikora,
that Bryan was considering terminating Schucker be-
cause of his past poor attendance, his absence from work
on Tuesday, and the possibility that he had been drink-
ing. There is no direct evidence as to what Sikora said to
Bryan, beyond confirming that Schucker was very late
coming back from lunch and that Sikora could not con-
firm that Schucker had been drinking. Later that day,
upon instructions from Bryan, Sikora told Schucker that
he was being "laid off' for the reasons stated by Bryan.
In response to a direct question by Schucker, Sikora
denied that the termination was caused by Schucker's
union activities.
It is not contended that at this time Schucker was defi-
cient in his production.
E. Analysis and Conclusions
1. The May 13 layoff
At the outset, Respondent asserts that it was not aware
when it decided to lay off four unit employees that there
was any union activity occurring or that three of the
four entertained prounion sentiments, though it is ad-
mitted that when the layoffs were effectuated-when the
employees were told of their terminations-Respondent
'' These findings are based on Schucker's credited testimony, which is
not denied by Sikora Sikora denies only that Schucker had indicated thai
he was going to take time off that day. Schucker asserts that he did not
specifically ask Sikora for the time off that day, because Sikora was in a
meeting when he and Willin left
1157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was aware that a petition for certification in Case 5-RC-
11199 had been filed by the Union. It has been found, for
reasons set forth above, that despite Respondent's protes-
tations to the contrary, the decision to lay off as well as
the effectuation of that decision was made after receipt
of notice of the petition.
Further, I am satisfied, on the record as a whole, that
Respondent knew or surmised the prounion sentiments of
the four employees who were laid off. Respondent em-
ploys only a small number of unit employees, all engaged
in production activities in a small room under three im-
mediate supervisors. In the union campaign for recogni-
tion the year previous it does not appear that the em-
ployees sought to conceal their sentiments. Indeed, there
is much evidence of outspoken comments concerning the
Union and criticism of Respondent's working conditions
during and after that union campaign. In addition, the
evidence shows that the immediate supervisors were in-
structed to report on employee union activity, indicating
that Respondent was actively seeking information in
order to assess its position in the coming election. Re-
ports by supervisors, who were engaging employees in
conversations about the Union, would constitute an ef-
fective aid in that process. Respondent President Bryan
admits to "vague guesses" as to employees supporting
the Union. Since only 12 voted for the Union (and 14
against) in that previous election, it should not have been
difficult in the circumstances to "guess" most, if not all,
of the union supporters.The Board, faced in Portsmouth
Lumber Treating, Inc., 248 NLRB 1170 (1980), with a sit-
uation much like that in the present matter, held, on the
basis of well-established authority, that even if the em-
ployer involved did not know as a fact that the specific
employees laid off were union supporters, a violation of
the Act was nevertheless made out where the facts
showed that the employer used the layoffs as an act of
reprisal designed to blunt the union effort by a drastic
display of employer authority and control over the em-
ployment relationship.
Here, as in Portsmouth Lumber, the timing of the lay-
offs is significant, coming immediately upon notification
to Respondent that for the second year in a row the
Union was seeking a representation election. Respondent
was, of course, well aware that, despite Respondent's
campaign against the Union, a switch of only two votes
would have given the Union victory the year before, in-
dicating that more effective action might be needed this
time around." Further, as stated by the Administrative
Law Judge in Portsmouth Lumber (248 NLRB at 1171),
"Because I believe that [Respondent] did have knowl-
edge of the petition [before deciding to lay off these em-
ployees], I am constrained to infer the probability of un-
lawful motivation not simply from the possession of such
knowledge but, as well, from the falsity of its [contention
that it had none]."
1? President Bryan asserts that he decided not to campaign against the
Union because he was in the hospital and felt that the employees would
remember his position of a year ago. It is self-evident that, even more
strongly than memories of Respondent's past opposition to unionization,
the employees would recognize the impact of four union supporters
losing their jobs immediately upon a new election having been requested.
Finally, upon close analysis, I have great difficulty ac-
cepting Respondent's contention that it laid off the four
employees because of loss of business, excessive inven-
tory, and reduced cash position in May. Thus, the busi-
ness was lost at the end of February, at which time Re-
spondent now asserts it knew it would have to lay off
employees in order to avoid such financial difficulty and
excess inventory. But Respondent did not lay off em-
ployees then and "tighten its belt" financially. Rather,
Respondent continued with business as usual and did not
lay the employees off until it received the union petition
in May, raising a strong inference that the receipt of the
petition was the motivating factor in Respondent's deci-
sion to lay off the employees. "i
Respondent's conduct after its business picked up in
July further confirms the conclusion that the layoff in
May stemmed from a desire to get permanently rid of
these four employees because they were prounion, rather
than because of Respondent's business situation. Thus,
when business improved considerably within 2 months of
the layoff, Respondent did not recall the laid-off employ-
ees, but hired new employees, 9 and "sub-contracted"
substantial work to its retained older employees at over-
time rates. Respondent explains this odd behavior on the
basis of an asserted general policy not to rehire laid-off
employees, but to hire new employees at lower rates
than received by the older employees, thus saving
money. But it is clear from the record that Respondent
has frequently rehired laid-off or otherwise terminated
employees. It is also inferred that, as in other businesses,
Respondent paid higher rates to older employees because
of their added value to Respondent. 20 Not only are new
employees of less experience also of less value, but Re-
spondent also incurs the cost of integrating them into its
operations. Finally, this argument-that Respondent did
not recall the laid-off employees in an effort to save
money-is severely undercut by Respondent's willing-
ness to work its retained employees overtime at premium
rates rather than rehire the laid-off workers.
On the basis of the above and the record as a whole, I
find that Respondent terminated Elizabeth Lynn Brown,
Frank Ferrell, Fay Gray, and Grace A. Harry, not for
business reasons as asserted, but in order to defeat the
union organizing effort, and thereby violated Section
8(a)(1) and (3) of the Act.
' Respondent's contention that it had waited until May in order to see
if a South American trip would generate business has been previously
considered. As noted, it does not adequately explain why, if Respondent
really considered a layoff necessary. it did not put it in effect in February
or early March. Indeed, between February and May, Respondent actual-
ly hired one new employee and reinstated a previously terminated em-
ployee, both of whom were retained at the time of the layoff
'9 The record indicates that, by the end of June and perhaps before,
the number of employees in the unit was already approximately the same
as before the layoff.
2o As recently as April 16, 1979, Respondent formally announced that
it had adopted a system of pay increases based on years of service (rather
than a system of "equal pay for equal work" which "would benefit our
new employees") because "The company believes that of the two sys-
tems, the one based on years of service is in the long range interest of our
employees since it results in higher pay than otherwise for those who
stay with the company. It benefits the company if it results in a more
stable work force, and it is believed that it does so." (See G.C Exh. 8.)
1158
INSTRUMENT CORPORATION OF AMERICA
2. The termination of Schucker
Schucker was a skilled employee whom Respondent in
January 1980, in spite of complaint about his production
and attendance at the time, decided, nevertheless, to
retain. He worked in a department in which erratic hours
of work and attendance had long been tolerated so long
as production was maintained. Indeed, though Schucker
was employed as a full-time employee, he had missed
time in every week from January through May 1980, but
without any comment on this from Respondent. There is
no contention that he did not maintain his production
during this period.
On May 13, Schucker punched out at noon and did
not return to the plant until 5 p.m. It is not disputed that
work in his department was slow at the time and
Schucker was entitled to use the time as part of his vaca-
tion benefits. Though he failed to ask his immediate su-
pervisor in advance for permission to take the afternoon
off on May 13, the supervisor specifically acquiesced in
Schucker's using this time as part of his vacation, after
Schucker returned. The supervisor neither disciplined
Schucker nor sought to have him disciplined for his ab-
sence that day.
At this time, as noted above, Respondent President
Bryan was in the hospital. Schucker's absence from the
plant all afternoon on Tuesday was reported to Bryan by
a member of the sales force, who surmised Schucker had
been drinking. On Friday, May 16, after consulting with
Schucker's supervisor by telephone Bryan asserts that he
decided to let Schucker go because of his losing time in
January, his absence from work on May 13, and the sus-
picion that he had been drinking that afternoon. 2'
Schucker was "laid off' by his supervisor that afternoon.
Though Bryan contends that he was unaware that
Schucker was a union supporter at the time, the evidence
is clear that, during the 1979 union campaign, Schucker
made comments in meetings with Bryan that the latter
understood were prounion and resented. Schucker's posi-
tion in favor of the Union was also known to his supervi-
sor.
In short, Schucker's absence from work on May 13
was approved by his supervisor after his return, and in
fact constituted "vacation time" to which he was entitled
under Respondent's benefit program; his absence did not
interfere with production because production was slow,
for lack of parts, at the time; Schucker's supervisor did
not complain of his absence or seek his discipline. In
these circumstances it is not logical or reasonable that
Bryan would discharge Schucker for his absence on May
13 if he knew the facts. The record shows that Bryan did
consult with Schucker's supervisor concerning the
matter before making the decision to terminate Schucker,
but does not describe at length the discussion between
them. However, I infer that Bryan asked to be fully in-
formed and that the supervisor did so.
In these circumstances I can only conclude that Bryan
seized upon this instance as a pretext to get rid of
Schucker, a vocal supporter of the Union, to more cer-
tainly insure the defeat of the Union in the pending elec-
tion.
'' This suspicion was not confirmed by the supervisor
Respondent, however, argues that its failure to termi-
nate Schucker in January, when it had reason to do so,
or on May 13 when it laid off others, shows that it was
not animated by hostility to the Union in letting him go
on May 16. However, so far as is shown, Respondent, in
January, had no reason to believe it continued to have a
union problem. Since Respondent's selection of employ-
ees for layoff on May 13 followed no discernible logical
pattern, it can only be speculated as to the reason for
overlooking Schucker. However, the fact that not all
union supporters were selected for elimination in the first
instance does not detract from Respondent's purpose or
the impact of its action. When Schucker contemporane-
ously seemed to present an opportunity to eliminate one
more union supporter, this was immediately seized upon.
For the reasons stated I find that Respondent, by ter-
minating Richard Schucker, violated Section 8(a)(1) and
(3) of the Act.
F. The Objections to the Election and Challenges to
Ballots
In accordance with directions contained in the order
consolidating cases herein, the issues in Case 5-RC-
11199 heard herein are hereby transferred to the Board
for decision. I find, for reasons set forth above, that the
termination of employment of Lynn Brown, Harry,
Gray, Ferrell, and Schucker, in violation of the Act, in-
terfered with the employees' freedom of choice and pre-
vented a free and fair election in Case 5-RC-11199, and
recommend to the Board that the challenges to the bal-
lots of the named employees be overruled and their bal-
lots be opened and counted; further, that if the results of
the election show that less than a majority of the votes
have been cast in favor of the Union, then that the elec-
tion be set aside and a new election be ordered to be
held at an appropriate time; and further that Case 5-RC-
11199 be remanded to the Regional Director for Region
5 to carry out these directions.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent, by the termination of Elizabeth Lynn
Brown, Frank Ferrell, Fay Gray, Grace A. Harry, and
Richard C. Schucker to discourage membership in and
support of the Union violated Section 8(a)(3) and (1) of
the Act, which unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent discriminated against
Elizabeth Lynn Brown, Frank Ferrell, Fay Gray, Grace
A. Harry, and Richard C. Schucker in violation of the
1159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, it will be recommended that Respondent offer each
of them immediate and full reinstatement to the position
each of them held at the time each was terminated or, if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to the seniority or other
rights or benefits each possessed, and make each of them
whole for any loss of pay or benefits which each may
have suffered by reason of his (or her) termination from
employment, by payment to each of them a sum of
money equal to that each would have earned as wages
or other benefits from the date of his (her) termination to
the date of his (her) reinstatement, less his (her) net earn-
ings during that period and interest thereon to be com-
puted in the manner prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 22
The Respondent, Instrument Corporation of America,
Baltimore, Maryland, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, terminating, or otherwise
discriminating against employees because they join, sup-
port, or engage in activities on behalf of a labor organi-
zation.
(b) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights protected
22 In the event no exceptions are filed as provided in Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
under Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer Elizabeth Lynn Brown, Frank Ferrell, Fay
Gray, Grace A. Harry, and Richard C. Schucker imme-
diate and full reinstatement to their former positions or,
if those positions no longer exist, to substantially equiva-
lent positions, and make each of them whole for any loss
of earnings or benefits each may have suffered by reason
of their termination from employment, in accordance
with the provisions set forth in the section hereinabove
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its operations in Towson, Maryland, copies
of the attached notice marked "Appendix." 23 Copies of
said notice, on forms provided by the Regional Director
for Region 5, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
:" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1160