Computed Time Corp.

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1243 (N.L.R.B. 1977)

COMPUTED TIME CORP. 1243
Computed Time Corporation and International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO. Cases 16-CA-6473 and 16-RC-7138
April 7, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 6, 1976, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.' The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Computed Time
Corporation, Arlington, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that Case 16-RC-7138 be
severed and remanded to the Regional Director for
Region 16 for the purpose of opening and counting
the ballots of voters whose challenges have been
overruled and issuing a revised tally of ballots to the
parties, and the appropriate certification based
thereon.
I Respondent also has filed a request for review in Case 16-RC-7138
which we have treated as part of its exceptions
2 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (CA. 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: Upon an
original charge filed on February 20, 1976, a complaint was
issued on April 23 , 1976, which, as amended, alleges that
Respondent violated Section 8(a)(1) of the Act by various
coercive expressions on the part of named supervisors,
surveillance of union activity , and the maintenance of a
discriminatory no-solicitation rule, and, further, that
Respondent violated Section 8 (a)(3) and (1) of the Act by,
on or about February 16 , 1976, effecting the permanent
layoff of 20 employees , and by discharging another
employee on March 3 , 1976. In its duly filed answer,
Respondent denied that any unfair labor practices were
committed.
Pursuant to a representation election petition filed in
Case 16-RC-7138 on March 1, 1976, and a Decision and
Direction of Election issued by the Acting Regional
Director for Region 16 on April 12, 1976, an election by
secret ballot was conducted on May 14 , 1976, in the
employee unit found to be appropriate. The results of that
election showed that , of approximately 197 eligible voters,
204 valid ballots were cast, of which 83 were for Petitioner,
90 against , with 31 determinative challenges . No objections
to conduct interfering with the election were filed . On June
2, 1976, the Regional Director for Region 16 issued a
"Supplemental Decision , Order Consolidating Cases and
Notice of Hearing" in which he concluded that all
challenges raised issues best resolved by a hearing, and
since issues concerning some 12 challenges were common
to issues involved under the pending complaint in Case 16-
CA-6473, the Regional Director ordered that said cases be
consolidated for hearing.
Pursuant thereto, a consolidated hearing was conducted
before me in Fort Worth , Texas , on June 14-17, 1976.
After close of the hearing, briefs were filed by the General
Counsel , the Respondent Employer, and the Charging
Party Petitioner.
Upon the entire record in this proceeding ,' including my
observation of the witnesses while testifying, and consider-
ation of the posthearing briefs , I find as follows:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent Employer is a Texas corporation with a
place of business located in Arlington, Texas, from which it
is engaged in the assembly, sale, and distribution of
electronic digital watches. During the calendar year
preceding issuance of the complaint, a representative
period, Respondent manufactured, sold, and distributed
from said facility products valued in excess of $50,000,
which were shipped directly therefrom to States of the
United States other than the State of Texas.
i Respondent, on August 5, 1976, after submission of postheanng briefs,
moved that the record be reopened to receive data as to the actual monthly
units produced by Respondent dung the first half of 1976. The General
Counsel opposed said motion, asserting, inter aka, that the proffered data
failed to qualify as either newly discovered or previously unavailable
evidence The General Counsel's position is technically sound but, having
examined the material offered by Respondent, and having had opportunity
to consider it against the entire record, it is my conclusion that Respondent's
motion, while not prejudicial to the General Counsel, includes matters of
considerable aid to a just resolution of the primary issue presented in this
case Accordingly, the record is hereby reopened to receive Respondent's
submission , which is marked as Resp. Exh 12
228 NLRB No. 155
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges, the answer admits, and I find that
Respondent Employer is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
[I. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I fmd that
the International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent, through its agents and super-
visors, interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act by coercively interrogating
employees concerning union activity, by maintaining
surveillance of a union meeting, by threatening to obtain a
list of union supporters who would be the subject of
adverse action, by soliciting employees to withdraw their
support of the Union, and by maintaining and discrimina-
tonly enforcing an invalid no-solicitation rule.
2. Whether Respondent, on February 16, 1976, violated
Section 8(a)(3) and (1) of the Act by permanently laying off
20 employees in reprisal for union activity.
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Hoye Morris on March 3, 1976,
because of his union activity.
B. Background
Computed Time Corporation is a wholly owned subsid-
iary of the Arnim Corporation and operates from a single
facility from which it is engaged in the design, manufac-
ture, and sale of electronic digital watches. The entire
production output of Computed Time is sold to another
subsidiary of Armin Corporation, known as the E. Gluck
Corporation.
Arthur W. Cruse is the president and founder of
Computed Time Corporation. Production of digital watch-
es by Respondent did not commence until the fall of 1974.
Initially, consumer response to the new digital watch was
most positive. Computed Time shared the market place
success of this new product as is evidenced by the constant
expansion of production it experienced during 1975. In
November of that year, the Arlington plant turned out
some 47,000 units, a new high in monthly output. As of
January 1976, Computed Time's least expensive watch was
produced at a cost of $32-$33 per unit, while retailing at a
minimum price of $75. However, in January 1976 consis-
tent with earlier reports, forecasting a downward trend in
retail puce levels of digital watches,2 Texas Instrument
(TI), the firm largely responsible for the revolution in price
levels with respect to pocket calculators, announced the
2 The issue of "Business Week" dated October 27, 1975, contains an
article entitled "Digital Watches, Bringing Watch Making Back to the U.S "
Within that article was a statement to the following effect, "At the rate that
U S production capacity is increasing, the $30 digital watch is a certainty
next year, just as a $20 watch is in 1977 "
development and proposed sale of solid state digital
watches at $19.95 retail, with delivery to commence in the
second quarter of 1976.
Thereafter, in early February,3 a representative of the
Union made an initial contact with certain employees of
Computed Time. This meeting was followed by a meeting
on February 10, with some 10 employees attending. All
present on that occasion signed cards and obtained
authorization cards for circulation among fellow employ-
ees. The effort to broaden employee support of the Union
commenced immediately after this meeting.
Nathaniel Jones, Respondent's vice president in charge
of manufacturing, admits to his having received reports of
union activity in the plant on Friday, February 13.
On Monday, February 16, a management decision to lay
off 20 members of its work force was implemented by
Jones.4 This layoff is alleged by the complaint to have
violated Section 8(a)(3) and (1) of the Act.
On March 1, the Union filed an RC petition in Case 16-
RC-7138, seeking a unit of all production and maintenance
employees.
On March 3, Hoye Morris was discharged following a
confrontation with his supervisor, and his termination is set
forth in the complaint as an additional act of unlawful
discrimination.
Obviously, the most significant allegation in the com-
plaint in terms of remedy and its impact on the question
concerning representation is that involving the 20 employ-
ees laid off on or about February 16, 12 of whom cast
challenged ballots in the election. Respondent contends
that this layoff was based upon economic considerations,
resulting from the announcement by TI of its production of
a $19.95 digital watch. According to Respondent this
required a downward revision of production schedules
during a period in which significant changes had to be
effected if its product were to remain competitive. Respon-
dent claims that those responsible for the decision to effect
the cutback in personnel had no knowledge of union
activity. The General Counsel asserts that the layoff was in
reprisal for union activity and, in the alternative, argues
that, even if the layoff were found to be economically
based, the selection of certain union supporters (Ann
Hickey, Sally Buck, Soloma Gates, Darlene Webster, and
Marge Peterson) was discriminatory and violative of
Section 8(a)(3) and (1) of the Act.
C. Interference, Coercion, and Restraint
1. The no-solicitation rule
The Computed Time Corporation "Employee Hand-
book" includes the following:
Soliciting employees for membership in organizations,
sale of tickets , asking for donations , and similar acts are
not permitted without the specific approval from
management.
3 All dates referred to 1976 unless otherwise indicated.
4 The employee handbook appearing in evidence as Resp . Exh. 9 states
that the payroll period begins on Thursday and ends on Wednesday.
COMPUTED TIME CORP. 1245
The General Counsel claims that this rule was main-
tained and discriminatorily enforced in violation of Section
8(a)(1).
Under established principles, the broad restriction
embodied in the above rule is presumptively violative of
Section 8(a)(1). The provision in question does not
specifically exclude the solicitation of membership in a
labor organization and quite reasonably would be under-
stood by employees as including such activity, even if
conducted on an employee's own time. Absent special
circumstances, an employee's right to utilize nonworking
time to engage in solicitation on behalf of a labor
organization is guaranteed by the Act, and "an employer
cannot predicate upon its own authorization the employ-
ee's exercise of the right under Section 7 to self-organiza-
tion."5 The limitation of the type involved here "must be
presumed to be unreasonable impediment to self-organiza-
tion and therefore discriminatory in the absence of
evidence that special circumstances make the rule neces-
sary in order to maintain production or discipline." 6 As
Respondent has presented no evidence that special consid-
erations justified such a broadly stated restriction on
employee organizational rights, I find that Respondent
violated Section 8(a)(1) of the Act by maintenance of the
rule in question.?
2. Surveillance
On February 23, nonemployee union organizers hand-
billed the plant to announce a meeting scheduled for that
evening.
Marty Johnston, a departmental supervisor, attended
that meeting.s At the outset of the meeting, Union
Representative Christian told those present "to be on the
lookout for any person that is in management that might
be spying on the meeting or in the meeting." At this point,
Johnston was singled out. He asked if there was anything
wrong with his attending the meeting. Christian indicated
that there was, that it was a violation of the law, but that
since he had seen everybody in the room, Johnston was
told that the damage was done, and that as far as Christian
was concerned nothing further would take place to be kept
from the Company. Christian then asked employees if the
presence of Johnston made anyone nerv us. When a
number responded in the negative, Johnston as permitted
to remain.
In defense of the 8(a)(1) allegation, Respo dent does not
claim that Johnston's attendance at the meeting was
privileged by any special justification. Instea , it is argued
that the General Counsel's proof does not how that the
presence of Johnston had a coercive impact pon employ-
ees in attendance and, further, that the evide ce, viewed in
its entirety, warrants a fmding that Johnston "was invited"
to attend the meeting. There is no merit in these
contentions. The presence of management #epresentatives
at union functions has an inherent tendency to impede
employees in the exercise of their self-organization rights.
Such management activity violates Section 8(a)(1) of the
Act, `regardless of what the actual effect of these activities
by Respondent proved to be upon the employees."9 It is
true that the Board has held that attendance by a
supervisor at an organizational meeting of employees "with
their knowledge and consent" does not constitute unlawful
surveillance.10 However, contrary to Respondent, the
evidence does not establish that Johnston 's initial appear-
ance at the meeting, which allowed the opportunity to
observe employees having an early interest in concerted
activity, was pursuant to any specific invitation by
employee protagonists of the Union,11 or by the Union.12
When discovered at the meeting , his presence was in no
sense condoned by the Union for, as Christian at that time
stated, the damage had already been done. The fact that he
was permitted to remain, under circumstances in which
employees did not object, fails to alter the legal conse-
quences of his initial appearance, and I find that John-
ston's attendance thereat violated Section 8(a)(1) of the
Act.13
5 See Fasco Industries, Inc, 173 NLRB 522, 524 (1968); see also Wagner
Electric Corporation, 216 NLRB 392, 393 (1975)
6 See Peyton Packing Company, Inc., 49 NLRB 828, 843-844 (1943). See
also Republic Aviation Corporation v. N.L R B, 324 U.S. 793, 803-804 (1945)
7 The General Counsel apparently abandoned the initial claim that said
rule was promulgated in violation of Sec. 8 (a)(1). The only evidence on this
matter consisted of testimony by Nathaniel Jones that the rule was initially
published in March or April 1975 On this testimony the promulgation issue
would be time-barred by Sec 10(b) of the Act, since an event occurring
more than 6 months prior to the filing of a charge.
The General Counsel's claim of discriminatory enforcement is also
unsubstantiated by the evidence It does not appear that any employee was
disciplined for violation of the rule, or indeed that any supervisor referred
employees to this published restriction on the solicitation of union
membership. Nor does it not appear that any representative of management
made any direct effort to curtail the activities of employees engaged in
solicitation on behalf of the Union. There is credible evidence that one lead
supervisor, Patsy Green, prior to the layoff, told employees not to sign cards.
However, I discredit the testimony of Soloma Gates, an untrustworthy
witness, that Patsy Green made such a statement on the basis of
management directives I do, on the other hand , credit the testimony of
Peggy Wasser that Patsy Green came into her department , advising
employees not to sign anything. It was my impression that Green's conduct
in this regard was quite independent of the no-solicitation rule and was
based on her own apprehension concerning union activity, and general
opposition to it Although perhaps unlawful in other respects, I find that the
credible testimony concerning Patsy Green is insuffic ient to establish that
Respondent enforced the unlawful rule
8 Leah Evans, a witness called by the General Counsel and a lead
supervisor currently on Respondent's payroll, testified) that, on arriving on
the site of the meeting, Johnston was observed trying to enter the meeting
hall through the front door . She indicated that she and others assisted his
entry by directing him to the side door which was open.
9 See Gold Circle Department Stores, 207 NLRB 1005, 1013 (1973).
10 See Presser Scientific, inc., 158 NLRB 1375, 1383 (1966); J. W. Mays,
Inc., 147 NLRB 942, 947-948 ( 1964); Howard Aero, Inc., 119 NLRB 1531,
1534 (1958).
u The evidence that union supporters assisted his entry by directing
Johnston to an unlocked door was hardly tantamount to an expression that
his presence was desired.
12 Respondent did not call Johnston as a witness.
13 Other cases cited by Respondent are distinguishable Thus, in Aldon,
Inc, 201 NLRB 579, 583 (1973), dismissal of the surveillance allegation
occurred in a context of an employer's affirmative disavowal and discipline
of a supervisor who attended a union meeting contrary to the company's
rules In Eldo-Craft Boat Co., Inc., 166 NLRB 280 , 283 (1967), a like result
was reached in circumstances strongly suggesting that the supervisor was in
league with union supporters and that his attendance was at the behest of
employees . Contrary to the Respondent these cases impose no burden upon
the General Counsel to establish that the supervisor 's presence was by
instigation or direction of the employer , or that he reported what transpired
at the meeting to the employer.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Interrogation and threats
a. By Patsy Green
The alleged unfair labor practice imputed to Respondent
through Patsy Green is limited by the complaint to an
instance of interrogation on or about February 16. The sole
support for this allegation is derived from the testimony of
alleged discriminatee Soloma Gates. While I have no doubt
that Green during the period preceding the February 16
layoff told various employees that they should not sign
union cards,14 Gates was an unreliable witness , and I am
unwilling to find unfair labor practices based on her
uncorroborated testimony that Green questioned her as to
her own and the attendance of others at a union meeting.
Accordingly, I shall dismiss the allegation that Green
coercively interrogated Gates in violation of Section 8(a)(1)
of the Act.
b. By Nathaniel Jones
The complaint alleges that Respondent, through Nathan-
iel Jones, violated Section 8(a)(l) of the Act by coercive
interrogation, by the solicitation of employees to sign a
petition withdrawing their support from the Union, and by
coercively threatening to obtain a list of employees who
supported the Union.
Employee Shirley Lee testified that on Friday, February
13, at the close of work, Jones spoke to her privately, as she
was leaving the plant, questioning her as to whether Lee
knew about the cards and what was going on. Lee
indicated that she did not know what Jones was referring
to. Jones then indicated that he meant "the cards that were
being passed out." Lee responded that she did not want to
be involved "one way or another." According to Lee, Jones
went on to state that he had good workers, and that Lee
should tell the employees who had not signed cards to
think before doing so and that he "should have had a layoff
a long time ago, but he was trying to keep everybody." Lee
further testified that Jones informed her that he knew that
Sally Buck had signed a card and went on to state that
"when the Union filed" he would request a list of names of
the people and that he would know who filed or signed a
card.
Jones admits to a conversation with Lee on February 13
but, as he could recall, their discussion was confined to
Lee's request for additional overtime. Jones admits that
Patsy Green had reported having been threatened by
Soloma Gates because of her antiunion activity that same
day. In connection with the Lee conversation, Jones stated
that he had been "shaken" by the news received from
Green and, in effect, states that he "may or may not have"
referred to the Union in his subsequent conversation with
Lee. I credit the testimony of Shirley Lee who at the time of
the hearing was still on payroll status, and whose testimony
14 See testimony of Peggy Wasser and Nathaniel Jones.
15 Leah Evans, who at the date of the hearing continued in Respondent's
employ as a lead supervisor, testified to a somewhat similar encounter with
Jones on February 13 At that time , after Jones referred to a report that
Evans had been involved in union activity, Jones told Evans that while
business was slow everybody was still working, and he didn't have plans for
a layoff, "all they had to do was to write for a list and they'd furnish them
with one, and those would be the people who were laid off" Jones indicated
struck me as straightforward and honest . Based thereon, I
find that Respondent violated Section 8(a)(1) by Jones'
questioning her as to the nature of the union activity, by his
threat to obtain a list of union supporters, and, in the
context of a layoff that subsequently occurred, by his
reference to the fact that he had previously avoided taking
such action against employees.15
In addition to the foregoing, the General Counsel points
to the testimony of Peggy Wasser, a former employee of the
Respondent who voluntarily quit, as to a conversation she
had with Jones. According to Wasser, Jones advised her
that there had been a lot of pressure about the Union and
that he had a "secret list of people who had changed their
minds about the Union." According to Wasser, Jones went
on to state that, if Wasser knew any one that had changed
their mind, or who was forced into signing a union card, to
tell him and he would put their name on a list, and "when
the Union business was over, he would know who was
against the Company and who was for it." Jones testified
that this conversation originated with and was limited to an
inquiry by Wasser who, with another employee, Janie
Rush,16 sought information as to the binding nature of the
union cards, and whether a signed card could be revoked.
In this instance, I credit Jones over the uncorroborated
testimony of Wasser. Wasser was not an impressive
witness . It struck me as improbable that, if such a coercive
technique had been utilized by Jones, it would have been
so isolated that the General Counsel could not produce a
single additional witness in corroboration of Wasser's
account. Accordingly, having credited Jones, the 8(a)(1)
allegation based on soliciting employees to withdraw union
support shall be dismissed.
D. The Alleged Discrimination
1. The layoff of February 16
As heretofore indicated, following the union meeting of
February 10,17 those who attended began distributing
authorization cards to employees at the plant and the
organization drive was underway. Nathaniel Jones admits
that on Friday, February 13, he received reports of union
activity from two sources, namely lead supervisors, Sue
Dunn and Patsy Green. Furthermore, I have credited
testimony to the effect that Jones immediately after
receiving such information engaged in coercive dialogue
with subordinates, which included references to the
possibility that the Company's no-layoff posture might well
be changed, and that union supporters might well be
adversely affected thereby.
On the following Monday, February 16, Respondent
made the decision to lay off 20 employees. Notification
could not be accomplished through a single meeting
because all to be included in the layoff were not available.
The largest meeting convened for that purpose took place
that he had "no recollection or knowledge " of referring to a list in any way,
but I credit Evans as the more reliable witness . The testimony of Evans is
corroborative of Shirley Lee and evidences a consistent pattern of conduct
on the part of Jones.
16 Janie Rush was not called by either the General Counsel or
Respondent.
17 Of the 10 employees who attended that meeting , only Lena Parker,
Ann Hickey, and Marge Peterson were included in the subsequent layoff
COMPUTED TIME CORP. 1247
at the close of work on February 16. At that time, it is
undisputed that Jones expressed dismay at having to carry
out a reduction in force, but stated that, due to the
economics of the industry, a reduction in the personnel
force was necessary. He further advised the assembled
group that they had been selected, and that he would not
fight any compensation claims they might make. Also
undisputed is the fact that Don Andrews, Respondent's
vice president in charge of engineering, mentioned the
availability of jobs at certain specific employers in the area
who were involved in the electronics industry. In addition
to the undisputed accounts of what was said, I find that
Jones told the employees, on that occasion, that they could
expect recall as work picked up in May or June of that
year.is
In the period following the layoff, none were recalled.
However, Respondent, commencing in the following
month, began hiring new employees. During the period
between the layoff and June 1976, Respondent hired more
than 30 new employees to positions within the collective-
bargaining unit . It is also noted that employee Linda
Butler, who was actively on payroll status as of the date of
the hearing, testified without contradiction that, in early
April 1976, she had a conversation with Jim DeLario, her
department supervisor, in which DeLario made reference
to the amount of work on hand due to people who had
quit. Butler indicated that she opined to DeLario that
additional help was needed to which DeLario agreed,
indicating that they were about "100 people short." Butler
then asked why the Company did not begin hiring.
DeLario indicated "They're going to as soon as this union
matter is settled."
The foregoing prima facie substantiates the General
Counsel's claim of discrimination. Nonetheless, Respon-
dent contends that the layoff of February 16 was based
entirely upon economic considerations and unrelated to
any union activity. Specifically, it is argued in support of
the defense that said layoff was an aspect of the Company's
retrenchment in consequence of the competitive uncertain-
ty created by introduction of the $19.95 TI digital watch.
Little doubt can be held as to the complete revolution in
the digital watch industry that would result from that
announcement made by TI at the Chicago Trade Conven-
tion during the week of January 8, 1976. And in the light of
recent experience in the pocket calculator field, there is no
quarrel with expressions by Respondent as to reluctance on
the part of retailers to invest in inventories of digital
watches, as they had in the past. But aside from these
inherently credible considerations, Respondent's defense
rests upon the subjective accounts of Nathaniel Jones,
Arthur Cruse, Tom Andrews, and Irving Gutin,19 testimo-
18 1 discredit the denials of Jones and Andrews that such a statement was
made or that the issue of recall was mentioned to the laid-off employees
Their testimony seemed implausible and fit the pattern created by several
other inherently unbelievable aspects of Respondent's testimony. The
individuals selected for layoff were not informed as to the means of
selection, though told that the layoff was based upon economic considera-
tions Some of the individuals that attended that meeting had been
employed by Respondent since late 1974, during the period shortly after
Respondent commenced production of digital watches At a minimum,
considering what transpired at the meeting, it is entirely unlikely that the
employees on that occasion would not have raised the question of recall,
had Respondent's officials not addressed themselves to that matter. I credit
ny which, as a whole, was unconvincing and lacking in
support from objective facts.
Turning to the specific aspects of the defense, it is clear
that in September 1975 Respondent projected a continued
expansion in its output during the first half of 1976. At a
meeting between Respondent's officials and representa-
tives of Armin in that month, it was decided that, despite
seasonal slacks in demand after Christmas, projected
production in January and February 1976 would be 41,000
units in each month. According to Arthur Cruse, represen-
tatives of Armin had recommended a cutback in personnel
after Christmas 1975 by as much as 40 percent, but he
successfully argued against such a step, taking this position
out of concern for loss of "trained employees."
Respondent concedes that during the latter part of 1975
those associated with the digital watch industry were aware
that Texas Instruments was attempting to develop technol-
ogy which would enable it to revolutionize the price
structure of digital watches, as it had done previously with
electronic calculators. Respondent had taken steps to
develop a logic chip 20 from a vendor which would enable it
to produce a much cheaper watch by the end of 1976. As of
the fall 1975, it was generally felt, however, that a $20
digital watch at the retail level was at least a year away.
In early December 1975, separate meetings were con-
ducted by Cruse with rank-and-file employees and supervi-
sors in which he presented a rosy picture for 1976, with
increased production, and little concern for competition
from other manufacturers.21
During the week of January 8, at an electronic product
trade show, TI announced it would shortly introduce a
digital watch which would sell at $19.95 retail.
In response, on January 26, Cruse again met with
representatives of Armin. At that time, they decided to
reduce the 1976 production schedule to the level of 35,000
units monthly through May of that year. On January 28,
pursuant to that meeting, Jones began communicating with
vendors to place outstanding orders for parts in a hold
category. Cruse testified that at the January 26 meeting the
possibility of the reduction in manpower was discussed, but
that no decision was made at that time.
Curiosity is aroused by this latter aspect of his testimony
when considered in the light of Cruse's earlier testimony
concerning the interrelationship between projected output
and manpower levels. Thus, in other phases of his
testimony Cruse quite logically explained that planned
manpower levels were a function of planned output,
indicating that each unit took one man-hour to produce,
and creating the distinct impression that an equation
existed whereby a rise or decline in monthly levels of
output would entail a concomitant adjustment in the size of
the testimony of Ann Hickey and Marge Peterson over that of Jones and
Andrews, and find that those laid off were advised of the possibility of
recall
19 Gutin is the senior vice president of Armin Corporation, whose area of
responsibility included Computed Time Corporation.
20 The logic chip is the computer mechanism which is the basic
"movement" in a digital watch.
21 I credit Cruse's testimony that at such meetings , while he referred to a
TI watch and those of other competitors, he had no knowledge at that time
that TI wits about to introduce a $19.95 watch. To the extent inconsistent
with his testimony , I discredit testimony of Marge Peterson
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the work force. It is difficult to understand why, on
January 26, when Respondent committed itself to reduce
output and took firm steps to reduce delivery of raw
materials, no decision was made on a cutback in manpow-
er. In my opinion certain other figures supply the answer
here, and, indeed, go a long way in convincing me as to the
unbelievable nature of the defense. Thus, Cruse testified
that the direct work force at the time of the 2-week plant
shutdown in December 1975 consisted of about 335
employees.22 He goes on to relate that in January the size
of that work force averaged about 300. Cruse testified that
in January 1976 Respondent's output was 41,000 units.
However, he was mistaken in this regard, as is evident from
Respondent's Exhibit 12, which shows that the actual units
produced in that month numbered 31,916. Thus, with the
reduction of some 35 employees, in January 1976, Respon-
dent had produced less output than proposed for February
(35,000 units) in the revised output projection made at the
meeting on January 26. It is difficult to imagine that this
information was not available to Respondent through
ordinary perpetual bookkeeping procedures prior to Febru-
ary 16. It strongly suggests that no reduction in manpower
was contemplated at the January 26 meeting , because the
reduction had already taken place through normal turn-
over.
Also during the month of January, according to Cruse,
he contacted TI and successfully negotiated an arrange-
ment whereby Respondent would purchase parts from TI
at less cost than was available from existing vendors.23
Respondent first received samples of the new TI chip on
February 6. Cruse goes on to testify, however, that
utilization of the new chip required the reengineering and
retooling of the module then in production.
On Saturday, February 14, Cruse held a staff meeting
with Jones, Perry Bales, Respondent's cost accountant, and
Andrews. Cruse relates that at that time no decision was
made about a layoff, but states that his staff was instructed
to reevaluate all supervisors and employees as to their
efficiency and productivity. Jones confirms that Cruse did
not specifically talk about layoff at that meeting and, under
his version, it appears that Cruse simply reiterated, as he
had in the past, that the staff needed continually to be on
the alert as to who the outstanding workers and the poor
performers were, and to counsel the latter as necessary.
Jones, Cruse, and Andrews all denied that Jones, on that
occasion, reported his recently acquired knowledge that an
organizational campaign was then underway 24
Jones testified that he first got instructions regarding a
layoff on February 16, when he received a phone call from
Cruse advising him to implement a plan whereby produc-
tion would be reduced to the 35,000-unit monthly rate.
22 Respondent curtailed production and closed the plant during the last
two weeks of December 1975
23 As an example of the cost savings resulting from this arrangement, the
chips purchased from TI would cost $1 75 as compared to the approximate
price of $4 50 for those previously in use.
24 I was not persuaded by the explanation by Jones as to why he failed to
report the union activity to Cruse As shall be seen , infra, I regard the
testimony of Jones , Cruse , and Andrews that such matters were not
discussed as incredible.
25 Jones testified that five departmental supervisors submitted names for
inclusion in the layoff He admits that the supervisors were not informed as
to the number to be included in the layoff Coincidentally, however, all 18
Cruse testified that, on February 16, he went to New York
City to further discuss the reduction in output program.
Gutin allegedly told Cruse that a cutback in personnel of
approximately 40 was necessary, and after some discussion
Cruse was instructed by Gutin to terminate approximately
20 employees, with the balance of the reduction accom-
plished by attrition. Gutin and Cruse denied that they had
any knowledge of the union campaign at the time of this
determination.
According to Jones, upon receipt of the instruction from
Cruse on February 16, he met with his departmental
supervisors requesting that they submit names of people
who were poor producers or not good performers. Jones,
who claims to have held exclusive discretion as to the
means of selecting those to be laid off, asserts that he did so
on the basis of poor production, bad attitudes, absentee-
ism, etc . The supervisors then left the office, returned to
their work area, and later individually returned with names
of people in their area whom they considered to be the
"poor performers." 25 Although Jones claims that those
selected for layoff were poor workers, he concedes that
they did not engage in any work derelictions proximate to
their termination on February 16, and further admits that
they would have remained in Respondent's employ
thereafter but for the economic circumstances confronting
Respondent.
Respondent's testimony in support of the assertion that
the layoff was part of a continuing plan to reduce output
was unworthy of belief. I am satisfied that as of February
16, due to the decline in the size of the work force, absences
due to illness, the need for output of women's watches, and
the high volume of work to be performed in the warranty
department,26 a heavy work burden27 had been placed on
available employees. As of February 16, the work force
consisted of 284 employees, reflecting a decline of 51 in the
number working at the end of December 1975. As
indicated, I am convinced that, as of January 26, when
revised production schedules were reached and immediate-
ly implemented by letters to vendors curtailing shipments
of ordered raw materials, Respondent made no decision to
effect a layoff, because its work force had already declined
substantially. Other than the lapse of time and the
intervening advent of union activity, there is no explana-
tion as to what occurred after January 26 to prompt the
sudden adjustment to the size of the work force of
February 16, despite Respondent's own testimony that
such adjustments are always factors inherent in any shift in
planned output. The question left open by the defense is
why, if on January 26 a revised production plan for
February was adopted reducing planned output in that
month by 6000 units, no effort was made to cut the
names submitted by the supervisors were included in the layoff The figure
20 was reached by Andrews' addition of Marge Peterson and Jones'
addition of Sonya Brown
26 The warranty department is responsible for repairs on malfunctioning
watches sold by the Company.
27 Any interpretation of the testimony of Don Andrews to the effect that
the warranty and ladies' watch operation were not hard pressed for overtime
work until after the layoff is discredited . I was not impressed with Andrews'
demeanor and this part of his testimony was argumentative if not
contradictory. Indeed, the last paycheck of Marge Peterson, a lead
supervisor on the ladies watch line, shows that she worked 10-3/4 hours'
overtime in the workweek abbreviated by the layoff
COMPUTED TIME CORP.
employee complement until half that month was history. It
is in this context that I consider the testimony of Nathaniel
Jones that neither at the staff meeting of February 14 nor
at any time prior to the layoff did he inform Cruse as to the
existing organizational drive. The testimony of Jones,
Cruse, Andrews, and Gutin to the effect that the decision
to eliminate 20 employees was made without knowledge of
union activity was unworthy of belief.
Considering the entire record, convincing evidence
warrants the conclusion that, as of January 26, no layoff
was planned or intended because the required cutback in
production was already facilitated by the natural decline in
the size of Respondent's direct work force. Credible
evidence establishes that, immediately pnor to the layoff,
Jones made reference to his efforts to avoid such actions in
the past under conditions plainly implying to employees
that the union activity spelled a change in management's
philosophy in this regard. The layoff was made with
knowledge of union activity, on a record demonstrating a
lack of necessity for such action to accommodate the threat
to Respondent's market posed by TI's inexpensive watch.
On the entire record, including the inferences heretofore
drawn and the testimony credited herein, the conclusion is
inescapable that the layoff of February 16 was prompted
by management's recently acquired knowledge of the
union campaign then in progress.28 Accordingly, I find that
the following employees were terminated in violation of
Section 8(a)(3) and (1) of the Act:
Wanda Wyrick
Gladys Martin
Jess Parker
Shirley Lambert
Elbie Wynn
Liz Nailon
Dons Sanders
Sally Buck
Mary Thomas
Ann Hickey
Lena Parker
Soloma Gates
Pat Ruckman
Mary Hutchison
Barbara Maness
Sonya Brown
Velma Houston
Vivian Raleigh
Darlene Webster
However, the allegations of Section 8(a)(3) and (1) in the
case of Marge Peterson shall be dismissed. Marge Peterson
at the time of the events here in question occupied the
position of lead supervisor or leadlady. At a preelection
hearing in Case 16-RC-7138, the sole issue apparently
litigated was the eligibility status of leadladies. Marge
Peterson attended that hearing, but did not testify. At the
time of that hearing, the charge in Case 16-CA-6472
naming her as a victim of discrimination was pending. By
Decision and Direction of Election dated April 12, 1976,
the Acting Regional Director for Region 16 concluded that
the lead supervisors possess and exercise sufficient authori-
ty to be supervisors within the meaning of Section 2(11) of
28 On this record, no different result is impelled by the fact that, of the
employees affected by the layoff, direct testimony on this record indicates
that only three were known by Respondent to have been engaged in
activities on behalf of the Union Neither this nor the absence of any
evidence as to whether or not 10 of the laid-off employees supported the
Union overrides the convincing evidence which establishes that the layoff
was unlawfully prompted by union considerations See, e g, REA Trucking
Company, Inc, 176 NLRB 520, 525 (1969), enfd 439 F2d 1065 (CA 9,
1971) HowardJohnson Company, 209 NLRB 1122 (1974)
1249
the Act. Accordingly, he found that the appropriate
bargaining unit consisted of the following employees:
All production and maintenance employees employed
by the Employer at its Arlington, Texas, facility,
excluding all lead supervisors (lead ladies), office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
Review of that decision was not sought.
At the instant hearing, the General Counsel, over
Respondent's objection, was permitted to adduce evidence
seeking to establish that Peterson, as a lead supervisor, was
a rank-and-file employee. Although Respondent's claim
that relitigation of the supervisory issue is foreclosed in the
circumstances is lacking in merit, its assertion that the
evidence on which the General Counsel relies warrants no
difference in result is sustained. Thus, the only additional
evidence offered in this proceeding in affirmative support
of the claim that Peterson was not a supervisor was through
her own testimony. The issue presented is a close one,
which has heretofore been resolved by the Acting Regional
Director upon a complete record and after an assessment
of conflicting testimony. At the same time Peterson was not
regarded as a reliable witness. She impressed me as having
attempted in self-serving fashion to downgrade her authori-
ty, and her overall testimony reflected a tendency toward
exaggerated argumentation and a lack of objectivity. Thus,
the record made before me supplies no credible supplement
to the matters previously heard in Case 16-RC-7138 and
no basis exists on this record for reaching a contrary result.
Furthermore uncontradicted testimony establishes that
Peterson's duties and authority were no different from
those possessed or exercised by the class of lead supervisors
excluded from the unit by the Decision and Direction of
Election in Case 16-RC-7138, and I find that she was a
supervisor within the meaning of Section 2(11) of the Act.
Accordingly, I shall dismiss the allegation that her
termination violated Section 8(a)(1) and (3) of the Act.
2. The discharge of Hoye Morris
Morris was hired on March 20, 1975, and continued to
work throughout his employment as a janitor up to his
discharge on March 3, 1976.
Morris claims to have attended a union meeting29 prior
to his discharge and it does appear that he executed a
union authorization card dated February 24, 1976.
When terminated, Morris was on probation for having
on several occasions left the building on personal business
on company time. His discharge resulted from a confronta-
tion on March 3 with Dale Moyers, Respondent's mainte-
nance supervisor.
29 Moms could not recall the date of the union meeting in question, but
indicated it was held in Grand Prairie, Texas. The Union conducted two
meetings at that location, one on February 23 and a second on March 2 It
was the February 23 meeting which opened with discussion as to the
presence of Supervisor Marty Johnston Morris could not recall that any
such incident occurred at the meeting he had attended Hence, in all
probability Moms is speaking of the March 2 meeting. If that were the case,
no basis exists for infemng that Respondent, prior to the incident of March
3, was mindful of any union sympathies on his part
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Precisely what transpired on that occasion is the subject
of a conflict in testimony. Based on the credited account of
Supervisor Moyers, I find that, shortly after Morris came to
work that morning, Moyers instructed Morris to clean out
trash that had accumulated in the A-4 area. Morris
continued to do other work and hence did not abide by this
instruction. Moyers had been instructed by higher manage-
ment to clear out the A-4 area and again told Morris that
this job had to be done. Morris argued that the A-4 area
should have been cleaned out by two part-time custodial
employees that worked the previous evening. Moyers
agreed but told Moms that he was to clean that area
immediately. Morris, instead of proceeding to the A-4 area,
obtained a union button from a nearby employee and then
approached Moyers, while wearing the badge , stating,
"Now I am a union member. I am going to join the
Union." Moyers responded, "That's fine. That's your
prerogative." Morris never did perform the work requested
of him in the A-4 area, and the job was completed only
when Moyers assigned two repair and maintenance
technicians to that task. Morris reported what had
transpired to Tom Andrews, suggesting that Morris be
terminated. Andrews submitted that recommendation to
Jones who approved and Morris was terminated that
afternoon 30
Here, the General Counsel has not established by a
preponderance of the evidence that Morris was terminated
because of his manifestation of union support. The record
furnishes no basis for concluding that the instruction given
Morris on March 3 involved anything other than a normal
supervisory request that he perform duties within the
defined scope of his employment. The misconduct evi-
denced by his defiance of these instructions is not lessened
in the eyes of the law through Morris' blandishment of
union support in the course of this incident. The record
indicates no more than a discharge, based legitimately
upon the refusal of an employee to perform, under
instruction, his normal duties. Accordingly, I shall dismiss
the 8(a)(3) and ( 1) allegations relevant to the termination of
Morris.
IV. THE ELIGIBILITY QUESTIONS IN CASE 16-RC-7138
Of the 31 challenges consolidated for resolution in this
proceeding, as matters developed at the hearing, 14 were
removed from dispute and are resolved on the basis of
stipulations by the parties. Thus, the following employees
who voted subject to challenge by direction of the Acting
Regional Director, pursuant to stipulation of the parties,
are deemed eligible as plant clericals and the challenges to
their ballots are hereby overruled:
Anna Dean Melba Mitchell
Karen Grigsby Marie Pallett
Phillis Harwell Linda Warren
Hellen Haefs Pam Weaver
Gwendolyn Jarrett Vera Westbrook
Furthermore, Petitioner, having challenged the ballots of
three employees on grounds that they were supervisors
30 1 credit Moyers over Moms I was not impressed with Moms'
demeanor and he struck me as inclined to invoke deliberately a lack of
within the meaning of the Act, later withdrew said
challenges and, based thereon, the challenges to the ballots
to the following employees are hereby overruled: Leona
Mullins, Janie Rush, and Lucille Stinson.
Also at the hearing, the parties stipulated that Barbara
Stonuni, who had been challenged by the Board's agent
because she was not on the eligibility list, was not an
employee of Computed Time on the day of the election.
Based on that stipulation, I find that Barbara Stonum was
not an eligible voter and, accordingly, the challenge to her
ballot is sustained.
Of the remaining challenges , that made to the ballot of
Marge Peterson is sustained on grounds that she was, at all
times material, a supervisor and in a class specifically
excluded from the appropriate unit.
As I have found that the following employees were
discharged on February 16, in violation of Section 8(a)(3)
and (1) of the Act, all were eligible and the challenges to
their ballots are hereby overruled:
Sonya Brown Jesse G. Parker
Sally Buck Lena Parker
Saloma Gates Doris Sanders
Iglome (Ann) Hickey Darlene Webster
Mary Hutchison Wanda Wyrick
Gladys Martin
Three additional employees (Christine Holland, Peggy
Gibson, and Linda Kaulaity), were challenged by the
Employer on grounds that, prior to the election, each had
notified the Employer of their resignation. As an aid to
resolution of their eligibility, the parties entered the
following stipulation of fact:
That these three employees resigned employment with
the Company approximately one week prior to the
election held in the subject case; and that their
resignation at that time was unconditioned and was to
be effective at the close of their shift on the actual
election date; and that, in fact, these employees did
work on the election date and did, pursuant to their
previous resignation, leave work permanently and quit
at the end of that particular day. That the three named
employees, upon resigning or submitting their resigna-
tion, were asked if they would like to make it effective
immediately; and that they each stated that they did
not want to make it effective immediately and wanted
to remain at work until after the representation election
was over.
In this connection, the Employer acknowledges Board
authority upholding the eligibility of employees who work
throughout the eligibility period, despite their intention to
quit immediately after the election. Here, however, the
employer claims that, as the challenged voters announced
their intention to quit I week prior to the election, they
destroyed the community of interest necessary for their
inclusion in the bargaining unit, and thereby forfeited their
eligibility. It is apparent from the terms of the stipulation
that all three challenged voters satisfied the Board's
recollection where straightforward testimony would expose the degree of his
misconduct
COMPUTED TIME CORP.
eligibility test, having actively worked on the eligibility and
election dates .31 Respondent's plea for an exception to the
Board's usual rules rests solely on the fact that the three
challenged voters notified the employer a week in advance
of their intention to quit after the election. Hence, under
Respondent's view a distinction ought to exist between
voters who quit immediately after casting ballots pursuant
to a secretly held intention, and those who convenience the
Employer by affording advance notice of their intention to
quit. The community of interest, or lack thereof, is not
perceptibly different in either case, and no basis exists for a
departure from Board precedent herein. Accordingly, I
find no merit in Respondent's contention and shall
overrule the challenge to the ballots of Christine Hollan4
Peggy Gibson, and Linda Kaulaity.
The Petitioner contends that Linda Yarborough is
ineligible because she is an office clerical. The Employer
joins issue here, asserting that Yarborough is assigned to
the material control department and, like others in that
area, is eligible as a plant clerical.
The facts show that Yarborough is secretary to the
material control department supervisor, Bill Reilly. Reilly's
authority is limited to Yarborough and the employees
heretofore deemed eligible as plant clericals by stipulation
of the parties. The material control department is responsi-
ble for the ordering, receipt, control, issuance , recording,
and logging of parts.
Yarborough has a duty station removed from the
immediate work area of the material control employees,
which is situated in what may be referred to as the front
office area. She is hourly rated but, unlike the material
control employees who are subject to the immediate
supervision of Betty McWilliams, she is responsible solely
to Reilly. Yarborough, unlike the acknowledged plant
clericals, wears dress clothes rather than work clothes. The
duties of Yarborough almost in their entirety are related to
the mission of the material control department. Testimony
indicates her primary function is to maintain communica-
tion between Computed Time and all vendors concerning
tooling of new parts, delivery schedules of old parts, and
the incorporating of all new purchase orders into presently
effective purchase order language. Her work does result in
contacts with other material control employees with
Yarborough going into their work area, and vice versa, on
a daily basis.
Under Board policy there is no hard and fast rule which
enables ready delineation between plant and office clerical
employees. Although the issue is not free from doubt, from
my understanding of the evidence, taking full account of
her mode of dress, the location in which she works, the
differences in supervision, and my impression that the
clerical aspects of her duties draw, if not exclusively, more
heavily on secretarial skills than would be the case of plant
clericals, I find that, like the other secretaries in her
immediate work area, Yarborough is an office clerical
employee, within a specifically excluded category in the
appropriate unit. Accordingly , I shall sustain the challenge
to her ballot.
1251
The final eligibility question relates to Bill Lowry, a
draftsman assigned to Respondent's engineering depart-
ment. Petitioner argues that this challenge be sustained, as
Lowry's duties are more closely allied with those of the
engineers who are considered to be professional employees.
In contrast the Employer, in arguing his eligibility, claims
that Lowry is not a technical employee and that, in any
event, he has a sufficient community of interest with
included employees to warrant his inclusion in the
production and maintenance unit.
Lowry is subject to supervision distinct from that of
production workers and his work consists of preparing
drawings of new parts and tools to scale from predeter-
mined specifications. He is the only draftsman in the plant
and obviously is not a professional employee. Although
there is reference in the record to the possibility that
Respondent employed others, referred to as technicians,
who may not have participated in the election, the evidence
in this respect was extremely vague and, as far as can be
determined from the record, Lowry is the only identified,
nonprofessional, nonclerical rank-and-file employee in the
plant. In my opinion, his community of interest with
employees in the appropriate unit is inherently stronger
than with the aforementioned unrepresented categories,
and to deny him eligibility might well be to deny him the
opportunity for union representation. Accordingly Lowry is
found eligible to vote and the challenge to his ballot is
overruled.
In conclusion, as challenges to the ballots of employees
listed below have been overruled, it shall be recommended
that these determinative ballots be opened and counted by
the Regional Director for Region 16, that a revised tally be
furnished the parties, and that an appropriate certification
be issued.
Sonya Brown
Sally Buck
Saloma Gates
Iglome (Ann) Hickey
Mary Hutchison
Gladys Martin
Jesse C. Parker
Lena Parker
Doris Sanders
Darlene Webster
Wanda Wyrick
Anna Dean
Karen Grisby
Phillis Harwell
Hellen Haefs
Gwendolyn Jarrett
Melba Mitchell
Marie Pallett
Linda Warren
Pam Weaver
Vera Westbrook
Leona Mullins
Janie Rush
Lucille Stinson
Christine Holland
Peggy Gibson
Linda Kaulaity
Bill Lowry
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. The Charging Party Petitioner is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging and refusing to reinstate the employ-
ees named below on or about February 16 in order to
31 Roy N Lotspelch Publishing Co., 204 NLRB 517 (1973 ), General Tube
Co, 141 NLRB 411 ( 1963), enfd . 331 F2d 751 (CA 6, 1964); Personal
Products Corporation, 114 NLRB 959 (1955)
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discourage membership in the Union,
violated Section 8(a)(3) of the Act:
Wanda Wyrick
Gladys Martin
Jess Parker
Shirley Lambert
Elbie Wynn
Liz Nailon
Doris Sanders
Sally Buck
Mary Thomas
Darlene Webster
Respondent has
Ann Hickey
Lena Parker
Soloma Gates
Pat Ruckman
Mary Hutchison
Barbara Maness
Sonya Brown
Velma Houston
Vivian Raleigh
4. Respondent violated Section 8(a)(1) of the Act by
surveillance of a union meeting, by maintaining an
unlawfully broad no-solicitation rule, by coercively interro-
gating employees concerning union activity, and by
threatening to obtain a list of union supporters for use in
connection with a layoff.
5. Respondent did not violate Section 8(a)(3) and (1) of
the Act by discharging Marge Peterson on February 16,
1976, and discharging Hoye L. Morris on March 3, 1976.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
laid off the 19 employees named above and thereafter
refused to reinstate them in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that Respondent be
ordered to offer them reinstatement to their former
positions or, if not available, to substantially equivalent
positions, without loss of seniority and other privileges, and
to make them whole for any loss of pay resulting from the
discrimination by payment to each a sum of money equal
to the amount they normally would have earned as wages
from the date of their discharge to the date of a bona fide
offer of reinstatement, less net earnings during that period.
Backpay shall be computed on a quarterly basis in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and shall include interest at 6 percent per
annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
The discriminatory discharges strike at the heart of the
rights guaranteed by the Act and, accordingly, a broad
order shall be recommended directing Respondent to cease
and desist from in any other manner interfering with,
coercing, or restraining employees in the exercise of their
statutory rights.
32 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herem 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.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER32
The Respondent, Computed Time Corporation, Arling-
ton, Texas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining a rule which precludes employees from
soliciting on behalf of a labor organization during their
nonworking time.
(b) Maintaining surveillance of union activity.
(c) Coercively interrogating employees concerning their
own union activity and that of fellow employees.
(d) Threatening to obtain a list of union supporters and
implying that such a list might be used in effecting a layoff.
(e) Discouraging membership in a labor organization by
discharging, laying off, or in any other manner discriminat-
ing against employees because they joined or supported a
labor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Offer the employees listed below immediate and full
reinstatement to their former jobs or, if these positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for lost earnings in the manner set
forth in the section of this Decision entitled "The
Remedy."
Wanda Wyrick
Gladys Martin
Jess Parker
Shirley Lambert
Elbie Wynn
Liz Nailon
Doris Sanders
Sally Buck
Mary Thomas
Ann Hickey
Lena Parker
Soloma Gates
Pat Ruckman
Mary Hutchison
Barbara Maness
Sonya Brown
Velma Houston
Vivian Raleigh
Darlene Webster
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its Arlington, Texas, plant copies of the
attached notice marked "Appendix." 33 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondent's
33 In the event the Board 's Order is enforced by a Judgment of the
Umted States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
COMPUTED TIME CORP. 1253
authorized representative , shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced , or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 16-RC-7138 be
severed and remanded to the Regional Director for Region
16 for the purpose of opening ballots of voters whose
challenges have been overruled and, thereafter , to issue a
revised tally of ballots to the parties and the appropriate
certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
give evidence , the National Labor Relations Board has
found that we violated the National Labor Relations Act,
as amended , and has ordered us to post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that restrains or coerces
you with respect to these rights.
WE WILL NOT lay off, discharge, or in any other
manner discriminate against employees for joining or
supporting International Association of Machinists and
Aerospace Workers , AFL-CIO, or any other labor
organization.
WE WILL NOT maintain a rule prohibiting you from
engaging in solicitation on behalf of any labor organi-
zation during your nonworking time.
WE WILL NOT threaten to obtain a list of union
supporters for the purpose of taking adverse action
against union sympathizers.
WE WILL NOT interrogate our employees concerning
their union activities or the union activities of other
employees.
WE WILL offer full reinstatement to the employees
listed below and give them backpay , plus 6-percent
interest.
Wanda Wyrick
Gladys Martin
Jess Parker
Shirley Lambert
Elbie Wynn
Liz Nailon
Doris Sanders
Sally Buck
Mary Thomas
Ann Hickey
Lena Parker
Soloma Gates
Pat Ruckman
Mary Hutchison
Barbara Maness
Sonya Brown
Velma Houston
Vivian Raleigh
Darlene Webster
COMPUTED TIME,
CORPORATION