K & S Circuits, Inc.

National Labor Relations Board - Board Decisions

May 4, 1981

255 N.L.R.B. 1270 (N.L.R.B. 1981)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K & S Circuits, Inc. and P.C.B. Workers Local
Union and Elmer King
K & S Circuits, Inc. and/or K & S Circuit Products,
Inc. and/or D-K Sales and Services, Inc. and
P.C.B. Workers Local Union. Cases 9-CA-
11799, 9-CA-12652, 9-CA-12779-2, 9-CA-
13927, 9-CA- 12779-1, and 9-CA-13462
May 4, 1981
DECISION AND ORDER
On June 27, 1980, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge to the extent consistent herewith and to
adopt his recommended Order as modified herein.
The General Counsel excepted, inter alia, to the
Administrative Law Judge's dismissal of allegations
that Georganna Price and Judith Weber were con-
structively discharged by Respondent. We find
merit in the exceptions relating to these employees.
In finding that Price and Weber were not con-
structively discharged, the Administrative Law
Judge relied on the fact that neither of the employ-
ees informed Respondent that they were quitting
their jobs because of the unfair working conditions
to which they were subjected. Therefore, relying
on Unimet Corporation, 172 NLRB 1762 (1968), the
Administrative Law Judge determined that they
were not constructively discharged. However, we
find Unimet distinguishable on its facts, and not
controlling in the circumstances presented here.
In Unimet, prounion employee Asbell was trans-
ferred from the second shift to the first shift,
whereupon she did not return to work. Although
Asbell twice objected to the transfer, she did agree
to work on the first shift. Also, although Asbell
had been on the same shift for the 2-1/2 months
she was employed, the transfer of employees from
one shift to another was a common occurrence and
not indicative of an onerous working condition in
itself. Therefore, because of Asbell's acquiesence,
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 Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Chairman Fanning would not find that Respondent has a bargaining
obligation dating from September 25, 1977, as there was at that time no
demand made by the Union. See his dissent in Beasley Energy. Inc.. d/b/a
Peaker Run Coal Company. Ohio Division #1, 228 NLRB 93, 97 (1977).
255 NLRB No. 163
although reluctant, the Administrative Law Judge
found the evidence insufficient to make a determi-
nation that she could not have prevailed in getting
the respondent to rescind its transfer order, and in-
sufficient to show that she was constructively dis-
charged.
In this case, Price and Weber were both dis-
charged on October 3, 1977, with other employees,
because of Respondent's intent to destroy the
Union's organizational efforts. They were both re-
called in March 1978, and thereafter subjected to
the onerous working conditions imposed on all of
the recalled employees who had signed union au-
thorization cards. These conditions, found violative
of the Act by the Administrative Law Judge, in-
cluded assignment to a newly formed third shift;
isolation from other employees; being required to
file as new applicants for work; working without
stools at their workplace; being subjected to a
newly installed written warning system; and losing
overtime and having their regular hours of work
reduced. In addition, both employees were given
different lunch periods from other employees.
Price was ridiculed for inability to perform unfa-
miliar job functions, and Weber was subjected to
interrogation by her supervisor, the wife of Re-
spondent's owner, as to union matters.
Both employees credibly testified that the reason
they left their employment was because of the con-
ditions under which they were forced to work, re-
gardless of the fact that they failed to or chose not
to inform Respondent of this reason. To establish a
constructive discharge, it must be proven that the
burdens upon the employee must cause, and be in-
tended to cause, a change in working conditions so
difficult or unpleasant as to force him to resign. It
also must be shown that these burdens were im-
posed because of the employees' union activities.3
In this case, the activities of Respondent following
the March recall of unlawfully discharged employ-
ees clearly show that such burdens were placed
upon the employees, and are found herein to be
unfair labor practices in themselves. Further, it is
clearly shown in the record that such actions re-
sulted from the employees' union activities. In ad-
dition, the statement by Supervisor Cheryl (Kneis-
ley) Brummerstedt to Supervisor Myers, acknowl-
edging that the recalled employees were being put
on jobs they probably could not do and, if they
could not, Respondent could not keep them, shows
that Respondent's actions were meant to either
supply a reason for discharge of the employees or
force them to leave.
3 Crystal Princeton Refining Company, 222 NLRB 1068 (1976).
- - - - ---
K & S CIRCUITS. INC. 1271
In all the circumstances, we find that Price and
Weber resigned from their jobs because of Re-
spondent's discriminatory treatment, and they were
constructively discharged.
Although we have found that the failure to
inform the Employer here of the reason for quit-
ting does not preclude a finding that Price and
Weber were constructively discharged, we agree
with the Administrative Law Judge that the record
is insufficient to support a finding that employees
Harleman, Salyers, or Meyer resigned because of
the onerous working conditions, and thus no con-
structive discharge is shown in their cases.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
K & S Circuits, Inc., K & S Circuit Products, Inc.,
and D-K Sales and Services, Inc., Phillipsburg,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Delete the names Georganna Price and Judith
Weber from paragraph 2(b).
2. Substitute the following for paragraph 2(c):
"(c) Offer Georganna Price, Judith Weber, Ellen
Rue, and Anne Roberts immediate and full rein-
statement to the jobs they held before October 3,
1977, and Shirley Horn the job she held before
April 13, 1978, or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any
loss of earnings they may have suffered because of
their discharges on October 3, 1977, and the subse-
quent discharge of Horn and constructive dis-
charges of Price, Weber, Rue, and Roberts, plus in-
terest."
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: This
case was heard before me on 11 different dates between
September 17 and October 19, 1979. The charge in Case
9-CA-11799 was filed on October 6, 1977, by P.C.B.'
Workers Local Union (herein called the Union), against
Respondent, K & S Circuits, Inc.2 The original charge in
'This is an abbreviation for "Printed Circuit Board."
2 As discussed herein, two other corporations. K & S Circuit Products
and D-K Sales and Services, Inc., were formed in June 1978 by the sole
owner of K & S Circuits Inc., Daniel E. Kneisley. The singular term
"Respondent" is used herein to denote only K & S Circuits, Inc. unless
there is a necessity for expressly distinguishing it from the other entities
in which case it will be referred to as "Respondent Circuits."
Union on June 15, 1978. The original charge in Case 9-
CA-12779-1 was filed against Respondent by Elmer
King, an individual, on July 20, 1978. The original
charge in Case 9-CA-12779-2 was filed against Re-
spondent by the Union on July 21, 1978. The charge in
Case 9-CA-13462 was filed against Respondent Circuits
and K & S Circuit Products, Inc. (herein called Re-
spondent Products), and Respondent D-K Sales and
Services, Inc. (herein called Respondent D-K), by the
Union on February 2, 1979. The charge in Case 9-CA-
13927 was filed against Respondent Circuits by the
Union on May 31, 1979. Upon these charges, complaints
issued against all three Respondents alleging various vio-
lations of Section 8(a)(1), (3), and (5) of the Act by Re-
spondent and further alleging that the three Respondents
have been a single employer since on or about June 23,
1978. The said complaints were further amended in var-
ious respects at the hearing. Respondents duly filed an-
swers to all these complaints, which were consolidated
for purposes of hearing, admitting jurisdiction of Re-
spondent Circuits but denying the commerce allegations
relating to Respondent D-K and Respondent Products
and further denying that the three entities have been a
single employer. The answer further admits to supervi-
sory status, within Section 2(11) of the Act, of Daniel
Kneisley (president of all three Respondents), and of
Wally Smock (vice president and plant manager of Re-
spondent Circuits and officer of Respondent D-K), and
of Cheryl Brummerstedt3 and Michael Kneisley (both
supervisors of Respondent Circuits).
4 The answer denies
that other individuals named in the complaint were statu-
tory supervisors and further denies the commission of
any unfair labor practices. The General Counsel and Re-
spondent filed briefs which have been carefully consid-
ered.
Upon the entire record and from my observations of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS AND JOINT
EMPLOYER ALLEGATION
Respondent Circuits admits that it is an Ohio corpora-
tion engaged in the manufacture and sale of printed cir-
cuit boards and related products at its Phillipsburg, Ohio,
facility and that, during the 12 months preceding issu-
ance of the amended consolidated complaint, Respondent
Circuits sold and shipped goods and materials valued in
excess of $50,000 from said facility directly to points out-
side the State of Ohio. Respondents admit that Respond-
ent Products and Respondent D-K are Ohio corporations
but deny any of the three corporations are engaged in
commerce.
Since it is admitted that Respondent Circuits meets the
Board's discretionary standards, as well as the statutory
I The complaint and answer refer to Cheryl Brummerstedt as "Cheryl
Kneisley." The individual referred to. until sometime after the events of
this case, but before the date of th. hearing, was the wife of Daniel E.
Kneisley.
4 All references to "Kneisley" are Daniel E. Kneisley unless "Michael
Kneisley" is specified or it is immediately obvious from the context that
Michael Kneisley is intended.
K & S CIRCUITS. INC.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requisites, it is clear that that entity is an employer
within the meaning of Section 2(2) of the Act and is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent Circuits has existed since 1976 when it
was formed by its sole owner, Daniel Kneisley. In June
1968, Respondent Products and Respondent D-K were
created by Kneisley who is the sole shareholder and the
president of each. Respondent Products and Respondent
D-K are housed in buildings which are one-half mile
from each other and about a mile and a half from Re-
spondent Circuits. Respondent D-K employs six produc-
tion employees and Respondent Products employs four.
When Respondent Products was created, Stephen
Stump, maintenance supervisor for Respondent Circuits,
became a supervisor of Respondent Products. Wally
Smock, who was a supervisor at Respondent Circuits,
became a supervisor at Respondent D-K. Just what posi-
tions Stump and Smock held in the newly created corpo-
rations is a matter of some confusion. When asked what
position he held with Respondent Products, Stump re-
plied, "vice president and general manager." There is no
evidence that Stump was ever told that he was also the
treasurer of the corporation and Kneisley himself was
not aware of that fact until incorporation papers were
shown to him at hearing. When asked what position he
held at Respondent D-K, Smock replied only, "general
manager." If Smock was aware that the incorporation
papers listed him as vice president and treasurer or that
he, in fact, held those positions, there is no evidence of it
in the record. In sum, I find the assignment of new titles
to Stump and Smock to be a sham. But, at any rate,
since both admit to being "general"5 managers and both
are supervisors at Respondent Circuits,6 the General
Counsel has proved common supervision among the
three corporations. But more importantly, common su-
pervision and control is made up by the fact that Daniel
Kneisley, as sole owner and president, cannot be consid-
ered merely a potential force in the management of the
corporations. The only incident of actual control exer-
cised by Kneisley in the record is that he passed upon
initial wage rates of the employees of the two corpora-
tions. However, it strains credibility too much to believe
that the creator and 100-percent owner and president of
corporations which only employ four to six employees
possesses only "potential" control. See Remke Central
Division, Inc., and Kinnaird Body Works, Inc., 227 NLRB
1969 (1977). I find Kneisley's protestations that he had
nothing to do with the actual day-to-day control of Re-
spondent Products and Respondent D-K to be incredible
and I find that he has exercised actual control of the two
s There is no evidence of any managers subordinate to either Smock or
Stump at either Respondent D-K or Respondent Products.
I When asked where Smock was employed, Kneisley replied "D-K
Sales and Service." Kneisley further testified that Smock spent all his
working time there. However, the amended consolidated complaint al-
leges that Smock was employed as a supervisor by all three Respondents
at all relevant times (and it states as one relevant time the point at which
the three corporations were formed) and this allegation was admitted.
Moreover, on a hearing day which convened at the premises of Respond-
ent Circuits, Smock was asked by Respondent's counsel, "Mr. Smock.
how long have you heen employed here at K & S Circuits. please."
Smock replied. "About two and a half years."
corporations. Additional relevant considerations are the
facts that Respondent Circuits maintains all the personnel
files of the three corporations at its office and the three
corporations hold themselves out to the public as an inte-
grated enterprise, at least to the extent of using bills with
a common format and listing same address and telephone
number which is that of Respondent Circuits.
The three corporations constitute a completely inte-
grated enterprise. Respondent Circuits sells completed
printed circuit boards and the production process is one
which, until the events of this case, was performed under
one roof. While Respondent D-K and Respondent Prod-
ucts, at the time of the hearing, had some of their own
customers, for the most part Respondent Circuits takes
the orders for boards, performs various production func-
tions, and sends them to Respondent Products and Re-
spondent D-K for other steps in production processes
with the same machinery that was once used when the
entire operation was only at one physical facility. Re-
spondent Circuits receives the products back and ships
them to customers of all three corporations.
When the corporations were created, employee Idella
Stukins transferred to Respondent Products. In addition,
three supervisors (Elaine Smith, Mike McManoway, and
Jane Baker) and employees Doris Jamison, Gary Collins,
and Junior Stump (father of Steven Stump) transferred
from Respondent Circuits to Respondent D-K Sales.
Upon the totality of these factors, I find and conclude
that Respondents are a joint or single enterprise and a
single employer within the meaning of Section 2(2) of
the Act and, as a joint enterprise, are engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent denies that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act. How-
ever, there was undisputed, credible testimony that the
Union is composed of employees and was formed for the
purpose of dealing with Respondent in regard to wages,
hours, and terms and conditions of employment. More-
over, Respondent did, for a time, bargain with the
Charging Party for precisely such purposes; furthermore,
Respondent claims, in defense to the surface bargaining
allegation discussed infra, that it stands ready to continue
such bargaining. Therefore, it is manifest that the Union
is a labor organization within the meaning of Section
2(5) of the Act and I so find and conclude.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The principal issues in this case revolve around a self-
organizational attempt by the employees of Respondent
which began about September 21, 1977,' layoffs of 7 of
Respondent's employees on September 26, and layoffs of
28 employees on October 3. Other allegations are orient-
ed in the refusal to recall some employees; subsequent
recall and discharges (and alleged constructive dis-
charges) of other of the laid-off employees; other alleged
I All dates hereinafter are between September 21. 1977, and September
15. 1978. unless otherwise specified.
K & S CIRCUITS, INC. 1273
discriminatory actions taken against the recalled employ-
ees; discharge of an employee who had not been laid off;
an alleged refusal to recognize the Union dating from
September 26; a surface bargaining allegation which
dates from March 15; and various other alleged viola-
tions of Section 8(a)(1), (3), and (5) by Respondent.
A. Background
1. General production process
The business of Respondent is to produce printed cir-
cuit boards for all phases of the electronics industry.
Roughly, the production process is as follows: The cir-
cuit boards, at least those which were discussed at the
hearing, are about 12 by 14 inches, are basically made of
two sheets of fiberglass epoxy which are laminated to
very thin sheets of copper. The copper core is purchased
in stock sheets about 4 feet square which are cut to size
on a shear. Afterwards the boards are treated so as to
produce circuitry, designed pursuant to customer-sup-
plied artwork. Respondent's photographic department
takes pictures of the artwork and develops it as a print
for each board. From these films, Respondent's program-
ming department makes computer tapes for automated
drills. The drills produce holes in which conductors are
ultimately placed by the customer. After drilling the
boards are sent through a deburring machine which is
conveyorized scrubber. The boards are placed in one end
of the deburrer and go through scrubbing brushes
(which are composed of nylon-impregnated bristles)
which eliminate burrs left in and around the holes during
drilling as well as clean the surface of the boards. The
boards are then sent to electrolysis which consists of a
series of tanks containing various fluids. The boards are
dipped in one tank after another for the purpose of coat-
ing the insides of holes with metal so that there is a con-
ductive surface, as opposed to the fiberglass epoxy inside
each hole between the surface and the copper core. The
boards are then coated with a photosensitive polymer, a
very thin photographic film which is placed on the
board and exposed much in the manner that ordinary
pictures are developed. The image produced is a positive
image of what the board should look like. The circuitry
is protected by application of hot solder on the Gyrex
machine. A tin-lead plating is placed over the desired
pattern and then the board is sent through an etcher, a
device to brush away all unprotected copper leaving the
printed circuit pattern. The boards are then sent to gold
plating for the purpose of attaching connecters. Then
any nomenclature is placed on the board; the board is
machined to specified size by customer blueprint; then it
is sent to final inspection before shipment to the custom-
er.
2. Labor relations history
Daniel Kneisley began the operation in 1966 working
by himself. He added one or two employees at a time
until the business had steadily grown, at the time of the
events of this case, to a total personnel complement of
about 60 employees and supervisors.
Before the events of this case, according to Kneisley,
Respondent never had a multi-employee layoff. On May
20, 1977, Smock did send a memorandum to various su-
pervisors stating that as of that date "K & S Circuits is
placed on a hiring freeze. No additional salary or hourly
people will be put on the payroll until further notice.
Any replacement must be approved by Dan Kneisley."
Despite the effect of the memorandum, the following
employees were hired after the announced freeze: Mi-
chael Rike, Kurt Hefelfinger, Barbara Moffatt, Carl Ho-
facker, Lois Seabold, Elaine Kenworthy, Larry Magness,
Gordon McCray, and Judy Weber. Magness and
McCray were hired for maintenance; Rosemary Smock
was hired for the production control office. All the
others were hired for production between the date of the
announcement and the layoff of September 26.
In addition to having no previous layoffs, several em-
ployees and admitted Supervisor Cheryl Brummerstedt
testified that, in the past, rather than send employees
home when work was slack, Respondent gave them
cleanup duty or other work to keep them busy until
shifts end.
There is no evidence of an organizational attempt by
Respondent's employees prior to the events of this case.
Paul R. Hirby, who was employed by Respondent as a
supervisor in the machine shop in 1973, testified that that
year Daniel Kneisley made a statement to him that "he
would never hire a nigger or have a union. He would
close the doors first." Hirby further testified that 6 or 7
months before the events of this case, at a time when
Hirby was not a supervisor, Kneisley repeated the state-
ment to him, only using the term "a black" at that time.
Kneisley testified that he could not remember having
made any such statements. I credit Hirby. Kneisley's
statement of inability to remember such a remark cannot
be credited as a denial. Moreover, the only logical expla-
nation for inability to remember this remark is that
Kneisley had made it so routinely that a particular in-
stance thereof had been lost in memory.8
There was further credible testimony by former em-
ployee Roberta Pike that group leader Donna Lovejoy
had, before September 26, stated that Kneisley had made
a similar statement to her. Lovejoy's status as a supervi-
sor or agent when the alleged remark was made was
denied by Respondent. There is no competent evidence
that (before March 15, 1978, as discussed infra) Lovejoy
possessed any of the authorities enumerated by Section
2(11) of the Act. Specifically, contrary to the General
Counsel's assertions, there is no evidence that she was re-
quired to exercise any degree of discretion in functioning
as a group leader over the employees herein who were
performing work which was routine and required little
skill. Accordingly, since there is no other basis asserted
for binding Respondent with Lovejoy's remarks at the
time indicated by Pike, I have not considered Pike's tes-
timony on this point.
s I fully appreciate that Kneisley is not personally on trial and, specifi-
cally. he is not on trial for his attitude toward blacks or. for that matter.
unions. However. the testimony is relevant in demonstrating animus to-
wards the exercise by his employees of their Sec. 7 rights.
K & S CIRCUITS, INC. 3
_ . _ . . _ .
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Chronology of the Case and Allegations
1. The September 21 meeting and knowledge
thereof
In mid-September 1977, the employees of Respondent
began discussing the possibility of creating a labor orga-
nization. Employees Nelda Morris, Paul Hirby, and Mar-
lene Victor contacted Attorney Richard Hole who prac-
ticed in a small town near the plant. On September 21,
the employees gathered at a meeting hall in the commu-
nity of Gordon, Ohio. Hole passed out slips of paper
which designated "P.C.B. Workers Local Union" as bar-
gaining agent to enter into collective bargaining with K
& S Circuits, Inc., Phillipsburg, Ohio. Received in evi-
dence were 30 authorization cards. The cards, as I call
them, have no blank to indicate date; 28 of the cards
bear the unobliterated marking "9-21-77," and Hole tes-
tified that any card which bore the date was signed at
the initial meeting and dated by himself. The card of
Patty Price is dated "9-22-77" after a "9-21-77" mark-
ing is crossed out. Hole testified that Price signed the
card on September 22, and Price confirmed that she did
sign it in the week following the September 21 meeting
which she did not attend because she worked the second
shift. Employee Michael Wolfenbarger did not attend the
meeting either, but his card also bears the marking "9-
21-77." Wolfenbarger, when confronted with the card,
testified that, although he signed the card on September
22, he, in fact, dated the card "9-21-77" because he was
so instructed by someone whom he was not asked to
name.
Respondent's counsel properly requested a writing
demonstration from Wolfenbarger. Although it is admit-
tedly scant evidence to attempt a handwriting analysis
from a simple marking of three numbers, it is clear to me
that the "9-21-77" marking on Wolfenbarger's card was
not made by Wolfenbarger. While these factors render
suspect the credibility of Hole and Wolfenbarger on the
specific point of when and how Wolfenbarger's card was
dated, and it renders further suspect the testimony of
Hole about just when Price's card was actually dated, I
find upon the basis of the credible testimony of the two
employees that they did, in fact, sign the card before the
layoff of September 26. Only I of the 30 cards placed in
evidence was signed after the layoffs, that of employee
Judy Weber who signed her card within a few weeks
following the layoff of October 3.
During the evening of September 21, second-shift em-
ployee Patty Price, who was one of four employees
working with group leader Jane Baker on that shift, ap-
proached Baker. Price told Baker that there would be a
union meeting that night. Price testified that Baker told
her that she should tell this to Kneisley. Price and Baker
approached Kneisley. Price's testimony regarding the ex-
change with Kneisley is severely limited. She testified
that she stated to Kneisley that she was not sure if she
should join the Union and asked if she would have a job
if she did so. She testified that Kneisley replied: "it was
up to me to decide whether I wanted to join it or not."
Price did not actually testify that she told Kneisley that
there was a meeting that night. On cross-examination
Price testified that Kneisley stated "he thought it would
probably go to a non-union." In view of this fact, it is
plain that some collective action was announced to and
comprehended by Kneisley. Kneisley testified that all he
could recall about Patty Price approaching him was that
it was after the layoff of September 26, and that Price
expressed concern about the job security of her boy-
friend who was also employed by Respondent, and that
he replied "that each person could do what they wanted
to." Baker, a current supervisor, called as a witness by
Respondent, also testified that the information from Price
was conveyed between the layoffs. I discredit Kneisley
and Baker on this point. Price was certain that the ex-
change occurred the night of the first union meeting, and
there was a dramatic demonstration at the hearing of
Kneisley's lack of candor on the point of just when he
first became aware of any union activity. At the begin-
ning of the hearing, the General Counsel called Kneisley
for examination pursuant to the Federal Rules of Evi-
dence, Rule 611(c), 28 U.S.C.A. The General Counsel,
after examination about other matters, asked Kneisley
this pivotal question in this case. Kneisley, rather than
answering, paused and plainly looked at his attorney for
a signal. To his credit, the attorney did no more than
give a shrugging motion and wave of his hand, but it
was clear that Kneisley was looking for help on the
issue. I was forced to admonish Kneisley on the record
that the testimony he was to give was only his own.
Therefore, on this specific issue, I would discredit Kneis-
ley on his demeanor alone.9 However, there is the addi-
tional testimony of Cheryl Brummerstedt, Kneisley's
wife at the time, who was then working in the produc-
tion control office, and, as admitted by the answer, was a
supervisor under Section 2(11) of the Act.10 Brummer-
stedt testified that, 4 or 5 days before the September 26
layoff, she was present in the office with Personnel Offi-
cer Jim Thompson and Pam Deisher. According to
Brummerstedt:
Jim and Pam and I were in there, just kind of goof-
ing around and Dan came in and sat down at my
desk and said, "Well, do you know what they are
doing now?" And, you know, we said no. And he
said, "Well," he said, "I just heard that they're
forming a union and having a union meeting tonight
in Gordon."
. . . He said that Jane Baker came in when she got
to work and told him that one of the girls that
worked for her told her about the meeting.
Brummerstedt named "the girl" as Patty Price. Kneisley,
when asked about this testimony by his attorney, stated
that he could not remember such an event having hap-
pened. The first knowledge, and the reporting of first
9 Also to discredit Kneisley on this point is the fact that at another
point in the hearing he testified that knowledge of union activity came in
mid-October and, as just noted, he also inconsistently placed the revela-
tion between the layoffs of September 26 and October 3.
'o Even without such admission, Brummerstedt, as Kneisley's wife at
the time, was in a unique position of confidence with Kneisley and her
testimony about his statements and actions is corroborated by abundant
evidence as discussed herein, and is plainly admissible. See RJR Commu-
nications. Inc., 248 NLRB 920 (1980), and cases cited therein.
K & S CIRCUITS. INC. 1275
knowledge of union activity, would assuredly be indeli-
bly inscribed on the memory of any employer such as
Kneisley who had created his own business; and it would
certainly be remembered by one to whom labor organi-
zations constitute the anathema they are to Kneisley, as
revealed by the credited testimony of Hirby. That is, if
the testimony of Brummerstedt were untrue, Kneisley
would have unequivocally denied it. Accordingly, to the
extent Kneisley's claimed inability to remember the
report to Brummerstedt, Thompson, and Deisher was in-
tended to constitute a denial of Brummerstedt's testimo-
ny, it is discredited. I find, as credibly testified by
Brummerstedt, that Kneisley knew the night of the first
union meeting, September 21, that the employees were
attempting to form a labor organization.
Brummerstedt further testified that, at sometime be-
tween September 21 and the September 26 layoff, she
and Kneisley went through a list of employees to select
seven for layoff. In describing the process, Brummerstedt
testified, "Well, the first three we determined were the
three that Dan felt were the most active in the union
. . . Nelda, Paul, and Delmar," whom she identified as
Nelda Morris, Paul Hirby, and Delmar Lawson. Brum-
merstedt testified that she and Kneisley did not discuss
the relevant merit of the employees' working abilities.
They additionally selected other employees. Brummer-
stedt was asked upon what basis and she testified thusly:
Q. Did you select anyone else to be discharged?
A. There was a girl in the print room, but I don't
remember her name, she had only been there for
like a month.
Q. Who selected her for layoff?
A. That was basically-a mutual agreement. I
mean we both thought that was a good idea.
Q. Any particular reason?
A. Mostly because she had only been there a
short time.
Q. You didn't know at the time of selection
whether or not she was a member of the union, did
you?
A. No.
Q. Anyone else for layoff on that first time?
A. Well, I know that there was more, but I don't
remember.
Q. You don't remember whether you discussed
whether they were capable of working well on the
job, or anything like that?
A. We might have gone over their work record,
but that was not what we were going by.
Q. Why would you go over their work record if
it wasn't what you were going by?
A. Because Dan knew that was going to be ques-
tioned and he wanted to figure out a legitimate
reason.
Q. Did he tell you that?
A. Yes.
Q. How did he say it?
' Also relevant in this conclusion is the fact that Respondent called
neither Deisher nor Thompson to testify. Presumably, if their testimony
on this critical point would have been favorable. Respondent would have
done so.
A. He said, "Well, we have to think of something
to use."
Q. What was your response?
A. I agreed with him.
Q. But you personally didn't select anyone on the
first discharge, did you?
A. I might have-but like I say, I can't remember
the people so-you know.
Kneisley generally denied that Brummerstedt helped him
to decide whom to select for the September 26 layoff,
but he denied none of the just-quoted remarks attributed
to him. Brummerstedt was by far the more believable
witness, and I specifically credit all of her foregoing tes-
timony.
Virginia Myers was employed by Respondent for 9
years before the layoffs herein. For the last 6 years of
her employment she was a supervisor 2 in the inspection
department having up to six employees reporting to her,
although at the time of the layoffs herein, she had only
one employee reporting to her, Orpha Mast, an inspec-
tor. Myers, called on behalf of the General Counsel, tes-
tified that during the week before the layoffs she had a
discussion with Brummerstedt in which Brummerstedt
told her that Jane Baker had told Daniel Kneisley that a
union was being formed among the employees and asked
if employees' working with her mentioned a union. Ac-
cording to Myers, Brummerstedt told her that there was
an impending layoff "because they learned that there was
going to be a union," and that the employees would be
told that they were being laid off "because of the EPA
and because of lack of work." Myers testified that after
this conversation she went into the work area and asked
Mast and Waltz if they knew anything about the Union
and they replied negatively. Myers testified that she re-
ported this information back to Brummerstedt. This testi-
mony of Myers is undenied, and I credit it.
During the evening of Sunday, September 25, Meyers
called her nephew, Michael Wolfenbarger, who at the
time had heen employed by Respondent as a production
employee in the photography department for a total of
about 2-1/2 years. According to Wolfenbarger, Myers
"said that she had talked to Cheryl and Cheryl said that
Dan had found out about the meeting. He had a list of
all the names and there was going to be a layoff of all
the people that attended the meeting." This testimony,
which I credit, is essentially substantiated by Myers;
however, Myers did not mention "a list" in her testimo-
ny.
2. Layoff of September 26, 1977
On Monday, September 26, the following employees
were laid off: Paul Hirby, Nelda Morris, Jack Harleman,
Curt Hefelfinger, Della Hine, Julia Ann Pultz (nee Sand-
ers), and Lois Seabold.' 4 All of these employees attend-
12 That Myers was a supervisor within the meaning of Sec. 2(11) of
the Act at all material times herein is not really in dispute. Although the
answer formally denies this allegation of the complaint. Respondents
brief acknowledges that she was a supervisor.
:' Although not an inspector. employee Betty Waltz worked in the
same area as Myers.
'' Neither Seabold nor Hefelfinger testified.
K & S CIRCUITS. INC
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union meeting, although there is no direct evidence of
Respondent's knowledge of the fact.
Employee Nelda Morris had been employed by Re-
spondent since April 1972 when on September 26 she
was approached at approximately 10 a.m. by Elaine
Smith, supervisor of the machine shop. Morris credibly
testified that Smith had tears in her eyes and said, "All I
know is that I'm told to lay you off.... the only reason
they've given me is lack of work .... I was over there
for the last half hour arguing with management to let me
keep you and lay some other less seniority [sic] person
off. ... they said I have to lay off these certain people."
Smith told Morris that she would be paid the entire day's
pay. Morris further credibly testified that on that day
there were racks in her area which were filled with
boards which were ready to be drilled by her.
Employee Paul Hirby, also a machine shop employee,
was laid off by Smith at noon. Hirby testified that Smith
"said it was termination and lack of work. I was being
terminated because my job was no longer necessary, and
that there was a lack of work." Hirby also described
stacks of boards ready for drilling that were in the ma-
chine shop area at the time of his layoff.
Machine shop employee Jack Harleman was laid off
by Elaine Smith at noon. Harelman, as Morris, described
Smith as in tears. According to Harelman, Smith told
him that he was being laid off because of "lack of work"
but that he would be paid for the remainder of the day.
None of this testimony regarding Smith's statements to
the employees, or her lachrymose condition, was denied
by Smith, who was called by Respondent.
Employee Della Mae Hine testified that at the time of
the layoff she had been employed by Respondent since
1974. She worked in the gold room under Supervisor
Lee McNutt.' 5 Hine testified that McNutt called her
into her office at 8:30 a.m. September 26 and told her
that she was being laid off for lack of work. McNutt es-
corted Hine to the timeclock and, on the way, Hine
asked McNutt "if I was being laid off because of the
Union." McNutt would not answer her. Hine testified
that, during the week before the layoff, McNutt told her
that she could have 10 or 20 hours of overtime if she
wanted because there was so much work to be done. In
fact, Hine worked 8.9 hours overtime the week during
September 15, and 6.6 the week ending September 22.
Julia Sanders Fultz testified that she had been em-
ployed by Respondent since August 1976 when she was
laid off on September 26, at which time she was em-
ployed in the reflow department under the supervision of
McNutt. She testified that, after she went to work on
September 26, McNutt called her into her office and told
her that "he hated to lay me off but due to lack of work
that I was laid off." When asked if there was any further
conversation Fultz replied, "He told me that we both
knew the real reason as to why I was being laid off."
Fultz further testified that in her department she had
been working by herself that week and that, not only
was there plenty to do, but work had backed up. Fultz
worked 5.5 and 2.2 hours overtime the 2 weeks before
this layoff.
Is McNutt was stipulated to be a supervisor within the meaning of
Sec. 2(11) of the Act.
Employee Ola Davis testified that on the date Fultz
was laid off she approached McNutt and "I asked Lee
why she [Fultz] was laid off, and he told me that he had
a list of names, a list of people that he had to lay off, and
he said he didn't have any other choice. That he had to
lay them off, but he really didn't want to do it .... I
asked him why she was laid off and he said, you know
why she was laid off, and I know why she was laid off
.... He also told me that they thought he had some-
thing to do with what was going on."
This testimony by Hine, Fultz, and Davis was credi-
ble. Also noteworthy is the fact that Respondent did not
call McNutt or explain its failure to do so. Presumably, if
it had done so, his testimony would have been unfavor-
able to Respondent.
About a week before the layoff of September 26, ac-
cording to the undisputed testimony of former employee
Judy Ann Hall, she overheard Brummerstedt telling Su-
pervisor Pat Haworth that she was upset because Daniel
Kneisley was promising jobs and possible due dates
which could not be met because there were several jobs
then in the shop which were overdue.
On the afternoon of September 26, Respondent posted
a notice to all employees naming the seven employees
who were laid off stating the only reason as "lack of
work."
3. Alleged demands for recognition
Union Attorney Hole testified that, on September 26,
he sent, by regular mail, a formal letter to Kneisley de-
manding recognition of the Union, and the letter was
never returned. Kneisley denied receipt of the letter by
Respondent. While there is a common law presumption
that a properly addressed letter is delivered in due
course of the mails, there is no testimony that the letter
was, in fact, properly addressed when mailed. Hole did
not testify that he typed the envelope himself or that he
personally mailed the letter.16 Under the circumstances I
find that there is no presumption that the letter was re-
ceived by Respondent in the mails.
Hole also testified that, on September 26, he tele-
phoned Respondent's place of business and spoke to
Smock. By Hole's testimony, it cannot be told if he
placed this call before or after the letter was supposed to
have been sent, or before or after he learned of the layoff
of seven employees that date, assuming that he did learn
of the layoffs on the day they occurred. Hole's testimony
of the conversation is:
THE WITNESS: Yes. I called K & S Enterprises
and talked to Wally Smock, who is vice president,
and informed him that the Union was being-that
there was a union and that we wished to negotiate,
and informed him of what had happened.
Smock's testimony about the substance of the call is:
16 Compare Birmingham Ornamental Iron Company. 240 NLRB 898
(1979). and S. Frederick Sansone d/b/a S. Frederick Sansone Co.. 127
NLRB 1301 (1960),. where the presumption was invoked because such
testimony was adduced.
K & S CIRCUITS, INC. 1277
A. The telephone call came in for Dan and he
was busy, so I thought that I would help him out a
bit, so I took the call. The gentleman on the other
end of the line identified himself. And he says, "I
must talk to Dan Kneisley."
And I said, "Well, he is tied up right now." And
he said,-and I can't quote you exactly because I
don't remember exactly what he said, but he said,
"You can't do this" and really got upset over the
phone. "You can't do this. I've got to talk to Dan
Kneisley." He raised his voice. And I said, "Well,
I'm sorry, he is busy." And he said, "Well, I am
going to see Dan Kneisley and I will be out there in
a few minutes to see him. You tell him that." And
that was the end of the conversation.
Smock and Kneisley testified, without contradiction, that
no one appeared at the plant that date or thereafter pur-
porting to represent the Union. Smock further testified
that, although Hole gave his name and stated that he was
an attorney, he did not, although he was "upset," men-
tion whom he represented. It is incredible that Smock
would politely entertain an irate telephone call from
someone who was representing himself to be an attorney,
telling Smock that he could not do what he was doing
(without specifying what it was that could be done), and
Smock did not know, or even ask, who it was that was
making such protestations. I find that Hole did tell
Smock that he represented the Union and, as Hole fur-
ther testified without specific contradiction from Smock,
that a union was being formed and that negotiation was
its objective.
4. Layoff of October 3, 1977
Employee Ola Davis testified that, on Thursday, Sep-
tember 29, Brummerstedt said something to her which
upset her. According to Davis, "I got upset and I went
over and talked to Lee [McNutt], and he told me to
calm down. At that point, I was ready to quit, and he
says, well, calm down, he says, come Monday you'll all
be laid off anyway .... Dan has it all figured out in his
head how he's going to beat this thing." Again, this testi-
mony regarding McNutt's statement about the layoffs is
not factually denied, and I find it credible.
On October 3, Respondent informed 28 production
employees that they were laid off. (Since Kneisley testi-
fied that none of these employees was given recall rights,
the appropriateness of the term "lay off" rather than
"discharge" is questionable. However, since that is the
term used in effectuation of the removal of the produc-
tion employees from the plant, as well as the term uti-
lized throughout the hearing, it is the term I use here.)
All but six of the affected employees had previously
signed authorization cards for the Union." 1 As discussed
infra, Kneisley testified that he told the supervisors an-
nouncing the layoff to tell the employees that there were
three reasons for the layoff of October 3: Too much
scrap, problem with the Ohio Environmental Protection
Agency, and lack of work. According to the employees
z7 The nonsigners were Greg Harris, Glenna Long. David McCune.
Judith Weber (who testified that she signed her card after the layoff),
Mike Rike, and Ellen Rue.
who testified about the events of October 3, the layoffs
were handled in each case thusly:
Betty Baker credibly testified that she was told by
group leader Donna Lovejoy, t 8 "You are laid off be-
cause of lack of work, scrap, EPA has closed them up."
Baker replied to Lovejoy that Lovejoy knew this was
not true and, according to Baker, Lovejoy replied, "I
know but this is what I was told to tell you." Although
the General Counsel failed to prove that Lovejoy was, at
the time, a supervisor within the meaning of Section
2(11) of the Act, the complaint further alleges that Love-
joy was an "agent" of Respondent. Lovejoy was one of
those commissioned by Kneisley to deliver the an-
nouncement of the October 3 layoff, including the rea-
sons therefor. In so doing, she acted as an agent of Re-
spondent and Respondent is bound by her statements
under Section 2(2) and (13) of the Act. See Helena Labo-
ratories Corporation, 225 NLRB 257 (1976); Broyhill Com-
pany, 210 NLRB 288 (1974). As noted, Supervisor
Meyers testified that Brummerstedt told her before the
first layoff that employees would be told that the reason
therefor was scrap, EPA, and lack of work. The fact
that the tripartite reason was used only at the second,
and not the first, does not detract from the fact that man-
agement had decided to advance it as a reason for con-
templated layoffs. Respondent is further found by Love-
joy's admission that the reasons advanced were untrue
because Section 2(13) provides principals are so bound
whether the acts within the general scope of the agency
"were actually authorized or subsequently ratified."
Employee Ola Davis credibly testified, "I was drilling
some boards and Lee [McNutt] came up to me and told
me to stop what I was doing. He said I was laid off for
30 to 90 days, and he said, it was because of the EPA,
and lack of work." There was no mention of scrap by
McNutt. McNutt immediately walked her to the time-
clock and punched her out.
Employee Gary Flory was told by Supervisor Elaine
Smith that the layoff was because of the EPA (with no
mention of scrap or lack of work) and the layoff would
last only 60 days.
Employee Judy Ann Hall was told by Supervisor
Haworth that the layoff that date was because of scrap,
EPA, lack of work, plus production cutback.
Employee Shirley Horn was told by Supervisor
McNutt that the layoff was because of EPA problems
and lack of work (with no mention of scrap). When she
was so told she was in the middle of a job which
McNutt would not let her finish, he required her to
cease working and ushered her from the plant.
Employee Harry Jordon was laid off at 1:30 p.m.,
being told by McNutt that the layoff was because of pol-
lution problems (with no mention of scrap or lack of
work), and that the layoff may be 6 months or longer.
Employee Delmar Lawson (then the president of the
Union, although there is no evidence that Respondent
knew of this) testified that McNutt informed him that
company management had had a meeting and that he
'* Lovejoy. admitted to he a supervisor after April 5,. did not testify
Presumahly. had her tstinony been favorable to Respondeit. Respond-
ent s ould have called her.
K & S CIRCUITS. INC.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was instructed to tell employees that there was going to
be a layoff because of lack of work and because of Envi-
ronmental Protection Agency standards. There was no
mention of scrap to Lawson. Lawson further testified
that McNutt said, "We both know the real reason why
the layoffs," and "I just told him, I said, 'Yes, I know
the reason. I've heard."' Lawson testified, without con-
tradiction, that there was then a great deal of work in his
area and the evidence shows he worked 11.9 hours over-
time the week ending September 29, 11 hours overtime
the week ending September 22, and 8.2 the week ending
September 15.1 9
Employee Scott Myer credibly testified that he was
told by McNutt early in the afternoon that "they were
closing the place down because of EPA" (with no men-
tion of scrap or lack of work).
Employee Roberta Pike credibly testified that she was
laid off by Donna Lovejoy, who "told me I was laid off
for two reasons, lack of work, and EPA, and she had to
tell me those reasons .... We were sort of laughing
and she said, 'we know the real reason.' I said 'yes, be-
cause of the union,' and she looked at me and said,
'yes."'
Employee Patty Price, who was employed on the
second shift, was told by Second-Shift Supervisor 2 0 Jane
Baker that the reason for the layoff was lack of work
and EPA (with no mention of scrap), and that the layoff
would be for a minimum amount of time.
Employee Georganna Price was laid off by Supervisor
Elaine Smith who said that the layoff was because lack
of work, scrap, and EPA but that it would last for no
more than 60 days.
Employee Anne Roberts testified that Supervisor
Elaine Smith told her that the layoff was because of
EPA (with no mention of scrap or lack of work) and
that she would be called back within 60 days.
Employee Elaine Rue was told by Supervisor
Haworth that she was being laid off because of EPA and
lack of work, with no mention of scrap.
Employee Idella Stukins testified that Supervisor
Elaine Smith told her that she was being laid off because
of EPA and that there was no work (with no mention of
scrap). Stukins is the only employee who agreed that
that there was no work, "because the shelves were
empty" in the drilling department. Stukins worked at the
deburring machine, not in the drilling department, and
the basis for her observation and conclusion was exam-
ined by neither party.
Employee Marlene Victor testified that her supervisor,
Elaine Smith, called her away from her production area
and told to gather her belongings. Victor asked if she
was getting laid off and Smith refused to say because "I
can't tell you because I have to follow rules, I have to
take you upstairs and tell you." The two women went to
an upstairs office and Smith said that Victor was laid off
because of EPA, scrap, and lack of work.
19 Although usually (but not always) in lesser amounts than Lawson.
the number of production and maintenance employees working overtime
in three weekly payroll periods preceding the October 3 layoff were: 20
for September 15; 28 for September 22; and 29 for September 29.
20 Baker was promoted to "supervisor," without change of duties or
responsibilities on the day of the first layoff, September 26.
Employee Judith Weber was told by Supervisor
Haworth that she was being laid off from her job in the
programming department because there was no work
(without mention of scrap or EPA).
Employee John Whiting was also told that he was
being laid off by Haworth, who said it was due to lack
of work and EPA, with no mention of scrap.
Employee Michael Wolfenbarger was also told by
Haworth that the reasons for the layoff were EPA and
lack of work, with no mention of scrap.
With the singular exception of Stukins, all the employ-
ees who testified on the subject stated that there was a
normal or greater than normal amount of work to be
done, in each of their areas, and no supervisor, including
Kneisley, testified that there was not even enough work
to finish the day of October 3.
In the several months following the layoff, Respondent
did recall Betty Baker, Shirley Horn, Scott Myer, and
Mike Rike, and David McCune and hired eight new em-
ployees.
5. Defenses for the layoffs
a. Employee performance and profit ratio
At the beginning of the hearing, when called by the
General Counsel pursuant to Rule 611(c) and asked
when the decision to lay off employees on September 26
was made, Daniel Kneisley first testified that he had
made "a definite-that definite decision I made was
probably-the layoff a good month to 6 weeks even
before that [September 26] but I fought it because I did
not under any conditions want to have to lay them off."
Kneisley later testified that he made the decision on a
camping trip over the weekend before Monday, Septem-
ber 26. He acknowledged that he had not conveyed any
word to any employee that any layoffs were in the
offing. He did claim that he did discuss the possibility of
layoffs with his supervisors "because that is what would
have to be the results if things did not straighten up."
When asked which supervisors he discussed the matter
with, Kneisley answered, "Sir, I cannot remember now."
Kneisley was called at several times during the hearing
to testify and at none of these did he mention any super-
visors with whom he spoke prior to the layoff of Sep-
tember 26 about the potentiality of a layoff. None of Re-
spondent's witnesses, including all supervisors who testi-
fied on behalf of Respondent, testified that they had fore-
knowledge of impending layoffs or knew that Kneisley
was even contemplating layoffs.
Kneisley testified that the reasons for the layoffs were
lack of work, problems with the Environmental Protec-
tion Agency, and scrap, and that he instructed his super-
visors to tell that to all employees who were laid off on
both September 26 and October 3. He stated that he told
the supervisors to tell the employees, "As we got things
changed in the EPA, we would call them back, that and
as we got work." However, Kneisley acknowledged fur-
ther that no recall rights were extended to any of the
laid-off employees.
K & S CIRCUITS, INC. 1279
When called in defense, Kneisley was asked what
problems Respondent was having in September and Oc-
tober 1977. Kneisley testified:
The backlog was declining and it would get
much worse because of very dissatisfied customers
because we were not making their delivery dates.
The EPA changes that had been done to that point
just were not working out; the equipment, the
people which coupled with a high internal scrap
rate and then the-especially in September begin-
ning the tapering off of dollar sales or gross sales
and shipments.2
Kneisley stated that he went through "many, many lists
and many ways of trying to figure out with people" how
Respondent's threefold problems could be solved. None
of the lists nor any of the "people" with whom he spoke
was produced. Kneisley testified that these lists were
compiled to pick the most qualified people to keep.
Kneisley testified that, on the afternoon of September
23, he received a weekly statement from his accounting
office which reflected that the monthly sales to date
were $37,248.41 and the monthly payroll to date was
$45,445.69, giving a shipped sales to monthly payroll to
date ratio of 56 percent. Kneisley testified, "In this type
of manufacturing business if your overall payroll exceeds
30 percent of your gross sales you have-you have a
problem some place, a very definite problem."
Kneisley testified that, in considering these figures and
the results of an employee opinion survey which had
been conducted several months before and reported neg-
atively earlier that month, "it seemed that the company
and things just were not working out. When I saw eco-
nomically it was going down, I knew I had to start re-
ducing expenses. I had to, or we wouldn't-we wouldn't
be there another 30 days."
In explaining how he chose the employees for the Sep-
tember 26 layoff, Kneisley testified:
To decide on the first layoff I took the areas that
either they were not producing efficiently or there
was an excessive number of people in the area or
they were nonqualified to really do it with that kind
of equipment or they were not doing it. Those were
the factors on the first layoff.
As noted, in testimony which I discredit, Kneisley
denied that his former wife, Cheryl Brummerstedt, had
helped him in his selection of employees to lay off.
Kneisley then proceeded to enumerate specific reasons
as to why each of the seven employees was chosen. Ac-
cording to Kneisley: Curt Hefelfinger was selected be-
cause he was a rather new employee, he was on the elec-
trolysis line which "wasn't working out" and McNutt
had told him that Hefelfinger would be working there
only until he could find another job. Lois Seabold was
selected because she was in the print room and there
were too many employees in that department. Nelda
Morris was chosen because "Nelda just wasn't doing the
jobs and drills were not sharpened properly and [were]
mixed up. Material was sheared and gouged. The pat-
21 In Respondent's terminology "sales" means "shipped sales"
terns were all beat up." No specific defect of Morris'
performance was testified to by Kneisley. Elaine Smith,
who directly supervised Nelda Morris in drill sharpen-
ing, was called by Respondent. When asked if she had
any problem with the work of Morris and Gary Flory
(who performed the same work at the same time as
Morris), Smith replied, "Not a whole lot." When asked
to be specific, the only factor she could mention was that
the drills were not always checked for sharpness after
use. She did not distinguish between any particular fail-
ing in this regard between that of Morris and Flory who
was praised by different supervisors at the hearing as an
exemplary employee. Smith admitted on cross-examina-
tion that she considered both Flory and Morris good em-
ployees.
Further, according to Kneisley, Jack Harleman was se-
lected for the September 26 layoff because he had been
in the shearing department and the work there was infe-
rior. The only defect in Harleman's performance to
which Kneisley alluded was that Harleman liked to
argue. Della Hine was chosen to be laid off from the
gold room because "their work they were getting out
was very, very little. Everything that was coming out
was virtually scrap." No defect on Hine's part was al-
leged. Paul Hirby was chosen because he did not seem to
want to try to adapt to new procedures. Julia Sanders
Fultz was chosen because she was incompetent to run
the hot air leveling machine, or the Gyrex. Seabold was
selected because she was a fairly new employee accord-
ing to Kneisley when he was led to that answer by coun-
sel. When testifying, Kneisley did claim that there was
lack of work for any of the employees laid off on Sep-
tember 26.
Kneisley denied that the layoffs were based in whole
or in part upon known or suspected union activity or
membership of any of the employees.
Kneisley testified that on Friday, September 30, he re-
ceived another weekly statement which reflected shipped
sales to date as $94,645.13 and monthly payroll to date as
$60,527.58 for a ratio of 60 percent payroll-to-shipped-
sales ratio. From this Kneisley could figure that he was
going to lose about $50,000 that month and based upon
this realization:
Q. (By Mr. Stamper) What happened on October
3, 1977, Mr. Kneisley?
A. That is when we laid off and cut the plant
core back to-stripped it clear back.
Q. Why was that done?
A. I had to reduce costs drastically and quick
and also accomplish some very, very large feats
ahead in getting all the system and everything of
the EPA changed because we were already past
their deadline.
Q. You retained all maintenance men?
A. Yes.
Q. Including Elmer King at that time?
A. Yes.
Q. What triggered your action in laying these
employees off on October 3?
A. It was definitely from the-conclusively from
the statement of September 30 on that which the
K & S CIRCUITS, INC.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of the company had not improved and I
absolutely knew I had no choice. And I knew be-
cause of customers being very upset in a very few
months it was going to be very difficult or K & S
to get work because we had many dissatisfied cus-
tomers. And with that plus faced with the horren-
dous expenses of the EPA and just the changing of
all the processing that is really-I knew of no other
way. I could not think of any other way of doing it,
and even then in the back of my mind I really
wasn't sure. I never told anybody but I still didn't
even know if that company was going to make it
and I figured I would give it a try.
A list of the personnel who were retained was received
in evidence. 22 The personnel retained to perform pro-
duction, according to Kneisley, were those "receptive to
change." This included only group leaders, inspectors,
office employees, and supervisors and part-time employ-
ee Michael Scott and Betty Waltz (who had responded
negatively to Meyers' interrogation).
One of the supervisors who was retained was Wilbur
Crawley, who had become quality control supervisor in
August. Crawley replaced employee Della Mae Hine in
the gold room but, as Crawley acknowledged: "I didn't
know nothing about gold plating at that time, either; I
didn't know nothing about gold plating. I knew good or
bad, but the process I did not know." Another retained
was Baker who was promoted on September 26.
Kneisley then testified that he and Brummerstedt then
compiled a list for "stripping the whole plant back."
Kneisley was asked by his attorney why each employee
was laid off on October 3. In response to each name,
Kneisley named the department in which the employees
worked, named various types of troubles that were being
had in the department or that the department was just
being cut back. He did specifically name Marlene Victor
as having trouble herself in handling her share of pro-
duction, but otherwise he did not name any specific defi-
ciency on the part of any employees involved, and it is
undisputed that none of the employees had received
warnings that inferior production, collective or individu-
al, might affect their tenure of employment.
Michael Kneisley, brother of Daniel and Respondent's
chemical engineer over quality control, advanced gener-
alized criticisms of the work force as well in attempting
to lay blame for the scrap generated just before the lay-
offs. On direct examination his testimony was:
Q. Did you attempt to correct these problems?
A. Yes, that was my job, to correct problems.
Q. Were you successful prior to the layoff?
A. No, as a rule I was not.
Q. To what do you attribute your failure?
A. Failure mainly to have the support of every-
one-of the working people to correct it, to under-
22 Respondent attacked the credibility of Brummerstedt on the ground
that she denied participating in the decision as to who would be laid off
on October 3. Brummerstedt was not shown the list of personnlel to be
retained which Kneisley testified that he and she made up together.
Without such confrontation I shall not conclude that Brummerstedt was
lying when she said she did not participate in making up a list of employ-
ees who were to be laid off.
stand and comprehend where the scrap was coming
from.
On cross-examination, Michael Kneisley was asked the
obvious:
Q. Did you recommend that some corrective
action be taken to discipline these employees?
A. My job was to deal with scrap. It was not to
separate out individual people.
When attempting to cite deficiencies in the silk screen
department, Michael Kneisley did not name any employ-
ee who had done anything wrong; he stated that the em-
ployees had been carefully instructed by the supervisor,
but the employees were simply refusing to follow his
instructions, but he could not remember who the super-
visor was. At another point, when advancing blanket
criticisms of employees who worked with the Gyrex ma-
chine, he named McNutt as the supervisor involved.
Counsel quickly corrected him by stating: "Would it jog
your memory if it was Mr. Crawley?" Kneisley agreed.
More blatant leading is difficult to imagine, but it is what
it took to get Kneisley back on the track. Therefore, I do
not credit the generalized, amorphous criticisms of em-
ployee performance asserted by Daniel and Michael
Kneisley. Additionally, one Willard Mason who was
hired as a "consultant" by Respondent shortly before the
layoffs offered blanket criticisms of the employees, al-
though he acknowledged that he worked with none of
them. The only specific criticism of employees he con-
veyed to Daniel Kneisley was dismissed out of hand by
Kneisley, as Mason acknowledged. Crawley offered
other sweeping criticisms of the work force (including
Supervisor McNutt), but acknowledged that he recom-
mended no layoffs.
b. Reasons given employees
As noted, the tripronged reasons offered the employ-
ees for either or both of the layoffs were: (1) excessive
scrap, (2) lack of work, and (3) problems with the Ohio
Environmental Protection Agency. The evidence on
these points is as follows:
(1) Scrap
Respondent placed in evidence records which reflect-
ed the value of production scrap for certain months pre-
ceding the layoffs as follows: July, $12,368; August,
$14,538; September, $22,090; and October 1977, $4,503.
Respondent places the responsibility for this volume of
scrap entirely upon the production employees, citing
their collective faults as described above.
Several witnesses testified that scrap was a longstand-
ing problem, but no scrap records before or after these
months were offered. Also John Goode, Respondent's
certified public accountant who compiled voluminous re-
cords for Respondent's defense in this case, acknowl-
edged that the scrap figures were not exact in that some-
times extra boards were made for orders and some are
placed in stock for later shipment and these may, or may
not, be properly categorized as scrap. The General
Counsel brought out on cross-examination that shipments
K & S CIRCUITS, INC. 1281
were made without corresponding "runs" being reflected
by Respondent's records so that it is reasonable to
assume that under Respondent's accounting procedures
certain "scrap" was actually stocked. In short, as Goode
further acknowledged on cross-examination, the 4
months' figures represented a trend in scrap rather than
actual scrap figures.
Respondent also placed in evidence a summary of re-
jections from customers for the year 1977 showing a
wide fluctuation from as low as $322 worth of products
rejected in November to a high of $7,250 in July. Re-
spondent had $3,439 worth of rejections in the month of
September. Therefore, in the month of September, imme-
diately before the layoffs in question, Respondent's scrap
plus rejections totals $25,000. If there was any other
month in Respondent's history which combined scrap
and rejections to such great amount, it is not disclosed in
the record; however, only I year's rejection records and
4 months' scrap records were offered.
(2) Lack of work
Respondent's record of shipped sales shows that they
increased from $95,000 in September to $133,500 for the
month of October. Presumably part of the October
shipped sales was of products manufactured in the pre-
ceding months especially since, as Kneisley testified, Re-
spondent was behind in delivery dates. Moreover, there
was a sharp decline to $77,208 worth of shipped goods in
November and $85,912 in December. Finally, it is to be
noted that the records of Respondent's "ending balance"
or backlog at the end of relevant months which were
placed in evidence were: July, $296,000; August,
$248,000; September, $234,000; October, $221,000; No-
vember, $247,000: December, $191,000; January 1978,
$149,000; and February, $55,700. In short, Respondent
had approximately a quarter million dollar backlog of
orders at the time of the two layoffs and this backlog did
not materially depreciate until January 1978. Further, re-
velant to this consideration is that new purchase orders
had shown a steady increase from July 1977 through No-
vember 1977, but took about a 70-percent drop in De-
cember followed by similarly poor months in January
and February 1978. That is, backlog remained high or at
least steady until there was a drastic drop in purchase
orders during the month of December 1977.
(3) EPA problems
In the production process described above, there has
been a problem regarding the effluents discharged into a
local stream. The Ohio Environmental Protection
Agency, which is charged with the responsibility of en-
forcing Federal environmental protection laws, has, for
several years previous to this case, been in regular con-
tact with Respondent regarding its compliance with
those laws. A letter by Kneisley to the Ohio EPA dated
April 17, 1978, recites that, as early as 1972, Respondent
had set its own goals in an attempt to reduce pollution
and it enumerates various steps that had been taken in
that regard. According to the testimony of Craig M.
Cooperrider, authorization and compliance representa-
tive of the southwest district office of the Ohio EPA
(and correspondence submitted along with his testimony
and that of Kneisley), after a series of delays, Respond-
ent, by letter dated March 14, 1977, was given a deadline
of July 1, 1977, to come in compliance with the EPA
laws. The letter pointed out that Respondent could be
subjected to fines as high as $10,000 per day for noncom-
pliance. The July I deadline came and went without any
action by the Ohio EPA. On November 10, 1977 (after
both layoffs), Respondent received another letter from
the Ohio EPA regarding pollution problems; the letter
pointed out that failure to comply with the department's
requirements "may be subject to enforcement action pur-
suant to the Ohio revised code." The letter requested
that the department be informed within 10 days as to the
reasons for "these excursions" as well as a description of
the steps Respondent has initiated to prevent further re-
currence. On November 18, Respondent requested a 15-
day extension of the time to reply to the preceding letter.
On December 7, the agency denied Respondent's request
reciting a series of delays beginning with Respondent's
missing of an October 21 deadline to submit detailed
plans for the necessary changes, further noting that on
November 17, 1977, an agent of its office had visited the
plant and "was told that the necessary equipment for
your treatment facilities was not yet on the site at your
plant," and concluding with the demand for explanation
of the delays and a construction of the required facilities
and a warning that Respondent's alleged continued viola-
tion was subject to prosecution, and stating "failure to
respond to this letter by the date mentioned above will
result in a recommendation by this office that legal pro-
ceedings be initiated against K & S Circuits for the viola-
tions noted." Although the letter of the preceding March
14 had mentioned the possibility of fines, this was the
first threat of a recommendation that litigation be insti-
tuted. No communication from the Ohio EPA received
by Respondent before the layoffs alluded to a possibility
of legal proceedings to close Respondent. In fact, no liti-
gation was initiated against Respondent until spring of
1979. Copperrider testified, without contradiction, that
the procedures of the Ohio EPA are to exhaust all ad-
ministrative possibilities (including encouraging volun-
tary compliance) before turning suspected violations
over to the Ohio state attorney for prosecution. Such
prosecutions are, of course, within the discretion of the
Ohio attorney general.
Daniel Kneisley testified that Wally Smock was first in
charge of effectuating installation of the machinery
needed for EPA compliance and for making necessary
changes in Respondent's facilities for accommodation of
that equipment. According to Kneisley, Smock an-
nounced in August that he could no longer perform this
job because he was not given cooperation "by people."
Smock testified but was asked no questions on this point,
and just who was failing to cooperate, and how, was
never specified. The work was being performed by Re-
spondent's maintenance employees. These employees, as
acknowledged in a letter dated March 8, 1977, from Re-
spondent to the Ohio EPA, were lacking in "proper
skills." On November 7, or about a month after the
second layoff, Respondent hired Steven Stump to super-
K & S CIRCUTS. INC
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vise the maintenance crew to construct the necessary
modifications of the plant as well as perform routine
maintenance. Stump possessed a high school education,
had previously worked as a maintenance man in another
local plant, and had no previous training regarding effec-
tuating compliance with environmental protection laws.
On March 28, 1978, Stump discharged the three mainte-
nance crew members working under him (for the stated
reason that they possessed insufficient skills to perform
anything but janitorial work) and hired other mainte-
nance crew members who had such backgrounds as
working in service stations and the like. Stump acknowl-
edged that he was untrained in the crafts of plumbing
and electrical work, but stated that the few modifications
which he could not handle were accomplished by sub-
contractors. The volume of work by subcontractors was
not placed in evidence. Therefore, it appears from this
record that all, or substantially all, of the modifications
made after the March 14, 1977, letter from the Ohio
EPA was performed by semiskilled, or unskilled, labor
under the direction of Smock until August 1978 and
Stump after November 7, 1978; apparently there was no
one in the interim.
Need for immediate plant modifications which would
satisfy the Ohio EPA was specifically advanced as a
factor precipitating the October 3 layoff, and Respondent
offered testimony that it was frenetically attempting to
have those changes made. But, according to the testimo-
ny of Steven Stump, who was hired on November 7 to
supervise the changes:
Q. (By Mr. Stamper) Well, this work that we are
speaking of, was it already started when you were
hired?
A. A lot of it wasn't really started, a lot of it was
planned. I guess you could say it started when they
planned it, but the actual work-well, I could say it
had been started but they hadn't gotten very far. I'd
say whoever was doing the work was at a standstill.
They weren't making progress.
As previously noted, the "whoever" who preceded
Stump as supervisor of the maintenance crew attempting
to construct the modifications was Smock who had
given up on the project in August, according to the testi-
mony of Kneisley.
6. Settlement agreement of March 8, 1978
On March 8, 1978, a hearing was scheduled for litiga-
tion of the charges in Case 9-CA-11799. After the hear-
ing opened before an administrative law judge, and after
Kneisley inspected all the authorization cards, the parties
reached an oral settlement agreement providing as fol-
lows: Respondent agreed to recognize the Union as rep-
resentative of the production and maintenance employ-
ees;23 Respondent agreed to "recall" from layoff 14 em-
23 The complete unit description is:
All hourly production and maintenance employees at the Company's
Phillipsburg, Ohio facility, but excluding all other employees includ-
ing office and clerical employees, technical employees, professional
employees, inspectors, sales employees. guards and supervisors as de-
fined in the National Labor Relations Act.
ployees who were not present were to be placed on pref-
erential lists; finally, the agreement recited: "The remain-
ing laid-off employees did not desire reinstatement and
therefore agreed to remit, through the Union to the
Company, individual waivers of reinstatement." The Em-
ployer agreed to remit to the Union $20,000 as satisfac-
tion of all claims arising from the matter, $8,000 of
which was to be paid, and was paid, immediately and the
remainder in six equal monthly installments commencing
6 months after the initial amount was paid. The Union
agreed to withdraw the charge.24 The administrative
law judge approved a withdrawal request submitted by
the Union and the complaint was dismissed.
7. Creation of the third shift and abolition of the
second shift
Almost immediately after the settlement agreement
was consummated, Respondent created a third shift and,
about April 15, abolished the second. The third shift re-
mained in existence until on or about August 6, 1977,
when the third shift was abolished and all employees
were returned to the day shift. As detailed infra, within a
month after the third shift was created, all card signers2 5
had been assigned to it, 26 and, conversely, there were no
card signers left on the first shift. When called at the first
of the hearing pursuant to Rule 611(c), Kneisley denied
that the third shift was intended to be comprised only of
employees involved in the settlement agreement. But
then Kneisley testified that it was decided that his broth-
er, Michael Kneisley, who was then a nonsupervisory
chemical engineer, and his ex-wife, Cheryl Brummer-
stedt, would supervise the third shift and "this is what
we felt they would be able to give the best guidance to
these people," referring to the ones involved in the set-
tlement agreement.
Michael Kneisley had been employed by Respondent
since August 1973. Immediately prior to the layoffs, he
was in quality control and process control but was not a
supervisor. After the layoffs, as Michael Kneisley put it,
"I did take on the responsibility of production and prob-
lem troubleshooting." Michael Kneisley testified that,
upon execution of the settlement agreement, he was
given sole responsibility to place returning employees
and "due to the short notice ... the only solution, I felt,
was to start a third shift . . . I established a third shift."
Michael Kneisley further testified that further reasons for
starting the third shift were:
. . . the first shift was a smooth running shift. I felt
it was stablilized enough so that any EPA changes
could be made during the first with a minimum
amount of disruption. The establishment of a third
shift meant we could, if need be, not run a process
24 After closing of the hearing, an agreement embodying these terms
was drafted, but it was signed by neither party. There is no dispute that
the above was the terms of the agreement recorded on March 8.
s5 Or "union people" as the third-shift supervisor, Cynthia Leffew, re-
ferred to all employees who were on the third shift.
21' Card signer Harry Jordon referred to the shift to which he was ulti-
mately assigned as the "second" shift. However. from the context and
from Resp. Exh. 44. which charts the shift transfers, it is clear that
Jordon was on the third shift.
K & S CIRCUITS, INC. 1283
during the day, the changes needed to be made,
make up that process at night.
Michael Kneisley did not testify that the second shift
was abolished and the third shift established to give the
maintenance crew room to make changes required by the
EPA. In fact, when asked if he remembered the reason
the second shift was abolished, he replied that he could
not recall the reason. Daniel Kneisley testified that the
second shift was abolished on April 15, as the recalled
employees were returning, for the purposes of making
way for the EPA changes being performed by the main-
tenance crew.
8. Operation of the third shift
a. Hours
The third-shift's hours were 11 p.m. until 7 a.m., and
the hours of the first were from 7:30 a.m. until 3:30 p.m.
No explanation of this half-hour hiatus was offered, al-
though Kneisley pointed out that the employees on the
third shift were paid the half hour.27 Several of the
third-shift employees testified that, upon being recalled,
they were forbidden to go to the work area at starting
time; rather, they were instructed to go to the lunch-
room to receive their assignments for the night. By this
procedure, and by the unexplained half-hour delay in
starting the first shift, the third-shift employees were
denied all contact with the employees of the other two
shifts.
b. Transfers of previously recalled employees to the
third shift
Some of the employees who were the subject of the
charges in Case 9-CA-11799 had been recalled prior to
the March 8 settlement agreement conference: Mike Rike
on October 27, Patty Price on October 29, Scott Meyer
on November 3, Betty Baker on November 4, Shirley
Horn on November 20, and David McCune sometime in
the week of November 24.
Price, Meyer, and Baker had signed cards which were
shown to Kneisley on March 8. Price declined the offer
of recall made to her on October 29. Baker and Meyer
were transferred to the third shift shortly after March 8,
as discussed herein. Horn was discharged on April 8, as I
find herein, in violation of Section 8(a)(3). Neither
McCune nor Rike had signed authorization cards shown
to Kneisley on March 8, and neither was transferred to
the third shift.
Baker testified that she had been employed on the first
shift before the March 8 settlement conference. Upon her
return from the conference, she was confronted by
Donna Lovejoy who informed her that Kneisley had left
word for her to clock out and go home when she re-
turned. This amounted to a loss time of one-half hour.
On March 15, Baker was called to Michael Kneisley's
office. Kneisley told her that he was transferring her to
the third shift because Georganna Price and Judy Weber
were being taken from the third shift and brought on day
so they could learn to scrub and laminate the boards so
27 Both shifts had half-hour lunch periods.
that Donna Lovejoy could spend more time in the photo
department. Baker asked how long she would be on the
third shift and Michael refused to say. Lovejoy was al-
ready working all of her time in the print room; Geor-
ganna Price and Judy Weber were transferred for a short
time back to the first shift, but thereafter they were re-
turned to the third shift and Baker remained on the third
shift until it was terminated on August 6, 1978. Baker
was assigned to the deburrer, a machine she had only
worked on a couple of times since she had been em-
ployed by Respondent in 1972.
Upon recall Scott Meyer was placed on the first shift
where he had been before. Approximately a month after
the March 8 settlement meeting, which he attended, he
was transferred to the third shift by Michael Kneisley.
According to Meyer, Kneisley gave his reason that
"they weren't getting production out like they should
and he wanted me on the third shift to help out." Meyer
stayed on the third shift until he was terminated in June
1978, as discussed infra. Michael Kneisley acknowledged
that he insisted that Scott Meyer come to the third shift;
but he also pointed out that Meyer did not object to
working that shift because it was the same as that of his
girlfriend who worked at another plant. The only em-
ployee who was placed on the third shift who had not
signed a union authorization card was Ellen Rue who
was recalled pursuant to the settlement agreement in
June.
c. Treatment of other recalled employees
(1) Assignment of jobs
Georganna Price testified that after the March 8 meet-
ing she was recalled and placed on the third shift. She
was assigned the deburring machine, which she had
worked before, and the print room which she had not.
After about a week she was transferred to the first shift
for 3 or 4 weeks during which time she worked in the
print room. At the end of that period she was returned
to the third shift and to the print room.
Prior to the layoff of October 3, Annie Roberts had
worked in the machine shop on the automatic router.
She was recalled on March 20 to work the deburrer on
the second shift, a machine she had worked on only "a
couple of times before, but just half an hour or so at a
time." Roberts was continued on the second shift for
about a month when she was ordered to transfer to the
third shift by Mike McManoway. Upon this transfer,
Roberts quit, as discussed infra.
When Judy Weber was laid off on October 3, she had
been working in the programming department. She was
recalled on March 13 to the third shift and was assigned
to the print room where she had never worked before.
After a week she was returned to the first shift where
she also worked in the print room. After about a month
she was sent back to the third shift. According to
Weber's credible testimony, she was told by Lovejoy 28
that the reason for the transfer was that "they were
moving things around and using different paper and
28 By this time. Lovejoy was an admitted supervisor.
K & S CIRCUITS. INC. l283
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
things like this and they wanted to put us back on the
third shift."
Other employees who were placed on the third shift
were also placed on jobs they had not performed before.
Although she had not worked there before, Morris was
assigned to the gold room when she was recalled in
June. Delmar Lawson had worked in plating, as a lead-
man, but upon recall he was put in the deburring section,
on a job he had not performed before, and not as a lead-
man. Marlene Victor had worked in the print room
before the layoff, but she was recalled to the third shift
to work on the etcher. Jack Harleman previously
worked on the shearing machine, but he was recalled to
the third shift to work in plating. Before the layoff Gary
Flory was in shearing and sharpening drills in the ma-
chine shop, but was recalled to the third shift to work on
the plating line, a job he had done just once before in the
5 years he had worked there. Idella Stukins before the
layoff worked on the deburring machine, but upon recall
she was assigned to the Gyrex machine which she had
not operated before. Employee Harry Jordon's testimony
about his assignment upon return to a "sander" (appar-
ently an etcher) is too confused and conclusionary to
rely upon.
Michael Kneisley testified that the employees were
placed where they were needed and, except in general
terms which I discredit, did not contend that any of
them had prior experience in the jobs to which they
were assigned.
Former Supervisor Virginia Myers testified that
Cheryl Brummerstedt told her, regarding the employees
being recalled pursuant to the settlement agreement, that
"they would be brought back and they'd have to be put
on jobs probably that they didn't know how to do, and if
they couldn't do it, they wouldn't be able to keep them."
(2) New applications and other changes
It is undisputed that all the recalled employees were
required to complete new application forms. Also each
employee was told he would have to complete a math
test which he had not theretofore taken. One older em-
ployee, Harry Jordon, flatly refused to take the math test
and no action was taken against him. Nor is there any
contention that any of the recalled employees' terms and
conditions of employment was changed because of the
results of the math test. Kneisley, without dispute, testi-
fied that, even though the applications were mandatory,
no employee's seniority date or other benefit was
changed thereby.
Stools which had been about the area in the past were
taken away from the employees on the third shift, and
the only stools remaining in the production area were
marked "supervisor." The supervisors who testified on
behalf of Respondent on this issue did not dispute this
fact; they just stated that stools were not necessary in
most of the production processes or, incredibly, that they
presented a danger (on the third shift). It is further undis-
puted that more "no smoking" signs were placed about
the area than were in the production area theretofore.
As noted, several of the employees recalled pursuant
to the settlement agreement were, for a time, placed on
the first shift. Employee Nelda Morris worked on the
first shift for 2 weeks during which time she was told by
Supervisor Jennie Crawley that she was to eat lunch
from 12:30 to 1 p.m. whereas the other employees ate
lunch from 12 to 12:30. Employees Georganna Price and
Judy Weber were told by Donna Lovejoy that they
were to eat their lunch at 12 p.m., although others regu-
larly ate theirs at 11:30.29
Brummerstedt testified that, when she and Dan Kneis-
ley were advised as to how to handle returning employ-
ees, their then attorney told them to keep records on the
employees, and that after receiving this advice she and
Dan Kneisley decided "we should keep a record of what
happened, what took place, and like if anything was
scrapped or any discipline had to be issued, we would
document it and place it in their files so that it would be
on the record." Daniel Kneisley conceded that he told
Michael Kneisley and Brummerstedt to write up the re-
turning employees for any infractions of rules and scrap,
although he further conceded that never before had em-
ployees been issued written warnings for scrap. Kneisley
pointed out that warnings theretofore had been oral, and
the only change was to make them verbal "so that both
sides could understand."3 0 After being asked specifically
about several warning notices that were given pursuant
to this newly instituted program, Daniel Kneisley was
asked on cross-examination:
Q. Now, all these entries in Marlene Victor's file
were made pursuant to your outstanding instruc-
tions through your supervisors to document prob-
lems with employees on the third shift, correct?
A. To let them be completely aware. Put it in
writing; if they don't understand you orally, then
they should understand the written.
Therefore, there is no denial that this warning pro-
gram 3 ' was instituted specifically for the employees on
the third shift and, as noted above, the only production
employees placed on the third shift were those who had
signed cards for the Union.
Employee Betty Baker testified that she was told upon
recall to the third shift that she could go to the restroom
only on breaktime whereas before the employees could
use the restroom any time they wanted to. Baker did not
say specifically who so instructed her, but she tstified
that Cynthia Leffew was her immediate supervisor on
the third shift. Employee Weber testified regarding rest-
room privileges on the third shift. "You had a certain
time to go." She did not testify as to who had given her
any such instruction, but she testified generally that
2Y Neither Jennie Crawley nor Donna Lovejoy testified.
i" Kneisley, at another point, described the warning notice system as a
"communication link" devised by Crawley for the employees returning
pursuant to the settlement agreement.
' One specific notice made the subject of the complaint was issued to
Gary Flory, who testified that after being recalled to the third shift he
was told by Brummerstedt to sign a paper stating that, if he scrapped out
any more boards, "I discharged myself." Flory refused to sign the paper
until he was given a copy of it to show the Union's attorney. According
to Flory, Brummerstedt replied that he could not take it out of the plant,
and "she said it didn't make any difference whether I signed it or not, it
was going into my files." A document to this effect, dated May 30, was
produced From Flory's files.
K & S CIRCUITS, INC. 1285
Brummerstedt was her supervisor. Leffew credibly
denied giving such instructions. Brummerstedt was not
asked about the matter by either the General Counsel or
Respondent, but I find the generalized testimony of
Weber and Baker insufficient for finding that they were
instructed by agents of Respondent that they had fewer
restroom privileges than existed theretofore. Certainly
the testimony is insufficient to prove that Respondent
generally discriminated against the third-shift employees
regarding restroom privileges.
(3) Reduction of hours of recalled employees
(a) Shorter workweeks and less overtime
The General Counsel contends that the employees
who were recalled pursuant to the settlement agreement
were afforded fewer hours than they otherwise would
have received. All employees who were questioned on
the matter and Brummerstedt credibly testified that
before the events of this case employees were allowed to
do cleaning or other type work if they ran out of work
on their shift, but they were not sent home early. How-
ever, after the settlement agreement, the third-shift em-
ployees were sent home early whenever work was slack.
This testimony is undenied.
Received in evidence were the hours worked by em-
ployees showing that between the weeks ending March
23 and June 22, even if as little as two-tenths of an hour
remained, employees who had signed union authorization
cards were sent home or "docked." For example, card-
signing employees were credited with the following
hours in the week specified; the week ending May 4,
Stukins received 39.8 hours; the week ending May 11,
Jordan received 39.5, Teaford 39.8, Salyer 39.5, Stukins
39.0; the week ending May 18, Weber received 39.8 and
Stukins 39.6; the week ending May 23, Horn received
39.9 hours; and in the week ending April 26, Victor re-
ceived 39.5 and Stukins 39.5. Respondent's records for
this same period of time reflect that the only employee
who had not signed a union card who was docked a
period of less than an hour in a week during which the
third shift was in existence was Magness (who received
39.7 hours for the week ending March 23) and Virginia
Connally (who received 39.5 hours the week of June 15).
By the week ending May 18, the only employees left
on the first shift were those who had not signed cards
which authorized the Union as their collective-bargain-
ing representative and which Kneisley examined on
March 8. Thereafter, until the third shift was abolished
in August, the only known card-signing employee who
was placed in the first shift and not transferred to the
third was Nelda Morris who worked for 2 weeks and 2
days ending June 22 when she quit. Conversely, only
those whose cards were examined on March 8 were
placed on the third shift. Excluding Morris from the
analysis, a clear pattern32 is established by Respondent's
records.3 3 In the week ending May 18, Respondent em-
32 Attached to General Counsel's brief is a chart which is helpful in
analyzing the records.
a3 My summary, which is derived from Resp. Exhs. 44 and 53, omits
Michael Scott who was employed as a part-time employee on the day
shift. Doris Jean Jamison was also hired as a part-time employee on the
ployed 9 employees on the third shift and 12 on the first.
Each of the 12 first-shift employees worked 40 hours
that week, and 8 of them worked overtime; of the 9
third-shift employees employed that week, 6 worked 40
hours and 3 worked overtime. In the week ending May
25, 11 of the 12 first-shift employees worked 40 hours,
and 9 of those worked overtime; of the 7 third-shift em-
ployees employed that week, none worked 40 hours and
none worked overtime. In the week ending June 1, I of
the 11 first-shift employees worked 40 hours and 7 of
those worked overtime; of the 10 third-shift employees
employed that week, , Scott Meyer, worked 40 hours,
and only he worked overtime (two-tenths of an hour). In
the week ending June 8, 11 of the 13 first-shift employ-
ees worked 40 hours, and 8 of those received overtime;
of the 9 third-shift employees employed that week, none
worked 40 hours or received overtime. In the week
ending June 15, of the 15 first-shift employees 14 worked
40 hours, and 8 of those received overtime; of the 534
third-shift employees employed that week, none worked
40 hours or received overtime. In the week ending June
22, of the 15 first-shift employees, 14 worked a full 40-
hour week and 8 of those worked overtime; of the 8
third-shift employees employed that week, 4 received a
full 40-hour week, but none of those worked overtime.
(b) Layoffs of May 11, 1979
Finally, in regard to alleged reduction of hours of
union sympathizers, the complaint alleges that on or
about May 11, 1979, Respondent laid off employees
Betty Baker and Harold Teaford for a period of 2 days.
Teaford did not testify. Baker testified that, on that date,
she was told by then print room supervisor, Leffew, that
she was being laid off for 2 days because of changes that
were being made for EPA. Leffew testified that, at the
time, the only personnel in the print room were herself,
Robbin Scroggins, Pat Fenton, and Baker. According to
timecards received in evidence, Scroggins was laid off at
the same time for the same period. (The complaint does
not mention Scroggins.) Leffew acknowledged that
Baker was the senior employee but Fenton was retained
because she was a salaried "management trainee."
Leffew did not testify what changes, EPA or otherwise,
were being made which precipitated the layoff. Just who
Teaford's supervisor was and what he was told is not in
evidence. His timecard for the period was placed in evi-
dence through Kneisley. The card is marked "off due to
EPA work," but Kneisley did not state who made the
mark or to what "EPA work" is being referred.
9. Alleged constructive discharges
a. Jack Harleman
Jack Harleman testified that upon his recall he was re-
quired to take a math test and fill out the new applica-
tion, then he was assigned to the third shift under the su-
first shift. She did not become a fill-time employee until the week of
June 15 (apparently the week school was out); therefore, she is not
counted until that week.
3' I exclude Scott Meyer who worked only .9 hours before quitting at
the start of that week.
K & S CIRCUITS, INC.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pervision of Michael Kneisley. He worked on the third
shift 2 days but did not report on the third or thereafter.
When asked why he did not return to work, Harleman
testified that he knew he would not get along with Mi-
chael Kneisley and he did not like the third shift. Harle-
man acknowledged that he did not complain about the
math test or the applications or being assigned to the
third shift; he did not give any supervisor the reason for
his quitting; and he did not ask for a transfer to another
shift.
b. Anne Roberts
Anne Roberts was recalled about March 20. Like the
others, she had to complete the math test and a new ap-
plication. As noted above, she worked for about a month
on the second shift when she was transferred to the
third. As testified by Roberts, she was called into Brum-
merstedt's office the night she was to report to the third
shift and told Brummerstedt that she had quit but gave
no reason. Roberts credibly testified that Kneisley re-
plied only "good" and hung up.
c. Virginia Salyers
On the record the General Counsel represented that
Virginia Salyers was suffering from a terminal illness at
the time of the hearing and was incapable of appearing in
court; her investigatory affidavits were offered as testi-
mony. Respondent did not dispute the General Counsel's
representation that Salyers was incapable of appearing,
but objected to the admissibility of the affidavits on the
ground that it was denied the opportunity to confront
the witness. On the basis of the authority of Limpco Mfg.
Inc., and/or Cast Products, Inc., 225 NLRB 987 (1976),
which holds that, under such circumstances, an adminis-
trative law judge should receive such affidavits and give
them what credence he finds appropriate, I received the
affidavits over objection.
One affidavit of Salyers states that she was recalled
pursuant to the settlement agreement but she was not
permitted to work a full 40-hour week and that "I aver-
aged only 31 hours a week." Salyers states that it was
for this reason that she resigned on May 26 (a Friday,
the first day of a pay period). The records introduced by
Respondent do not bear out Salyers' claim of reduced
hours. The records reflect that Salyers received 40 hours
for the weeks ending March 30, April 6, 13, 20, and 27,
and May 4 and 18. She received 32 hours for the week
ending March 23 (the first week on recall), 39.5 hours
for the week ending May 11, and 33 hours for the week
ending May 25; she worked 23.3 hours the week she
quit. It would hardly be logical to include Salyers' first
or last week of employment in figuring her average
hours worked. There is no evidence of what day of the
week she was recalled, and the hours worked her last
week were apparently determined by her. Also there is
no basis for determining what caused the half-hour loss
in the week ending May II11. Therefore, indulging in
every possible presumption the General Counsel could
advance, the week Salyers was "shorted" (according to
the records which the General Counsel did not ques-
tion), was the week of May 25. Moreover, Salyers' affi-
davits do not reflect that she told any supervisor that she
was resigning because of the reduced hours on that, or
any other, week.
d. Scott Meyer
Scott Meyer was recalled on November 3 and placed
on the first shift. He continued working that shift until
about a month after the March 8 settlement agreement
when he was transferred to the third shift. On or about
June 6, Meyer became nauseated at work and reported
this to Brummerstedt and asked permission to leave work
early. Brummerstedt gave him the permission and he left
the plant to go home. At some time between 4 and 7
a.m., Meyer telephoned Brummerstedt and asked if it
was possible that new chemicals or other substances
were being used in the plant which could make him
dizzy. Brummerstedt replied negatively. Meyer further
testified that at 7 a.m. Brummerstedt called his home and
told him that he would have to have a doctor's excuse to
return to work. Meyer further testified that by that point
he was feeling all right, but did not report this to Kneis-
ley. Instead he responded, "I won't need one, Cheryl,
because I quit." He did not expressly state a reason.
Meyer credibly testified that he never before had been
required to have a doctor's excuse to return from such a
brief absence.
e. Ellen Rue
Ellen Rue was recalled on or about June 6. While she
was previously employed on the first shift, she was im-
mediately placed on third under the supervision of
Brummerstedt. Rue worked 1 night and asked Brummer-
stedt if she could be transferred to the first shift as her
husband did not want her working the third shift. Brum-
merstedt responded negatively stating that Nelda Morris
was the last person who would be placed on the first
shift. Upon such denial Rue announced that she quit. Ac-
cording to Rue's credible testimony, Brummerstedt re-
plied, "I don't blame you."
f. Georganna Price
Georganna Price was recalled in March 1978. Price
credibly testified that she was assigned a job that she had
not done before, required to eat lunch at different times
from other employees during a 3-to 4-week period in
which she was temporarily assigned to work the first
shift; was affected by the removal of stools from the
work area; observed new no-smoking signs in the area
(although she does not testify that she was affected
thereby); was sent home early on a number of occasions
without completing her shift, although there was work
to be done; was given contradictory instructions from
Brummerstedt and was once ridiculed by Brummerstedt
because of her inability to perform one assignment which
she had not done before. Price resigned on June 16,
giving as her only reason that she wanted to stay home.
Although Price testified that she resigned because of ha-
rassment, there is no testimony that she ever complained
about harassment or the assignment to the third shift or
any of the conditions on that shift.
__ - ---- __ -
1287K S CIRCUITS, INC.
g. Judith Weber
Judith Weber was recalled on March 13 and assigned
to the third shift under Brummerstedt in the print room.
After a week she was assigned to the first shift and re-
mained in the print room, but was given separate lunch
periods as noted above. After a month Weber was also
reassigned to the third shift along with Georganna Price.
Weber further testified that she was watched more close-
ly by Brummerstedt (and, as noted above, in testimony
which I have found incompetent to prove the fact, she
testified that restroom privileges were curtailed). Weber
did credibly testify that stools were removed from her
work area. Weber testified that during the last several
weeks of her employment she was interrogated by Brum-
merstedt on the subject of unions, Brummerstedt asking
her when and where the Union had its meetings and
how Weber felt about the Union. Weber was further told
by Brummerstedt that Daniel Kneisley would never have
a union in the plant and he would do anything to pre-
vent it. This testimony regarding statements of Brummer-
stedt was not denied.35
Weber testified that she quit because of the working
conditions to which she was subjected on the third shift.
However, she further testified that in resigning she told
Brummerstedt "that I was quitting and going on vaca-
tion." Weber also stated in a resignation slip placed in
her file (and introduced in evidence) that the reason she
was quitting was to go on vacation.
10. Discharges
a. Elmer King
When Steven Stump was hired, November 7, 1977, he
was placed in charge of Respondent's maintenance crew
which then consisted of employees Elmer King, Larry
Magness, and Gordon McCray. King had been employed
for 6 years. Stump testified that he was given the assign-
ment of making all the modifications in the plant, with
only occasional assistance from outside contractors, using
these three individuals. Stump testified, without contra-
diction, that the three on the maintenance crew could
perform little or no work beyond routine janitorial work.
With regard to King specifically, as well as being com-
pletely unskilled, Stump credibly testified that the em-
ployee wasted time being overly talkative, would short-
cut his cleaning jobs on expensive machinery which
caused damage to the machines, and King would hide
things like screwdrivers where no other employee could
find them. Further, Stump was continually annoyed by
King's inability to go and fetch objects such as certain
size sockets or certain amperage fuses; King would re-
peatedly bring back a group of objects and Stump would
have to select from among them.
None of this testimony is denied; King could testify to
no compliment he had received in the 2 or 3 years prior
to his discharge.
On March 8, King appeared with other employees at
the Board hearing and settlement conference; his authori-
sB The General Counsel does not allege that this testimony constitutes
an independent violation of the Act.
zation card, along with others, was examined by Kneis-
ley.
King testified that when he asked for time off to go to
the hearing he simply told Stump that he wanted to go
to Dayton and Stump agreed. Stump testified that King
stated only that he wanted a couple of hours off to get
his car fixed and he replied, "That's no problem, punch
out and when you come back punch the clock again."
King testified that upon his return to the plant the next
day he was confronted and excoriated by Stump, al-
though he could not remember anything that Stump said
other than, "I thought you was going to get your car?"
King further testified that Stump "kept on after me and
kept on after me days and days after that . . . because I
didn't tell him why I was going to Dayton for." King
was not asked what he meant by this last statement and
there is no credible evidence that the matter was men-
tioned to King after the date of his return from the hear-
ing. Stump testified that he learned that King had been
to the hearing and upon King's return to the plant he
asked King why he had lied about going to get his car
fixed. Stump testified that King responded that he
thought he would be in trouble because he had gotten a
subpena. I believe Stump, that King told him he would
be absent because he was getting his car repaired. How-
ever, I do not believe Stump's testimony that he believed
King. Presumably Stump knew there was a Board hear-
ing that date and, although King was not a known card
signer at the time, he was one of the few employees left
from the layoffs and Stump could not have believed that
the absence was coincidental. But whether King just told
Stump that he was going to Dayton or he told him that
he was getting his car repaired is essentially immaterial.
Stump became infuriated when he found out that King
was actually going to the NLRB proceeding and, as
Stump conceded on cross-examination, although it was 2
or 3 weeks before he decided to discharge King, that
was "locked into my mind that that [sic] one of the
things I didn't like." Stump testified that what it was that
he did not like was being lied to by King about his
whereabouts, not his appearance at a Board hearing.
I do not believe Stump's denial that he harbored
animus toward King's appearance at the Board hearing
and settlement conference. There is no contention that
King's absence caused any substantial disruption in the
janitorial work, which Stump testified was all that King
was qualified to do anyway. The abstract veracity of an
employee who is painted as a bumbling incompetent is
unlikely to be a material factor in an employment rela-
tionship, especially where the innocuous misrepresenta-
tion is in a context unlikely to be believed, was not relied
upon, and is about a topic totally unrelated to the work
for which the employee is supposed to be employed. It is
clear that Stump became and remained angry with King
because of his absence on March 8. If, as Stump testified,
King explained that he lied because he thought he would
get in trouble for responding to a subpena, and Respond-
ent had no intention of punishing King or any other em-
ployee for such response, a realistic reaction by Stump
would have been pity for the employee's ignorance, not
an abiding anger over a childish misrepresentation. I find
K & S C C U . . _2
.
_ _ _, ._ .
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Stump's anger with King was engendered, at least in
part, by the fact that he went to the Board hearing, an
unquestionably protected activity.
On March 28, Stump fired King, McCray, and Mag-
ness. The reason given for the three discharges was
simple incompetence to perform the work which Re-
spondent was required to do to effectuate the EPA pro-
gram.
After King, Magness, and McCray were discharged,
two new employees were hired for maintenance and em-
ployee Michael Rike was transferred from production to
the maintenance crew. While none of the three new
members of the maintenance crew had any particular
qualification, Stump insisted that they got the job done
better than the old crew and this testimony is unrebutted.
The General Counsel makes no contention that Re-
spondent, in any way, violated the Act by the discharges
of Magness and McCray.
b. Shirley Horn
Shirley Horn was among the employees laid off on
October 3. On November 21, she was recalled and, ac-
cording to her unrebutted testimony, was given a full 40-
hour week plus several hours overtime per week work-
ing in the gold room. She attended the March 8 Board
hearing. She testified that upon her return, on a few oc-
casions she was told by her supervisor, Wilbur Crawley,
to eat lunch at a different period from the other employ-
ees. In so doing, she was forced to eat lunch by herself.
Horn testified that, on April 13, she was called to an
office by Supervisor Crawley and told that she was
being laid off for lack of work. She asked Crawley if she
would get unemployment compensation and he replied,
according to Horn, "Well, if they call me and check
with me, I'd have to say you were fired, but Dan [Kneis-
ley] won't fight you." Horn testified that 2 weeks before
her discharge she had gotten an evaluation from Craw-
ley in which he had rated her as a good dependable
worker and had given her a raise. I credit the foregoing
testimony of Horn.
Crawley acknowledged that Horn was:
A good hard worker. She tried to do what she was
told to do. She never give no hassle, she did have a
cripple hand which limited her physically as to
what she could do, but she done real good with
what she had to work with.
When asked why she was terminated, Crawley respond-
ed that, "We were running out of work, didn't have the
work to keep her going, that pure and simple. Our work-
load had dropped off to practically nothing in the gold
room."
While Crawley testified emphatically that Horn was a
good worker and was "laid off" only because of lack of
work, there was received in evidence a written notation
from Daniel Kneisley to the attorney of record stating
the reason for the basis of Shirley Horn's termination
was "Discharged. Just could not do job." Horn was re-
placed in the gold room by Nelda Morris who was re-
called during the week of June 1, 1978. Crawley could
assert no reason for not recalling Horn during that week,
nor was any reason given why Horn was not recalled
when Morris resigned during the week ending June 15,
1978. No other employee was discharged because of a
purported lack of work.
As noted above, Horn was the only employee whose
authorization card was shown to Kneisley who was not
transferred or assigned to the third shift.
c. Delmar Lawson
Delmar Lawson was discharged by Respondent on
April 21. He had been recalled on March 20 pursuant to
the March 8 settlement agreement and placed on the
third shift under the supervision of Mike Kneisley and
Cheryl Brummerstedt.
Lawson testified, that at the beginning of the shift on
April 21, he was called to the office by Michael Kneisley
who told him that he was being discharged for excessive
absenteeism. Lawson was forced to sign a "resignation"
of which Kneisley would not give him a copy. Under
direct examination, Lawson admitted to being absent a
total of 5 days in the month after he was recalled. He
testified that 1 day was for personal reasons; 3 days were
"under doctor's orders to accompany my wife because of
an automobile accident"; and the final day was required
for him to travel out of town because his mother's sister
had been involved in an automobile accident. Lawson
testified that, at an unspecified period of time before each
absence, he called the plant to either Michael Kneisley
or Brummerstedt and they said it would be all right for
him to take the day off. Lawson testified, without sup-
port, that Marlene Victor and Idella Stukins had greater
absentee records than he at the time of his discharge.
Respondent's records reflect that, on March 26,
Lawson reported to Brummerstedt that he would be
absent because his wife was involved in an automobile
accident. The absentee report for that date does not re-
flect whether it was considered excused or unexcused.
Michael Kneisley testified that, on March 28, Lawson
called in to report at 10:30 p.m., a half-hour before his
shift was to start, and told Supervisor Mike McManoway
that he would be absent for 2 days. Upon appearing at
the plant, Lawson filled out an "absentee report" check-
ing the blank for "sickness in the family" and wrote that
the doctor asked for his presence with his wife after an
accident. Michael Kneisley credibly testified that he gave
Lawson a verbal warning for reporting only to
McManoway rather than himself and recorded this fact
on the absentee report. Also on the absentee report is
checked in apparently the same pen used by Kneisley,
the blank marked "unexcused absence." Kneisley testified
that, on April 9, Lawson called in at 11:40 to state that
he would be late, although instructions are for employees
to call in anticipated tardiness no later than 11:10 p.m.,
and that on that date Lawson did not report until mid-
night.
Michael Kneisley further testified that Lawson, on
April 10, called in at 11:40 p.m. to report that he would
be late and he suspended Lawson for a period of 2 days,
or until April 16. On April 19, Lawson called in again to
report that he would be absent because of another acci-
dent in the family and that he would be back to work on
--- ---
K & S CIRCUITS. INC. 1289
April 20. On April 20, Lawson did not report to work.
According to Kneisley, a person identifying herself as
Lawson's mother called to report that he was still out of
town and did not know when he would be back. Fur-
ther, according to Kneisley, because of the previous tar-
diness and absences, and because Lawson's absences and
tardiness interfered with production schedules, and for
these reasons alone, he discharged Lawson on April 21.
Michael Kneisley testified that there was no set
number of absences required for discipline of an employ-
ee, but that he considered Lawson's absences excessive.
d. Marlene Victor
Marlene Victor had been employed by Respondent for
about 6-1/2 years. She was one of the initial employee
organizers of the Union and was one of those who con-
tacted an attorney for advice on how the employees
could organize into a labor organization.
Victor was employed in the printroom before the
layoff of October 2. When Victor was recalled during
the week of March 24, she was placed under the supervi-
sion of Michael Kneisley, Brummerstedt, and Michael
McManoway and assigned to work on the etcher.3 6 She
worked the etcher for 3 weeks when she broke her leg
and then she was off for a period of about 6 weeks. She
returned to work during the week ending June I and
worked that week, the following week, and the week
ending June 22.37 She testified that during the period of
her recall she was once told by Michael Kneisley that
she was taking too long to go to the restroom and that
he was going to write her up for doing so. Michael
Kneisley did not deny this remark, but further credibly
testified that he had to admonish Victor on at least one
occasion to return to her work area after she was talking
to another employee.
Victor's immediate supervisor during the last 3 weeks
of the employment was John Conley. Victor testified
that, on June 22, she was assigned to run some boards
through the etcher. Before her lunch period that day, she
placed some boards in baths and when she returned
Conley instructed her to run the boards through an
etcher again. According to Victor, she ran the boards
"completely through the etcher." Just what happened to
the boards is not disclosed by the record; Victor simply
testified, "Well, they scrapped out." She called Conley
to her work area and he asked what she had done.
Victor replied that she had run them through again and
Conley said, "Not through the front of the etcher."
Victor replied that she had done that because she
thought that was what Conley wanted. Victor testified
that Conley took her to the office of Wilbur Crawley. In
Crawley's presence Conley said that she knew what she
had done and she replied, "Yes, I scrapped out eight
a6 This was a machine to which she had not been assigned before and
she testified that she was given only about 5 minutes' instruction on the
etcher by Michael Kneisley. This, I find. is an exaggeration but it is clear
that she got little training.
37 Victor was one of the employees who testified that the stools were
removed from the third-shift employees. She further testified. without
contradiction, that she brought her own stool to work thereafter and was
instructed by Brummerstedt to take it home.
boards." She asked if she were fired and Conley replied
that she was.
Conley was not called to testify and no reason was ad-
vanced by Respondent for not doing so. Crawley testi-
fied that, during the evening,3 8 Conley brought some
boards to his office and asked if he thought the job had
been damaged intentionally and Crawley replied that he
did. Conley told Crawley that he intended to fire Mar-
lene Victor because of the scrapping of the 8 to 10
boards. Crawley told Conley to call Victor to the office
to handle the discharge which Conley did. 39 Crawley, in
testifying about what happened to the scrapped order,
credibly testified, "That should not have been as such,
one or two boards, but not the whole order, not the
whole order. You just can't work that many boards
without knowing it." Although Victor testified that she
told Conley she thought she wanted her to feed the
boards into the etcher as she had done, she did not tes-
tify that she did, in fact, believe that she was supposed to
feed the machine in the manner she did, and she ap-
peared to have been carefully choosing her words in tes-
tifying on the point. Also, I detected an air of feigned
ignorance in her remark that she thought Conley wanted
her to feed the boards through the front of the etcher.
Victor did not testify that the order involved any new or
unusual procedure and did testify that she never before
had trouble with operating the etcher and "if we had
scrap I never knew about them."
11. Bargaining after settlement agreement
Pursuant to the settlement agreement of March 8, six
bargaining sessions were conducted. The Union was rep-
resented by Attorney Hole, who was usually assisted by
employees Morris, Flory, and Lawson. Respondent was
represented by Attorney Robert J. Brown who was
always assisted by Daniel Kneisley. There are several
matters of dispute about what happened at these sessions.
There is even dispute about when they began and when
proposals were exchanged. On matters involving dates of
the meeting I found the testimony of Brown the more
credible, and I rely on his testimony of when meetings
were held. Hole and Brown agreed to meet for the first
session on May 8. Hole and Lawson testified that it was
at this first meeting that the Union presented its first pro-
posal. Brown testified that, although the Union presented
a list of demands in exhaustive detail, consuming about 2
hours, no written proposal was submitted by the Union
until June 29. I credit Hole and Lawson. It is inconceiv-
able that an initial bargaining session would have taken 2
:'" Crawley testified that at one point during the evening he heard
Victor blurt out to Conley that she knew more about the etcher than he
did. Victor denied making such a remark. I found Crawley. not Victor.
credible on the point, but without the testimony of Conley to supply the
context of the remark I draw no conclusion therefrom.
a9 Crawley testified that after the discharge he escorted Victor from
the plant and. as he was doing so. Victor stated that Crawley should not
be keeping his baby at the plant as he was then doing. When Crawle
asked if Victor were threatening the baby. Victor said that she was not.
Even as Crawley described it, this was not a threat of physical harm to
the infant as Crawley seemed to imply: moreover. it is undisputed i oc-
curred after the discharge had been effectuated. Certainly, Victor's am-
biguous statement did not disqualify her from further employment, as-
suming that a violation in her discharge is found.
K & S CIRCUITS, INC.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours if all the Union was doing was orally reciting a
listing of the categories of things they wanted changed.
Moreover, the proposal submitted by the Union begins:
"This agreement, made and entered into this-day of
May, 1978 .... " This reference to May 1978 is consist-
ent with Hole's credible testimony that the Union was
desirous of reaching an agreement quickly. Also, it is in-
herently illogical that such proposal would have been
submitted in June, and, if it were, there was no evidence
that Brown questioned it.
On June 23, the parties met for the second time. Re-
spondent advanced its initial proposal, the most salient
aspects of which are that it contained no economic pro-
visions, a 90-day probationary period (whereas there
then existed only a 30-day probationary period), and a
grievance and arbitration clause which is binding but re-
quires the arbitrator to "within 30 consecutive days from
the arbitration hearing, render his decision." The parties
went over the proposal for about 2 hours, and it is clear
that Hole objected to the 30-day limitation on the arbi-
trator. Respondent did not agree to eliminate or modify
this provision throughout the negotiations.
At the meeting of June 29, the third, the parties went
over Respondent's original proposal again, Brown giving
explanation of its terms. Brown also testified that the
parties also went over the Union's original proposals.
Hole testified that, after Respondent's original proposal
was presented, Brown absolutely refused to consider any
of the Union's original proposals. Except for certain pro-
visions such as checkoff, arbitration, wages and insur-
ance, Hole specified no provisions of the Union's propos-
als which it brought up and Brown refused to discuss. I
find Hole's blanket conclusionary testimony that Respon-
sent refused to consider the Union's original proposals in-
sufficient to prove the fact.
The fourth meeting was held on July 7. As part of his
general, conclusionary testimony, Hole lumped this meet-
ing with others, and Brown's is not much better. It suf-
fices to say that no agreements were reached.
The fifth meeting was conducted on July 21. Brown
testified that by the end of this meeting the parties had
agreed to Respondent's proposals on a preamble, "intent
and purpose clause," recognitional clause, management
rights, no strike, bumping in layoff situations, funeral
leave and jury duty, duration of leaves of absences, and
nondiscrimination. The parties were apart on probation-
ary periods, shift starting times, overtime pay, grievance
and arbitration, wages, and insurance.
The final meeting was August 20.40 At this, the sixth
meeting, according to Brown, wages and insurance were
the principal topics of discussion. According to Brown
the Union wanted insurance "picked up as part of the
economic package. We agreed to that." Brown also testi-
fied that he explained to the Union that because of "our
EPA problems and also our business problems," Re-
spondent could afford no wage increases at the time, but
Respondent would agree to a wage reopener, and the
no-strike clause would not be effective until wages were
agreed upon, after 3 months.
40 There is no credible testimony which would place the responsibility
ror the delay on Respondent.
On September 1, Brown sent Hole a comprehensive
proposal embodying Respondent's previously stated posi-
tions and the following modifications: Probationary
period proposal was reduced from 90 to 60 days: dis-
charges must be "for cause" before they would terminate
seniority; senior employees need not have held a job per-
manently before they could bump into it, as originally
proposed by Respondent; reporting pay upon machinery
breakdowns was increased from zero to 2 hours' pay,
while the Union was requesting 4 hours. Finally, the pro-
posal included no wage increases but did include the 3-
month wage reopener mentioned above. The proposal
was transmitted by letter which invited Hole to contact
Brown if there were any question about it.
In the Union's initial proposal, the following term is
contained: "All employees covered by this agreement
shall receive a - cent (-¢) an hour increase on June 1,
1978." Hole testified that the blanks were never filled be-
cause, from the start of negotiations, Brown stated: "We
will not negotiate anything that's financial." Further ac-
cording to Hole, at the second meeting he made an in-
surance proposal and Brown replied, "That's financial.
We're not discussing that." Lawson testified, "On numer-
ous occasions the Union suggested talking about wages,
but the company refused to talk about them at that time,
giving us an explanation that we have to have a skeletal
setup for our agreement, being that we are going to get
the structure of an agreement down before we'll talk
about the wage." Brown testified that, at the first meet-
ing, he told the Union:
. . .we intended to submit a proposal to them as
generally the standing practice in most negotiations
that I deal in . . . we proposed at first that we talk
about the language matters and we try to get those
out of the way and get them solved and then get
into talking about economic considerations. He told
them that we weren't precluding one versus the
other but it probably would be easier to set forth
the basis of the contract before we got down into
talking economics.
Hole credibly testified that there was no discussion of
the 3-month wage reopener described above or insurance
before the September I proposal by Brown. From the
credible testimony of Hole and Lawson, as well as the
corroborative fact that ultimately no financial changes
were offered by Respondent, it is clear that economic
items were precluded from discussion by Brown until his
comprehensive proposal of September 1, his protestation
that it was just a suggestion because he thought it would
simply be "easier" to discuss economics first notwith-
standing.
Hole testified that, at all bargaining sessions, Brown
refused to consider a checkoff proposal stating only that
there just would be none. Brown denied rejecting check-
off out of hand. As a reason for rejecting it, according to
Brown, he told the Union that "with the bookkeeping
facilities that we had that we didn't feel that the addi-
tional administrative expense of having a checkoff was
such that we could afford it." As reflected by Respond-
ent's Exhibit 53, it, at the time, maintained a sophisticat-
K & S CIRCUITS, INC. 1291
ed computerized payroll which had at least three col-
umns 4 ' where such deductions could have been entered.
As noted, the Union proposed continuation of the 30-
day probationary period. Brown countered with a pro-
posal for 90 which he ultimately reduced to 60. No ex-
planation of why Respondent needed an enhanced proba-
tionary period was offered at the hearing.
Finally, the General Counsel contends that Respond-
ent refused to negotiate an agreement which embodied
any continuation of smoking rights. The only evidence
on this point is that the Union's original proposal includ-
ed a provision which would give seemingly limitless au-
thority to ban smoking in the work area, and Respond-
ent's proposal made no mention of "smoking rights."
The effect of either position is the same, especially in
view of the broad management-rights clause to which
the Union quickly agreed; management would designate
smoking areas. It is undisputed that, in the production
processes described above, volatile chemicals are used at
different stages, and some chemicals are substituted for
others from time to time.
In addition to contract items, Brown testified that, at
one of the meetings, which he believed to have been the
July 21 meeting, the Union questioned the move of the
automatic router to one of the corporations newly
formed by Kneisley. Brown testified that he told the
Union that "that piece of equipment was not something
that was being operated by bargaining unit people. It
was being run by technical people who were excluded
from the agreement .... The reason we're moving it
from that operation was that . . . Dan had started a new
type of business in the area. It would not affect anybody
in the bargaining unit. We explained that to them that it
would not affect anyone." As noted above, footnote 23,
"technical" employees were excluded from the unit de-
scribed in the March 8 settlement agreement. No basis
for classifying the employees as "technical" was ad-
vanced at the hearing and, from this record, it was not
questioned in bargaining either.
12. Board Order setting aside settlement agreement
The several charges filed after March 8 relate to Re-
spondent's post-settlement conduct. On July 31, 1978,
complaint issued in Case 9-CA-12652, and on September
13, 1978, complaint issued in Cases 9-CA-12779 and 9-
CA-12779-2 which were consolidated that date with the
July 31 complaint. These complaints, as consolidated,
allege as violations the various matters discussed above
which occurred after March 8. Because the General
Counsel wished to litigate the presettlement conduct dis-
cussed above, and because of the obvious problem posed
by the limitations provision of Section 10(b) of the Act,
the General Counsel, on November 30, 1978, moved to
the administrative law judge originally assigned to the
matter that he withdraw his approval of the settlement
agreement and his dismissal of the charge and complaint
and that he reinstate the complaint in Case 9-CA-11799
and consolidate it with the then outstanding complaints
for further proceedings. As a basis for the motion, the
41 Columns "G," "H." and "Mlsci I ANI.Ous AMOUNTS & COI)"- are
unused.
General Counsel stated that Respondent had failed to
comply with the terms of the oral settlement by certain
of the conduct mentioned above. Respondent opposed
the motion stating that it had in all respects complied
with the settlement agreement. On December 19, the ad-
ministrative law judge then assigned denied the motion
of the General Counsel. On January 2, 1979, the General
Counsel filed with the Board a "Request to Board for
Special Permission to Appeal Ruling on Motion by Ad-
ministrative Law Judge" and further filed, on February
26, 1979, a brief in support of said request, arguing addi-
tionally that the complaint should be reinstated because
Respondent had paid only $8,000 of the $20,000 to the
Union as provided by the agreement. On March 8, 1979,
by telegraphic order, the Board issued a telegraphic
order stating:
Request for special permission to appeal from the
Administrative Law Judge's ruling denying motion
to withdraw dismissal of Complaint is hereby grant-
ed and the Administrative Law Judge's ruling is re-
versed.
It is undisputed that, until the date of the hearing herein,
Respondent had not tendered the balance of the moneys
called for by the agreement. Respondent replies that its
failure is excused because there was a prior breach by
the Union in its failure to submit waivers of reinstate-
ment from all the employees who were not recalled, or
reinstated, pursuant to the settlement agreement. Re-
spondent further denies that its conduct, after March 8,
violated the settlement agreement or the Act.
IV. ANALYSIS AND CONCLUDING FINDINGS4 2
A. The "Layoffs"
Respondent contends that the layoffs of September 26
and October 3 were mandated solely by business condi-
tions, and Kneisley testified that the employees had been
forewarned of the layoffs by an April 20, 1977, an-
nouncement of changes in supervision, the May 20, 1977,
announcement of a "hiring freeze," appeals to reduce
scrap, and the general knowledge that Respondent was
having problems with the Ohio EPA. However, hirings
continued despite the announced freeze and neither it,
nor the appeals for better proficiency, nor awareness of
the EPA problems contained either conditional or cate-
gorical warnings that any employee's tenure of employ-
ment was in jeopardy. Kneisley described dark days in
the history of the business precipitated by the specter of
42 Not mentioned before, because it has nothing to do with anything
else that happened in the case. is the fact that in a booklet of "Plant
Rules" which has been in effect at Respondent's plant since 1974 is a rule
prohibiting: "Posting, publishing and or distributing written or printed
matter of any description on Company property without written permis-
sion from the Company." As amended at hearing, the complaint alleges
that this is an overly broad no-distribution rule, since it would include
protected union and concerted activities within its sanctions against dis-
tributions during nonworking time in nonwork areas. Stoddard-Quirk,
Manlufacuring Co.. 138 NLRB 615 (1962). Although the rule was pro-
mulgated before the limitations period of Sec. 10(b) of the Act itl mainte-
nance therein constitutes an independent violation of Sec 8(aXl) of the
Act. aro, Inc.. 172 NLRB 2062 (1968).
K & S CIRCUITS, INC. 91
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Ohio EPA and financial peril imposed by taxing au-
thorities. Yet, never before the onset of his employees'
organizational attempt was he "required" to impose a
multiemployee layoff.
The defenses for the layoffs, which Kneisley mostly
lumped together in his testimony, are spurious. The em-
ployees had to be wrenched away from the work that
surrounded them. Respendent posted a notice that the
sole reason for the first layoff was "lack of work" when
its own records showed approximately a quarter-million-
dollar backlog. (The relative size of this backlog is dem-
onstrated by the fact that Kneisley agreed on March 8 to
"recall" 14 employees when February's ending balance
of orders was only $55,734.56.) Kneisley acknowledged,
even insisted, that Respondent was not meeting shipping
dates and, according to the testimony of Hall, who over-
heard Brummerstedt talking to Haworth, he was then
making promises of production dates which would be
difficult, if not impossible, to meet. The employees were
working overtime regularly and were promised more.
Knowledge of these factors was assuredly what reduced
Smith to tears as she informed Morris and Harleman of
their layoffs, caused McNutt to be enigmatic toward
Fultz and Davis when informing them of their layoffs,
,and further caused McNutt to refuse flatly to respond to
the direct inquiry by Hine "if I was being laid off be-
cause of the Union." That is, neither the September 26
nor the October 3 layoffs were caused by "lack of
work," as Smith and McNutt well knew.
At the time of the layoffs, Kneisley did not consider
the Ohio EPA to be a serious threat to the operation
and, at the time, it was not. Respondent had been ac-
cused of noncompliance literally for months by Septem-
ber 1977. The Ohio administrative procedures had not
gotten beyond the routine letter-writing stage; closure
had not been threatened; and prosecution was problem-
atical. When Smock gave up on the construction in
August, no one supervised the project until Stump was
hired on November 7. Respondent's letter of March 8,
1977, to the Ohio EPA described the employees assigned
to the project as "lacking in proper skills," but Respond-
ent continued with these employees until March 28,
1978, when the three were fired for total incompetence
to help with the construction work.
Respondent further blames the layoffs on the scrap
problems which its brief describes as "horrendous" but
which Drilling Supervisor Smith described as a "little
scrap here and there." Whatever its extent,4 3 Respond-
ent blames the scrap, and customer rejections, entirely
upon the employees. If the performance of the work
force had truly been at the nadir state depicted by Re-
spondent, at least some, or all, would have been warned
that their livelihoods were in peril. No employee was
warned; none was even advised of the amorphous, and
incredible, criticisms advanced by the Kneisleys, Craw-
ley, and Mason.
Finally, Kneisley credits the layoffs to a high labor-
cost-to-shipped-sales ratio. Kneisley testified that when
the ratio exceeds 30 percent "you have a problem some
'3 As noted. meaningful comparisons are impossible because only 4
months' scrap records, which constitute only a "trend." were placed in
evidence.
place, a very definite problem." While Kneisley de-
scribed the problem as solely one of wretched employee
performance, it is obvious that at least one factor in Re-
spondent's labor costs was the great amount of overtime
it was paying Lawson and the other employees in the
month of September. At any rate, although the ratio had
exceeded 30 percent many times in the past, according to
Respondent's records this time something had to be done
or, according to Kneisley, the business would not last
long. Just how long Kneisley would have the Board be-
lieve the business would have lasted without the layoffs
is unclear. At one point he testified that the business
"wouldn't have been there another 30 days" and at an-
other that "in a very few months, it was going to be
very difficult for K & S to get work because we had
many dissatisfied customers." "Dissatisfied" or not, Re-
spondent, even by Kneisley's palpably disingenuous esti-
mates, had customers enough to supply work for at least
30 days' work, and possibly enough for a "few months."
Certainly there was enough to let the employees finish
the days of their layoffs.
Whatever Respondent's corporate life expectancy was
on October 3, Kneisley attempted to fill it without any
of the core of personnel involved in the organizational
attempt-the production employees. Retained were only
the maintenance employees (including King), group lead-
ers (except Lawson), inspectors (who were ultimately ex-
cluded from the agreed-upon unit), and supervisors (in-
cluding Baker who, after she brought informant Price to
Kneisley, was promoted even as the employee comple-
ment to be supervised was being decimated, and Crawley
who remained to operate the gold room although he was
totally ignorant of its processes).
Kneisley's testimony about the process of deciding
who was to be "laid off' and who was to be retained is
plainly incredible. If, as he testified, as much as a month
before the layoff he went over lists of employees with
supervisors in the processes of selecting on the basis of
merit, surely one of them would have been called to tes-
tify by Respondent, or at least named by Kneisley. Ac-
cording to this record, the only admitted supervisors
consulted were Brummerstedt and McNutt. Brummer-
stedt knew the reason for the first layoff, and so testified
when called by the General Counsel as described above.
McNutt was apparently consulted, or advised, of the
"real reason" (to use his words to Lawson, Fultz, and
Davis) for both, but he was not called by Respondent,
and I have drawn the appropriate inference adverse to
Respondent for its failure to do so or to explain why it
did not.
Conversely, Kneisley's testimony about who was
chosen to be retained on October 3 is equally incredible.
Kneisley testified that, ultimately, only that personnel
who were "receptive to change" were retained. How he
knew the office personnel was "receptive to change" re-
quired in production was not explained by Kneisley. Fur-
thermore, employees Baker, Horn, McCune, Patty Price,
Rike, and Meyer were recalled for production in Octo-
ber and November. Why he felt they had become "re-
ceptive to change" between the dates of their layoffs and
their recalls was also not explained by Kneisley.
K & S CIRCUITS, INC. 1293
In short, I do not believe the testimony of Kneisley
that the receptiveness to change, or merit, of the em-
ployees had anything to do with the decision of who was
selected for layoff. The layoff of October 3 also was not
simply an attempt to reduce the labor-cost-to-shipped-
sales ratio. While the ratio did drop from 51 percent to
25 percent between September and October, it is not
unfair to assume that some of September's production
(which took significant overtime to complete) had to be
shipped in October. The ratio for November, when all
those shipments had assuredly been made and the regular
production employees eliminated, was not offered.
In summary, I find Kneisley's threefold reasons for the
layoffs to constitute a complete sham. Specifically, I find
the pictures Kneisley painted of himself being forced to
terminate the production employees by financial reports
he received immediately before the layoffs to be com-
plete fabrications. I find that the "real reason" for the
layoffs lies in the antipathy for unions held by Kneisley
which, according to the credible testimony of Hirby,
Kneisley had long vowed to exclude absolutely.44
Almost immediately upon learning of the September 21
organizational meeting from Patty Price and Baker,
Kneisley counseled with Brummerstedt. Together they
selected the suspected leaders, Morris, Hirby, and
Lawson. Morris and Hirby were immediately laid off
and, according to the credible testimony of Brummer-
stedt, because he "knew that was going to be ques-
tioned," Kneisley also included Hine, Hefelfinger, Harle-
man, Fultz, and Seabold. Brummerstedt communicated
this information to Supervisor Myers and Myers con-
veyed it to employee Wolfenbarger. This latter action,
the General Counsel contends and I agree, is an inde-
pendent violation of Section 8(a)(l) of the Act. Brum-
merstedt further told Myers at one point that, although
employees were to be terminated because of the organi-
zational activity, they would be proffered the pretext
that the action was being taken "because of the EPA and
because of lack of work."
Then, I find, because Kneisley learned from Hole's call
to Smock that activity was continuing and the employees
had hired a lawyer to help them, that is exactly what
happened on October 3. The only change was that
Kneisley added the "scrap" pretext to the litany to be re-
peated by those charged with implementing his decision.
Lovejoy could not keep it straight, or she tried to im-
prove on it-she told Betty Baker that "EPA has closed
them up." Baker knew that was not true and told Love-
joy so. Lovejoy (in an apparent degree of veracity which
caused Respondent to decline to call her to testify or ex-
plain not doing so) replied: "I know, but this is what I
was told to tell you." Other supervisors or agents forgot
the "scrap" or "lack of work" pretexts. The inability to
keep the reasons straight (Kneisley himself left out
"scrap" the first time at the hearing he tried to advance
an explanation for the layoffs) is further demonstration
that they were false.
44 Also relevant to this conclusion is the undenied credible tesimony
of employee Judith Weber that, a few weeks before she quit on June 16.
Brummerstedt told her that Kneisley "would never have a union in the
shop. and he would do anything to prevent it"
More direct evidence was adduced: McNutt told em-
ployee Davis on September 29 that the employees were
going to be laid off the following week because "Dan
has it all figured out in his head how he's going to beat
this thing." McNutt told Lawson, one of the employees
suspected by Kneisley to have been an initial organizer,
that "we both know the real reason why the layoffs."
The same statement was made by McNutt to Fultz.
McNutt was again being enigmatic, but it was clear that
he was conveying to the employees that the responsibili-
ty for the layoffs was the organizational attempt; it was
the only unusual "thing" which was occurring at the
plant at the time, at least as far as the employees knew,
and it was assuredly the "real reason why the layoffs."
However, the processes of deduction are hardly re-
quired to arrive at the same conclusion; Lovejoy told
Pike unequivocally that the reason for the layoff of Oc-
tober 3 was the organizational attempt. Of like compel-
ling nature is the credible testimony of Brummerstedt
that the attempt was the sole reason for the terminations
of September 26.45 This evidence makes the conclusion
inescapable that all employees who were "laid off" (actu-
ally discharged4 B) on September 26 and October 3, 1977,
were discriminated against by Respondent in violation of
Section 8(a)(3) of the Act.
B. Creation and Operation of the Third Shift
Assuming that some employees had to staff a third
shift, this still does not explain why only employees re-
turned pursuant to the settlement agreement and those
who had previously been recalled who had signed union
authorization cards which were shown to Kneisley on
March 847 were assigned to it. Daniel Kneisley offered
generalized testimony, which I do not credit, that some-
how the jobs were then more difficult and the returning
employees were placed on the third shift for training in
vaguely described new procedures. However, there is no
evidence that any of the so-called "new procedures" re-
quired special skills or training. In fact, from this record
all the production jobs were unskilled and required little
training.
I find and conclude that the third shift was created
and only union adherents (or "union people" as Third-
Shift Supervisor Leffew categorized them) assigned to it
because of the inherently more onerous nature of those
working hours and the facility it presented for isolating
the employees assigned to it.
I do not believe Kneisley's testimony of why a third
shift was created rather than assigning the returning em-
ployees to the first or, at least, the second shift. I dis-
credit the testimony of Stump as well, that any produc-
tion employees would have been in the way of the main-
tenance crew on the second shift. Until April 15, the
maintenance crew was able to work around the first shift
4' Marcel Schurman Co.. Inc.. 238 NLRB 1277 (197X.
'4 Since the employees were not afforded recall rights, they were actu-
ally discharged even though they were told they were "laid oft' and
some were told when to expect recall No matter which ords ssere lsed
at the lime of termination, or in the complaint, the remedy is the same
Incjan iraolportalio, Inc., 249 NL.Rh 642 (19X8O)
I talker anlld Meyer.
K & S CIRCUTS, INC I 3
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production employees without apparent difficulty. Also,
employee Mike Rike, who Stump testified was trans-
ferred from production to maintenance because of his
ability to help in the EPA work, is shown by Respond-
ent's Exhibit 44 to have worked exclusively on the first
shift, not the second; therefore the extent of "second
shift" EPA work is entirely conjectural.
The complaint alleges that Respondent isolated union
adherents from employees who were not. I agree. Re-
spondent manipulated the lunch periods of those union
adherents who were briefly allowed on the first shift. It
transferred them to the third shift. On the third shift it
required them to report to the lunchroom for assign-
ments at the start thereof and released them one-half
hour before the first shift reported. By these actions their
isolation was complete; they were quarantined from the
other employees as if they were possessed of some dread
communicable disease. This isolation of employees be-
cause they were union adherents who had invoked
Board processes which led to the March 8 settlement
agreement constitutes discrimination violative of Section
8(a)(3) and (4) of the Act.
The General Counsel has shown that the third-shift
employees alone were no longer permitted to use stools
which undoubtedly made working those hours even
more onerous. They were subjected to a new system of
warning notices which Brummerstedt's credible testimo-
ny demonstrates was a method of "case building," not a
"communications link" to help them as Kneisley testi-
fied. 48 They were subjected to a "musical chairs" exer-
cise in Michael Kneisley's assignments to jobs which
they had not done before, as Brummerstedt told Myers,
in an attempt again, to make working for Respondent
more difficult. Each of these actions constituted group
discrimination against the union adherents, and each con-
stitutes independent violations of Section 8(a)(3) and (4)
of the Act.
The complaint further alleges that, beginning March 8,
Respondent discriminatorily intermittently laid off the re-
called employees 49 and refused to allow them to finish
their workdays. I agree. Respondent's records analyzed
above plainly demonstrate that non-card-signing employ-
ees were almost invariably permitted to finish a 40-hour
week while card signers (while on the third or temporar-
ily on the first shift) were sent home early, even if only
tenths of hours in days, or weeks, were left in a work-
week. The only possible explanation for this selective
niggardliness in the distribution of the work is the fact
that one group had signed cards designating the Union as
their collective-bargaining representative and others had
not.
The records from the week ending May 18 reflect a
pattern of systematic discrimination against union adher-
ents. While a few of the short weeks of the third-shift
48 The complaint alleges, and I find and conclude, that, as a part of
this case-building system of warning notices, employee Gary Flory was
forced to sign the May 30 warning notice that if he produced any more
scrap he would be discharged. Whether or not the warning was warrant-
ed, the written memorandum was a product of a warning system imposed
in violation of Sec. 8(a)(3) and (4) of the Act, and the issuance thereof
likewise violates those sections.
4~ The allegation includes Elmer King. Apparently this is by inadver-
tence since King was not "laid off' at any time.
employees were explained by either their quitting in mid-
week or illness or other specific reasons, the only expla-
nation offered by Daniel Kneisley when he was called to
testify about most of the reduced workweeks of third-
shift employees was that "lack of work" in various de-
partments was responsible. He explained some of the
overtime that the first-shift employees received by point-
ing out that Sharon Scott and Opha Mast were inspec-
tors who were doing a great deal of work in actual pro-
duction of the boards, and that David McCune was
given extra overtime to mix chemicals in the plating de-
partment. It is beyond dispute that this was production
work necessarily denied the card signers. Also, it is to be
noted that Kneisley, when testifying about why the
second shift was abolished, testified that the time was
also used as "carry over hours" so that the first shift
could finish its work on overtime. In so doing, Kneisley
acknowledged that a decided preference was given to
the first-shift employees in regard to overtime while the
third-shift employees, according to the records and the
testimony, were not only denied overtime, they also
were sent home early even when only tenths of hours re-
mained on the shift. 50 After May , the first shift was
staffed almost entirely by nonunion employees. 5 ' Assum-
ing the most modest desire for continuity of workflow,
the only distinguishing factor between the treatment of
the two shifts is that those on the third had signed au-
thorization cards for the Union.
Therefore, I find and conclude that the General Coun-
sel, in addition to the various forms of unlawful discrimi-
nation imposed on the third-shift employees mentioned
above, has established that Respondent intermittently laid
off and shortened the workdays of the group 52 of em-
ployees who had signed cards authorizing the Union as
their collective-bargaining agent and had been recalled
pursuant to the settlement agreement of March 8 and
that all of said actions violate Section 8(a)(3) and (4) of
the Act, as alleged.
Finally, I conclude that the General Counsel has
proved that the employees recalled pursuant to the set-
tlement agreement were discriminated against in viola-
tion of Section 8(a)(3) and (4) of the Act when they
were required to take math tests and fill out new applica-
tions. While it is true that there is no evidence that the
employees were deprived of any seniority rights which
had not already been extinguished in the terminations of
September 26 and October 3, and it is further true that
Hirby refused to take the test and was not penalized, it is
clear that the employees were told that a condition of
their resumed employment was not that they complete
the applications and tests. Since the only reason they
were subjected to such processes was that they had been
unlawfully terminated because they had engaged in
"' It is also to be noted that the staffing of the first shift included two
part-time employees (Jamisonl and Scott). thus commensurately reducing
the Aork opportunities for the third shift.
"' The only exception is Morris' employment for 2 weeks and 2 days
before she quit.
:2 Although the complaint name, specific employees discriminated
against in this regard, the General Counsel did not ask for a remedy in
each case, contending at the hearing that the matter was placed in issue
only to show a pattern of discrimination.
1295K S CIRCUITS, INC.
union activities and invoked Board processes, it is clear
that the tests and applications were conditions of em-
ployment which strike at the heart of the Act's protec-
tive provisions. The fact that an exception was made in
Hirby's case when he refused to take the test does not
prove that if any other employees had done likewise
they too would have been reemployed.
Even if their seniority or other rights were not direct-
ly affected after March 8, the requirement of math tests
and applications of the reemployed employees constitutes
an independent violation of Section 8(a)(l) of the Act.
The process demonstrated to the employees that they
were on a different employment footing from that which
they enjoyed before their terminations of September 26
and October 3. Respondent, in effect, was telling them
that they were starting all over and they had to prove
their worthiness again, all because they had engaged in
activities protected by Section 7 of the Act. The inhibit-
ing effect is obvious and it would necessarily interfere
with, restrain, and coerce Respondent's employees in any
future exercise of their rights guaranteed in Section 7 of
the Act.
I have previously found, contrary to the contention of
the General Counsel, that there is insufficient evidence to
prove that Respondent reduced restroom privileges to
the third-shift employees. I also find, further contrary to
the General Counsel's contention, that there is insuffi-
cient evidence that Respondent discriminatorily denied
smoking privileges to the third-shift employees. While
the employees testified that new "No Smoking" signs
were put up, there is no evidence that they did not
remain up when the first shift reported and no credible
evidence that the signs were intended other than to make
the plant safer from the peril of fire.
I further find the evidence regardinq the May 11,
1979, 2-day layoff of employees Betty Baker and Harold
Teaford insufficient to make out a violation of the Act.
The layoff was remote in time from all the other events
of the case, occurring 9 months after bargaining had ter-
minated and almost a year after the third shift was dis-
continued. There is no indication that the reason given
by Leffew and Kneisley-EPA changes-was this time
false; in fact, the State of Ohio by that point had institut-
ed legal proceedings against Respondent. Moreover, a
third employee, Scroggins, was laid off at the same time
for the same stated reason and there is no contention that
Respondent's action in Scroggins' case was in any way
unlawful. Finally, if one employee was to be retained, it
made good business sense to retain the one who was sal-
aried and getting paid anyway. This was Leffew's sworn
reason for retaining "management trainee" Fenton over
Baker and there is no probative evidence that it was
false. In Teaford's case there is nothing but absolute
speculation to support the contention that the layoff was
caused by improper motive. Accordingly, I shall recom-
mend that the allegations regarding the May 11, 1979,
layoff of Teaford and Betty Baker be dismissed.
C. Constructive Discharges
1. Rue, Roberts, Harleman, Weber, and Price
It is clear that the employees who were assigned to
the third shift were subjected to more onerous and un-
lawful working conditions as discussed above. The in-
quiry is: Did these conditions cause the employees in
question to resign, and did Respondent know that the
tendered resignation was premised on the conditions
complained of as intolerable in court? In a case squarely
on point, Unimet Corporation, 172 NLRB 1762 (1968), an
employee was assigned a shift which, for her, was impos-
sible to work. Rather than tell the employer it was an in-
tolerable condition of employment the employee accept-
ed the transfer and then simply failed to report. The Ad-
ministrative Law Judge in an opinion adopted in relevant
part by the Board held that no constructive discharge
was made out because the employee's agreement to the
assignment deprived Respondent of an opportunity for
final reconsideration and rescission of its transfer order.
In that circumstance no constructive discharge was
found. This rule is fair; if an employer is not at least put
on notice that the employee affected considers the as-
signment intolerable and and that it is the basis for resig-
nation, it cannot be said that it knowingly caused the ter-
mination. After all, even though the "graveyard" shift is
inherently more onerous, it is not intolerable to every
employee, and some prefer it. Therefore, unless Re-
spondent was put on notice that the assignment to the
third shift is the basis for the tendered resignation, a vio-
lation cannot be said to have been made out.
Ellen Rue and Anne Roberts are the only employees
who lay the necessary predicate for making a construc-
tive discharge out of their assignment to the third shift.
Rue told Brummerstedt that she could not work the
third shift and asked for a transfer to the first. Brummer-
stedt refused and Rue immediately quit. Roberts was first
assigned to the second shift, then transferred to the third
after a month. She quit immediately upon the assign-
ment, to which Brummerstedt commented, "Good." She
did not give a reason and Brummerstedt did not ask.
However, since the resignation was tendered immediate-
ly upon the assignment to the third shift, Respondent
was effectively given notice that the assignment was the
reason for the resignation. In these circumstances, I find
and conclude that Rue and Roberts were constructively
discharged by Respondent in violation of Section 8(a)(3)
and (4) of the Act.
On the other hand, Harleman quit primarily, I find, be-
cause of his personal dislike for Michael Kneisley, and
only secondarily because he was assigned to the third
shift. However, no matter which reason was paramount,
Harleman worked the third shift for 2 days and quit
without giving reason. In the circumstances, Harleman's
case falls squarely within the rule of Unimet and there is
no constructive discharge made out.
The same is true of Price and Weber. Weber told
Brummerstedt she was going to quit to go on vacation,
not that the third shift was intolerable. Price worked 2
months and simply announced to Brummerstedt that she
wished to stay home. Accordingly, it must be concluded
& I ITS, INC.
1295
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Weber and Price were not constructively discharged
by Respondent.
2. Salyers and Meyer
Salyers' case requires no legal analysis. She was not
deprived of work to the extent she claimed in her affida-
vit, and her quitting, accordingly, cannot be held to con-
stitute a constructive discharge.
Scott Meyer quit rather than produce a physician's
excuse. This is hardly an "intolerable" condition assum-
ing that it was discriminatorily imposed by Brummer-
stedt. Moreover, this is an assumption in which one may
not logically indulge since it was Meyer, not Brummer-
stedt, who brought up the possibility of a noxious effect
upon himself of the chemicals being used. In this circum-
stance, Brummerstedt's requirement of a physician's
clearance was neither illogical nor unreasonable and cer-
tainly not intolerable.
D. Discharges
1. King
Although it is clear that Stump bore animus toward
King because of the employee's protected activity-his
appearance at the March 8 Board hearing and settlement
conference-the inquiry hardly stops there. There is no
real dispute by the General Counsel that King was, in
fact, incompetent. While it is true that Respondent had
endured King's incompetence for about 6 years, and
Stump himself had put up with it from November 7, it
cannot seriously be argued that Respondent should be re-
quired to endure it forever, even though Respondent also
was hostile toward either King's appearance on March 8
or his union membership which was disclosed in the card
check of that date, or both. Also, it is significant that
Magness and McCray were discharged as part of the
same decision that affected King; and the General Coun-
sel makes no contention on their behalf. Specifically, the
General Counsel does not contend that they were dis-
charged in an attempt to "get" King, which, if proven,
would constitute a violation in their cases. Nor does the
General Counsel contend that King, because of superior
abilities, should have been spared when Magness and
McCray were discharged.
In these circumstances, I find that, while there was
animus toward King's protected activities, he was dis-
charged solely for incompetence, and by said discharge
Respondent has not violated the Act.
2. Horn
Shirley Horn was competent enough a worker to have
been one of the few voluntarily recalled by Kneisley
after the October 3 "layoff." She was even good enough
to get a raise when Respondent's other labor costs had
been substantially increased by the recall which began
after the March 8 settlement. (The degree of concern
with labor costs professed by Kneisley, supra, should be
remembered.)
Horn was discharged 2 weeks after her raise, without
warning of any deterioration in her performance, be-
cause, as Kneisley put in writing to his lawyer, she "just
could not do job." This is totally inconsistent with Craw-
ley's testimony that Horn was, despite a physical handi-
cap, a superior worker and is further inconsistent with
the fact that she received a raise when, according to this
record, almost no one else did. This conflict is fatal to
any contention that Horn was discharged for any consid-
eration relating to merit. Also Crawley's testimony that
Horn was "laid off" for lack of work cannot withstand
scrutiny. No other employee was terminated for "lack of
work" and the gold room is just one link in the produc-
tion chain. Respondent did not just stop gold plating the
connections on circuit boards; the gold room was not
dismantled. Even if it had been, there is no evidence that
Respondent had even tried to find something else for
Horn to do in the plant. All the employees on the third
shift were given new jobs, even when some training was
required, but not Horn, even though her supervisor
praised her soundly and Kneisley presumably thought
her "receptive to change" (to use his words) enough to
call her back from the October 3 layoff without compul-
sion of Board Order or even a settlement agreement.
Further belying the contention that Horn was termi-
nated because of lack of work in the gold room is the
fact that she was given no consideration in June when
Morris, who had not worked the gold room before, was
recalled and placed there.
Finally, Crawley told Horn that she was laid off be-
cause of lack of work, but he would have to tell the
Ohio unemployment compensation authorities that she
was fired, so that her right to unemployment compensa-
tion would not be contested. The ambivalencies or in-
consistencies demonstrate that the justifications which
would be advanced for the discharge had not even been
clearly formulated at the time it was implemented; that
is, Crawley's statements to Horn further demonstrate the
false nature of the reasons advanced for the discharge.
Horn was the only card signer whose identity was dis-
closed to Kneisley on March 8 who was not exiled, im-
mediately or ultimately, to the third shift. 53 Perhaps it
was because she was responsible for two children and
would have to be at home at night, and Respondent
knew her transfer to the third shift could not possibly
withstand scrutiny in a constructive discharge context
that she was not given the "opportunity" to transfer to
the third shift. I need not speculate. The reasons asserted
for Horn's discharge are plainly false, and I find and
conclude that the real reason for her termination lies in
the fact that hers was one of the authorization cards
shown to Kneisley on March 8 and she was discharged
as a part of Kneisley's determination to isolate or elimi-
nate every employee who had joined the Union.
Therefore, I find and conclude that Respondent dis-
charged Shirley Horn in violation of Section 8(a)(3) of
the Act.
3. Lawson
The General Counsel does not contest Michael Kneis-
ley's testimony of the number of times Lawson was
r: I exclude Morris who, like many others, was initially sent to the
first hift upon recall. but quit 2 weeks later
K & S CIRCUITS. INC. 1297
tardy or absent. The General Counsel argues that Law-
son's record "does not present sufficient justification, in
the circumstances of this case, to warrant a finding that
Lawson was discharged for cause." Of course, in so ar-
guing, the General Counsel is attempting to substitute his
judgment for that of Respondent as to what constitutes
"sufficient justification." There is no evidence of discrim-
ination; no employee, before or since, including Lawson,
was shown to have an equal or worse attendance record.
Therefore, while Lawson was (correctly) suspected by
Daniel Kneisley to be a member of the avante garde
which formed the Union, and at the time of his discharge
Lawson was the president of the Union (and further as-
suming Respondent's knowledge of that fact), and while
Lawson was a victim of Respondent's animus in being
discharged on October 3 and later transferred to the
third shift (and deprived of his group leader position) in
the first place, there is no effective refutation of Michael
Kneisley's testimony that he considered Lawson's absen-
tee and tardiness record excessive, and that Lawson was
discharged for that reason alone.
Accordingly, I find and conclude that Respondent has
not violated the Act in the discharge of Lawson.
4. Victor
Marlene Victor's case presents the hardest questions
among the discharges. She was a victim of Respondent's
animus when she was terminated on October 3 and she
was later discriminatorily assigned to the third shift
along with the rest of the employees involved in the set-
tlement agreement or who had signed cards for the
Union. She was given the new job of running the etcher
and she had received no previous warnings regarding
scrap. Then the first time, according to this record, she
had some she was fired.
However, she did not just scrap one or two boards;
she scrapped eight. Crawley's credible testimony was
that the operator of the etcher would know when more
than a couple of boards were scrapped, and Victor did
not deny it. There is no evidence that any other employ-
ee scrapped as many as eight boards at one time and was
not disciplined. Therefore, there is no evidence of dis-
crimination. While the punishment of discharge may
seem severe, it is not the place of the Board to sit in
judgment on the degree of discipline imposed absent evi-
dence of unequal penalties for like offenses.
Accordingly, I find and conclude, although the case is
not without its suspicions, that the General Counsel has
not proved by the preponderance of the evidence that
Victor was discharged in violation of the Act.
E. Bargaining Obligation, Bargaining After Settlement
Agreement, and Alleged Unilateral Actions
Received in evidence (G.C. Exh. 21) was a list of
names and dates of hire of 43 employees of Respondent
as of September 26. By counsel, Respondent stipulated
that each of the listed employees was a member of the
production and maintenance unit found appropriate
herein subject to his review of all employee records
before the close of this hearing. Respondent made no at-
tempt to secure additions or deletions, therefore I find
that the employees listed were all of these employed in
the production and maintenance unit on September 26.
None of the listed employees was hired between Septem-
ber 21 and 26. Therefore, the 28 cards authorizing the
Union as the collective-bargaining agent of the signatory
employees secured at the September 21 union meeting
conducted by Attorney Hole constitute probative evi-
dence as of that date the Union had secured status as the
majority representative of the employees.
The General Counsel first contends that by letter and
by telephone Hole requested bargaining on September 26
on behalf of the Union. As noted above there is no pro-
bative evidence that Hole's letter of that date was sent
and received as of that date or, in fact, any time thereaf-
ter until this matter was in the process of investigation
by the Regional Office. Hole's verbal communication to
Smock on September 26 that a union was being formed
by the employees and that it desired negotiations does
not constitute a request for recognition and bargaining
since it did not claim majority status, nor did it indicate
how, or to whom, Respondent was to reply, nor did it
propose any meeting date or any other method of initiat-
ing bargaining. Sheboygan Sausage Company, Inc., 156
NLRB 1490 (1966).
However, this does not end the inquiry.
The Supreme Court states in N.L.R.B. v. Gissel Pack-
ing Co., Inc., 395 U.S. 575, 614-615 (1969):
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order,
then such an order should issue ....
After Wolfenbarger was threatened by Myers on Sep-
tember 25, 7 members of the bargaining unit were dis-
charged on September 26, and an additional 28 were dis-
charged on October 3. Upon the mass discharge the em-
ployees were given the clear impression by admitted Su-
pervisor McNutt that the "real reason" for the dis-
charges was their selection of the Union as their collec-
tive-bargaining representative; Donna Lovejoy, whom I
have found to be Respondent's agent at the time, if not a
supervisor within the meaning of Section 2(11) of the
Act, stated unequivocally he told them the same thing.
By these threats and discharges in the first 10 days
after Daniel Kneisley became aware of the organizational
attempt, it has been made known to all present and
future employees of Respondent that Respondent will
take any action Kneisley deems expedient to defeat their
rights under the Act to organize and bargain collective-
ly, that is, without Board Order, as Brummerstedt told
Weber, "Dan would never have a union in the shop and
he would do anything to prevent it."
Therefore, even without an express demand for bar-
gaining by the Union and express refusal by Respondent,
a bargaining order from the inception of Respondent's
violative course of conduct, September 25, 1977, is man-
dated. Beasley Energy, Inc., d/b/a Peaker Run Coal Com-
pany. Ohio Division #1, 228 NLRB 93 (1977).
K & S CIRCUITS, INC.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the General Counsel has proved, under Board
and court authority, the necessity for a remedial bargain-
ing order dating from the day Respondent embarked on
its violative course of conduct, September 25, absent a
demand for recognition, a violation of Section 8(a)(5) has
not been made out from that date. Therefore I shall rec-
ommend dismissal of the complaint's further allegations
that the terminations of September 26 and October 3
(and the independent violations of Sec. 8(a)(1) occurring
immediately in connection herewith) also violate Section
8(a)(5) of the Act.
Next arises the question of whether Respondent satis-
fied, or violated, its obligation to bargain under the Act
by its actions after March 8, 1978, when, it is undisputed,
it received a competent demand for recognition from the
Union and, by the settlement agreement of that date, it
acceded to the request.
Section 8(a)(5) of the Act establishes a duty "to enter
into discussion with an open and fair mind, and a sincere
purpose to find a basis of agreement." N.L.R.B. v.
Herman Sausage Company, Inc., 275 F.2d 299, 231 (5th
Cir. 1960). As the Supreme Court stated in N.L.R.B. v.
Insurance Agents' International Union, AFL-CIO [Pruden-
tial Insurance Company of America], 361 U.S. 477, 485
(1960):
Collective bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of
"take it or leave it"; it presupposes a desire to reach
ultimate agreement, to enter into a collective bar-
gaining contract.
This obligation does not compel either party to agree to
a proposal or make a concession. N.L.R.B. v. American
National Insurance Co., 343 U.S. 395 (1952); specifically,
it does not compel agreement on checkoff, H.K. Porter v.
N.L.R.B., 397 U.S. 99 (1970). However, the Board may,
and does, examine the contents of the proposals put forth
for "if the Board is not to be blinded by empty talk and
by the mere surface motions of collective bargaining, it
must take some cognizance of the reasonableness of the
positions taken by an employer in the course of bargain-
ing negotiation," N.L.R.B. v. Reed & Prince Manufactur-
ing Company, 205 F.2d 131, 134 (Ist Cir. 1953), cert.
denied 346 U.S. 887.
Pursuant to these principles I have considered the
course of the bargaining. Full consideration leads me to
conclude that Respondent has failed to fulfill its statutory
obligation and was, as the General Counsel alleges, en-
gaging in "surface" bargaining, or bargaining without
intent to reach an agreement.
To decide whether an employer has approached and
remains at the bargaining table in good faith requires de-
termination of the existence or nonexistence of many ele-
ments including the delay or refusal to bargain economic
items,5 4 the advancement of predictably unacceptable
"4 Federal-Mogul Corporation v. NL.R.B., 524 F.2d 37 (6th Cir. 1975).
proposals, 55 or the "reasonableness" 56 of the justifica-
tions advanced for proposals which are questioned.
Respondent, by Brown, from March 8 through August
30, over the Union's objections, refused to discuss eco-
nomic items on the ground that all other matters had to
be resolved first. Then it offered nothing in the form of
wages or other economic benefits except for a slight in-
crease in its assumed share of insurance premiums. Re-
spondent's refusal to discuss economic items followed by
a proposal only for a wage reopener was guaranteed to
frustrate agreement; it thus constitutes evidence of bad
faith. 5
Respondent's insistence upon its probationary period
and arbitration clauses is further evidence of bad faith. It
proposed for no advanced reason an increase in the pro-
bationary period, from 30 to 90, then (as an apparent sop
to the Union) reduced it to 60 days. The predictably un-
acceptable nature of the proposal is obvious. The propos-
al that arbitration decision must be rendered in 30 days
was similarly predictably unacceptable. The proposal
rendered the arbitration clause nugatory because, as dem-
onstrated by this case, labor relations complexities cannot
always be unraveled in a limited amount of time. For this
reason Hole steadfastly rejected Brown's proposal on ar-
bitration and Respondent's insistence thereupon consti-
tutes further evidence of a bad-faith approach to its bar-
gaining obligation.
It is further clear that, at all times during the negotia-
tions, Respondent refused to consider the Union's check-
off proposal. While Brown testified that at one point he
told the Union that administrative costs were its reason
for refusal to agree to any such proposal, the administra-
tive costs would clearly have been minimal in view of
the established computerized payroll upon which entry
of a checkoff deduction would have been an easy matter.
Accordingly, I find that the "administrative costs"
reason advanced for refusal of checkoff was purely spuri-
ous and that Respondent's absolute refusal to consider
the Union's proposal is further evidence of bad faith.
Additionally, it is clear that Respondent's rigid posi-
tion on each of the foregoing 5s issues constituted insur-
mountable stumbling blocks in the way of any attempt to
secure a contract covering the employees of Respondent
Sa Continental Insurance Co. v. N.L.R.B., 495 F.2d 44 (2d Cir. 1974);
see also Seattle-First National Bank, 241 NLRB 753 (1979), and cases
cited therein.
56 See N.L.R.B. v. Reed & Prince Manufacturing Company. supra.
57 Specifically, see N.L.RB. v. Federal-Mogul Corp., supra, where the
Board, with approval by the Sixth Circuit, condemned the tactic of de-
laying economic proposals until acceptance of other proposals which
were advanced and insisted upon in bad faith (such as arbitration exclu-
sion of checkoff and probationary period herein).
"" I find that the evidence is insufficient to prove that Respondent re-
fused to bargain about "smoking rights" and seniority, as further alleged
by the General Counsel. I further reject the General Counsel's contention
that by refusing to adopt language contained in a preexisting employee
handbook Respondent has further violated the Act. Without analytical
support, the General Counsel contends that, by refusing to adopt the lan-
guage of the handbook, Respondent was refusing to agree to continue ex-
isting conditions. I decline to make the analysis for him and I find that
the General Counsel has failed to establish this element of the alleged
violations.
K & S CIRCUITS, INC. 1299
K & S Circuits, Inc,5 9 and that its course of conduct at
the bargaining was designed to frustrate the collective-
bargaining process. All of said conduct was in violation
of Section 8(a)(5) of the Act, and I so find and conclude.
The complaint further alleges that Respondent violat-
ed Section 8(a)(5) "by unilaterally abolishing a major
portion of the work performed by employees in the unit
. . through the transfer of plant machinery equipment
and work of Respondent Circuits to Respondent Prod-
ucts and/or Respondent D-K Sales and Service in late
spring 1978." 6 I have found that work and employees
were transferred from Respondent Circuits to Respond-
ent Products and Respondent D-K, and that the work in-
volved had been an integral part of the entire production
process. However, while it is clear that a part of the
work which would have been performed by unit em-
ployees was transferred, the General Counsel has failed
to prove that it was "a major portion" of Respondent
Circuits' work, or anything like it. Also, it is to be noted
that Brown credibly testified that he acknowledged to
the Union that the work was being transferred. Howev-
er, there was no request from the Union to bargain on
the decision or its effects upon the employees; specifical-
ly, there was no request for information about the nature
and volume of the work transferred. Where a union
simply states an objection (which is not even credibly
shown here), and does nothing more than file a charge
about such unilateral action, there is no effective request
to bargain, and no violation of Section 8(aX5) of the Act
made out. Citizens National Bank of Willmar, 245 NLRB
389 (1979). 6 1'
Finally, the General Counsel contends that Respond-
ent's admitted failure to pay $12,000 of the $20,000
promised in the March 8 settlement agreement consti-
tutes an independent violation of Section 8(a)(5) of the
Act. The General Counsel cites no authority for such a
proposition and the only argument he makes is that the
failure "could only undermine the Union's standing with
the employees." Assuming the truth of this unsupported
assertion, not every action by an employer which lowers
its employees' estimation of their collective-bargaining
representative can be said (except by circular reasoning)
to violate Section 8(a)(5) of the Act. Accordingly, I find
and conclude that the General Counsel has not estab-
lished a violation in this regard.
s* The complaint also alleges that Respondent D-K and Respondent
Products have violated Sec. 8(aXS). If there had been a request and refus-
al to bargain on behalf of the employees of those corporate creations of
Kneisley, and if they constitute an accretion to the unit stipulated to be
appropriate on March 8, 1978, a violation could have been made out (no
matter if the production and/or maintenance employees were classified as
"technical," "supervisory," or "management trainees"). However, there
was no such request and, therefore, no violation in this regard.
60 The complaint also alleges that Respondent violated Sec. 8(aX5) of
the Act at some unspecified time after "mid-March 1978" by "unilaterally
reducing available employment opportunities" of the unit employees. The
General Counsel has not indicated to what he refers in this paragraph.
and I am assuming it is also the transfer of the work to the new corpora-
tions credited by Kneisley.
61 Although employee Stukins credibly testified that, in December
1978, Stump told her she could transfer from Respondent Circuits to Re-
spondent Products, "if you don't bring the Union down," there is no alle-
gation that the transfer of work or a failure to transfer employees consti-
tutes a violation of Sec. 8(aX3) of the Act.
F. Effect of the March 8 1978. Settlement Agreement
and the Board's Order Reinstating the Original
Complaint
As the multitudinous and multifarious post-settlement
violations found herein prove, the Board was entirely
correct in holding that the entire matter should be set
down for hearing by reinstitution of the original com-
plaint.
Respondent contends that its treatment of the employ-
ees involved in the settlement agreement cannot be con-
sidered a breach thereof because the word "recall" was
often used therein, not "reinstated." This contention is
invalid for the following reasons: (1) The document was
never signed, not even by Respondent, so the placing of
particular magic in one term is entirely inappropriate;
moreover, the term "reinstatement" was, in fact, used
(par. 2). (2) The employees had been told only that they
were suffering a "layoff," and "recall" is the logical
analog of that term. It is true that, since they were not
afforded recall rights, they were actually discharged, not
laid off, 62 but Respondent's seizing upon Kneisley's mis-
representation of the nature of their terminations is a
cynical attempt at sophistry in place of substance. (3)
Most importantly, the use of the word "recall" did not
license Respondent to discharge (directly or construc-
tively) or isolate employees to transfer them to an inher-
ently more onerous shift, deprive them of work, assign
them new jobs in an attempt to make employment more
onerous, subject them to a discriminatory written warn-
ing system, require new applications and matlh tests from
them, and even remove their work stools, all because
they had joined the Union and then been "recalled" be-
cause Board processes had been invoked on their behalf.
Similarly invalid is Respondent's contention that it is
excused from contractual (or statutory) obligations
toward the recalled employees because the Union was
guilty of a prior breach in its failure to submit waivers of
reinstatement of all employees whom it did not recall.
The employees had been discharged unlawfully and the
Union had no authority to waive their statutory rights to
reinstatement. Moreover, as its violative treatment of the
"recalled" employees proves, Respondent did not rein-
state, and had no intention of reinstating, any employee
recalled pursuant to the settlement agreement; what is
not being offered cannot be waived.
Accordingly, I find that the Union has not breached
any of its duties under the March 8, 1978, settlement
agreement.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent K & S Circuits, Inc., set
forth above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
62 See Trojan Transporrtation. Inc.. supra., fn. 46.
K & S CIRCUITS, INC.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondents K & S Circuits, Inc., K & S Circuit
Products, Inc., and D-K Sales and Services, Inc., consti-
tute a joint or single employer within the meaning of
Section 2(2) of the Act, engaged in commerce or in an
industry affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. P.C.B. Workers Local Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining:
All hourly production and maintenance employees
at K & S Circuits, Inc.'s Phillipsburg, Ohio facility,
but excluding all other employees including office
and clerical employees, technical employees, profes-
sional employees, inspectors, sales employees,
guards and supervisors as defined in the National
Labor Relations Act.
4. At all times, since September 21, 1977, the Union
has been the exclusive collective-bargaining representa-
tive of the employees in the unit described above.
5. Since on or about March 8, 1978, and continuing
thereafter, Respondent K & S Circuits, Inc., has failed
and refused to bargain collectively in good faith con-
cerning wages and other terms and conditions of em-
ployment of the employees in the unit described above in
violation of Section 8(a)(5) of the Act.
6. By its conduct of September 26 and October 3,
1977, in discharging the following-named employees be-
cause of their known or suspected activities on behalf of
or sympathies with the Union, and/or because of other
employees' known or suspected activities on behalf of or
sympathies with the Union and/or because of a desire
and intent to destroy any actual or potential majority
status which might have been, or was, attained by the
Union, Respondent K & S Circuits, Inc., has discriminat-
ed against employees in violation of Section 8(a)(3) and
(1) of the Act.
been invoked on their behalf, and/or known union mem-
bership, activities, and desires, Respondent K & S Cir-
cuits, Inc., has discriminated against employees in viola-
tion of Section 8(a)(4) of the Act, as well as Section
8(a)(3) and (1):
(a) Assigning employees to a shift inherently more
onerous.
(b) Isolating employees, requiring them to fill out ap-
plication forms, removing their work stools, subjecting
them to a discriminatory written warning notice system
(including specifically the written warning issued to em-
ployee Gary Flory on May 30, 1978), and reducing their
hours of work (including, but not limited to, overtime),
and requesting them to take math tests.
(c) Constructively discharging employees Ellen Rue
and Anne Roberts on April 16 and June 7, 1978, respec-
tively, and discharging employee Shirley Horn on April
13, 1978.
8. By admitted Supervisor Lee McNutt's impliedly,
and agent Donna Lovejoy's expressly, telling employees
they were, or were to be, laid off, discharged, or other-
wise terminated because of their union activities or the
union activities of other employees; and by Meyer's tell-
ing Wolfenbarger that Daniel Kneisley knew the identity
of the union adherents and they would be laid off, dis-
charged; or otherwise terminated, which actions consti-
tute threats to employees; and by Meyer's interrogations
of Wolfenbarger, Waltz, and Mast; and by the mainte-
nance of a rule which would prohibit distribution of
union literature on nonworking time in nonwork areas,
Respondent K & S Circuits, Inc., has interfered with, re-
strained, and coerced employees in the rights guaranteed
by Section 7 of the Act, all in violation of Section 8(aX)(
of the Act.
9. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
10. Respondent has not violated the Act by discharge
of employees Elmer King, Delmar Lawson, and Marlene
Victor on March 29, April 21, and June 22, 1978, respec-
tively, or by the alleged constructive discharges of em-
ployees Jack Harleman, Virginia Salyers, Scott Meyer,
Georganna Price, and Judy Weber, or by any other acts
and conduct made the subject of the complaint.
THE REMEDY
Having found that Respondent K & S Circuits, Inc.,
has engaged in unfair labor practices within the meaning
of Section 8(a)(l), (3), (4), and (5) of the Act, I shall rec-
ommend that it be ordered to cease and desist from en-
gaging in these unfair labor practices. Having further
found that Respondent D-K Sales and Services, Inc., and
Respondent K & S Circuit Products, Inc., are joint em-
ployers of K & S Circuits, Inc., I shall recommend that
each and all of them be ordered to take certain affirma-
tive action in order to remedy these violations, N.L.R.B.
v. Gibraltar Industries, Inc., 307 F.2d 428, 431 (4th Cir.
1962), as well as a bargaining order retroactive to Sep-
tember 25, 1977, the date upon which Respondent em-
Jack Harleman
Kurt Hefelfinger
Della Hine
Paul Hirby
Nelda Morris
Julia Sanders
Lois Seabold
Betty Baker
Ola Davis
Gary Flory
Judy Hall
Greg Harris
Idella Stukins
Harold Teaford
Marlene Victor
Judith Weber
John Whiting
Michael Wolfenbarger
Carl Hofacker
Shirley Horn
Ronald Johnson
Harry Jordon
Delmar Lawson
Glenna Long
David McCune
Scott Meyer
Barbara Moffatt
Roberta Pike
Georganna Price
Patty Price
Mike Rike
Anne Roberts
Ellen Rue
Virginia Salyers
Lisa Shrewsberry
7. By the following acts and conduct on and after
March 8, 1978, engaged in because its employees had in-
voked the processes of the Act, or said processes had
K & S CIRCUITS, INC. 1301
barked on its unlawful course of conduct. 6s Such affirm-
ative action will include offers of reinstatement to all un-
lawfully discharged employees, including specifically
those "recalled" pursuant to the settlement agreement of
March 8, 1978, even if they quit or were lawfully dis-
charged from the jobs to which they were "recalled."
The jobs offered pursuant to the settlement agreement,
and accepted by the employees, are to be treated only as
interim employment since, as Respondent's unlawful
treatment of the employees who were "recalled" shows,
there were no valid offers of reinstatement made to the
employees pursuant to the said settlement agreement.64
This period of interim employment, while not competent
to satisfy Respondent's obligation to reinstate the em-
ployees, is sufficient to toll for its duration Respondent's
backpay obligation. Kansas Refined Helium Company, a
Division of Angle Industries. Inc., 215 NLRB 443 (1974).
All employees found unlawfully discharged, directly or
constructively, shall receive backpay in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest thereon as established by
the Board in Florida Steel Corporation, 231 NLRB 651
(19771); see, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962). Allowance should be made for any
sums of money previously remitted to the Union by Re-
spondents pursuant to the settlement agreement of March
8, 1978, and subsequently received by individual employ-
ees found herein to have been discharged unlawfully.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 65
1. Respondent K & S Circuits, Inc., its agents, officers,
successors, and assigns, shall cease and desist from:
(a) Threatening employees with discharge, layoff, or
other reprisals because of their known or suspected ac-
tivities on behalf of P.C.B. Workers Local Union or any
other labor organization.
(b) Interrogating employees about their activities on
behalf of the Union or the union activities of other em-
ployees.
(c) Maintaining in effect unlawful no-distribution rules.
(d) Discharging or laying off employees, reducing
their employment hours, isolating employees, requiring
them to fill out applications or take math tests or any
other examinations, assigning them to unfamiliar jobs or
to more onerous working hours, issuing them warning
notices or otherwise discriminating against them because
sa See N.L.R.B. v. Gissel Packing Co.. Inc. and Beasley Energy. Inc..
d/b/a Peaker Run Coal Cao., Ohio Division #1. supra.
"4 Conversely, no reinstatement obligation is owed David McCune,
Betty Baker. Patty Price, Scott Meyer. or Mike Rike, who in October
and November 1977 were offered reinstatement, in the form of a "recall."
from the October 3, 1977, "layoff' which, as I have found, was actually a
mass discharge.
e5 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes.
they have filed charges or given testimony under the Act
or because charges were filed or testimony was given on
their behalf, or to discourage membership in or activities
on behalf of the Union.
(e) Refusing to bargain collectively in good faith with
P.C.B. Workers Local Union as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
All hourly production and maintenance employees
at K & S Circuits, Inc.'s Phillipsburg, Ohio facility
but excluding all other employees including office
and clerical employees, technical employees, profes-
sional employees, inspectors, sales employees,
guards and supervisors as defined in the National
Labor Relations Act.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Respondent K & S Circuits, Inc., K & S Circuit
Products, Inc., and Respondent D-K Sales and Services,
Inc., shall take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment with P.C.B. Workers
Local Union, as the exclusive collective-bargaining rep-
resentative of all the employees in the appropriate unit
described above, and, if an agreement is reached,
embody it in a signed contract.
(b) Offer to the following-named employees immediate
and full reinstatement to their former jobs or, if such
jobs no longer exist, to substantially equivalent jobs with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole, with interest, for any loss
of earnings and/or benefits suffered by reason of their
unlawful discharges on September 26 or October 3, 1977:
Jack Harleman
Kurt Hefelfinger
Della Hine
Paul Hirby
Nelda Morris
Julia Ann Sanders
Lois Seabold
Ola Davis
Gary Flory
Judy Hall
Greg Harris
Carl Hofacker
Ronald Johnson
Michael Wolfenbarger
Harry Jordon
Delmar Lawson
Glenna Long
Barbara Moffatt
Roberta Pike
Georganna Price
Virginia Salyers
Lisa Shrewsberry
Idella Stukins
Harold Teaford
Marlene Victor
Judith Weber
John Whiting
(c) Offer Ellen Rue and Anne Roberts immediate and
full reinstatement to the jobs they held before October 3,
1977, and Shirley Horn the job she held before April 13,
1978, or, if those jobs no longer exist, to substantially
equivalent jobs without prejudice to their seniority and
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suf-
fered because of their discharges on October 3, 1977, and
K & S CIRCUITS, INC. 301
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subsequent discharge of Horn and constructive dis-
charges of Rue and Roberts, plus interest.
(d) Make employees Patty Price, Betty Baker, Mike
Rike, David McCune, and Scott Meyer whole for any
loss of earnings they may have suffered between their
unlawful discharges on October 3 and the dates they
were offered reinstatement in October or November
1977.
(e) Expunge from the personnel files the warning
notice issued to employee Gary Flory on May 30, 1978.
(f) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Post at its Phillipsburg, Ohio, place of business
copies of the attached notice marked "Appendix." 6 6
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it for 60 consecutive days immediately thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(h) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
66 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, Section 7, gives
all employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities except to the extent that the employees'
bargaining representative and employer have a
collective-bargaining agreement which imposes a
lawful requirement that employees become union
members.
WE WILL NOT threaten employees with dis-
charge, layoff, or other reprisals because of their
known or suspected activities on behalf of P.C.B.
Workers Local Union, or any other labor organiza-
tion.
WE WILL NOT interrogate employees about their
activities on behalf of the Union or the union mem-
bership or activities of other employees.
WE WILL NOT maintain in effect any rule which
prohibits distribution of union literature on non-
working time in nonwork areas.
WE WILL NOT discharge you, lay you off, reduce
your work hours, isolate you, or impose upon you
any other onerous or harsh terms or conditions of
employment because you or other employees have
become or remained members of the Union or given
aid or assistance to it. NOR WILL WE take such ac-
tions because you have filed charges or given testi-
mony under the Act or because such charges have
been filed or testimony has been given on your
behalf.
WE WILL NOT refuse to bargain with the Union
as the exclusive collective-bargaining representative
of our employees in this appropriate unit:
All hourly production employees and mainte-
nance employees at K & S Circuits, Inc.'s Phil-
lipsburg, Ohio facility, but excluding all other
employees including office and clerical employ-
ees, technical employees, professional employees,
inspectors, sales employees, guards and supervi-
sors as defined in the National Labor Relations
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed by Section 7 of the Act.
WE WILL, upon request, recognize and bargain
with the Union as the exclusive bargaining repre-
sentative of the employees in the above-described
appropriate unit concerning wages, hours, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody it in a signed docu-
ment if asked to do so.
WE WILL offer the following-named employees
immediate and full reinstatement to the jobs they
held before October 3, 1977, or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges:
Jack Harleman
Kurt Hefelfinger
Della Hine
Paul Hirby
Nelda Morris
Julia Ann Sanders
Lois Seabold
Ola Davis
Gary Flory
Judy Hall
Greg Harris
Ronald Johnson
Harry Jordon
Delmar Lawson
Glenna Long
Barbara Moffat
Roberta Pike
Georganna Price
Anne Roberts
Ellen Rue
Virginia Salyers
Lisa Shrewsberry
Harold Teaford
Marlene Victor
Judith Weber
John Whiting
K & S CIRCUITS. INC. 1303
Idella Stukins Michael Wolfenbarger
Carl Hofacker
WE WILL make the above-named employees and
employees Betty Baker, Scott Meyer, Patty Price,
Mike Rike, and David McCune whole, with inter-
est, for any loss of pay they may have suffered as a
result of our discrimination against them.
WE WILL offer Shirley Horn immediate and full
reinstatement to the job she held before her dis-
charge on April 13, 1978, or if that job no longer
exists to a substantially equivalent job, without prej-
udice to to her seniority and other rights and privi-
leges enjoyed, and WE WILL make her whole for
any loss of earnings she may have suffered because
of that discriminatory discharge and her discrimina-
tory discharge on October 3, 1977, plus interest.
K & S CIRCUITS, INC.