Niagara Gear Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 122 (N.L.R.B. 1976)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Niagara Gear Corporation and District No. 76, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Case 3-CA-6167
June 24, 1976
DECISION AND ORDER
On March 18, 1976, Administrative Law Judge
Julius Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Niagara Gear Corpora-
tion, North Tonawanda, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Issues
Whether Respondent laid off Timothy E. Phillips be-
cause of his activities on behalf of the Union rather than
for both his poor work performance and economic reasons.
Whether Respondent laid off three other employees be-
cause of their union activity rather than for economic con-
siderations.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. The General
Counsel and the Respondent submitted briefs which have
been carefully considered.
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
The Company, a New York corporation, maintains its
principal office and place of business in North Tonawan-
da, New York, and is engaged there in the manufacture,
sale, and distribution of metal gears and related products.
During the past calendar year, in the course of its business
operations, Respondent manufactured, sold, and distribut-
ed at said North Tonawanda, New York, plant, products
valued in excess of $50,000, of which products valued in
excess of $50,000 were shipped from said plant directly to
States of the United States other than the State of New
York. The complaint alleges, the answer admits, and I find
that the Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
' The following inadvertence contained in the Decision of the Admmis- The Union is a labor organization within the meaning of
trative Law Judge is hereby corrected In the last sentence of par 5, sec III,
A, the date June 19 is changed to July 19
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Buffalo, New York, on November 10, 11, and 12,
1975. Upon a charge filed and served July 31, 1975, the
Regional Director for Region 3 issued the complaint in this
proceeding on September 11, 1975,' alleging that Niagara
Gear Corporation, herein called the Respondent or Com-
pany, violated Section 8(a)(1) and (3) of the Act by laying
off certain employees because of their activities on behalf
of District No. 76, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called the
Union. Respondent filed an answer denying the commis-
sion of unfair labor practices z
' All dates hereinafter refer to 1975
A. The Facts
The Respondent operates a gear manufacturing business
furnishing gears which are component parts required by
large manufacturers The operation as it existed during the
period under scrutiny had its inception in October 1974,
when Matthew Babisz, now the president, purchased ma-
jority control in the company from John Cerra who contin-
ued as vice president and minority stockholder. Babisz had
been formerly employed by Riley Gear Company in some
managerial capacity. As a result of that association he re-
cruited for Respondent its plant manager, Robert Rees,
Donald Eggleston, quality control inspector, and a number
of employees including all of the alleged discriminatees. At
Riley, the Union represented the employees and the dis-
criminatees herein were all members while employed there
2 At the hearing the General Counsel withdrew par 6(c) of the complaint
which alleged that Respondent had laid off employee Marvin Meyers
225 NLRB No. 16
NIAGARA GEAR CORPORATION 123
At the time of the events involved in this matter the Com-
pany had 14 employees in its shop.
Timothy Phillips, who had been hired on April 28 by
Babisz to operate a milling machine as well as certain other
equipment, commenced talking to some of the employees
after July 4 concerning the Union. He conversed first with
John Duerr and Dennis Odrzywolski discussing working
conditions such as safety, unclean restrooms, and the fact
that there was no set policy concerning raises, holidays,
vacations, and fob protection. These discussions took place
over a period of time inside the plant while the employees
were having lunch or immediately outside the plant at a
picnic table and where it was customary for employees to
eat and play horseshoes during the luncheon breaks.
On July 17 after having spoken to Duerr, MacDonald,
and Odrzywolski, Phillips telephoned Allen Bowe, a busi-
ness representative of the Union whom he knew from Riley
Gear. Phillips told Bowe that some of the people at Re-
spondent were interested in the IAM and they wanted to
obtain some more information. They made an appoint-
ment to meet at 7:30 that night at a restaurant . Duerr and
Odrzywolski accompanied Phillips to the meeting during
which Bowe spoke to them about their rights to organize
and gave them literature and cards for distribution. All
three signed authorization cards that night and gave them
to Bowe who told them that they should try to get a majori-
ty of the employees to sign cards and the employees replied
that they would get them on Friday and Saturday
Early in the morning of July 18, before the workday
commenced, Odrzywolski approached Douglas O'Neal just
outside of the plant near the picnic table and spoke gener-
ally concerning benefits without specifically mentioning a
union . O'Neal responded negatively, according to Odrzy-
wolski, and when the latter mentioned the possibility of
joining some organization, O'Neal stated that he did not
want to hear about it. At lunchtime Odrzywolski also
spoke to Gary Beiersdorf concerning a labor organization
but did not get any authorization card from him. At or
about the same time during the lunch period, John Duerr
spoke to Henry Kursten, a shipping clerk, and LaVern
Reilly, a machine operator, and asked them what they
thought of a union, stating that a couple of the people were
thinking of joining a union. Duerr asked them what their
ideas were and they said that they did not care to discuss it.
Also during lunchbreak that day Phillips and Duerr spoke
to Marvin Meyers on the way to the bank and asked him
what he thought about the Union. Meyers said he thought
it was a good idea. Later that day before leaving the plant
Meyers signed a card and filled it out on top of Phillips'
toolbox near the milling machine. Meyers requested that
he did not want Plant Manager Rees, his brother-in-law, to
know about this.
During the evening of July 18, Phillips and Odrzywolski
visited the plant and spoke to the employees on the second
shift during their lunchbreak about 8 p.m. They distributed
cards which MacDonald and Petrovs signed but Tom Bors
stated that he wanted to take the card home and think
about it. The same night Phillips and Odrzywolski deliv-
ered the three cards (MacDonald's, Petrovs', and Meyers')
to Bowe at his home. On Saturday, June 19, Duerr picked
up the card from Tom Bors and delivered it to Bowe.
On Monday, July 21, during lunch hour Phillips went
over to the picnic table to talk to O'Neil and Beiersdorf. He
had spoken to Beiersdorf about a week or so previously
and the latter had told him to watch what he said because
he could get into trouble. This had occurred just before
work started one morning. On this occasion, Phillips told
O'Neil and Beiersdorf that a union was being organized,
that they already had a majority, and he wanted them to
know about it. Beiersdorf turned his back and said that he
did not want anything to do with it because they were
going to get into trouble. Phillips repeated what he had
said but Beiersdorf again said that he did not want to get
into any trouble and he walked away to play horseshoes.
Neither Beiersdorf nor O'Neil signed cards. Both Beiers-
dorf and O'Neil, who testified at the hearing in behalf of
the Respondent, confirmed that Phillips spoke to them at
this time. Beiersdorf stated that he told Phillips he was not
interested and O'Neil testified he told Phillips he did not
want to know anything about it and that he walked away.
Phillips had observed Babisz at the plant that day about
8 a.m. when his car was being loaded with some material.
He next saw Babisz that afternoon at approximately 2:30
or 3 o'clock apparently returning and Babisz asked Phillips
to help him unload his car which he did. About 4 p.m.
Babisz told Phillips he wanted to see him in his office and
discussed some labor tickets with him.3 Babisz talked to
Phillips concerning four labor tickets telling him that these
were jobs on which he had spent too long a time. As a
result Babisz said he had a recommendation from John
Cerra, vice president, to lay him off. Babisz stated that he
had intended to offer Phillips a job on a different machine
but he felt Phillips would not be happy with it and he was
just going to let him go. In addition Babisz mentioned that
the salesman, Ferguson, did not get an order they were
expecting, and also some jobs on which they were not mak-
ing money would have to be sent out. For these reasons,
there was not enough work for Phillips' machine but they
expected something in 2 weeks. Babisz also told him he was
being paid $5 an hour and that the Company would have
to cut down. Although Phillips asked Babisz for a layoff
slip he was told that he would not need it. His paychecks
were all made out and ready for him at that time, and he
received a check for the previous week as well as a check
for that Monday, July 21. Phillips has not been recalled
although he called the Company several times.
That evening Phillips called Bowe who had written that
day demanding recognition for the Company, and in-
formed the union representative of his layoff. Later the
same evening Phillips met Duerr and Odrzywolski and
went to see MacDonald during his lunchbreak at the plant.
They gave MacDonald some literature and IAM decals.
MacDonald proceeded to sign two pieces of literature and
left them on top of his toolbox. He also placed IAM decals
on his toolbox as well as on the toolboxes of Duerr and
Odrzywalski. It was also decided that Duerr and Odrzy-
wolski would wear IAM buttons on their clothing when
they went in to work the following day.
3 The so-called labor tickets were actually job tickets on which employees
were instructed to note the amount of time they had spent on the particular
order
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Odrzywolski and Duerr came to work very early on the
morning of July 22. Both were wearing a number of union
buttons prominently on their shirts and they clipped union
pencils to their shirt pockets . Odrzywolski spoke to Beiers-
dorf and O'Neil again near the picnic table. He offered
them pamphlets and pencils and cards but they turned him
down. O'Neil said that he did not want to hear it and that
"you guys are crazy, leave me alone." Beiersdorf said noth-
ing turning his back.'
About 8:30 a.m ., while Duerr was working at his ma-
chine, another employee, Frank Speck, a machine opera-
tor, came to him and said "what's all the garbage with
those buttons." Duerr said that he felt it was a good idea
that they form a union. Speck then said that when the
manager comes in and sees those buttons he is going to fire
him and then he walked away. Odrzywolski who was work-
ing nearby observed this incident and immediately thereaf-
ter Speck came over to him and asked "what the hell he
was doing in there with those damn buttons on." Speck
then asked what he was trying to prove and Odrzywolski
said he was supporting the IAM. Speck then told him he
should reconsider what he said and asked whether he knew
what would happen if higher supervision heard about this.
Speck told him he could be laid off or fired . Speck who
testified on behalf of Respondent acknowledged having
discussions with both Duerr and Odrzywolski regarding
the wearing of the buttons. Speck testified that he told
them that if they wore the buttons in the plant they would
get in trouble and that he definitely was not for it. He
could not recall telling them they could be laid off or fired,
merely testifying "I can't say that I said that in those
words, no." He did remember telling these employees that
Matt Babisz did not care for the Union, adding that he,
Speck , would not care for a Union if he owned the busi-
ness. Although Speck admitted conversing with manage-
ment he denied talking to anyone in management concern-
ing the layoffs of Duerr or Odrzywolski.
About a half hour after the conversation with Speck,
Duerr was informed by Quality Control Inspector Eggle-
ston that Babisz wanted to see him in the office. Babisz
told him that he would have to lay him off because work
was getting real slow . Duerr asked if this was because of his
union activity. Babisz said , "What union?" Duerr asked
him whether he could see his buttons and Babisz replied
that he sees them all the time. Babisz told him that things
might pick up in a couple of weeks so Duerr should call in
He also told Duerr that he could leave at once or finish the
day as he wished. Duerr was then paid for the previous
week as well as for the full day on July 22.
A few minutes later Eggleston told Odrzywolski that Ba-
bisz wanted to see him in his office . Babisz told him the
workload was not as heavy as it had been and they were
having trouble getting contracts and pulling in more work
so that they were going to have to lay off some people He
said Odrzywolski would be paid for the rest of the day.
4In their testimony , Beiersdorf and O'Neil discussed the conversation
they had with Phillips on July 21, but neither of them referred to this July 22
incident with Odrzywolski in the presence of Duerr , nor did they specifically
deny that it had taken place In any event I credit Odrzywolski and Duerr
concerning this conversation
Ordrzywolski asked Babisz whether this had anything to
do with his organizational ideas and Babisz asked "what
organization" to which Odrzywolski replied any organiza-
tion and Babisz repeated "what organization ." Babisz said
that he could leave right away and Odrzywolski received a
check for a whole day's work as well as a check for the
previous week. He was also told to call again in a couple of
weeks, that perhaps work would have picked up by then.
Richard MacDonald was employed from April 22 to
July 22, as a machinist grinder. A couple of weeks before
his layoff he was one of the employees approached by Phil-
lips, who asked if he was interested in a union and Mac-
Donald said that he was. Thereafter on July 18, as previ-
ously noted , MacDonald signed a card during the lunch
break of the second shift . On July 21, he obtained some
literature from Phillips , Odrzywolski, and Duerr and he
took two pieces of literature , signed his name on each, and
placed them on his toolbox near his machine in view of
anyone who may be walking through. He did this at quit-
ting time and also placed IAM decals on his toolbox as
well as on those of Duerr and Odrzywolski. About 9 a.m.
on July 22, MacDonald received a call at his home from
Babisz who told him that Ferguson had lost an order and
that therefore he was going to be laid off. He did not tell
MacDonald what order was lost . MacDonald asked Babisz
if the layoff was because of his union activity and Babisz
replied "what union ." MacDonald said the IAM and then
Babisz asked him what he could tell him about the Union
to which MacDonald did not respond. Babisz told him that
he could pick up his check and toolbox which MacDonald
did that afternoon noticing that the literature he had
placed on his box was no longer there . Babisz who testified
in the hearing solely with relation to this telephone call
stated that when MacDonald asked whether his layoff was
because of the Union he replied : "What union . I was not
aware of any union activities."
The fifth employee to be laid off on July 22 was Marvin
Meyers, a brother-in-law of Plant Manager Rees. As re-
counted above Meyers had been solicited by Phillips and
the others and signed a card on July 18. He was told by
Babisz that he was being laid off for lack of work. Of the
employees laid off on July 21 and 22, Meyers was the only
one recalled to work. All five employees were the lowest in
seniority although Duerr had greater seniority in the plant
than Meyers. Respondent contends that it recalled Meyers
to work rather than Duerr because Meyers was a gear cut-
ter, work which Duerr was not qualified to perform.
Discussion
It is contended by Respondent that it had no knowledge
of the union activities of the laid-off employees , that the
layoff was caused by economic conditions, and, in the case
of Phillips, additionally, his poor work performance. While
it is conceded that there is no direct knowledge by the
Respondent of the employees ' activities herein , knowledge
of concerted activities may be shown by circumstantial as
well as direct evidence .' Any circumstances which make it
logical to infer that Respondent knew about the protected
5 Famet, Inc, 202 NLRB 409 (1973)
NIAGARA GEAR CORPORATION 125
activities must be considered. In a small plant where the
supervision has close contact with the employees and the
concerted activity is carried out in an open manner, an
inference is warranted that the Company does obtain
knowledge .6
The evidence reveals a number of factors which would
indicate that Respondent possessed knowledge of the
union activities of the four alleged discriminatees herein.
There are a small number of employees at the plant (14
during relevant times including three on a second shift)
and the managers and supervisors maintain very close day-
to-day contact with the employees in the production areas
by virtue of their personal involvement in the fabrication
of the plant's product. Employees operating machines and
various pieces of equipment were assisted in making setups
by Rees, plant manager, by Vice President Cerra occasion-
ally, and Eggleston. While it is clear from this record that
Eggleston was not a supervisor within the meaning of the
Act, it is equally clear that he relieved Rees during the
latter's absence on vacation and, as a result, acted in the
capacity of an agent of the employer. Vice President Cerra
himself at times went out on the floor to assist in various
ways. In addition to the managerial people it is noted that
the senior employees (none of whom signed cards) also
assisted the laid-off employees in connection with their
work duties. At least one of them, Speck, indicated a hostil-
ity toward the Union and, though only an employee, had
warned Duerr and Odrzywolski as to the consequences of
their activity, particularly the wearing of union buttons.
Plant Manager Rees was actually related to two of the card
signers: Meyers was his brother-in-law and Rees' wife is
the niece of Bors. Although Meyers was one of the employ-
ees laid off on July 22, he was the only one recalled on
August 4.
Most important in this consideration is the timing of the
layoffs which followed so closely on the heels of the card
signing. Authorization cards were signed on July 17 and 18
and, after the intervening weekend, additional solicitation
occurred on July 21 and the early morning of July 22.
Phillips was laid off on July 21, and the remainder of the
employees on July 22. Moreover, not only was the timing
closely related to the card signing and solicitation but the
layoffs themselves occurred precipitously. Thus, all the lay-
offs occurred during the workday while employees were
still working on orders, a manner not consistent with the
Respondent's contention that the layoffs were economi-
cally motivated, a matter which shall be hereinafter dis-
cussed more fully. Finally, Babisz seemed to be dissem-
bling when he asked Duerr at the time of the exit interview
"what Union" in response to Duerr's question as to wheth-
er his union activity caused the layoff, since at the time he
surely could not help but observe the IAM buttons promi-
nently displayed on Duerr's shift Similarly as to the but-
tons indicating the name of the Union on Odrzywolski's
shirt when he laid him off. This was repeated when thereaf-
ter he spoke to MacDonald on the telephone and inquired
as to what union he was interested in. Incidently the testi-
mony of these three employees concerning their conversa-
6 N L R B v Long Island Airport Limousine Service Corp. 468 F 2d 292
tions with Babisz at the time of their layoffs was uncontra-
dicted since Babisz did not testify concerning his talks with
Duerr and Odrzywolski and admitted asking MacDonald
about the Union. On the basis of all the above circum-
stances, I conclude that the evidence is sufficient on which
to infer that the Respondent's managers were aware of the
efforts of the employees on behalf of the Union.
Phillips was the only one of the employees concerning
whom it is contended that in addition to the economic
conditions which would otherwise have promoted his lay-
off, he was also laid off because of his poor work perfor-
mance. To this end Respondent introduced 10 job tickets
which, according to Vice President Cerra, show that Phil-
lips had spent an unduly long period of time on the partic-
ular jobs described on the ticket. According to the uncon-
tradicted testimony of Phillips he was only confronted by
Babisz on July 22, with four tickets of which only three are
in evidence All the tickets relate to work done from vari-
ous periods of time ranging from I month to 1 week prior
to his layoff. It is uncontroverted and even stated affirma-
tively by Plant Manager Rees that the matter of the job
tickets as an indicator of Phillips' slow work habits was
never discussed or brought up with Phillips at any time
prior to his layoff. The only time that Cerra spoke to Phil-
lips, according to his own testimony, was in connection
with the washing of some parts for a Mack Truck order
which Cerra stated had to be shipped on that particular
day. On this occasion Cerra did not reprimand or remon-
strate with Phillips but merely asked him whether he was
going to get out the parts. Phillips said he would but the
parts did not get out until the following day. Cerra stated
he then spoke to Babisz and Rees recommending that Phil-
lips be terminated. Cerra said that this occurred about July
16, approximately a week before Phillips was laid off, but
he may have been mistaken because Rees was on vacation
at that time. In any case, according to the testimony of
both Cerra and Rees, Babisz and Rees disagreed with Cer-
ra concerning his recommendation to terminate Phillips.
Plant Manager Rees testified that he had known Phillips
to be a fine employee while working at Riley Gear but that
he did not perform commensurate with his ability at Re-
spondent. Rees believed that this was due to the fact that
Phillips, a friend of his, was bothered by severe financial
problems due to the illness of his wife. Because of this,
Rees recommended to Babisz that they put him on another
machine which would be easier for Phillips to operate.
Rees stated that he never spoke to Phillips about his poor
performance but just prior to leaving on vacation he did
tell him about possibly changing to another machine. It is
clear that no one from management ever spoke to Phillips
about his work performance. Despite the asserted sympa-
thy for Phillips' financial plight, Babisz at the time he laid
Phillips off merely stated that he was considering moving
Phillips to another machine but felt that he, Phillips, would
not be happy with it In addition, the precipitous nature of
Phillips' layoff during the afternoon of July 21 arouses sus-
picion. Babisz had returned from Rochester about an hour
before, and Phillips had even assisted him in unloading his
car, but Babisz said not a word to him. Moreover, the only
other employee ever laid off for poor performance, Dan-
(C A 2, 1972), Weise Plow Welding Co. Inc, 123 NLRB 616 ( 1959) iels, was terminated on March 14 , a Friday, at the end of
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the workweek and was mailed a check on the following
week. This was unlike the situation of Phillips where his
checks were ready and waiting for him while Babisz spoke
to him about his layoff. Finally Babisz did not follow
Cerra's recommendation a short time before to terminate
Phillips. In all the circumstances, I conclude that
Respondent's contention that Phillips was laid off for his
poor work performance is pretextual.
There remains for consideration the economic defense
set forth by Respondent. It is contended that as a result of
a meeting between Babisz and Thomas Ferguson, a manu-
facturers ' representative and the sole sales agent of Re-
spondent, on July 21 in Rochester, Babisz returned to the
plant and laid off first Phillips on that date and the four
other employees the following day. It is stated that Babisz
and Ferguson discussed the condition of the business at the
present time and the prospects for future orders from their
principal customers and, because of the gloomy picture
presented, Babisz was forced to take the action of laying
off the employees. Ferguson was the sole witness as to this
matter. He testified concerning the situation, past, current,
and future with eight of Respondent's customers whom he
contends represented approximately 50 percent of Re-
spondent's business. In addition to Ferguson's oral testi-
mony, certain exhibits consisting principally of purchase
orders and invoices were submitted into the record. Re-
viewing this evidence it first appears that International
Harvester was never a customer of Respondent because no
orders had ever been received from that Company. In the
words of Ferguson, Harvester was a prospect not a custom-
er. However, he stated that whereas it appeared that no
orders would be forthcoming for several months Respon-
dent was still in a good position for further orders, a posi-
tion no worse than ever. In a similar posture was
Respondent's relationship with Xerox from whom it had
never received any orders until October 1975, long after the
layoffs. Likewise Moore Special Tool Co., another Compa-
ny relied on in Ferguson's summary, had only given Re-
spondent two orders on January 9, which were completed
on September 22. With regard to these three "customers"
from whom Respondent had received either none at all, or
no orders since January, there could have been no startling
news imparted by Ferguson to Babisz on July 21, which
Babisz could not have known before.
Respondent had received in January a rather substantial
order from Mack Trucks. The customer extended the deliv-
ery date of this order so that Respondent completed it on
September 30, sometime after the layoff. However, it ap-
pears that Respondent was considerably late in its ship-
ments against this particular order which, even with a
stretched out delivery date of June 30, was not completed
until September 30. Ferguson testified concerning another
order dated January 21, received from Mack Truck and
stated that this order was canceled in May. Actually the
documents submitted in evidence show that the order was
really canceled on March 12. Ferguson contended that
they did not know the order was canceled until May. In
any case Ferguson was not able to explain what was the
new element in July concerning an order canceled in May
at the very latest. Nor was Ferguson, as an independent
sales agent, sufficiently aware of what was taking place in
Respondent's plant so as to satisfactorily explain the rea-
son for the delays in shipping the Mack Truck orders.
As to Univac, the records show that Respondent re-
ceived a steady stream of orders, dating as far back as
December 1974, on an almost monthly basis, except the
months of April, May, July, and August, and resuming in
September. The shipments against these orders indicate
that certain orders received in January were shipped as late
as August and September. In any case the orders from
Univac were not of such substantial size as would warrant
a company to rely on this customer as a mainstay of its
existence. Thus 15 orders totaled less than $16,000. This
type of order and their dollar values were obviously known
to Respondent, long before July, and the failure to obtain
one or two more of these small orders could not have made
any great difference in the Company's business, at least so
as to cause the precipitous action taken by Bibisz on July
22.
Ferguson testified at length concerning the relationship
of Respondent with IBM. During the early part of the year,
Respondent had received and shipped a number of small
orders from IBM. However, in May, Respondent was in
position to obtain a large order for about 10,000 gears from
IBM. It first received 100 slugs from which Respondent
was to cut gears. But a considerable problem developed
because the slugs furnished by IBM did not provide a suffi-
cient tolerance for Respondent to cut the gears. As a result
the engineers agreed that it was not practical to run an
order of 10,000 pieces with such a small tolerance as the
rejection rate would undoubtedly be very high. Thereafter,
on August 26, Respondent received this same order from
IBM but was forced to subcontract it to another company
which had the capability of doing this work and Respon-
dent was limited to inspection and packing and shipping
that order. Despite the loss of this substantial order, of
which Respondent was aware in May and June, it contin-
ued to work overtime in the months prior to the layoff and
thereafter.
In his testimony Ferguson also discussed two other cus-
tomers concerning which Respondent provided no docu-
mentation. One of these was Trottnow whom he stated had
given Respondent orders in 1975, valued at more than
$13,000. Ferguson said that Trottnow requested that ship-
ments be stopped because of a problem with core hardness.
No further explanation was given by Ferguson as to this
matter. Ferguson also referred to an order from Stromberg
Carlson for 20,000 pieces. This order was not canceled but
the customer just changed the delivery date so that the
final approximately 9,700 pieces were to be delivered on
September 19, rather than August 25. As a matter of fact
one of the laid-off employees was working on that order at
the time of the layoff.
In sum, Respondent's economic defense rests mainly on
the fact that as of July 21, it had not received business from
three large companies who had never given any orders and
Respondent had been operating without depending on
them. The records of the other customers discussed by Fer-
guson, with the exception of IBM, merely show a stretch-
ing out of some orders rather than any substantial cancel-
lations. The only loss of any consequence was the IBM
order. However, on cross-examination Ferguson stated
NIAGARA GEAR CORPORATION 127
that General Electric was placing large orders, in fact an
order of $50,000, considered very large to a company such
as Respondent. In addition, the Respondent was receiving
larger orders from an old customer, Moog, Inc., as well as
a new customer, New Bould, and Lindy Division of Union
Carbide. Moreover, Ferguson as an independent sales
agent, does not see all the orders, he dust gets copies of
invoices after shipments are made He is therefore in no
position to know the exact status of Respondent's backlog
of orders. Babisz did not testify as to this issue, and the
uncontradicted testimony of Phillips, MacDonald, and
Odrzywolski is to the effect that at various times Babisz
told them that business was good, and that he discussed
plant expansion with Phillips.
I am not persuaded that Respondent laid off the employ-
ees on July 21 and 22, because of economic conditions If
indeed Ferguson had detailed any losses of orders or busi-
ness, they all were well known to Respondent a good deal
before July 21. As previously noted Respondent's records
indicate that overtime was worked all during this period
including the months of June and July and extending
thereafter into August, September, and October Finally it
is perhaps a truism that an economic layoff must be based
on good business judgment. I do not consider it prudent as
a matter of business for an employer, citing economic con-
siderations, to lay off employees early in a workday, with
work orders in their machines at the time, and paying them
for a full day to boot. There was nothing arising from Ba-
bisz' meeting with Ferguson, as related by the latter, that
should have caused such precipitous action as was under-
taken in this case It is therefore my finding that Respon-
dent laid off Phillips, Odrzywolski, Duerr, and MacDonald
for their union activities rather than because of economic
reasons Accordingly, I conclude that by this conduct, Re-
spondent violated Section 8(a)(3) and (1) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily laid off
the employees set forth above, I shall recommend that Re-
spondent be ordered to offer immediate and full reinstate-
ment to Phillips, Odrzywolski, Duerr, and MacDonald to
their former positions or, if no longer available, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges; and make each of
them whole for any loss of earnings or other monetary loss
each may have suffered as a result of the discrimination
against them, less interim earnings, if any, plus interest at 6
percent per annum. Any backpay due is to be determined
in accordance with the formulas set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3 By discriminatorily laying off employees Timothy
Phillips, Dennis Odrzywolski, John Duerr, and Richard
MacDonald, Respondent engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed-
The Respondent , Niagara Gear Corporation , North To-
nawanda, New York, its officers, agents, successors, and
assigns, shall:
1 Cease and desist from.
(a) Discouraging membership in, or activities on behalf
of, District No. 76, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other labor or-
ganization , by laying off employees or otherwise discrimi-
nating against them in any manner with regard to their hire
and tenure of employment or any terms or condition of
employment because of their union activities.
(b) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act, except to the extent that
such right is affected by the proviso to Section 8(a)(3) of
the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer Timothy Phillips, Dennis Odrzywolski, John
Duerr, and Richard MacDonald, immediate and full rein-
7In 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
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to their former positions or, if those jobs no lon-
ger exist , to substantially equivalent positions , without
prejudice to their seniority or other rights previously en-
joyed , and make them whole for any loss of pay due to the
violation against them in accordance with the manner set
forth in the section of this Decision entitled , "The Reme-
dy"
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying , all pay-
roll records , social security payment records, timecards,
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due under terms of
this Order
(c) Post at its North Tonawanda , New York , plant, cop-
ies of the attached notice marked "Appendix ." 8 Copies of
said notice, on forms provided by the Regional Director
for Region 3, after being duly signed by the Company's
authorized representative , shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Company to
insure that said notices are not altered , defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent has taken to comply herewith
8 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading " Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to give
evidence , the National Labor Relations Board has found
that we violated the National Labor Relations Act, and we
have been ordered to post this notice.
The Act gives the employees the following rights:
To engage in self-organization
To form , join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any or all such
activities.
WE WILL NOT layoff or discharge any employee for
engaging in union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights under Section 7 of the Act.
WE WILL offer Timothy Phillips, Dennis Odrzywol-
ski, John Duerr , and Richard MacDonald immediate
and full reinstatement to their former fobs or, if those
jobs no longer exist , to substantially equivalent jobs,
without prejudice to their seniority or other rights, and
WE WILL make them whole for any loss of pay or any
benefits they may have suffered by reason of our dis-
crimination against them.
NIAGARA GEAR CORPORATION