Seifert Mfg., Co., Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1979

244 N.L.R.B. 676 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seifert Manufacturing Company, Inc. and Ephrem J.
Hann. Case 30-CA-4655
August 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.I.O
On May 9, 1979, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Seifert
Manufacuring Company, Inc., Kiel, Wisconsin, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."2
I The Administrative Law Judge erred as to the total number of employees
laid off and the number of employees laid off out of seniority during the
period 1975-77. The correct figures are that 13 employees out of 44 were laid
off out of seniority. Nonetheless, we find that Respondent generally followed
a practice of laying off according to seniority, where possible, and we agree
with the Administrative Law Judge that Respondent's stated reasons for
Hann's layoff were pretextual.
Additionally, the Administrative Law Judge mistakenly indicated that
Hann had testified that he could perform 9 of the 20 jobs required in his
work group. The record discloses that Hann did not make this statement,
and we agree with the Administrative Law Judge's later finding that there is
no evidence to show that Hann was incapable of performing any of the jobs
which the employees retained were assigned to perform.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings.
2See Hickmott Foods, Inc., 242 NLRB 1357 (1979).
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF TIHE
NATIONAL LABOR RELATIONS BOARI)
An Agency of the United States Government
WE WILL NOT discourage membership in, sym-
pathies for, or activities on behalf of Local Lodge
No. 1259 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, or
any other labor organization, by laying off, refus-
ing to reinstate, or in any other manner discrimi-
nating against employees in regard to hire or ten-
ure of employment or any term or condition of
employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization:
to form, join, or assist any labor organization; to
bargain collectively through representatives of
their own choosing; to engage in concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection; or to refrain
from any or all such activities, except to the ex-
tent that such rights may be affected by an agree-
ment requiring membership in a labor organiza-
tion as a condition of employment as authorized
in Section 8(a)(3) of the National Labor Rela-
tions Act, as amended.
WE WILL offer immediate and full reinstate-
ment to Ephrem Hann to his former job or, if
that job no longer exists, then to a substantially
equivalent job without prejudice to his seniority
and other rights and privileges previously en-
joyed, and WE WlLtt make him whole for any loss
of pay or other compensation he may have suf-
fered by reason of our discriminatorily laying
him off and refusing to reinstate him, with inter-
est.
SEIFERT MANUFACTURING COMPANY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard in Kiel, Wisconsin, on November 13 and 14,
1978, pursuant to an amended charge' filed by Ephrem
Hann, an individual, on May 25, 1978. and a complaint
issued on June 8, 1978.
The complaint alleges that Seifert Manufacturing Com-
The original charge was filed on April 19. 1978.
244 NLRB No. 110
676
SEIFERT MFG( (CO
pan. Inc. (herein Respondent). violated Section 8(a)(l) and
(3) of the National Labor Relations Act. as amended
(herein the Act). by discriinatorilv laying off Ephrem
Hann and refusing to recall him because of his union mem-
bership or activities.
Respondent in its answer dated June 9. 1978. denies hav-
ing violated the Act.
The issue involved is whether Respondent violated Sec-
tion 8(a)(3) and (I) of the Act by discriminatorily laying off
and refusing to recall Hann because of his union member-
ship or activities.
Upon the entire record in this case and from my observa-
tions of the witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent,` and
the oral argument by the General Counsel I hereby make
the following:)
FINDINGS OF FA('CT
I. IE BUSINESS ()F il RESPONDENT
Respondent, a Wisconsin corporation, has a facility lo-
cated at Kiel, Wisconsin, where it is engaged in the business
of manufacturing farm equipment. During the calendar
year 1977.' a representative period, Respondent in the
course of its operations sold and shipped products valued in
excess of $50,000 from its Kiel, Wisconsin, facility directly
to customers located outside the State of Wisconsin.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
Il. THE LABOR OR(iANIZATION INVOIL.ED
Local Lodge No. 1259 of the International Association of
Machinists and Aerospace Workers, AFL-CIO (herein the
Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THlE UNFAIR I.ABOR PRACTICES
A. Background
Respondent operates a facility located at Kiel, Wiscon-
sin, where it is engaged in the manufacture of farm equip-
ment. Lester Seifert is its owner and president.5 Other su-
pervisory personnel include Office Manager Paul Isselmann
and Plant Superintendent Donald Utecht. Utecht, who pre-
viously served as an assistant to President Seifert, succeeded
Kenneth Vassar 6 as plant superintendent in January. Roger
Hickman, who was employed by Respondent until June.
was in charge of the toolroom and maintenance depart-
ment.
2 The Charging Party did not submit a brief.
I Unless otherwise stated the findings are based upon the pleadings, admis-
sions, stipulations, and undisputed evidence contained in the record which I
credit.
4All dates referred to are in 1977. unless otherwise stated.
President Seifert is a supervisor under the Act.
6 Vassar. who ceased working for Respondent in January. was a supervisor
under the Act.
The production antil maintenance employees emplosed
by Respondent at its facilits are represented by the nion
with which it has a collective-hargaining agreement cover-
ing them. This agreement is effective from November 1,
1976. to November I. 1979.
Ephrem Hann. the discriminatee. was employed by Re-
spondent from November 1969 until his termination on Oc-
tober 21. When terminated he was working in group 4. the
machine operators group.
His union activities consisted .A' belonging to the Union
and serving as shop steward and lso as a union delegate or
representative.
On August 30. 1976, Allan litecht. who is a member of
the bargaining unit and is also the son of Plant Superinten-
dent Uttecht. filed a decertification petition with the Na-
tional l.abor Relations Board in Case 30 RC-383. Folltow-
ing an election held on October 6. 1976. in which 16
employees voted for the Union and 8 employees voted
against the Union, the Regional Director for Region 30 on
October 15, 1976. certified the Utnion as the bargaining rep-
resentative of Respondent's unit employees.
Allan Utecht testified he began circulating this petition
the early part of August 1976.
Hann stated upon being asked by Allan Ultecht in the
summer of 1976 to sign the decertification petition he re-
fused.
According to Hann. in the spring of 1976 President Sei-
fert had informed him that should he ever want to pass the
petition for decertification he would give him all the neces-
sary infiormation. Although President Seifert stated he did
not recall the conversation he acknowledged it may have
occurred, and I credit lann's undisputed testimony.
Prior to the decertification election, management meet-
ings attended by President Seilert. Toolroom and Mainte-
nance Supervisor Hickman. Office Manager Isselmann.
Donald Utecht, who was then assistant to President Seifert.
and Kenneth Vassar, who was plant superintendent at the
time, were held at which time they discussed each of the
unit employees concerning whether they would vote for or
against the Union in the upcoming election. At one meeting
a poll was taken among them concerning how they thought
each of the employees might vote.' According to the un-
denied testimonies of both Vassar and Hickman. who I
credit, they also discussed ways to get the employees to vote
for the Company. and at these meetings Seifert was of the
opinion Hann was against the Union and would vote in
favor of the Company to help to decertify the Union.
The decertification election was held on October 6. 1976.
Former Superintendent Vassar stated that same day upon
learning the results of the election President Seifert indi-
cated to him Hann was a liar and had said he was going to
vote against the Union but had voted for it. Roger Hick-
man also testified shortly after learning the Company had
lost the election President Seifert referred to Hann as a son
of a bitch and also said Hann always was a liar and was
never any good.
President Seifert did not deny having such conversations
with either Vassar or Hickman and I credit their undenied
testimonies.
7 These findings aire hased on the lestimonies li Vassar. Isselmann. Ick
man. and SellerT.
677
DI'CISIONS OF NATIONAL LABOR RELATIONS BOARD
Hann testified several days after the election President
Seifert approached him and said he had promised to help
him, but had lied to him. According to Hann. Seifert, who
he described as appearing to he worked up with his face
becoming flushed, kept repeating those statements while
shaking his finger in his face and refused to let him explain.
President Seifert ackrnowledged on that occasion telling
Hann he thought he was a liar and said he may have
pointed his finger in lann's face.
Later that same day Hann had another conversation with
Seifert.' Hann testified during this conversation Seifert
asked him if he would admit he had lied which Hann de-
nied and said he came in to give him an explanation. Seifert
again accused Hann of lying and asked him to admit he
was a liar, saying he would then believe him. Hann stated
when he tried to tell Seifert he did not make any promises
and could not be accused of lying, Seifert, who he described
as appearing very agitated, pointed his finger in his face and
shouted at him that he was a liar, which statement he kept
repeating.
President Seifert acknowledged telling Hann he thought
he was a liar on that occasion and stated he did so when
Hann tried to explain that he had voted against the Union
all along. Seifert also stated Hann told him he did him a
favor by saying that out in the plant because the guys there
thought he had voted for the Company and he had vindi-
cated him, whereupon he again told Hann he thought he
was a liar.9
According to Seifert in 1972 during a conversation at his
home Hann had told him he had voted against the Union.
Hann denied having made such a statement.
Hann credibly testified without denial about a month af-
ter the election Plant Superintendent Vassar informed him
President Seifert had said to convey the message and tell
him and Rollie Hemb '° they might as well start looking for
another job because he was going to get rid of them one
way or another."
Former Superintendent Vassar testified after the election
he was directed by President Seifert to assign Hann such
dirty jobs as cleaning paints pits, painting stacks, unloading
steel from trucks, and making and dipping apron chains
instead of his normal work in group 4. While Vassar stated
prior to the election he had asked Hann several times to
unload steel, which is normally done by the driver and the
stockman, after the election he directed Hann to unload
steel about every time a shipment came in.
Former Toolroom and Maintenance Supervisor Hick-
man also testified that after the election President Seifert
told him any chance he had to direct work to Hann, who he
was not supervising at the time, that he should give him
whatever-" job or dirty job that came up. According to
Hickman on one occasion about 3 weeks after the election
8 While Hann contends he was told by Donald Ulecht that President Sei-
fert wanted to see him, both Utecht and Seifert stated it was Hann who
requested the meeting.
I Hann did not recall making the latter statement.
10 Respondent's records reflect a Roland Hemb was hired by the Respon-
dent on November 18. 1968. and was laid off on October 21, 1977, without
being recalled.
1 Since Vassar at the time such threat was made was a supervisor under
the Act Respondent was chargeable for his conduct.
12 The omitted word is a four-letter curse word.
he did this by assigning Hann to run the chain stretching
unit which involved crawling on the floor on hands and
knees to roll up the chain.
Hann also testified after the election he began being as-
signed the so-called dirty jobs in the plant by Vassar who
informed him the assignments were made at President Sei-
fert's request. Such jobs included cleaning the paint pits,
which job was generally done by the painters in group 3,
and operating the pickling machine. which job was gener-
ally done by assemblers in group 5. Hann also stated on one
occasion Vassar told him that Seifert. using profanity, had
said if he saw any oil under Hann's machine Hann would
be required to clean the machine with a toothbrush and
scrub the floor on his hands and knees. Later, after Vassar
brought him a toothbrush and while he was in the process
of scrubbing the machine with it. Vassar took it away and
said something about the guy being nuts.
According to Hann these type assignments continued
from the time of the election until about July 13. when he
was injured on the job.
President Seifert denied knowing whether less desirable
jobs were assigned to Hann after the election. While Seifert
denied instructing Vassar to assign Hann dirty jobs in the
plant any more than anyone else got, he did not deny giving
such instructions to Hickman. Hann. Vassar, and Hickman
all impressed me as being more credible witnesses than Sei-
fert, who I discredit, and based upon their testimonies I find
that following the decertification election Seifert instructed
both Vassar and Hickman to assign Hann dirty jobs, which
they did, and that Vassar threatened Hann that Seifert was
going to get rid of him one way or another. I further find,
particularly in view of the statements made by Seifert to
Hann, Vassar, and Hickman concerning the way Hann
voted in the election, that these assignments to Hann of
dirty jobs and the threat to discharge him, which all oc-
curred after the election, were because Hann refused to sup-
port the Respondent in decertifying the Union.
Vassar also credibly testified without denial that on a
couple of occasions after the election President Seifert,
upon observing Hann doing something, would belittle him,
tell him his work was no good or call him a liar again.
Hann also credibly testified without denial that on sev-
eral occasions after the election President Seifert would tell
him that any word out of him and he would automatically
be laid off for 3 days, and on one occasion said it would be
for a week, whereupon he would then proceed to find fault
with his work.
On Wednesday, July 13, Hann injured his knee while
working on the heat treatment furnace. Although he
worked the next 2 days he then left work and did not return
to work again until October 17, after being released by his
doctor to do so50
Upon returning to work Hann was restricted by his doc-
tor from lifting anything weighing over 40 pounds and he
could only be on his feet 80 percent of the day. Plant Super-
intendent Utecht, who had knowledge of these restrictions.
assigned Hann to operate the lathe machine which he con-
" On one prior occasion in 1975 Hann, who had injured his arm and was
off work, had been called into work and assigned a job he could perform
using only one hand while his injured arm was in a sling.
678
SEIFERT MFG. CO.
tinued doing until his termination. Hann, after his return to
work, did not have any conversations with management
about his physical ability to operate any of the other ma-
chines.
According to Hann after being off work for about a week
and informing Plant Superintendent Utecht his wife would
come and pick up his check because he was on crutches and
his doctor told him to stay off his foot. Utecht informed him
he was sorry, but under Seifert's policy only the employee
could pick up his check. Later that day when he and his
wife went to Respondent's office they were informed by
Dorothy Hewig, an office employee. it was not necessary
for him to come and all his wife had to do was sign a
statement. Hann stated while they were there President Sei-
fert followed by Plant Superintendent Utecht came in and
Seifert, using profanity, told him there was no way he was
going to get workmen's compensation for his injury' 4 and
repeated the statement screaming at the top of his voice and
shaking his finger in Hann's face.
Neither President Seifert nor Plant Superintendent
Utecht denied the incident. Seifert stated the Company has
always had a policy prohibiting paying anyone besides the
employee, although he acknowledged it had been reported
the staff had allowed the wife to pick up her husband's
check if she signed for it although this violated the policy."
Respondent's records reflect in 1975 Respondent laid off'
20 employees including 12 employees in group 4. None of
these employees were recalled although one of them. Mark
Schnell, was rehired on June 7, 1976. Hann who worked in
group 4 was not laid off. With the exception of two employ-
ees in group 4 and one employee in group 3. they were laid
off according to their seniority in their work group.
The records also show on November 4, 1976 seven em-
ployees were laid off, all of whom were recalled within I to
3 months. With the exception of one employee in group 3
these ems loyees were laid off according to their seniority in
their work group. None of the employees in group 4 in
which Hann worked were laid off.
President Seifert testified Vassar selected those employees
to be laid off in 1976. He also stated when Vassar presented
him with the list of employees to be laid off. upon noticing
a lot of them were not according to seniority, he instructed
Vassar to revise the list to conform to the working agree-
ment which Vassar did. Vassar testified he was informed by
President Seifert when he began his employment that in the
event of a layoff he must follow seniority, which he did with
one exception.
According to President Seifert he delegates to the plant
superintendent the selection of those employees to be laid
off, and they are selected on the basis of their skill and
ability to do the available work and those things being
equal, seniority prevails. He further stated it was Respon-
dent's policy to terminate rather than to layoff employees,
although under the collective-bargaining agreement the laid
off employees have certain recall rights during a 7-month
period.
Article 17, section 5, of the collective-bargaining agree-
ment provides in pertinent part:
"The record does not establish whether Hann applied for workmen's
compensation for his injury.
s This evidence regarding the policy is undisputed.
In the event of a layoff. probationary employees
shall be laid off first within the work group affected.
Thereafter, employees shall be laid off according to
seniority tempered by the employee's past efforts, skill,
and ability to perform the work he was assigned as it
relates to available work at the time of layoff. Notwith-
standing the foregoing, an employee who. because of
specialized training or skills, is essential to the efficient
operation of the Company's business, will be retained
or re-employed. It is agreed that discretion used in any
judgment regarding the employee's past efforts. skill
and ability to perform work is vested with the Com-
pan,.
While article 17. section 7, of the collective-bargaining
agreement provides recalls from a layoff will be made in
inverse order of the layoff, Section 8 of that same article
provides in part that an employee shall lose his status as
being continuously employed with Respondent and his
name removed from the seniority list and loses his seniority
if he is laid off for a period of 7 months or more.
B. Hanns Termination
On October 21 Respondent laid off 10 employees' " in-
cluding 4 employees in group 4. None of these 10 employ-
ees have been recalled although. according to Office Man-
ager Isselmann. one of them. Gary Schwartz. was rehired
about November 6, 1978. President Seifert also stated be-
ginning the middle or latter part of September or early Oc-
tober 1978. four or five new employees have been hired.
Hann. who was second highest employee in seniority in
group 4. was included in the employees laid off in group 4
and had more seniority than five other employees who were
retained in group 4. Of those 10 employees laid off a total of
3 employees were laid off out of seniority.
Hann testified on that occasion upon receiving his pay
envelope it contained a letter from Plant Superintendent
Utecht informing him his employment with Respondent
was terminated as of March 21.
Plant Manager Utecht, whose testimony was corrobo-
rated by Office Manager Isselmann and President Seifert.
testified he selected the employees to be laid off in 1977
after Seifert and Isselmann had determined how many em-
ployees they needed as a result of a cut in production. Sei-
fert. whose testimony was corroborated by Utecht, testified
after Utecht made his selection of employees to be laid off
and showed the list to him he did not make any changes.
Utecht testified after he selected the employees who
could run the equipment needed, the remaining employees
were laid off according to their seniority. According to
Utecht. who described the jobs and compared the employ-
ees retained with the employees laid off, the employees re-
tained were all more qualified and capable than Hann to
perform those jobs which he stated was the basis of his
selection. While Ultecht stated he also had to consider
Hann's capabilities to physically perform the work because
of the doctor's restrictions, he only described a couple of
jobs in group 4 which would have exceeded those limita-
tions.
'1 The layoff itself was not alleged to be discriminator) and the General
Counsel agrees it was for economic reasons.
679
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hann testified there were approximately 20 different ma-
chine operations in Group 4.'7 some of which machines
were used for special purposes and did not operate all the
time. Except for the Blanchard grinder which he had only
operated a couple of times and the gear hob and deep hole
drill on which he had very little experience operating, Hann
had operated all the other equipment.
According to Hann, who described the lifting require-
ments on these various jobs and whether the jobs could be
performed sitting or standing, the followingjobs could have
been performed within these restrictions: hydraulic brake
press, chain press, Minister press, Welch punch press, cold
saw, drill press, Bor-O-Matic, lathes, and straddle cutting
mill.
Hann on two occasions during his employment had
worked as a leadman. President Seifert, who hired Hann.
acknowledged he had once considered him for the job of
plant superintendent.
Former Superintendent Vassar, who supervised Hann.
described Hann as being an all around type individual who
could be put on any job and stated he was capable of run-
ning all the machines in group 4.
David Koenig, an employee in group 4 who had worked
with Hann 6 or 7 years and served as an inspector in 1976,
stated Hann could operate all the machines in group 4 and
compared ann as being equal in skill to other employees
in group 4 who were retained including James Koenig and
Daniel Schmid, whom he described as being capable of op-
erating all the machines, and himself who all had less se-
niority than Hann. Koenig also testified he had not ob-
served two other employees who had lesser seniority than
Hann and were retained, namely Bernice Schnell and Rich-
ard Schnell, operate all of the machines.
I credit the testimonies of both Vassar and Koenig con-
cerning Hann's work. To the extent Plant Manager
Utecht's testimony is inconsistent with this finding I dis-
credit it.
C. Ana/l.vis and ('onclus'ions
The General Counsel contends, contrary to Respondent's
denials, that Respondent violated Section 8(a)(1) and (3) of
the Act by discriminatorily laying off and refusing to recall
Ephrem Hann because of his union membership or activi-
ties.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining or coercing its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
Section 8(a)(3) of the Act provides in pertinent part: "It
shall be an unfair labor practice for an employer . . . by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization."
The fact a layoff may be economically justified is no de-
fense if the selection of those employees laid off was be-
cause of their union activities. N.L.R.B. v. Bedford-Nugenr
"i The machines included the Blanchard grinder, shearing machines, me-
chanical brake press, hydraulic brake press, chain press. Minister press.
Welch punch press, spot welder, broaching machine, cold saw. Nichols mill.
drill presses, Bor-O-Matic, lathes, thread mills, gear hob, deep hole drill.
induction heater, straddle cutting mill, and roof bender.
Corporation, 379 F.2d 528, 529 (7th Cir. 1967); and
N.L.R.B. v. Deena Products Co., 195 F.2d 330, 335 (7th Cir.
1952), cert. denied 344 U.S. 827. Direct evidence of dis-
criminatory motivation is not necessary to support a finding
of discrimination and such intent may be inferred from the
record as a whole. Heath International, Inc., 196 NLRB 318
(1972).
The findings, supra, establish following the decertification
election which Respondent lost, President Seifert appeared
to blame Hann. who was a member of and held positions
with the Union, for the loss by accusing Hann of lying to
him after having promised to help him. Seifert then, be-
cause of Hann's refusal to support the Respondent in decer-
tifying the Union, instructed Plant Superintendent Vassar
and Toolroom and Maintenance Supervisor Hickman to
assign Hann dirty jobs which they did, and Vassar also
threatened Hann that Seifert was going to get rid of him
one way or another. On several other occasions after the
election Seifert would belittle Hann, find fault with his
work, and threaten him with automatically laying him off
for periods of 3 days to a week if there was any word out of
him. Thereafter when the first layoff involving employees in
group 4 where Hann worked occurred, which was also the
first permanent layoff following the election, Hann was
among those employees laid off and not recalled although
new employees were subsequently hired, notwithstanding
he had more seniority than five other employees in group 4
who were retained. Further, the credible testimonies of
Hann, Vassar. and Hickman establish Hann was as quali-
fied and capable of performing the jobs in group 4 as those
employees retained, and no evidence was offered to estab-
lish that the work limitations imposed by Hann's doctor as
a result of his injury would have prevented him from per-
forming all of the jobs which the employees retained were
assigned to perform. While President Seifert and Plant Su-
perintendent Utecht contend it was Utecht who selected
Hann for layoff rather than Seifert, the selection list was
submitted to Seifert who admittedly made no changes, al-
though in a prior layoff Seifert had rejected a list which did
not conform more to seniority. Moreover, the evidence es-
tablishes during the period Hann was being assigned the
dirty jobs Utecht was President Seifert's assistant and later
plant superintendent, and would have been aware of Sei-
fert's animosity towards Hann which was demonstrated
only several months before Hann's layoff' when Seifert, in
Utecht's presence, cursing and shouting informed Hann.
who was on medical leave and only came in to pick up his
check, that there was no way he was going to get work-
men's compensation for his injury.
Under these circumstances, including Hann's union ac-
tivities; Respondent's animosity towards Hann because of,
and blaming him for, Respondent losing the decertification
election; discriminatorily assigning Hann dirty jobs and
threatening him with discharge because of his refusal to
support Respondent in decertifying the Union; and the fact
he was laid off notwithstanding he had more seniority than
and was as qualified and capable of performing the work as
less senior employees who were retained, I am persuaded
and find that Respondent discriminatorily laid off Hann on
October 21, 1977, and thereafter refused to reinstate him
because of his union activities, thereby violating Section
680
SEIFERT M
8(a)(3) and ( I) of the Act, and that the reasons advanced by
Respondent for selecting Hann to be laid off were a mere
pretext to conceal those discriminatory reasons herein
found.
IV. ilt 1l11( O lit I. Nt-AIR I AtBOR PRAIi( E S IP()N
( ()MMI R( I
The activities of Respondent set forth in section IlI.
above. found to constitute unfair labor practices occurring
in connection with the operations of' Respondent described
in section 1, above, have a close, intimate, and substantial
relationship to trade. traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
CONct.'iSSIONS OF LAW
1. Seifert Manufacturing Company. Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Lodge No. 1259 of the International Associ-
ation of Machinists and Aerospace Workers. AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By laying off Ephrem Hann on October 21, 1977. and
thereafter refusing to reinstate him because of his union
activities. Respondent has 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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(3)
and (I) of the Act, i shall recommend that it cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act. Accordingly. Respondent shall
be ordered to immediately reinstate Ephrem Hann to his
former job or if that job no longer exists, then to a substan-
tially equivalent job without prejudice to his seniority and
other rights and privileges and to make him whole for any
loss of earnings and compensation he may have suffered
because of the illegal discrimination against him by laying
him off on October 21. 1977. and thereafter refusing to rein-
state him. Backpay shall be computed on the basis set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest computed in accordance with the formula set forth
in Florida Steel Corporation. 231 NLRB 651 (1977).8 The
General Counsel's contention that the rate of interest pro-
vided for in the remedy should be increased to 9 percent per
annum because of changes in the prime interest rate is re-
jected since the Board, which determines the rate of interest
to be paid, previously rejected a similar argument in Florida
Steel supra, in which it also adopted the Internal Revenue
Service's "adjusted prime rate" as the Board's interest rate
which is presently in effect.
Upon the foregoing findings of fact, conclusions of law.
" See., generally. Isis Plumbing and Heating Co.. 138 NLRB 716 (1962)
681
and the entire record, and pursuant to Section 10(-) of' the
Act. I hereb issue the following recommended:
ORL)ER j~
The Respondent, Seifert Manufacturing (,mpan., Inc.,
Kiel. Wisconsin. its officers. agents. successors. and assigns,
shall:
I. ('ease and desist from:
(a) Discouraging membership in. smpathies ftir or ac-
tivities on behalf of Local l.odge No. 1259 of the Interna-
tional Association of Machinists and Aerospace Workers.
AFI. ('10, or any other labor organization. by laying off.
refusing to reinstate, or in any other manner discriminating
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b} In an other manner interfering with. restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the ollowing affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Ephrem
Hann to his former job or, if that job no longer exists, then
to a substantially equivalent job without prejudice to his
seniority and other rights and privileges and make him
whole for any loss of pay or other compensation he may
have suffered by reason of the discrimination against him in
the manner set forth in that section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying. all payroll
records, social security payment records. timecards, person-
nel records and reports, and all other records necessary to
analyze and determine the amount of backpay due under
the terms of this Order.
(c) Post at its Kiel. Wisconsin, facility, copies of the at-
tached notice marked "Appendix."Ži Copies of said notice,
on forms furnished bh the Regional Director for Region 30.
shall, after being duly signed b Respondent's authorized
representative, be posted immediately upon receipt thereof'
and be maintained bh it for 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced. or covered b an) other material.
(d) Notift: the Regional Director f'or Region 30. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
11 is FURIFER OR)DERED) that the complaint be. anti
hereby is, dismissed insofar as it alleges unfair labor prac-
tices not specifically found herein.
19 In the event no exceptions are filed as prosided by Sec 1IO2 4 oF he
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein hall, as pro,ided in Sec. 102.48
of the Rules and Regulations. he adopted by the Board and become its
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes
iOIn the event that this Order is enforced bh a Judgment of a United
States Court of Appeals, the words In the notice reading "Posted bh Order ot
the National L.abor Relations Board" shall read "Posted Pursuant t a Judg-
ment of the Ulnited States Court otf Appeals Enforcing an Order of the Na-
tional l.abor Relations Board"