Trico Products Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1972

195 N.L.R.B. 1053 (N.L.R.B. 1972)

TRICO PRODUCTS CORP. 1053
Trico Products Corporation and International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of America (UAW). Case 3-CA-
4301
March 28, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On July 14, 1971, Trial Examiner John P. von Rohr
issued the attached Decision in this proceeding. There-
after, Respondent filed exceptions and a supporting
brief and the Charging Party filed exceptions. Subse-
quently, the above parties filed answering briefs. Re-
spondent also requests oral argument.
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 Trial
Examiner's Decision in light of the exceptions and
briefs.' The Board, for reasons which follow, finds
merit in the Charging Party's exceptions. Accordingly,
the Board has decided to affirm the rulings of the Trial
Examiner but to modify his findings, conclusions, and
his recommended Order in the respects hereafter set
forth.'
Our sole disagreement with the Trial Examiner goes
to his finding that although Respondent laid off the
eight salaried technical employees named in the com-
plaint on October 30, 1970, for unlawful reasons, its
conduct represented the "acceleration" of an economic
decision which would have resulted in the layoff of
these employees at some future-unspecified-date.
Both Respondent and the Charging Party take excep-
tion to this finding.
Respondent argues that the very economic circum-
stances which it established at the hearing and which
satisfied the Trial Examiner that the employees would
have been eventually laid off, negates the inference of
discriminatory motive attributed to Respondent as of
Respondent, in its answering brief, requests the Board to reject the
exceptions filed by the Charging Party on the ground that they do not
comply with Section 102.46 of the National Labor Relations Board's Rules
and Regulations, Series 8, as amended. We find that the exceptions are in
substantial compliance with the Board's rules and therefore deny Respond-
ent's request. Stop & Shop, Inc., 161 NLRB 75, 76.
Respondent's request for oral argument is hereby denied as in our
opinion the record, including the exceptions and the briefs, adequately
presents the issues herein and the positions of the parties.
Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d
362 (C.A. 3). We have carefully examined the record and find no basis for
reversing his credibility findings.
October 30, 1970. It asserts there is no "basis for, or
evidence to support, the existence or probability of such
a layoff at a future date."
Charging Party claims that the acceleration finding
of the Trial Examiner passes on an issue not presented
in this case. It also argues that the facts, as found by
the Trial Examiner, support a conclusion that no layoff
in the departments where these eight employees were
assigned would have occurred at all but for the fact that
all members of the departmental complements in which
the layoff was conducted had engaged in the protected
concerted activity of preparing, signing, and submitting
to management officials a petition protesting a work
rule. We find merit in the position of the Charging
Party.
The sole issue tendered by the pleadings and their
litigation was whether the eight employees here in-
volved would have been laid off on October 30, 1970,
but for Respondent's desire to retaliate against them for
their concerted activities. In considering this issue, the
Trial Examiner rejected as incredible the testimony of
Raymond Deibel, Respondent's vice president of engi-
neering, that he had decided to effect a layoff among the
employees under his official jurisdiction before return-
ing from vacation on October 27, 1970, and before he
had any idea about the controversial petition. Apart
from Deibel's rejected testimony, Respondent adduced
no evidence that any plan was settled on, or any deci-
sion reached, to effect a reduction in force among this
group of salaried technical employees before the events
placed in issue by the complaint occurred. The eco-
nomic evidence Respondent presented was adduced
only to corroborate Deibel's testimony that his decision
was impelled by economic considerations; and the Trial
Examiner found it insufficient to overcome General
Counsel's prima facie case. Nonetheless, the Trial Ex-
aminer relied on that evidence in inferring that, "even
absent [the employees' engagement in the protected
concerted activities], the employees laid off on October
30, 1970 ultimately would have been laid off at some
future date due to economic conditions ... " We be-
lieve he did so erroneously.
As set forth more fully in his Decision, the Trial
Examiner believed the following specific facts war-
ranted the inference which he drew: (1) as shown by the
directive which J. W. Frey, Respondent's vice president
of finance, had issued on May 14, 1970, Respondent
had embarked on a cost-saving program long prior to
the concerted activity here in issue to reduce noncriti-
cal work and personnel; (2) Respondent's business had
been adversely affected by a loss of product lines which
began in 1969, and it had more recently anticipated or
suffered further business losses by reason of the Gen-
eral Motors' strike which began on September 14, 1970;
(3) Respondent had steadily laid off large numbers of
production employees since 1969, and its most recent
195 NLRB No. 198
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff among such employees had occurred on October
16, 1970; (4) the eight salaried technical employees
named in the complaint were engaged in research engi-
neering projects which did not contribute directly to
Respondent's production; and (5) none of these eight
employees was replaced following his layoff by any new
employees.
In our view, however, little significance may prop-
erly be attributed to the above economic factors. It is
plain from other credited evidence that, until the events
here relevant, Respondent had not considered that the
economic conditions which resulted in its layoffs of
production personnel warranted parallel action to
reduce its complement of salaried technical personnel.
On the contrary, it had apparently believed that be-
cause the latter kind of employees were difficult to
replace there were overriding considerations favoring
the retention of the salaried technical employees. Thus,
it is undisputed that, except for the eight employees
named in the complaint, Respondent laid off none of its
salaried technical personnel after March 1970. Fur-
thermore, although the question of taking layoff action
was debated and was discussed by Deibel with his de-
partmental heads on a number of occasions following
Frey's directive, all had commonly agreed that all their
employees should be retained.' Significantly, the last
such discussion occurred about October 15, 1970; and
it had produced agreement that the then 1-month old
General Motors' strike did not warrant taking meas-
ures to reduce the personnel involved.
Respondent produced no evidence of any change in
economic circumstances between October 15 and 30,
1970, or thereafter, which would have caused a change
in policy with respect to the retention of salaried tech-
nical employees. And, although it claimed that the cir-
culation of the controversial petition had nothing to do
with its layoff decision, no convincing explanation was
provided as to why the layoff action was confined to the
two departments containing the employees who had
prepared and signed the petition. In these circum-
stances we perceive no relevance in the fact that the
eight employees named in the complaint were not re-
placed.
For the reasons above explained, we cannot say that
the layoffs of the eight employees would have occurred
for economic reasons at some later time. Accordingly,
we find, that, but for the activities of the employees
involved in connection with the petition, they would
, Indeed, even Frey's directive of May 14, 1970, recognized the desirabil-
ity of retaining the salaried technical employees. For while it urged the
company officials and their supervisors of such employees to review their
personnel and work in light of Respondent's cost-saving program, it also
asked them to advise Frey of the employees who could be spared so that
Frey could arrange transfers of such employees to other departments, if
possible. We note here that no effort was made to consider the transfer of
the eight employees here in issue and that this further supports the General
Counsel 's case.
not have been laid off. We further find, as did the Trial
Examiner, that their activities were protected con-
certed activities in protesting terms and conditions of
employment, and that, as the layoffs were effected be-
cause of such activities, they were violative of Section
8(a)(l) 5
THE REMEDY
As we have found that Respondent unlawfully laid
off the eight employees on October 30, 1970, and that
the record herein does not establish that any of the
employees would have been laidoff at any subsequent
period of time, we shall modify the Trial Examiner's
remedy in the manner described below.
We find, in the light of our decision herein, that
Respondent must not only be required to cease and
desist from engaging further in such unlawful conduct
but must also be required to reinstate the employees it
has not yet rehired and to make them' and others
whom it has already reinstated' whole for any loss of
earnings they have suffered in consequence of the un-
lawful layoffs in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as hereinafter modified and hereby
orders that Respondent, Trico Products Corporation,
Buffalo, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Ex-
aminer's recommended Order, as modified herein.
1. We amend the Trial Examiner's recommended
Order by substituting the following paragraphs 2(a)
and (b).
"(a) Offer to employees M. C. Hulse, Jr., Tony Vas-
tola, Charles Soponski, Leonard Sparks, Anthony Bar-
rancewicz, and Charles Hartung immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings
they suffered by reason of the discrimination against
' In view of our decision herein, we shall amend the Trial Examiner's
Conclusions of Law by substituting the following for his Conclusion of Law
3: "3. By discriminatorily laying off the above -named employees on October
30, 1970, because they engaged in protected concerted activity, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act."
As to the time of the hearing M. C. Hulse, Jr., Leonard Sparks, Tony
Vastola, Charles Soponski , Anthony Barrancewicz, and Charles Hartung
were still on layoff status.
' Frank Clark and Gerald LeVea were rehired on April 19 and March 15,
1971, respectively.
TRICO PRODUCTS CORP 1055
them, in the manner and to the extent provided in The
Remedy.
"(b) Make whole Frank Clark and Gerald LeVea for
any loss of earnings they suffered by reason of the
discrimination against them from the date of their dis-
criminatory layoff on October 30, 1970, to the date of
their reemployment on April 19 and March 15, 1971,
respectively, in the manner and to the extent set forth
in The Remedy."
2. Substitute the attached notice for the Trial Ex-
aminer's notice.
APPENDIX
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Ninth Floor, Federal Building, 111 West Huron
Street, Buffalo, New York 14202, Telephone 716-842-
3100.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off our employees, or other-
wise discriminate against them, for presenting a
petition concerning their working conditions, or
because they engage in any other protected con-
certed activity for their mutual aid and protection.
WE WILL NOT threaten our employees with re-
prisals for presenting a petition concerning their
working conditions or for engaging in other pro-
tected concerted activities; nor will we coercively
interrogate them about any such activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of rights guaranteed to them by Section 7 of
the National Labor Relations Act.
WE WILL offer to the following employees im-
mediate and full reinstatement to the jobs they
held prior to their discriminatory layoffs on Octo-
ber 30, 1970, or, if their jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges.
M. C. Hulse, Jr. Leonard Sparks
Tony Vastola Anthony Barrancewicz
Charles Soponski Charles Hartung
WE WILL make whole the below-named em-
ployees for any loss of pay they may have suffered
as a result of our discriminatory layoff which oc-
curred on October 30, 1970.
Frank Clark Charles Soponski
M. C. Hulse, Jr. Leonard Sparks
Gerald LeVea Anthony Barancewicz
Tony Vastola Charles Hartung
TRICO PRODUCTS
CORPORATION
(Employer)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge and
an amended charge filed on November 13, 1970, and Febru-
ary 16, 1971, respectively, the General Counsel for the Na-
tional Labor Relations Board, for the Regional Director for
Region 3 (Buffalo, New York) issued a complaint on Febru-
ary 22, 1971, against Trico Products Corporation, herein
called the Respondent or the Company, alleging that it ter-
minated eight employees in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, herein called the
Act.
Pursuant to notice, a hearing was held before Trial Exam-
iner John P. von Rohr in Buffalo, New York, on May 10, 11,
and 12, 1971. All parties were represented by counsel and
were afforded opportunity to adduce evidence, to, examine
and cross-examine witnesses, and to file briefs. Briefs were
received from the General Counsel and the Respondent on
June 18, 1971,- and they have been carefully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation with its princi-
pal office and place of business located in Buffalo, New York,
where it is engaged in the manufacture and sale of automobile
windshield wipers and related auto products. During the year
preceding the hearing herein, Respondent purchased goods
and materials valued in excess of $50,000 which were shipped
to it from points and places located outside the State of New
York. The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America (UAW), herein
called the Union or the UAW, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issue
On October 22, 1970,' a group of employees in Respond-
ent's Research Engineering and Metallurgical Departments
sent a petition to Respondent's officials demanding the im-
mediate end to the use of so-called Project Logs which they
' All dates, unless otherwise indicated, refer to the year 1970
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were required to fill out. Pursuant to an announcement made
on October 27, eight of the employees who signed the petition
were laid off on October 30. It being the General Counsel's
contention that the activity of the employees relating to the
presentation of the petition constituted protected, concerted
activity, the complaint alleges that the layoffs were motivated
by this activity and that the Respondent thereby violated
Section 8(a)(1) of the Act. Denying any connection between
the layoffs and the petition activity, Respondent defends on
the ground that the layoffs were based solely upon economic
considerations.
B. The Petition
Respondent's plant, located in Buffalo, New York, at the
times material hereto employed approximately 2,000
production and maintenance employees and 600 salaried em-
ployees. At issue herein are the layoffs of eight technical
(salaried) employees, six of whom were employed in Depart-
ment 54 (Research Engineering), and two of whom were
employed in Department 88 (Metallurgical).
Since approximately 1968, the employees in these depart-
ments have been required to fill out Daily Project Logs at the
end of each day. In essence, these are forms on which the
employees are required to give a written account of the vari-
ous types of work or projects they have worked on each day,
the amount of time spent on each job, the nature of the work
accomplished, and the like. The record leaves no doubt but
that the employees were long displeased with this reporting
log requirement. However, although they frequently ex-
pressed this displeasure to their supervisors,' the requirement
nonetheless persisted.
On October 16, a Friday, Anthony Vastola, Frank Clark,
and Charles Soponski, all research technicians in Department
54, decided that they would draft a petition to protest the
further use of the project logs. Vastola prepared a draft of the
petition the following Monday morning, October 19. After
showing it first to Clark and Soponski and obtaining their
approval, he then obtained approval of the other employees
in the department. The petition, which was typed by a secre-
tary during the noon hour, stated as follows:
October 19, 1970
TO: Mr. A.E. McIntyre
Mr. M.J. Tutko
We, the undersigned, strongly protest the use of
"Weekly Project Logs" in departments #54 and #88.
We feel that the use of "Daily Project Logs" is a dis-
criminatory labor practice in that the use of such
"Project Logs" is not a requirement of all Technical
Departments. Since the use of any discriminatory prac-
tice is prohibited by Federal law, we demand the im-
mediate end of the use of "Daily Project Logs." If this
situation is not immediately remedied, the National La-
bor Relations Board will be asked to arbitrate.
[cc: F. Bresse - R. A. Deibel - R. A. Batt]
The above petition was signed by all the employees in
Department 54 on the same day. It was sent over to Depart-
ment 88, located in another building, on the following day,
October 20. There it was signed by all the employees in that
department. Upon completion of all the signatures, a number
of photostatic copies were made. These copies, which bore the
date of October 19, 1970, were placed in the interoffice mail
in the afternoon of October 20, and were sent to the following
supervisory personnel: Raymond Deibel, vice president of
engineering ; Frank Breese, chairman of labor relations; Allan
McIntyre, director of research engineering and supervisor of
' Unrefuted testimony of Charles Soponski.
departments 88 and 54; Michael Tutko, chief of metallurgy
and foreman of Department 88; and Mr. Batt, administrative
engineer and assistant to Deibel.
C. Reaction of Respondent Supervisors to the Petition
Although the petition was not sent to the parties named
above until October 21,' McIntyre was informed about the
petition late on October 19 by Leonard Sparks, an employee
in Department 88, who told him about it while driving home
with him after work on that date.
On themorning of the following day, October 20, employee
Anthony Vastola was called into McIntyre's office. After first
discussing a work project, McIntyre referred to the circula-
tion of the petition and asked what it was about. Vastola
replied that it concerned the daily project logs and that its
purpose was to seek the elimination of them. When asked to
whom the petition was being sent, Vastola gave the names of
the company officials and supervisors to whom it was being
sent. According to the credited testimony of Vastola, McIn-
tyre at this point stated: "Well, I hope this petition isn't
worded too strongly because something like this could be
taken two ways. Mr. Deibel could look at this and recognize
the fellows have a complaint or he could hit the ceiling." (As
indicated hereinafter, Deibel at this time was on vacation and
did not return to the plant until October 27.) When Vastola
responded that the petition indeed was strongly worded,
McIntyre stated, "Well, why don't you fellows hold off send-
ing this and let me have a chance of talking to Mr. Deibel
when he comes back from vacation? Maybe I can pave the
way a little bit and not hit him with a petition when he walks
in the door."'
Later in the morning of October 20, employees Soponski,
Clark, and Robert McTigue, the latter a metallurgical techni-
cian, were summoned into Mclntyre's office. Present with
McIntyre was Michael Tutko, supervisor of Department 88
who is subordinate to McIntyre. The question was first raised
as to whether all the employees should be brought in, but
McIntyre stated, no, he "just wanted to get the point across"
to those who were present. Again referring to the petition,
McIntyre proceeded to say that he did not know the exact
wording but was concerned with what was in it. He stated
that this might be the wrong time to submit a petition, that
the employees would have to be careful how they worded it
because he didn't know how Deibel would take it, and that
Deibel might take it in the wrong manner . When McTigue
asked how it could be taken in the wrong manner, McIntyre
stated that "it could be taken in more ways than one." He
finally suggested that the three employees talk to the other
employees to see if they would hold up on the petition.
With the exception of about two employees who were not
available McIntyre held a meeting with all Departments 54
and 88 employees in his office in the afternoon of October 20.
Concerning this conversation, Vastola credibly testified as
follows:
' There is some testimony that the petition was not sent until October 22,
but this is not important.
' Without denying the above conversation , McIntyre simply testified that
he did not recall "this specific conversation with Vastola." I credit the
testimony of Vastola, who impressed me as an honest and intelligent wit-
ness.
It may be noted here that there is no substantial conflict in most of the
testimony concerning the various conversations between supervisors and
employees herein set forth. I was impressed by the clear , honest, and intelli-
gent testimony of all the technical employees who testified ; and, McIntyre,
who was involved in many of the conversations, was forthright in acknowl-
edging most of the statements attributed to him by these employees.
TRICO PRODUCTS CORP. 1057
He [McIntyre] again expressed a desire to us not to
send this Petition through the mails. He asked that we
hold off and let him speak to Mr. Deibel first before
presenting any Petition. He mentioned that it was a bad
time for such a thing due to economic conditions in the
Company, and alluded to possible raises, coming into
effect the next month.
... he mentioned that a petition of that nature could
be received unfavorably, and it could have detrimental
effect on things such as raises and of course, the eco-
nomic conditions being what they were, it just could
make someone mad ...
... one employee, I believe it was Marshall Hulse,
mentioned , "Well, why should something have an effect
on anything? It's perfectly legal. We have a right to do
it." And Mr. McIntyre's comment was "Well, you know
this might be like waving a red flag in front of a bull and
could be received unfavorably."5
Substantially corroborating Vastola concerning the above
conversation, Soponski added that before the meeting ended
McIntyre suggested that the employees get together and take
a vote to decide whether they still wished to send the petition.
Soponski said that the employees did take a vote after the
meeting and that the majority voted not to wait but to send
the petition on at this time . Later that afternoon (October 20)
McIntyre asked Soponski if the men still intended to send the
petition. When Soponski replied that they were waiting to
contact two employees in Plant 2, McIntyre again stated that
it was "coming near raise time ," that they should "hold off"
because "conditions aren 't right."6
On the following morning , October 21, McIntyre had a
further conversation with Soponski about the petition.
Soponski testified that at this time McIntyre told him "that
he had been too good to the guys" that "[if] they are going
to step on his toes, that he's going to change his wages."
On the morning of October 21 McIntyre once more held
a meeting in his office with all but two of the employees of
Departments 54 and 88. This meeting was largely a rehash of
what he had said before. Thus, according to the credited
testimony of employee Frank Clark, McIntyre repeated that
this was not an opportune time to send the petition because
of economic conditions and also because raises were due. He
further stated that "he didn't know how Mr. Deibel would
take it," that "on the one hand Mr. Deibel would figure there
was an honest problem in Research and make an effort to
correct it, or, on the other hand, he could hit the ceiling."
Later that day employee Robert McTigue asked Foreman
Tutko if he could call the two employees at Plant 3 who had
not attended the meeting to inform them of what McIntyre
had said. With Tutko's permission, McTigue called employee
Norman Krajna. Tutko got on an extension and a three-way
conversation resulted. According to McTigue, Tutko at this
time stated that the petition should not be sent, that there
might be repercussions. Further, that he felt it would not be
wise to do so at this time because of the raise evaluation that
would be coming in November.'
The following day, October 23, Foreman Tutko broached
employee Leonard Sparks and asked how he could have been
"so stupid" as to have signed the petition. When Sparks gave
his reasons for signing, Tutko stated, "Do you realize what
is going to happen next week when Mr. Deibel gets back?"
' McIntyre substantially conceded the conversation as above set forth
and specifically conceded making the comparison of presenting the petition
to Deibel being like waving a red flag in front of a bull.
s Credited testimony of Soponski.
Tutko conceded making the above statements, as set forth in the above
testimony of McTigue.
Sparks merely replied that he did not, stating that he went
with it because he believed in it.'
D. The Layoff
Although Deibel returned from vacation on October 26,
his first day at the plant was on October 27, a Tuesday. On
the morning of that date he first conferred with his super-
visors concerning a layoff and also discussed the matter of the
petition . These meetings are discussed hereinafter . However,
about 3 p .m. on October 27 all the employees of Departments
54 and 88 (except Smith and Krajna who worked at another
plant) were summoned to the engineering conference room
for a meeting with Deibel. Present also were McIntyre,
Tutko, Batt , and Supervisors Derylak and Elwell.
It is undisputed that Deibel entered the meeting with two
papers in hand, one the copy of the petition which had been
sent to him , the other a list of employees who were to be laid
off. While some employee witnesses testified in more detail
than others , there is no dispute as to what was said or tran-
spired at this meeting . Vastola gave the most comprehensive
version . Thus, according to Vastola , Deibel began the meet-
ing by stating , "I see you fellows have been busy when I was
gone," whereupon he said that he called the meeting to dis-
cuss the petition , but that he also had other bad news which
he would put aside and discuss later .' Continuing with Vas-
tola's testimony , Deibel again referred to the petition, stating
that "he didn't like things like this, that this makes us look
bad to management , made us look as though we can't take
care of our own problems ." He further stated that the em-
ployees "didn 't need to be organized ... didn't have to sign
a petition in order to get [their] feelings across , that anyone
could speak to him when they wanted to." He stated , "I know
how these things get started , two or three people decide to do
something, and everybody else just follows along, but you
don't need this sort of thing ." He further stated that he did
not like the use of the word "demand " in the petition, that
the employees "really shouldn 't be demanding anything." At
another point in discussing the petition Deibel referred to the
fact that a copy of the petition had been sent to Breese,
Respondent's chairman of Labor Relations , stating, "It does
you no good to send Petitions to Mr. Breese, because he has
nothing to say about what happens in my building ... so why
don't you just come to me first without sending a Petition to
Mr. Breese."
Following the foregoing expression of his sentiments re-
garding the petition," Deibel went on to give an explanation
concerning the purpose of the daily work logs and why they
were necessary ." At the hearing the employees indicated they
were satisfied with this explanation and that they accepted it.
' Tutko testified that he could not recall asking Sparks if he realized what
would happen when Deibel returned. He said he recalled telling Clark
something to the effect "about bringing the Department or personnel into
the limelight, again , that this is adverse publicity." I credit Sparks' testimony
as above set forth.
° Conceding that he brought up the petition first, Deibel testified: "I
greeted everyone. Then I discussed the petition."
1° Deibel did not deny any of the statements attributed to him by Vastola
(and other corroborating witnesses) as set forth above. Without testifying in
as much detail concerning this part of the meeting, Deibel specifically
conceded telling the employees that he "was disappointed in the petition,"
that he "did not feel the petition was necessary" and that he did not like
the word "demand," which he said "seemed to shake me up a little bit" and
which he said he considered "sort of a harsh request, bold request."
11 The principal reason for the work logs is to maintain a record of the
various work projects in which the employees were engaged. Since much of
this work is of an experimental nature, these records could prove useful in
event of any subsequent patent litigation.
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Deibel then turned to the "bad news," and, referring to the
other paper, announced that there would have to be layoff. He
referred to poor economic conditions, stated that the General
Motors strike was still continuing, and noted the possibility
of a strike at the Ford Motor Company.12 He also stated that
the petition had nothing to do with the layoff. According to
the unrefuted testimony of Vastola, Deibel further stated that
he would rather call it a furlough than a layoff because he
expected the laid-off employees to be back shortly. Advising
that the layoff would be effective at the end of Friday, October
30, Deibel then took the list and read the names of the follow-
ing employees who were being laid off: Frank Clark, M.C.
Hulse, Jr., Gerald LeVea, Anthony Vastola, Charles Sopon-
ski, Leonard Sparks, Anthony Barancewicz, and Charles
Hartung.
Prior to the layoff, each of the employees was given a letter
of recommendation signed by Deibel. For example, the letter
to Hartung, which was substantially the same as that given
to other employees, stated as follows:
October 30, 1970
To Whom It May Concern:
This is to advise that Mr. Charles Hartung was em-
ployed by Trico Products Corporation from May 2, 1966
to October 30, 1970. It was necessary to terminate his
employment because of a reduction in personnel, based
on seniority, caused by business conditions.
He was a member of our Research Engineering
Laboratory. His duties included conducting perform-
ance and endurance tests and making recommendations
for engineering revisions based on his observations. He
was also responsible for the development and construc-
tion of electronic test fixtures.
His electronic knowledge was an asset in his work. He
was interested in his projects and discharged his duties
in a responsible manner. Therefore, it is a pleasure to
recommend Mr. Hartung for employment particularly
in the technical and electronic fields.
Very truly yours,
Raymond A. Deibel
Vice President
Engineering
While, as indicated, the other letters contained minor diff-
erences, the first paragraph, as reflected in Hartung's letter,
was identical in all the letters."
E. Statements by Tutko Following the Announcement of
the Layoff
Robert McTigue , a metallurgical technician under Tutko,
testified that he had a conversation with Tutko on October 27
following the meeting in which Deibel announced the layoff.
After first discussing such matters as reorganization of work
in the metallurgy department , Tutko remarked that he had
warned the employees about the petition . According to
McTigue , Tutko thereupon stated that "they" had gotten rid
of the troublemakers , but that the metallurgy department
"came out of this pretty clean." McTigue testified that Tutko
further stated "when Mr. Deibel saw the petition , Mr. Deibel
stated that he recognized some of the names and that they
had caused him trouble before ." When Tutko was asked by
his counsel about McTigue 's testimony concerning this con-
versation , Tutko responded as follows: "I might have talked
to McTigue on some of these points . But I don't recall saying
" General Motors and Ford are two of Respondent's principal custom-
ers.
" Most of the employees also testified that they were told by McIntyre
that there was little likelihood that they would be recalled in the near future
and that they had best look for another job.
anything about Mr. Deibel saying anything about these are
'troublemakers' or anything in that regard, no. I might have
said something in regards to these are some of the trou-
blemakers." I credit McTigue's testimony as above set forth."
Employee Leonard Sparks (Department 88) testified that
on October 29 Tutko broached him and stated, "See what I
told you last week would happen. Now you know." Sparks
said he then stated that he felt the layoff was set up by
McIntyre whereupon Tutko responded, "Well, we know
what kind of a man he is." As to the remainder of this
conversation, Sparks testified: "He [Tutko] said he didn't
know anything about this layoff. This just came out of no-
where. He couldn't believe as to the workload what was going
on. He said, had it been up to him, he would have hired a man
instead of laying them off because the work was there. So he
apologized for letting me go but said it wasn't up to him." I
credit Sparks' testimony concerning this conversation which,
moreover, was substantially conceded by Tutko.
Employee Gerald LeVea, a metallurgical technician, also
spoke to Tutko about the layoff on October 29. According to
LeVea, at this time he asked Tutko if the layoff had anything
to do with the petition. Tutko responded, he said, by telling
him "I was old enough to know better and I should be able
to figure it out for myself." Tutko conceded making this
remark to LeVea in response to the query.
F. Respondent's Defense
Respondent first adduced testimony about discussions that
were held among supervisory personnel relative to a possible
layoff, these discussions having taken place prior to the ad-
vent of Deibel's leaving on vacation on October 15, 1970.
Deibel testified that beginning in the early spring of 1970
he began having periodic or monthly meetings with J. W.
Frey, Respondent's vice president in charge of finance. With-
out going into detail, Deibel said that in these discussions
Frey pointed out that the volume of business was going down
and that therefore "the non-productive overhead would have
to be watched very closely."
It is undisputed that on May 14, 1970, Frey issued the
following memorandum:
DO NOT POST
May 14, 1970
To: Foremen and Department Heads
Re: Salaried Personnel
The reduced level of new car sales has necessitated
significant reduction in the number of hourly paid em-
ployees. Accordingly, we have been reviewing our sala-
ried employment with the objective of avoiding layoffs
by instead reducing salaried employment through nor-
mal attrition. We have limited replacement of quits and
retirements to those situations which are absolutely
necessary and, in certain instances, we have filled vacan-
cies by transfer of personnel from other departments. In
addition, we expect to avoid hiring summer help by
having each department reassign salaried employees to
cover vacation schedules.
The economic outlook for the remainder of the year
is not encouraging and, furthermore, our OE customers
have expressed strong resistance to price adjustments to
cover our increased costs. We are asking that each of you
carefully review your operations and further reduce
costs wherever possible, particularly through reduced
overtime and elimination of non-critical work and/or
" Deibel denied saying anything to Tutko about getting rid of trou-
blemakers. Of course, in crediting McTigue's account of what Tutko told
him, I do not find that Deibel in fact made the foregoing remark to Tutko.
TRICO PRODUCTS CORP. 1059
personnel. We appreciate the efforts that many of our
supervisors have already taken in this direction. In the
event we are advised of personnel not critically needed
in any department, we will attempt to reassign the em-
ployees.
J. W. Frey
Although apparently Deibel and Frey continued their
monthly discussions following the issuance of the above
memorandum, the only further specific testimony proferred
by Deibel concerning them was a discussion which he said he
had with Frey in early October 1970. Concerning this discus-
sion, Deibel's entire testimony was as follows: "To the best
of my recollection we discussed the general conditions, the
production conditions, the general economics of the com-
pany. He appealed to me to continue an effort to keep our
non-productive overhead down."
Deibel testified that over the same period of time he also
discussed the situation with McIntyre and Batt. Concerning
these discussions, Deibel gave the following testimony:
I had meetings with my subordinates, say, and appealed
to them to cooperate.
. I visited Mr. McIntyre and every department in the
building. And I observed the general conditions of the
building, of the employment, and pointed out to them
that our work load was gradually going down, and the
General Motors strike would be over with. We were
fearful that Ford would go out. This was-the combina-
tion of the two were a major part of our original equip-
ment."
Like the testimony of Deibel,16 the testimony of McIntyre
concerning the possibility of any employment cutback due to
economic circumstances was generalized and lacking in de-
tail. On direct examination he testified merely that "we had
been talking about a possible cutback for quite some time."
When asked on cross-examination if he had discussions with
Deibel and Batt about cutbacks in August or early September
1970, he merely responded that they "had some discussions,"
but that no decision was reached as to whether there would
be a layoff in his department. At another point during cross-
examination , McIntyre testified that he did not discuss cut-
backs with Deibel just prior to Deibel' s going on vacation. At
still another point on cross he testified that after an investiga-
tion by him in the early fall of 1970 he concluded "that we
could consolidate the laboratory and that it would involve the
point of relocating walls or the physical relocation of walls in
the first floor area, and that it may properly allow us to reduce
the force.""
With respect to Department 54 (Metallurgy) Tutko tes-
tified that as the result of an evaluation he made at the request
of McIntyre and Batt in February or March 1970, he decided
that he could afford to lay one man off and that he did so on
" Asked whether he also spoke to Tutko about the situation , Deibel said,
"I may have flashed it to him, but I wouldn't want to be held strictly to that
on Mr. Tutko. I realize Mr . Tutko would report directly to Mr. McIntyre.
16 Unfortunately for Respondent, Deibel was not a good witness insofar
as being able to recall details pertaining to management discussions about
Respondent's economic condition and/or the possibility of any employment
cutback . This I think is apparent from his brief , generalized testimony, all
of which I have set forth above.
1' It may be noted that counsel for Respondent read into the record the
following portion of McIntyre 's pretrial affidavit:
In my judgment, the decrease in work from when I spoke to Deibel
prior to his vacation to October 27th, 1970, was not such that it neces-
sitated decreasing my staff by four men. Rather , there has been a steady
decrease in our work from the late spring , 1970 (May or June) up to
October 27th, 1970. Since assuming my current responsibilities, I have
not seen a situation where the work load in my department was as low
as during the period from late spring, 1970 to the present time.
March 20. Tutko said that in late spring the same supervisors
requested him to make a similar evaluation, that he did so,
but concluded that he could afford to maintain his level of
eight technicians. A further such request was made to him in
July or August 1970, at which time, he said, "I gave them the
same answer."" Finally, Tutko testified that in about mid-
October 1970, he had a meeting with Batt and McIntyre
wherein Batt referred to the General Motor strike and stated
that Respondent's production was down. He said that at this
time Batt stated, "Look, let's be serious about this. We really
have to consider laying people off." According to Tutko, at
this time he "admitted" that he could afford to lose one or
two people at most, but that he "would liked to have kept
them.""
I turn now to the testimony proffered by Respondent con-
cerning the effectuation of the layoff here at issue. Deibel,
who took full responsibility for the layoff and said that the
decision was his alone, testified that he reached this decision
during the last weekend of a Carribbean vacation cruise. He
was on the cruise from October 15 to 26. He returned to work
at the plant on Tuesday, October 27. Deibel testified that
upon reaching the plant that morning he first called Batt and
"told him I had done some serious thinking about the cutback
in all of our engineering operations." Deibel testified that the
following then took place: Batt asked if he had read his mail
and if he had seen the petition. He told Batt that he had not.
There was a pause in the conversation while he looked at his
mail. He found the petition, read it while Batt was still on the
phone, and then stated that he was "disappointed" in seeing
it. According to Deibel, he then told Batt, "Well, I think we
better have a meeting."20
A short while later that same morning, and responding to
Deibel's request, Batt, McIntyre, and Tutko came to Deibel's
office." Deibel's testimony as to what transpired at the meet-
ing which then ensued is best set forth in his own words, as
follows:
I told them that I had seen this petition, but I assured
them that the petition did not bother me. I said I thought
it could have been answered. In fact, I said there should
be no question about it ...
Then I told them that the economic conditions forced
us, Trico, into a very careful study of our nonproductive
overhead. And I pointed out to them that a layoff would
have to be made in the production research area.
Both Mr. McIntyre and Mr. Batt said they had done
some work on this and that they would like some more
time. So, I said, "Well, let's get together some time this
morning. And as far as this petition is concerned there
should be no problem in straightening this out. I am sure
the people did not understand the reason for this log
book." This had been in effect for two years. To that
minute, I had not heard of any repercussions.
They left the office and I went on with other work.
Filling in further details of the above meeting, McIntyre
testified that the meeting wound up with Deibel telling the
supervisors to go back and prepare a list of employees whom
they would consider cutting and that he would meet with
them again later that morning. This they did, with the second
" Tutko said that at this time there was ample work available and that
he also had summer vacations to contend with.
19 Batt was not called as a witness and did not corroborate this conversa-
tion. Neither did McIntyre make any reference in his testimony concerning
any such conversation with Tutko.
30 Pursuant to a question somewhat later in his testimony, Deibel testified
that during this conversation he also told Batt that he was contemplating a
layoff.
" Although Deibel recollected that only Batt and McIntyre were present
at this time, Tutko testified that he was also present at this meeting.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting held just before noon . At this meeting Tutko told
Deibel that he could afford "to lose one, two at the most."22
It was decided that two of Tutko's metallurgists be laid off.
McIntyre reported that, with the readjustment hereinafter
noted, he would consider laying off four people." It in fact
was decided that six employees in Department 54 would be
laid off.
The further events of that day, namely the 3 o'clock meet-
ing with the employees wherein the petition was discussed
and the layoff announced, have been previously set forth.
G. Conclusions
Upon the entire record in this case, I am persuaded that
although Respondent's economic position was such that the
alleged discriminatees ultimately would have been laid off, I
am also convinced and find that these layoffs were neverthe-
less discriminatorily accelerated because of Respondent's
manifest resentment at the employees ' action in presenting it
with a petition demanding an end to the daily project logs.
In the first place, the record is abundantly clear, indeed it
is undisputed, that there was available work still to be per-
formed by all the employees in the effected departments at the
time of the layoff. Not only was this the uncontroverted
testimony of the technical employees who testified herein, but
this was conceded by Tutko and McIntyre. Thus, Tutko tes-
tified that he could have retained the two employees who
were laid off, indeed that he could even have found work for
two extra persons at the time of the layoff. And McIntyre, as
previously noted, told Deibel just prior to his going on vaca-
tion that the workload did not necessitate a decrease in his
department by four men.24 Aside from the foregoing, I have
not overlooked Respondent's generalized testimony to the
effect that certain aspects of the work performed in Depart-
ments 54 and 88 are related to production. While this no
doubt is true, the record nevertheless is clear that essentially
the work performed in these departments is of an experimen-
tal nature. It also involves the testing of new products being
developed by the Respondent. This, then, is the type of work
which could continue regardless of a drop off in production.
While, as I shall point out below, at some point Respondent
undoubtedly was justified in curtailing this work as part of its
overall efforts to cut costs, I here stress only that work was
available for all the men at the time of the layoff; i.e., there
was no eminent "lack of work" at the time the layoff took
place.25
In the context of the availability of work at the time of the
layoff, the basic reasons for my finding that the layoff was
discriminatorily accelerated is premised upon the following
considerations: (1) Respondent's manifested hostility to the
employees' conduct is preparing and presenting the petition;
(2) the timing of the layoff, the effectuation of which took
place immediately upon Deibel's becoming aware of the peti-
tion; and (3) Deibel's failure to give any plausible or credible
explanation for the taking of such precipitate action on the
day he returned from vacation. With respect to Respondent's
hostility to the petition, this is abundantly clear from the
heretofore related conversations which McIntyre and Tutko
had with the employees wherein these supervisors expressed
strong opposition to the employees' going over their heads
Testimony of Tutko.
Testimony of McIntyre.
" When asked if he could have retained the employees who were laid off
in Department 58, McIntyre testified , "Yes, I could have still found projects
for them . I could have made projects for them."
" I thus distinguish between a layoff which is necessitated due to lack of
work and a layoff which is made in an effort to cut costs because of economic
necessity.
and taking the matter to Deibel and others in higher au-
thority outside of their departments. Without reiterating all
that was said, these supervisors attempted to discourage fur-
ther circulation of the petition by telling the employees in no
uncertain terms that the petition could "be received unfavor-
ably"; it could have a "detrimental effect" on any forthcom-
ing raises; the petition could create "adverse publicity" as
concerned their departments; Deibel "could hit the ceiling
when he saw the petition; and presentation of the Petition to
Deibel might be tantamount to waving a red flag in front of
a bull, and the like. Indeed, these predictions not only were
realized by the precipitate layoff, but, as predicted, Deibel
overtly displayed his reaction when berating the employees
for their petition activity during his meeting with them on the
afternoon of his return.26
Concerning the decision to make the layoff and the timing
thereof, Deibel testified as follows:
The period that I was away, I had the opportunity to
reflect and consider this layoff possibility. I did not want
to give the order to lay anyone off, realizing these techni-
cians are trained, and there were several of the techni-
cians that we had doing extremely good work and had
a future with the Company. I also felt we would like to
hold all of them prior to leaving. But with the-general
trend of layoffs in manufacturing the general trend of the
loss of business, and the time that I had to-to think the
thing over prompted me to take certain moves when I
returned. This decision was made probably ... over the
weekend of my return.
While it very well may be true that during the cruise Deibel
gave some thought to business matters, under all the circum-
stances of this case, including my observation of the witness,
Deibel's testimony about reaching a final decision with re-
spect to the layoff while on the last 2 days or so of his vacation
does not bear the ring of truth. Deibel conceded that he did
not receive any company reports during the entire period of
the cruise." Moreover, as previously noted, in relating the
background of his familiarity with the Company's economic
condition and its efforts to reduce nonproductive work, Dei-
bel relied substantially on his conversations with Vice Presi-
dent Frey in this regard. It would seem strange, therefore,
that on the morning of his return he would not first consult
with Frey, or other company officials, before so hastily laying
off these experienced employees."
Based on all the considerations noted above, I am con-
vinced and find that the layoffs of October 30, 1970, were of
a retaliatory nature and that they were sparked largely by the
petition which confronted Deibel upon his return from vaca-
tion. By such conduct, Respondent violated Section 8(a)(1) of
the Act.29 In this connection, I reject Respondent's conten-
" The statements of Deibel during this meeting have been previously set
forth and need not be repeated here. The fact that he later explained the
basis for the daily logs is immaterial insofar his expressed reaction to the
petition is concerned.
" When asked if he took any documents with him, Deibel responded,
"Correspondence. Mostly correspondence and some of our experimental
development project logs, and things of that nature." These were not other-
wise identified. The only reports received by Deibel during this period were
general ship bulletins.
" McIntyre testified that he advised Ruppert Warren, Respondent's
president, about the layoff after his discussions with the supervisors and
after they had determined the number of employees to be laid off.
31 All the employees in Departments 54 and 88 signed the petition.
Accordingly , and particularly in view of the basis upon which I have predi-
cated my finding of the discrimination (i.e., general retaliation) it is im-
material that the laid-off employees had the least seniority. Moreover, in
view of Tutko's testimony that he considered ability as well as seniority, it
does not follow, as Respondent appears to assert , that seniority was the sole
criteria used in the selection of the employees.
TRICO PRODUCTS CORP. 1061
tion that the employees were not engaged in protected, con-
certed activity. Although Respondent had the right to insti-
tute the daily project logs, clearly the requirement that the
procedure involving them be followed by the employees was
a condition of employment. While an employer is not re-
quired to give in to employees, it is well settled that Section
7 of the Act gives them the right to act in concert for the
purpose of protesting their working conditions.
Although I find the layoff to have been prematurely
sparked by the employees' activity in connection with the
petition, upon the basis of additional evidence presented by
the Respondent I am persuaded that even absent such ac-
tivity, the employees laid off on October 30, 1970, ultimately
would have been laid off at some future date due to economic
conditions and Respondent's overall program to reduce non-
productive work. That Respondent was embarked upon a
cost-saving program long prior to the activity here at issue is
clearly reflected in the memorandum of Vice President Frey
to all foremen and department heads on May 14, 1970,
wherein he urged, inter alia, that a reduction of costs be made
wherever possible, "particularly through reduced overtime
and elimination of non-critical work and/or personnel. "(Em-
phasis supplied.) In this connection, Respondent presented
testimony concerning adverse economic conditions, particu-
larly with respect to the loss of certain product lines and
business, and the effect of the General Motors strike (which
occurred during the period material hereto) upon Respond-
ent's business. However, in view of Frey's memo of May 14,.
1970, which occurred prior to the unfair labor practices
found herein, and also because of the layoff of large numbers
of production employees, I am satisfied that Respondent was
fully justified in taking whatever steps it deemed feasible as
part of its cost-saving program. I therefore do not deem it
necessary to detail the evidence concerning the circumstances
which led to this condition. Concerning the layoff of
production employees just alluded to, it is undisputed that
due to economic conditions approximately 139 employees
who worked in Respondent's production, maintenance and
inspection departments were laid off on October 16, 1970, this
just approximately 2 weeks before the layoffs of the technical
employees involved herein." In addition to the foregoing, I
deem it particularly significant that none of the laid-off em-
ployees were replaced by the hiring of any new employees."
This clearly demonstrates that Respondent was able to con-
tinue the operation of its business with this lesser number of
employees. Furthermore, it is noteworthy that there is no
evidence of any significant increase in overtime in these de-
partments after the layoff or that any of this work was subse-
quently contracted out. Accordingly, and although I have
found the layoff to have been discriminatorily accelerated, I
see no basis for ordering that the laid-off employees be rein-
stated to positions in which there are no vacancies. However,
in view of the unfair labor practices found herein, the custom-
ary backpay remedy has been provided in the section herein
entitled "The Remedy."
10 As a further overall picture, and as evidenced by Resp. Exh. 4, Re-
spondent's general level of plant employment had decreased from approxi-
mately 3,000 employees in the beginning of 1969 to about 2 ,330 employees
at the time the General Motors strike commenced on September 14, 1970.
By the end of the fifth week of the General Motors strike, Respondent's
employment had dropped to 2,075 employees.
" I have not overlooked the fact that an employee named Fucille, al-
though charged to Department 54, had been assigned to do special work for
Deibel and was returned to the department after the October layoff. How-
ever, the fact remains that no one replaced Fucille and that Respondent was
able to function without hiring any new employees.
Finally, the complaint alleges that Respondent coercively
interrogated the employees and threatened them with eco-
nomic and other reprisals if they engaged in protected and
concerted activities. As reflected in the statements by McIn-
tyre and Tutko during their conversations with the employees
between October 20 and 23, 1970, all of which have been
related heretofore and need not be reiterated again, I find the
evidence amply sustains this allegation and that Respondent
thereby further violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with the operations described in sec-
tion I, above, have a close, intimate, and substantial relation
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 un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully ac-
celerated the layoff of the below-named employees on Octo-
ber 30, 1970, in violation of Section 8(a)(1) of the Act, it will
be recommended that Respondent make them whole for any
loss of earnings they may have suffered as a result of the
discrimination against them. Since the amount of backpay, if
any, due these employees will depend upon the time they
would have been laid off absent the discrimination herein
found, I shall leave this matter to be determined at the com-
pliance stage of this proceeding. These employees shall be
made whole for any loss of earnings they may have suffered
as a result of the discrimination against them, by payment to
them the sum of money equal to the amount they would have
earned from the date of discrimination to the date they would
have been normally laid off, absent the discrimination, less
net earnings during said period, to be computed on a quar-
terly basis in the manner established by the Board in F W.
Woolworth Company, 90 NLRB 289, and shall include the
payment of interest at the rate of 6 percent to be computed
in the manner set forth by the Board in Isis Plumbing &
Heating Co., 138 NLRB 716. The names of the employees
laid off on October 30, 1970, are Frank Clark, M.C. Hulse,
Jr., Gerald LeVea, Tony Vastola, Charles Soponski, Leonard
Sparks, Anthony Barancewicz, and Charles Hartung. I shall
also recommend the placing of the employees not heretofore
recalled on a preferential hiring list. 32
In view of the nature and extent of the unfair labor prac-
tices herein found, I shall recommend that Respondent be
placed under a broad order to cease and desist from in any
manner infringing upon the rights guaranteed its employees
by the Act.
Upon the basis of the foregoing findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Trico Products Corporation is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
" As of the time of the hearing herein, Gerald LeVea and Frank Clark
had been reinstated to their former positions.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW) is
a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily accelerating the layoff of the above-
named employees on October 30, 1970, because they engaged
in protected, concerted activity, the Respondent has engaged
in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
4. By interfering with , restraining , and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7
of the Act, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
ORDER
Respondent, Trico Products Corporation, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Laying off its employees for presenting a petition con-
cerning their working conditions or for engaging in any other
protected concerted activities for their mutual aid or protec-
tion.
(b) Threatening employees with economic or other repris-
als for their activities in presenting a petition concerning their
working conditions or for engaging in other protected con-
certed activities; or coercively interrogating employees con-
cerning such activities.
" 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.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Make whole Frank Clark, M.C. Hulse, Jr., Gerald
LeVea, Tony Vastola, Charles Soponski, Leonard Sparks,
Anthony Barancewicz, and Charles Hartung for any loss of
pay they may have suffered by reason of Respondent's dis-
crimination against them, in the manner set forth in the
section entitled "The Remedy."
(b) Place the above-named employees laid off on October
30, 1970, who have not been reinstated, on a preferential
hiring list and fill appropriate vacancies therefrom.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payments records, timecards, person-
nel records and reports, and all other records necessary to
determine the amount of backpay due under the terms of this
recommended Order.
(d) Post at its plant at Buffalo, New York, copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 3,
after being duly signed by the Respondent's representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced or covered by any other
material.
(e) Notify the Regional Director for Region 3, in writing,
what steps Respondent has taken to comply herewith."
" 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 3, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."