Audio Industries, Inc., 1008 (1962)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, CONCLUSIONS OF LAW

1. Brunswick Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Respondents are labor organizations within the purview of Section 2(5) of the Act.

3. The Respondents have not engaged in the unfair labor practices alleged in the complaint.

   [Recommendations omitted from publication.] Audio Industries, Inc.' and General Teamsters, Chauffeurs and Helpers, Local Union No. 298. Case No. 13-CA-x.130. February 14, 1962 DECISION AND ORDER

   On October 30, 1961, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto.

   Thereafter, the General Counsel filed a brief in support of the Trial Examiner's Intermediate Report and the Respondent filed exceptions to the Intermediate Report and a supporting brief.

   Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a threemember panel [Chairman McCulloch and Members Rodgers and Fanning].

   The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, with the following exception.

   1 The Respondent's name as set forth above conforms to the pleadings as amended at the hearing.

   2 On December 26, 1961 , the Respondent filed with the Board a 'motion to reopen and remand (the case ) to the Trial Examiner for further hearing,' and a supporting brief.

   Respondent points to the fact that , on September 5, 1961 , the Charging Party herein filed another charge against Respondent ( Case No. 13-CA-4424 ), alleging that the refusal to recall certain employees other than those involved herein was discriminatory, and that these employees 'should have been named In the complaint Issued June 16, 1961 ' The Regional Director refused to issue a complaint on the ground that the evidence was insufficient, and the General Counsel sustained his ruling. Respondent alleges that, since the surrounding facts In the two cases are similar , the refusal to Issue a complaint in the one should dictate the same result In the other, and it therefore asks that the record herein be reopened In order to introduce the record of Case No . 13-CA-4424 and to argue its point. Respondent's motion is opposed by the General Counsel.

   We see no merit in Respondent ' s contentions, and therefore see no necessity to reopen the record in this case. The fact that the totality of circumstances and events in Case No. 13-CA-4424 was deemed insufficient to warrant the issuance of a complaint does not mean that the circumstances and events In the instant case are Insufficient to have warranted the issuance of a complaint herein , even assuming that the background facts in the two cases are the same or similar . The motion is hereby denied s The Respondent filed a lengthy list of exceptions to the findings , conclusions, and recommendations of the Trial Examiner . We find that only Respondent's exceptions 135 NLRB No. 103.

   AUDIO INDUSTRIES, INC. 1009

   In agreement with the Trial Examiner, we find that Respondent's failure to recall Frances Celebucki, Gertrude Rempala, Mary Ratliff,

   Walden Ratliff, and Janice Reed was due to the union activity of these employees, and that by such failure the Respondent violated Section 8(a) (3) and (1) of the Act. We do not agree with the Trial Examiner, however, that the Respondent's failure to recall Lottie Shiparski was because of her union activity. Shiparski was not a member of the Union's organizing committee, and hence her name did not appear on the March 24 leaflet which was seen by the Respondent. She had attended union meetings and she wore a union button on the day of the election. However, there was no evidence that the button was seen by any representative of management and no direct evidence that any representative of management had knowledge of her union activities.

   Although Shiparski testified that her supervisor had asked her about her attendance at a union meeting, the Trial Examiner discredits this testimony. The Trial Examiner infers knowledge of Shiparski's union activities from the fact that this is a small plant, and that Shiparski had 'openly espoused the cause of the Union.' We do not agree that the inference is warranted in this case, and we therefore numbered 1, 2, 3, 22 , 24, 52, and 53 have any merit , and only to the extent discussed below.

   Exception 1: The Trial Examiner finds that 'Respondent refused to concede that the Union was a labor organization.' The record shows , however, that the Respondent stipulated at the outset of the hearing that the Union ( Charging Party ) is a labor orgnization ( within the meaning of the Act).

   Exception 2, The Trial Examiner finds that 'in April 1960, 11 employees, and in July 1960, 42 employees , including the six claimants, were laid off.' Respondent claims that the correct figures should be 12 In April and 47 in July Our study of the transcripts shows the correct figures to be 12 in April and 48 in July , and we so find Exception 3: The Trial Examiner finds that 'in August 1960 and March 1961, the Respondent recalled 31 of these 53 employees.' Respondent claims, and we so find, that the correct figure is 32 employees recalled Although not excepted to, the figure 53 would also be wrong in view of the Trial Examiner 's mistake in the number of layoffs The figure should be 60

   Exception 22: The Trial Examiner finds that , prior to her final layoff in July 1960,

   Rempala was last recalled in January 1960. Respondent claims she was last recalled in May 1960. Rempala testified that she was laid off 'a couple of times ' between January and July 1960 for periods of a week or two. Her record of employment and layoffs, however, does not record these layoffs.

   Exception 24. The Trial Examiner finds that ' . . Rempala in her spare time per11formed operations other than phasing, such as wiring and mechanical assembly ... .

   The Respondent claims she did nothing but phasing . Rempala's testimony, which the Trial Examiner credited , was that she had spent time; on occasions, performing work such as putting bottoms on chassis , inspecting, and helping out in the wiring operation by stripping and cutting wires. The Trial Examiner apparently thought of the 'putting bottoms on chassis ' operation as 'mechanical assembly ,' since Respondent does have such a classification at its plant. Further, perhaps Respondent does not consider cutting and stripping wires as part of the actual 'wiring' process. If these misclassifications can be called mistakes at all on the part of the Trial Examiner, they were of a technical nature only, and do not detract from his findings , conclusions , and recommendations.

   Exceptions 52 and 53: These exceptions are to findings as to Shiparski. We find them to have merit, insofar as they are consistent with our findings, below, as to Shiparski.

   We find no merit in the remainder of Respondent 's exceptions to the Intermediate Report.

   634449-62-vol. 135-65 reverse the Trial Examiner's finding that the Respondent violated Section 8(a) (3) and (1) of the Act by failing to recall Shiparski.

   ORDER

   The Board adopts the Recommended Order of the Trial Examiner, except that provision 2(a), and paragraph 3 of the Appendix, are modified by striking therefrom the name of Lottie Shiparski, and the Appendix modified by adding a final paragraph as follows:

   Employees may communicate directly with the Board's Regional Office (Midland Building, 176 West Adams Street, Chicago 3, Illinois; Telephone Number, Central 6-9660) if they have any question concerning this notice or compliance with its provisions.

   INTERMEDIATE REPORT

   This case was heard at Michigan City, Indiana, on August 30 and 31, 1961. The issue litigated was whether Audio Industries, Inc.,' herein called the Respondent, violated Section 8(a)(3) and (1) of the Act by the failure to recall six employees who had been laid off, as conceded by the General Counsel, for nondiscriminatory reasons. After the hearing briefs were submitted by the Respondent, the General Counsel, and the Charging Party.

   Upon the entire record,2 and from my observation of the witnesses, I make the following:

   FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation organized under the laws of Indiana, with its principal plant in Michigan City, Indiana, where it manufactures electronic products. Respondent annually ships from that plant to out-of-State points products valued in excess of $1,000,000.

   I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein.

   2. THE LABOR ORGANIZATION INVOLVED General Teamsters, Chauffeurs and Helpers, Local Union No. 298, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act.3

   3. THE UNFAIR LABOR PRACTICES The complaint as amended at the hearing, alleges that since on or about March 13, 1961, the Respondent has failed to recall from layoff status six employees, that such failure was prompted by their union activities, and that the Respondent thereby violated Section 8 (a) (3) and (1) of the Act.

      The Respondent admits that none of the six was recalled, but contends that this was due to their inefficiency and not to their union activities.

      For reasons which will appear later, the General Counsel adduced evidence concerning the efforts of the Union to organize a firm identified...