Before Schnackenberg and Castle, Circuit Judges and Grubb, District Judge.
GRUBB, D. J.: This case is before the court on the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C.A., Section 151 et seq .), for enforcement of its order issued against respondent, Audio Industries, Inc., on February 16, 1962. This court has jurisdiction under Section 10(e) of the Act, the alleged unfair labor practices having occurred in Michigan City, Indiana, where respondent manufactures electronic products.
The Trial Examiner and Board found that respondent violated Sections 8(a)(3) and (1) of the Act by its failure to recall from layoff status five employees because of their activity on behalf of Local Union No. 298, General Teamsters, Chauffeurs and Helpers. The facts are as follows:
In March 1960, the Union began a campaign to organize the production and maintenance employees at respondent's plant. An "organizing committee" was formed, consisting of sixteen employees of the Company. On March 24, 1960, the Union distributed a leaflet to all of respondent's employees notifying them of the names of their fellow workers who were serving on the committee. Both Roy McClure, general manager, and Edmund Dolembo, vice president and personnel director, saw this leaflet.
On May 25, 1960, a representation election was held, and a majority of the employees voted against the Union. On April 22, 1960, one month before the election, respondent laid off twelve employees for economic reasons. On July 23, 1960, two months after the election, forty-eight more employees were laid off for economic reasons. Among the sixty employees thus affected by this reduction in force were twelve employees who were identified in the Union's leaflet as members of the organizing committee. The other four members of the committee included the chairman, who was never laid off, and three employees who had quit.
In August 1960 and March 1961, thirtytwo of the original sixty employees were recalled, including three who had been on the organizing committee.Of the remaining twenty-eight who were not recalled were the five employees involved on this appeal, all of whom had been active as members of the Union's organizing committee - Gertrude Rempala, Mary Ratliff, Janice Reed, Walden Ratliff, and Frances Celebucki.*fn*
There were two alleged incidents from which the Trial Examiner and the Board found that respondent displayed an antiunion animus or bias. This alleged bias formed the background for the alleged violations herein. First, there was testimony of one Albert Heisler, an employee who was laid off and not recalled. He testified that a few weeks before his layoff in April 1960, he heard McClure, the general manager, state to a group of employees as follows:
"Well, I understood him to say that the union better go through or - but if the union didn't go through, there would be a lot of reorganization done there, and they would also find out who's running the place. And there would also be a lot of new faces there."
McClure denied making the statement, and no witnesses were called to corroborate the testimony of Heisler regarding this incident.
The second incident upon which the Board relied in finding an antiunion bias on the part of the respondent occurred in March 1961. At that time vice president Edmund Dolembo telephoned the Indiana State Employment Service and requested that job applicants be referred to the Company. On the face of the requisition form made out by the Employment Service is the notation: "Do not refer any former employee of Audio or Elco." Elco Electronics was one of respondent's three local competitors and was the only competitor whose employees were organized. The Trial Examiner and the Board concluded that Dolembo manifested a predilection against hiring union members by his direction that no former Elco and Audio employees be referred to the Company. The reasons he gave for this instruction, which the Trial Examiner rejected, were threefold:
1. In the past, certain trade secrets involving the design of new products had "leaked out" to Elco. To eliminate the possibility of such leaks in the future, respondent did not want employees who were probably friendly with Elco's employees and might divulge these trade secrets.
2. Respondent wished to eliminate "job skipping" between respondent and Elco.
3. Employees who were not satisfactory to Elco would not be satisfactory to respondent.
In rejecting this explanation, the Trial Examiner felt that logically the same considerations should apply to former employees of the two other nonunion competitors, yet no similar restrictions were adopted as to them. He improperly disregarded the testimony of Dolembo that Dolembo requested the Employment ...