Battle Creek Steel Fabricating Co., Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1968

169 N.L.R.B. 884 (N.L.R.B. 1968)

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Battle Creek Steel Fabricating Company, Inc. and
Shopmen's Local Union No. 688 , International As-
sociation of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO. Case 7-CA-588
February 16, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 5, 1967, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
to which the General Counsel filed an answering
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
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
We agree with the Trial Examiner's conclusion
that the Respondent violated Section 8(a)(3) and (1)
of the Act by discriminatorily laying off seven em-
ployees on January 23, 1967. Although an
economically justified reduction in force may have
been imminent sometime during the period between
January and March 1967, it is clear that the
motivating cause for the layoffs which did occur at
that particular time was the Employer's discovery,
2 days earlier, that these seven employees had
signed union authorization cards. We do not, how-
ever, adopt the Trial Examiner's conclusion that the
alleged economic reprisal directed against manage-
ment-trainee Patten, in the form of a demand for the
prepayment of an outstanding loan, constituted a
violation of Section 8(a)(1) of the Act.
This asserted economic reprisal directed against
Patten was alleged in the complaint as and found by
the Trial Examiner to be a violation of Section
8(a)(1) of the Act only as it affected the other em-
ployees. In view, however, of Patten's employment
status and his unique personal relationship with
President Love, we believe it unwarranted to infer
from the fact of employment by a common em-
ployer, and unlike the Trial Examiner we do not
infer, that the shop employees must have become
aware of the nature and circumstances of Love's
demand for prepayment of the loan. Without such
inference, there is insufficient basis in the record for
a conclusion that Love's demand of Patten for
prepayment of the loan exerted a restraining effect
upon the shop employees' exercise of Section 7
rights. As there is no allegation in the complaint or
finding by the Trial Examiner that Love's actions
tended to interfere with Patten's own exercise of
Section 7 rights, we shall, under all the circum-
stances of the case, dismiss the allegation of the
complaint that Love's demand for prepayment of
the loan violated Section 8(a)(1) of the Act.
Amended Conclusions of Law
1. Delete the Trial Examiner's third Conclusion
of Law.
2. Renumber the Trial Examiner's fourth Con-
clusion of Law by substituting the number "3" for
the number "4."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent, Bat-
tle Creek Steel Fabricating Company, Inc., Battle
Creek, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Delete paragraph 1(b) from the Trial Ex-
aminer's Recommended Order.
2. Change paragraph 1(c) of the Trial Ex-
aminer's Recommended Order to 1(b).
3. Delete the second indented paragraph of the
notice.
IT IS HEREBY FURTHER ORDERED that the allega-
tion appearing in paragraph 8 of the complaint
which alleges an economic reprisal as a violation of
the Act be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was
heard in Battle Creek, Michigan, on May 10 to 12, 1967,
pursuant to a charge duly filed and served,' and a com-
plaint issued on March 27, 1967. The complaint presents
questions as to whether the Respondent discriminatorily
terminated seven employees within the meaning of Sec-
tion 8(a)(3), and whether it engaged in various other acts
of interference, restraint, and coercion in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act, as
' The Union filed the charge on January 25, 1967-
169 NLRB No. 125
BATTLE CREEK FABRICATING CO.
amended. In its answer, the Respondent conceded certain
facts as to its business operations, but it denied all allega-
tions that it had committed any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to examine and cross-examine witnesses, to
introduce relevant evidence, to argue orally at the close
of the hearing, and to file briefs. Oral argument was
presented by the General Counsel, but waived by the
other parties. On June 30, 1967, the Respondent sub-
mitted a thorough and comprehensive brief on the issues.
Upon the entire record in the case, including the briefs
of counsel, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation with a plant
located at Battle Creek, Michigan, is engaged in the fabri-
cation and erection of structural steel and related
products. During its last fiscal year prior to the hearing,
the Respondent purchased steel and other material
valued in excess of $50,000, which it had delivered to its
plant, directly from points located outside the State of
Michigan.
Upon the foregoing facts, the Respondent concedes,
and the Trial Examiner finds, that Battle Creek Steel
Fabricating Company, Inc., is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Examiner
finds, that the Union is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The stock in the Respondent corporation is owned
wholly by Laurence W. Love and his wife. The former is
also the president and treasurer . The employees are clas-
sified as either shop or field personnel . The shop workers
are the layout men, welders, painters , and laborers en-
gaged in the fabrication of iron and steel at the Battle
Creek plant. The finished products are installed or
erected at the construction site by the field workers. De-
pendent on the season and the volume of business, the
number of shopmen has varied from 7 to 18, and the
number of field personnel from 2 to 14.2 Although at the
time in question the Respondent had Charles Reitsma, as
superintendent of its shop , and John Wech as the superin-
tendent of its field crew , President Love himself was ac-
tively engaged in every phase of the day-to-day manage-
ment and supervision of the business.
For many years the field employees have been
represented by either Local 340, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO , or Local 324, International Union of Operat-
ing Engineers, and the Respondent has collective-bar-
gaining agreements with both of these labor organiza-
tions. Until January 1967, however , the shop employees
were unorganized.
885
On January 17, eight of the shop employees signed
authorization cards in the Charging Union. On January
23, seven of this number were laid off. According to the
General Counsel these layoffs were discriminatory. This
allegation is denied by the Respondent in its entirety, ac-
cording to whom the layoffs were dictated solely by
pressing economic considerations.
On January 25, the Respondent received a written de-
mand from the Union that the Company recognize it and
begin collective-bargaining negotiations. On February 1,
the Respondent executed an agreement for consent elec-
tion. On February 28, in an election conducted by the
Board's Regional Office at the Respondent's shop, a
majority of the employees voted for representation by the
Union and on March 8, 1967, the Union was certified as
the exclusive bargaining agent for a production and main-
tenance unit at the Battle Creek plant.
B. The Layoffs
Early in January, several of the shop employees
discussed the desirability of securing a union to represent
them. About the middle of January, Ray Ter Beek, a
layout man, contacted an organizer for the Charging
Union and was given a supply of authorization cards. On
January 17, Ter Beek arranged a meeting with his cowork-
ers which was held at the end of the shift and at a restau-
rant near the plant. In addition to Ter Beek, seven of his
fellow employees were in attendance. These were Ralph
Swift, Robert Lambert, Allen Connor, Russell Root,
Allen White, Gaudulupe Arredondo, and Siegfried
Doerfer. Ter Beek led the discussion on the issue as to
whether the employees would benefit from joining a
union and endeavored to answer the questions raised by
his coworkers. At the conclusion of the meeting, all of
those present signed authorization cards and turned them
over to Ter Beek. Before the end of the meeting, Robert
E. Patten, Jr., one of the office personnel, appeared at the
restaurant. Patten, who knew all of those present, did not
join them while they were still in a group at one of the ta-
bles. He waited instead until the end of the meeting and
then left the restaurant accompanied by Ter Beek with
whom he shared a carpool.
On the morning of January 23, a Saturday, Edwin
Hinkley, one of the employees in the shop, telephoned
President Love at his home to express his fears about
something in progress among his coworkers. Love sug-
gested that Hinkley meet him at the plant and reveal the
cause of his concern, but the latter declined and urged
that the meeting be held elsewhere. Love then proposed
that Hinkley come to his house. About 10 o'clock that
morning, Hinkley, accompanied by Siegfried Doerfer, ar-
rived at Love's residence. According to Love, Doerfer
thereupon told him that during the course of the week a
number of the employees, including Ter Beek, Swift,
White, and several others, had met at a restaurant near
the plant and had signed a "petition" for a union. Love
testified that after Doerfer and Hinkley left his home he
went to the shop about noon, and there checked the
books and records of the business. Since it was a Satur-
day and no one else was at work, the plant president
telephoned both Reitsma, the shop superintendent, and
Wech, the field superintendent, to ask that they report to
his office. According to Love, he called in Reitsma, "to
L This was during the penod from June 1966 to February 1967.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
verify my opinion as to the necessity of [a] layoff
because of lack of work." In addition to soliciting Reit-
sma's views on the need for a layoff, the plant president
also questioned him as to whether he knew about the
union activity in the shop. The same questions were
asked of Wech when he reported to Love's office.3 Later
that day, Love telephoned Attorney Robert A. Huston
and arranged for an appointment on the following Mon-
day morning.
On January 23, the Respondent's president had the
scheduled conference with his counsel. At the end of the
shift that afternoon he called all of the shop employees to
his office for a meeting. Love then announced that
because of a decline in orders and the depressed
economic condition of the building industry, a layoff had
become imperative, and that those who would be retained
had been selected on the basis of seniority and ability.
Love then read off the list of those who would be kept. At
the time there were 14 employees in the shop. Love an-
nounced that only six, whom he listed, would be retained.
Siegfried Doerfer was one of the six whom Love so
designated for retention. He further announced that the
remaining eight would be laid off, effective at once. In the
latter group were Gaudulupe Arredondo, Allen Connor,
Robert Lambert, Russell Root, Ralph Swift, Ray Ter
Beek, Allen White, and Gene Fulcher. Apart from
Fulcher, who had been hired only a few days before the
layoff, the other seven had signed union authorization
cards at the restaurant meeting the preceding week. Be-
fore Love concluded the conference with his employees,
Ter Beek protested that although the president declared
that the layoffs had been determined on a seniority basis,
the Company had not followed it with respect to his
status since he was senior to Doerfer, who was being
retained. According to Ter Beek, Love's answer was that,
notwithstanding any such difference as to seniority,
Doerfer was still his choice.4
C. The Respondent's Attitude Toward Unions
1. Love's conversations with the shop employees
In its brief the Respondent has stressed the significance
of the fact that for many years it has had collective-bar-
gaining agreements covering the field employees. In addi-
tion, President Love testified that at one time he himself
was an active union member. It was also undenied that in
various conversations with the employees he expressed
the view that if the employees wanted a union that was
their right and privilege. At the same time there was
credible testimony from some of the employees which
made it clear that, insofar as the shop employees were
concerned, President Love did not consider the advent of
the Charging Union as an unmixed blessing.
On January 24, Allen Connor and Robert Lambert,
both of whom had been laid off the day before, returned
3 Both Reitsma and Wech had been at work the day before, but at that
time Love had not asked for their views on whether a layoff would be
necessary
4 Love testified that when Ter Beek claimed that his seniority was
greater than Doerfer's he dismissed the protest by telling the employee
that if he was right the Company had made an honest mistake. According
to Love, after the meeting he checked the seniority records and
discovered that Ter Beek was, in fact, correct He testified that he did-
nothing about the matter thereafter, however, because at that point Ter
Beek had already left the shop.
5 Ray Ter Beek testified that at the time of his initial employment inter-
to the shop where they asked Love whether he would
give them letters of recommendation. Both testified that
he readily acceded. Lambert testified that in a reference
to their union activities, Love also told them that "he
would not fight a union, that he had carried a card all his
life, but if we had come to him ... instead of going to the
Union, we would not have had all the trouble we were
having." Connor testified that in this same conversation
the plant president told them that "he didn't like the idea
of us going behind his back...." Love conceded that he
had had a conversation with Lambert and Connor at the
time and place in question, but he denied having made
any of the foregoing comments. The testimony of the em-
ployees, however, impressed the Trial Examiner as being
completely frank and trustworthy. For that reason, the
Trial Examiner concludes and finds that their testimony
is a substantially accurate account of their conversation
with Love.
Ralph Swift, another employee who was laid off on
January 23, was reemployed on February 14 Lambert,
a coworker, was recalled on February 15. Swift and Lam-
bert testified that, subsequent to their recall and prior to
the representation election on February 28, Love was ex-
tremely cordial and frequently chatted with them during
the course of each workday. These employees testified,
however, that this attitude of friendly interest on the part
of the plant president abruptly changed to outright hostili-
ty on the same afternoon that the Union won the election.
According to both Swift and Lambert, within an hour
after the results of the voting were announced Love came
to where they were working, made a bitter comment, and,
from that time until the day on which they testified at the
hearing, never spoke to them again. The testimony of
Swift and Lambert in this connection was credible and
undenied.5
2. The Patten incident
Robert E. Patten, Jr., was hired in November 1964, as
a management trainee and detailer. In this position he
worked on plans and drawings for the work that went
through the shop and carried out other tasks assigned him
by the plant president. In August 1966, Love loaned Pat-
ten $3,800 to assist him in buying a home. For this, Pat-
ten signed a noninterest bearing note which only
obligated the borrower to repay Love at the rate of $25
per week until the full amount of the principal had been
returned. At Christmas time in 1966 Patten received a
$5,000 bonus.6
It is apparent from the foregoing recitation alone that,
for a long while, Patten enjoyed a unique standing with
the plant management. This situation prevailed until the
latter part of January 1967, when Patten suddenly found
himself out of favor with Love. Patten attributed this
deterioration in his status to the fact that he had, inadver-
tently or through coincidence, become associated with
view in 1964, Love questioned him as to his attitude on unions and so-
licited his assistance in keeping the management informed as to the union
activities of the men Love denied ever having made any such request of
Ter Beek. Whereas Ter Beek impressed theTnal Examiner as a generally
credible witness, the account which he gave of this alleged conversation
was somewhat implausible Consequently, and particularly in the light of
the plant president's denial, the Examiner will not credit Ter Beek's
testimony in this connection.
6 The record does not indicate the total amount paid to Patten in salary
and bonus during 1966
BATTLE CREEK FABRICATING CO.
the efforts of the shop employees to organize. The facts
in this regard are set out below.
Patten lived in Grand Rapids, Michigan, a point some
62 miles from Battle Creek. Ter Beek was also a resident
of Grand Rapids and about mid-1966 he and Patten
formed their own carpool for the daily commuting
between their homes and the Battle Creek plant. On
January 17, Ter Beek apprised Patten of his plan to join
the other employees at a restaurant near the plant after
work that afternoon and asked that Patten, who was driv-
ing that day, meet him there. Patten testified that, when
he arrived at the restaurant, the meeting was still in
progress, and, that, in addition to Ter Beek, he observed
Doerfer and all the other employees who were present.
According to Patten, however, he took no part in the
discussion, but remained on the other side of the room
until the meeting disbanded and then left with Ter Beek
on the journey back to Grand Rapids.
Patten testified that on the morning of January 24, he
questioned John Wech, the field superintendent, as to the
cause of the extensive layoff the preceding afternoon. Ac-
cording to Patten, Wech told him that "Larry Love
received a phone call ... Saturday morning from parties
unknown" and that thereafter Love had interrogated
Wech and Reitsma as to their knowledge of union activi-
ties in the shop. Patten testified that Wech also informed
him that Love had learned that Patten had prior
knowledge about the union activities of the men, and that
the plant president was very disturbed about Patten's
silence. 7
Patten testified that early on the morning of January
30, Love came to his office and demanded that he repay
the outstanding balance on the $3,800 loan by the follow-
ing morning. According to Patten, when he inquired as to
the reason, Love replied, "You know why," and when
Patten asked "Because of this union thing?" Love an-
swered, "Yes." Patten testified that Love then told him
that originally he had considered Patten managerial
material, but that he had been wrong. According to Pat-
ten, Love "then went on to say how could I do this to him
. he said'I was stupid, the stupidest man he knew. That
I was a fool. That I was disloyal and not trustworthy."
Patten testified that he explained to the plant president
that, whereas he had stopped at the restaurant when the
employees had been discussing the Union, he had not
participated in their meeting and that he had left as soon
as Ter Beek was free. According to Patten, Love was
completely' dissatisfied with his explanation and ada-
mantly insisted that the note be repaid immediately.
Patten left the plant and secured the advice of an attor-
ney in Grand Rapids as to whether the terms of the note
required that', he meet Love's demand. His counsel ad-
vised Patten that as long as he repaid $25 per week, Love
was powerless to accelerate maturity of the note. The
next day, Patten quit the Respondent's employ.8
Love denied that his demand for repayment of the note
was related in any way to Patten's failure to report on the
union activities of the shop employees. According to the
plant president, he had become increasingly disenchanted
with Patten, because the latter had originally promised to
9 Patten's testimony as to his conversation with Superintendent Wech
was credible and undemed. Although Wech was still in the employ of the
Respondent at the time of the hearing he was never cal led as a witness.
8 The General Counsel conceded that Patten had quit and that his de-
parture was not being alleged as an unlawful termination.
9 At the hearing the Respondent contended that Fulcher was employed
on a temporary basis This contention, however, appears to have been an
887
move to Battle Creek, but had not done so. Love testified
that when he learned that Patten had bought a house in
Grand Rapids he realized that the man had no serious in-
tention of remaining with him and that this assumption
was subsequently confirmed when he heard that Patten
was looking for other employment. Love testified that he
felt that after Patten had received a generous Christmas
bonus of $5,000 he should have repaid the note and that
his demand of January 30 was based on this ground. He
further testified that, when Patten endeavored to bring up
the subject of union activities among the shop employees,
he refused to enter the discussion . According to Love, "I
... repeated that I could not say anything about it. I was
under orders from my attorney not to discuss it with him.11
The testimony of Patten and Love as to the details of
their conversation on January 30 presents sharp and ir-
reconciliable conflicts. Both testified at length and with
considerable feeling as to their exchange. Of the two,
however, and on the basis of their comparative demeanor,
Patten was quite obviously the more frank and credible.
Even standing by itself, Love's explanation for his bel-
ligerent demand on Patten was unconvincing. Only a few
weeks before the outburst, Love had given Patten a
Christmas bonus that was so extraordinarily generous it
could only be interpreted as a very clear index that at that
point Patten was obviously very high in the plant pre-
sident's esteem. Love was unable to point to anything
which Patten did during the succeeding weeks of his em-
ployment that satisfactorily explained that individual's
precipitous decline in his Employer's estimation. There
was nothing, indeed, other than Love's discovery that one
whom he had considered a potential member of his
management team had failed to make him privy to the in-
formation that the shop employees were organizing a
union. On the basis of their testimony, and from his ob-
servation of their demeanor, it is the conclusion of the
Trial Examiner that Patten was the more credible witness
and that Love's anger and outrage during their meeting on
January 30 arose from the Employer's feeling that Patten
had betrayed the management in not reporting to him
about the union activities of the men.
D. Contentions of the Parties With Respect to the
Alleged Violations of Section 8(a)(3); Findings and
Conclusions in Connection Therewith
The General Counsel established the following facts
which tended to prove that the Respondent's decision to
lay off the employees on January 23 was arrived at hasti-
ly and not for reasons of economy: In the period prior to
the layoff, all of the shop employees were working a full
40-hour week, and those who were questioned about the
matter testified that during this period they had work to
keep them busy at all times. In this connection, it is sig-
nificant that on January 12 the Respondent hired Gene
Fulcher, a new employee, to work as a laborer in the
shop.9 It is also noteworthy that at about the same time in
January, and only a short while before the layoff, em-
afterthought. It has no convincing support in the record. Thus, Love, who
hired Fulcher, conceded that the man was never sc informed at the time
he was employed More significantly, during the month after the layoff,
when the Respondent supplied a list of employees eligible to vote in the
representation election that was scheduled for February 28, Fluche-'s
name appeared on the list along with the names of all the other regular full-
time employees who were still on layoff status
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees Ter Beek, Swift, Lambert, and Doerfer were
given wage increases.
Prior to the layoff the Respondent had 14 shop employ-
ees.10 The sudden layoff of eight men on January 23
eliminated almost 60 percent of the rank-and-file em-
ployees in the shop. Love conceded that never before in
its history had the Respondent laid off over half its work
force at one time. The Respondent customarily paid its
employees on Friday. On Friday, January 20, the em-
ployees received their pay in the usual manner without
being given any hint that because of a serious decline in
business a wholesale layoff awaited them the following
Monday afternoon. During the week of January 23 when
the number of shop employees was drastically curtailed,
the Respondent's field personnel were left untouched."
The General Counsel contends that this fact by itself in-
dicates that the shop personnel were singled out for dis-
criminatory treatment because it was among them that
the Union had so recently become active.
Three of those who were laid off were later recalled.
Ralph Swift returned to work on February 14, Robert
Lambert on February 15, and Allen White on April 27,
1967. Subsequent to the layoffs on January 23, the
Respondent hired no new employees. However, Charles
Reitsma, the shop superintendent prior to the layoff,
returned to rank-and-file work subsequent to January 23,
and John Wech, the field superintendent who took Reit-
sma's post, thereafter worked along with the men in the
shop in addition to acting as their supervisor.
The Respondent conceded that its fiscal year which
ended on February 28, 1967, had been the most profita-
ble in its corporate history. At the same time it offered
elaborate and extensive documentation to establish that
its business prospects in January were poor and that pru-
dent management compelled a drastic reduction of its
work force. Thus, Love testified that whereas in January
1966, the backlog of orders which awaited completion ap-
proximated $360,000, in late January 1967 the Respond-
ent had a backlog of only two substantial orders, one for
the Hackett Construction Company for about $36,000
and the order for the Don B. Smith Construction Com-
pany for slightly over $18,000. It was also in the process
of completing a $5,000 order for the Clark Equipment
Company. In addition to the completion of these orders,
the Respondent had a number of the shop personnel en-
gaged in the fabrication of steel work for a new building
which the Company was erecting for its own operations.
This structure was begun in November 1966. At the time
of the hearing it was still uncompleted.
Love testified that for many months prior to the layoff
he anticipated that a reduction of the shop personnel
would be necessary during the winter. According to the
plant president, although he had first considered the need
for a curtailment of his work force in November 1966, it
was not until Saturday, January 21, that he carefully
reviewed the corporate books and records and concluded
10 This figure does not include Reitsma, the superintendent.
I 1 President Love conceded that no field men were laid off during the
week of January 23.
11 A layoff based on seniority offered a clean sweep of the union ad-
herents with one exception . Doerfer, the informant , had less seniority
than Ter Beek, the principal union proponent among the men. When con-
fronted with this dilemma in his announcement of the layoff, Love at-
tributed the selection of Doerfer over Ter Beek to an honest mistake
which he was unable to rectify. At the hearing, however, the Respondent
endeavored to establish that the choice of Doerfer over Ter Beek had
been based on the fact that Doerfer was younger, that Ter Beek had once
that the layoff had to be effected at once. That the
Respondent had suffered a substantial decline in business
during the winter of 1966 to 1967, as compared with
similar periods in preceding years, is at once apparent
from any examination of the records which were in-
troduced in evidence. Moreover, it appears likely that, at
some time during the period from January through
March, the Respondent would have laid off some of its
shop personnel. On the other hand, it is the conclusion of
the Trial Examiner that President Love's decision to ef-
fectuate the layoff on January 23 and the manner in
which employees were selected for this reduction in force
were both discriminatory and designed to destroy the
Union's strength among the shop personnel. This conclu-
sion is based upon the findings that are set forth below.
Prior to the layoff, all of the shop personnel had been
working a full 40-hour week, several had been given wage
increases that month, and one new employee had been
hired a short while before. On January 20, a payday, the
management gave the shop personnel no hint or sug-
gestion that news of a drastic reduction in force was in the
offing. In fact, Love conceded that it was not until about
noon on January 21, that he went to his office and, after
an examination of the Company's book concluded that a
reduction of the shop personnel was imperative. This
Saturday visit to the Respondent's office was made im-
mediately after Siegfried Doerfer had come to Love's
home and there disclosed that, a few days earlier, a
majority of the shop employees had signed union
authorization cards. While at the shop that Saturday,
Love summoned Superintendents Reitsma and Wech to
his office where he questioned them about their
knowledge of union activities among the men and sol-
icited their views on the need for a layoff. On January 23,
the next workday, Love announced the immediate ter-
mination of all the card signers except Doerfer.'2
On January 24, Patten, the management trainee who
accompanied Ter Beek from the scene of the union meet-
ing, questioned Superintendent Wech as to the reason for
the layoff. In response to this question, the latter stated
that the preceding Saturday, President Love had been
contacted by certain individuals whom he referred to as
"parties unknown," and that subsequently Love inter-
rogated both him and Reitsma as to their knowledge of
union activities among the shop personnel. In this conver-
sation, Wech also cautioned Patten that Love was very
disturbed about Patten's failure to report what he knew
about the employees' organizational efforts. Only a few
weeks before the advent of the Union in the shop Patten
had received a Christmas bonus that was so extremely
generous it clearly established the high regard which Pre-
sident Love then had for him and his prospects for ad-
vancement. On January 30, however, and shortly after
Wech had warned Patten that he was out of favor with the
plant president because he had not shared with manage-
ment his knowledge of union activity in the shop, Love
had a heart attack and that, in the opinion of Love, Doerfer was the more
versatile. On the other hand, Ter Beek credibly testified that throughout
his employment with the Respondent he had never been laid off for as
much as one day and that he had frequently worked overtime and on
Saturdays. In the months subsequent to the layoff Ter Beek was neverre-
called, although three other employees with less seniority than he were
reemployed. On the basis of the facts found earlier herein, it is the conclu-
sion of the Trail Examiner that the Respondent's explanation for its
choice of Doerfer over Ter Beek was unconvincing and that the real
reason for Ter Beck's layoff was his prominence in the union campaign.
BATTLE CREEK FABRICATING CO.
assailed Patten as the "stupidest man he knew ... a fool
disloyal and not trustworthy." In concluding his
denunciation , Love demanded that Patten immediately
repay a large loan.
On the basis of the foregoing facts, the Trial Examiner
finds that although President Love may have had a per-
sonnel retrenchment under consideration for some time,
the motivating cause for the precipitate layoff of January
23, the largest in the Respondent 's history , was the infor-
mation about the union activities among the shop em-
ployees which Doerfer brought to him on January 21.
Accordingly , the Trial Examiner concludes and finds that
the termination of Ter Beek, Arredondo , Connor, Lam-
bert, Root, Swift , and White on January 24 violated Sec-
tion 8 (a)(3) and ( 1) of the Act . Myers Ceramic Products
Co., 140 NLRB 232, 233-234; Ox-Wall Products Manu-
facturing Co., 135 NLRB 840, 842, enfd. 310 F.2d 878
(C. A. 2); M. Swack Iron and Steel Co., 146 NLRB 1068,
1082, enfd . October 20 , 1965, by the United States
Court of Appeals for the Sixth Circuit (opinion not re-
ported); Camco, Incorporation , 140 NLRB 361,
363-365 ; Dubois Chemicals , Inc., 140 NLRB 103, 104,
enfd. 327V .2d 494 (C.A. 5).
It is also the conclusion of the Trial Examiner that the
Respondent's demand that Patten immediately repay the
outstanding balance on the loan , which Love had made to
him, arose directly out of Patten 's failure to disclose to
the plant president the information which he had on the
union activities of the shop employees . The action taken
against Patten , who was not himself a rank-and-file em-
ployee, could not help but become known to the shop per-
sonnel and have a chilling effect on the incipient union
movement . For this reason , the Trial Examiner finds that
Love's demand that Patten repay the loan, in the context
here present , constituted unlawful interference , restraint,
and coercion within the meaning of Section 8 (a)(1) of the
Act. Cf. Gainesville Publishing Company, 150 NLRB
602, 627; Key West Coca Cola Bottling Company, 140
NLRB 1359, 1360-61; Talladega Cotton Factory, 106
NLRB 295, 297, enfd. 213 F.2d 208, 216-217 (C.A. 5);
Oil City Brass Works v. N.L.R.B., 357 F.2d 466,
470-472 '(C.A. 5).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce, and the
Union is a labor organization, all within the meaning of
the Act.
2. By discriminatorily terminating Gaudulupe Arre-
dondo, Allen Connor, Robert Lambert, Russell Root,
Ralph Swift, Ray Ter Beek, and Allen White on January
23, 1967, thereby discouraging membership in the Union,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
3. By demanding that Robert E. Patten, Jr., im-
mediately repay an outstanding loan, in reprisal for his
having failed to report to management any information
about the employees' organizational activities, the
Respondent interfered with, restrained, and coerced its
employees in the rights guaranteed under Section 7, and
thereby engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
889
Having found that the Respondent has engaged in cer-
tain unfair labor practices, the Trial Examiner will recom-
mend that the Respondent be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Earlier herein it was found that the Respondent dis-
criminatorily laid off seven employees on January 23,
1967. It was also found, however, that the Respondent
may have been justified, for economic reasons, in ter-
minating some of its employees during that general period
in January and thereafter. Whereas some of the dis-
criminatorily terminated employees might have been af-
fected in any such nondiscriminatory reduction of person-
nel, the record furnishes no basis for determining the
order in which they might have been laid off. Under these
circumstances, it will be recommended that the Respond-
ent be ordered to offer to the hereafter named em-
ployees, who were unlawfully terminated in January and
who have not been recalled for employment, immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority
and other rights 'and privileges, and, in the event that
there is insufficient work for all such employees, to
dismiss, if necessary, all persons who were newly hired
after the discriminatory terminations in January. If there
is not then sufficient work for the remaining employees
and those to be offered reinstatement, all available posi-
tions shall be distributed among them without discrimina-
tion against any employee because of concerted activi-
ties, in accordance with a system of seniority or other
nondiscriminatory basis. Further, the Respondent shall
place those employees, if any, for whom no employment
is available after such distribution, on a preferential list,
with priority in accordance with a system of seniority or
other nondiscriminatory basis, and thereafter offer them
reinstatement as such employment becomes available and
before other persons are hired for such work: Gaudulupe
Arredondo, Allen Connor, Robert Lambert, Russell
Root, Ralph Swift, Ray Ter Beek, and Allen White.
It will also be recommended that the Respondent be or-
dered to make whole the above-named employees,
against whom it has discriminated, for any losses they
may have suffered because of the Respondent's dis-
crimination, by payment to each of them of a sum of
money equal to the amount that he normally would have
earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on a
preferential list, as the case may be, less his net earnings
during said period. The backpay here involved shall be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB
289, 291 294, and shall include the payment of interest
at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
As it is possible, however, that one or more of these
employees might have been terminated in a reduction of
the work force even if the Respondent had selected em-
ployees for layoff on a nondiscriminatory basis, this pos-
sibility will be taken into consideration in determining the
amounts of backpay due to these employees in com-
pliance with the Recommended Order.
In view of the nature of the unfair labor practices com-
mitted, the commission by the Respondent of similar and
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other unfair labor practices may be anticipated. It will
therefore be recommended that the Respondent be or-
dered to cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
the Trial Examiner hereby issues the following:
RECOMMENDED ORDER
Battle Creek Steel Fabricating Company, Inc., its of-
ficers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Shopmen 's Local
Union No . 688, International Association of Bridge,
Structural and Ornamental Iron Workers , AFL-CIO, or
in any other labor organization of its employeees , by dis-
criminatorily discharging , terminating , or laying off any
employee , or in any other manner discriminating against
any employee in regard to hire , tenure, or any other term
or condition of employment.
(b) Engaging in economic reprisals against any
member of its staff, or any employee , for failure to report
on the union or concerted activities of the employees.
(c) In any other manner interfering with , restraining,
or coercing its employees in the exercise of the right to
self-organization , to form labor organizations , to join or
assist the above-named labor organization , or any other
labor organization , to bargain collectively through
representatives of their own choosing , to engage in other
concerted activities for the purpose of mutual aid or pro-
tection as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Offer to Gaudulupe Arredondo , Allen Connor,
Robert Lambert , Russell Root , Ralph Swift , Ray Ter
Beek , and Allen White immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and make each of them whole for any loss of
earnings suffered by reason of the discrimination against
him in the manner set forth in the section above entitled
"The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its plant in Battle Creek, Michigan, copies
of the attached notice marked "Appendix." 13 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
authorized 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 al-
tered , defaced , or covered by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith. 14
'3 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
'4 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in Shop-
men's Local Union No. 688, International Associa-
tion of Bridge, Structural and Ornamental Iron Work-
ers, AFL-CIO, or in any other labor organization
of our employees by discharging, terminating, or lay-
ing off any employee, or in any other manner dis-
criminating in regard to their hire, tenure of employ-
ment, or any term or condition of employment.
WE WILL NOT engage in economic reprisals against
any member of our staff, or any employee, for failure
to report on the union or concerted activities of our
employees.
WE WILL offer Gaudulupe Arredondo, Allen Con-
nor, Robert Lambert, Russell Root, Ralph Swift,
Ray Ter Beek, and Allen White immediate and full
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination against
them.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activi-
ties.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
BATTLE CREEK STEEL
FABRICATING COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
BATTLE CREEK FABRICATING CO.
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
891
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they maycommunicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 226-3200.