Cell Agricultural Mfg. Co.

National Labor Relations Board - Board Decisions

Jul 28, 1993

311 N.L.R.B. 1228 (N.L.R.B. 1993)

1228
311 NLRB No. 161
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolution unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
In sec. III,B, par. 3, of his decision, the judge relied on the fact
that the Respondent had expressed concern about the rumors of pos-
sible unionization as evidence of union animus. In finding union ani-
mus, we do not rely on Gary Cell’s expression of concern as evi-
dence of animus. This finding does not affect our decision to affirm
the judge’s finding of animus based on the other factors cited.
2 In adopting the judge’s recommendation to impose a bargaining
order, we do not rely on his conclusion that one of the effects of
the unfair labor practices is to ‘‘create a reputation for Respondent
as an anti-union employer . . . .’’ (JD sec. III,E.)
3 In affirming the judge’s finding that the layoffs were unlawful
we rely additionally on Shattuck Denn Mining Corp., 362 F.2d 466
(9th Cir. 1966), which holds that in determining actual motive the
trier of fact may infer motive from the total circumstances proved.
If he finds that the stated motive is false (in this case the work slow-
down) he may infer that there is another motive and that it is one
the employer wishes to conceal.
4 The judge found, and we agree, that a single-plant unit consisting
of the Respondent’s assembly plant employees is an appropriate unit.
5 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
6 The court in Jamaica Towing included as ‘‘hallmark’’ violations
such employer misconduct as the closing of a plant or threats of
plant closure or loss of employment, the discharge of union adher-
ents, and the grant of benefits to employees. It characterized the ac-
tual closure of a plant or discharge of employees as ‘‘complete acts
which may reasonably be calculated to have a coercive effect on em-
ployees and to remain in their memories for a long period.’’ Id. at
213. The court specifically noted that repeated 8(a)(3) violations will
rarely be misinterpreted and their coercive effect not readily undone
because of the length of time involved in the litigation that might
lead to restoration of employment.
Cell Agricultural Manufacturing Co. and Sheet
Metal Workers International Association, Local
10, AFL–CIO. Cases 18–CA–11758 and 18–CA–
11800
July 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 25, 1992, Administrative Law Judge Wil-
liam J. Pannier issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.2
Since January 1990, the Respondent has operated an
‘‘assembly plant’’ and a ‘‘rubber plant’’ for the manu-
facture of potato harvesters and planters. Prior to 1990,
N.F.D. and N.F.D., Inc. (Rubber Division) operated the
two plants and the employees were represented in an
employerwide two-plant bargaining unit by a local of
the Teamsters. When the Respondent took over oper-
ations, in 1990, however, the employees became un-
represented. Thereafter, assembly plant employees be-
came dissatisfied over the Respondent’s failure to
grant wage increases and insurance coverage. Employ-
ees met with agents of Sheet Metal Workers Inter-
national Association, Local 10 (the Union) on April
22, 1991. Subsequently a majority of the 33 assembly
plant employees signed authorization cards.
The judge found, and we agree, that the Respondent,
through its vice president, Gary Cell, violated Section
8(a)(3) and (1) of the Act by laying off all its assem-
bly plant employees on April 24, 1991, 2 days after
the union meeting, and thereafter by refusing to rein-
state three of them.3 Further, we agree with the judge
that the Respondent, through Vice President Gary Cell,
violated Section 8(a)(1) by granting wage increases se-
lectively to eight assembly plant employees in late
April.
The judge found that the Union had had a majority
of the 33 employees in the assembly plant bargaining
unit.4 In view of the nature and extent of the viola-
tions, the judge concluded that the possibility of eras-
ing the effects of the Respondent’s unlawful acts by
traditional remedies was slight. He recommended
issuance of a Gissel5 bargaining order.
We agree with the judge. We further find that the
precipitate, unlawful mass layoff of the entire bar-
gaining unit, the refusal to reinstate the three employ-
ees, and the discriminatory grant of benefits to discour-
age union support constituted ‘‘hallmark’’ violations.
These ‘‘hallmark’’ violations, directly and immediately
affecting every member of the unit in the case of the
layoff, particularly require a remedial bargaining order.
Airtex, 308 NLRB 1135 (1992) (Airtex). Eddyleon
Chocolate Co., 301 NLRB 887 (1991). See also NLRB
v. Jamaica Towing, 632 F.2d 208 (2d Cir. 1980).
In Airtex we included as ‘‘hallmark’’ violations such
employer misconduct as threats of plant closure or loss
of employment, discriminatory layoffs, and changes in
working conditions. Such conduct by the highest level
of management, as here, ‘‘justifies a finding without
extensive explication that it [the conduct] is likely to
have a lasting inhibitive effect on a substantial percent-
age of the work force.’’ Airtex, supra at 1136, quoting
from NLRB v. Jamaica Towing, supra, 632 F.2d at
213. Similarly in Eddyleon Chocolate Co., supra, we
stated that plant closure, layoff threats, and discrimina-
tory discharges are more likely to destroy election con-
ditions for a longer period of time than other unfair
practices because they tend to reinforce employees’
fears that they will lose employment if union activity
persists. Id. at 891. See also Jamaica Towing at 213.6
The coercive impact of Respondent Vice President
Gary Cell’s announcement and implementation of a
mass layoff can hardly be gainsaid. Its impact is in-
1229CELL AGRICULTURAL MFG. CO.
7 We note that in finding that Witte, Hackler, and Thomas were
discharged in violation of Sec. 8(a)(3) and (1), the judge failed to
cite Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). However, the judge’s
analysis is fully consistent with the principles set forth in that case.
creased by virtue of its precipitate and reflexive nature
2 days after employees met with union representatives
and signed authorization cards. Astro Printing Services,
300 NLRB 1028 (1990) (unfair labor practices com-
menced on the day the union demanded recognition).
The effect of such unlawful practices is heightened by
the special stature of Gary Cell, a vice president and
owner of the Respondent and son of its president.
Vemco, Inc., 304 NLRB 911 (1991). Cell insisted that
as a correlation of rehire each employee accept the
current terms of employment. Thus the layoff and re-
call served abrupt, graphic, and indelible notice on all
employees that the Respondent controlled their em-
ployment, to the exclusion of any outside agency that
might seek an improvement in their conditions of em-
ployment. The mass layoff ensured that the coercive
message was communicated to all the employees. Also
see Vernon Devices, 215 NLRB 475 (1974) (mass dis-
charge for 1 hour demonstrating lengths to which em-
ployer would go cannot be cured by repayment of the
minimal wages lost or notice posting). Cf. Rapid Mfg.
Co. v. NLRB, 612 F.2d 144, 149 (3d Cir. 1979).
The unlawful and discriminatory discharges of em-
ployees Witte, Hackler, and Thomas, all union adher-
ents, none of whom would have been terminated if not
for the unlawful layoff, were highly coercive and un-
likely to be forgotten.7 By decimating the unit in pur-
suit of its unlawful goal the Respondent again dem-
onstrated its economic power over its employees. The
likely result of such action is to reinforce the employ-
ees’ fear that they would lose employment if they per-
sisted in union activity. Koons Ford of Annapolis, 282
NLRB 506, 508 (1986), enfd. 833 F.2d 310 (4th Cir.
1987).
The Respondent’s grant of benefits—i.e., the wage
increases—is yet another violation that will have a
lasting impact. As the Supreme Court has noted, ‘‘[t]he
danger inherent in well-timed increases in benefits is
the suggestion of a fist inside the velvet glove. Em-
ployees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow.’’ NLRB v. Ex-
change Parts, 375 U.S. 405, 409 (1964). Additionally,
the Respondent, through its misconduct, remedied the
very problem that had led employees to seek union
representation in the first place and thereby under-
mined the union campaign. As noted by the Board in
Koons Ford, supra, unlawful wage increases have a
particularly long lasting effect because the Board’s tra-
ditional remedies do not require that an employer re-
scind its wage increase. See also Tipton-Electric Co.,
242 NLRB 202 (1979), enfd. 621 F.2d 890, 899 (8th
Cir. 1980) (Employer’s grant of benefits was a cal-
culated application of the carrot and the stick to condi-
tion employee response to the union that could not be
cured ‘‘by simply ordering [respondents] to mend their
ways’’ and to post a notice. Court found the damage
had been done and the only fair way to guarantee em-
ployee rights was a bargaining order to reestablish con-
ditions that existed before the election).
Evidence concerning employee turnover is an irrele-
vant consideration when assessing the propriety of
issuing a Gissel bargaining order. Q-1 Motor Express,
308 NLRB 1267 (1992). See, e.g., Salvation Army
Residence, 293 NLRB 944, 946 (1989), enfd. mem.
923 F.2d 846 (2d Cir. 1990) (bargaining order re-
mained valid where new employees constituted 64 per-
cent of the work force); Action Auto Stores, 298
NLRB 875 fn. 3 (1990), enfd. mem. 951 F.2d 349 (6th
Cir. 1991) (bargaining order remained valid where new
employees constituted 75 percent of work force). Nev-
ertheless, some courts have refused to enforce bar-
gaining orders where the Board has not considered the
impact of employee turnover. See Avecor v. NLRB,
931 F.2d 924 (D.C. Cir. 1991), where the court held
that before issuing a Gissel category II bargaining
order, the Board must consider employee turnover.
Further, we are told to examine the turnover that has
occurred up to the time of new order. See also NLRB
v. Pace Oldsmobile, 681 F.2d 99 (2d Cir. 1982);
M.P.C. Plating v. NLRB, 912 F.2d 883 (6th Cir. 1990).
But see NLRB v. Balsam Village Management Co., 792
F.2d 29 (2d Cir. 1986), cert. denied 479 U.S. 931
(1986), enfg. 273 NLRB 420 (1984) (8(a)(3) dis-
charges are hallmark violations; the fact that there was
100-percent turnover in the unit is no defense because
it was a direct and obvious product of the unlawful
conduct).
If, however, employee turnover can be relevant in
determining the appropriateness of a bargaining order,
the burden must be on the employer to demonstrate
why employee turnover should preclude the imposition
of a bargaining order. If the General Counsel has es-
tablished that an employer’s unfair labor practices
would tend to have a pervasive adverse influence on
employees, the employer must demonstrate that a free
and fair election could occur among current employ-
ees. Thus, in regard to new employees, the employer
must establish that new employees are free from the
coercive effects of the past unfair labor practices. Our
experience teaches that new employees inevitably learn
of an employer’s past unlawful conduct particularly
when employees who were the targets of an employ-
er’s antiunion campaign and/or the management offi-
cials who have committed the misconduct are still
present. See International Door, 303 NLRB 582, 583
(1991). Thus the effects of serious hallmark violations,
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Contrary to the Respondent, we view the evidence that certain
employees signed petitions declaring, in effect, that they did not
want union representation without an election as bolstering, not
weakening, the need for a bargaining order. Thus, subsequent to the
Respondent’s unfair labor practices, employees who previously had
supported the Union began to retract their allegiance to the Union.
That supports the conclusion that the Respondent’s misconduct dis-
sipated the Union’s support among employees.
9 In the instant case, although the original layoff was rescinded
after a few days for most employees, there were three employees
who were unlawfully not recalled. 1 Unless otherwise stated, all dates occurred in 1991.
like those present here, are not easily erased.8 We rec-
ognize that, in an 8(a)(3) case, the Board’s traditional
remedy includes reinstatement and backpay for the
discriminatees. However, we are not persuaded that
this remedy will necessarily assuage the concerns of
the other employees who are now in the unit. Where,
as here, the remedy comes only after long and arduous
litigation, the other employees may well be reluctant to
engage in union activity. As they view it, such activity
led to a prolonged period of unemployment for the
discriminatees, and they may not wish to risk a similar
fate.9
Here, the Respondent has shown no more than that
18 new employees were hired after the unlawful lay-
offs, and that it generally experiences a turnover of
two-thirds of its work force. In our judgment, the Re-
spondent’s evidence regarding employee turnover does
not significantly weigh against imposing a bargaining
order. (Indeed, were the Respondent law abiding, who
is to say that turnover would not be substantially re-
duced?)
Thus, as found by the judge, we also conclude that
a bargaining order is appropriate. We find that the lin-
gering atmosphere of coercion resulting from the Re-
spondent’s unlawful behavior makes it impossible to
hold a free and fair election. As the judge found, the
effect of the Respondent’s conduct cannot be erased by
the passage of time or traditional remedies and thus,
a Gissel bargaining order is required. See, e.g., Koons
Ford of Annapolis, supra; Crown Cork & Seal Co.,
308 NLRB 445 (1992); Foster Electric, 308 NLRB
1253 (1992); and F. L. Smithe Machine Co., 305
NLRB 1082 (1992). Also see Tipton Electric, 242
NLRB 202 (1979), enfd. 621 F.2d 890 (8th Cir. 1980),
supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cell Agricultural Manufac-
turing Co., Braham, Minnesota, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Everett Rotenberry, for the General Counsel.
Steven C. Miller, of Minneapolis, Minnesota, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER, Administrative Law Judge. I heard
this case in Cambridge, Minnesota, on October 1 and 2,
1991.1 On July 22, the Regional Director for Region 18 of
the National Labor Relations Board (the Board), issued an
order consolidating cases, amended and consolidated com-
plaint and notice of hearing, consolidating the unfair labor
practice charge in Case 18–CA–11758, filed on May 22 and
amended on June 20, with the charge in Case 18–CA–11800,
filed on June 20, alleging violations of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record, on the briefs that were
filed, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
At all times material, Cell Agricultural Manufacturing
Company (Respondent) has been a Minnesota corporation,
with an office and place of business in Braham, Minnesota,
and has been engaged in the manufacture and nonretail sale
and distribution of farm equipment. In the course and con-
duct of those business operations during calendar year 1990,
Respondent sold and shipped products, goods, and materials
valued in excess of $50,000 from its Braham facility directly
to customers located outside the State of Minnesota and, fur-
thermore, purchased and received at its Braham facility prod-
ucts, goods, and material valued in excess of $50,000 di-
rectly from points outside the State of Minnesota. Therefore,
I conclude, as admitted in the amended and consolidated an-
swer of Cell Agricultural Manufacturing Company, that at all
times material, Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Sheet Metal Workers International
Association, Local 10, AFL–CIO (the Union) has been a
labor organization within the meaning of Section 2(5) of the
Act.
1231CELL AGRICULTURAL MFG. CO.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
There is virtually no dispute regarding most of the prin-
cipal facts, as opposed to motivations and inferences to be
drawn from those facts, underlying the complaint’s allega-
tions. Prior to 1990, N.F.D., Inc. and N.F.D., Inc. (Rubber
Division) operated the essentially two plants—an assembly
plant and a rubber plant—at Braham which Respondent has
operated there since January 1990. At that location N.F.D.,
Inc. manufactured agricultural products, principally potato
planters and harvesters. Respondent continues to manufacture
those same products, with Gordon Cell serving as its presi-
dent and with his son, Gary Allen Cell, serving as its vice
president. Both are admitted statutory supervisors and agents
of Respondent.
One material change did occur after Respondent com-
menced operations at Braham. Prior to 1990, all employees
working there were represented in an employerwide, two-
plant bargaining unit by International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
Local 970. For reasons unexplained in the record, the em-
ployees became and remained unrepresented from the time
that Respondent commenced manufacturing agricultural ma-
chinery at Braham. That, however, did not mean that em-
ployees working there were satisfied with their employment
terms. It is undisputed that there were ongoing complaints
about some of them, particularly the absence of wage in-
creases. In approximately April 1990, three employees, two
of whom were Scott Allen Witte and Gary Hackler, met with
Gordon Cell and discussed employee dissatisfaction con-
cerning the absence of a procedure for employees to merit
increases and concerning insurance coverage. That meeting
did not resolve the dissatisfaction of at least some employees
and, it is uncontradicted, Witte periodically questioned Weld-
ing Foreman Rodney Gross, an admitted statutory supervisor
and agent of Respondent, about wage increases during early
1991.
In addition to commenting directly to Respondent’s offi-
cials, employees began discussing the possibility of again be-
coming represented. Gary Cell admitted that he had been
aware of those discussions among the employees. Eventually,
Witte contacted the Union. On April 22, two of its agents
met with a group of Respondent’s employees in the parking
lot of the Track Side, a local restaurant and bar. Included in
that group was Roy Stromberg, Respondent’s machine shop
foreman until June 28 and an admitted statutory supervisor
and agent of Respondent until that date. At that meeting,
Stromberg and 17 employees signed cards authorizing the
Union to be their bargaining agent. Five additional employ-
ees signed such cards over the course of the next 7 days.
Two days after the Track Side parking lot meeting, at
lunchbreak on Wednesday, April 24, Gary Cell notified all
assembly plant employees that they were being laid off and
that any who desired continued employment with Respondent
should file employment applications by Friday, April 26. In
fact, leadman Rick Helmbrecht did so immediately and was
hired back that same afternoon. Over the course of the next
few days, almost all the other laid-off employees were re-
hired. However, Respondent refuses to rehire Witte, Hackler,
and welder Alvin Thomas. Furthermore, some of the recalled
employees were awarded wage increases of at least, and
sometimes more than, 25 cents an hour. Four of those in-
creases were effective retroactively to April 22.
The complaint alleges that the April 24 mass layoff, as
well as the subsequent refusal to rehire Witte, Hackler, and
Thomas, had been motivated by considerations that violated
Section 8(a)(3) and (1) of the Act. Respondent argues that,
prior to that date, assembly plant employees had been engag-
ing in a slowdown, apparently protesting Respondent’s un-
willingness to grant wage increases. As a result, contends
Respondent, it took advantage of a then-existing shortage of
steel for manufacturing harvesters and laid off all assembly
plant employees so that it could regain control in that plant
and restore production to preslowdown levels. In addition,
Respondent asserts that Witte, Hackler, and Thomas had
each engaged in unsatisfactory conduct that legitimately war-
ranted refusing to recall the three of them following the mass
layoff. Aside from the mass layoff and refusal to recall
Witte, Hackler, and Thomas, the complaint alleges that the
post-April 24 wage increases violated Section 8(a)(1) of the
Act, because they assertedly had been granted to discourage
further employee support for the Union, an allegation denied
by Respondent.
Because of the severity of the foregoing alleged unfair
labor practices and because a majority of the assembly plant
employees has signed authorization cards between April 22
and 29, the General Counsel contends that Respondent
should be obliged, as part of the remedy, to bargain with the
Union as the representative of employees working in the as-
sembly plant, excluding, particularly, rubber plant employees.
While not disputing that the Union obtained authorization
cards from a numerical majority of the assembly plant em-
ployees by April 29, Respondent argues that Stromberg’s
support for the Union tainted at least some of those cards
and deprives the Union of its numerical majority status. It
further contends that a unit confined to the assembly plant
is too narrow and, consistent with the unit’s scope prior to
1990, that only an employerwide, two-plant unit can be ap-
propriate at Braham. Finally, urges Respondent, because a
substantial number, if not a majority, of all Braham employ-
ees signed petitions disavowing support for the Union, at
least without an election, and because turnover is high in Re-
spondent’s employment complement, no bargaining order
should be issued, in any event.
For the reasons set forth, post, I conclude that a prepon-
derance of the evidence does establish that Respondent laid
off the assembly plant employees on April 24 because of the
union activity then in progress among them and, conversely,
that the credible evidence supports neither Respondent’s as-
sertion that there had been a work slowdown by those em-
ployees, nor its companion assertion that it would have laid
off those employees as a result of that slowdown even had
there been no union activity by them. Moreover, Respondent
effectively admits that it would have allowed Witte, Hackler,
and Thomas to continue working for it had there been no
mass layoff on April 24, and the credible evidence does not
support any assertion that even one of those three employees
engaged in misconduct that would have led to his layoff, ab-
sent a mass layoff caused by unlawful considerations. Fur-
thermore, I conclude that there is no credible evidence that
wage increases would have been granted to employees absent
the existence of an organizing campaign and, accordingly,
that a preponderance of the evidence shows that wage in-
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
creases were granted to employees in late April to discourage
their support for the Union, by showing that representation
was not needed to secure increases. Finally, I conclude that
a single plant unit of assembly plant employees is appro-
priate and, further, that a bargaining order must be issued,
allowing the Union to represent employees in that unit on the
basis of its majority status as shown by signed authorization
cards, because Respondent’s unfair labor practices were so
serious and pervasive that it cannot be said that there is even
a slight chance of erasing their effects through traditional
remedies and there is no realistic prospect of conducting a
representation election in an atmosphere untainted by the ef-
fects of their commission.
B. The Mass Layoff on April 24
The evidence presented by the General Counsel establishes
a prima facie case that the layoff on April 24 had been moti-
vated by the assembly plant employees’ union activity. The
initial meeting between them and the Union’s agents had oc-
curred on April 22, 2 days before the mass layoff. On that
same date, he admitted, Vice President of Operations Gary
Cell had ‘‘heard a rumor that some of the guys were going
up to the Track Side to talk about a union.’’ Respondent
contends that it was not hostile toward the idea of its em-
ployees organizing and becoming represented. In fact, there
is no evidence of unlawful conduct nor of expressions of ani-
mus prior to the mass layoff. Yet, the timing of the layoff—
within 48 hours of the Track Side meeting—suggests that
animus existed. ‘‘Timing alone may suggest anti-union ani-
mus as a motivating factor in an employer’s action.’’ NLRB
v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984).
The circumstances of the layoff on April 24 differed from
those of prior layoffs. Although there had been past occa-
sions when employees had been laid off for various periods,
never before had employees been required to file employ-
ment applications to be considered for recall. Moreover, in
contrast to past layoffs, before being allowed to resume em-
ployment, each employee was required to undergo an indi-
vidual interview as a condition precedent to being rehired.
And, as described below, the subject of those interviews did
not pertain to diligence in working. Rather, as Gary Cell ad-
mitted, each employee was told to be satisfied with Respond-
ent’s employment terms, dissatisfaction with which had been
the cause of their decision to meet with the Union.
Nor is it necessary to rely solely on circumstantial evi-
dence to infer animus. In the course of disavowing its exist-
ence, Gary Cell claimed that there had been past rumors
about employees contacting unions: ‘‘it is a common thing
that people would say ‘Well, maybe we should start a union,’
or maybe we should do that.’’ In effect, claimed Cell, the sit-
uation in April had been no different than on prior occasions.
Yet, in the course of that disavowal, Cell conceded that Re-
spondent had been concerned about the rumors of possible
unionization when they had initially surfaced: ‘‘the first cou-
ple time you hear it you get concerned . . . .’’ Con-
sequently, Respondent was hardly so lacking in concern
about unionization of its employees as Gary Cell attempted
to portray.
To be sure, Cell continued his testimony about Respond-
ent’s reaction to those initial rumors by claiming that ‘‘after
a while it was so common that you just kind of ‘smurfed’
it off, or didn’t say anything about it.’’ However, the rumor
that Cell admittedly heard on April 22 was quite different,
so far as the evidence shows, from earlier rumors that he de-
scribed having heard. Those earlier rumors had been no more
than generalized expressions about a course of action that
employees had wondered if they ‘‘maybe . . . should’’ pur-
sue. In contrast, Cell conceded having heard in April that
some of the employees actually were taking steps to organize
by ‘‘going up to the Track Side to talk about a union.’’ The
distinction is hardly an insignificant one. For, prior rumors
involved only possible action, whereas the April one per-
tained to a concrete, specific course of conduct. As a result,
the April rumor heard by Gary Cell was not so susceptible
of being ‘‘‘smurfed’ off’’ by Respondent. Indeed, it is a fair
inference that the concern generated by initial rumors of gen-
eralized employee consideration of unionizing were resur-
rected by the April rumor of specific action being undertaken
to actually organize and become represented.
The ultimate ‘‘determination which the Board must make
is one of fact—what was the actual motive of the dis-
charge?’’ Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 729
(9th Cir. 1969). Of course, that ultimate determination is not
satisfied simply by a prima facie showing of unlawful moti-
vation. Yet, once such a showing has been made, the burden
shifts to the employer to explain its ‘‘actual motive of the
discharge[.]’’ Id. ‘‘The employer alone is responsible for its
conduct and it alone bears the burden of explaining the moti-
vation for its actions.’’ Inland Steel Co., 257 NLRB 65
(1981).
Gary Cell was Respondent’s principal—indeed, in most
material respects, its only—witness concerning its motivation
for laying off assembly plant employees on April 22, for not
recalling Witte, Hackler, and Thomas at any time thereafter,
and for granting wage increases to eight employees following
their recall from layoff. He testified that there had been a
work slowdown in the assembly plant that began occurring
about a month before April 24. As a result, he testified, at
a management meeting before lunchbreak on that date, a de-
cision had been made to lay off all those employees and to
rehire each one after an individual interview with a foreman.
According to Gary Cell, ‘‘the strategy behind laying the
whole crew off and rehiring’’ had been,
first of all, we did have, it was an opportune time, be-
cause we were between the planters and the harvesters,
and we were having problems getting our material in.
Second of all, we wanted—what I wanted to do was
put the foremens [sic] responsible for their departments,
and basically they could interview the people, find out
what the problems were, and hire them back if he want-
ed them back.
However, as he testified, Cell did not appear to be doing so
candidly and a review of the record confirms that impression.
At various points Gary Cell gave testimony that tended to
be more advantageous to Respondent’s position—or, at least,
less advantageous to that of the General Counsel—than ear-
lier contradictory statements appearing in his prehearing affi-
davit. For example, he testified that he had been hearing ru-
mors of a work slowdown since late March or early April,
even before he went on vacation from April 8 through 15.
But, his affidavit states, ‘‘So maybe I heard this rumor [of
a purported slowdown] as of Tuesday, April 23.’’ To explain
1233CELL AGRICULTURAL MFG. CO.
that inconsistency, Cell claimed ‘‘my dates were wrong on
that’’ when he had given the affidavit. However, such a
facially plausible explanation was not available with regard
to other inconsistencies between his testimony and his affi-
davit. By way of illustration, he testified that foremen had
reported that a work slowdown was occurring, but, in an ap-
parent effort to avoid conceding that he had known about
employee dissatisfaction with employment terms, denied spe-
cifically that the foremen had also reported that employees
felt that they were being mistreated: ‘‘I did not hear that,
no.’’ Yet, that denial was contradicted flatly by his affida-
vit’s statement that the foremen had ‘‘said there was a lot
of complaining about the company, about the way employees
felt they were being mistreated, and about wages.’’ Con-
fronted with that prior statement, Cell retracted his testi-
monial denial and lamely conceded that, in fact, Respond-
ent’s foremen had reported that employees felt mistreated.
A similar inconsistency, as well as other troubling aspects,
arose in connection with his description of the supposed
prelunch management meeting of April 24. Asked if it were
not true that, at that meeting, he had told the foremen that
Witte, Hackler, and Thomas would not be returned from the
layoff, Cell hedged, responding ‘‘the one I did, the other two
came from Rodney. Which I reinforced.’’ However, so far as
the evidence shows, Gary Cell made no mention of Rodney
Gross, a welding foreman who is an admitted statutory su-
pervisor and agent of Respondent, in his prehearing affida-
vit’s account of decisions made at that meeting. Rather, the
affidavit states that he (Gary Cell) had been the person at
that meeting who had ‘‘specifically told the foremen’’ that
Thomas, Witte, and Hackler would not be rehired. Further-
more, Gary Cell’s testimony that these three employees had
even been discussed during that meeting was expressly con-
tradicted by Respondent’s director of manufacturing, Stan-
ford Harper, also an admitted statutory supervisor and agent
of Respondent. For, with reference to that particular meeting,
Harper testified that, ‘‘None of the people going to discuss
[sic] were discussed at that time,’’ and that, ‘‘Specific names
were not brought up.’’
That contradiction might have been explained by Harper’s
further testimony, developed during redirect examination,
that he had not been present for the entirety of the April 24
prelunch management meeting. Yet, while Gary Cell testified
that his father, Gordon, had attended that meeting, and al-
though as shown on page 15 of the transcript, President Gor-
don Cell was present throughout the hearing, the latter was
never called as a witness and, thus, did not confirm his son’s
description of what had been said during that meeting.
In fact, as a result of his nonappearance as a witness, a
number of statements purportedly made to or by Gordon Cell
were unconfirmed. Gary Cell claimed that he had been rep-
rimanded by his father in late January or early February for
not making the foremen do their job, assertedly as a result
of Gordon Cell’s discovery that Thomas had been visiting
with other employees instead of working. Similarly, appar-
ently in support of his testimony that he had actually discov-
ered the slowdown prior to April 23, instead of on that date
as stated in his affidavit, Gary Cell testified that during the
afternoon of April 16 he had complained to his father that
something had to be done about the slowdown ‘‘or we will
not get these machines out on time, and [the order for them]
will be cancelled.’’ In response, testified Gary Cell, his fa-
ther had replied only that he did not know what to do: ‘‘We
were talking about getting the foremen together to see what
we could do.’’
In addition to Gordon Cell, no other supervisor confirmed
Gary Cell’s testimony that during the April 24 prelunch man-
agement meeting he had warned his father ‘‘that if we didn’t
do something, we were not going to get the machines out
that had to get out.’’ Nor did the senior Cell or any other
supervisor corroborate Gary Cell’s assertion that, during that
same meeting, his father had asked, ‘‘would it help if I went
down and talked to the people [about the slowdown].’’
Gary Cell’s testimony about what purportedly had been
said at the April 24 prelunch management meeting is not his
only account of a supposed incident that went uncorroborated
by Respondent’s supervisors. In an apparent further effort to
buttress his testimony that he had learned of an asserted
slowdown before April 23, Gary Cell testified that he had re-
ceived a report before April 8 that employees were engaging
in a slowdown and, in response to that report, two super-
visors—Dan Helmbrecht and Stanford Harper—had each
warned a different group of employees that anyone caught
slowing down would be fired. Aside from the contrast be-
tween this supposedly affirmative response and the portrayal
of bewilderment and uncertainty later in April concerning
what should be done about the asserted slowdown, as de-
scribed two paragraphs above, the most significant aspect of
Cell’s testimony about the purported pre-April 8 report and
reaction to it is that no corroboration for it was provided.
Neither Supervisor Helmbrecht nor Supervisor Harper con-
firmed any aspect of Gary Cell’s testimony about it. Indeed,
though Cell claimed that the report had been received from
Curt Thomas, the latter was never called as a witness to cor-
roborate having made such a report, although Respondent
never represented that Thomas was unavailable to it for that
purpose.
Ultimately, Respondent failed altogether to establish that,
in fact, a slowdown had occurred in April or at any time be-
fore that. Interrogated specifically about work that should
have been, but had not been, performed, Gary Cell testified
that Respondent had orders for harvesters, but could not then
manufacture them due to a steel shortage prior to the mass
layoff. However, in contrast to his above-quoted testimony
about being ‘‘between the planters and the harvesters,’’ he
acknowledged that during the time that he had been on vaca-
tion, from April 8 through 15, Respondent ‘‘basically’’ had
orders for ‘‘a couple of planters that still had to get out.’’
As quoted two paragraphs above, Gary Cell had purportedly
warned his father during the April 24 prelunch management
meeting that those machines would not be gotten out unless
something was done about the asserted slowdown. In light of
that testimony concerning a warning that supposedly precip-
itated the mass layoff, it came as somewhat of a surprise
when Gary Cell admitted that one of the two planters had
already been shipped before April 24: ‘‘would have already
[been] shipped, I’m sure, first part of that week [of the mass
layoff].’’ In this respect, Gary Cell acknowledged that Re-
spondent possessed records that showed when those two
planters had been shipped. However, Respondent never pro-
duced those records to show when each of those two planters
had actually been shipped.
To be sure, leadman Rick Helmbrecht testified that in late
April ‘‘machines were not being built as fast as they possibly
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could. There was a slacking up with a lot of the employees,’’
which Helmbrecht attributed to a slowdown by them. At first
blush, that testimony appears to confirm the account in Gary
Cell’s affidavit about purportedly learning of a slowdown on
April 23. However, as described above, Cell testified that the
asserted slowdown had been occurring since late March or
early April. That testimony is not corroborated by
Helmbrecht’s assertion of a late April slowdown. Indeed,
during cross-examination, Helmbrecht was asked specifically
when the slowdown had begun. Although he claimed that
‘‘[a]t first it was gradual,’’ he eventually testified, ‘‘I can’t
give you exact dates,’’ and retreated to the generalized asser-
tion that, ‘‘I think that it was—people getting frustrated be-
cause they weren’t getting no raises, and I think things start-
ed slowing down at that time because they felt they deserved
more money.’’ Yet, he conceded that employees had been
frustrated at not getting raises as early as the preceding
Christmas. However, at no point did Helmbrecht claim—and
Respondent did not contend—that a slowdown had com-
menced as early as December 1990, nor during the suc-
ceeding 1 or 2 months. As a result, rather than providing
confirmation for Respondent’s slowdown defense,
Helmbrecht’s testimony only made it more suspect.
Nor was that the only respect in which Helmbrecht’s testi-
mony ultimately cast doubt on the reliability of Respondent’s
defense. During direct examination he claimed that occasion-
ally Witte had ‘‘said that in order to . . . get a raise, that
the people at [Respondent] should slow down, that they
couldn’t fire everybody if they did.’’ Of itself, such a state-
ment constitutes no more than an opinion about a possible
course of action; it does not necessarily constitute an expres-
sion of intent to pursue, nor actual advocacy of, a particular
course of conduct.
That became even more plain during cross-examination
when Helmbrecht described with greater particularity what
he had supposedly overheard Witte saying:
I was working on a machine and he was talking to
somebody else and he says, ‘‘You know, it should be
the type of thing, all of us should slow down, be-
cause,’’ he says, ‘‘if we all did,’’ he said, ‘‘they
couldn’t fire us all. And they’d have to give us more
money. They have to get the stuff done.’’
Furthermore, despite his assertion during direct examination
that Witte had ‘‘[o]ccasionally’’ made remarks about slowing
down, that asserted remark was the lone particular instance
provided by Helmbrecht of such a supposed comment by
Witte, who credibly denied having made such a statement to
coworkers. In fact, after first claiming that Witte had been
the ‘‘only one that made the remark,’’ Helmbrecht then testi-
fied somewhat inconsistently that he had heard other, uniden-
tified, employees saying ‘‘maybe Scott’s right, maybe a per-
son should slow down. Maybe if we stuck together we could
get an increase in wages.’’ However, even if overheard by
Helmbrecht, those remarks show no more than discussion of
a possible course of action, not that the employees had
adopted it as a course of action.
Respondent never plausibly explained exactly how a mass
layoff would have promoted expeditious completion of work
in progress. Gary Cell testified that he had taken advantage
of that layoff to ‘‘put the foremen totally responsible or tried
to make them responsible for their departments, and I made
them responsible for the employees under them, and their
wages.’’ Yet, at no point did Cell explain how such an ob-
jective could have been facilitated by a mass layoff, as op-
posed to simply telling the foremen what was expected of
them while the employees worked to complete manufacturing
the single harvester that remained to be manufactured.
Indeed, in testifying about the foremen’s responsibilities,
Gary Cell only further contradicted himself. For, after ini-
tially agreeing that he had given the foremen further author-
ity at the time of the layoff, he later testified, ‘‘They had al-
ways had [that authority] but they never took initiative of it.
I made sure that they knew at that date they were going to
be responsible for it.’’ However, he never described exactly
how he had communicated that message to the supervisors
and no supervisor ever corroborated Cell’s unparticularized
testimony that he had done so. That is, there is no evidence
whatsoever of any meeting between Gary Cell and the fore-
men at the time of the mass layoff at which the latter’s au-
thority, or exercise of it, had been discussed.
Finally, despite Respondent’s supposed concern about a
work slowdown, so far as the evidence discloses, no caution
against slowing down was issued during any of the indi-
vidual interviews conducted with employees who had filed
employment applications, as directed on April 24. Instead, as
Cell admitted in his prehearing affidavit, the foremen
were to find out what the problems were, find out if
[the applicants] really wanted to work here, let employ-
ees know that they had to be satisfied with the wage
rate they were getting. If they were not satisfied, we
were to let them know they shouldn’t work here.
In other words, rather than concerning themselves with work
output, as might be expected to have been the topic of those
interviews had a slowdown actually occurred and had such
a slowdown been the reason for the mass layoff, the foremen
were supposed to ascertain the specific causes of the employ-
ees’ dissatisfaction—the ones that had led to their meeting
with the Union—and, then, to tell them to work somewhere
else if they could not accept the existing situation.
In view of the foregoing considerations, I do not credit the
evidence on which Respondent’s defense is based and, as a
result, Respondent has presented no credible explanation for
the mass layoff that occurred within 2 days of the employ-
ees’ meeting with the Union. Therefore, I conclude that a
preponderance of the credible evidence establishes that the
mass layoff of April 24 had been motivated by the employ-
ees’ decision to contact the Union and authorize it to act as
their bargaining agent—so that they might be able to im-
prove employment terms with which they had been dissatis-
fied and which had remained uncorrected after earlier direct
communications with Respondent—and to discourage their
desire to become represented. Because of that unlawful moti-
vation, Respondent violated Section 8(a)(3) and (1) of the
Act by laying off its employees on April 24.
C. The Refusal to Reinstate Witte, Thomas, and Hackler
Aside from describing occasional generalized remarks
about the desirability of slowing down work to persuade Re-
spondent to correct working conditions perceived to be less
than satisfactory, Gary Cell advanced a series of complaints
1235CELL AGRICULTURAL MFG. CO.
about Witte, Thomas, and Hackler. For example, Witte had
an erratic attendance record, marred by unexcused absences,
tardiness, and early departures from work, and, in addition,
had been prone to visiting with other employees, instead of
working steadily. With regard to Thomas, Gary Cell testified
that Thomas had spent time visiting, instead of working, and
had announced that he would not perform his job of welding
frames unless paid more money. Finally, Cell testified that
Hackler had refused to cut some parts when asked to do so
by a foreman and, moreover, had not been working up to his
full potential because he had said that he could operate a
manual saw, as well as the automatic saw to which he was
assigned, if he were to be paid more.
In contrast to Gary Cell’s assertions in connection with the
mass layoff, Respondent did provide evidence that corrobo-
rated some of his complaints about Witte, Thomas, and
Hackler. At the end of January, Witte had received a written
warning from Gross as a result of excessive absenteeism.
And Gross testified that, when recalled from an earlier layoff
in December 1990, Thomas had stated that he would no
longer weld frames and, further, testified that he had spoken
with Thomas about slowing down on the job. Moreover,
Gross agreed with Gary Cell that he (Gross) had complained
to Cell about Thomas and had recommended that the latter
be laid off.
Nevertheless, as had been true with regard to the mass lay-
off, some of Gary Cell’s testimony about the three
unreinstated employees was not corroborated. Indeed, Cell
seemed to be tailoring his testimony to overstate Respond-
ent’s dissatisfaction with Witte, Thomas, and Hackler. As de-
scribed in subsection III,B, supra, Gordon Cell never cor-
roborated his son’s account of being reprimanded by the sen-
ior Cell in January after the latter assertedly had discovered
Thomas visiting, instead of working. Similarly, no corrobora-
tion was provided for Gary Cell’s testimony that, in January,
Assembly Line Foreman Dan Helmbrecht had reported that
Hackler refused to cut some parts when requested to do so
by Helmbrecht.
In addition to lack of corroboration, there were certain
other aspects of Respondent’s defenses, concerning failure to
reinstate these three employees, that raise suspicion about
their reliability. After testifying during direct examination
that ‘‘when I hired [Thomas] back in December, he said he
wasn’t going to weld frames,’’ during cross-examination
Gross admitted that ‘‘right around January’’ Thomas had
welded a frame for a four-row harvester, though not as expe-
ditiously as Gross had wanted. Apparently perceiving that his
testimony that Thomas had done so was not consistent with
his earlier account of Thomas’ purported December an-
nouncement of intent to no longer weld frames, Gross added
that, after having welded that harvester, Thomas had ‘‘said
that [frame] was the last one he was going to weld.’’ Yet,
during direct examination Gross had made no mention of a
second purported announcement by Thomas that he would
not weld frames—of an additional one made after the an-
nouncement assertedly made in December 1990.
In another area, after January Witte had been absent with-
out excuse on 2 days, had reported late for work once and
had left work early on two occasions. Nevertheless, despite
the attendance warning issued to him at the end of that
month, Respondent did not discipline Witte for attendance
deficiencies during February, March, or April. In fact, Re-
spondent produced no evidence to show that an attendance
record like Witte’s was truly out of the ordinary for its em-
ployees over a 3-month period—no evidence that Witte’s at-
tendance from February through April 24 had been so dif-
ferent from that of other employees that it could be con-
cluded objectively to have been relatively deficient.
Of course, ‘‘Board law does not permit the trier of fact to
substitute his own subjective impression of what he would
have done were he in Respondent’s position.’’ (Citation
omitted.) Super Tire Stores, 236 NLRB 877 fn. 1 (1978). But
rather than operating to Respondent’s advantage, that prin-
ciple undermines Respondent’s position in the circumstances
of this case. For even had Witte, Thomas, and Hackler en-
gaged in all of the misconduct attributed to them by Re-
spondent’s officials, not one of them had been terminated be-
cause of such conduct prior to April 24. Instead, Respondent
continued to employ the three of them and, more signifi-
cantly, Gary Cell effectively admitted that it would have con-
tinued to employ them had the mass layoff not occurred.
Thus, he testified, ‘‘what we do is we will have a layoff and
instead of terminating people, we do not recall them.’’ In-
deed, he reinforced his description of that policy by testi-
fying that when Gross had complained about Witte in Janu-
ary and February, ‘‘I told him to, right now we had machines
that had to get out the door, and I didn’t care to terminate
him, I would rather wait until we had a layoff and do it that
way.’’ In short, evaluated in the context of Respondent’s
own practice, had the mass layoff not occurred on April 24,
Respondent would have continued to employ Witte, Thomas,
and Hackler after that date, so far as the record discloses.
As concluded in subsection III,B, supra, the April 24 mass
layoff had been unlawfully motivated and Respondent has
failed to credibly show that it would have occurred absent
the employees’ effort to become represented by the Union.
Since the severance of Witte, Thomas, and Hackler’s em-
ployment was a direct and integral consequence of that un-
lawfully motivated mass layoff, and admittedly would not
have occurred absent that layoff, and inasmuch as there is no
evidence of a subsequent layoff which Respondent could
have utilized to terminate one or more of them, I conclude
that those three employees are entitled to reinstatement and
that Respondent further violated the Act by failing to do so.
One additional incident arose in connection with Thomas.
As it began to dawn on him that he would not be recalled
from layoff, he telephoned Director of Manufacturing Harper
at 1:33 a.m. on April 27. The two men had known each
other for over a quarter century and, in effect, Thomas chas-
tised Harper about the former’s nonrecall. In the course of
doing so, Harper testified, Thomas warned Harper to
‘‘[w]atch your back.’’ Thomas denied specifically having
made that remark to Harper, but acknowledged having called
Harper ‘‘two-faced’’ during their April 27 conversation. Yet,
even had Thomas made the remark attributed to him by
Harper, such a comment does not constitute a basis for bar-
ring reinstatement.
The conversation between Harper and Thomas occurred
after the latter had begun to appreciate that he would not be
recalled to work by Respondent. As concluded above, Re-
spondent’s refusal to recall Thomas had been unlawful and,
in effect, Thomas was protesting Respondent’s unfair labor
practice. Moreover, a remark to ‘‘watch your back’’ is am-
biguous. While Harper testified that he had regarded it as a
1236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threat, there is no evidence that Thomas was considered to
be, or in fact was, a violent individual. Following that con-
versation there was no further contact between the two men
and Thomas never did anything else that could be construed
as retaliatory conduct against Harper. In these circumstances,
such a remark, if uttered, is no more than a spontaneous out-
burst that does not rise to the level of misconduct so severe
that it warrants depriving a discriminatee of his statutory
right to reinstatement.
D. The Postmass Layoff Wage Increase
As described in subsection III,A, supra, some of the re-
called employees were awarded wage increases, with four of
them being made retroactive to April 22 and the remaining
ones becoming effective on April 29. In the final analysis,
Respondent never really did explain either the reason(s) for
granting those increases, nor the timing of them. Gary Cell
claimed that a pay scale, with floor and ceiling rates, had
been ‘‘a thing that I had been working on before that. It was
a project that I was working on with the State and the overall
area to try to gather up what the average wages were in that
area.’’ Yet, no corroborating evidence was presented for that
testimony and Cell gave no particularized account of what-
ever project he had purportedly been working on. Moreover,
asked when the asserted pay scale had been established, Gary
Cell responded, ‘‘that went out some time in June.’’ If so,
he never explained the individual increases awarded over a
month before that. Nor did he explain why some of these
April increases had been made retroactive to April 22.
As described in preceding subsections, lack of wage in-
creases and of a procedure to merit them had been major
causes of dissatisfaction that had led employees to meet with
the Union on April 22. Prior to the mass layoff, Respondent
had consistently rebuffed requests for wage increases with
the response that they could not be afforded. Indeed, if not
precarious, Respondent’s financial situation in April had not
been secure. For Gary Cell admitted that delivery of steel for
manufacturing harvesters had been withheld because ‘‘we
were on credit hold with our steel suppliers.’’ Of course,
steel had been received by the time that wage increases had
been awarded in April. However, nothing in the record indi-
cates that its delivery had inaugurated an era of financial
plenty for Respondent and that it no longer confronted a tight
financial situation.
In the circumstances, a preponderance of the evidence
warrants the conclusion that the wage increases were no
more than the carrot to the mass layoff’s stick. The layoff
served to warn employees of Respondent’s control over their
employment and to display its willingness to utilize that con-
trol to their detriment. The wage increases held out the pros-
pect of resolution of their dissatisfaction and of ability to
achieve improved employment terms without the need for a
union. No specific statements were needed to communicate
those messages. In the circumstances, they were clear. There-
fore, I conclude that by granting wage increases to employ-
ees in late April, Respondent interfered with their Section 7
right to freely choose representation and violated Section
8(a)(1) of the Act.
E. Requested Remedial Bargaining Order
Respondent does not contest that as of April 24, when the
first unfair labor practice—the mass layoff—occurred, a nu-
merical majority of full-time and regular part-time produc-
tion, fabrication, and maintenance employes employed in its
assembly plant had signed cards authorizing the Union to
represent them. Not only does the evidence show that to be
the fact, but the record also discloses that the Union main-
tained the support of a numerical majority of those employ-
ees for at least the remainder of April.
Although Respondent does not challenge the existence of
that numerical majority of cards in the assembly plant, it
does raise several other objections to the General Counsel’s
argument that a bargaining order is necessary to adequately
remedy unfair labor practices of the nature committed by it.
First, it is undisputed that then-Machine Shop Foreman
Stromberg had attended the April 22 parking lot meeting at
the Track Side, where he signed an authorization card, and
that he had voiced the opinion to employees, on other occa-
sions that it would be a good idea for them to select a bar-
gaining agent. Respondent contends that such conduct by a
supervisor taints whatever support a union receives from em-
ployees. However, there is no evidence that Stromberg di-
rectly solicited employees’ signatures on cards. Nor is there
evidence that, as a result of Stromberg’s expressions of union
support, any assembly plant employees, especially any who
had signed authorization cards, were placed in fear of retalia-
tion by Stromberg for not supporting the Union and for not
signing its authorization cards. Similarly, there is no evi-
dence that anything said or done by Stromberg conveyed an
express or implied message he was acting on behalf of Re-
spondent and that Respondent wanted the employees to se-
lect the Union as their bargaining agent. Consequently, the
fact that Stromberg had been a sympathetic supervisor—one
sympathetic to the Union’s efforts to organize Respondent’s
employees—does not, standing alone, taint support for rep-
resentation demonstrated by the fact that a majority of as-
sembly plant employees signed cards authorizing the Union
to represent them. See, e.g., Napili Shores Condominium v.
NLRB, 939 F.2d 717, 719 (9th Cir. 1991); NLRB v.
Wehrenberg Theatres v. NLRB, 690 F.2d 159, 162 (8th Cir.
1982).
A more substantial challenge is raised by Respondent’s ar-
gument that a unit confined to the assembly plant is too nar-
row in scope and that, to be appropriate, any unit of Re-
spondent’s Braham employees must encompass employees
whose work location is the rubber plant. As briefly described
in subsection III,A, supra, Respondent’s operations at
Braham are housed essentially in two plants, one denomi-
nated the assembly or main plant and the other referred to
as the rubber plant. In addition, a spray booth is located ap-
proximately 50 yards from the assembly plant, but apparently
the parties agree that employees from the assembly plant
who work there regularly would be properly included in
whatever unit encompassed other assembly plant employees.
No independent argument challenging the scope of the unit
is predicated on the existence of the spray booth.
Prior to November 1990, fiberglass operations were con-
ducted in a shed located approximately 100 yards from the
assembly plant. In approximately that month, due to cold
1237CELL AGRICULTURAL MFG. CO.
weather, those operations were relocated to the rubber plant.
Although Gary Cell testified that the fiberglass operation
‘‘will probably’’ be restored to that shed, because ‘‘[t]here’s
more room down at that particular location,’’ he gave no tes-
timony about any definite, or even tentative, plans to restore
those operations there. So far as the record discloses, since
November 1990 fiberglass operations have been conducted
continuously in the rubber plant and, consequently, have
been housed there at all times during the organizing cam-
paign and while Respondent committed its unfair labor prac-
tices.
The hearing in this case occurred in the month of October
and, accordingly, at a time when cold weather was again im-
minent, as it had been in 1990 when fiberglass operations
had been relocated. Not only would restoration to the shed
in 1991 pose the exact cold weather problem that it did in
1990, but that same weather problem would recur in each
succeeding year. In short, absent additional evidence—which
Respondent did not present—there is no basis for concluding
that there is any substance to Gary Cell’s speculation that fi-
berglass operations ‘‘will probably’’ be restored to the shed.
So far as the specific reliable evidence discloses, the fiber-
glass operations should be included as part of the rubber
plant. Therefore, neither its prior shed location, nor for that
matter the existence of a detached spray booth, affects the
unit issue of whether a single assembly plant unit is appro-
priate or, alternatively, whether no unit smaller in scope than
an employerwide, two-plant unit can be appropriate.
‘‘There is a presumption that a single plant is an appro-
priate bargaining unit.’’ Spring City Knitting Co. v. NLRB,
647 F.2d 1011, 1014 (9th Cir. 1981). However, that pre-
sumption can be rebutted by evidence that ‘‘such plant unit
has been so effectively merged into a more comprehensive
unit by a bargaining history, or is so integrated with another
as to negate its identity.’’ Dixie Belle Mills, 139 NLRB 629,
631 (1962). Concerning the first of those two rebutting alter-
natives, as described in subsection III,A, supra, prior to 1990
all employees at Braham had been represented in an overall,
employerwide unit, embracing both the assembly and rubber
plants. Yet, the reason for according weight to bargaining
history is rooted in the policy of not departing from estab-
lished bargaining relationships. Dezcon, Inc., 295 NLRB 109,
112 fn. 13 (1989). Here, there has been no bargaining history
since before January 1990—more than a year prior to the
Union’s organizing campaign and Respondent’s unfair labor
practices arising as a result of that campaign. Since then,
there has been no established bargaining relationship to be
disrupted. Accordingly, less weight should be accorded to so
relatively remote a history of bargaining, Hall’s Super
Duper, 281 NLRB 1116, 1118 (1986), especially where, as
here, a different employer operates the facility and a different
labor organization seeks to represent only some of the for-
merly represented employees.
With regard to functional integration, the record shows a
close geographic proximity between the two plants. Only ap-
proximately a quarter mile separates the rubber plant from
the assembly plant. While geographic proximity of plants is
a factor in making determinations as to the appropriateness
of single plant units, it is not the determinative factor. In-
deed, the Board has concluded that a single plant unit was
appropriate even though it was only 500 feet from another
plant operated by the same employer. Gordon Mills, 143
NLRB 771 (1963).
Not only is there a quarter mile between the two plants,
but each one has a separate address. More significantly,
while the record is not altogether clear on the subject, it ap-
pears that a fence separates the two plants. Thus, in describ-
ing movement of subassemblies to the rubber plant from the
assembly plant, Gary Cell testified that they are hauled by
vehicle to the rubber plant where they are dropped ‘‘inside
the gate on one side.’’ And in the course of describing the
shed in which fiberglass operations had been located prior to
November 1990, he testified that the shed is ‘‘about 100
yards from the main plant, but inside the fenced-in area.’’ In
these circumstances, the geographic proximity of the assem-
bly and rubber plants is not so facially persuasive a factor
in favor of functional integration as might be the fact in
other contexts.
Perhaps Respondent’s strongest argument attempting to
rebut the single plant unit presumption is the integration of
product between the two plants. No product shipped by it
from Braham has not been worked on, at some point while
being manufactured, by employees in both plants. For exam-
ple, rollers made and welded in the assembly plant are then
rubber coated in the rubber plant, after which they are re-
turned to the assembly plant for incorporation into the ma-
chines manufactured and sold by Respondent. Cup hoppers
and cup shoots used to hold seeds, as well as fertilizers, are
fiberglassed in the rubber plant before being incorporated by
assembly plant employees into the planters shipped to cus-
tomers. Similarly, harvester rods stored at the rubber plant
are rubber-coated and riveted together there and, then, are
taken to the other plant for assembly as part of the completed
harvesters. Yet, while this evidence shows product integra-
tion between the rubber and assembly plants, and thereby is
an indicia favoring a two-plant unit, that factor is not nec-
essarily determinative. See, e.g., Black & Decker Mfg. Co.,
147 NLRB 825, 828 (1964). Rather, product integration is
but one of a number of factors that must be evaluated to
make an ultimate determination of whether assembly plant
employees possess a separate community of interest: whether
they ‘‘form a homogeneous, identifiable, and distinct group,
physically separated from the employees [in the rubber
plant].’’ Haag Drug Co., 169 NLRB 877, 877–878 (1968).
Here there is evidence of centralized administration of op-
erations at the two plants: Gordon and Gary Cell formulate
policies that are uniformly applicable to employees working
at both plants and, further, uniform wage ranges and benefits
are applied to employees at both plants. Yet, there is sepa-
rate, intermediate, and immediate supervision of employees
at each plant. Harper is in charge of operations at the assem-
bly plant and General Manager Kermit Grundberg is in
charge of rubber plant operations. Reporting to Harper are
foremen, such as Gross and Stromberg, who directly super-
vise assembly plant employees. Similarly, direct supervision
of rubber plant press operators and millers is provided by
Steve Gutzkow, and was provided by John Fredlund during
the first 4 months of 1991, who reports directly to
Grundberg. Although Gary Cell testified that he and his fa-
ther make final decisions regarding hiring and firing of em-
ployees for both plants, he later conceded that for the assem-
bly plant Harper, like Grundberg for the rubber plant, ‘‘hires,
lays off and [recommends] wage increases,’’ as well as dis-
1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ciplines employees working there. In fact, as described in
subsection III,B, supra, Gary Cell admitted that, at the time
of the mass layoffs, it had been Respondent’s policy that
foremen, the employees’ immediate supervisors, should be
‘‘totally responsible . . . for the employees under them, and
their wages.’’ Consequently, Respondent’s centralized admin-
istration has not left the separate intermediate and immediate
supervision of each plant ‘‘totally bereft of discretion in per-
sonnel matters.’’ Spring City Knitting Co. v. NLRB, supra.
In that same case the Ninth Circuit pointed out that ‘‘a rel-
atively low degree of actual employee interchange among
different plants [is] a strong indication that there is no collec-
tive ‘community of interests’ among a proposed multi-plant
bargaining unit.’’ Id. at 1015. Gary Cell claimed that, ‘‘if the
rubber plant ends up being a little slow, before we lay the
people off there, we will see if we could use them up at the
main plant.’’ Yet, accepting arguendo that such instances of
temporary transfer from the rubber plant to the assembly
plant may have occurred, Respondent has presented no evi-
dence that it did so other than on isolated occasions. And,
in fact, no evidence of even a single particularized example
of such a temporary transfer has been presented by Respond-
ent to support the generalized assertion of such a temporary
transfer practice. Nor was even an assertion advanced of
temporary transfers in the other direction: from the assembly
plant to the rubber plant. Furthermore, there is no evidence
showing that there have been any permanent transfers be-
tween the two plants, except, of course, to the extent that re-
location of the fiberglass operations from the detached shed
near the assembly plant might be regarded as a permanent
transfer. But that was a one-time incident and there is no evi-
dence of any other relocations. Consequently, there is no evi-
dence of significant temporary or permanent interchange be-
tween the assembly and rubber plants.
To be sure, there is some evidence of daily contacts be-
tween the plants, since subassemblies are transported to the
rubber plant for coating and are transported from the rubber
plant to the assembly plant for incorporation into planters
and harvesters. In addition, shipping and receiving for both
plants is located at the assembly plant and, after being re-
ceived at the main plant, materials are transported to the rub-
ber plant. However, movement of subassemblies and material
between Respondent’s plants does not indicate that there are
daily contacts between the two plants’ employees. For, Gary
Cell testified that forklift or pickup truck operators going to
the rubber plant would deliver their loads, ‘‘[n]ormally inside
the gate on the one side,’’ and that subassemblies would be
picked up ‘‘normally . . . at the same place’’ from the rub-
ber plant. At no point did Cell, or any other supervisor,
claim that there was actual contact between my rubber plant
employees and the forklift or pickup truck operator who de-
livered to or picked up from the rubber plant. Cell did testify
that ‘‘sometimes [forklift or pickup truck operators] will
have to go in [to the rubber plant] and get [subassemblies]
themselves.’’ However, Cell did not claim that such in-
stances occurred with any frequency and, so far as other evi-
dence discloses, they do not occur with any regularity.
Cell further testified that fiberglass operations employees
regularly travel to the assembly plant to use the paint facili-
ties located there. Yet, aside from the unreliability of Cell’s
testimony generally, there is no evidence as to how many fi-
berglass employees do so. Nor is there particularized evi-
dence as to how frequently fiberglass employees use the as-
sembly plant’s paint facilities and as to how long they spend
in those facilities whenever they use them. More signifi-
cantly, there is no evidence whatsoever that fiberglass oper-
ations employees encounter—have contact with—any assem-
bly plant employees while using the paint facilities in the as-
sembly plant.
Not only is there an absence of direct evidence of any sig-
nificant contacts between employees of the two plants, but
there is no basis for inferring its existence. Each plant has
its own timeclock used to punch in and out by employees
working in that particular plant. Rubber plant employees pri-
marily perform their work utilizing compression presses and
a plastisaw machine, which Gary Cell admitted are machines
that are not like any of the ones in the assembly plant. In-
stead, the large machines in the assembly plant are used to
perform heavy metal operations and there is no evidence that
such operations are conducted at the rubber plant.
No doubt an employerwide, two-plant unit is appropriate.
It may even be an objectively better unit than a single-plant
one encompassing only assembly plant employees. However,
‘‘[i]t is not required by the Act to choose the most appro-
priate unit, but only to choose an appropriate unit within the
range of several appropriate units in a given factual situa-
tion.’’ State Farm Mutual Automobile Insurance Co. v.
NLRB, 411 F.2d 356, 358 (7th Cir. 1969).
The assembly plant employees are separately housed in a
plant that has a separate address and that is separated by a
fence from the rubber plant. Distinct operations are per-
formed in each of those plants by employees who use dif-
ferent types of machinery to perform them. Employees in
each plant are subject to separate immediate and intermediate
supervision. There is no reliable or particularized evidence of
any significant temporary or permanent employee inter-
change between the two plants. At best, there is evidence of
only minimal and relatively infrequent daily contact between
a seemingly few employees who work at the assembly plant
and some of those assigned to work in the rubber plant.
These factors serve to outweigh any common interest be-
tween employees at the two plants arising from simple geo-
graphic proximity, product integration, and centralized ad-
ministration and, furthermore, support the presumptive appro-
priateness of assembly plant employees as ‘‘a homogeneous,
identifiable, and distinct group,’’ Haag Drug Co., supra, pos-
sessing a community of interest separate and distinct from
that of employees working in the rubber plant. Therefore, I
conclude that a unit of assembly plant employees is an ap-
propriate unit within the meaning of Section 9(b) of the Act.
That Respondent committed serious and substantial unfair
labor practices in April can hardly be disputed. It laid off
every unit employee. Indeed, while that action has been char-
acterized as a layoff, from the employees’ perspective it
might equally be characterized as a mass discharge and as
a temporary plant closure. For, each laid-off employee was
required to file an employment application to be eligible to
consideration for renewed employment by Respondent.
Moreover, as described in subsection III,B, supra, no em-
ployee was eligible for reemployment if unwilling to ac-
knowledge satisfaction with existing wage levels and em-
ployment conditions. Of course, it had been dissatisfaction
with employment terms that had led to employees to meet
with the Union and to sign cards authorizing it to represent
1239CELL AGRICULTURAL MFG. CO.
them. As a result, not only did Respondent send an implied
message that it would not tolerate unionization, when it laid
off all assembly plant employees within 48 hours of their
first union meeting, but it explicitly told every employee
being interviewed that they must cease being dissatisfied
with employment conditions if they wanted to resume work-
ing for Respondent: in short, be satisfied or begone. There-
after, certain of those employees received wage increases,
implicitly demonstrating that an alternative to unionization
was available as a means for improving conditions with
which the assembly plant employees had been dissatisfied.
Of course, that alternative had not been made available be-
fore the Union’s arrival on the scene.
Not only were Respondent’s unfair labor practices serious
and substantial ones, and not only did the layoff affect every
one of the assembly plant employees, but they were com-
mitted as a result of a meeting attended by all Respondent’s
officials: president, vice president of operations, director of
manufacturing, and foremen. Save possibly for one or more
assembly plant foremen, not all of whom were necessarily
identified during the hearing, the record shows that all those
individuals still occupy their positions, particularly Gordon
and Gary Cell. There has been no showing that those two
highest ranking officials have experienced any change in the
attitude that led them to authorize and implement the unlaw-
fully motivated layoffs, reemploy only employees who were
willing to be satisfied with existing employment terms, and
grant selective wage increases as a means of further discour-
aging employee support for representation. Nor is there any
evidence that would support a conclusion that Respondent
would be less likely to resort to unfair labor practices should
support for representation again surface, though perhaps by
traveling a more subtle avenue.
In effect, Respondent attempts to refute that conclusion by
pointing out that, prior to cancellation of a representation
election pursuant to the blocking charge doctrine, it had
launched no campaign whatsoever against the Union. Yet, it
did not need to do so. By the nature of its unfair labor prac-
tices, it already had conducted the most effective of
antiunion campaigns. The memory of having been laid off
and forced to reapply for employment, as new employees, is
one that would linger without the necessity for subsequent
reinforcement of Respondent’s position. It also is a memory
giving rise to a reputation about Respondent’s attitude that
would not likely be erased by traditional Board remedies, es-
pecially as Respondent has not reinstated three of the unlaw-
fully laid-off employees. In view of these considerations, I
conclude that the rights of employees, and their desires re-
flected by the majority’s execution of cards authorizing the
Union to service as their bargaining agent, will be better pro-
tected by issuance of a bargaining order.
Respondent, however, points out that it is unfair to impose
such a remedy in light of its high rate of employee turn-
over—according to Gary Cell, over two-thirds of employees
hired by Respondent do not remain employed by it—and in
view of two post-June 20 petitions signed by a substantial
number, perhaps a majority, of the two plants’ employees de-
claring, in effect, that they did not desire representation by
the Union absent an election. However, those petitions, cir-
culated approximately 2 months after Respondent’s employ-
ees had been subjected to serious unfair labor practices, were
signed in a lingering atmosphere of unremedied unlawful
conduct intended to coerce employees into abandoning sup-
port of the Union as their bargaining agent. In light of that
continuing atmosphere of unremedied unfair labor practices,
it comes as no surprise that employees would sign those peti-
tions. In those circumstances, their signatures on them can
hardly be accorded weight as evidence of the uncoerced de-
sires of Respondent’s employees concerning representation.
To accept Respondent’s turnover argument would be to
allow it to use its employees as footstools to straddle both
sides of the question of employees’ desires. That is, on the
one side, as concluded above, in April it manipulated those
desires by engaging in conduct designed to coerce the atti-
tudes of those employees against representation. Now it takes
the other side, displaying solicitude for employee desires and
arguing that, in fashioning a remedy of those unfair labor
practices, the Board should be concerned about those desires.
Of course, blind acceptance of that latter side has the effect
of enhancing Respondent’s ability to accomplish the very ob-
ject that, as concluded above, it set out to accomplish when
it engaged in unlawful conduct in April to coerce employees
into reversing the desire for representation displayed by a
majority of them.
In point of fact, turnover resulting from passage of time
is not the compelling analytical factor under the Act that is
now sought to be portrayed. A certification of representative,
resulting from employee choice of a bargaining agent in a
Board-conducted election, is not later revoked simply when-
ever turnover may result in an employee complement that
may not have voted for representation had it been the one
employed on the election date. Similarly, an employer is not
free to withdraw recognition, voluntarily granted earlier on
the basis of authorization cards signed by a majority of a
unit’s employees, simply because turnover has led to replace-
ment of most or all of the employees who had signed those
cards. Consequently, while turnover is not a completely
meaningless factor in every possible situation, ‘‘where an
employer engaged in conduct, disruptive of the election proc-
ess, cards may be the most effective—perhaps the only—way
of assuring employee choice.’’ NLRB v. Gissel Packing Co.,
395 U.S. 575, 602 (1969). Obviously, time will pass as an
inherent consequence of the litigation process needed to
reach such a determination regarding an employer’s conduct.
Yet, to allow turnover during that passage of time, standing
alone, to defeat ‘‘the most effective—perhaps the only—way
of assuring employee choice’’ would be to twice victimize
coerced employees: once when they were subjected to seri-
ous unfair labor practices and, later, when a once freely
made choice is disregarded simply because of the time need-
ed to determine that their employer had engaged in unlawful
conduct.
Here, as concluded above, Respondent committed the most
serious of unfair labor practices. One of the effects of their
commission is to create a reputation for Respondent as an
antiunion employer and as one perfectly willing to resort to
unlawful conduct in support of its antiunionism. That reputa-
tion, as is true of any other type of reputation, will likely re-
main with the community—in the instance, the Braham
worksite—in which it arose. That is, Respondent’s reputation
will likely linger in the memories of employees who remain
employed by Respondent after having been subjected to
those unfair labor practices. Further, it will become known
by, and part of the memory of, subsequently hired employ-
1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ees, given the normal course of human conduct in commu-
nicating previous workplace events to employees as they join
the employee complement of a particular employer. In these
circumstances, Respondent’s reputation, and the substantial
unlawful conduct that gave rise to it, will likely be perpet-
uated despite the occurrence of employee turnover, especially
as Respondent continues to be owned and supervised by the
same officials who authorized and committed those unlawful
actions. Therefore, neither the post-June 20 petitions nor the
turnover after April serve to eliminate the need for a bar-
gaining order to remedy the effects of Respondent’s unfair
labor practices and to assure employee free choice.
CONCLUSION OF LAW
Cell Agricultural Manufacturing Company has committed
unfair labor practices affecting commerce by laying off 31
employees on April 24, 1991, and by refusing to thereafter
reinstate 3 of them, in violation of Section 8(a)(3) and (1)
of the Act, and by granting wage increases to employees to
undermine employee support for representation, in violation
of Section 8(a)(1) of the Act. Those unfair labor practices are
so serious and substantial in character that the possibility of
erasing their effects through traditional remedies and of con-
ducting a fair election is slight, with the result that employee
sentiment regarding representation is better determined by re-
lying on authorization cards signed by a majority of assem-
bly plant employees and with the added result that employee
rights are better protected by issuance of a bargaining order
than solely by traditional remedies.
REMEDY
Having concluded that Cell Agricultural Manufacturing
Company engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist therefrom
and, further, that it be ordered to take certain affirmative ac-
tion to effectuate the policies of the Act. With respect to the
latter, it shall be ordered to offer to Scott Allen Witte, Gary
Hackler, and Alvin Thomas immediate and full reinstatement
to the positions from which they were laid off on April 24,
1991, dismissing, if necessary, anyone who may have been
hired or assigned to perform the work from which they were
laid off. If any of their positions no longer exists it shall be
ordered to reinstate Witte, Hackler, or Thomas to a substan-
tially equivalent position, without prejudice to seniority or
other rights and privileges. It shall also be ordered to make
whole all employees laid off on April 24, 1991, for any loss
of pay and benefits suffered because of that unlawful layoff,
with backpay to be computed on a quarterly basis, making
deduction for interim earnings, F. W. Woolworth Co., 90
NLRB 289 (1950), and with interest to be paid on the
amounts owing as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). In addition, for the reasons
set forth in subsection III,E, supra, Cell Agricultural Manu-
facturing Company shall be ordered to bargain with Sheet
Metal Workers International Association, Local 10, AFL–
CIO as the representative of employees in an appropriate bar-
gaining unit of all full-time and regular part-time production,
fabrication, and maintenance employees employed at Cell
Agricultural’s Braham, Minnesota assembly or main plaint;
excluding employees of the rubber plant, office clerical em-
ployees, guards and supervisors as defined in the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Cell Agricultural Manufacturing Com-
pany, Braham, Minnesota, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Laying off, discharging, or otherwise discriminating
against Donald E. Almlie, James W. Brown, Marlin Carlson,
James D. Drabant, Curtis L. Dunkley, Edward E. Dunkley,
Joseph Dunkley, Thomas O. Falls, Gene Goldbloom, John F.
Holmer, Steven C. Johnson, Roger Kunz, Ronald Lundeen,
Wallace Mayer, Frank Moore, Bruce Nelson, Troy D.
Paxton, Mark G. Porter, Gaylord Rennaker, Walter E. Rob-
bins, Russell E. Thomas, Todd J. Timm, Edward
Vanderheyden, Joseph M. Wolf Jr., Dan Thomas, Michael
Ovsak, Alvin Thomas, Kenny Johnson, Jim Simon, Gary
Hackler, and Scott Allen Witte because of union activity.
(b) Granting wage increases to employees to discourage
them from engaging in union or other activity protected by
the National Labor Relations Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with
Sheet Metal Workers International Association, Local 10,
AFL–CIO as the bargaining agent for the employees in the
appropriate bargaining unit described below, and embody any
agreement reached in a written contract. The appropriate bar-
gaining unit is:
All full-time and regular part-time production, fabrica-
tion and maintenance employees employed at the as-
sembly or main plant of Cell Agricultural Manufac-
turing Company in Braham, Minnesota; excluding em-
ployees of the rubber plant, office clerical employees,
guards and supervisors as defined in the Act.
(b) Offer Scott Allen Witte, Gary Hackler, and Alvin
Thomas immediate and full reinstatement to the positions
from which they were laid off on April 24, 1991, or, if any
of their positions no longer exists, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make whole Witte, Hackler, Thomas,
Donald E. Almlie, James W. Brown, Marlin Carlson, James
D. Drabant, Curtis L. Dunkley, Edward E. Dunkley, Joseph
Dunkley, Thomas O. Falls, Gene Goldbloom, John F.
Holmer, Steven C. Johnson, Roger Kunz, Ronald Lundeen,
Wallace Mayer, Frank Moore, Bruce Nelson, Troy D.
Paxton, Mark G. Porter, Gaylord Rennaker, Walter E. Rob-
bins, Russell E. Thomas, Todd J. Timm, Edward
Vanderheyden, Joseph M. Wolf Jr., Dan Thomas, Michael
Ovsak, Kenny Johnson, and Jim Simon for any loss of pay
and benefits they may have suffered as a result of their un-
1241CELL AGRICULTURAL MFG. CO.
3 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
lawfully motivated layoffs on April 24, 1991, in the manner
set forth above in the remedy section of this decision.
(c) Preserve and make available to the Board or its agents,
for examination and copying, all payroll and other records
necessary to compute the backpay and reinstatement rights as
set forth in the remedy section of this decision.
(d) Post at its Braham, Minnesota facility copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the notice on
forms provided by the Regional Director for Region 18, after
being signed by Respondent’s authorized representative, shall
be posted by Cell Agricultural Manufacturing Company im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that those notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps it has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT lay off, discharge, or otherwise discriminate
against Donald E. Almlie, James W. Brown, Marlin Carlson,
James D. Drabant, Curtis L. Dunkley, Edward E. Dunkley,
Joseph Dunkley, Thomas O. Falls, Gene Goldbloom, John F.
Holmer, Steven C. Johnson, Roger Kunz, Ronald Lundeen,
Wallace Mayer, Frank Moore, Bruce Nelson, Troy D.
Paxton, Mark G. Porter, Gaylord Rennaker, Walter E. Rob-
bins, Russell E. Thomas, Todd J. Timm, Edward
Vanderheyden, Joseph M. Wolf Jr., Dan Thomas, Michael
Ovsak, Alvin Thomas, Kenny Johnson, Jim Simon, Gary
Hackler, and Scott Allen Witte because of union activity.
WE WILL NOT grant wage increases to employees to dis-
courage them from engaging in activity on behalf of Sheet
Metal Workers International Association, Local 10, AFL–
CIO or any other labor organization, nor from engaging in
any other activity protected by the National Labor Relations
Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good faith
with Sheet Metal Workers International Association, Local
10, AFL–CIO as the bargaining agent for our employees in
the appropriate bargaining unit described below, and embody
any agreement reached in a written contract. The appropriate
bargaining unit is:
All full-time and regular part-time production, fabrica-
tion and maintenance employees employed at the as-
sembly or main plant of Cell Agricultural Manufac-
turing Company in Braham, Minnesota; excluding em-
ployees of the rubber plant, office clerical employees,
guards and supervisors as defined in the Act.
WE WILL offer to Scott Allen Witte, Gary Hackler, and
Alvin Thomas immediate and full reinstatement to the posi-
tions from which they were laid off on April 24, 1991, dis-
missing, if necessary, anyone who may have been hired or
assigned to perform the work which they had been per-
forming prior to April 24, 1991, or, if any of their positions
no longer exist, to a substantially equivalent position, without
prejudice to their seniority or other rights and privileges, and
WE WILL make whole Witte, Hackler, Thomas, Donald E.
Almlie, James W. Brown, Marlin Carlson, James D. Drabant,
Curtis L. Dunkley, Edward E. Dunkley, Joseph Dunkley,
Thomas O. Falls, Gene Goldbloom, John F. Holmer, Steven
C. Johnson, Roger Kunz, Ronald Lundeen, Wallace Mayer,
Frank Moore, Bruce Nelson, Troy D. Paxton, Mark G. Por-
ter, Gaylord Rennaker, Walter E. Robbins, Russell E. Thom-
as, Todd J. Timm, Edward Vanderheyden, Joseph M. Wolf
Jr., Dan Thomas, Michael Ovsak, Kenny Johnson, and Jim
Simon for any loss of pay and benefits they may have suf-
fered as a result of their unlawfully motivated layoffs on
April 24, 1991, with interest on the amounts owing.
CELL AGRICULTURAL MANUFACTURING COMPANY