General Battery Corp.

National Labor Relations Board - Board Decisions

Oct 3, 1975

220 N.L.R.B. 1078 (N.L.R.B. 1975)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Battery Corporation and International Union,
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW. Case
15-CA-5379
October 3, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 16, 1975, Administrative Law Judge Eu-
gene E. Dixon issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge, for
the reasons stated by him, that Respondent violated
Section 8(a)(1) of the Act by threatening employees
with loss of benefits and economic reprisals because
of their union membership and activities and by poll-
ing employees on their union feelings , activities, and
sympathies. However, we do not agree with the Ad-
ministrative Law Judge's further conclusions that the
plant shutdown on July 26, 1974, and consequent
layoff of employees and failure to recall some of
them violated Section 8(a)(3) of the Act.
Respondent owns and operates lead smelting facil-
ities in Reading, Pennsylvania; Dallas, Texas; and
Heflin, Louisiana. Prior to Respondent's acquisition
of the Heflin plant, Vice President William Murdock
visited the facility in late 1973, and subsequently rec-
ommended against the proposed purchase because
he felt that too much capital would be required to
develop the plant into a profitable operation. Despite
Murdock's adverse recommendation, Respondent
purchased the Heflin plant in February 1974 2 and
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judges resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings
2 All dates hereinafter are in 1974 unless otherwise indicated.
operated it under the existing management.
Murdock did not visit Heflin again until July 22,
the same day the Union conducted its first organiz-
ing meeting with the employees. In the course of that
visit Murdock, who had just been assigned responsi-
bility for the Heflin operation, observed that the
grounds were littered with large quantities of scrap,
that most of the equipment was not in sound operat-
ing condition, and that the restrooms and employee
eating facilities and washup area were filthy and in-
adequate. Murdock left Heflin on the evening of July
22, having concluded that the facility there was los-
ing money and that in order to make it profitable
and safe a temporary shutdown was required. Ac-
cordingly, after discussions with Respondent's vice
presidents of manufacturing services and industrial
relations , Respondent's vice president in chief, and
an expert in secondary lead smelting , Murdock re-
turned to Heflin on July 26 and told the employees in
a group meeting that the plant was going to be tem-
porarily closed immediately in order to give Respon-
dent an opportunity to begin working on much need-
ed improvements. After a 1-week layoff, production
was resumed and by the time of the hearing herein
the majority of the 38 production and maintenance
employees had been recalled to work.
The Administrative Law Judge concluded that the
temporary shutdown and subsequent failure to recall
some employees were motivated by antiunion con-
siderations, relying on his findings that (1)
Respondent's union animus was shown by Supervi-
sor Turner's threats to employees on July 24 that the
advent of the Union could result in loss of benefits
and economic reprisals and by Murdock's request at
the July 26 meeting that employees indicate their
trust in the Company by raising their hands; (2) Re-
spondent failed to corroborate Murdock's testimony
that he knew the Heflin plant was losing money and
that a temporary shutdown was therefore imperative
by introducing into evidence pertinent business rec-
ords; (3) Respondent did not establish that the im-
provements in conditions at the plant accomplished
during the period of the shutdown had any direct
connection with production or profit; (4) Respon-
dent did not adequately explain why it became im-
perative to begin improvements simultaneously with
commencement of the union campaign; and (5) Re-
spondent failed to show why a layoff was necessary
in order to effectuate the changes accomplished dur-
ing the shutdown.
Contrary to the Administrative Law Judge, these
factors do not establish a prima facie case, and we
conclude that the General Counsel has failed to sus-
tain his burden of proving that the shutdown was not
220 NLRB No. 164
GENERAL BATTERY CORPORATION
motivated by lawful business considerations. The
Administrative Law Judge's rationale is based sub-
stantially on the Respondent's failure to supply in-
formation, thus shifting the burden of proof to the
Respondent.3 However, the record clearly establishes
that working conditions at the time of the closing
were deplorable, as is shown by Murdock's uncon-
troverted testimony and by the photographs intro-
duced into evidence by Respondent, and that sub-
stantial improvements were achieved during the
period the facility was closed. The Respondent as-
serted , and it is not denied, that in this industry the
improvements in employee facilities , such as show-
ers, were essential rather than merely convenient. We
can fairly infer that these changes did indeed con-
tribute to increased production by diminishing the
existing health and safety hazards at the plant 4 and,
at least indirectly, by improving the employees'
working environment . We note that the General
Counsel failed to introduce any evidence contrary to
Murdock's testimony that it would have been impos-
sible to begin the improvements had the plant been
in regular production. And, significantly, Murdock
had been dissatisfied with the plant's condition from
the beginning . Finally, there is no substantial basis to
support the inference that the closing was motivated
by the union activity, and the Administrative Law
Judge's conclusions are grounded in conjecture.
Thus, the two violations of Section 8(a)(1) found
herein do not require that we find the temporary
shutdown violative of Section 8(a)(3). It is well set-
tled that even though an employer evidences hostility
towards a union and commits other unfair labor
practices such facts do not by themselves establish a
discriminatory motive for a plant closure.5 In this
case the two 8(a)(1) violations committed by Respon-
dent were relatively minor and do not, in our view,
give rise to an inference that Respondent's opposi-
tion to the Union was of such a virulent nature that it
resorted to the extreme measure of temporarily clos-
ing the Heflin plant because of hostility towards the
Union rather than for legitimate business consider-
ations.
Finally, we note that the General Counsel adduced
3 Although the decision to close the plant coincided with the Union's
organizational campaign , in the light of all the circumstances, neither this
fact nor Respondent 's failure to produce business records to support
Murdock 's testimony that the Heflin facility was losing money justifies an
inference that the closing was discriminatorily motivated . See Roman
Cleanser Company, 188 NLRB 931 (1971).
4 The Administrative Law Judge apparently found it unlikely that the
plant began to show an improved financial position immediately after the
shutdown, as Respondent contended. We note, however , that Murdock tes-
tified without contradiction that this improved position was caused by the
fact that at that time Respondent had very few employees on the payroll.
s Plymouth Industries, Inc., 177 NLRB 607 (1969), enfd . 435 F.2d 558
(C.A. 6, 1970).
1079
no evidence in support of the complaint' s allegation
that after the shutdown certain employees were not
recalled to work for discriminatory reasons. Accord-
ingly, we shall dismiss this allegation of the com-
plaint.
We therefore conclude on the basis of all the fore-
going that it has not been established that by laying
off employees on July 26 and failing to recall some of
them Respondent violated Section 8(a)(3) and (1),
and, therefore, we shall dismiss these allegations of
the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Battery Corporation, Heflin, Louisiana, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Illegally polling its employees on their union
feelings, activities, sympathies, desires and/or beliefs.
(b) Threatening employees with loss of benefits
and economic reprisals because of their union mem-
bership and activities.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights of self-organization, to form, join, or
assist International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Heflin, Louisi-
ana, copies of the attached notice marked "Appen-
dix." 6 ' Copies of said notice, on forms provided by
the Regional Director for Region 15, after being duly
signed by an authorized representative of Respon-
dent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 15, in
6 In the event that thi's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair la-
bor practices not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT illegally poll our employees on
their union feelings , activities , sympathies, de-
sires and/or beliefs.
WE WILL NOT threaten employees with loss of
benefits and economic reprisals because of their
union membership and activities.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of their rights of self-organiza-
tion , to form, join , or assist International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, or any
other labor organization , to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such
activities.
GENERAL BATTERY CORPORATION
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This pro-
ceeding, brought under Section 10 (b) of the National La-
bor Relations Act, as amended (61 Stat . 136), herein called
the Act, was heard at Minden, Louisiana, on February 20
and 21, 1975. The complaint, dated November 20, 1974,
was based on duly served charges filed by International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, on August 5, 1974,
and was issued by the Regional Director for Region 15
(New Orleans , Louisiana) of the National Labor Relations
Board on behalf of its General Counsel , herein called the
Board and the General Counsel.
The complaint alleges that Respondent had engaged in
and was engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act by certain specified con-
duct including the closing of its plant and laying off its
employees for various periods because of their membership
in and activities on behalf of the Union and to discourage
the Union and other concerted activities of its employees.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a New York corporation with offices lo-
cated at Heflin , Louisiana , where it is engaged in the busi-
ness of lead smeltering. During the year preceding issuance
of the complaint , which is a representative period , Respon-
dent, in the course and conduct of its business described
above, sold and shipped products valued in excess of
$50,000 directly to points located outside the State of Loui-
siana . At all times material Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
at all times material has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Setting and Issue
Respondent owns and operates secondary lead smelting
facilities in Reading , Pennsylvania ("renowned worldwide
as the finest secondary lead smelter in existence" according
to Respondent), Dallas, Texas, and Heflin, Louisiana. The
latter facility was purchased by Respondent in February
1974. In late July 1974 the Union commenced an organiz-
ing campaign at the Heflin facility. Two or three days after
Respondent became aware of the union activities of its em-
ployees it abruptly closed its plant without notice announc-
ing to the employees that there would he an indefinite lay-
off beginning immediately.'
The General Counsel contends that Respondent closed
the Heflin plant and laid off its employees because of their
membership in and activities on behalf of the Union and/
or to discourage union and other concerted activities of its
employees , and that Respondent 's precipitous action was
motivated by its union animus . Respondent denied any
wrongdoing and claims that the layoff was motivated sole-
ly by economic considerations.
Union Activity
On the afternoon of July 22, 1974, Union Respresenta-
tive Lynn Bonner contacted approximately 8 to 10 employ-
ees of Respondent on the question of union representation.
On the afternoon of the next day Bonner held a general
organizing meeting with approximately 30 employees of
Not all of the employees were laid off at this time . A few maintenance
and security people were kept on.
GENERAL BATTERY CORPORATION 1081
Respondent in the yard of one of the employees located
"right in the middle of Heflin." Union authorization cards
were signed by a large number of the employees on both
July 22 and July 23.
On July 25, 1974, the Union mailed a letter to Respon-
dent stating that it represented a majority of its employees
and requesting that Respondent recognize it as a collective-
bargaining representative of its employees . The Union also
filed a representation petition with the Board's office in
New Orleans on the same day.
Interference , Restraint , and Coercion
On Wednesday, July 24, around 2 p .m. Maintenance Su-
pervisor Bill Turner gathered approximately 10 to 15 shop
employees together and spoke to them about the union
organizing campaign . Louis P. Moore testified credibly 2
that Turner told the employees that he heard they were
organizing a union . Turner then said Respondent was pay-
ing the employees a good salary and it was a mighty poor
time for a union . According to Moore , Turner told the
employees that if they organized the Union the benefits
they were receiving, such as shoes , gloves , safety glasses,
and production bonus, would be cut off and Respondent
would tell them what they needed and they would have to
purchase these items at the general store . Moore further
testified that during this conversation Turner told the em-
ployees that it was a "mighty poor time to be rocking the
boat." Moore asked Turner what he meant if the employ-
ees organized a union "would the plant close down or
would it run." Turner answered that he wouldn't state one
way or the other but that it was a mighty poor time to be
rocking the boat . Moore 's testimony was substantially cor-
roborated by three other witnesses called by the General
Counsel.
J. C. Jones, office and personnel manager of the Heflin
plant , testified that on learning about the union organizing
campaign on the morning of Wednesday , July 24, he called
all of the supervisors to his office , told them about the
union campaign , and instructed them as to what they could
and could not do during the campaign . Jones stated that he
told the supervisors they could not threaten the employees,
that if they talked to an employee about his union activities
it was to be strictly in a "conversational manner," and that
they could not pull an employee off the job and begin
harassing or talking to him about his union activities.
Jones further testified that later on he learned from
Turner that he had held a meeting with the employees who
worked for him and told them they could lose some of their
benefits they were enjoying if a union came in. Notwith-
standing this information (and Jones ' knowledgeable previ-
ous instructions to the supervisors 3) he apparently made
no attempt to retract or nullify Turner's coercive remarks
which I find violated Section 8(a)(1) of the Act by threat-
ening employees with loss of benefits and economic repri-
sals. Beyerl Chevrolet, Inc., 199 NLRB 120 (1972); Missouri
Beef Packers, Inc., 197 NLRB 176 (1972); N.L. R.B. v. Ex-
change Parts Company, 375 U.S. 405 (1964).
In the late afternoon of July 26 the employees were
called together, by Corporate Vice President William D.
Murdock. About this meeting employee Lawrence Brown
testified at the call of the General Counsel as follows:
He came in and talked to us about the conditions
that we was working in about the reverb, bag houses,
the shower facility and other things that were there
like the commodes and stuff like that and then he said
about the place it was a nasty place, it was muddy and
said he was thinking about doing some repairs, you
know, making it nice and clean where you wouldn't
have to be all in the mud. Then he'd say about the bag
houses and he was going to have some more installed
and about building a change house in other words,
you know the working conditions would be better.
... he said that it appears to me that some of you all
trusted Mr. Bassett (the former owner) but you all
don't trust us and he said will everyone that trust us
raise your hand which everybody did and he asked
everybody that don't trust us to raise your hand which
didn't anyone raise their hands and I don't know
shortly after that he got a telephone call and he went
and (took) care of that and he come back and he told
us . . . that it would be a lay-off. One of the guys
asked him when the lay-off would come in effect and
he said right now and he also asked him would they
call us back by seniority and he said there is no senior-
ity and he said Mr. Robinson would call back the best
men, the men he wanted to and it was just left up to
him.
That Murdock asked for a showing of hands regarding
the employees' trust was corroborated in Moore' s testimo-
ny.
In his direct testimony Murdock was asked if he had
said "anything at all about trust of employees for the Com-
pany" and he made a rambling answer that in effect con-
firmed that such subject had been mentioned. But he de-
nied asking for a show of hands on the. matter. On
cross-examination when asked if he had told the employees
he had heard they trusted Bassett but not Respondent, he
answered in the negative. I credit the General Counsel's
witnesses and agree with the General Counsel that
Murdock's requesting a show of hands of all employees
who trusted Respondent was a subtle attempt _by Respon-
dent to poll the union sentiments and/or feelings of its
employees and that the manner in. which such action was
taken violated Section 8(a)(1) of, the Act. The Lorben Cor-
poration, 146 NLRB 1507 (1964); Struksnes Construction
Co., Inc., 165 NLRB 1062 (1967).
Discrimination
2 Moore's testimony was undenied ; Turner did not testify.
3 Jones testified that no one had directed him to give such instructions,
that he had "prior knowledge of how to handle union activities."
Within a week after the layoff, production was resumed.
Within 2 weeks a substantial number of the 38 production
and maintenance employees had been recalled. By the time
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing the majority had been recalled .4 About the
layoff and its genesis Murdock testified as follows:
Prior to the purchase of the Heflin facility, Murdock had
visited the location as a member of a review panel in late
November or early December 1973. After the visit, Mur-
dock recommended strongly that Respondent not purchase
the Heflin facility because he felt that the expense involved
to develop Heflin into a first class profit making operation
was too great . Nonetheless, as noted, on February 27, 1974,
over the objections of Murdock, Respondent purchased
the facility and continued to operate it with the same man-
agement that existed prior to the purchase . Although there
was no change in the operation or management at Heflin,
Respondent's vice president of purchasing , Restrepo, was
assigned overall corporate responsibility for the operation.
From the date of the purchase until July 22, 1974, Restrepo
visited the Heflin facility on two occasions, once on March
25 and once again in May.
After his visit in late 1973, Murdock did not visit the
Heflin facility again until July 22, 1974, when he was as-
signed responsibility for the operation of the facility. As of
this time Murdock was also responsible for the operation
of the Dallas and Reading facilities. Upon his arrival in
Heflin, on July 22, Murdock inspected the operation and
observed that the conditions were deplorable. There was
scrap all over the premises-huge mounds of battery cases,
old junk batteries lying around, tons of tetra-ethyl residue,
tons of flue dust , inoperable mobile equipment , the reverb-
eratory furnace was in bad condition, the rotary kiln was
an integrated operation and was presenting problems, eat-
ing facilities consisted of a table in a corner of the mainte-
nance shed in a dirty area, the washup area was filthy, the
restroom facilities were filthy, there were virtually no show-
er facilities , and the water heater was not large enough.
The only good things Murdock found at the Heflin opera-
tion were the truck scales , the office building, and one lift-
truck in reasonable condition.
After his tour Murdock directed Office Manager and
Personnel Director Jones to prepare a status report of the
mobile equipment on the premises . Jones' report showed
that two forklifts were operating , a new motor was down,
the front-end loader was in the shop for repairs and an old
front-end loader which they were using was smoking badly.
With the exceptions of one forklift which was relatively
new, Murdock observed that all other mobile equipment
was in either poor condition or inoperable.
According to Murdock although the conditions were not
the best in late 1973 when he visited the operation as part
of the review panel (claiming that at that time he did not
get into every "nook and cranny" as he did when assigned
responsibility for the overall operation of the facility), con-
ditions had deteriorated drastically since that time. After
the July 22 tour of the facility Murdock was personally
frustrated and realized that these conditions could not be
allowed to continue. Although he had not had the opportu-
nity to review the Company's books, such review was not
e The complaint as amended at the hearing listed 18 as having been called
back at the time of the hearing and 10 still out . The answer admitted that all
28 were laid off, but claimed that 3 of those alleged to be still out had been
recalled.
necessary for him to know that the Company was losing
money at the Heflin facility. Being confronted with the
situation as it existed and realizing that it was his responsi-
bility to make the operation profitable and safe, on July 22,
Murdock had discussions concerning the facility with his
counterparts in Reading , Vice President of Manufacturing
Services Bitter and one Pike, an expert in the operation of
secondary lead smelters . After these discussions , Bitter im-
mediately began work drawing up plans for a lunchroom
and locker room facility.
On the evening of July 22 Murdock left Heflin and pro-
ceeded to the Dallas smelter. Notwithstanding that Re-
spondent had problems in Dallas, Murdock "was most
concerned with the Heflin operation." So he called Vice
President of Industrial Relations Sachetta regarding the
Heflin employees. This call Murdock claims he made on
July 23. He also talked with Vice President-in-Chief Mas-
tromarino. According to Murdock his reason for talking to
the two was that it was his intention to make recommenda-
tions to temporarily close the Heflin facility.
Murdock returned to Heflin on July 26 for the purpose
of advising the local management personnel and employ-
ees of his decision. With the exception of Plant Superinten-
dent Robinson who was advised of the closing just prior to
the meeting, no other employees or local management per-
sonnel were aware of the impending shutdown until it was
announced to the assembled group.
During this meeting Murdock reviewed the conditions
existing at the facility , the condition of the equipment, and
expressed his opinion that the operation was and always
had been losing money . Besides reviewing the parent Com-
pany and its history he traced the history of the estab-
lishment of the Heflin operation and gave them some in-
sight into his thoughts regarding the potential of the
operation which he felt was excellent. He told the employ-
ees that he thought the work force in Heflin was excellent,
the labor market was good, and the availability of energy
was probably as good or better in Heflin than in any other
location he knew of in the country.
In announcing the temporary closing Murdock told the
assembled group that the reason for the closing was to get
started on improvements that had been discussed with
them earlier and particularly mentioned wanting to do
something about the restroom facilities , cleaning up the
area, and getting rid of the lead bearing dusty material.
After Murdock finished his remarks he asked if there were
any questions and those employees who had any questions
raised their hands and were recognized. Among other ques-
tions, Murdock was asked how long the layoff would be
and what they should tell the unemployment officials. He
replied that the layoff was "indefinite and temporary" and
that they should so advise the unemployment officials.
Personnel Manager Jones testified about the improve-
ments that were made after the shut-down but did not
specify how long after the shutdown or to what extent they
were accomplished after operations resumed . In this con-
nection he testified that Respondent began construction of
a laboratory in the maintenance shop; tore down the old
restrooms ; started selling scrap ; discontinued use of a high
speed saw and switched to a low speed saw and stopped
using the classifier ; cleaned up batteries around the area;
GENERAL BATTERY CORPORATION
poured some concrete for the smelter; built a new agitator;
built a temporary change house and then a new change
house and cafeteria; built a sewer lagoon ; started construc-
tion of a new bag house just a week before the hearing; and
had two forklifts renovated, acquired two new ones, and
had a front-end loader overhauled.
According to Jones, at the time of the shutdown Respon-
dent had about two million pounds of flu dust on the
premises and "the big thing was the flu dust. " They had
"to figure out what we were going to do with the flu dust
and how we were going to do it ..." 5 Jones also testified
that prior to the shutdown it took 18.4 man hours or $65.19
to produce a ton 6 and after the shutdown it took 14 man
hours and $54.92 to produce a ton.
Conclusions
Respondent 's defense is not convincing . Respondent
makes claims of a general nature totally lacking in explana-
tory detail . For instance , there is no explanation how an
accumulation of scrap and flu dust impeded operations, in
what respect the reverberatory furnace was in bad condi-
tion, or how the rotary kiln was presenting a problem.
While Murdock claimed he knew the operation was losing
money without looking at the books , no attempt was made
by Respondent to support this oral claim by corroborating
business records . The general rule that an adverse infer-
ence can be drawn from such failure to corroborate is
strengthened here where Respondent did see fit to attempt
to support oral evidence by the submission of some twenty-
eight 8-by-10 photographs 7 purporting to depict before
and after sequences of the operating conditions.
Apart from showing that some cleanup took place the
main significance of these pictures was to show the spec-
tacular improvement that occurred with respect to toilet
facilities , eating facilities , and locker and shower facilities
of the employees-none of which would have had any di-
rect connection with production or profits. As for the testi-
mony about the equipment problems, there was no attempt
to explain how, if the equipment was such a disaster at the
time of the shutdown , Respondent nonetheless at that
point managed to operate four shifts around the clock.
Among the many other questions raised by Re-
spondent 's evidence are the following:
1. If the facility was in such awful shape as to have moti-
vated Murdock's original opposition to its acquisition, why
was it operated in that condition for some 5 months and
only at the advent of the Union became an emergency
situation requiring change?
2. How does one reconcile Murdock's glowing praise of
the prospects prevailing at Heflin to the employees on July
26 and his dismal appraisal of the facility as of July 22 not
to mention his negative attitude toward its acquisition?
s From the foregoing one might get the impression that flu dust was some
kind of waste material that Respondent was concerned about. Not so. It
appears to be a basic component of Respondent's production process and is
acquired by purchase , manufactured at Heflin but "shipped ... from the
Dallas plant primarily." One obvious solution of course would have been to
cut off shipments from Dallas.
6 He didn 't say of what.
r The only documentary evidence offered by Respondent in the case.
1083
3. What actually was done in the few days that the facil-
ity was shut down that increased efficiency enough to turn
it around from a money losing proposition to a profitable
operation? 8
4. On fmding production facilities in such bad shape on
his July 22 visit that Murdock felt it necessary to confer
with, his counterparts, Biller and Pike, in Reading about
them, how come the only reported result was the drawing
of plans for lunchroom and locker room facilities? In what
way could such facilities be considered production facili-
ties and such plans have any direct connection with pro-
duction and profits?
5. Why was it that on July 23 at Dallas (where
Respondent's problems included having been cited by vari-
ous Federal and local authorities for environmental viola-
tions) 9 Murdock still "was most concerned with the Heflin
operation?" So much so that he again called Reading-this
time talking to Vice President of Industrial Relations Sa-
chetta and the chief executive officers. Why wasn't the
matter covered in his July 22 call to Reading? What came
to his attention after the Heflin visit of July 22 to require
another call to Reading? And what problem of Murdock's
would the vice president of industrial relations be interest-
ed in? Health and Safety? But that subject must have been
covered the day before when the plans were instituted for
locker and shower facilities, and even then Sachetta wasn't
called upon for counsel.
All the foregoing considered in the light of the timing
and the manner of the layoff and of Respondent's union
animus as demonstrated by its interference with the em-
ployees rights under the Act convince me that regardless
what if any necessity there was to layoff anyone on July 26
(and patently there was no showing that any layoff was
necessary to accomplish what the record shows was accom-
plished), the dominent motivation of Respondent was to
chill and undercut the employees' enthusiasm for union
representation and discourage union membership in viola-
tion of Section 8(a)(3) of the Act. I so find.
In this connection I do not accept Murdock's claim that
he made his second call to Reading on July 23.10 I believe
it was made later. And even if it was made on July 23 the
overall circumstances here permit the inference that it was
made after Murdock had learned of the union effort at
Heflin.U The fact that this second call went to the top man
on labor relations in Reading strengthens the conclusion
that the call had to do with the union effort of the employ-
ees.
CONCLUSIONS OF LAW
1. General Battery Corporation is an employer engaged
in commerce within the meaning of Section 2(2) and (6) of
the Act.
B Murdock testified that the facility made money from the time it resumed
operating.
9 No such violations had been cited at Heflin.
10 Cf. Newport Division of Wintex Knitting Mills, inc., 216 NLRB No. 172
(1975).
11 That effort began with the Union contacting some 8 to 10 employees
on July 22 and with an afternoon meeting in the center of Heflin on July 23,
all in plenty of time for Murdock to get the message and to call Reading on
July 23.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By shutting down its operation on July 26, 1974, and
laying off its production workers (and by failing to rein-
state some of them ) Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(aX3) of the Act.
4. By threatening employees with loss of benefits and
economic reprisals because of their union membership and
activities and by polling employees on their union feelings,
activities, sympathies, desires , and/or beliefs, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices it will be recom-
mended that it cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of the
Act.
Having found that on July 26, 1974, Respondent laid off
the employees listed below and failed and refused to rein-
state some of them , it will be recommended that Respon-
dent offer those still laid off immediate and full reinstate-
ment to their former or substantially equivalent positions
without prejudice to their seniority or other rights and priv-
ileges and make them , as well as all the others , whole for
any loss of earnings they may have suffered as a result of
such discrimination. Any backpay due is to be determined
in accordance with the formula set forth in F. W. Wool-
worth Company, 98 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
J. D. Allums
Arnor L. Ary
Harry D. Ary
Chester Brown
Lawrence J. Brown
Clyde Davis
Milton Jackson
Ralph D. Jones
Artis Kinsey
Samuel Law
R. M. Lindsey
Rodie Poland
Bill Pritchard
F. B. Rhone
Nittie Solomon
Willie Solomon, Jr.
G. F. Thornton
Dan Walker
Jackie Boyce
Lewis Brown
H. B. Collins
H. C. Collins
J. E. Henderson
Charles Jackson
W. J. King
L. P. Moore
Lucky Rambo
L. E. Simpson
[Recommended Order omitted from publication.]