Marlan Lewis, Inc

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 432 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marlan Lewis Designs, Division of Marlan Lewis,
Inc. and UBC Texas Council of Industrial
Workers, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases 16-CA-
8997 and 16-CA-9429
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 17 April 1981 Administrative Law Judge
David L. Evans issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, the Respondent filed a
motion to supplement the record, and the General
Counsel filed an opposition thereto.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order. 2
The judge found a violation of Section 8(a)(1) of
the Act in Supervisor Moss' comment to employee
Linda Downs that he had heard the Respondent's
chairman of the board Marlan Lewis state that he
would never allow a union in his Company. We
find merit in the Respondent's exception to the
judge's conclusion. The surrounding circumstances
were not coercive. Employee Downs initiated the
conversation by asking Moss, a low-level supervi-
sor, to sign an authorization card for the Union.
Moss indicated that he was not sure whether he
would sign, adding that he had heard Marlan
Lewis make the above statement about "a union."
Moss' comment was casual and offhand. His re-
sponse to Downs' request was not hostile, but left
open the possibility that he would sign a card for
the Union. The statement Moss attributed to Lewis
was not linked to the current campaign for the
Union. That campaign had just begun and there is
no evidence that the Respondent had any prior
knowledge of it when Downs initiated the conver-
sation with Supervisor Moss. In these circum-
stances, we find that Moss' comment did not vio-
l The Respondent's motion to supplement the record is denied as there
is no evidence to show that the proffered material is newly discovered or
was previously unavailable. Rather, it appears that the material was in
the possession of the Respondent at the time of hearing before the judge.
The Respondent's request for oral argument is denied as the record and
the briefs of the parties adequately present the issues.
2 The Respondent alleges bias and prejudice on the part of the judge.
We have carefully examined the entire record in this case and find no
basis for finding bias on the part of the judge.
270 NLRB No. 80
late Section 8(a)(l) of the Act and we shall dismiss
that allegation of the complaint.3
We also reverse the judge's conclusion that the
Respondent's January extension of the admittedly
lawful Christmas layoff violated Section 8(a)(3) and
(1) of the Act. In the absence of any contempora-
neous evidence of union animus, we find that the
General Counsel failed to establish a prima facie
case of unlawful discrimination at that time. For
the reasons stated above, we find that Supervisor
Moss' comment to Downs in December 1979 did
not establish union animus. Nor did the Respond-
ent's subsequent conduct in February 1980, dis-
cussed more fully below, establish union animus for
the Respondent's extension of the layoff in January
1980. We also find that the judge erred in discredit-
ing the Respondent's showing of economic justifi-
cation for the January extension of the layoff and
in drawing one adverse inference from the Re-
spondent's failure to proffer documentary corrobo-
ration for certain testimony of Marlan Lewis and
another adverse inference from Lewis' failure to
name or produce the accountant absent any con-
trary evidence or any other basis for discrediting
that testimony. See Stone & Webster Engineering
Corp. v. NLRB, 536 F.2d 461, 466 (lst Cir. 1976).4
Moreover, based on this finding, we would con-
clude that the Respondent sufficiently established
that the extension was motivated by economic,
rather than discriminatory, considerations even
absent our reversal of the judge's finding that
Moss' comments violated Section 8(a)(l) of the
Act. 5
3 Member Zimmerman would find the violation. Moss was a supervi-
sor and Downs had no reason not to accept what he said as fact. Regard-
less of the casual nature of the conversation between Downs and Moss,
the latter's remark about what he heard the chairman of the board say
clearly communicated that Lewis would never permit a union to repre-
sent his employees, thereby implying that Lewis would take whatever
steps were necessary to keep a union out. Consequently, Moss' statement
concerning Lewis' opposition to unionism was, as found by the judge, co-
ercive in nature, notwithstanding that Moss' own conduct was not.
4 With regard to Lewis' failure to name the accountant, we note that
he was not asked to do so by any party.
The Respondent's motion to strike that portion of the judge's decision
in which he drew an adverse inference is denied.
5 Member Zimmerman finds no reason to reverse the judge's discredit-
ing of the Respondent's economic defense, noting, as did the judge, that
the Respondent not only failed to produce any documentary evidence to
support it, but failed to name or present the accountant who purportedly
discovered the inventory error which had led him to misstate earnings by
5113,000 for the year. Member Zimmerman notes that, even under the
revised earnings figure, the Respondent showed a profit. He also notes
that notice of the January layoff extension came within a week of the
Union's written claim to be the employees' bargaining representative.
Thus, he would affirm the judge's rejection of the Respondent's reasons
for extending the layoff beyond 14 January and would adopt the judge's
finding that the extension violated Sec. 8 (a)(3) and (1) of the Act. That
finding is supported by the timing of the extension, the lack of a credible
defense, the union animus shown in Moss' comment to Downs about
Lewis' aversion to unionization of the Respondent, and the subsequent
unlawful conduct of the Respondent in not recalling employees to avail-
able jobs after 25 February 1980, as found infra.
432
MARLAN LEWIS, INC.
We find that the General Counsel established un-
lawful discrimination toward laid-off employees as
of 25 February 1980. On that date the Respondent
advertised in the newspaper for assemblers and ma-
chine operators rather than recalling laid-off em-
ployees to those positions. The Respondent's expla-
nation that it wanted employees with machine op-
erating experience is belied by the statement in the
Respondent's advertisement that "[d]ependability
and a willingness to work are more important than
experience." Moreover, the credited evidence es-
tablishes contemporaneous management statements
of intent to discriminate against union supporters in
connection with the February job openings.6 Ac-
cordingly, we affirm the judge's finding that the
Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily failing to recall laid-off em-
ployees to available jobs on and after 25 February
1980.
Finally, we reverse the judge's conclusion that
the General Counsel failed to establish that the Re-
spondent's refusal to promote employee Carolyn
Davis to a lattice machine operator's job violated
Section 8(a)(1) and (3) of the Act. As the judge
noted, the Respondent knew of Davis' extensive
union and concerted activities following her recall
from layoff. On 6 October 1980 General Manager
Ewell and Plant Production Manager Dcnaldson
told Davis that employee Greg McGovern had
been selected for the machine operator's job over
her. In that same interview Ewell and Donaldson
gave Davis both explicit and veiled warnings about
her concerted and union activities and laid down
an overly broad no-solicitation/no-distribution
rule.7 The judge rejected as "incredible" manage-
ment's testimony concerning supposed deficiencies
in Davis' performance on the lattice machine that
allegedly led the Respondent to select McGovern
for the lattice machine operator's job over Davis.
Nonetheless, the judge found that, because the
record was "void of any suggestion that Davis was
a better operator than McGovern," no violation
was made out despite the "strong suspicion" raised
by the prima facie case presented by the General
Counsel.
^ We find no basis for overturning the judge's crediting of this evi-
dence. The Respondent contends that the judge erroneously found that
the statements plant engineer Ghoshi attributed to two management offi-
cials were undenied. In our view, neither of the two officials to whom
Ghoshi attributed the statements directly denied them.
We affirm the judge's conclusion that the no-solicitation/no-distribu-
tion rule and warning violated Sec. 8(a)(1) of the Act. Although the
judge in his Conclusions of Law found that the warning violated only
Sec. 8(aX1) of the Act, earlier in his decision he had found that the warn-
ing also violated Sec. 8(aX3). We find it unnecessary to pass on whether
the warning also violated Sec. 8(aX3) since the Order would be unaffect-
ed in any event.
We find, on the contrary, that the General Coun-
sel met his burden of establishing unlawful discrim-
ination. The General Counsel showed that the Re-
spondent had knowledge of and animus toward
Davis' concerted activities and her recently re-
sumed campaigning for the Union. Further, the
General Counsel showed that the Respondent
linked the denial of Davis' promotion to her con-
certed and union activities by reprimanding her for
those activities in the same interview in which it
denied her promotion. Since the reasons advanced
by the Respondent for denying Davis a promotion
to the machine operator's job were discredited, the
General Counsel's evidence of unlawful discrimina-
tion was left unrebutted.8 Moreover, it was
strengthened by the Respondent's proffering of
false reasons for its action.9 We therefore find that
the Respondent violated Section 8(a)(1) and (3) of
the Act by denying Carolyn Davis a promotion to
a lattice machine operator's job on and after 6 Oc-
tober 1980.
AMENDED CONCLUSIONS OF LAW
We adopt the judge's Conclusions of Law with
the following modifications:
Substitute the following for Conclusion of Law
3.
"3. By failing, because of its employees' union
activities, to recall laid-off employees to available
jobs on and after 25 February 1980, until the dates
on which they received valid offers of reinstate-
ment, the Respondent violated Section 8(a)(3) and
(1) of the Act."
Insert the following as Conclusion of Law 6 and
renumber the succeeding paragraphs accordingly.
"6. By denying Carolyn Davis a promotion to a
lattice machine operator's job because of her con-
certed and union activities, the Respondent violat-
ed Section 8(a)(1) and (3) of the Act."
Consistent with the above Amended Conclusions
of Law, we have also modified the remedial relief
recommended by the judge as set forth infra. l'
s See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d
799 (6th Cir. 1982). Cf. NLRB v. Transportation Management Corp, 103
S.Ct. 2469 (1983).
9 See NLRB v Wright Line, 662 F.2d 899, 909 (Ist Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Griggs Equipment, 307 F.2d 275,
278 (5th Cir. 1962).
o1 All references to supervisors in the Order and notice have been de-
leted in accordance with our decision in Parker-Robb Chevrolet, 262
NLRB 402 (1982). In addition, we have eliminated from the backpay
remedy employees terminated before the lawful Christmas layoff on 21
December 1979 and those employees recalled or offered recall before 25
February 1980, the date on which we find the Respondent's discrimina-
tion commenced. We defer to subsequent compliance proceedings the
question of how many jobs were available for the remaining 17 laid-off
employees on and after 25 February 1980 and which of those employees
would have been recalled to fill the job openings absent unlawful dis-
crimination.
433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Marlan Lewis Designs,
Division of Marlan Lewis, Inc., Dallas, Texas, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying reinstatement to laid-off employees
because of its employees' union activities.
(b) Promulgating overly broad no-solicitation or
no-distribution rules.
(c) Issuing warnings to employees because they
have violated its overly broad no-solicitation or no-
distribution rules.
(d) Denying promotions to employees because of
their concerted and union activities.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Expunge from its files any and all records of
the warning issued to Carolyn Davis 6 October
1980.
(b) Rescind its overly broad no-solicitation and
no-distribution rule verbally promulgated 6 Octo-
ber 1980.
(c) Make whole, with interest, the following
named employees for any loss of earnings and
other benefits they may have suffered by reason of
its failure, for unlawfully discriminatory reasons, to
recall them to available jobs on and after 25 Febru-
ary 1980 until the dates on which they received
valid offers of reinstatement:
Debbie Leslie
Laird Wright
Linda Downs
Janice Fromm
Darlene Caldwell
Adrian Ramos
Cheryl Lancaster
Carolyn Davis
Bobby Haywood
Charles Jordan
Joe Montgomery
Debbie Sexton
Phyllis Chavis
Vance Blanton
Oscar Orreola
Cuong Hoang
Kent Peterson
(d) Offer Carolyn Davis a promotion to a lattice
machine operator's job, displacing, if necessary,
any employee assigned to a lattice machine opera-
tor's job on or after 6 October 1980, and make her
whole, with interest, for any loss of earnings and
other benefits suffered by reason of the denial to
her of a promotion to lattice machine operator on
and after 6 October 1980.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary for determination
of the amounts owing under the terms of this
Order.
(f) Post at its Dallas, Texas place of business
copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by
the Regional Director for Region 16, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found are dismissed.
1 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the UIrited States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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 violated 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WIL L NOT deny reinstatement to laid-off em-
ployees because employees have sought to organize
and bargain collectively through representation by
UBC Texas Council of Industrial Workers, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization.
WE W!I.I NOT promulgate overly broad no-solic-
itation or no-distribution rules.
434
MARLAN LEWIS, INC.
WE WILL NOT issue warnings pursuant to any
overly broad' no-solicitation or no-distribution
rules.
WE WILL NOT deny promotions to employees be-
cause of their union or concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole, with interest, the follow-
ing named employees for any loss of earnings and
other benefits suffered by reason of our failure to
recall them to available jobs for which they were
qualified on and after 25 February 1980 until the
dates on which they received valid offers of recall.
Debbie Leslie Charles Jordan
Laird Wright Joe Montgomery
Linda Downs Debbie Sexton
Janice Fromm Phyllis Chavis
Darlene Caldwell Vance Blanton
Adrian Ramos Oscar Orreola
Cheryl Lancaster Cuong Hoang
Carolyn Davis Kent Peterson
Bobby Haywood
WE WILL offer Carolyn Davis a promotion to a
lattice machine operator's job, displacing, if neces-
sary, any employee assigned to a lattice machine
operator's job on or after 6 October 1980.
WE WILL make Carolyn Davis whole, with in-
terest, for any loss of earnings and other benefits
suffered by reason of the denial to her of a promo-
tion to lattice machine operator on and after 6 Oc-
tober 1980.
WE WILL expunge from our files any and all
records of our warning issued to Carolyn Davis on
6 October 1980 pursuant to an overly broad no-
solicitation/no-distribution rule.
WE WILL rescind our overly broad no-
solicitation/no-distribution rule verbally promulgat-
ed on 6 October 1980.
MARLAN LEWIS DESIGNS, DIVISION
OF MARLAN LEWIS, INC.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. A hear-
ing on this matter was held before me on December 16
and 17, 1980, on charges filed on March 3 and October
10, 1980,' against Marlan Lewis Designs, Division of
All dates herein are between December 1, 1979, and November 1,
1980, unless otherwise specified.
Marlan Lewis, Inc., the Respondent, by UBC Texas
Council of Industrial Workers, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, the
Union. The complaint alleges the Respondent extended a
layoff of employees in violation of Section 8(a)(1) and (3)
of the Act and further alleges other acts to have oc-
curred by which the Respondent violated Section 8(a)(1)
of the Act. The Respondent filed an answer denying the
commission of any unfair labor practices.
After the close of the hearing the General Counsel and
the Respondent filed briefs which have been carefully
considered.
On the entire record and having taken into account
the arguments made at the hearing and the briefs submit-
ted, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material herein the Respondent has been a
Texas corporation maintaining an office and place of
business in Dallas, Texas, where it is engaged in the busi-
ness of producing decorative wood products. During the
12-month period preceding issuance of the complaint
herein, which period is representative, the Respondent in
the course and conduct of its business operations pur-
chased and received goods and materials valued in excess
of $50,000 directly from suppliers located outside the
State of Texas. The complaint alleges, the Respondent
admits, and I find that the Respondent is and has been at
all times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION STATUS OF THE
UNION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Extension of the December 21 Layoff
The Respondent is engaged in the manufacture of dec-
orative wooden lattice work at a plant in Dallas, Texas.
Its founder and chairman of the Board is Marlan Lewis,
who invented the machines on which, after sawing,
wooden strips are assembled into the lattice work. Assist-
ing Lewis in the construction of these machines was
plant engineer Fayez Ghoshi. The Respondent's execu-
tive vice president is Joe Carlock; its general manager is
Jerry Michael EWell; its plant production manager is
Holland (Jake) Donaldson; and one foreman is Elliot
Moss. It was stipulated at the hearing that Lewis, Car-
lock, Ewell, Donaldson, and Moss were supervisors
within the meaning of Section 2(11) of the Act at all
times material herein.
At the time the events of this case arose, the Respond-
ent employed approximately 40 employees in classifica-
tions of assemblers, lattice machine operators, saw opera-
tors, and helpers. There were two organizational at-
tempts by the employees. The first one began in Decem-
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 1979 when employee Linda Downs, a lattice ma-
chine operator, contacted union representative Al
Spring. Spring conducted a meeting, attended by only
about three employees, on December 19.
Downs, who attended that meeting, testified that the
"next day or two" after the meeting she spoke to Fore-
man Moss and:
I asked Elliot Moss if he would like to sign a union
card, and he wasn't sure at first; and he proceeded
to tell me that he had heard Marlan state that he
would never allow a union in his company.
Moss was not called to testify. While Lewis denied
making any such statement to Moss, Downs' testimony is
undenied and I found it credible. I further conclude that,
as alleged, the remark was coercive in nature and, as
such, violated Section 8(a)(1) of the Act.
Because of reduced retail sales, the Respondent's slack
period is around Christmas time. During the Christmas-
New Year period the previous year, the Respondent
closed the plant for an unpaid vacation period. The Re-
spondent did the same for the 1979 Christmas season by
notice to employees posted before any of the union ac-
tivity began. The notice posted December 13, 1979,
states: "Marlan Lewis Designs will discontinue produc-
tion from December 24, 1979 through January 1, 1980."
The notice, signed by Joseph Carlock, does not describe
the shutdown period as a layoff, but that is essentially
what it was. On December 21 the Respondent laid off all
production and maintenance employees. The General
Counsel does not contend that the initial layoff was un-
lawful.
On December 28 the employees reported to the plant
to receive their paychecks covering the last week before
the layoff. With each check was attached the following
notice:
Because of an unsufficient number of orders for our
products we will delay the re-opening of our manu-
facturing plant following this holiday break. Please
report for work on Monday, January 14, 1980.
If at all possible we will resume production before
this date, so be sure to leave us your current phone
number so that we may contact you with new infor-
mation.
The notice bore the typewritten signatures of Carlock
and Lewis.
On December 31, the Union, by Al Spring, sent a
letter addressed to Carlock claiming to be the majority
representative of the Respondent's employees, requesting
recognition, and naming Linda Downs and Laird Wright
as in-plant employee organizers. On January 4, Spring
sent Carlock another letter naming 10 additional employ-
ees, including Carolyn Davis and Darlene Caldwell, as
employee organizers.
On January 7, the Respondent, by its office clerical
employees, called the employees on layoff to the plant
where they were presented with a written statement
which was also essentially read by Lewis. In the first
paragraph Lewis states that the Nation was entering a
recessionary period. In the second paragraph he states
that since the Respondent's products are not necessities
purchases were being deferred by consumers and since
November the Respondent had accumulated a large in-
ventory. In the third paragraph Lewis states that by De-
cember it was clear that the Respondent was collecting
more of an inventory than it could afford to carry and,
though it offered sizable discounts to customers, the
goods were still not moved. The fourth paragraph states
that the closing of the plant between the Christmas and
New Year's holidays was an attempt to reduce the inven-
tory and, that the Respondent received insufficient
orders to return the employees to work on January 2 and
therefore it extended the plant closure until January 14.
The fifth paragraph claimed that another survey of cus-
tomers had been conducted and only a few customers
planned to make orders by the end of February with
almost none indicating orders in January. The sixth para-
graph claims that it is unlikely that the Respondent will
be able to return to its previous level of employment
until well into 1980 and that, because "business will not
recover until after the recession ends," the Respondent
expects to operate the plant with one-fourth the employ-
ees it had in late 1979, and: "It is unlikely that we will
again reach that number of employees in this plant." The
seventh paragraph states:
We will retain all the department managers and a
few additional employees with the longest service in
their department. We have contacted approximately
ten persons to return to work immediately. We
expect to contact perhaps four or five more during
the next two or three weeks if we receive sufficient
orders during this period to justify adding to our
work force.
The eighth paragraph states in part:
If you have not been contacted to return to work,
your employment by Marlan Lewis Designs is
hereby terminated. All benefits previously available
to you will also terminate immediately.
The letter concludes with an offer to clarify personally
the statements contained therein and makes expression of
hope that the employees will be able to find new jobs.
In no apparent order of seniority, 2 the Respondent re-
tained 10 employees to continue production. Between the
week ending February 1 and the week ending February
29, the Respondent attempted to recall 16 employees,
only 1 of whom accepted, David Marrow, and continued
to work regularly thereafter. One employee, Cindy
Smith, worked 2 days during that period and quit.
On Monday, February 25, the following advertisement
appeared in the Dallas Times Herald in the help-wanted
section:
2 For example, Downs, Caldwell, and Wright were passed over in
favor of junior employees.
436
MARLAN LEWIS, INC.
ASSEMBLERS & MACHINE OPERATORS
Permanent positions available with wood product
manufacturer. Excellent benefits and working con-
ditions. Dependability and willingness to work are
more important than experience. A production
bonus provides excellent salary potential.
Garland/Northeast Dallas area. 681-1321. Equal
Opportunity Employer.
Linda Downs saw the advertisement and recognized
the telephone number as that of the Respondent. She
credibly testified that she called Lewis and Carlock to
seek reemployment, but that her calls were not returned.
On February 25 Downs also wrote to Lewis and Car-
lock: "I understand that you are going to call back some
of your former employees in a few days and I want you
to know that I am available for work." On March 3 the
charge in Case 16-CA-8997 was filed by the Union. At
that point the Respondent began attempts to reinstate
laid-off employees.
Linda Downs was called to report for work on March
7 and began working on March 10. Downs credibly testi-
fied that on the day she reported she was interviewed by
Carlock and:
Well, he told me that he was going to start calling
back some of the employees. He said, however,
there were some employees we will not call back. It
didn't matter if they put him in jail. He didn't speci-
fy who.
Fayez Ghoshi testified that about the time the above-
quoted newspaper advertisement appeared he ap-
proached Carlock and:3
I saw Carlock sitting at the desk and he have a
couple order to make and hand lattice. I said,"Oh,
good, we need to go call some people to make this
hand lattice."
So he said, "No, I want to hold this order. I
don't want to do anything else and I don't want to
call anybody right now to make this orders."
Q. Did he say why?
A. Because he said he don't want to call the
Union people back, and he go find somebody else
to do it.
Ghoshi further testified that, in reference to Downs and
Laird, Carlock also said: "I not going to call these
people back, no matter what happens." When asked if
Carlock gave a reason Ghoshi testified:
Yes. He said, "Because this is the people strong
from the Union and these people start the Union
and I don't want to take them back."
Ghoshi also testified to a conversation with Ewell
about the same time.
Q. What did Mr. Ewell tell you?
3 The transcript is correct; English is not Ghoshi's native language.
A. Mr. Ewell said to me, "If we be calling these
people back, we make sure we make them quit
too."
I said, "How?"
He said, "We know. We have a way. We tell the
supervisor. We have the supervisor to make him to
quit."
Ghoshi had been discharged by the Respondent by the
time he testified. Carlock, Ewell, and Lewis testified that
at the time of his discharge Ghoshi said that Lewis
would be sorry for discharging him. From this, the Re-
spondent makes the contention that Ghoshi should be
discredited because of bias. I disagree. First of all,
Ghoshi credibly denied making the remark. However,
even if he had, there is no reason to believe that Ghoshi
meant other than the fact that he felt that he had ren-
dered valuable assistance to the Respondent in construct-
ing the lattice machines which are unique. However,
more importantly, although Carlock and Ewell testified,
neither of them denied the remarks attributed to them by
Ghoshi. I found Ghoshi credible in his testimony and
find that the remarks attributed to Carlock and Ewell
were as related by Ghoshi, with reasonable allowances
for the fact that Ghoshi's English was less than perfect.
On the basis of the timing of the Respondent's actions,
coming as it did immediately after the revelation of the
union activity by Downs to Moss, the declaration by
Moss that Lewis would never have a union at the plant,4
and the expressions of animus and motivation by Carlock
and Ewell as related by Ghoshi,5 I find and conclude
that the General Counsel has established a prima facie
case that the Respondent extended the layoff of Decem-
ber 21 and thereafter delayed the reinstatement of em-
ployees because of their organizational activities or the
organizational activities of other of the Respondent's em-
ployees.
The Defense
Marlan Lewis testified that in November he took a
business trip to visit the Respondent's largest customers
and to seek new business. He found that "everyone" was
in a "state of shock" and putting off any buying deci-
sions because of rising interest rates and tighter credit
controls imposed about that time. Because of this cus-
tomer attitude, "at the very first of December" Lewis
decided that the Respondent "could not continue to
build an inventory and we must begin laying off employ-
ees." He and Carlock counseled and, since their account-
ant, who was not named, had reported $85,000 in earn-
ings for the previous 3 months, and $173,400 for the first
11 months of the year, they decided that:
. . .we could afford to be generous with our em-
ployees since they were earning a significant profit
for us, and that since this was the Christmas season
I Mountain NMears, 236 NLRB 1481 (1978)
b The remarks by Carlock to Ghoshi that the Respondent %was holding
orders and did not want to call the employees who had started the Union
constitute compelling admissions Marcel Schurman Co, 238 NLRB 1277
(1978); Hurst Performance. Inc. 242 NLRB 121 (1979)
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we would not lay them off early in the year; that
perhaps we could get by repeating a technique that
we had used earlier, and that was simply closing be-
tween Christmas and New Year's, which gave them
a chance to take a vacation, and perhaps that would
stop our inventory accumulation and perhaps our
customers would begin to reorder in January of
1980.
During the scheduled layoff the unnamed accountant
reported to Carlock and Lewis, according to Lewis:
He discovered that he had been making an error in
not counting carefully our inventory at the end of
each month .... He discovered that his erroneous
estimates of our material consumption during this
period of time had led him to misstate profits during
that period; and he reported to us in late December
that he was going to have to make an adjustment of
$113,000, a negative adjustment of $113,000 to the
earnings that he had reported to us so far. So he re-
duced our earnings from $173,000 to approximately
$70,000 for the period .... For the entire year.
Further, according to Lewis, the Respondent checked
with customers "as soon as they would answer the
phone after the New Year's holiday" and was told that
because interest rates were still climbing nobody was or-
dering. Lewis testified that he prepared the letter to em-
ployees partially quoted above on January 4, and "then I
had decided that we owed the employees an opportunity
to hear this from me face-to-face and ask questions. So
we scheduled a meeting and I withheld the mailing of
that letter and presented it to those who attended the
meeting on January 8."
Lewis testified that he was able to secure enough cap-
ital to resume production by obtaining a $100,000 line of
bank credit which was approved on March 31, 1981.
From the strength of a verbal commitment to the loan,
Lewis testified that he was able to begin recalling em-
ployees in late February.
Lewis testified that the individuals selected to continue
working after January 8 were supervisors and "our most
senior employees and they embodied the information and
the skill with which to operate the plant and to train
others to operate the plant." Lewis also testified that
Thang Van Le and Martin Herrera were retained be-
cause they were the most "proficient" lattice machine
operators. Three other employees were recalled within 2
weeks because of a special need in their department. For
example, Ed Buschman was recalled because Supervisor
Tim Cloud had more moldings to produce than he could
handle by himself.
Without a question being posed, Lewis also added that
"approximately 12 jobs" in the saw department were
eliminated by the installation of new equipment during
the shutdown, but he did not specify which employees'
jobs had been eliminated. Further, according to Lewis,
because of the modernization:
We had a surplus of unskilled, untrained individuals
with no demonstrated ability to operate the rather
complex lattice machines, and I was very skeptical
about taking these individuals whom we had hired
with no skill requirements whatsoever and placing
them on costly complex machinery; and it was my
desire that we begin a search for individuals with a
background and an experience record which would
qualify them for the operation of this complex ma-
chinery.
We made an effort to try out some of our hand lat-
tice machine assemblers on our lattice machines, but
that effort has not to date been very successful.
Only one out of ten of those individuals has actually
succeeded learning the machines with any facility.
Lewis was further asked on direct and testified:
Q. Now, as a result of your desire to have more
highly skilled employees, what transpired next?
A. I asked that an advertisement be placed in the
newspaper seeking individuals with this machinery-
operating background.
Then, according to Lewis, he was notified that "a
number of dissatisfied individuals" were preparing to file
charges and:
To the detriment of our subsequent production, we
adopted a different philosophy and that is: "Let's
take a path which the NLRB is the most likely to
recognize, and that is recall by seniority our previ-
ous employees, regardless of their ability to run this
machinery or not .... " [And] that is what we did.
At the point Carlock began recalling all former em-
ployees. Some of them accepted, some refused, but the
General Counsel does not contend that any of the offers
made by Carlock were inadequate offers of recall or re-
instatement.
Conclusions
Once the General Counsel establishes a prima facie
case, the burden shifts to the Respondent to go forward
with probative evidence to support its claim that it had a
legitimate economic reason for its reduction in force;6
merely "a plausible economic explanation" will not do.'
the Respondent relies on Lewis' testimony and summa-
ry documentation to support its contention that an exten-
sion of the December 21 layoff was necessary. The docu-
mentation produced by the Respondent shows that in-
ventory was at an all-time high at the end of December.
However, inventory had been on a precipitous rise since
September, and Lewis testified that it was "the first of
December" that he realized that inventory was too great.
He added that he determined then that a layoff was nec-
essary, yet nothing was done about it, save for the not
unprecedented holiday shutdown, until after Downs told
Moss that a union movement was in progress.8 More evi-
st. Regis Paper Co., 247 NLRB 745 (1980).
7 Fabricut, Inc., 238 NLRB 768 (1978).
8 Although Lewis denied knowledge of union activity before Decem-
ber 31, I discredit this testimony; the communication by Downs to Super-
visor Moss is knowledge chargeable to the Respondent's principals.
438
MARLAN LEWIS, INC.
dence that inventory, though high, was not intolerable is
the fact that the Respondent retained a cadre of supervi-
sors and most"proficient" employees to continue produc-
tion, including specifically the most "proficient" of those
who operated the lattice machines which produce 90
percent of the Respondent's business according to Lewis'
testimony.
Respondent relies heavily on the unnamed account-
ant's report of not "counting carefully" inventory and
the misstating of materials consumption. On this it ad-
vances a proposition that its December 28 extension of
the layoff to January 14 and the conversion of the tem-
porary layoff to a permanent one were based on the dis-
covery of the accounting mistakes and a fear of decline
of orders.
The testimony of Lewis in support of this theory is
plainly incredible. While certified public accountants
(like brain surgeons and administrative law judges) make
mistakes, they do so in ink. If such erroneous accounting
activity had been conducted over an I l-month period as
Lewis claimed, some record thereof could have been,
and would have been, produced. Not only that, the ac-
countant would have been produced or, at least, named.
I draw one adverse inference from the Respondent's fail-
ure to produce any9 documentation of the accounting
errors on which it so heavily relies °' and another from
its failure to produce the unnamed accountant on whose
hearsay report of errors the Respondent so heavily
relies' I and I discredit entirely Lewis' testimony that he
was presented with evidence of such errors at any time.
Nor do I credit Lewis' testimony of fear of failure of
orders in the year 1980. None of this testimony was sup-
ported and, in fact, according to the Respondent's own
exhibits, orders rose precipitously in the December to
May period just as they had done the year before.
When the Respondent's inventory was essentially de-
pleted at the end of February12 it advertised for, and
hired, new employees. While Lewis testified that great
technical skills were needed to operate the Respondent's
machinery, the only qualification listed by the advertise-
ment are: "Dependability and a willingness to work
[which] are more important than experience." Thus, I
discredit Lewis' generalized testimony that the modified
machinery required any skill which could not have been
taught to the permanently laid-off employees.
Therefore, no cogent reason exists for the Respond-
ent's originally extending the temporary layoff on De-
cember 28, nor its conversion of the temporary layoff to
a permanent one, nor the failure and refusal to recall the
laid-off employees until after the original charge herein
was filed. ' 3
9 The verified audit dated June 30, 1980, is no such evidence.
°o Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972); St. Regis
Paper Co., supra.
iI Fabricut. Inc., supra.
12 In making this finding I draw another adverse inference from the
Respondent's leaving blank on its exhibit 26 only the product inventory
amount for the critical month of February 1980. Nor can credence be
given its graph. R. Exh. 16; that exhibit shows the December insentory
to be approximately $75,000 while R Exh. 26 lists that product inventory
to be only $56,169.97. The Respondent's graphing techniques are there-
fore unreliable.
s" See West Side Plymouth. Inc., 170 NLRB 686, 692 (1968).
I find that the real reason was that, as Moss told
Downs, Lewis intended never to have a union in the Re-
spondent's plant, and that, as Carlock told Ghoshi, rein-
statement was delayed or denied because those who had
been laid off, including specifically Downs and Laird,
had started the Union.' 4
Accordingly, I shall recommend that all employees
whose December 21 layoffs were extended beyond Janu-
ary 4, including specifically those whose recalls were
only delayed until January 8, be made whole for the dis-
crimination against them.' 5 Those employees are:1 6
Thang Van Le
Martin Herrera
Debbie Leslie
Steve Guidry
Laird Wright
Helen Bayonne
Tony Neubauer
Maxine Arthur
Theodis Hodge
Linda Downs
Jerry Bannister
Karen McClatchy
Richard Cobb
Tim Moorehead
Janice Fromm
Ed Buschman
Virginia Russell
Kimmy Ross
Darlene Caldwell
Adrian Ramos
Juanita Todd
Cindy Smith
Richard Arechiga
Ruth Radde
Manuel Ramirez
Cheryl Lancaster
Carolyn Davis
Roy Velasquez
Bobby Haywood
David Morrow
Charles Jordan
Joe Montgomery
David Kennedy
Debbie Sexton
Phylis Chavis
Vance Blanton
Miguel Manrriquez
Oscar Orreola
Jimmy Smith
Francisco Becerra
Cuong Hoang
Paul Pyron
H. B. Daniel
Gustavo Sanchez
Kent Peterson
Also laid off as a part of the Respondent's design to dis-
criminate against employees because of their protected
union activities and therefore entitled to be made whole
are supervisors Toui Van Tran, Elliot Moss, and Tim
Cloud. t'
B. Alleged Violations of October 9, 1980
In September 1980 employee Carolyn Davis contacted
Spring and suggested that another organizational attempt
be made among the Respondent's production and mainte-
nance employees. Spring gave Davis several authoriza-
tion cards which she distributed among the employees.
On breaks, before and after work, in the parking lot, and
in the ladies' restroom Davis talked to employees about
the Union. On September 9, Davis also solicited Supervi-
sor Moss to sign an authorization card.
Davis had applied in May for the lattice machine oper-
ator's job and served a training period abbreviated by ill-
'4 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
'. Lewis' casual reference to the abolishment of "approximately 12
jobs" during the layoff is hardly sufficient to establish the fact. However,
if the Respondent can show this to be the case, it will be given the op-
portunity to do at the compliance stage of this proceeding.
'i See R. Exh. I
17 Pioneer Drilling Co. 162 NLRB 918 (1967), enfd in relevant part
391 F. 2d 961 (10th Cir 1968).
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness. Also applying for the job were employees Greg
McGovern and Greg Halsey. On October 6, Davis was
told by her immediate supervisor to report to Donald-
son's office where she met with Donaldson and Ewell.
According to Davis, Donaldson told her she would
not be getting the lattice machine operator's job and that
Greg McGovern would. The only reason they gave for
the selection was that "I had let the machine run out of
glue a couple of times and they felt that McGovern
would be a better choice." The glue referred to is that
which holds the lattice work together; failure to glue the
wood properly results in the wooden sticks jamming the
lattice machine resulting in 30 minutes downtime with a
resultant interruption of production and possible slight
damage to the machine. Davis disagreed with Donald-
son's appraisal of the comparative merit of herself and
McGovern and stated that she had only let the machine
run out of glue once and that McGovern had let it run
out more than she.
Davis further testified that Donaldson then brought up
the subject that: "He did not approve of me appointing
myself some sort of grievance committee to take all of
the employees' complaints." Davis asked what Donald-
son was referring to, and he replied that she had been
complaining about being held over in an employee meet-
ing 5 minutes after working time ended. Davis disagreed
and said that it was actually 20 minutes and she thought
that she and the other employees should be paid for that
time. Donaldson responded that she might as well get
used to it because the Respondent might ask her to stay
late again and Davis replied that that would be fine
"provided that he paid me for it, because the Labor
Board required that he paid me." Donaldson responded
that Davis seemed to be "up to date on Labor Board
rules and I simply agreed. Further, according to Davis,
Donaldson told her "not to concern myself with other
employees, only myself."
Davis testified that Ewell then started talking and
stated that he had received three complaints of her har-
assing other employees. She asked for identification of
those who had complained and Ewell refused to name
the employees. Then,"Jake Donaldson, about that time
told me I might as well quit, and I told him that if they
had a reason to fire me, then why didn't they, because I
had not harassed anyone." Then Ewell said that Davis
was being given a verbal warning and Donaldson stated
that she was being put on probation. Donaldson told her
that one of the reasons she was being put on probation
was that she was holding up production and had inter-
fered with an employee, Kay Turbeville, whom Davis
had held up for 2 minutes. Davis claimed that she was
engaging in a work-related conversation and she was
helping Turbeville, a new employee, because Supervisor
Glenda McMann had not been around at the moment.
Donaldson told her that it was not her job to answer
questions.
Further, according to Davis: "Mike Ewell proceeded
to tell me that there were certain things that I was doing
on company time and company property that I would
not continue to do. If I wanted to do them, I could get
out on the street and do them." Davis and Donaldson
argued about what was "company time," Davis asserting
that lunch and before and after work was definitely her
time because the Company did not pay for it. According
to Davis, Donaldson agreed with that statement, but
stated "that he would not continue to let me get people
off to the corner or something like that and talk to them
on company property nor continue to harass people."
Davis responded that she had not harassed anyone but
felt that she was being harassed then.
It is undisputed that the Respondent allows employees
to sell raffle tickets and solicit for wedding presents and
new-baby gifts, and that once the Respondent allowed a
candidate for the U.S. Congress to address its employees
on working time.
Donaldson testified that he and Ewell called Davis in
to tell her that they were choosing McGovern over her-
self and Halsey for the lattice machine operator job.
Davis asked why she was not chosen and Donaldson re-
plied that "the position was filled on the basis of merits
of the operation and the machinery and their interest and
their skills that they developed in the training period,
and that [McQovern] was the best qualified, I felt."
Davis responded that she thought that she was not given
the position because of her union activity and Donaldson
and Ewell denied that. Donaldson testified that the con-
versation then "diverged into a rather hostile discussion
regarding union activities in which I said very little re-
garding that particular subject. I did then bring up a
point that Carolyn was visiting and talking and conduct-
ing-doing other things during work time that I felt was
distracting from her efficiency." Davis replied: "If you
are not satisfied with my work, why don't you fire me?"
To that Donaldson replied that the Respondent did not
want to fire her and that she was only getting a verbal
reprimand regarding the matters they had just discussed.
On direct examination Donaldson was asked what was
the basis of the appraisal for Davis' skill, and he replied
that at least twice she allowed the machine to run out of
glue. On cross-examination Donaldson acknowledged
that the "reprimand" had to do with her visits with
other employees but denied knowing what the visits
were about.
Donaldson acknowledged that he and Ewell gave
Davis a warning against soliciting for the Union during
"working hours." On cross-examination Donaldson was
asked what "working hours" were and he testified:
"Working hours are any time other than break or lunch
hour or quitting time or prior to opening."
Ewell testified that the reason Davis was denied the
lattice machine operator's job was that:
The fact that she didn't fully know how to run the
machine. I mean, several major mistakes had been
made on the machine where it cost us not only pro-
duction, but time as well, not only her time, but the
time of Jake's or another employee io come and
correct the mistakes that were made on the ma-
chines.
Q. What types of mistakes were they?
A. Mainly the glue system was allowed to be
emptied.
Q. How many times did that occur?
440
MARLAN LEWIS, INC.
A. I heard of two instances where it occurred.
Q. Any other problems of operations?
A. Learning the electrical end of the machine
seemed to be-pushing the wrong button on occa-
sions was a problem.
Ewell testified that Davis became argumentative and
asked why the supervisors did not just fire her and, in
effect, challenged them to do so, stating that they could
not because of her union activities.
Ewell was asked if he made any other observations
about Davis' work and he testified that he told Davis
that "she's spending far too much time working on ac-
tivities other than what she's supposed to be doing as an
employee of the Company; mainly talking to other em-
ployees, spending time out of her work area and even
when she's in the work area, she spends a great deal of
time talking to those employees that she's surrounded
by." Further, according to Ewell, Davis was told at that
time that she was being given a verbal warning for such
conduct and "any further activity along this line, that
she would find herself put on probation." Donaldson fur-
ther acknowledged on cross-examination that he knew
Davis was active on behalf of the Union.
Ewell testified on cross-examination that there was a
discussion about what time of day Davis was on "her
own time to do what she wished." According to Ewell:
We basically agreed with Carolyn, that breaks and
lunch are free times. We reminded her that we do
pay her salary during breaks and breaks are intend-
ed to make a phone call if you wish or go to the
restroom if you wish or sit down or smoke a ciga-
rette or something along this line. Lunch period is a
non-paying time period and she is virtually free to
do as she wishes. She can leave the premises if she
wishes and so on and so forth.
Ewell testified that part of the warning to Davis was
about her conduct "coming back from breaks or possibly
lunch on several occasions where Carolyn would either
be in the break room talking to someone or coming out
of the women's restroom and was delayed often where
she was talking to another employee."
Conclusions
The General Counsel makes several allegations regard-
ing the October 6 incident. First, the complaint alleges
that Donaldson threatened Davis with discharge by stat-
ing that she should quit because the Respondent would
find a reason for her termination; second, the complaint
alleges that the Respondent in that conversation promul-
gated an overly broad no-solicitation and no-distribution
rule in violation of Section 8(a)(1). The complaint further
alleges that in violation of Section 8(a)(3) the Respond-
ent refused to promote Carolyn Davis to the lattice ma-
chine operator job and that the Respondent "placed em-
ployee Carolyn Davis on probation."'
'i Although Davis' testimony that Ewell and Donaldson instructed her
not to concern herself with, and voice the complaints of, other employ-
ees, the General Counsel does not allege a violation of Sec. 8(a)(1) based
Donaldson admitted knowing that Davis was prounion
and had recently solicited Supervisor Moss to sign an au-
thorization card. Therefore, it is clear from the total con-
text that when Donaldson and Ewell accused Davis of
"harassing" other employees they were admonishing her
about real or suspected protected activities.
While the complaint alleges that at some point during
the conversation Davis was told that the Respondent
would find a way to discharge her if she did not quit,
Davis did not testify to such a statement having been
made either by Donaldson or Ewell. Also, I found Don-
aldson and Ewell more credible in their testimony that it
was Davis who asked why the Respondent did not just
fire her, rather than that it was they who suggested that
she quit. Accordingly, I shall recommend dismissal of
this allegation of the complaint.
The only real conflict between Davis, Donaldson, and
Ewell regarding the instruction against solicitations, in-
cluding union solicitations, is that Davis testified that the
supervisors included the paid break periods as time in
which solicitations were prohibited. To the extent the ac-
counts differ, I found Davis the more credible. However,
the above-quoted testimony by Ewell that "breaks are in-
tended to make a phone call if you wish or go to the
restroom if you wish or sit down or smoke a cigarette or
something along this line" demonstrates that the Re-
spondent intended that breaks were less free for solicita-
tions than the lunch periods. If this was not Ewell's
intent in explaining the then promulgated no-solicitation
and no-distribution rule, it was the Respondent's duty to
clear up any ambiguity even if the rule had been, or was
to be, lawfully interpreted and enforced. Solo Cup Co.,
144 NLRB 1481 (1963); Ace Machine Co., 249 NLRB 623
(1980). Since the ambiguous verbal rule limitating the
employees' statutorily protected union activity conceiv-
ably extended beyond working time into the nonworking
time of employee breaks, by its promulgation the Re-
spondent thereby violated Section 8(a)(1) of the Act.
Essex International, 211 NLRB 749, 750 (1974);
McBride's of Naylor Road, 229 NLRB 795 (1977).
Furthermore, since the warning' 9 given Davis was, in
effect, pursuant to the Respondent's invalid rule, the im-
position thereof was violative of Section 8(aX1) and (3)
of the Act, 20 especially since the Respondent failed to
show "with particularity how such conduct interfered
with production." Switchcraft., Inc., 241 NLRB 985
(1979).
The question regarding the refusal to promote Davis
to the lattice machine operator job is more difficult. On
the one hand, the evidence of the Respondent's animus
in general toward the employees' organizational activities
is made clear by the previously discussed unlawful exten-
sion of the December 21 layoff. Also, its knowledge of
and its animus toward Davis' activities are made clear by
on that instruction by the Respondent that Davis not engage in protected
concerted activity.
"I I found Donaldson and Ewell more credible than Davis in their tes-
timony that Davis was warned but not placed on any type of probation.
Although the complaint refers only to "probation," the proof is within
the ambit of the pleadings. Party Cookies, Inc., 237 NLRB 612 (1978).
20 See Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) her solicitation of Moss; (2) the admission by Donald-
son that he knew she had been active on behalf of the
Union; (3) the instruction that she should not concern
herself with other employees' problems; and (4) the im-
posing on her, individually, of an overly broad no-solici-
tation rule. Also, the basis of Ewell's criticism of Davis'
performance on the machine is questionable. Ewell testi-
fied that he "heard" of two occasions when Davis let the
machine run out of glue when she had been operating it.
However, Davis admitted to letting that happen only
once, and Ewell's hearsay testimony establishes that it
happened no more times than that one. It is undisputed
that all operators, including McGovern, had let the ma-
chine run out of glue at least once. Also, when asked on
direct examination for other specific deficiencies in
Davis' performance, Ewell could no more than general-
ize that "pushing the wrong button on occasion was a
problem." Ewell appeared to be groping for justification
in giving this answer and, in the absence of evidence that
any such criticism was ever brought to the attention of
Davis, I find Ewell's testimony incredible. Also incredi-
ble was the amorphous evaluation of McGovern versus
Davis contained in Donaldson's testimony that the selec-
tion was based on "the merits of the operation and the
machinery and their interest and their skills that they de-
veloped in the training period." 21
Taking all of these factors into account, the record is
nevertheless void of any suggestion that Davis was a
better operator than McGovern. Therefore, while there
is a strong suspicion raised by the prima facie case pre-
sented by the General Counsel, especially when viewed
in light of the unconvincing reasons advanced by Ewell
and Donaldson, the General Counsel has failed to prove
by a preponderance of the evidence that the selection
was, in fact, based on unlawful considerations.
Accordingly, I shall recommend that the 8(a)(3) alle-
gation of the complaint based on the denial of the lattice
machine operator job to Davis be dismissed.
C. Other Allegations
On the night of October 23, 1980, employees Davis,
Vance Blanton, and Darlene Caldwell, all day shift em-
ployees, came to the Respondent's premises to solicit
night-shift employees while they took their breaks near a
mobile vendor's stand in the parking lot. Accompanying
these three employees was then former employee Linda
Downs, who had resigned in May. Also appearing at the
premises that night were Lewis and the Respondent's
vice president Carlock. The employees asked Carlock
why he and Lewis were there and he replied that he was
there to keep out persons who should not be there.2 2
Neither Carlock nor Lewis nor any other supervisor of
the Respondent ordered the employees and Downs to
2' Other incredible testimony of Davis' deficiencies was offered by
Lewis, who testified that the operation of the lattice machine, which is
essentially a rote operation, needed "a logic of the understanding of the
machine."
22 Not that it matters ultimately, but I do not credit Carlock's testimo-
ny that he and Lewis were there that Monday evening because the Re-
spondent had received a threat that the premises would be bombed the
preceding weekend.
leave the premises or made any other remarks alleged to
be coercive by the General Counsel.
Having previously resigned, Downs was in the status
of a nonemployee organizer. As stated by the Board:
"Union representatives and employees who choose to
engage in their union activities at the employer's prem-
ises should have no cause to complain that management
observes them." Milco, Inc., 159 NLRB 812, 814 (1966).
Accordingly, I shall recommend that the surveillance al-
legation based on this incident be dismissed.
Finally,2 3 the General Counsel makes another surveil-
lance allegation that on October 23, after employee Cald-
well had solicited a union authorization card from an-
other employee in the parking lot during lunchtime,
Donaldson followed her inside. From this, the General
Counsel requests a surveillance finding be made and an
order be issued. The General Counsel suggests no way in
which Donaldson could have known that Caldwell was
soliciting signatures on authorization cards; the General
Counsel suggests no way in which Donaldson's conduct
could have been coercive. Under these circumstances I
shall recommend dismissal of this allegation.
On the foregoing findings of fact and conclusions
based thereon, and on the record as a whole, I make the
following
CONCLUSIONS OF LAW
1. The Respondent, Marlan Lewis Designs, Division of
Marlan Lewis, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By extending the December 21, 1979 layoff of the
following employees and supervisors, the Respondent
has violated Section 8(a)(l) and/or (3) of the Act:
Thang Van Le
Martin Herrera
Debbie Leslie
Steve Guidry
Laird Wright
Helen Bayonne
Tony Neubauer
Maxine Arthur
Theodis Hodge
Linda Downs
Jerry Bannister
Karen McClatchy
Richard Cobb
Tim Moorehead
Janice Fromm
Toui Van Tran
Ed Buschman
Virginia Russell
Kimmy Ross
Darlene Caldwell
Ruth Radde
Manuel Ramirez
Cheryl Lancaster
Carolyn Davis
Roy Velasquez
Bobby Haywood
David Morrow
Elliot Moss
Charles Jordan
Joe Montgomery
David Kennedy
Debbie Sexton
Phylis Chavis
Vance Blanton
Miguel Manrriquez
Oscar Orreola
Jimmy Smith
Francisco Becerra
Cuong Hoang
Paul Pyron
23 As issued, the complaint alleges that on September 23 the Respond-
ent refused a transfer request of employee Vance Blanton. In his brief the
General Counsel moves for the dismissal of said allegation. The motion is
granted.
442
MARLAN LEWIS, INC.
Adrian Ramos H. B. Daniel
Juanita Todd Gustavo Sanchez
Cindy Smith Kent Peterson
Richard Arechiga Tim Cloud
4. By imposing upon its employees an overly broad
no-solicitation and no-distribution rule, the Respondent
has violated Section 8(a)(1) of the Act.
5. By issuing a warning to employee Carolyn Davis
pursuant to an overly broad no-solicitation and no-distri-
bution rule, the Respondent has violated Section 8(a)(1)
of the Act.
6. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The General Counsel has proved no other allega-
tions of the complaint.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that the Respond-
ent be ordered to cease and desist from engaging in such
unfair labor practices. I shall also recommend to the
Board that the Respondent be required to take certain af-
firmative action in order to effectuate the policies of the
Act. Such affirmative action will include the payment of
backpay to all employees and supervisors named in para-
graph 3 of the Conclusions of Law above. Backpay is to
be computed on a quarterly basis in the manner pre-
scribed by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest thereon as established by the
Board in Florida Steel Corp., 231 NLRB 651 (1977) (see
generally Isis Plumbing Co., 138 NLRB 716 (1962)).
[Recommended Order omitted from publication.]
443