Quality Aluminum Products, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 338 (N.L.R.B. 1986)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Aluminum Products , Inc. and General Driv-
ers, Warehousemen and Helpers Local Union
No. 89 , affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Cases 9-CA-
19005-1, --2, 9-CA-19158-1, -2, and 9-CA-
19434
31 January 1986 '
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, BABSON, AND STEPHENS
On 28 March 1984 Administrative Law Judge
Russell M. King Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The Board has considered the decision in light of
the exceptions and briefs and has decided to affirm
the judge's rulings , findings,' and conclusions, as
modified,2 and to adopt the recommended Order as
modified. 3
The judge found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by laying off six employees because of their union
activities, and Section 8(a)(1); by threatening em-
ployees with discharge for wearing union buttons,
threatening employees with plant closure , and cre-
ating the impression of surveillance of union activi-
ties. The judge also found that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to recog-
nize and bargain with the Union on the basis of a
card majority, and recommended that the Board
issue a Gissel4 bargaining order. We agree with the
judge that such an order is appropriate, but we do
not rely on his reasoning.
The judge found that on 22 November 1982 em-
ployees Ronald Caffee, Donna Crouch, and Edna
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear proponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the fmdmgs
In fn 12 of his decision, the judge erroneously reported the citation to
NLRB v. Gissel Packing Co, 395 U.S. 575 ( 1969) We correct the error
2 We do not rely on fn 14 of the judge's decision, in which he stated
his "initial impressions" about whether employees Brown and Hutchinson
should be included in the unit , having previously found it unnecessary to
resolve their status
3 We shall issue an amended remedy and modify the recommended
Order to delete the requirement that the Respondent offer reinstatement
to Ronald Caffee , Donna Jean Crouch, Gary Wayne Marshall, Gregory
John Burden, and Lydia Houchens , because the record shows that
Caffee, Crouch, Marshall, and Houchens have been offered reinstatement
to their former positions and have returned to work, and Burden was of-
fered reinstatement but declined the offer We shall also issue a new
notice to employees
4 NLRB v Gissel Packing Co, 395 U S 575 (1969).
Thompson picked up union authorization cards
from the union hall. Nine employees signed cards
22 November and two 24 November. On 23 No-
vember seven employees attended a union meeting.
On 24 November most of the employees who
signed cards wore union buttons to work.
On 24 November Warehouse Supervisor Charles
Fox stated to employee Garland Brown that "these
mother-wouldn't be wearing them buttons if it
wasn't for that bitch back there in the back."
Brown testified that Fox was referring to Donna
Crouch. Approximately an hour later Fox told
Brown that the employees "were fools for signing
those union cards." The Respondent laid off
Brown at the end of the day.
Also on 24 November employees Gary Marshall,
Gary Chamberlain, and Daryl Lemons were in the
warehouse when Fox told Lemons that "if he
didn't want to jeopardize his job, he'd better take
the buttons off." Fox told Marshall that "they'd
close the doors, they'd change the name or some-
thing like that, if the union did try to come in."
When Marshall told Fox he did not think that was
possible, Fox said, "Well, now I don't believe it'll
get in here . . . I just think that-I believe they'd
close the door first." Fox also told Marshall "that
he knew that everybody-who-the ones that
signed it." Employee Caffee heard Fox tell Cham-
berlain and Marshall on 24 November that "if the
union came through, he [Fox] heard they was
going to shut the doors down."
Donna Crouch picked up union cards 22 No-
vember and passed them out to other employees.
Crouch signed a card and attended the union meet-
ing 23 November. She wore two union buttons 24
November and was laid off that day.
Garland Brown Jr. signed a union card 22 No-
vember, attended the 23 November union meeting,
and wore two union buttons 24 November when
he was laid off.
On 24 November Gregory Burden signed a
union card, wore a union button, and was laid off.
Ronald Caffee picked up union cards on 22 No-
vember and passed some out to other employees.
He attended the 23 November meeting and wore a
union button 24 November. He was laid off 29 No-
vember.
Gary Marshall attended the union meeting 23
November and wore a union button. He signed a
card 24 November. On 24 November Company
President O'Neil observed Marshall leaving the
plant with laid-off employees Crouch and Brown.
He was laid off 29 November.
Lydia Houchens signed a card 22 November, at-
tended the 23 November union meeting, and wore
278 NLRB No. 49
QUALITY ALUMINUM PRODUCTS 339
a union button 24 November. She .,was laid off 1
December.
On 24 November there were approximately 17-
19 employees in the unit, of whom 10 or 11 had
signed cards.5
The Respondent's violations were extensive in
number and pervasive in terms of the number of
bargaining unit employees they affected. The un-
lawful layoffs and threats of job loss and plant clo-
sure are highly coercive violations directed against
employees working in a small unit (17-19 employ-
ees). The Respondent unlawfully laid off 6 of 18 or
19 or 5 of 17 or 18 unit employees (approximately
30 percent of the unit). Three employees (Marshall,
Chamberlain, and Lemons) heard the supervisor
threaten job loss. Three employees (Marshall,
Chamberlain, and Caffee) also heard the threat of
plant closure. Of the employees who heard the
threats, two (Chamberlain and Lemons) were not
laid off. Thus, the Respondent's violations directly
affected 8 of 18 or 19 or 7 of 17 or 18 unit employ-
ees (approximately 41 percent).
The threat of job loss, immediately followed by
layoffs, demonstrated to a substantial proportion of
unit employees the Respondent's willingness to
carry out its threats. The swiftness and timing of
the unfair labor practices (occurring the day the
employees first openly showed their union support)
demonstrated that the penalty for union support
would be severe. Employee Houchens testified
that, as a result of the layoffs the, previous week,
the employees stopped wearing union buttons on
29 November.
In determining whether a bargaining order is ap-
propriate, in addition to examining the severity of
the violations committed, the Board also examines
the present effects of the coercive unfair labor
practices. In the instant case, we find that the seri-
ousness and pervasiveness of the violations had a
lingering coercive 'impact on the employees in this
small unit that would not be dissipated by the
offers of reinstatement made approximately 4 to 7
months after the layoffs. Thus, four of the six laid-
off employees are currently working in the unit, as
well as one of the two other employees who heard
the threats but were not laid off. It is reasonable to
assume that the four employees, once having been
5 The judge found it unnecessary to pass on whether employees
Brown and Hutchinson should be included in the unit. If both employees
are included in the unit, then '6 of 19 unit employees were discriminatori-
ly laid off. If both employees are excluded from the unit, then 5 of 17
unit employees were laid off. We find it unnecessary to pass on the status
of Brown and Hutchinson because, for purposes of determining the
impact of the violations in assessing the propriety of a bargaining order,
the proportion of laid-off employees to unit employees is approximately
the same (about 30 percent) whether or not they are included in the unit
If Brown is included in the unit, 11 employees signed cards , if not, 10
did
laid .off for their union activities, would be "pain-
fully aware that future support -of a union could
lead to the same end .'16 This is particularly true in
the case before us in which the seasonal nature of
the Respondent's business renders additional' layoffs
probable. The Respondent attempted, and' is still at-
tempting, to disguise its discrimination against one-
third of the unit as a "seasonal" layoff. With future
seasonal layoffs likely, the Respondent's employees
have reason to fear a recurrence of a similar at-
tempt.
The Respondent's union animus was demonstrat-
ed by its supervisor's threats of job loss and plant
closure made immediately on his becoming aware
of the employees' union activity. Since the same
supervisor is also responsible for selecting which
warehouse employees are to be laid' off each
winter, it is likely that the employees would hesi-
tate before renewing their organizational drive.
There is no evidence that the Respondent has told
employees that it disavows the supervisor's threats,
and there has been no change in management.
There is no indication of any change in policy.
Thus, the employees may reasonably expect that
the Respondent may again resort to illegal means
to defeat union representation.7 The -Respondent's
union animus and the lengths to which it was ' will-
ing to go to thwart unionization remain obvious to
the employees. Because of the swiftness and severi-
ty of the Respondent's retaliation against union or-
ganizers and supporters, it is unlikely that employ-
ees' would again be readily willing to jeopardize
their employment by openly supporting the Union,
Under such circumstances, we believe that the
threat of future layoffs will tend to continue to un-
dermine' majority support and prevent holding a
fair election.
As this arises in the Sixth Circuit Court of Ap-
peals, we note that the Sixth Circuit, in enforcing
the Board's bargaining order in Exchange Bank,
supra at 63, recognized that a cease-and-desist
order is not always sufficient to remedy an employ-
er's unfair labor practices. The court quoted Gissel,
395 U.S. at 612, as follows:
If an employer has succeeded in undermining a
union's strength and destroying the laboratory
conditions necessary for a fair election, he may
see no need to violate a cease-and-desist order
by further unlawful activity. The damage, will
have been done, and perhaps the only fair way
to effectuate employee rights is to re-establish
6 Exchange Bank, 264 NLRB 822, 824 fn. 14 (1982), enfd. 732 F.2d 60
(6th Cir. 1984).
7 Captain Nemo's, 258 NLRB 537, 555 (1981), enfd. 715 F.2d 237 (6th
Cir 1983)
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conditions as they existed before the em-
ployer 's unlawful campaign.
We believe that, under the circumstances of the
instant case , simply requiring the Respondent to re-
frain from unlawful conduct will not eradicate the
lingering effects of the hallmark violations, and will
not deter their recurrence.
The Respondent contends that a bargaining
order is not justified in the instant case because the
layoffs were temporary (the employees were re-
called between 4 and 7 months after the layoffs).
The Respondent also argues that the supervisor
who made the threats was a friend of one of the
employees who heard the remarks and thus no
threatening atmosphere resulted. We have previ-
ously, discussed the impact of the layoffs. With
regard to the second contention, it is well settled
that the test of interference, restraint, and coercion
under the Act does not turn on the Respondent's
motive. Hanes Hosiery, 219 NLRB 338 (1975).
We are mindful that almost 3 years have passed
since the Respondent engaged in its unlawful con-
duct. When we consider, however, the serious
nature of the conduct which consisted of threats of
discharge and plant closure, discriminatory layoff
of one-third of the unit, and creation of the impres-
sion of surveillance, we are convinced that the last-
ing effects of such conduct cannot easily be eradi-
cated by the mere passage of time." The passage of
time, though regrettable, is unavoidable, and is not
a sufficient basis for denying the bargaining order.
We believe that on balance, in light of the viola-
tions' seriousness and pervasiveness, the unit's small
size, the substantial percentage of unit employees
the Respondent's threats and layoffs directly affect-
ed, the majority of whom are still employed at the
Respondent's facility, and the strong possibility of
repetition of similar unfair labor practices because
of the seasonal nature of the Respondent's business,
the equities in this case favor the issuance of a bar-
gaining order.9 Under the circumstances, we find
8 Exchange Bank, supra at 824
9 Member Dennis agrees that a bargaining order is an appropriate
remedy under NLRB v. Gissel Packing Co., supra, for the following rea-
sons. See her concurring opinion in Regency Manor Nursing Home, 275
NLRB 1261 ( 1985),
In the instant case, the Respondent committed extensive "hallmark"
violations, consisting of the layoff of six employees , and threats of plant
closure and discharge. See NLRB v. Jamaica Towing, 632 F.2d 208 (2d
Cir. 1980). In a unit of 17-19 employees, 7 or 8 employees ( approximate-
ly 41 percent) were directly affected by, these highly coercive unfair
labor practices In view of the unit 's small size, the layoff of one-third of
the, unit was likely to have a profound impact on all employees Horizon
Air Services, 761 F.2d 22 (1st Cir 1985), NLRB v. Solboro Knitting Mills,
572 F.2d 936, 944 (2d Cir. 1978), cert. denied 439 U S. 864 (1978)
The Respondent's pervasive hallmark violations justify a bargaining
order, absent significant mitigating circumstances . There had been some
turnover in the unit at the time of the hearing Thus, there were approxi-
mately six new employees in the warehouse department . However, five
employees directly affected by the Respondent's hallmark violations were
that the unfair labor practices involved in this case
would tend to undermine the Union's majority
status and impede the election process. We con-
clude that "the possibility of erasing the effects of
past practices and of ensuring a fair election (or a
fair rerun) by the use of traditional remedies,
though present, is slight and that employee senti-
ment once expressed through cards would, on bal-
ance, be better protected by a bargaining order." 10
REMEDY
Having found that the Respondent has violated
Section 8(a)(1), (3), and (5), we shall order it to
cease and desist and to take certain 'affirmative
action designed to effectuate the policies of the
Act.
The Respondent has already offered Gregory
Burden, Donna Crouch, Ronald Caffee, Gary Mar-
shall, and Lydia Houchens reinstatement to their
former positions. Crouch, Caffee, Marshall, and
Houchens have returned to work. Burden declined
his offer of reinstatement. Accordingly, we shall
order the Respondent to offer only Garland Brown
Jr. immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniori-
ty or other rights and privileges previously en-
joyed.
We shall also order the Respondent to make
whole all six employees for any loss of earnings
and other benefits they may have suffered as a
result of the discrimination against them, by paying
them an amount equal to that they would have
earned from their layoff dates to the dates of their
reinstatement or offer of reinstatement, less net in-
terim earnings, if any, with backpay and interest as
prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis
Plumbing Co., 138 NLRB 716 (1962). The Re-
spondent may offer evidence at the compliance
stage to prove that any of the six laid-off employ-
ees would have been legitimately laid off subse-
quent to their discriminatory layoff, in mitigation
of backpay due under the terms of this Decision
and Order.
still working in the unit at the time of the hearing Member Dennis does
not consider such turnover significant in light of the continuing presence
in the unit of a number of employees directly affected by the hallmark
violations The 3-year passage of time between the events of this case and
our decision is unfortunate but insufficient to deny a bargaining order.
NLRB v. Pacific Southwest Airlines, 550 F 2d 1148, 1153 (9th Cir. 1977);
Exchange Bank, 264 NLRB 822, 824 fn. 13 (1982), enfd. 732 F 2d 60 (6th
Cir 1984). Accordingly, Member Dennis joins her colleagues in issuing a
bargaining order.
10 Gissel, 395 U.S. at 614-615
QUALITY ALUMINUM PRODUCTS
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act as of 24 November
1982, we shall order it to cease and desist and to
recognize and bargain on request with the Union as
the exclusive bargaining representative of the unit
employees.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Quality Aluminum Products, Inc., Louis-
ville, Kentucky, its officers, agents , successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Garland Brown Jr. immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Make Ronald Caffee, Donna Crouch, Gary
Marshall, Gregory Burden, Garland Brown Jr.,
and Lydia Houchens whole for any loss of earnings
and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in
the remedy section of the decision."
3. Substitute the attached notice for that of the
administrative law judge.
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.
WE WILL NOT lay off or otherwise discriminate
against any of you for supporting General Drivers,
Warehousemen and Helpers Local Union No. 89,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other union.
WE WILL NOT create in your minds the impres-
sion that your union activities and the union activi-
ties of other employees are the subject of company
surveillance.
WE WILL NOT threaten to discharge you because
of your union support or activities.
WE WILL NOT threaten you with closure of the
Louisville, Kentucky facility if you engage in union
support or activity.
341
WE WILL NOT refuse to bargain with the Union
as the exclusive representative of the employees in
the bargaining unit.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Garland Brown Jr. immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Ronald Caffee, Donna Jean
Crouch, Gary Wayne Marshall, Gregory John
Burden, Garland Brown Jr., and Lydia Houchens
whole for any loss of earnings and other benefits
resulting from the discrimination against them, less
any net interim earnings, plus interest.
WE WILL recognize and, on request, bargain
with the Union and put in writing and sign any
agreement reached on terms and conditions of em-
ployment for our employees in the bargaining unit:
All production, maintenance, warehouse, and
truck driving employees employed at our Lou-
isville,. Kentucky facility; but excluding all
office clerical, professional, and all other em-
ployees, and all guards and supervisors as de-
fined in the Act.
QUALITY ALUMINUM PRODUCTS, INC.
Deborah Jacobson, Esq., and Jack Baker, Esq., for the
General Counsel.
Joseph A. Worthington, Esq., and W. Kevin Smith, Esq.
(Smith & Smith), of Louisville, Kentucky, for the Re-
spondent.
Ralph H. Logan, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge.
These consolidated cases were heard by me in Louisville,
Kentucky, on June 13-15, 1983. The charges in the vari-
ous cases were filed by the Charging Party (the Union)
on various dates in December 1982 and January and
March 1983. The consolidated compalint was issued on
April 18, 1983, by the Regional Director for Region 9 of
the National Labor Relations Board (the Board) on
behalf of the Board's General Counsel.2 The complaint
' The charges in Cases 9-CA-19005-1 and 9-CA-19005-2 were filed
by the Union on December 2, 1982, the charge in Case 9-CA-19158-1
was filed on January 10, 1983, the charge in Case 9-CA-19158-2 was
filed on January 17, 1983, and the charge in Case 9-CA-19434 was filed
on March 14, 1983
2 The term "General Counsel," when used herein, will normally refer
to the attorneys in the case acting on behalf of the General Counsel of
the Board through the Regional Director
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleges that the Respondent (the Company) violated Sec-
tion 8(a)(1) of the National Labor Relations Act (the
Act) in late November 1982 by threatening employees
with discharge and plant closure for engaging in union
activities and by giving the impression of surveillance of
such activities.3 The' complaint further alleges the unlaw-
ful and discriminatory layoff of six employees in late No-
vember and early December because of their union ac-
tivities, in violation of Section 8(a)(1) and (3) of the Act.
Lastly, the complaint alleges that the Company refused
to recognize and bargain with the Union after it had ob-
tained a union authorization card majority from the ap-
propriate unit of employees involved, in violation of Sec-
tion 8(a)(1) and (5) of the Act.4
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, counsel for the
Company, and counsel for the Union, I make the follow-
ing5
FINDINGS OF FACT
1. JURISDICTION
The pleadings and admissions filed and made herein
reflect the following facts regarding jurisdiction. At all
times material herein, the Company has been a Kentucky
corporation with an office and place of business or plant
in Louisville, Kentucky, where it has been engaged in
the manufacture and sale of aluminum doors and win-
dows. The Company operates several other facilities, but
the Louisville plant is the only facility involved in this
case. During the 12-month period immediately preceding
the issuance of the complaint herein, the Company in the
course and conduct of its business operations sold and
shipped from its Louisville, Kentucky plant products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Kentucky. Thus I find, as
3 All dates are in 1982 unless otherwise stated The original complaint
contained two such allegations, occurring on November 24 and 28 By
amendment during the hearing, two additional and similar allegations
were added to the complaint , both occurring on November 24.
4 The pertinent parts of the Act (29 U.S C. § 151 et seq .) are as fol-
lows
Sec. 7 . Employees shall have the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection
Sec. 8 . (a) It shall be an unfair labor practice for an employer-
55(1) to interfere with , restrain, or coerce employees in the exercise
of the rights guaranteed in section 7 . . (3) by discrimination in
regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor or-
ganization . . (5) to refuse to bargain collectively with the repre-
sentatives of his employees .
5 The facts found herein are based on the record as a whole and on my
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with
due regard for the logic of probability , the demeanor of the witnesses,
and the ' teaching of NLRB v. Walton Mfg. Co',; 369 U S . 404, 408 (1962)
As to those testifying in contradiction of the findings herein their testimo-
ny has been discredited either as having been in conflict with the testimo-
ny of credible witnesses or because it was in and of itself incredible and
unworthy of belief All testimony and evidence, regardless of whether or
not mentioned or alluded to herein, , has been reviewed and weighed in
light of the entire record
alleged and admitted herein, that the Company is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Further, and as alleged and admitted herein, I find that
the Union is now and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The unit of employees involved in this case contains
the production, maintenance, warehouse, and truck driv-
ing employees at the Company's plant. On November 22
employees Ronald Caffee, Donna Crouch, and Edna
Thompson went to the Union's headquarters or meeting
hall during their lunch break at the plant and obtained a
number of union authorization cards. At that time there
were some 19 employees in the unit . On that date at least
nine employees signed union authorization cards, and at
least two more cards were signed on November 24. On
November 23, seven employees attended a meeting at the
union hall and apparently obtained union buttons. The
following morning (November 24) most of or all employ-
ees who had signed union authorization cards appeared
for work at the plant wearing union buttons. At the end
of the workday on November 24, three of the union sup-
porters were laid off. The following day (November 25)
was Thursday, Thanksgiving Day, and the employees
had that day off and also Friday, November 26. Novem-
ber 29, the following Monday, two other union support-
ers were laid off and another one was laid off on Decem-
ber 1. Also on November 24, the Union wrote a letter, to
the Company stating that "[y]our employees have volun-
tarily joined" the Union, and requested recognition as
the exclusive bargaining representative of the employees.
Thereafter the Company refused to so recognize the
Union, which then filed a petition for representation
(Case 9-RC-14186). On December 22, the Company and
the Union entered into a Stipulation for Certification
upon Consent Election in Case 9-RC-14186 and on Jan-
uary 18, 1983, a Board-conducted election was held at
the Company's plants Most, if not all of the employees
who were laid off were later reinstated after what the
Company described as the winter slump in business. It
was stipulated by the parties in this case that the Compa-
ny "is engaged in seasonal business and has had layoffs in
prior years." The Company contends that the employees
were laid off in the normal routine of a seasonal slack in
business,, and further argues that the Company's business
over the past year or so had fallen off significantly be-
cause of the economic conditions then prevailing. The
General Counsel argues that the layoffs were prompted
by the activities of those employees in support of the
Union.
6 After the election, objections to the conduct of the election were
filed, and, at the time of the hearing in this case, those objections were
pending before the Regional Director.
QUALITY ALUMINUM PRODUCTS 343
B. Plant Organization
The Company was owned by its president and sole
stockholder James O'Neil. O'Neil's primary duties in-
volved the purchasing of the raw materials used at the
plant and the selling of finished products to contractors
and distributors. He was not involved in the day-to-day
operations at the plant, but was present on November 24.
Responsibility for the day-to-day operations at the plant
was vested in the Company's vice president Ed Cochran,
who was not present on November 24 and was on vaca-
tion from November 24 to December 5. The plant was
divided into two operations which included the produc-
tion department and the warehouse operation. Sandra
Young, whose last name was Hamm at the time the com-
plaint was issued, was the supervisor of the production
department. She also was not present on November 24
and returned from her vacation on November 29. Peggy
Hutchinson assisted Young in the production department.
There is a dispute in this case as to whether or not
Hutchinson was a supervisor within the meaning of the
Act. Hutchinson testified that she was hired as an assist-
ant foreman but that in reality she acted as a floating em-
ployee in the production department, helping to insure
that work kept moving. Hutchinson was present on No-
vember 24. The warehouse operation was supervised by
Charles Fox, who was also present on November 24.
The Company made no retail sales and, as indicated ear-
lier, the Company's business was somewhat seasonal with
its slack period during the winter months.
C. The Alleged Threats and Surveillance
Paragraph 5 of the consolidated and amended com-
plaint alleges that Supervisor Charles Fox violated Sec-
tion 8(a)(1) of the Act in four separate incidents, three on
November 24 and one on November 28. In his testimo-
ny, Fox generally denies all of the alleged unlawful re-
marks or threats. In support of these allegations in the
complaint, the General Counsel relies on the testimony
of employees Garland Brown, Ronald Caffee, and Gary
Marshall. When these three employees reported for work
on November 24 at approximately 7 a.m. they, along
with most other union supporters, were wearing union
buttons. In fact, Brown wore two such buttons. When
Fox saw that the employees were wearing union buttons
early in the morning of November 24, he immediately re-
ported this fact to O'Neil, who, according to Fox, in-
structed him not to say anything about the Union.
Employee Garland Brown testified as to several con-
versations he had with Fox. Only the two were present
and according to Brown the first conversation took place
at approximately noon on November 24 when Fox stated
that "these mother___ wouldn't be wearing them but-
tons if it wasn't for that bitch back there in the back."
Brown indicated that Fox was referring to employee
Donna Crouch. Brown related that the second conversa-
tion took place approximately 1 hour later in his work
area when Fox told him that "[the employees] were fools
for signing those union cards." Brown was laid off by
Fox at quitting time that day at 3:30 p.m. Employee
Gary Marshall testified that he and employees Gary
Chamberlain and Daryl Lemons were standing together
in the warehouse when he overheard Supervisor Fox tell
Lemons that "if he didn't want to jeopardize his job,
he'd better take the buttons off." Lemons did not testify
in the case. Marshall further testified that "later on that
week" and in the gutter department where he worked,
he and Fox were discussing the Union and Fox stated
that "they'd close the doors, they'd change the name or
something like that, if the union did try to come in."
Marshall indicated that he told Fox he did not think that
was possible and Fox replied, "Well, now I don't believe
it'll get in here . . . I just think that-I believe they'd
close the door first." Marshall testified that he and Fox
were good friends and that they talked at work "all the
time." Further and, according to Marshall, "sometime
during [the] week, when the cards was [sic] signed," Fox
told him "that he knew that everyone-who-the ones
that signed it," referring to union authorization cards.
Employee Ronald Caffee testified that he overheard
some of the conversation between Fox, Chamberlain,
and Marshall in the gutter room on November 24, when
he was walking by to get some materials . Specifically,
Caffee testified that he heard Fox state at that time that
"if the union came through, that he [Fox] heard they
was going to shut the doors down." Marshall mentioned
nothing of this remark having been made at that particu-
lar time in the gutter room and, as indicated earlier,
places this remark by Fox generally sometime during the
week.
In defense of the alleged remarks by Fox, the Compa-
ny relies on Fox's general denial and on the testimony of
employee Gary Chamberlain. Chamberlain had been em-
ployed since July 1980 and worked in the warehouse
under Supervisor Fox. Chamberlain was admittedly
against the Union and indicated that he had never been
laid off since his employment commenced. Chamberlain
testified that on November 24 at approximately 7 a.m.
and while the two were near the timeclock, he warned
employee Marshall by stating to him that "you've got a
wife, a baby and one on the way, and what do you want
a union in here for, you'll be burning wood in a barrel
out front, next month." Chamberlain related that he later
heard employee Marshall attribute these remarks to Fox
and that he "wanted to clear [his] supervisor," and thus
came forward voluntarily to testify in the case. Marshall,
as earlier indicated, places the remarks by Fox in the
gutter room later on in the day at approximately noon.
In my opinion, the testimony of employee Chamber-
lain does nothing to disprove Fox's remarks as related by
Marshall, Brown, and Caffee. Chamberlain may well
have made his claimed remarks to Marshall in the time-
clock area about 7 a.m. on NOvember 24. However,
Marshall's testimony was, definite and straightforward in
placing Fox's remarks about noon in the gutter room.
The testimony of employee Ronald Caffee also corrobo-
rates the fact that Fox's statement to Lemons, in the
presence of Marshall and Chamberlain, occurred in the
gutter room later on in the day. Further, Chamberlain's
recount of his conversation with Marshall early in the
morning did not include the presence of Fox. Regarding
the alleged improper remarks by Fox, I credit the testi-
mony of Brown, Marshall, and Caffee over that of Fox.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown's demeanor reflected that he was a proud man
and, while testifying , he appeared in obvious discomfort.
Whether this discomfort was attributable to Brown's on-
the-job injury which necessitated the receipt of fight
duty at the plant, or because of the somewhat distasteful
business of testifying under oath, was not readily appar-
ent at the hearing. However, in my opinon , Brown's ve-
racity was obvious and definite . Employee Marshall's de-
meanor was that of a tall and somewhat quiet individual,
but also proud and truthful . Although Marshall was un-
certain as to the exact date during the week on which
Fox indicated -that the Company would close its doors if
the Union came in, in my opinion this uncertainty did
not distract from his honest certainty that the remark
was indeed made. Employee Ronald Caffee was relative-
ly young in age but displayed a certain honest nervous-
ness during his testimony which also led me to conclude
that he was truthful . Supervisor Fox on the other hand
had been the warehouse foreman for approximately 2-1/2
years and , although fairly young and also somewhat soft
spoken, the matter-of-fact manner of his testimony in de-
fense of himself and the Company and his overall de-
meanor led me to conclude that his veracity was lacking
in promptly and summarily denying the damaging re-
marks which he was alleged to have made . These denials
came in rapid fire "No" answers to the rapid fire ques-
tions of counsel put in question form as to whether or
not he made such remarks. Although one cannot fault
the fact that he was a "company man," I conclude that
Fox's desire to maintain his job and his supervisory posi-
tion clouded his ability to be completely truthful 'in his
testimony.
I thus find that the remarks attributable to Fox by
Brown and Marshall on November 24 were in fact made
and that they in fact constituted unlawful threats of dis-
charge for engaging in proper and lawful support of the
Union. I also find that the remarks constituted an unlaw-
ful threat of plant closure because of union activity and
also implied that the Company was keeping the employ-
ees' union activities under surveillance . I find further that
Fox's remark to Marshall about the Company closing its
doors if the Union came in was also made on November
24 as alleged in the complaint, and not on November 28,
and although Marshall was somewhat uncertain as to the
date I am convinced that the remark was made. Accord-
ingly, I find and - conclude that the Company , through
Supervisor Fox, violated Section 8 (a)(1) of the Act as al-
leged in paragraph 5 of the consolidated and amended
complaint.
D. The Economic Situation of the Company and the
Seasonal Nature of the Business
The Company maintained three facilities located in In-
dianapolis , Indiana, Lexington , Kentucky , and Louisville,
Kentucky , the facility directly involved in this case. The
testimony primarily from the Company's president James
B. O'Neil and the Company 's CPA William P. Schmitz,
together with the financial data and documents admitted
through Schmitz, reveals that the Company 's financial
posture was poor and that it had deteriorated significant-
ly over the past several years. ' This deterioration ap-
peared to be the direct result of existing economic condi-
tions which resulted in significantly fewer orders and
mounting bad debts, many of which were clearly uncol-
lectible. The Company's fiscal year ends February 28
and, as an example of the deterioration in business, sales
for the Louisville facility in fiscal year 1979 amounted to
approximately $4,200,000, but for fiscal year 1982 sales
for the Louisville facility dropped to $2,400,000. For the
fiscal year 1982, there was some $447,000 in bad debts
written off for all three facilities, the majority of which
were attributable to the Louisville facility. In January
1982, O'Neil took himself off of the Company's payroll
and, from that time forward to the date of the hearing,
he had not drawn any salary from the Company. Also
during 1982 O'Neil liquidated his personal retirement ac-
count in the amount of $88,000 and poured it into the
business, contrary to the firm advice of accountant
Schmitz., He also sold his personal residence and poured
those funds into the Company. The Company also sup-
plied materials to several contractors who were involved
with construction and remodeling work at Fort Knox,
Kentucky, and sometime in October or November 1982
Government funds apparently ran out for these projects
and orders were either canceled or ceased. It would be
fair and accurate to say that if there was a fall peak in
the Company's business it came in October and Novem-
ber 1982, dropping off sharply in December through at
least -March 1983. The Company produced windows,
awnings, shutters, doors, and gutters. An exception to
this so-called fall peak in business can be found in gut-
ters, dropping from 13,822 feet in September to 7397 feet
in November. As indicated earlier, the parties stipulated
that the Company's business was seasonal and that there
were seasonal layoffs. The evidence in the case indicates
that the slack period was from December through at
least March.
E. The Layoffs
The Company argues in this case that the layoffs were
for seasonal and economic reasons and that each individ-
ual who was laid off was chosen over others for various
specific reasons, including ability, the amount of work to
be done in the production department, and the need for a
particular job to be handled by a specific employee. Se-
niority was not the controlling factor. The General
Counsel argues that the employees were laid off because
of their union support and activities.
Three employees were laid off at the end of the work-
day on November 24, the day on which the union but-
tons first appeared . They were Donna Crouch , Garland
Brown Jr., and Greg Burden. Crouch began working for
the Company in July 1979 . She quit 10 months later but
came back November 1, 1980. She was laid off January
to April 1982. She also attended the November union
meeting. Crouch worked in the production department
and indicated she received her instructions from Peggy
Hutchinson, who sometimes worked along with her.
Crouch testified that she could make 10 - to 15 "stock"
doors per day whereas employee Ron Caffee could build
only 5 or 6 per day. Crouch added that at the time she
was laid off they were busy in doors and the stock in
doors was down . It was Crouch , along with employees
QUALITY ALUMINUM PRODUCTS 345
Edna Thompson and Ron Caffee ,'who picked up union
authorization cards during their lunchbreak on Novem-
ber 22. Back at the plant, Crouch passed out some five
union authorization cards which were either signed in
her presence or later signed in the presence of other em-
ployees.7 On the morning of November 24 Crouch came
to work wearing two union buttons, and , referring to
Crouch, Supervisor Fox later in the day made a dispar-
aging remark to employee Garland Brown , indicating
that she was a "bitch" for handing out union buttons. It
was Fox who laid Crouch off. The Company's vice
president, John Edward Cochran, left for his vacation on
November 24 and returned December 6. Cochran testi-
fled that prior to leaving he told his supervisors , appar-
ently referring to Fox and Peggy Hutchinson , who was
Supervisor Young's assistant , to start laying off employ-
ees as things had really gotten bad. Cochran testified that
the son of the Company 's president O'Neil was also sub-
sequently laid off. Cochran further testified that during
the winter months, production is built back up at the,
plant. The production department 's supervisor Sandra
Young was not present at the plant on November 24,
and testified that she and Peggy Hutchinson would get
together about lay off and that she made the decision to
lay off Crouch on November 19 and so instructed
Hutchinson to effectuate the layoff on November 24.
Young indicated that she decides who and how many to
lay off based on which section in her production depart-
ment is slow, and on performance , usually on the recom-
mendation of Peggy Hutchinson. According to Young,
Peggy Hutchinson called her at home on November 24
about the union buttons, explaining that Crouch had
brought in union buttons to the plant . According to
Young, Hutchinson wanted to know whether, in light of
this activity , she should go ahead and lay off Crouch,
and Young indicated that she should lay her off as
planned. Hutchinson testified that , in fact she did lay off
Crouch , at the instruction of Young, and also verified
that she called Young at home and asked Young whether
she should go ahead and lay off Crouch in light of the
fact that she brought in union buttons into the plant. Hu-
chinson 'testified that she was Young 's "assistant," and
not an assistant foreman, although she does not punch
the timeclock and thus is a salaried employee as opposed
to all other production employees. According to Hutch-
inson, the plant was caught up on doors by November
24.
Employee Garland Brown Jr. was laid off November
24 by Fox, the warehouse foreman or supervisor. Brown
first went to work for the Company in August 1981 but
was injured on the job in October 1981 and returned to
work in May 1982, working on the gate and doing odd
jobs that required light duty. Brown testified that during
the first week of November ' he heard rumors in the plant
of seasonal layoffs and that ' he asked Fox, in Vice Presi-
dent Cochran 's presence , if he would be 'laid off and that
Fox replied that he would not be laid off because they
7 All six of the employees who were laid off had signed union cards
and in addition six other employees also signed union cards either on No-
vember 22 or on November 24 The card of employee Cathy Thixton
was subsequently lost
were short . Fox's version of the incident is somewhat
different . Fox testified that on the contrary, he had
warned Brown the week before his layoff that he would
have no choice but to lay Brown off because he could
not work in the warehouse due to his injury . Fox also
testified that the son of Vice President Cochran was also
laid off on November 1 for lack of work and added that
Cochran , before he went on vacation , had told him to
think about who he was going to lay off . Cochran testi-
fied he actually gave instructions to lay off employees.
According to Fox, in addition to Brown's physical dis-
ability, he was somewhat odd in that he would catch
flies and put them into his mouth. Fox related that
during the period of the layoffs, suppliers to the Compa-
ny were hesitant in shipping materials because of over-
due bills. Brown signed his union authorization card on
November 22, attended the November 23 union meeting
at the union hall,' and on the morning of November 24
reported to work wearing two union buttons . Brown tes-
tified that in March 1983 he went back to the plant at-
tempting to get his job back and at that time and was
offered his original job in the warehouse but had to
refuse the offer because his doctor still required him to
perform only light work . Brown conceded on cross-ex-
amination that Fox had told him in October that some
employees would get laid off, pointing to the fact that
dealer trucks appearing at the plant had become fewer or
less frequent.
Employee Gregory Burden testified that he was em-
ployed for several weeks by the Company in 1980 or
1981 and , was laid off for lack of work . He again com-
menced employment with Company on November 15,
1982, and ' was laid off by Fox on November 24. Burden
testified that when he was hired on November 15 by Fox
to work in the warehouse , Fox told him he would be
there a long time and would move up. In his testimony,
Fox denied any such remark to Burden . Fox indicated
simply that Burden was, laid off because of lack of work.
Burden signed his union authorization card on November
24 and testified, that he thinks he 'wore a button that
morning but is not absolutely sure. Employee Brown tes-
tified that Burden did wear 'a union button. Burden did
not attend the union meeting on November 23.
Employee Ronald Caffee began working for the Com-
pany on September 16 and had no prior experience. His
immediate supervisor was Peggy Hutchinson . Caffee ac-
companied employees Thompson and Crouch to the
union hall to obtain union, 'authorization cards on No-
vember 22 and that same day, during the afternoon
break, Caffee indicated that he passed out some four
cards which were signed and given back to him. Caffee
attended the union meeting on November 23 and also
wore a union button the morning of November 24.
Caffee was laid off after the Thanksgiving weekend on
November 29 by Supervisor Sandra Young , who at that
time had also returned from her vacation . Young testi-
fied simply that she laid Caffee off due to a shortage of
orders.
Gary Marshall first came to work for the Company in
November 1980 as a truckdriver . His work record with
the Company from that time forward to the fall 1982 is
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somehwat unclear from the record. However, he did
work for the Company periodically until September or
October 1982 when he took a leave of absence to work
somewhere else. He apparently was rehired sometime in
October or early November 1982 and testified that when
he was rehired Vice President Cochran checked his
work record and told him that he had been a good
worker and that he could come back to work. Marshall
attended the union meeting on November 23 and signed
a union authorization card on November 24. Marshall
also reported to work November 24 with the union
button on. Marshall testified that after the layoffs on No-
vember 24, he took employees Brown and Crouch, who
had been laid off, to the union hall to complain about the
layoffs, and as he was leaving with Brown and Crouch
the Company's president O'Neil was observing them.
Marshall was laid off on the Monday after Thanksgiving
(November 29) by Fox, who said at the time that he
hated to lay him off and needed him because there was
much work to be done, but that he had been told to do
so.
Employee Lydia Houchens first went to work for the
Company in 1980 but later quit because of the illness of
her daughter. Houchens testified that she was rehired by
Young in August 1982 and was laid off December 1, ap-
parently by Young. Houchens signed a union authoriza-
tion card on November 22, attended the union meeting
on November 23, and reported to work November 24
wearing a union button. Young testified that Peggy
Hutchinson had called her attention to the fact that Hou-
chens was making mistakes in her work. Young appar-
ently attributes the layoff of Houchens to not only the
slowdown in the work but also to her performance.
There were three main organizing events regarding
the Union. The first was on November 22 when employ-
ees Caffee, Crouch, and Thompson went to the union
hall and obtained authorization cards, signed their own
cards, and returned to the plant and obtained completed
cards from seven other employees.8 The next event oc-
curred on November 23 when a meeting was held at the
union hall. Five of the six employees who were laid off
attended that meeting.9 Employees Stinson and Maulden
also attended the meeting. Neither of these employees
testified at the hearing. The third and last significant
event was the wearing of union buttons on the morning
of November 24. Of the six emloyees who were laid off,
Caffee and Crouch participated in all three events, and
also obtained fully executed authorization cards from
other employees on November 22. Employees Marshall,
Brown, and Houchens participated in two of the events,
namely, attendance at the November 23 meeting and the
wearing of union buttons on November 24. The sixth
employee who was laid off was Greg Burden who par-
ticipated in the third significant event, that of wearing a
union button on November 24. All six, of course, had
8 Employee Thixton 's card was lost, and Thixton did not testify in the
case Those employees who signed cards at the plant on November 22
were as follows . Maulden, Campbell, Stinson, Creek , Lemons, Brown,
and Houchens Employees Marshall and Burden signed their union au-
thorization cards on November 24
8 These employees were Houchens , Caffee, Marshall, Brown, and
Crouch
signed union authorization cards. Two employees, Maul-
den and Stinson both, went to the meeting and signed
union authorization cards, but there is no evidence on
the record that they either did or did not wear union au-
thorization buttons other than the fact that most of the
union supporters wore the buttons on November 24. Nei-
ther Mauldin nor Stinson was laid off, and as indicated
earlier neither testified in the case. Three other employ-
ees who had signed union authorization cards were also
not laid off and again, it is not definitely certain whether
one of them wore union authorization buttons on No-
vember 1 0
The inital burden in this case rests with the General
Counsel. The General Counsel must, by a preponderance
of the evidence, make a prima facie showing sufficient to
support the inference that the union and protected activi-
ty of the six employees was a motivating factor in the
Company's decision to lay off the employees. Once this
is established, the burden then shifts to the Company to
demonstrate, by a preponderance of the evidence, that
the same action would have taken place even in the ab-
sence of the protected conduct." I find in this case that
the General Counsel has carried its initial burden regard-
ing the six laid-off employees. These employees were all
union supporters and this support was demonstrated
openly on November 24. The Company responded
promptly and swiftly by laying off three of the support-
ers in the afternoon of November 24, including the two
leading supporters (Crouch and Caffee), and followed
quickly with two more layoffs the next regular working
day, and laid off the last employee 2 days thereafter. In
my opinion the General Counsel proved initially that
there was an antiunion animus on the part of the Compa-
ny which contributed to the Company's decision to lay
off the six employees involved. In this regard, the re-
marks of Warehouse Supervisor Fox in my opinion were
damaging and telling in this case . At the time, he was the
highest ranking supervisor in the plant, other than the
president, who had no direct contact with the employees
but did confer with Fox on the fateful morning of No-
vember 24. The three initial discharges took place in the
absence of the supervisor of those employees, who was
due to return the next regular working day, and also in
the absence of the Vice President Cochran, who had
overall responsibility for the day-to-day operations of the
plant and who was also due to return later the following
week. It is the swiftness and the tuning of the layoffs
that is most damaging to the Company. The General
Counsel having sustained its initial burden, that burden
then shifted to the Company to show that unprotected
activities, standing alone, would have caused the layoffs.
I find that burden was not sustained by the Company. It
is clear cut in this case that the Company's production
was seasonal and that the Company had indeed fallen on
bad times economically. There is also no doubt in my
to These three employees were Lemons, Creek, and Campbell They
did not testify in the case Crouch testified that Campbell wore a button,
and Brown testified that Lemons wore a button
11 Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir
1981), cert. denied 455 U.S 989 (1982), Wright Line test upheld in NLRB
v. Transportation Management Corp., 462 U S. 393 (1983).
QUALITY ALUMINUM PRODUCTS
mind that there would have eventually been layoffs.
However, I must deal in this case with the situation and
circumstances that actually existed on the various dates
of the layoffs. The Company 's own production figures
reflect that the major decrease in business did not occur
until December . It could be argued in this case that fore-
seeing some layoffs, the Company desired to save vaca-
tion pay or is some other manner curtail certain expenses
by beginning the layoffs on the heels of a holiday period.
However, there is absolutely no direct evidence in the
record to support the same. On the contrary , there is evi-
dence in the record to the effect that at least some notice
was given to employees in advance of their layoffs in the
past. Considering all the evidence and circumstances in
this case, I find that the Company 's asserted reasons for
the layoffs do not withstand scrutiny and were thus pre-
textual , and that the legitimate business reasons asserted
by the Company for the layoffs on the dates they oc-
curred was too insubstantial to overcome the direct and
indirect evidence of a motivation to frustrate the union
organization. Accordingly, I find and conclude that the
six layoffs involved in this case were violative of Section
8(a)(1) and (3) of the Act.
F. The Cards, the Union 's Majority, and the
Appropriate Unit
There were 11 signed union authorization cards admit-
ted into evidence in this case . Six of the cards were au-
thenticated by the actual signers in testimony , the re-
maining five cards were appropriately and adequately au-
thenticated by the testimony of either employee Mar-
shall, Crouch , or Caffee . I allowed arguments to be pre-
sented in the briefs filed herein regarding the admittance
of three cards signed by employees Campbell, Creek, and
Lemons. Regarding these three cards , the Company
argues in this case that these cards and all the other
cards were tainted and thus improperly admitted because
of the purpose for signing the cards . None of the cards
were defective on their face and all were completely ex-
ecuted and properly signed by the employee involved.
Employee Campbell was told by employee Caffee that
the card was "for getting a union started." The cards
were initially obtained when Caffee, Thompson, and
Crouch went to the on hall during their break on No-
vember 22. Caffee'did testify that at that time he and the
other two employees signed their cards to save their jobs
or prevent being laid off. However, he additionally indi-
cated that their purpose was to get the Union in at the
plant. In this regard , Robert Winstead, an assistant to the
Union's president, testified that he told the employees
who attended the November 23 meeting that the cards
were membership cards, would be a showing of interest
in the Union, and further added that if they were dis-
criminated against, the date on the card was important
because on and after that date their union support would
be protected activity . Winstead did indicate ' that at the
meeting potential layoffs were also discussed. Employee
Marshall gave employee Lemons his card and asked him
to sign it "to try to get the union started ." Lemons kept
the card for at least 1 day before he returned it to Mar-
shall and Lemons also wore a union button the morning
of November 24. Employee Creek was handed her card
347
by employee Crouch who indicated that she watched
Creek read the card , fill in all the blanks, and sign the
card . ' Creek- also wore a union button on November 24.
The union ' authorization cards admitted in the case
were single purpose cards and properly authenticated.
The cards on their face ' were unambiguous and clearly
stated that the signer authorized the Union to represent
the signer for the purpose of collective bargaining, and
not merely to seek an election . Such cards are valid
unless it is proved that the employee who signed the
card was told that the card was to be used solely for the
purposes of obtaining an election . 12 Such cards remain
valid notwithstanding the fact that in addition to the lan-
guage on the face of the card, the employees are told
about various other purposes such as for their own pro-
tection, to protect their jobs in the case of discrimination,
or to get the union started . Furthermore, the action of
the union supporters on the morning of November 24 in
wearing union buttons was most certainly protected and
concerted union activity, reflecting a desire of those em-
ployees to be represented by the Union . The record in
this case reflects that at least 9 out of the 11 card signers
wore union buttons on the morning of November 24. 1
find and conclude that all 11 of the union authorization
cards were properly admitted in this case for the purpose
of showing a majority support for the Union in the ap-
propriate unit involved in this case.
On November 24 there were 19 employees in the unit
involved, including Peggy Hutchinson, who the General
Counsel contends should not be in the unit by virtue of
being a supervisor under Section- 2(11) of the Act.
Hutchinson was Supervisor Young 's assistant in the pro-
duction department." Hutchinson did not sign a union
authorization card but employee Garland Brown did sign
'a card and the Company takes the position that Brown
was a guard within the meaning of Section 9(b)(3) of the
Act and thus should not be included in the appropriate
bargaining unit . With the 11 union authorization cards
admitted, the Union represents a majority of the employ-
ees in the unit whether or not Hutchinson or Brown are
included in the unit . Thus, I find it unnecessary in this
case to resolve the issue of inclusion or exclusion of
Hutchinson and Brown form the unit.14 Accordingly, I
find and conclude that from November 24 forward, the
Union represented a majority of those employees in the
unit.
The complaint alleges that the appropriate unit of em-
ployees in the Company for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
is as follows:
n NLRB v. Gissel Packing Co., 395 U .S 575 (1969), upholding the
Board's validity tests in Cumberland Shoe Corp, 144 NLRB 1268 (1963),
and Levi Strauss & Co, 192 NLRB 732 (1968 ). See also Montgomery Ward
& Co., 253 NLRB 196 (1980). -
18 These employees are named in the papers attached to the Stipula-
tion for Certification Upon Consent Election (Case 9-RC-14186) which
was admitted into evidence.
14 From the record in this case, my initial impressions would lead me
to conclude that Hutchinson should not be included in the unit, but
Brown would be properly included
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production , maintenance, warehouse and truck-
driving employees employed at the company's Lou-
isville , Kentucky facility ; but excluding all office
clerical, professional and all other employees and all
guards and supervisors as defined in the Act.
In its answer filed herein, the Company denies the appro-
priateness of this unit . However, the Company did stipu-
late to the appropriateness of the unit in the representa-
tion proceeding (Case 9-RC-14186) and produced no
evidence or argument at the hearing regarding the ap-
propriateness of the unit . I thus find and conclude that
the above-stated unit is an appropriate unit in the circum-
stances of this case for the purpose of collective bargain-
ing within the meaning of the Act.
On the foregoing findings of fact and initial conclu-
sions, and on the entire record , I make the following
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer engaged
in commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
2. The Charging Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent, acting through its foreman and
agent Charlie Fox, on November 24, 1982, at its Louis-
ville, Kentucky facility, made disparaging remarks to an
employee regarding employees who supported the
Union , identifying one such employee , thereby implying
and giving employees the impression of surveillance of
their union activities.
4. The Respondent acting through its foreman and
agent Charlie Fox, about November 24, 1982 , at its Lou-
isville, Kentucky facility , threatened an employee by
stating to the employee that the Respondent would dis-
charge employees who supported the Uion and would
close its facility because of the union activity of employ-
ees.
5. The Respondent, acting through its foreman and
agent Charlie Fox, on November 24, at its Louisville,
Kentucky facility , threatened employees with discharge
for engaging in the protected concerted activity of wear-
ing union buttons.
6. The Respondent , acting through its foreman and
agent Charlie Fox, on November 24, 1982, at its Louis-
ville, Kentucky facility, informed an employee that the
Respondent knew which employee had signed union au-
thorization cards and thereby gave employees the im-
pression that their union activities were under surveil-
lance.
7. The acts and actions of the Respondent as set forth
in paragraphs 3 through 6, above, constituted improper
interference , restraint, and coercion of employees by the
Respondent in the exercise of their rights guaranteed in
Section 7 of the Act, and are thus violative of Section
8(a)(1) of the Act.
8. The Respondent violated Section 8(a)(1) and (3) of
the Act by improperly laying off the following named
employees , on the dates appearing after their names, be-
cause they engaged in protected concerted activity in
support of the Union:
Gregory John Burden November 24, 1982
Garland Brown Jr. November 24, 1982
Donna Jean Crouch November 24, 1982
Ronald Caffee November 29, 1982
Gary Wayne Marshall November 29, 1982
Lydia Houchens December 1, 1982
9. The Charging Union is and has been since its
demand for recognition by the Respondent on November
24, 1982, the exclusive collective -bargaining representa-
tive of the Respondent 's employees in the following ap-
propriate unit:
All production , maintenance , warehouse and truck-
driving employees employed at the company's Lou-
isville , Kentucky facility; but excluding all office
clerical , professional and all other employees and all
guards and supervisors as defined in the Act.
10. On and after November 24 , 1982, the Respondent
unlawfully refused to recognize and bargain with the
Charging Union regarding the terms and conditions of
employment of the employees in the above unit, in viola-
tion of Section 8(a)(1) and (5) of the Act.
•11. The unfair labor practices found in paragraphs 3
through 6, 8, and 10, above, effect commerce within the
meaning of the Act.
THE REMEDY
Having, found that the Respondent herein has engaged
in certain unfair labor practices , I will recommend that it
be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the pur-
poses and policies of the Act. Since the independent vio-
lations of Section 8(a)(1) of the Act and the discriminato-
ry layoffs of 6 of the employees out of the unit of at least
18 employees in violation of Section 8 (a)(1) and (3) of
the Act and found herein are pervasive , I will recom-
mend a so-called broad order designed to suppress any
and all violations of those Sections of the Act. 1 5
Having found that the Respondent unlawfully laid off
the six named employees, I shall also recommend that
said employees be offered immediate and full reinstate-
ment to their former positions or, if those positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
The evidence in this case reflects that most if not all of
the laid-off employees have since been reinstated or
called back to work - To the extent that they have been
reinstated, that portion of the remedy requiring the same
is of course moot . In this regard , however, I shall further
recommend that the Respondent be required to make
those six employees whole for any loss of earnings that
they may have suffered by reason of the discrimination
against them , by paying to them a sum of money equal
to the amount they would normally have earned as
wages from the dates of their layoff to the date of the
Respondent's reinstatement , or offer of reinstatement,
less net earnings, with backpay and ,interest thereon to be
computed in the manner prescribed by appropriate Board
15 Hickmott Foods, 242 NLRB 1357 (1979)
QUALITY ALUMINUM PRODUCTS
law.1 s Should this case reach the compliance stage, the
Respondent should be allowed to offer evidence and
proof that any one or all of the six employees who were
laid off would have, in any event, been legitimately laid
off subsequent to their discriminatory layoff found
herein, in order to adequately and fairly mitigate any
amounts that may be due as lost wages. I shall further
recommend that the Company be required to preserve
and make available to Board agents, on request, all perti-
nent records and data necessary to analyze and deter-
mine whatever backpay may be due.
The General Counsel has asked that the Respondent
be ordered to recognize and bargain with the Charging
Union in this case . Such a remedy has been deemed and
held appropriate where the employer's conduct was so
prevasive and so outrageous as to prevent the holding of
a free and uncoerced election, and also where the Gener-
al Counsel has shown that the union had obtained valid
authorization cards from a majority of the employees in
the appropriate bargaining unit and it also has been
shown that the employer's violations were less extraordi-
nary and pervasive but nonetheless still had the tendency
to undermine the union's majority strength and impede
the election process. 17 I find that this case falls within
the latter category and, as requested, I shall recommend
that the Respondent be ordered to recognize the Charg-
ing Union a the collective-bargaining representative of
the employees in the appropriate unit in this case and, on
request, bargain with the Union over the terms'and con-
ditions of employment of the employees in said unit.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed's
ORDER
The Respondent, Quality Aluminum Products, Inc.,
Louisville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Laying off employees or otherwise discriminating
against them for supporting General Drivers, Warehou-
semen and Helpers Local Union No. 89, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America or any other
union.
(b) Creating in the minds of employees the impression
that their union activities and the union activities of
other employees are the subject of company surveillance.
16 F. W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp.,
231 NLRB 651 (1977). Also see generally Isis Plumbing Co., 138 NLRB
716 (1962).
17 NLRB v. Gissel Packing Co., supra.
18 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
349
(c) Threatening employees with discharge if they sup-
port the above-named Union or any other union.
(d) Refusing to recognize and bargain collectively
with above-named Union as the exclusive collective-bar-
gaining representative of all of the Respondent's produc-
tion, maintenance, warehouse, and truck driving employ-
ees employed at the Respondent's Louisville, Kentucky
facility.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Ronald Caffee, Donna Jean Crouch, Gary
Wayne Marshall, Gregory John Burden, Garland Brown
Jr., and Lydia Houchens immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privileges
previously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against them in the manner set forth in the
'remedy section of the decision.
(b) Recognize and, on request, bargain collectively in
good faith with General Drivers, Warehousemen and
Helpers Local Union No. 89, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, as the exclusive collec-
tive-bargaining representative of all production, mainte-
nance, warehouse and truck driving employees employed
at the Respondent's Louisville, Kentucky facility.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at the Respondent's place of business in Louis-
ville, Kentucky, copies of the attached notice marked
"Appendix." 19 Copies of said notice, on forms provided
by the Regional Director for Region 9, after being
signed by Respondent's authorized representative, shall
be posted by the Respondent immediately upon receipt
and shall `be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily placed. Reasonable steps shall be
taken by the Respondent to ensure that said notices are
not altered, defaced, or covered up by any other materi-
al.,
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
is 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 Nation-
al 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 "