R&S Truck Body Co.

National Labor Relations Board - Board Decisions

Feb 15, 2001

333 N.L.R.B. 330 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
R&S Truck Body Company, Inc. and National Con-
ference of Firemen and Oilers, Service Employ-
ees International Union, AFL–CIO. Cases 9–
CA–34153, 9–CA–34428, and 9–RC–16781
February 15, 2001
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On April 6, 1999, Administrative Law Judge Steven
M. Charno issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, R&S Truck Body Company,
Inc., Allen, Kentucky, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the challenges to the
ballots of the following employees are overruled: Greg
Adkins, Michael Auxier, Ernie Blevins, Nero Blevins,
Ronnie Castle, Terry Chaffins, William Chandler, Ervin
Collins, Thomas Floyd, Jeff Howard, DeWayne Ken-
drick, Willis Matthews, Ray Knott, Eric Newberry, Greg
Tackett, Randy Wiley, and Mike Williamson.
IT IS FURTHER ORDERED that Case 9–RC–16781
is severed from Cases 9–CA–34153 and 9–CA–34428,
and that it is remanded to the Regional Director for Re-
gion 9 for action consistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 9 shall, within 14 days from the date of this deci-
sion, open and count the ballots of the employees listed
above, and that he shall prepare and serve on the parties a
revised tally of ballots.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, some of the Respondent’s
exceptions allege that the judge’s rulings, findings, and conclusions
demonstrate bias and prejudice. On careful examination of the judge’s
decision and the entire record, we are satisfied that the Respondent’s
contentions are without merit.
If the revised tally of ballots in this proceeding reveals
that the Petitioner has received a majority of the valid
ballots cast, the Regional Director shall issue a certifica-
tion of representative. If, however, the revised tally of
ballots shows that the Petitioner has not received a ma-
jority of the valid ballots cast, the Regional Director shall
set aside the election and conduct a new election when he
deems the circumstances permit the free choice of a bar-
gaining representative.

Deborah Jacobson, Esq. and Theresa Donnelly, Esq., for the
General Counsel.
David K. Montgomery, Esq. and Heather L. Thurston, Esq.
(Keating, Muething & Klekamp, P.L.L.), of Cincinnati,
Ohio, for the Respondent.
Robert L. Templeton, Esq., of Ashland, Kentucky, for the
Charging Party.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In re-
sponse to charges timely filed, a consolidated complaint was
issued on June 6, 1997, which alleged that R&S Truck Body
Company, Inc. (Respondent) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act), by unlawfully dis-
criminating against its employees and interfering with their
exercise of protected rights. Respondent’s answer denied the
commission of any unfair labor practice.1
A hearing was held before me in Prestonsburg, Kentucky, on
July 8–9 and September 23–24, 1997. The record was held
open for the receipt of late-filed exhibits until October 2, 1997.
Simultaneous posthearing briefs were thereafter submitted by
the General Counsel and Respondent under extended due date
of December 11, 1997; the Charging Party filed a brief on De-
cember 15.2
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with facilities in Allen, Kentucky,
is engaged in the manufacture of truck bodies. Respondent’s
manufacturing operation is divided into four departments:
Steel, aluminum, “Page,” and Installation. During the 12
months preceding issuance of the complaint, Respondent, in the
course of its business, sold, and shipped goods valued in excess
of $50,000 to points outside the State. It is admitted, and I find,
that Respondent is an employer engaged in commerce within
the meaning of the Act.
The National Conference of Firemen and Oilers, Service
Employees International Union, AFL–CIO (Union) is a labor
organization within the meaning of the Act.
1 The complaint and answer were further amended during the hear-
ing in response to newly discovered evidence.
2 By motion served December 13, 1997, counsel for the Charging
Party seeks permission to file an untimely brief. For the reasons de-
tailed in that motion, permission is granted.
333 NLRB No. 50
R&S TRUCK BODY CO. 331
II. ALLEGED UNFAIR LABOR PRACTICES3
A. Background
In late May 1996,4 Respondent’s general manager, Charles
Collins, was told by a vendor that some of Respondent’s em-
ployees were interested in organizing a union. Collins so in-
formed Respondent’s president, William Smith Sr., who held a
series of employee meetings in June or early July at which un-
ionization was discussed. During at least one of these meet-
ings,5 Smith Sr. told his employees that (1) Respondent was
“bursting at the seams” with orders and was building a new
plant, (2) the employees should not sign union cards, and (3)
Smith would close the plant before allowing his employees to
bring in a union.6
In early July, employee Mark Salyer spoke with three other
employees in the presence of Foreman Bobby Hyden, an admit-
ted supervisor. Employee Hassel Hall asked Hyden if the latter
knew anything about the Union and Hyden replied in the nega-
tive. When Hall said the Union would be a good thing, bring-
ing better pay and benefits, Salyer responded that felt that he
was undercompensated and would be “all for” a union which
improved his working conditions.7 About 6 months prior to
this, employee Thomas Floyd had spoken favorably about un-
ionization to his immediate supervisor, Tony Culver, and the
then-Plant Manager Mike Langfield.8
On July 12, Respondent laid off employees Floyd, Salyer,
Mark Fraley, Craig Hall,9 Chris Pence, Jim Smith Jr., and
Grady Yates. Each employee received a notice signed by Re-
spondent’s plant manager, Bill Smith Jr., which stated:

Due to present economic conditions and lack of orders,
we are forced to have a layoff effective this date.
. . . .
We view this as a temporary situation and hope for
new orders in the near future that would make a recall pos-
sible.

3 Except as indicated, the following findings are based on uncontro-
verted evidence.
4 All dates hereinafter are 1996, unless otherwise indicated.
5 Smith Sr. testified that this meeting took place on June 4, 1996.
6 The first two statements in text are based on the credited testimony
of employee Ray Knott, which testimony was supported by Smith’s
purported script. The third statement is based on the patently unre-
hearsed and mutually corroborative testimony of Knott and employees
Greg Adkins, Ricky Blevins, Terry Chaffins, Mark Salyer, and Randy
Wiley. Smith denied making the threat attributed to him and provided
a document bearing the caption “Information Read To Employees June
4, 1966,” which did not contain the threat. The use of the past tense in
the document’s caption, together with the fact that none of the employ-
ees recalled Smith using a script at the meeting in question, suggest that
the document was prepared after the meeting, rather than used during it.
The fact that some employees who attended the meeting did not recall
whether Smith Sr. made the statement attributed to him is of limited
probative value. For these reasons and based on my observation of the
witnesses while in the hearing room, I credit the employees over Smith.
7 This finding is based on Salyer’s uncontroverted account.
8 This finding is based on Floyd’s uncontroverted testimony.
9 Craig Hall, who is so denominated in his layoff notice, is some-
times referred to in the transcript as “Greg” Hall.
Smith Jr. also met individually with Floyd and Salyer, iterating
the temporary nature of the layoff and telling each employee to
expect to be recalled when business was better.10 The person-
nel files of the laid-off employees contain “Do Not Rehire”
instructions.
B. August11
Subsequent to the employee meetings conducted by Smith
Sr., employees Jeff Howard and Ray Knott,12 after hearing
rumors that Respondent’s management “had our name al-
ready,” decided to contact the Union. They spoke with em-
ployee Greg Adkins, who contacted the Union’s national organ-
izer, Johnny Thacker; the latter scheduled a union meeting for
August 1. Adkins, Howard, Knott, Barry Bailey, Ricky
Blevins, William Chandler, and Bobby Rowe, all of whom
were employees in Respondent’s aluminum department, there-
after participated in discussions concerning the Union and the
upcoming meeting. On the morning of August 1, James Riley
Hall, aluminum department foreman and an admitted supervi-
sor, approached employee Terry Chaffins and warned him to
“stay out of the huddles.”13 Chaffins did so. That afternoon,
Hall directed Chandler, Howard, and Eric Newberry to report
Smith Jr. who informed at least one of them that that Respon-
dent was “going to have to let some of [them] go for a little
while.”14 The three received layoff notices which contained
language identical to that quoted above from the July 12 notice.
10 Floyd and Salyer testified to this effect, while Smith Jr. testified
that (1) the layoffs were not due to “economic conditions,” (2) the
layoffs were permanent, not temporary, and (3) he had never spoken
with the employees. I credit the employees’ testimony over that of
Smith Jr., whom I found to be a completely unreliable witness for the
following reasons: (1) his demeanor while testifying did not inspire
confidence in his veracity, (2) he was repeatedly forced to change his
story during cross-examination, (3) his accounts were often improbable,
illogical or internally inconsistent and (4) his testimony was sometimes
evasive and frequently in direct conflict with documentary evidence
taken from Respondent’s files.
11 There is evidence of a conversation, which “probably” took place
in August, between employees Greg Tackett and Ray Hall. The latter
was (1) J. R. Hall’s brother, (2) one of Respondent’s supervisors from
October 18, 1993, until his June 20, 1996 discharge, and (3) a statutory
employee from his July 15, 1996 rehire until the conversation. Citing
Beaird Industries, 311 NLRB 768 (1993), and United Cloth Co., 278
NLRB 583 (1986), the General Counsel contends that Ray Hall was
Respondent’s agent at the time of the conversation. Unlike the cases
relied on by the General Counsel, there is no evidence here that (1) the
listener believed or had reason to believe that the speaker was a mem-
ber of or still had authority to speak for the employer’s management or
(2) a close family bond existed between the speaker and the employer’s
owner which might give rise to apparent authority. I must therefore
reject the General Counsel’s contention.
12 Ray Knott, who is so identified in Respondent’s personnel re-
cords, is sometimes referred to in the transcript as “Knot.”
13 Chaffins credibly testified to this effect.
14 Howard’s testimony to this effect is supported by (1) the layoff
notices admittedly signed by Smith Jr. and (2) the August 1 memo to
Smith Jr. from his superior which directed the layoff and stated
“[m]aybe sales will improve enough a little later so that we can add
people back to these positions . . . .” Smith Jr. testified that the layoffs
were permanent, not temporary, and that he had no conversations with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
The next day, Knott asked J. R. Hall why Chandler and
Howard had been laid off. Hall replied that he “wished he
could tell [Knott] but it was out of his hands.”15 The same day,
Chaffins asked Hall if the latter thought the three laid-off em-
ployees would be recalled. Hall responded that they would
never be called back because they had been “talking Union.”
When Chaffins insisted that it was “just small talk,” Hall stated
that Respondent’s management thought that (1) Chandler was
the leader and (2) “all the Union talk is coming from the alumi-
num Shop.”16 Also on August 2, Foreman William Maynard,
an admitted supervisor, called aside “Page” department em-
ployees Dave Maynard, who was William’s brother, and Elmer
Watkins to let them “know what was going on.” The supervi-
sor told them that “the reason them boys got laid off was for
talking about the Union” and that John, a parts cleaner in the
“Page” department, had been laid off because Human Re-
sources found that he had been “causing problems at the last
place he worked.”17
During the last 2 weeks of August, J. R. Hall had conversa-
tions about the organizing campaign with several employees.
On August 16, Hall told Chaffins that he had seen Chaffins and
Knott leave for the union meeting the night before and warned
“that’s going to get you in a lot of trouble”; Chaffins responded
“I can’t help it James, I’ve got to do something.”18 Thereafter,
Hall told Chaffins and employee Ricky Blevins that “you boys
are going to be next”19 and, separately, told Chaffins and Adam

the laid off employees. For the reasons set out in this and prior foot-
notes, I do not credit Smith Jr.
15 Knott credibly so testified.
16 Chaffins so testified with convincing detail. Hall, who responded
with a general, summary denial, testified (1) in an inconsistent and self-
contradictory manner concerning his knowledge of employees’ union
activities and (2) in a manner directly contradicted by Foreman Hyden
concerning the degree of interaction between Respondent’s supervisors
and its labor consultant. Respondent argues on brief that Hall’s failure
to tell Knott the reason for the layoffs, while revealing those reasons to
Chaffins, effectively invalidates both accounts. Because I have no
difficulty with the concept that Hall might have reason to be more
forthcoming with a long-standing employee than with one of less ten-
ure, I must reject the argument. For the foregoing reasons and based on
the witnesses’ demeanor while testifying, I credit Chaffins over Hall.
17 Watkins so testified, while William Maynard denied the state-
ments attributed to him. Watkins was a straightforward witness who
(1) testified consistently on direct and cross-examination, (2) provided
convincing detail, (3) candidly made admissions damaging to the Un-
ion, and (4) was still in Respondent’s employ at the time he testified.
See Unarco Industries, 197 NLRB 489, 491 (1972). Contrary to Re-
spondent’s argument on brief, I find Human Resources Manager
Boduch’s testimony concerning the period he was on a leave of absence
to be too confused to be of probative value. For the foregoing reasons,
as well as the witnesses’ demeanor, I credit Watkins’ account over
Maynard’s summary denial.
18 Chaffins credibly so testified, while Hall generally denied spying
on employees and making threats. Based on the reasons set out above,
I credit Chaffins over Hall.
19 Chaffins’ credible testimony to this effect was supported by
Blevins’ testimony that Hall had told the two of them that they were
“gone.” Hall generally denied having made any threats. For the rea-
sons set out above, I again credit Chaffins over Hall.
Swiney that “it’s going to happen to you sooner or later.”20
Independently, Hall told Swiney that “he knowed what we was
doing and it was going to cause him to lose his job.”21 Toward
the end of the month, Hall was approached by employee Bob
Hall who pointed out that the workload was increasing and
asked when Respondent was going to bring back the laid-off
employees; J. R. Hall, in Adkins’ presence, replied “they’ll
never bring those boys back because of the Union.”22 On Au-
gust 27, the day after Ronnie Castle signed a union petition on
the road outside Respondent’s facility at quitting time, Hall
remarked “there goes another one” as Castle went by.23 Also
around August 27, Hall approached Adkins and, implicitly
referring to a decision to distribute literature reached at the
union meeting the night before, asked “what time is them boys
going to handbill out there?”24 Later that day, Hall again ap-
proached Adkins, stating “because you boys bring that damn
Union in here I’m going to lose my job.”25
During the last third of August, Smith Jr. had two encounters
involving the Union. The first took place on approximately
August 20, when Smith Jr. called in Nero Blevins, a crew
leader and assistant foreman (both nonsupervisory positions)
who had not hitherto openly supported the Union, and asked
whether the latter had “heard anything about the Union.” When
Blevins responded affirmatively, Smith Jr. asked him to “influ-
ence the younger employees, that [unionization] wasn’t good
for R&S.” When Blevins hedged, asking if he might receive
additional pay for serving as an assistant foreman, Smith Jr.
responded that he would “see what he could do . . . come . . .
evaluation time.”26 The second encounter began on August 21,
when Smith Jr. issued a written warning prepared by J. R. Hall
to employee Bobby Rowe. According to the text of the warn-
ing from Rowe’s personnel file, the nature of his “violation”
was “Union Activity” which consisted of “talking to people
during work about [the] union.” It appears uncontested that
Respondent’s employees are allowed to discuss sports and do-
mestic matters during working hours.27 On August 22, Rowe
approached Smith Jr. and requested a voluntary layoff. Smith
Jr. responded that there was no lack of work which would jus-
tify a layoff and stated that Rowe would have to resign. When
Rowe, who had received a good performance evaluation less
than a month before, did so, Respondent placed the following
20 For the reasons set out above and based on the witnesses’ de-
meanor while testifying, I credit Chaffins to this effect over Hall’s
general denial.
21 Swiney so testified and, based on the reasons set out above and on
the witnesses’ demeanor, I credit him over Hall’s general denial.
22 Adkins, who was still employed by Respondent when he took the
stand, so testified. See Unarco Industries, supra. Hall generally de-
murred. For the reasons set out above, I credit Adkins over Hall.
23 Castle credibly so testified and, for the reasons detailed above, I
credit his account over Hall’s denial.
24 Adkins credibly so testified and, for the reasons discussed previ-
ously, I credit his account over Hall’s denial.
25 For the reasons set out above, I credit Adkins’ testimony to this
effect over Hall’s general denial.
26 Nero Blevins testified cogently, consistently and without contro-
version concerning this conversation, and I credit him.
27 During his cross-examination, Smith Jr. made an admission to
this effect.
R&S TRUCK BODY CO. 333
notation on his employment record: “Do Not Rehire . . . Refer
To File.” There is no evidence that any other employee who
voluntarily quit was comparably treated.28
On August 22, employees Nero Blevins, DeWayne Ken-
drick, and Randy Wiley first attended a union meeting, during
which each signed the Union’s representation petition. The
following day, the three employees were told to report to Smith
Jr.’s office. When they arrived, they were (1) informed that
they were suspended for threatening and harassing unidentified
fellow employees, (2) not told the nature of the alleged threats
and harassment, and (3) assured that an investigation would be
conducted before any further action was taken by Respondent.
On August 26, Respondent terminated all three employees.
Internal appeals by Kendrick and Wiley resulted in their dis-
charges being upheld on September 5. When Blevins tried to
file an appeal around September 10,29 Collins rejected it, saying
that they weren’t going to change their minds about the dis-
charges.30 It appears uncontested that “[t]here really was no
investigation”31 and that the totality of Respondent’s investiga-
tive efforts consisted of (1) an August 23 tape recording of
harassment complaints by employees Leroy Cox and Moses
Frasier, (2) Smith Jr. ascertaining that neither Cox nor Frasier
could recall whether there were any witnesses to the alleged
harassment and (3) Smith Jr. asking Collins whether Cox and
Frasier could be believed.32 It also appears uncontested that,
prior to termination, Blevins, Kendrick, and Wiley were never
(1) told the identity of their accusers, (2) informed of the nature
of the accusations made against them, or (3) asked for their
versions of events or for the names of witnesses. Smith Jr.
reasoned that such a confrontation was not required because he
had already decided to believe Cox and Frasier. Smith Jr. fur-
ther illogically contended that he did not need to assess the
credibility of Blevins, Kendrick, and Wiley33 before firing them
because (1) they failed to deny the alleged facts underlying
their suspensions, which facts were concededly unknown to
them, and (2) there were inconsistencies in the stories told by
Kendrick and Wiley after they were discharged.
During a lunch hour in August, employee Greg Tackett, who
had been discussing the Union with a group of employees at a
table in Respondent’s cafeteria, rose to his feet and loudly com-
mented “Charles Collins started the Union when he fired Mike
Langfield.” Immediately thereafter, Foreman Hyden called
Smith Jr. on a two-way radio and asked to see him im-

28 Findings concerning Rowe’s warning and departure from Re-
spondent’s employ are based on the documentation in his personnel
file. To the extent that Smith Jr.’s testimony may be thought inconsis-
tent with those documents or to deny the relationship between the “Do
Not Rehire” decision and the August 21 warning, I do not credit Smith
Jr. for the reasons set forth in prior footnotes.
29 Collins conceded that the employees were not given a deadline by
which to appeal.
30 Blevins credibly testified to this effect without controversion.
31 Smith Jr. testified to this effect on cross-examination.
32 Smith Jr. so testified.
33 Smith Jr. conceded that he did not ask Collins whether Blevins,
Kendrick, and Wiley could be believed.
mediately.34 On August 25 or 26, Hyden asked Mitchell Goble
if the latter knew why Blevins, Kendrick, and Wiley had been
suspended. When Goble suggested that Hyden was aware of
the reason, Hyden responded affirmatively, stating “I’ve
warned them boys about getting mixed up in that Union
stuff.”35 In an August 28 conversation with employees Brad
Meadows and Donald Morrison, Hyden agreed that Smith Sr.
“would shut down before he would let it go Union or let anyone
try to control his company.”36 The next day Hyden, while driv-
ing Morrison to the hospital after a forklift accident, said he
didn’t know how Morrison felt about the Union but that Smith
Sr. had said that (1) he didn’t have any of his own money in-
vested in a proposed, nearby expansion site and (2) he would
close his Kentucky facilities and go to Florida (where Respon-
dent concededly had an unused truck body manufacturing facil-
ity37) “before he’d let it go Union.”38
At a mandatory captive audience meeting for Respondent’s
employees which took place on or about August 26,39 Collins
made a presentation about the Union’s organizing campaign,
copies of which were handed out, which contained the follow-
ing language:

AT THIS POINT, ALL THIS ACTIVITY IS SERVING NO
ONE. IT’S AFFECTING PRODUCTION PROFITS AND
YOUR PROFIT SHARING MONEY. . . . IF THEY GET A
LARGE ENOUGH NUMBER OF LEGITIMATE PEOPLE
TO SIGN THE PETITION, WE WILL DO WHATEVER IS
NECESSARY IN THE FUTURE TO MAKE SURE R/S
REMAINS A NON-UNION MANUFACTURER. . . . YOU
HAVE A CHOICE! DON’T LET PEOPLE PRESSURE
YOU INTO DOING SOMETHING AGAINST YOUR
WILL. DON’T LET ANYONE INTIMIDATE OR
THREATEN YOU. PLEASE LET US KNOW IF ANY OF
THESE TACTICS HAPPEN.40

At the close of business on August 29, J. R. Hall informed
aluminum department employees Greg Adkins, Ernie Blevins,
Ronnie Castle, Terry Chaffins, Adam Swiney, Greg Tackett,
and Mike Williamson that they were being laid off for lack of
work. Each of the employees was given a notice from Smith Jr.
34 Tackett and Rodney Goble Sr. so testified. Hyden, who denied
making the call, displayed poor recall of his training as a supervisor
during an organizing campaign and most of his testimony on direct
examination was elicited in response to highly suggestive, leading
questions by Respondent’s counsel. For these reasons and based on the
witnesses’ demeanor, I credit Tackett and Goble over Hyden.
35 I credit Goble’s uncontroverted testimony to this effect. Because
the leading question addressed to Hyden was phrased prospectively, his
response did not constitute a denial of the comment attributed to him.
36 Morrison so testified in a convincingly detailed and consistent
manner. For the reasons set out above and based on the witnesses’
demeanor, I credit Morrison over Hyden’s denial.
37 Smith Sr. testified to the existence of this facility.
38 For the reasons set forth previously, I credit Morrison’s testimony
to this effect over Hyden’s partial denial.
39 The date of the meeting is drawn from Ray Knott’s testimony,
which is supported by the April 8, 1997 affidavit of Rodney Goble Sr.
placing the meeting in August.
40 This language is taken directly from Respondent’s handout at the
meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
which stated “[d]ue to present economic conditions and lack of
orders, we are forced to have a reduction in force effective this
date.” After the other employees had left, Chaffins approached
J. R. Hall and asked the reason for the layoff. Hall replied “you
know why you’re getting laid off . . . it was over you talking
Union . . . you knowed what you was getting yourself into . . . ”
and asked whether Ray Knott was “in on it.” When Chaffins
responded in the affirmative, Hall asked if Knott was “the
leader.” Chaffins replied, “I can’t answer that question James”
and left.41 The following day, Knott returned from vacation
and was laid off. All eight of the laid-off employees had signed
the union representation petition prior to the layoff.
On August 30, Steel Department Foreman Sy Hamilton, an
admitted supervisor, departed from his usual custom by visiting
Ricky Blevins in the latter’s work area. Hamilton asked the
location of Mike Williamson, Blevins replied that Williamson
had been laid off, Hamilton asked if Williamson was “one of
them” and, in response to Blevins’ query as to Hamilton’s
meaning, the latter responded “you know.”42
Also on August 30, the Union filed the representation peti-
tion which initiated Case 9–RC–16781.
C. September
On September 6, Chaffins and Knott, while visiting Respon-
dent’s facility to pick up their paychecks, spoke with Smith Jr.
Knott asked why Respondent laid him off rather than transfer
him to another position in accord with the policy articulated in
the employee handbook. Smith Jr. replied, “there are no open-
ings now . . . as soon as works [sic] picks up you all will be
hired back . . . .”43 The same day, Respondent sent letters to the
employees laid off on July 12 and August 1 stating “[b]ecause
of the permanent nature of the August 29, 1996 reduction in
force, we need to change your layoff status to permanent reduc-
tion in force.”
Between 2 and 3 weeks after handing out union literature in
Respondent’s parking lot in the presence of J. R. Hall, Hyden,
and Smith Jr., Mitchell Goble was suspended and terminated on
September 19 by Smith Jr., purportedly for violating Respon-
dent’s attendance policy. Goble was not issued an August 22
attendance warning purportedly given to him.44 After Goble
missed work on September 18, he arrived at Respondent’s
facility on September 19 with documentation that pregnancy
complications had required him to take his wife to the hospital

41 Findings concerning this conversation are based on Chaffins’ tes-
timony, which I credit over Hall’s general denial for the reasons set out
above.
42 Blevins credibly so testified without controversion.
43 Chaffins’ credible testimony concerning the exchange was sup-
ported in part by Knott. To the extent that Smith Jr.’s testimony is
thought to be inconsistent with that of Chaffins and Knott, I do not
credit Smith Jr. for the reasons set forth in prior footnotes.
44 Goble’s testimony that he had never seen the August 22 warning
before his discharge is supported by the fact that the warning did not
bear his signature, unlike the other disciplinary actions in his file. On
cross-examination, Smith Jr.’s testimony concerning the missing signa-
ture was confused and internally inconsistent and he could not recall
the circumstances surrounding the August 22 warning or identify the
conduct for which Goble allegedly received it. For the reasons set out
in this and prior footnotes, I do not credit Smith Jr.
the day before.45 A September 19 notation in Goble’s person-
nel file indicates that another employee had reported to Re-
spondent that Goble had attended a union meeting the day be-
fore. The record contains no evidence of any legitimate reason
why the comment should appear on the papers relating to
Goble’s discharge, since the meeting in question took place
after Goble’s scheduled working hours.46
D. October
During the week preceding the October 11 representation
election, Respondent held a series of mandatory captive audi-
ence meetings at a local hotel. At one meeting for second-shift
employees, Hal Craft, an agent of Respondent,47 stated “Bill
Smith did not have to put his plant here . . . he could shut it
down any time he wanted to.” In response to Craft’s request
for corroboration, Smith Sr. then confirmed that he could “just
close down the whole shop.”48
On the evening of October 10, the Union held a voluntary
rally attended by 50 to 60 of Respondent’s employees at a state
park near the facility. Based on advice that Craft had been
telling Respondent’s employees that the Union’s contract with
Cook Family Foods only provided for 5-cent annual wage in-
creases,49 Daniel Anderson Jr., the Union’s vice president,
showed the employees a copy of the Cook Family Foods con-
tract which he said permitted total hourly wage gains of ap-
proximately $2 over the contract’s 4-year life.50
45 Goble so testified and the documentation upon which he relied is
of record.
46 For the reasons set out prior footnotes, I do not credit Smith Jr.’s
testimony that he did not consider the comment when deciding to dis-
charge Goble.
47 My finding concerning agency is based on Smith Sr.’s admission
that he hired Craft who conducted the captive audience meetings, as
well as uncontroverted employee testimony that Craft conducted those
meetings in Smith Sr.’s presence.
48 Findings concerning this meeting are based on the mutually sup-
portive and credible testimony of employees Rodney Goble Jr. and
Douglas Isaac. Smith Sr. admitted attending the meeting run by Craft
but did not attempt to refute the account given by Goble and Isaac.
While Craft testified in contravention of a portion of the two employ-
ees’ testimony, he refused to answer questions relevant to the issue of
his bias, thereby demonstrating a total lack of respect for his oath to tell
the whole truth, as well as contempt for the processes of this Board.
For this reason and based strongly on his demeanor while in the hearing
room, I refuse to credit any of Craft’s testimony which might be
thought favorable to Respondent.
49 For the reasons set forth previously, I reject Craft’s testimony that
he did not make the statement in question.
50 These findings are based on Anderson’s testimony, which is sup-
ported by the contract in question. Employee Ritchie Martins testified
on behalf of Respondent that Craft had showed him a copy of the con-
tract with wage rates of “like seven something” and that the wage rates
in a contract displayed at the union meeting were $1.50 to $2 higher.
Martins did not testify that the Union had characterized Craft’s copy of
the contract as a “fake” (an affidavit prepared by Respondent contains a
reference to this effect); indeed, Martins was not even able to recall
who spoke about the contract’s wage rates on behalf of the Union.
Martins was a troubling witness for a number of reasons: (1) his testi-
mony was confused and he clearly had no present recollection at the
time he testified as to any relevant probative fact, (2) his description of
the way wages were set forth in the Cook Family Foods contract is
R&S TRUCK BODY CO. 335
On October 11, Thomas Floyd arrived at Respondent’s plant
in order to vote in the representation election. After being told
by Respondent’s Receptionist that he was ineligible to vote,
Floyd was ushered outside by Hyden. The two talked about
Floyd getting his job back with Hyden stating that “business
was picking back up . . . and they were talking about starting
the job back on second shift.” Hyden went on to state that (1)
“right now was a bad time to be in the facilities . . . since all
this Union stuff was going on,” (2) it was “[b]est to leave eve-
rything alone” and “best not to get involved” and (3) Floyd
should call him later at home concerning the job.51
Also on October 11, Smith Jr. approached employee William
Ward outside a door to the facility and began a conversation
which included (1) Smith Jr.’s acknowledgment that Respon-
dent had made mistakes in the past, (2) Ward’s agreement and
(3) the new Plant Manager’s entreaty: “give me a chance,
that’s what I’m here for, to correct those mistakes.”52
The October 11 election was conducted for employees in the
following stipulated unit:

All full-time and regular part-time production and mainte-
nance employees employed by Respondent at its main and
“Page” facilities located at 5165 Kentucky Route 1428, Allen,
Kentucky, including, but not limited to crew leaders, miscel-
laneous labor, welders, janitors, power take-off, truck drivers,
electricians, mechanics, aluminum wash, quality control in-
spectors, painters, clean-up/production, forklift operators, out-
side clean-up, small parts, special equipment operators, fitters,
tackers, press/shear, trailer assembly, parts runner, parts win-
dow clerk, receiving clerk, shipping clerk, shipout clerk and
UPS shipping clerk, but excluding all sales persons, manage-
rial employees, office clerical employees and all professional
employees, guards and supervisors as defined in the Act.53

Respondent won the election by a one-vote margin of the 111
ballots counted. Nineteen ballots were challenged; 14 of the

completely mistaken (examination of either of the copies of the contract
in evidence shows different wages for production and maintenance
workers, as well as job classification and skill differentials, whereas
Martins testified that the only wage rate differences were due to
longevity), (3) it is uncertain from Martin’s conflicting accounts
whether he actually examined a copy of the Cook Family Foods
contract on October 10, (4) his contemporaneous handwritten notes of
what occurred had been surrendered to Respondent and were no longer
in existence at the time of the hearing, and (5) a later affidavit prepared
by Respondent in anticipation of litigation, which Martins confirmed
under oath to be “exactly” the same as his handwritten notes, contained
statements shown to be incomprehensible to him. For the foregoing
reasons and based heavily on his demeanor while on the stand, I find
Martin’s account to be unreliable.
51 Floyd cogently so testified with convincing detail, while Hyden
denied a portion of the comments attributed to him. For these reasons,
as well as those set forth in prior footnotes, and based on my observa-
tion of the demeanor of both witnesses while testifying, I credit Floyd
over Hyden.
52 Wood credibly testified to this effect, while Smith Jr. did not di-
rectly testify concerning the interchange.
53 This unit description was drawn from the Stipulated Election
Agreement entered by Respondent and the Union on September 10 and
approved by the Regional Director on September 12.
challenges were interposed by a Board Agent and 5, by the
Union.
E. Postelection Activities
Shortly after the election, Respondent eliminated its second
shift. Of the 28 employees on the second shift at that time, 1
left Respondent’s employ, 22 were transferred to the same posi-
tion at the same rate of pay on the first shift, 2 crew leaders
were demoted to less-skilled installation welder positions at the
same rates of pay, and 1 installation welder was demoted to a
less-skilled tacker position54 at the same rate of pay. Only two
employees from the second shift were offered a demotion to a
first-shift position at reduced pay:55 Rodney Goble Jr. and
Doug Isaac. Both men were outspoken union supporters,
whose organizing activities during the month before the elec-
tion were known to Respondent’s management.56 Isaac, a
trailer assemblyman who had been making $7.25 per hour on
the second shift, was offered a $6.50-an-hour cleanup position
on the first shift. Isaac declined the position, explaining to
Smith Jr. that he could not afford to work at the offered wage.
The next day, Rodney Goble Jr., the parts window clerk on the
second shift earning $6.50 an hour, was offered the same
cleanup position at $6 an hour and accepted it, only to resign
the following day.
In December or the following January, Rodney Goble Jr.
telephoned Gary May, who had been Goble’s supervisor when
the former was a parts window clerk, and asked if May could
help Goble get his job back; May responded that he would see
what he could do. Sometime in January, Respondent’s parts
window clerk was discharged and the position was filled inter-
nally. Respondent has often rehired employees who quit or
were terminated.
On February 4, 1997, Robert Boduch, Respondent’s human
resources manager, began calling the following former employ-
ees in order to offer them jobs: Greg Adkins, Ernie Blevins,
Ronnie Castle, John McFarland, Mark Salyer, Chris Spence,
Adam Swiney, Greg Tackett, and Mike Williamson.57 The
offers to known union adherents Adkins, Blevins, and Swiney
required them to fill out applications as “new hires,” forfeit the
seniority they had accrued, go through a probationary period,
not take vacation for 12 months and for Adkins to submit to a
new welding test and Blevins to take a cut in pay.58
F. Discussion
1. Interference with employee rights
The record is replete with evidence of animus toward the
Union at every level of Respondent’s management. Respon-
dent’s president, Smith Sr., threatened plant closure at the out-
set of the Union’s organizing efforts in June or early July and
54 Smith Jr. conceded that, while welder is a skilled position, tacker
is “not really classified as a skilled position.”
55 The salaried second-shift supervisor was offered a position on the
first shift as an hourly employee.
56 I credit the uncontroverted testimony of Goble and Isaac to this
effect.
57 Boduch’s contemporaneous notes so indicate.
58 This finding is based on Boduch’s notes and the uncontroverted
testimony of Adkins, Blevins, and Swiney.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
confirmed a plant closure threat made by Respondent’s con-
sultant during the week before the representation election.
During an August 26 captive audience meeting, Respondent’s
general manager, Charles Collins, impliedly threatened profit
sharing reductions and other unspecified reprisals for union
involvement and encouraged employees to report union solici-
tations to Respondent. See Bil-Mar Foods of Ohio, 255 NLRB
1254 (1981). Plant Manager Smith Jr., in addition to initiating
the discriminatory personnel actions discussed below, interro-
gated Nero Blevins, solicited his aid in campaigning against the
Union, and impliedly promised to reward him for that aid. On
the day of the election, Smith Jr. also impliedly promised im-
proved working conditions if the Union was defeated. All of
these activities constitute violations of Section 8(a)(1) of the
Act.
During the campaign, Respondent’s front line supervisors
repeatedly delivered a double message that the employees’
union activities were known to Respondent and that Respon-
dent would punish union supporters. Aluminum department
employees were subjected to Foreman J. R. Hall’s (1) August 1
admonition to stay out of discussions about the Union,59 (2)
August 2 declarations that Respondent’s management believed
(a) Chandler was the leader of the organizing campaign and (b)
the aluminum department was the campaign’s wellspring, (3)
August 2 statement that the aluminum department employees
laid off the prior day would never be recalled because of their
union activities, (4) August 16 comment to Chaffins creating an
impression of surveillance, (5) August 16 threat to Chaffins of
unspecified reprisals because of the latter’s union activities, (6)
August 16 threat to two employees that they would be among
the “next” to leave Respondent’s employ, impliedly as a result
of engaging in union activities,60 (7) August 16 threat to two
employees that they would be discharged, impliedly as a result
of their union activities,61 (8) August 16 comment to Swiney
creating the impression of surveillance,62 (9) August 27 com-
ments to Adkins creating the impression of surveillance, (10)
August 27 interrogation of Adkins concerning the latter’s union
activities,63 (11) August 29 interrogation of Chaffins concern-
ing another employee’s union activities, and (12) a declaration
to Chaffins that he was being laid off on August 29 for engag-
ing in union activities. Employees in the “Page” department
were told by Foreman Maynard on August 2 that (1) the August
1 layoff of three aluminum department employees took place
because those employees were engaged in union activities, (2)
Respondent had contacted the prior employer of a “Page” De-
partment employee concerning that employee’s activities dur-
ing his prior employment and (3) that a “Page” department
employee had been laid off by Respondent for, by implication,
engaging in union activities during his prior employment. Re-
spondent’s employees received the message from Foreman
Hyden in the following manner: (1) an August radio call from

59 The complaint does not contain an allegation relating to this con-
duct.
60 Ibid.
61 Ibid.
62 Ibid.
63 Ibid.
Respondent’s cafeteria which created an impression of surveil-
lance,64 (2) a declaration made around August 25 that three
employees had been suspended for engaging in union activities,
(3) an August 28 confirmation of a threat of plant closure, and
(4) an August 29 threat of plant closure. In the steel depart-
ment, Foreman Hamilton implied that the August 29 layoff was
due to the union activities of the laid-off employees. To the
extent that the foregoing supervisory actions were alleged to be
unlawful in the complaint, I find that they constituted unfair
labor practices violative of Section 8(a)(1) of the Act.65 I fur-
ther find that Hyden’s October 11 comments to Floyd did not
rise to the level of an unlawful promise of benefit.
2. Discrimination against individual employees
It is undisputed that Smith Jr. gave Rowe an August 21 writ-
ten warning for talking to fellow employees about the Union, at
a time when Respondent permitted employee working time
conversations about all other subjects. That warning is an un-
fair labor practice violative of Section 8(a)(3) of the Act. See
Orval Kent Food Co., 278 NLRB 402, 407 (1986).
The General Counsel contends that the suspensions and ter-
minations of Blevins, Kendrick, and Wiley were unlawful.
Respondent counters that the employees were discharged for
threatening or intimidating fellow workers who did not support
the Union. The record contains overwhelming evidence of
Respondent’s animus toward the Union. The record clearly
demonstrates that Respondent was kept apprised of the union
activities of its work force,66 and the employees in question
were terminated on the day after their first public involvement
with the Union. Finally, there is not a scintilla of evidence that
Respondent conducted any kind of investigation of the underly-
ing harassment complaints between the time it suspended
Blevins, Kendrick, and Wiley “pending investigation” and the
time it fired them. Based on the foregoing facts, I find that
Respondent’s purported basis for the three terminations is pre-
textual.67 This finding is buttressed by Foreman Hyden’s
statement that the discharges were due to union activities. Ac-
cordingly, I conclude that the suspensions and discharges of
Blevins, Kendrick, and Wiley were unfair labor practices in
violation of Section 8(a)(3) of the Act.
The General Counsel argues that Mitchell Goble’s Septem-
ber 19 discharge was unlawful. Respondent counters that
Goble was terminated for absenteeism pursuant to the com-
64 Ibid.
65 Respondent appears to argue that holding a supervisor training
session on union organizing in April or May and another when Craft
was hired several weeks before the election effectively eliminates any
possibility that its supervisors violated the Act. At the time of the first
session, the supervisors had no reason to believe that the training had
any direct relevance to their jobs. Almost all of unlawful supervisory
conduct took place 3 to 4 months after the first session and prior to the
second. For the foregoing reasons, I find Respondent’s argument un-
persuasive.
66 Illustrative are the note in Mitchell Goble’s personnel file and J.
R. Hall’s foreknowledge of union handbilling.
67 This finding moots the question of whether the complaints made
by Cox and Frasier, if believable, would have justified the dispropor-
tionately harsh and demonstrably disparate discipline imposed on
Blevins, Kendrick, and Wiley.
R&S TRUCK BODY CO. 337
pany’s progressive disciplinary system. I infer from the recor-
dation of Union activity in Goble’s personnel file that he was a
subject of Respondent’s demonstrated antiunion animus at the
time of his discharge. It is uncontested that Goble would not
have been fired on September 19 absent the August 22 warn-
ing.68 Given my earlier finding that no such warning was is-
sued to Goble, I find that the purported reason for his termina-
tion was pretextual. I therefore conclude that his discharge was
an unfair labor practice violative of Section 8(a)(3) of the Act.
The General Counsel requests a finding that Doug Isaac and
Rodney Goble Jr. were subjected to discriminatory pay cuts.
Respondent apparently argues that Isaac and Goble were the
only employees to be transferred to a different positions when
the second shift was eliminated,69 the two were demoted to a
less-skilled position and were offered wage rates which were
“high for that job” but low enough to be “fair to everybody
else.”70 Respondent’s argument is without support in the re-
cord. First, there were five employees who were transferred to
less-skilled jobs when the second shift was eliminated; only
two—Isaac and Goble—suffered pay reductions. Second, Re-
spondent’s fairness contention loses much of its impact in view
of the fact that at least one of the transferred employees whose
pay was not cut was allowed to earn significantly more than
other employees with the same job.71 Third, the minimum rate
for the same clean-up position three and one-half months later
was higher than the rate offered either Isaac or Goble.72 Fi-
nally, Respondent offered Isaac and Goble the same clean-up
position at different rates of pay; if Goble had been offered the
rate quoted to Isaac, it would not have been a pay cut for Goble.
In sum, there is no evidence that Isaac and Goble were offered
either a relatively high rate of pay for the cleanup position or a
rate that was fair. Based on these facts, as well as Respon-
dent’s antiunion animus and its undisputed knowledge of the
union activities of Isaac and Goble, I find the pay reductions
were discriminatorily motivated and therefore violative of Sec-
tion 8(a)(3) of the Act.73 Given (1) the demonstration of dis-
crimination against Goble in the matter of his pay reduction, (2)
Goble’s expressed desire in December 1996 or January 1997 to
return to Respondent’s employ, (3) the availability in January
of the parts window clerk position Goble had previously held
and (4) Smith Jr.’s exclusion of Goble from the list of former
employees who were offered reemployment at the beginning of
February 1997,74 I conclude that the General Counsel has made
out a prima facie case that Respondent’s failure to rehire Goble

ividuals.

68 After unsuccessfully attempting to evade a direct answer, Smith
Jr. was forced during cross-examination to concede that Goble would
not have been terminated but for the August 22 warning.
69 Respondent states on brief that a supervisor was “the only other
individual who changed jobs as a result of the shift elimination.”
70 Smith Jr. advanced this rationale during his testimony.
71 Documentary evidence establishes that Johnny Justice, an installa-
tion welder demoted to tacker, continued to earn $7.25, when the rate
of pay for tackers was between $5.85 and $6.
72 Boduch’s documents indicate a minimum rate of $6.75 at the be-
ginning of February 1997.
73 Because neither Isaac nor Goble was alleged in the complaint to
have been constructively discharged, I will not address the issue.
74 After some confusion, Boduch testified to this effect.
was discriminatorily motivated. Respondent has not rebutted
this showing with evidence or argument.75 Accordingly, I con-
clude that Respondent’s failure to rehire Rodney Goble Jr. was
an unfair labor practice in violation of Section 8(a)(3) of the
Act.
The General Counsel contends that Respondent’s February
1997 offers to rehire certain discriminatees on the condition
that those individuals waive all rights accrued in their former
employment with Respondent are discriminatory. The record is
clear that a host of employees have been laid off and recalled
by Respondent without loss of seniority. Indeed, the only in-
stance in which employees recalled from layoff were consid-
ered “new employees” by Respondent appears to be its Febru-
ary 1997 offers to three known union adherents. Respondent
has offered no explanation for its blatantly punitive behavior. I
therefore find that the conditional job offers to Adkins, Blevins,
and Swiney were discriminatory and conclude that those offers
violate Section 8(a)(3) of the Act. The record is silent on the
question of whether the job offers extended to Castle,
McFarland, Pence, Salyer, Tackett, and Williamson were
conditioned in the same manner as those discussed above; I
shall therefore recommend dismissal of that portion of the
complaint pertaining to these six ind
3. The layoffs
a. July 12 layoff
The General Counsel contends that Respondent laid off
seven employees on July 12 in a discriminatory attempt to quell
support for the Union, while Respondent argues that the layoff
was required for legitimate business reasons.76 The record
establishes that (1) the layoff took place shortly after Respon-
dent commenced its counter-offensive to the Union’s organiz-
ing campaign, (2) the highest level of Respondent’s manage-
ment had displayed significant antiunion animus at the time of
the layoff, (3) the layoff appears to be the first in which the
laid-off employees had “Do Not Rehire” instructions placed in
their personnel files, (4) Respondent was shown to have actual
knowledge that at least two of the laid-off employees were
union supporters, and (5) some of Respondent’s employees
informed it of the prounion activities and sympathies of other
employees. Smith Jr.’s initial rationale that the layoff was re-
quired by “economic conditions and lack of orders,” which he
articulated in the July 12 layoff notices and in his contempora-
neous conversations with the laid off employees, was reaf-
firmed in Respondent’s October 18 position statement.77 No
evidence was offered at the hearing to show the purported lack
of orders. Instead, Smith Jr. testified that (1) the seven em-
75 Respondent did contend that Goble had forfeited any right of re-
call by quitting. Interestingly, Respondent also argued that its lack of
discriminatory intent toward Goble was demonstrated by its refusal to
grant his request to be laid off, thereby forcing him to quit.
76 While the July 12 layoff of Pence and Smith was not alleged in
the complaint, it was fully litigated and briefed by both the General
Counsel and Respondent. I therefore conclude that the lawfulness of
those layoffs may be resolved in this decision without prejudice to
Respondent.
77 Respondent there maintained that the July 12 layoff was “due to
declining orders.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
ployees had been laid off to improve efficiency,78 (2) he pur-
portedly used varying criteria to select the specific employees
to be laid off, including the ultimately subjective standards of
skill and experience, (3) he did not terminate the seven employ-
ees for cause and he would have transferred them, rather than
laid them off, if their services had been needed anywhere else
in the facility, and (4) he was personally responsible for the
“Do Not Rehire” instructions. Based on the shifting, implausi-
ble, and internally inconsistent rationale for the layoff offered
by Respondent, I find its purported justification to be pretex-
tual. Given (1) Respondent’s demonstrated animus, (2) its
knowledge of the union campaign, (3) the timing of the layoff,
(4) the disparate rehire treatment accorded the employees laid
off on July 12, and (5) the pretextual justifications advanced for
the layoff, I infer that Respondent had actual knowledge of
prounion sympathies on the part of all seven employees. See
Montgomery Ward & Co., 316 NLRB 1248 (1995). I therefore
conclude that the July 12 layoff was discriminatorily motivated
and violative of Section 8(a)(3) of the Act.
b. August 1 layoff
The General Counsel contends that Respondent’s August 1
layoff of aluminum department employees Chandler, Howard,
and Newberry was discriminatory;79 Respondent maintains that
it was required by a “reduction in new sales.”80 Facts which
bear directly on Respondent’s knowledge of the employees’
union activities, as well as its motivation for the layoff, include
(1) Aluminum Department Foreman Hall’s awareness prior to
the layoff that the employees under his supervision were dis-
cussing the Union, as evidenced by his instruction to Chaffins
to stay out of such conversations, (2) Hall’s declaration on the
day after the layoff that Respondent’s upper management be-
lieved the aluminum department to be the source of the union
campaign and Chandler, the campaign’s leader, (3) August 2
statements by Hall and Foreman Maynard to the effect that
Chandler, Howard, and Newberry had been laid off for engag-
ing in union activities, and (4) Hall’s mid-August statement that
Chandler, Howard, and Newberry would not be recalled be-
cause of their union activities. Further facts relating to Re-
spondent’s motivation include the following: (1) Respondent
had been “bursting at the seams” with orders less than 2 months
before, (2) a week before the layoff, Hall stated that he didn’t
believe there was going to be a layoff since there was enough
work to keep the aluminum department busy through Septem-
ber or October, (3) the layoff took place the same day as the
first scheduled union meeting and involved one of the meet-

78 Smith Jr. testified to the effect that he determined the number of
employees to be laid off by arriving at production quotas for the various
departments and by dividing each quota by an idealized amount of
production per man, which resulted in the correct number of men per
department; he then laid off any employees beyond this number, appar-
ently on the theory that the production of the remaining men would
increase to meet the quota.
79 The layoff of “Page” department employee John MacFarland was
not alleged in the complaint nor argued by the General Counsel on
brief. Accordingly, I will not address MacFarland’s layoff in this deci-
sion.
80 Collins so testified.
ing’s organizers, (4) Smith Jr. selected the employees to be laid
off based on their seniority in the positions they held on August
1 (job seniority)81 and did not consider company seniority or an
employee’s ability to fill other positions (the latter in seeming
disregard of Smith Jr.’s marching orders to improve effi-
ciency)—job seniority was apparently the only selection crite-
rion which would allow Respondent to pick Chandler, Howard,
and Newberry for layoff.82 For the foregoing reasons, as well
as those discussed in connection with the July 12 layoff, I find
that Respondent’s August 1 layoff of Chandler, Howard, and
Newberry was due to Respondent’s belief that those employees
supported the Union. Accordingly, I conclude that the layoff
was an unfair labor practice in violation of Section 8(a)(3) of
the Act.
c. August 29 reduction in force
The General Counsel contends that the reduction in force af-
fecting eight more aluminum department employees on August
29 and 30 was also discriminatorily motivated; Respondent
demurs on grounds similar to those it advanced with respect to
the August 1 layoff. The following facts are material to the
questions of Respondent’s knowledge and motive: (1) the un-
ion activities of Chaffins and Knott were the subject of surveil-
lance by Aluminum Department Foreman J. R. Hall in mid-
August, (2) around August 16, Hall implied Swiney’s union
activities were under surveillance, (3) Hall’s August 27 com-
ment implied that Hall knew that Castle had signed the union
petition, (4) Hall informed Chaffins on August 29 that the latter
had been laid off for engaging in union activities, (5) Hall was
aware of Knott’s support for the Union as the result of an
unlawful interrogation on August 29, and (6) the impact of the
August 29-30 layoffs fell disproportionately on union support-
ers. See American Wire Products, 313 NLRB 989, 994 (1994).
Respondent’s rationale for the reduction in force appears to be
based on Collins’ August 29 memorandum which noted that
“aluminum orders are almost non existent (sic.)” and directed
Smith Jr. to “lay off the necessary people to make each depart-
ment as productive as possible.” Further facts relating to Re-
spondent’s motivation are as follows: (1) Smith Jr.’s August 22
statement to Rowe to the effect that there was too much work in
the aluminum department to justify the layoff of even 1 indi-
vidual, (2) aluminum orders went from 13 in June and 17 in
July to 34 in August, (2) aluminum production actually de-
clined by 17 percent between July and August (belying Smith
Jr.’s testimony of a 60-percent decline in aluminum production
after August 1),83 (3) a more severe, seasonal reduction in the
81 Smith Jr. confirmed on cross-examination that, if an employee
had been an understructure welder for 10 years and had become a small
parts welder 2 months before the layoff, he would consider the em-
ployee to have 2 months’ seniority.
82 Three department employees had less company seniority than ei-
ther Chandler, Howard, or Newberry, and six employees in the alumi-
num department (excluding Chandler and Newberry) had less seniority
than Howard.
83 Smith Jr. testified that production fell from 10 beds to between 3
and 5 beds per week; average production for the 4.5 weeks of July was
3.88 beds per week, while the average for the same duration of August
was 3.22 beds per week.
R&S TRUCK BODY CO. 339
receipt of aluminum orders in the second and third quarters of
1995 caused a reduction by 2 of 22 aluminum department em-
ployees (1 of the departing employees was temporarily laid
off), as opposed to a permanent layoff of 11 of 21 employees
during the same part of 1996, (4) Respondent’s budget docu-
ments show that the installation department, which never suf-
fered a layoff, was the least efficient department in Respon-
dent’s operation (i.e., it was over-budget in payroll expenses for
each of the first 10 months of 1996), and (5) although the level
of orders in the aluminum department fell again after August,
department employees began working overtime 2 weeks after
the reduction,84 5 employees were transferred into the depart-
ment by the third week of October and three more employees
were transferred in by the first week of the following January.
Based on these facts and for the reasons discussed in connec-
tion with the July 12 and August 1 layoffs, I find the August 29
and 30 reduction in force to be without any honest business
justification and to have been discriminatorily motivated. I
therefore conclude that the reduction violated Section 8(a)(3) of
the Act.
On September 6, Respondent wrote to the employees who
had been laid off on July 12 and August 1, informing them that
their temporary layoffs had been made permanent. Collins
explained that, when it became necessary to terminate the more
experienced employees at the end of August, it made no sense
to leave less qualified employees on layoff status. Interest-
ingly, (1) all of the employees laid off before August 29 were
senior to three of those who left on August 29 and 30 and (2)
three of the eight former employees to whom Respondent of-
fered employment in February 1997 were among those “less
qualified.” Equally interesting is the fact that the decision to
make the layoffs permanent (and the permanently laid-off em-
ployees ineligible to vote in the representation election one
month later) coincided temporally with Respondent’s employ-
ment of Craft as a labor consultant. For the reasons set out
above, I conclude that Respondent’s conversion of the July 12
and August 1 layoffs from temporary to permanent was dis-
criminatorily motivated and violation of Section 8(a)(3) of the
Act.
III. THE REPRESENTATION CASE
A. Ballot Challenges
At the October 11 election in Case 9–RC–16781, a Board
Agent challenged the ballots of Greg Adkins, Ernie Blevins,
Nero Blevins, Ronnie Castle, Terry Chaffins, William Chan-
dler, Thomas Floyd, Jeff Howard, DeWayne Kendrick, Ray
Knott, Eric Newberry, Greg Tackett, Randy Wiley, and Mike
Williamson on the ground that their names did not appear on
the eligibility list. Given my findings above that each of these
individuals was unlawfully terminated by Respondent, the chal-
lenges will be overruled and the ballots opened and counted.
At the same time, the Union challenged the ballots of Mi-
chael Auxier, Ervin Collins, and Willis Matthews on alternative
grounds that (1) they were independent contractors, (2) they

84 Respondent’s argument that this overtime may have been worked
by aluminum department employees outside that department was left as
an unsubstantiated speculation.
were casual employees, or (3) they did not share a community
of interest with unit employees. Auxier and Collins were re-
garded by Respondent as full-time pickup and delivery truck
drivers, while Willis was regarded as a regular part-time em-
ployee in that position.85 These drivers are only paid when
Respondent requires the pickup or delivery of products, but the
time they actually work is in excess of that required of part-
time employees.86 These three drivers have the same method of
compensation, receive the same basic benefits and enjoy the
same profit-sharing participation,87 must meet the same job
requirements (physical, educational, and licensing)88 and per-
form the same day-to-day functions under the same working
conditions and within the same regulatory framework89 as Re-
spondent’s single tractor/trailer truck driver, an individual
whose ballot was not challenged by the Union. Respondent’s
pickup and delivery drivers report to a different supervisor than
does its tractor/trailer truck driver. On occasions when none of
Respondent’s pickup and delivery drivers is available, their
duties are performed by production employees from the unit.90
Finally, a grammatical cavil may shed light on the parties’ in-
tent: the stipulated unit refers to “drivers” in the plural; without
Auxier, Collins, and Matthews, the unit would include only one
driver. Based on the foregoing facts, I find that the challenges
to the ballots of the pickup and delivery drivers should be over-
ruled and that their ballots should be opened and counted.
The Union also challenged the ballots of Ruby and Wade
Conn on the grounds that (1) they were not statutory employees
and (2) they did not share a community of interest with unit
employees. Prior to 1989, Ruby Conn was employed by Wil-
liam and Delores Smith Sr. as a domestic servant at their home;
the employment relationship during that period between the
Smiths Sr. and Wade Conn, Ruby’s husband, is not of record.
On June 12, 1989, the Conns were placed on Respondent’s
payroll as janitors at the instance of Delores Smith, who at that
time was a vice president of Respondent with no other person-
nel responsibilities.91 Thereafter, the Conns spent the prepon-
derance of their working hours (over 80 percent during 1996)
as household domestics at the Smith Sr.’s home, while perform-
ing occasional office janitorial duties at Respondent’s facility.
Neither individual spent a demonstrated minimum or regular
number of hours per month working at the facility during 1996.
Indeed, Wade did not perform any work at the facility during
85 This finding is based on Respondent’s personnel records, which
are supported by Charles Collins’ testimony.
86 During the third quarter of 1996, (1) Auxier, who was not em-
ployed for a 2-week period, worked on an average of 10 days per
month, generally in excess of 8 hours per day, (2) Collins, who took his
scheduled vacation during this period, worked an average of 9 days per
month, generally in excess of 8 hours per day, and (3) Matthews
worked an average of 12 days per month, generally in excess of 8 hours
per day.
87 Charles Collins so testified without controversion.
88 This finding is based on the relevant position descriptions.
89 Charles Collins’ uncontroverted testimony to this effect was sup-
ported by the relevant position descriptions.
90 Charles Collins testified without controversion as to the identity
of at least one production employee who had performed the duties of a
pickup and delivery driver.
91 Charles Collins testified to this effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
four months of the year and Ruby spent less than 2 days at the
facility during 2 separate months.92 At the Smith Sr. home, the
Conns are supervised by the Smiths Sr. There is no evidence
that the Conns’ occasional work at the facility is supervised by
any of the managers or supervisors who supervise Respon-
dent’s production and maintenance employees. Wade’s annual
performance review is filled out by his wife and reviewed by
Charles Collins, while Ruby is reviewed directly by Collins;
Respondent’s general manager does not otherwise review the
performance of any nonmanagerial employees.93 Based on
these facts, I find that the Union’s challenges to the ballots of
Ruby and Wade Conn should be sustained.
B. Respondent’s Objection
Respondent alleges that, on the evening of October 10, the
Union knowingly and intentionally made false representations
to a substantial number of unit employees concerning the Un-
ion’s collective-bargaining agreement with Cook Family Foods.
Based on the findings set our earlier in this decision, I further
find Respondent’s objection to be without factual support.94
Accordingly, it is overruled.
C. The Union’s Objections
The following union objections to the election are before me
for consideration: objection 1, relating to threats of plant clo-
sure or relocation; objection 2, relating to the discharge of
Mitchell Goble; objection 3, relating to “other accusations
which would discourage employees from voting for union rep-
resentation”; objection 4, relating to the layoff or discharge of
Greg Adkins, Ernie Blevins, Nero Blevins, Ronnie Castle, Wil-
liam Chandler, Jeff Howard, DeWayne Kendrick, Ray Knott,
Eric Newberry, Adam Swiney, Greg Tackett, Randy Wiley, and
Mike Williamson; objection 5, relating to a change in Respon-
dent’s pay procedures; and “Other Conduct,” relating to the
conversion of the July 12 and August 1 layoffs from temporary
to permanent. Objections 1, 2, 4, and “Other Conduct,” which
are coextensive with allegations of the complaint found above
to constitute unfair labor practices, are sustained. See Dal-Tex
Optical Co., 137 NLRB 1782, 1786 (1962). Objections 3 and 5
are not duplicative of allegations of the complaint, appear to
have been abandoned on brief and are overruled. For the fore-
going reasons, I shall order that, should my rulings on chal-
lenged ballots result in a vote tally in favor of Respondent, the
election be set aside.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following acts, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the

92 Findings on the Conns’ work patterns are derived from documen-
tary evidence concerning the number of hours they worked.
93 Charles Collins testified to this effect.
94 In addition, the preponderance of credible evidence does not sub-
stantiate Respondent’s contention that the Union used a forged docu-
ment on October 10.
Act: (a) interrogating employees concerning their union activi-
ties or the union activities of other employees, (b) threatening
employees with job loss, layoff, denial of recall, suspension,
reduced profit-sharing bonuses, contacting former employers,
plant closure or relocation, or other unspecified reprisals, if
they select a union to represent them, (c) impliedly threatening
employees or promising them benefits by soliciting them to
campaign against the union or to disclose the prounion activi-
ties of other employees, (d) promising or impliedly promising
employees improved working conditions or other benefits, if
employees reject union representation, and (e) giving employ-
ees the impression that their union activities or the union activi-
ties of other employees are being kept under surveillance.
4. By the following acts, Respondent has engaged and is en-
gaging in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act: warning employees, reducing em-
ployees’ pay, suspending employees, temporarily laying off
employees, permanently laying off employees, converting em-
ployees’ temporary layoffs to permanent layoffs, discharging
employees, refusing to rehire employees and conditioning em-
ployees’ return to work on their relinquishment of seniority and
related benefits, because employees join or assist the union or
engage in concerted activities.
5. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The preponderance of the evidence does not indicate that
Respondent has otherwise violated the Act.
7. Respondent unlawfully interfered with the representation
election held on October 11, 1996.
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I find that it must be ordered to cease those prac-
tices and to take certain affirmative action designed to effectu-
ate the policies of the Act. Respondent will be ordered to make
whole any employees in the unit who sustained losses in wages
or benefits because of Respondents’ unlawful conduct. Such
amounts shall be computed as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended:95
ORDER
The Respondent, R & S Truck Body Company, Inc., Allen,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union activities
or the union activities of other employees.
(b) Threatening employees with job loss, layoff, denial of
recall, suspension, reduced profit-sharing bonuses, contacting
former employers, plant closure or relocation, or other unspeci-
fied reprisals, if they select a union to represent them.
95 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
R&S TRUCK BODY CO. 341
(c) Impliedly threatening employees or promising them
benefits by soliciting them to campaign against the union or to
disclose the prounion activities of other employees.
(d) Promising or impliedly promising employees improved
working conditions or other benefits, if employees reject union
representation.
(e) Giving employees the impression that their union activi-
ties or the union activities of other employees are being kept
under surveillance.
(f) Warning employees, reducing employees’ pay, suspend-
ing employees, temporarily laying off employees, permanently
laying off employees, converting employees’ temporary layoffs
to permanent layoffs, discharging employees, refusing to rehire
employees and conditioning employees’ return to work on their
relinquishment of seniority and related benefits, because em-
ployees join or assist the Union or engage in concerted activi-
ties.
(g) In any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Greg
Adkins, Ernie Blevins, Nero Blevins, Ronnie Castle, Terry
Chaffins, William Chandler, Thomas Floyd, Mark Fraley,
Mitchell Goble, Craig Hall, Jeff Howard, DeWayne Kendrick,
Ray Knott, Eric Newberry, Mark Salyer, Adam Swiney, Greg
Tackett, Randy Wiley, Mike Williamson, and Grady Yates
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
earnings or other benefits suffered as a result of the discrimina-
tion against them, in the manner set forth in the remedy section
of the decision.
(b) Within 14 days from the date of this Order, offer Rodney
Goble Jr. immediate and full reinstatement to the day-shift parts
window clerk position or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his seniority
or other rights or privileges previously enjoyed, and make him
whole for any loss of earnings or other benefits suffered as a
result of the discrimination against him, in the manner set forth
in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspensions and/or dis-
charges of Nero Blevins, Mitchell Goble, DeWayne Kendrick,
and Randy Wiley and notify them in writing that this has been
done and that the suspensions and/or discharges will not be
used against them in any way.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoffs of Greg Adkins,
Ernie Blevins, Ronnie Castle, Terry Chaffins, William Chan-
dler, Thomas Floyd, Mark Fraley, Craig Hall, Jeff Howard, Ray
Knott, Eric Newberry, Mark Salyer, Adam Swiney, Greg
Tackett, Mike Williamson, and Grady Yates, and notify them in
writing that this has been done and that the layoffs will not be
used against them in any way.
(e) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warning of Bobby Rowe,
and notify him in writing that this has been done and that the
warning will not be used against him in any way.
(f) Preserve and, within 14 days of a request, provide at the
office designated by the Board or its agents, a copy of all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order. If requested, the originals of such records
shall be provided to the Board or its agents in the same manner.
(g) Within 14 days after service by the Region, post at its
Allen, Kentucky facility copies of the attached notice marked
“Appendix.”96 Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current and former employees employed by the Respondent
at any time since June 4, 1996.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
IT IS FURTHER RECOMMENDED that:
1. Respondent’s objection to the election of October 11,
1996, be overruled.
2. Objections 1, 2, 4, and “Other Conduct” filed by the Na-
tional Conference of Firemen and Oilers, Service Employees
International Union, AFL–CIO (the Union) be sustained, and
the Union’s objections 3 and 5 be overruled.
3. Within 14 days from the date of this decision, the chal-
lenged ballots of Greg Adkins, Michael Auxier, Ernie Blevins,
Nero Blevins, Ronnie Castle, Terry Chaffins, William Chan-
dler, Ervin Collins, Thomas Floyd, Jeff Howard, DeWayne
Kendrick, Willis Matthews, Ray Knott, Eric Newberry, Greg
Tackett, Randy Wiley, and Mike Williamson in Case 9–RC–
16781 be opened and counted by the Regional Director and a
revised tally of ballots be issued.
4. If the revised tally of ballots reveals that the Union has
received a majority of the valid ballots cast, the Regional Direc-
tor shall issue a certification of representative. If, however, the

96 If this Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
revised tally shows that the Union has not received a majority
of the ballots cast, the Regional Director shall set aside the
election and conduct a new election when he deems that cir-
cumstances permit the free choice of a bargaining representa-
tive.
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 representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL interrogate you concerning your union activities
or the union activities of other employees.
WE WILL NOT threaten you with job loss, layoff, denial of
recall, suspension, reduced profit-sharing bonuses, contacting
former employers, plant closure or relocation, or other unspeci-
fied reprisals, if you select the National Conference of Firemen
and Oilers, Service Employees International Union, AFL–CIO,
or any other union to represent you.
WE WILL NOT impliedly threaten you or promise you
benefits by soliciting you to campaign against the National
Conference of Firemen and Oilers, Service Employees Interna-
tional Union, AFL–CIO, or any other union or solicit you to
disclose the pro-union activities of other employees.
WE WILL NOT promise or impliedly promise you improved
working conditions or other benefits, if you reject union repre-
sentation by the National Conference of Firemen and Oilers,
Service Employees International Union, AFL–CIO, or any
other union.
WE WILL NOT give you the impression that your union ac-
tivities or the union activities of other employees are being kept
under surveillance.
WE WILL NOT warn you, reduce your pay, suspend you,
temporarily lay you off, permanently lay you off, convert your
temporary layoff to a permanent layoff, discharge you, refuse to
rehire you or condition your return to work on your relinquish-
ment of seniority and related benefits, because you join or assist
the National Conference of Firemen and Oilers, Service Em-
ployees International Union, AFL–CIO, or any other union or
because you engage in concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Greg Adkins, Ernie Blevins, Nero Blevins,
Ronnie Castle, Terry Chaffins, William Chandler, Thomas
Floyd, Mark Fraley, Mitchell Goble, Craig Hall, Jeff Howard,
DeWayne Kendrick, Ray Knott, Eric Newberry, Mark Salyer,
Adam Swiney, Greg Tackett, Randy Wiley, Mike Williamson,
and Grady Yates immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings or other benefits
suffered as a result of our discrimination against them.
WE WILL offer Rodney Goble Jr. immediate and full rein-
statement to the day shift parts window clerk position or, if that
job no longer exists, to a substantially equivalent position with-
out prejudice to his seniority or other rights or privileges previ-
ously enjoyed, and WE WILL make him whole for any loss of
earnings or other benefits suffered as a result of our discrimina-
tion against him.
WE WILL remove from our files any reference to the unlaw-
ful suspensions and/or discharges of Nero Blevins, Mitchell
Goble, DeWayne Kendrick, and Randy Wiley, and WE WILL
notify them in writing that this has been done and that the sus-
pensions and/or discharges will not be used against them in any
way.
WE WILL remove from our files any reference to the
unlawful layoffs of Greg Adkins, Ernie Blevins, Ronnie Castle,
Terry Chaffins, William Chandler, Thomas Floyd, Mark Fraley,
Craig Hall, Jeff Howard, Ray Knott, Eric Newberry, Mark Sal-
yer, Adam Swiney, Greg Tackett, Mike Williamson, and Grady
Yates, and WE WILL notify them in writing that this has been
done and that the layoffs will not be used against them in any
way.
WE WILL remove from our files any reference to the unlaw-
ful warning of Bobby Rowe, and WE WILL notify him in writ-
ing that this has been done and that the warning will not be
used against him in any way.

R&S TRUCK BODY COMPANY, INC.