Shivvers Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1974

213 N.L.R.B. 102 (N.L.R.B. 1974)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shivvers Corporation and Stanley Ramsey . Case 14- the following:
CA-7638
August 29, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 23, 1974, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Shivvers Corporation, Hut-
sonville, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
complaint filed November 29, 1973 (on a charge filed Octo-
ber 26, amended November 26, 1973), charges Respondent,
a manufacturer of grain handling equipment , with viola-
tions of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act because Respondent laid off on October 16, 1973,
and has failed and refused to reinstate , 10 employees , alleg-
edly as retaliation for concerted activity in protesting their
pay scale and for their activities to organize a union. There
are additional allegations of 8(a )( 1) violations based on al-
leged coercive interrogation of employees concerning union
activities and sentiments of other employees.
Respondent defends against the complaint on the ground
that the layoff of the 10 employees was caused by economic
necessity, and contends that it was unaware of any union
organizing activity by its employees.
The case was tried in Robinson , Illinois , on January 15,
1974.
Upon the entire record of the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Iowa corporation with its principal of-
fice and place of business at Hutsonville, Illinois, where it
is engaged in the manufacture, sale, and distribution of
equipment used in the handling and storage of grain. Re-
spondent began its manufacturing operations in mid-1973
and, in the period June 1 to the date of the complaint, sold
and shipped finished products, valued in excess of $50,000,
from its Hutsonville plant directly to points outside Illinois.
Respondent is, as the parties admit, engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent manufactures three basic types of grain han-
dling equipment, with several variations of each type. One
is a grain spreader (or circulator), which fits on the roof of
the grain bin to spread the grain evenly as the bin is filled.
The second type is an auxiliary sweep auger , which is a
rotating device that empties the grain from the bin. It is
auxiliary to grain handling equipment made and sold by
Shivvers Enterprises of Corydon, Iowa. The third type is a
grain cleaner.
For the production work, Respondent needed and used
machine and lathe operators, assemblers, welders, machin-
ists and general labor, including several truckdrivers and
warehousemen for shipping. Just prior to the layoff of Octo-
ber 16, 1973, Respondent had 32 nonsupervisory employees
engaged in production (see G.C. Exh. 4), and used some of
the employees intermittently, both before and after the lay-
off, to help with the construction of a new and larger build-
ing to house its future operations at Hutsonville.
According to Carl Shivvers, Respondent's president, Re-
spondent was incorporated in Iowa in December 1972, and
Carl came to Hutsonville, Illinois, to start the business in
January 1973. At the beginning, and until June 1973, Re-
spondent did no manufacturing, but only sold grain han-
dling equipment manufactured by Shivvers Enterprises of
Corydon, Iowa, a company wholly owned by the Shivvers
family, principally by the father of Carl and Steve Shivvers.
Carl and his brother Steve together own the Shivvers Corpo-
ration (Respondent), through their ownership of the stock.
Steve Shivvers came to Hutsonville in mid-April 1973,
from college, where he had studied mechanical engineering.
He undertook the responsibility of organizing production,
including the hiring of the needed employees, and the devel-
opment of new products, while Carl Shivvers continued his
responsibility for sales.
Hiring for production commenced in mid-May 1973, and
production began in June 1973, starting with grain spread-
ers, then adding auxiliary sweep augers, and finally grain
cleaners . Respondent began selling its own manufactured
grain handling equipment, discontinuing its purchases for
resale of the products of Shivvers Enterprises. Instead, the
213 NLRB No. 15
SHIWERS CORPORATION 103
process was reversed, and Shivvers Enterprises, which was
and is a growing company, according to Carl Shivvers, be-
came a major customer of Respondent, buying for resale all
types of the grain handling equipment manufactured by
Respondent. In addition, Respondent sold its products to
other dealers in grain handling and storage equipment. Re-
spondent did and does no direct selling to the farmer and
others who use the equipment.
Respondent's business grew rapidly. By mid-August
1973, Respondent went from one (daytime) shift to two
shifts (daytime and nighttime). Employees of both shifts
were encouraged to work overtime right up to the time of
the October 16 layoff. Hiring of new employees continued
right up to the time of the layoff. Because it became appar-
ent that the physical plant was inadequate for the business
done and expected, Respondent began building at the end
of summer 1973, an additional facility, twice the size of its
initial plant. The new plant was already in use and almost
complete at the time of trial (January 1974). Just prior to the
October 16 layoff, Manager Steve Shivvers had shopped for
and bought new machinery, and the testimony of the Shiv-
vers brothers was that they anticipated an expanding busi-
ness and an increased line of products.
President Carl Shivvers regarded his area of responsibility
as sales and general administration . He disclaimed responsi-
bility for production and for hiring and firing of production
employees, but did acknowledge responsibility for hiring
and firing of truckdrivers.
Manager Steve Shivvers, as organizer of production and
developer of new products, claimed hiring and firing of
employees as part of his primary function. However, he did
not engage in day-to-day, hour-to-hour, supervision of plant
operations and relationships with employees. He testified he
went into the plant on the average a total of one -half to one
hour a day, on an in-and-out basis.
In overall charge of daily production and related opera-
tions, including direct supervision of the daytime shift, was
Foreman LaVerne (Vern) Shounk, who was hired by Man-
ager Shivvers on July 31, 1973. He came to Respondent with
previous supervisory experience as a foreman at Chrysler
and superintendent at Allis-Chalmers. According to Man-
ager Steve Shivvers, Foreman Shounk had authority to dis-
cipline and to fire employees. Respondent conceded that
the two Shivvers brothers and Shounk were statutory super-
visors.
When the night shift was established in mid-August 1973,
an employee of the day shift, Willie Moore, was transferred
and put in charge. However, Respondent contended that
Moore was not a statutory supervisor. The testimony dem-
onstrated otherwise.
Manager Steve Shivvers testified that when the night shift
was established , Moore , who was a good all-around man
and working at the time in the day shift sheet metal depart-
ment, was transferred to the night shift to generally oversee
that things got done, and was given the title supervisor. He
was given general authority to discipline, said Manager
Shivvers, except he could not fire an employee or dock his
pay.
Supervisor Moore was made accountable to Foreman
Shounk, as Manager Shivvers and Shounk testified; and
Shounk made it a practice, as he and others testified, to stay
over briefly after 3 p.m., when the day shift ended and the
night shift began, to lay out for Moore a list of work he
wanted the night shift to do. However, said Foreman
Shounk, when he left, Supervisor Moore was in charge, and
Moore laid out for the night shift employees what they were
to do.
Employee Cliff Ramsey, who was hired by Manager Shiv-
vers and went to work on the night shift, was introduced by
Shivvers to Foreman Shounk as the day foreman and to
Supervisor Moore as the night foreman, and was told that
Moore was the night boss. Employee Cliff Ramsey testified
(as did employee Lonnie Bell, who had worked on the night
shift as well as day shift) that Moore assigned to employees
on the night shift the work to be done, answered their ques-
tions, provided help if things did not go right, and approved
overtime and permission to leave early. Manager Shivvers
was of the opinion that Supervisor Moore spent about three-
fourths of his time working with his hands on machine
work, although Shivvers did not observe Moore personally;
whereas employee Cliff Ramsey who had observed Moore,
nightly, testified that Moore spent most of his time moving
about the shop, and part of his time at his desk in the shop.
Supervisor Moore, though paid by the hour, was the high-
est paid man in the night shop. Manager Shivvers testified
that he had great confidence in Supervisor Moore's judg-
ment of employees with whom he had dealings, and that in
connection with the layoff of October 16, Shivvers request-
ed and received Moore's recommendations for layoff and
followed his recommendation in at least one case.
This analysis of the functions and authority of Supervisor
Willie Moore, whether he is called supervisor or foreman or
leadman, and notwithstanding the fact that he spends part
of his time working with his hands alongside his men and
is paid hourly as they are, stamps him clearly a statutory
supervisor, who occupies an intermediate position between
top management and the rank-and-file employees, N.L.R.B.
v. Edward G. Budd Manufacturing Co., 169 F.2d 571, 575
(C.A. 6, 1948), cert. denied 335 U.S. 908. While the work to
be done by the night crew is laid out for Moore by the day
foreman, Moore's responsibility to make the individual as-
signments to each of the employees, to maintain and oversee
production and discipline, to authorize overtime and early
leaving, and to effectively recommend discharge of employ-
ees who in his opinion do not measure up, are indicative of
a substantial area of discretion enjoyed by Moore to make
decisions concerning operations directly affecting the em-
ployees under him, without close continued control of high-
er supervision . Such functioning the Board views as
responsible direction in a nonroutine manner that is key to
the determination that a foreman or a supervisor or a lead-
man is a supervisor within the meaning of the Act. See, West
Virginia Pulp and Paper Co., 122 NLRB 738, 743, 744 (1958)
holding that several categories of hourly paid foremen were
statutory supervisors; and McCoy Co., 151 NLRB 383, 385
(1965), holding that a warehouse leadman was a supervisor
within the meaning of the Act. See also, Jas. H. Matthews
& Co. v. N.L.R.B., 354 F.2d 432, 434-435 (C.A. 8, 1965),
cert. denied 384 U.S. 1002 (1966); N.L.R.B. v. Southern
Airways Co., 290 F.2d 519, 523-524 (C.A. 5, 1961); and
N.L.R.B. v. Gary Aircraft Corporation, 368 F.2d 223, 224
(C.A. 5, 1966). If Moore were not such a supervisor, the
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of the night shift would have been entirely with-
out supervision most if not all of the time, warranting the
conclusion that the conferring upon, and exercise by, him
of even a small amount of supervisory power made him
a representative of the employer. Rafael Vega, et al. v.
N.L.R.B., 341 F.2d 576, 577 (C.A. 1, 1965), cert denied 382
U.S. 862 (1965).
B. Pay Scale Protest
Almost from the start , Respondent 's scale of pay and
method and timing of giving raises appeared haphazard and
inequitable to the employees. Foreman Shounk acknowl-
edged that he became aware of the . employee dissatisfaction
from the time he arrived ; and Manager Shivvers testified to
his awareness of complaints voiced by employees George
Boucher, Stan Ramsey, and Tom Gentry. Foreman Shounk
also indicated that employees Terry Weaver and Robin
Binzen had gone to see Manager Shivvers about their pay,
and employee Weaver testified that several weeks prior to
the layoff of October 16, he, Binzen , and employee Tom
McKeighen had gone to Shivvers asking for a raise , and that
he (Weaver) had been given a 10-cent-per -hour increase.
Common complaints were that men already working were
making less money for similar work than new hires, that
employees had no knowledge of what increases if any they
might expect as they progressed, and that the rates of pay
in the various categories were too low.
Foreman Shounk took credit , as a result of these com-
plaints, for persuading Manager Shivvers to issue a written
pay scale, G.C. Exh. 2, which purported to classify the em-
ployees and to specify the bottom and top hourly wage in
each class with a schedule of advancement for satisfactory
performance within the specified ranges.
The pay scale was drawn up and issued , without advance
notice to or consultation with any of the employees, in the
second week of October 1973, effective retroactively to Oc-
tober 1, 1973. However, the scale was not posted and copies
were not distributed . Instead , Foreman Shounk carried a
copy of the pay scale around the shop on October 10, 11,
and 12, showing it to employees individually, or in groups
of two or more, on both shifts , and eliciting comment where
it was not volunteered , but indicating where comment was
adverse that this was the scale now in effect.
Among others , employees Stan Ramsey and Jim Howard
together on Wednesday, October 10, complained of the
scale . Ramsey questioned the disparity of $5 per. hour top
rate for machinists and a $4 top rate for certified welders,
calling attention to the fact that in his case , as a certified
welder earning $4 per hour, he was already at the top of his
classification with no possibility of a raise . Foreman
Shounk that Ramsey's next raise was "over the hill." Later
that day or the next day employees Stan Ramsey, Jim
Howard, and Kenny Brewer, together, further protested to
Foreman Shounk that they felt the pay schedule had un-
fairly set rates for the various men without any discussion
or bargaining. Foreman Shounk answered , said employee
Ramsey, that anyone who didn't like the pay schedule
could quit.
Employee Steve Coulter, an assembler, after seeing the
pay scale told Foreman Shounk that the pay scale was un-
fair, that the scale for assemblers was lower than it should
be, that there ought to be some correlation in the rates to
production . According to Coulter , Shounk's reply was that
he was trying to keep everyone and not get a bad reputation
for the company.
Employee Lonnie Bell, was shown the pay scale by Fore-
man Shounk on October 11 or 12. Bell had started as a
welder at $2.75 per hour and after 2-1/2 months was then
earning $3 per hour . He told Shounk it was unfair for Re-
spondent to have hired at $3.25 per hour (as happened in
that week on October 8) a new welder without experience,
James Neal , doing mig (metal intergas ) welding as Bell was
doing . Shounk replied , according to Bell , that was the way
it was going to be.
When Foreman Shounk asked assemblers Terry Weaver,
George Boucher , and Stanley Beschorner (separately) if
they had any complaints about the new pay scale , each said
it wasn' t enough money . Weaver elaborated that , after he
deducted his car transportation money, his take-home pay
was not much more than unemployment compensation. As
Beschorner and Boucher testified , Schounk's answer to
them was, that was the scale , it had to start someplace, it
would have to stay that way.
While a number of the men had begun talking among
themselves about the need of a union to get the matter of
pay straightened out with management even before the uni-
lateral promulgation of the new pay scale (testimony of
employees Lonnie Bell, Steve Coulter , Terry Weaver), the
pay scale disclosure around the shop accelerated the discus-
sion and crystalized determination among a group of em-
ployees to take united action . The meetings took place in
one of the two rooms comprising the production area,
known as the assembly department or assembly room, on
lunch ( 11:30 a.m . to 12 noon) and other time breaks. The
assembly room was an open room with a doorway-like
opening , but no door . A few feet outside the opening was
Foreman Shounk 's desk where he frequently took his
lunches . As employee Terry Weaver testified, a number of
the employee discussions occurred at his workplace, about
12 feet from the room opening, with Shounk's desk about
3 feet from the opening but out of sight from Weaver's
workplace. Moreover, said employee Weaver , those who
met and talked there were not too cautious in their discus-
sion of a union.
Employees Stan Ramsey and Lonnie Bell of the welding
department and employee George Boucher of the assembly
department took the lead in the discussion for action. Stan
Ramsey and Boucher said a union was needed to be the
spokesman on wages. Bell agreed , but said an outside union
with monthly dues was not necessary , rather an inside
union, such as a committee of three comprised of one man
from each of the three departments, could talk with Manag-
er Shivvers . The others appeared to like this proposal and
at the lunch break on Friday , October 12 , according to Stan
Ramsey, the group felt it needed a majority of the shop to
agree to a union . At the lunch break on Monday , October
15, George Boucher brought a small notebook to the meet-
ing and it was suggested that the participants sign so that
the other men in the shop could see who wanted a union and
add their signatures.
Using one page (G.C. Exh. 3) of the notebook , the signing
began . No. 1 on the page , was George Boucher , No. 2 was
SHIVVERS CORPORATION 105
James Howard, No. 3 was Larry Boerst, No. 4 was Stan
Ramsey, No. 5 was Lonnie Bell (whose name and address
was also repeated after the layoff as No. 14), and No. 6 was
Robin Binzen. Shortly after the meeting Steve Coulter took
the book from employee Boucher and signed as No. 7,
returning the book to Boucher. Employee Tom McKeighen
took the book from Boucher and signed as No. 8, and
obtained the signatures of Stanley Beschorner as No. 9, and
Tom Pinkston as No. 10. According to employee McKeigh-
en the book floated around the shop, and then he got it back
and returned it to Boucher. Thereafter Terry Weaver took
the book, signed as No. 11, and returned the book to Bouch-
er.I
At the lunchtime meeting of the employees in the assem-
bly room on Monday, October 15, at least two of the em-
ployees present and taking part in the discussion-Colby
Smith and Wayne Smith-did not sign the list of employees
signifying support of a union. Employee Colby Smith said,
the employees could be fired for organizing a union, to
which cmployee Stan Ramsey replied, the employees had a
right to organize and could not be fired. Whereupon em-
ployee Wayne Smith said, the employees would find out
whether they would be fired if Manager Steve Shivvers got
hold of the book with the names of the employees. When
Wayne Smith was offered a chance to sign , he declined
saying, according to employees Ramsey and Boucher, he
would sign if everybody signed , or, as Smith himself testi-
fied, he needed to know more about the kind of union in
mind.
Later that day (Monday, October 15), Foreman Shounk
came into the warehouse where employee Wayne Smith
worked, a building apart from the building that housed the
production shop, and engaged Smith in conversation. Ac-
cording to employee Smith, Foreman Shounk asked Smith
what he thought of the pay classification, to which Smith
answered he thought it was a step in the right direction.
Shounk then said he understood "the boys were interested
in getting a union," and Smith replied, "yes, I believe they
are." Shounk asked if Smith thought the classification had
anything to do with the boys wanting a union , and Smith
replied he felt it had. Shounk then told Smith that he
(Shounk) didn't like to work with unions, that from his
Chrysler experience a union only protected lazy men, that
he was trying to satisfy the men and Manager Steve Shiv-
vers, and a union would put him in the middle. Employee
Smith commented that he thought the pay scale was low but
repeated that it was a step in the right direction?
1 According to Boucher , the small sheet , G.C. Exh . 3, was later detached
from the notebook at the request of counsel for the General Counsel, to
whom it was shown after the layoff of October 16 on October 19, by employ-
ee Stan Ramsey . Stan Ramsey then pencilled in as No. 12 the name of Tom
Gentry and as No . 13 the name of Cliff Ramsey (brother of Stan Ramsey),
both of whom were included in the October 16 layoff . In addition pencil lines
were drawn through the names of the 5 (out of the 11) signers-Howard,
Boerst , Binzen, McKeighen , and Pinkston-who were not laid off, and
Boucher also placed a double check mark after the names of these 5 to
indicate they were not laid off. Thus the names of 8 of the 10 alleged
discriminatees appear on the fist, G.C. Exh. 3. Not appearing on the list are
2 of the 10 alleged discriminatees in the layoff of October 16, employees
James Davis and Gary Cox.
2 While Foreman Shounk said on direct examination that he didn ' t recall
talking to employee Wayne Smith about a union , he admitted on cross-
Respondent's supervisors had other direct information
that the employees were taking action to organize a union.
On Thursday, October 11, after Foreman Shounk had
carried around the new pay scale to show it to employees
of the night shift, employee Cliff Ramsey, brother of em-
ployee Stan Ramsey, told Supervisor Willie Moore that he
had heard the men were going to start a union. Moore
replied, according to Cliff Ramsey, that he didn't think they
would do that. However, about 10 p.m. that night, Supervi-
sor Moore came back and sought to engage employee Cliff
Ramsey in conversation about the union, whereupon Ram-
sey said he didn't particularly like the idea of a union but
would as soon work in a nonunion shop. On the next night,
Friday, October 12, Supervisor Moore sought to engage
employee Cliff Ramsey in further conversation concerning
the union, saying to Ramsey he had heard that the employ-
ees were "really serious about this union deal." Ramsey
answered, "Yeah, I guess they are," and broke off further
conversation, he said, because he didn't know too much
about the matter. Supervisor Moore did not testify and
there was no contradiction of Cliff Ramsey's testimony.
In the same day, October 12, but earlier on the day shift,
employee Stan Ramsey, encountered Foreman Shounk
coming into the assembly room at the conclusion of one of
the time breaks where Ramsey and his fellow employees
had been discussing a union . Stan Ramsey said he told
Shounk the men were going to organize a union and laugh-
ingly asked if Shounk wanted to be the union steward for
the men . Shounk laughingly replied, said Ramsey, he might
as well be steward, he was already in the middle. Foreman
Shounk, in his testimony, acknowledged the incident (erro-
neously identifying the employee as George Boucher and
stating that his own reply to the offer of a union stewardship
was a preference to be the arbitrator), and agreed that it was
all said with jocularity. However, the seriousness of their
ensuing actions indicated that neither man regarded the
matter as a joke.
C. The Layoff
On Tuesday, October 16, 1973, without advance warning,
as Manager Steve Shivvers acknowledged, 10 of the employ-
ees (identified in fn . 1, supra) were laid off. Foreman
Shounk handed each a layoff letter with a pay check that
covered the current day though they had not worked the
day. There was no written or oral explanation for the layoff
or indication respecting recall 3 and, when employee Stan
Ramsey asked for an explanation, he was referred to Man-
ager Steve Shivvers. Shivvers offered no explanation to em-
ployee Ramsey saying only that, X amount of the
employees had to go and you are in the X amount. As
employee Ramsey was leaving the plant, he told Foreman
Shounk he thought it odd to be fired for trying to start a
examination telling Smith the portion of the conversation that unions protect
lazy men . Moreover , employee Smith was in the vulnerable position of a
current employee testifying adversely to his employer, and his credibility was
entitled to added support , Davis Food City, Inc., 198 NLRB No. 24 (1972),
and cases cited. I credit the testimony of employee Smith.
7 Employee Stanley Beschorner testified that he asked if he would be
recalled, but he was not given an answer.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, to which Shounk replied, no comment .4
From the testimony of the employees, the layoff was a
surprisingly abrupt reversal of the pace of the operation and
of management relationships with the employees.
Employee Stan Ramsey testified, without contradiction,
that he had been asked to work overtime every day of the
2 weeks before the layoff of October 16, that he averaged
45-49 hours of work per week in those 2 weeks (the first 2
weeks of October) and had put in similar time throughout
September . Stan Ramsey was a certified welder and was
Respondent's most experienced welder. Foreman Shounk
had been giving him the work of a leadman, said Ramsey,
with the promise that he would be made a leadman. In the
week prior to the layoff (week of October 8) when Respon-
dent had hired its second additional welder that month, Jim
Neal, Stan Ramsey stayed over into the night shift to help
Neal get started, as well as working on an auxiliary sweep
auger job while assisting Neal.
On Monday, October 15 (the day before the layoff), em-
ployee Stan Ramsey again worked overtime. He was called
on to see if he could remedy a machine that was not working
properly, but did not succeed that evening. Before he left,
about 4 p.m., Manager Shivvers, Foreman Shounk, and the
setup man asked Stan Ramsey if he'd give thought over-
night on how to get the machine working properly the next
day. At 6:20 a.m. the next day, October 16, before he could
start work, employee Stan Ramsey was told by Foreman
Shounk that he was laid off, as already noted above.
Employee Cliff Ramsey, brother of employee Stan Ram-
sey, was also an experienced, certified welder, who was
hired by Respondent on October 1, 1973, about 2 weeks
before the layoff, and I week before the hiring of welder Jim
Neal. Like Neal, Cliff Ramsey was assigned to the night
shift, and from the start worked I or 2 hours per night
overtime. Cliff Ramsey also testified, without contradiction,
that in the week that Neal was hired (week of October 8)
Supervisor Moore asked the night crew (then numbering six
employees) if they would engage to work overtime 2 or 3
hours per night and on Saturdays. Pursuant to this request,
at the start of the night shift, shortly after 3 p.m. on Mon-
day, October 15, welders Cliff Ramsey and Jim Neal ar-
ranged with Supervisor Moore to work overtime 1 hour each
night, starting that night, and 4 to 8 hours overtime on
Saturdays. However, at the regular quitting time, 11:30
p.m., Supervisor Moore came by and, without explanation,
told the men to shut down. Next day, October 16, employ-
ee Cliff Ramsey was among the 10 employees who were
given layoff notices.
In connection with the arrangement for overtime, accord-
ing to employee Cliff Ramsey, Supervisor Moore had told
the night crew that it was behind in orders for hopper assem-
blies by 400, that it was doing a good job producing 8 or 9
per day, whereas the day shift did only 5 per day, and that
if the night shift kept up its pace it would be caught up in
2 or 3 months. At the same time, according to welder Lonnie
Bell, Foreman Shounk urged the day shift to increase its
production (from 5 per day) to 10 per day because it was
° Employee Tom Gentry also saw Manager Shivvers the same morning,
and protested the layoff. According to Shivvers, Gentry said the laid off
employees were going to the NLRB for redress.
behind in orders. Manager Shivvers conceded that the weld-
ers were encouraged to work as much overtime as they
wanted, and that they could hardly infer they were going to
be laid off from the fact they were working overtime.
Not only did Respondent hire two additional welders
(Cliff Ramsey and Jim Neal) on October 1 and 8 prior to
the layoff of October 16, but it continued to advertise for
additional certified welders in area newspaper ads on Octo-
ber 5 (G.C. Exh. 6) and October 8 (G.C. Exh. 5). Manager
Shivvers testified that these ads had to do with the need to
get out production.
There was testimony, as well as concession, that certified
welders (and in this case, Stan Ramsey and Cliff Ramsey)
had greater skill and experience than noncertified welders.
Nevertheless, and despite the fact that Respondent was con-
temporaneously advertising for more certified welders, Re-
spondent laid off its certified welders, the Ramsey brothers
and, as Foreman Shounk testified, retained the noncertified
welders who had no prior experience before coming to Re-
spondent, as Manager Shivvers conceded. Foreman
Shounk, who testified that he made the main decision for
layoff, the final evaluation of the men to be laid off, admit-
ted that keeping the experienced welders would have made
things easier for him.5
D. Respondent's Explanation of the Layoff
The need for the layoff was gounded on the alleged sea-
sonal nature of the business and the completion of the or-
ders for 1973. To explain, Respondent offered graphs (Resp.
Exhibits 1, 3, and 4) purporting to show orders to be filled
for the three principal products in the period June 30-
November 3, 1973 6 These were in terms of gross units to be
manufactured, not orders as such identified by customers
and dates of required delivery, and were prepared after the
Board began an investigation of this case. The graphs indi-
cated a peak in auxiliary sweep auger orders to be filled at
about July 31, and then a gradual decline to November 3
(Resp . Exh. 1); a peak for grain spreaders at June 30, and
a lesser peak at September 8, with a sharp decline to zero
by the week of October 20 (Resp. Exh. 3); and a peak for
grain cleaners at September 8 with a sharp decline to almost
zero from October 6 to November 3 (Resp. Exh. 4).
Thus, Manager Steve Shivvers claimed he knew 2 or 3
months in advance of October 16, 1973, that a layoff was
probable, and was sure of it 3 or 4 weeks in advance. What
he did not explain satisfactorily, if a layoff in mid-October
was contemplated and inevitable, was why Respondent
hired four new employees in September and four new em-
ployees in October (G.C. Exh. 4), including two welders and
two assemblers in the 3 week period before the layoff. This
represented a one-third increase of the then workforce of 24.
Shivvers sought to cover the late additions to the workforce
by saying he was trying to avoid cancellation of orders by
5 The evidence left in question whether welder Jim Neal , who was hired
I week before the layoff . was a certified or noncertified welder, but there was
no question that like the other welders retained-Jim Howard , Ken Brewer,
Wayne Smith (who began welding after the layoff)-Neal was a far less
experienced and able welder than either of the Ramsey brothers. Likewise
there was no question that both Stan and Cliff Ramsey were doing eminently
satisfactory work.
6 Rest). F.xh. 2, summarized the same material for certain time periods.
SHIVVERS CORPORATION 107
mid-October, but had to admit that he kept no records of
order due dates and wouldn't know which if any orders
would be cancelled, and that the orders received from their
principal customer, Shivvers Enterprises, the family-owned
company, would not be cancelled.
From other testimony by Manager Steve Shivvers and
President Carl Shivvers, the buildup of workforce was un-
derstandable for other reasons that contradicted the exis-
tence of any long range or even short range contemplation
of a layoff in mid-October 1973. As President Carl Shivvers
indicated , Respondent , starting from scratch as a manufac-
turer in June 1973, was rapidly expanding in production,
sales , workforce , plant, and machinery . In the summer and
fall of 1973, Respondent converted from the position of
seller and outlet of products manufactured by the family
enterprise, Shivvers Enterprises, into a source of supply of
manufactured products for Shivvers Enterprises, which was
also an expanding company. The types of products were
being enlarged and varied. As sales orders to dealers (other
than Shivvers Enterprises) for the 1973 season were filled,
Respondent contemplated (and took in late 1973) preseason
discount orders to encourage early buying for the 1974 sea-
son, and to provide manufacturing lead time and more sta-
ble year round production. Lead time of 6 months, on such
items as grain spreaders, was needed; other items required
several months. New machinery was bought in the week
prior to the layoff for which manpower was needed for
setup and operation. The building of a new plant, twice the
size of the initial plant, had begun in late summer 1973, and
Respondent used part of its workforce, intermittently, to
help in the construction (contemplated for completion in
January 1974). Operation of the new plant would require a
larger rather than a smaller workforce.?
Though insisting that the decline in orders to be filled for
the 1973 season was the reason for the layoff, and admitting
awareness of that decline in August, September, and Octo-
ber, Manager Steve Shivvers testified he did not decide on
the need for a layoff until the weekend of October 13-14.
At that point, having returned from a several days' trip to
Cincinnati and Chicago, where he bought more machinery
for the plant, he obtained the approval of President Carl
Shivvers for the layoff. President Shivvers said this was on
Monday, October 15, or possibly Sunday, October 14. Fore-
man Shounk claimed (without corroboration) that he had
recommended the layoff to Manager Shivvers a week earlier
on October 8, and that Shivvers had put it off until he came
back from the trip for buying the new machinery; but said
he could not explain why on the same day he recommended
a layoff, October 8, an additional welder was hired.
Manager Shivvers concluded, he said, that he needed
only two-thirds of his force of 32 and that there would
therefore be a layoff of 10 employees. At about 6 or 6:30
p.m. on Monday, October 15, Manager Steve Shivvers,
President Carl Shivvers, and Foreman Shounk met and
went over the list of employees to decide who would be laid
off. Prior to the meeting, according to Manager Shivvers, he
r Respondent testified to training for welding nonskilled employee Wayne
Smith, immediately after the layoff, though it had just laid off two skilled
welders; and conceded advertising for new help thereafter , newspaper ad of
January 5, 1974, G.C. Fxh. 8.
had given an employee list to Foreman Shounk and to the
night supervisor, Supervisor Moore, to check their nominees
for layoff and he (Shivvers) made a checklist of his own.
Supervisor Moore did not attend the decision-making meet-
ing but, according to Manager Shivvers, Moore had at least
one recommendation. President Carl Shivvers said he did
not participate in the decisions except to recommend layoff
of truckdriver Gary Cox who was under his (President Shiv-
vers') operating jurisdiction.
Foreman Shounk testified that while the decision for lay-
offs was a mutual decision of Manager Steve Shivvers and
himself, he (Shounk) made the main decision, the final eval-
uation of the men. Shounk called attention to the fact that
Manager Shivvers had little contact with the men, knew
little about them, and left their handling to him. And, Man-
ager Shivvers testified, "Those people who Vern [Shounk]
thought I should lay off, I laid off." Indeed, said Manager
Shivvers on cross-examination, he could not remember who
they were and could not recall anything said about the men
being considered for layoff, adding, there wasn't much of a
discussion.
On cross-examination of Foreman Shounk, he made
quite clear his opposition to a union coming into the shop,
and that he did not hesitate to voice his views on the subject
in the shop, as in the case of the conversation with employee
Wayne Smith described under heading B, above. It was his
experience and view, he said, that unions protect the lazy
and those who loaf, and that as foreman he would lose
control, in terms of discipline, if a union came in.
In deciding who should be laid off, said Foreman
Shounk, Manager Shivvers did not tell him what criteria to
use; he knew the criteria, said Shounk. Shounk listed as
criteria workmanship, attitude toward work, getting along
with fellow workers, absenteeism, and whether the employ-
ee was satisfied with the money he was making. He said
union activity of the employee was not used as a criterion
and was not discussed, but that an employee's dissatisfac-
tion with the pay scale was a factor considered. Manager
Steve Shivvers agreed that an employee's dissatisfaction
with the pay scale was a reason for his layoff and together
with Foreman Shounk, specifically identified Stan Ramsey,
George Boucher, Lonnie Bell, Tom Gentry, and Cliff Ram-
sey as among the employees who were dissatisfied with the
pay scale and had been laid off.8
As earlier indicated, none of the employees was advised
of any reason for his selection for layoff. At trial, other than
the foregoing individual indications by Manager Shivvers
and Foreman Shounk of the employee's dissatisfaction with
the pay, no other specific reasons were assigned individually
for the selection for layoff of any of the 10 employees laid
off. None were singled out and charged with incompetent
performance of work or absenteeism or the criteria (other
than dissatisfaction with pay) which Foreman Shounk
claimed (as a generality) he had used in making the selec-
6 Foreman Shounk (like Manager Shivvers, supra ) could not remember his
recommendations for layoff, he said; and each took credit for certain alleged
independent decisions of the other. Thus, Manager Shivvers claimed sole
responsibility for deciding to lay off employee Cliff Ramsey, whom Foreman
Shounk claimed as among his recommendations ; and Foreman Shounk dis-
claimed recommending discharge of employee Stan Ramsey, which Manager
Shivvers attributed to Foreman Shounk.
108
tions.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Section 8(a)(1) and (3) Findings
The whole tenor of Respondent's conduct on the night of
October 15 and morning of October 16, 1973, was quick
disruptive action to abort incipient union organizing or
other concerted action among the employees. The layoff of
10 of the 32 employees came on the heels of management
learning during the day of October 15 that serious action to
organize the shop had commenced. Some of the employees
had signed at a noon meeting in the shop, signifying their
desire for a union, others signed in the afternoon as the
signature book floated around the shop. Significantly the
leaders and those whom management thought were allied
with them were eliminated from the shop by the layoff and,
as one employee testified, there has been no further talk of
organizing a union among the remaining employees.
Respondent's claim that the layoff of October 16 was
brought on by the winding down and completion of its
orders for the 1973 season and was a long planned or con-
templated layoff was negated by the deliberate buildup of
its workforce, the adding and keeping of a second shift, and
the encouragement of overtime work right up to the time of
the layoff, to meet the needs of its growth as a new business,
that was expanding in size and gearing up for new capacity
and products. Its attempts in the week prior to the layoff to
appease general employee discontent with their pay by
bringing out a new pay scale, was indicative that Respon-
dent was seeking and planning to retain its employees and
not drop one-third of them a few days later. The indication
is reinforced by Respondent's advertising for more employ-
ees just prior to the layoff.
In sum, Respondent's alleged economic justification was
a pretext to cover up the real reason for the abrupt layoff,
which can only be explained as retaliation against the group
of employees who protested their dissatisfaction with
Respondent's new pay scale and those known or suspected
of attempting to organize a union to further the protest. For
all practical purposes, Respondent has admitted that it used
their known or believed dissatisfaction with the pay scale,
as a basis for selection of the employees for layoff. Addi-
tionally, the obviously strong antiunion animus of the su-
pervisor who selected the employees for layoff, Foreman
Shounk, and his knowledge (and that of Supervisor Moore)
of employee union or other protected concerted activities,
are imputed to Respondent. Red Line Transfer & Storage
Company., Inc., 204 NLRB 116 (1973).
Respondent's layoff action violated both Section 8(axl)
and (3) of the Act.
Employees have a legitimate interest in acting concerted-
ly to make known their views to management without being
discharged for that interest, N.L.R.B. v. Phoenix Mutual Life
Insurance Company, 167 F.2d 983, 988 (C.A. 7, 1948), cert.
denied 335 U.S. 845. The cohesiveness of concerted activity
need be no more than the suggestion of group action, and
the existence of a group need not be communicated to man-
agement, Hugh H. Wilson Corp. v. N.L.R.B., 414 F.2d 1345,
1349 (C.A. 3, 1969), cert. denied 397 U.S. 935 (1970). Even
if the employees involved did not choose a spokesman or go
together to see management, that fact would not negative
concert of action, it being sufficient that the employees
involved considered that they had a grievance, ibid, and see
N.L.R.B. v. Guernsey-Muskingum Electric Cooperative Inc.,
285 F.2d 8, 12 (C.A. 6, 1960).
Respondent in having considered the employees' com-
plaints as the reason, or even a factor, to justify the dis-
charge or layoff was retaliating for the concerted activity,
and the layoff violated Section 8(a)(1) of the Act. Wilson,
supra at 1351-52; Guernsey, supra, at 12; Phoenix Mutual,
supra, at 988.
Because the layoff action also discriminated against the
employees whom Respondent knew or suspected to be en-
gaged in attempting to organize a union and was taken by
Respondent, with an object of discouraging employee orga-
nizing or membership in a union, Respondent violated Sec-
tion 8(a)(3) of the Act, N.L.R.B. v. Iron City Sash & Door
Company of Johnstown, 352 F.2d 437, 438-439 (C.A. 6,
1965).
The evidence established that eight of the laid off employ-
ees-Stan Ramsey, Goerge Boucher, Lonnie Bell, Steve
Coulter, Stanley Beschorner, Terry Weaver, Tom Gentry,
and Cliff Ramsey-were known or suspected 9 by Respon-
dent to have protested or encouraged protest of the wage
scale or taken part in or encouraged the union organizing
effort or to have been allied with or related to the leadership
in such efforts. In their case, the group layoff clearly violat-
ed Section 8(a)(l) and (3) of the Act. There was no similar
direct evidence in the case of two of the laid off employ-
ees-James Davis and Gary Cox.
However, the evidence was clear that the layoff, which
affected all ten employees on October 16, 1973, would not
have occurred but for the union organizing efforts that be-
came known to Respondent on the previous day. When
Respondent reacted to those efforts by layoff, that action,
insofar as it affected both employees sympathetic to a union
and employees whose sympathies were unknown, discour-
aged union activities of all employees. Accordingly, the lay-
off of employees Gary Cox and James Davis, as part of the
group layoff, violated Section 8(a)(3) of the Act. L. B. Fos-
ter Company, 192 NLRB 319 (1971). Similarly, the group
layoff, which also discriminated against employees known
or suspected of engaging in the concerted activity protesting
the pay scale as well as union organizing, also interfered
with and restrained the exercise of the Section 7 rights of
employees Cox and Davis in violation of Section 8(a)(1) of
the Act.
It would also appear that Respondent violated Section
8(a)(1) of the Act as a result of the coercive interrogation of
employee Wayne Smith by Foreman Shounk on October
15, 1973, concerning the interest of the employees in a
union; and by Supervisor Moore's attempts on October 11
and 12 to probe into the extent of employee interest in a
union with employee Cliff Ramsey. N.L.R.B. v. Harbison-
Fischer Manufacturing Co., 304 F.2d 738, 739 (C.A. 5, 1962).
9 Layoff or discharge motivated by the employer's belief or suspicion that
an employee was engaging in union or other protected concerted activities
violates the Act, N.L.R.B. v. Clinton Packing Co., Inc., 468 F.2d 953, 955
(C.A. 8, 1972). The fact that there may have been others in this category, or
even known activists , who were not laid off, is no defense to the violation
of the Act, Rust Engineering Company and Sheet Metal Workers International
Association, Local Si v. N.L.R.B., 445 F.2d 172, 174 (C.A. 6, 1971).
SHIWERS CORPORATION
Foreman Shounk's interrogation , particularly, was conduct-
ed in a manner that exhibited hostility to union organiza-
tion . Martin Sprocket & Gear Co., Inc. v. N.LR.B., 329 F.2d
417, 420 (C.A. 5, 1964).
CONCLUSIONS OF LAW
1. By coercively interrogating employees in the period
October 11-15, 1973, concerning the extent of employee
union organizing, Respondent committed unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act.
2. By layoff of ten employees on October 16, 1973, be-
cause they engaged or were suspected of engaging in pro-
tected concerted activities protesting Respondent's wage
scale and organizing a union, Respondent committed unfair
labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Following the filing of the complaint and at the time of
trial, Respondent had recalled only 1 of the 10 laid off
employees, namely, George Boucher, on December 26,
1973.
Accordingly, it will be recommended that the Respon-
dent:
1. cease and desist from its unfair labor practices;
2. offer to reinstate employees Stan Ramsey, Lonnie Bell,
Steve Coulter, Stanley Beschorner, Terry Weaver, Tom
Gentry, Cliff Ramsey, James Davis, and Gary Cox, with
backpay from the time of layoff, October 16, 1973, for them
and for employee George Boucher who was reinstated De-
cember 26, 1973, backpay to be computed on a quarterly
basis as set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), approved in N.L.R.B. v. Seven-Up Bottling Com-
pany of Miami, Inc., 344 U.S. 344 (1953), with interest at 6
percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), approved in Philip Carey Manu-
facturing Company, v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964),
cert. denied 379 U.S. 888 (1964);
3. post the notices provided for herein; and because the
Respondent violated fundamental employee rights guaran-
teed by Section 7 of the Act, and because there appears from
the manner of the commission of this conduct an attitude
of opposition to the purposes of the Act and a proclivity to
commit other unfair labor practices, it will be further rec-
ommended that Respondent; and
4. cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P. R.
Mallory & Co., Inc. v. N.L.R.B., 400 F.2d 956,959-960 (C.A.
7, 1968), cert. denied 394 U.S. 918 (1969); N.L.R.B. v. Bama
Company, 353 F.2d 320, 323-324 (C.A. 5, 1965).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER10
109
Respondent, its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
a. Coercively interrogating employees concerning their
union organization.
b. Layoff or discharge of employees because they engage
in or support union activities or other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection.
c. Discouraging employees from support of or member-
ship in a union or other labor organization by layoff or
discharge or other discrimination affecting their tenure and
conditions of employment.
d. In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
a. Make whole employees Stan Ramsey, Lonnie Bell,
Steve Coulter, Stanley Beschorner, Terry Weaver, Tom
Gentry, Cliff Ramsey, James Davis, Gary Cox, and George
Boucher, in the manner set forth in the section of this deci-
sion entitled "The Remedy," for any loss of earnings incur-
red by each of them as a result of his layoff on October 16,
1973.
b. Offer to employees Stan Ramsey, Lonnie Bell, Steve
Coulter, Stanley Beschorner , Terry Weaver, Tom Gentry,
Cliff Ramsey, James Davis, and Gary Cox immediate and
full reinstatement each to his former job, or if the job no
longer exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
c. Preserve and, upon request, make available to the
Board and its agents , for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to ascertain the backpay due under the terms of this order.
d. Post in its plants at Hutsonville, Illinois, copies of the
attached notice marked "Appendix." 11 Immediately upon
receipt of said notice, on forms to be provided by the Re-
gional Director of Region 14 (St. Louis, Missouri), the Re-
spondent shall cause the copies to be signed by one of its
authorized representatives and posted, the posted copies to
be maintained for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
e. Notify the Regional Director for Region 14, in writing,
within 20 days from the date of this Order, what steps the
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
11 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has taken to comply herewith.
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 having found, after
a trial, that we violated the National Labor Relations Act,
we hereby notify you that:
WE WILL NOT coercively interrogate you concerning
your union organization.
WE WILL NOT lay you off or discharge you because you Dated By
engage in or support union or other lawful concerted
employee activities for the purposes of collective bar-
gaining or other mutual aid or protection.
WE WILL NOT discourage you from support of or mem-
bership in a union or other labor organization by layoff
or discharge or other discrimination affecting tenure
and conditions of your employment.
WE WILL NOT in any other manner interfere with your
rights to belong to or be active for a labor union, or to
otherwise participate in concerted employee activities
protected under the National Labor Relations Act, or
to refrain therefrom.
Because the Board found that we unlawfully laid off
employees Stan Ramsey, Lonnie Bell, Steve Coulter,
Stanley Beschomer, Terry Weaver, Tom Gentry, Cliff
Ramsey, James Davis, Gary Cox, and George Boucher
on October 16, 1973, WE WILL offer each of them (who
has not already been reinstated) his former or like job,
and
WE WILL give each of them backpay with interest
from October 16, 1973.
SHIYVERS CORPORATION
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 210 North 12th Boulevard, Room
448, St . Louis , Missouri 63101, Telephone 314-622-4167.