V. E. Anderson Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 7, 1970

184 N.L.R.B. 459 (N.L.R.B. 1970)

V. E. ANDERSON MFG CO
V. E. Anderson Manufacturing Company and Local
424, Sheet Metal Workers ' International Associa-
tion, AFL-CIO. Cases 26-CA-3443 and
26-CA-3483
July 7, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On February 24, 1970, Trial Examiner Marion C.
Ladwig issued his Decision in these proceedings,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision He also
found that Respondent had not engaged in certain
other unfair labor practices and recommended that
the allegations of the complaint pertaining thereto
be dismissed. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified herein.
The Trial Examiner found that the Respondent
did not violate Section 8(a)(I) of the Act when
Plant Manager Carden allegedly treatened to fire
employees Gannon and Miller if the employees
walked out again. Carden denied making the
foregoing statement and gave a different version of
the incident and the Trial Examiner found it un-
necessary to resolve the conflict in the testimony
but dismissed this allegation of the complaint on
the apparent ground that Carden's subsequent
apology constituted an immediate retraction of the
statement which was sufficient to nullify its coer-
cive effect Assuming arguendo that such a state-
ment was made, we do not agree that Carden's
apology, which was general in nature, factually or
legally would have amounted to a retraction of the
459
specific threat As the credibility issue on this point
is unresolved and the finding of a violation in this
matter in any event would be cumulative, we find it
unnecessary to make any finding on this point
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, V. E. Anderson Manufac-
turing Company, Woodbury, Tennessee, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recom-
mended Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C LADWIG, Trial Examiner: These con-
solidated cases were tried at Woodbury, Tennessee,
on November 19-21, 1969,' pursuant to charges
filed by Local 424, Sheet Metal Workers' Interna-
tional Association, AFL-CIO, herein called the
Union, on August 15 and September 15 (the latter
charge amended on November 3), and pursuant to
a consolidated complaint issued on October 1 (and
amended at the trial). The primary issues are
whether the Respondent, V. E. Anderson Manufac-
turing Company, herein called the Company, (a)
postponed establishing a second storm door line at
its plant during the Union's organizing drive in
order to discourage unionization, (b) discrimina-
torily laid off and delayed recalling nine employees,
and (c) made threats to discharge employees and to
close the plant, granted wage increases to
discourage union activities, instructed employees
not to wear union buttons on the job, and engaged
in unlawful interrogation, in violation of Section
8(a)(3) and (1) of the National Labor Relations
Act, as amended.
Upon the entire record,' including my observa-
tion of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General
Counsel and the Company, I make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company is a corporation which is engaged
in the manufacture of storm doors and mobile
home doors in its plant at Woodbury , Tennessee
' All dates, unless otherwise indicated, are in 1969
t The General Counsel's December 31 motion to correct the transcript is
granted and the transcript is corrected accordingly
184 NLRB No 50
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past 12 months, it received goods
valued in excess of $50,000 directly from outside
the State and shipped products valued in excess of
$50,000 directly to points outside the State. The
Company admits, and I find, that it is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A Layoff of Senior Employees
The Company began manufacturing storm doors
in 1965 at a plant in Manchester, Tennessee. In
March 1969, it moved the existing storm door
production line to a new plant in Woodbury, about
25 miles away, where it planned to manufacture
also "Woodbury" and "CHD" mobile home doors
It transferred 19 of its Manchester area employees
to the new location, and within 2 or 3 days, its
storm door operations were "close to normal."
(Production averaged 150 doors a day in late April,
and 170- 180 a day at the time of trial, in
November.) In July, the Company decided to add a
second storm door line, ordered production facili-
ties for the new line, and began putting extra men
on the existing storm door line in order to increase
production and to train employees for the second
line. Plant Manager Lloyd E. Carden admittedly
told employees, prior to August 22, that the Com-
pany was selling more storm doors than it was
producing at the time.
Meanwhile, problems plagued the production of
both the Woodbury and CHD mobile home doors
The Company had planned to manufacture (with
seven or eight employees) 100 Woodbury mobile
home doors a day, but it produced only about 700
between April 1 and August 22. Because of poor
engineering, there were "several basic faults in the
door." Around August 10, the Company learned
that many of the doors would be returned as defec-
tive. The first group (a shipment of 88) arrived
back at the plant about August 19 or 20 Hundreds
of the doors had to be scrapped, and the Company
lost many of its Woodbury door customers. Produc-
tion of the CHD ("combination house-type door")
mobile home doors was also slow. Since May 1,
when production began, only about 300 had been
produced-an average of only 4 a day. As produc-
tion progressed, many changes had to be made. A
shipment of 99 defective CHD doors was later
returned to the plant on October I
The Company was experiencing considerable dif-
ficulty in obtaining and retaining qualified produc-
tion employees. On August 22, only six of the em-
ployees transferred from the Manchester plant in
March (Jerry Barnes, Howard Brandon, Creek,
Neeley, Frank Reed, and Rogers) remained on the
plant payroll. A number of employees were quitting
for better jobs. (The Company had a beginning rate
of $1.60 an hour for all new employees, and max-
imums of $1.80 and $1.90 for all jobs except a
maximum of $2 for the miter saw operator on the
storm door line.) Plant Manager Carden testified,
"we had problems with turnover and getting the
quality of men we wanted."
As discussed hereafter, there was repeated strike
activity at the plant in early August The leadman
on the Woodbury line was a leader in all this activi-
ty, and all the other Woodbury line employees par-
ticipated each time
The Union began organizing, requested recogni-
tion on August 5 or 6, and filed a petition for an
election on August 15. Sometime between then and
August 22, when regular production on the Wood-
bury line was halted, the Company decided to lay
off the entire Woodbury line These seven em-
ployees included the leadman, Lloyd Gannon, who
was one of the first employees hired at the new
plant (on March 19), and four other senior em-
ployees, Terry Mullinax, James Owens, Grady T.
Parton, and Kenneth W. Thomas (all hired in
May). Within the preceding 2 weeks, Gannon had
received a 15-cent hourly wage increase (as lead-
man), and Mullinax, Owens, Parton, and Thomas
had received 10-cent increases. The two others on
the Woodbury line were junior employees, Vernon
L. Barnes and Jimmy Simpson, both hired in July.
The first notice of the layoffs was given on the af-
ternoon of August 22, when Plant Manager Carden
read a written speech to the employees. In the same
speech, he also announced a delay in installing the
second storm door line, and the layoff of the three
extra men who were being trained on the existing
storm door line for assignment to the second storm
door line. (They were Horace Ferrell, Charles M.
Sain, and Charles Thompson, all employed August
5.) Carden gave no reason in the speech for not
proceeding with the establishment of the second
storm door line, gave no reason for laying off the
senior employees while retaining seven junior em-
ployees (hired in July) on the storm door and CHD
mobile door lines, and said nothing about ever re-
calling any of the laid-off employees.
The General Counsel contends that the delayed
expansion of the second storm door line and the
reduction in the work force were discriminatorily
motivated, that the Woodbury line employees were
laid off instead of being reassigned because of their
strike activity and supposed union support, and that
the three most junior employees on the storm door
line would not have been laid off in the absence of
the Company's discriminatory motivation. The
General Counsel contends that the discriminatory
motivation was particularly revealed by the timing
of the layoffs (7 days after the Union's election
petition), the discriminatory selection of employees
to be laid off, the Company's 8(a)(1) violations and
announced opposition to the Union, and its failure
to recall any of the laid-off Woodbury employees
until after the election, although recalling and hir-
ing others in the meantime
V. E. ANDERSON MFG. CO
The Company contends in its brief that "The
record lacks substantial evidence to support any
finding that Respondent curtailed the expansion
plan for a second storm door line to discourage
unionization or that there was a discriminatory
delay \in recalling laid off Woodbury door line em-
ployees." The brief cites the evidence of "problems
experienced on the Woodbury door line," as well as
the evidence that the CHD doors "were not by any
means flawless and were subject to numerous
mechanical improvements," and "evidence of the
return of a large quantity of defective CHD doors."
(The CHD doors were returned on October 1,
about 6 weeks after August 22. None of the four
CHD employees was laid off.) The Company then
argues in its brief that "it appears within the realm
of normal good business practice to act as this
Respondent acted under these circumstances, to
wit, delay expansion of the storm door line until
quality and production standards had improved...
Similarly, there is a lack of substantial evidence
that the recall of laid off employees was effectuated
in a discriminatory manner."
The 8(a)(1) allegations and other circumstances
of the layoffs and recalls are now considered.
B. Alleged 8(a)(1) Conduct
1. Threat of discharge
About 9 o'clock on Friday morning, August 1,
the 1 1 employees assigned to the mobile home door
lines went on strike, seeking higher wages and other
benefits. They returned to work about an hour and
a half later, after reaching an understanding with
Plant Manager Carden that he would consider their
requests and that they would give him a week to do
so.
A short time after the employees returned to the
plant, Carden went to the Woodbury production
line and spoke to leadman Gannon and employee
Roger Miller. The evidence is in sharp dispute
about what Carden told the employees. Carden
testified that he went "to the two men I considered
to be the spokemen for the men" and "I told them I
had asked for a week to consider the requests that
they had made; that we had production to get out
and we could not get our production out if they
were going to be walking out every few minutes. I
told them I did not want any more walkouts." Gan-
non recalled that Carden said he felt Gannon and
Miller were the leaders, that he did not want it to
happen again , and that if it did he was going to fire
or dismiss both of them. Employee Grady Parton
testified that he did not overhear the conversation,
but that Gannon and Miller "came over and told
me and some other guys that Gene Carden
threatened to fire them if we walked out again."
Miller testified that Carden told him and Gannon,
"You two boys seem to be spokesmen, ring leaders
of the whole thing," and that "If this occurs again
you two guys will be dismissed." However, in his
461
pretrial affidavit, given on September 24, Miller
stated that Carden told Gannon and him that they
seemed to be the spokesmen, "you do all the talk-
ing outside," and then walked away without saying
anything else.
Because of what happened immediately after this
conversation, I find it unnecessary to resolve the
conflict in testimony. It is undisputed that after
Carden walked away employees from the Woodbu-
ry line and others then started back out on strike,
and Carden met them at the water fountain and
apologized (for threatening to discharge the two
employees, as recalled by Brandon, or stating "I am
sorry if you think I am getting smart," as testified
by Carden). The employees returned to work.
Thus, if a threat had been made, it was retracted
forthwith. I shall therefore recommend dismissal of
the allegation in the complaint that Carden on Au-
gust 1 threatened employees with discharge for en-
gaging in protected concerted activities
Nevertheless, I attach some significance to this
incident It is clear, even from Carden's version,
that he regarded leadman Gannon as one of the
leaders of the strikers. Furthermore, not only Gan-
non but all the other Woodbury door line em-
ployees (whom the Company later failed to reassign
on August 22) again demonstrated their discontent
with the Company and their intention of going back
on strike a second time that day, when they went as
far as the water fountain where Carden was and
talked to them.
2. Threat to shut down plant
A second strike did occur on Monday morning,
August 4, when the Company discharged two em-
ployees, Miller and LaFever (Neither of them is al-
leged as a discriminatee ) This time, 20 of the plant
employees (including all those on the Woodbury
line) went on strike and sought union representa-
tion. A day or two later,-the Union verbally
requested recognition, which was refused.
Thereafter, the Union made a written request for
recognition on August 7 and filed a petition for an
election on August 15.
On the first day of this strike, one of the nonstrik-
ing employees working behind the picket line,
Howard -Brandon (who lived near Manchester),
talked to Plant Manager Carden about bringing in
some strike replacements. According to Brandon
(who impressed me as an honest, forthright wit-
ness), Carden approved and told him to bring in
three to four to six men, if they were not union men.
Carden admitted asking Brandon to bring in em-
ployees to work, but denied asking him to bring in
employees who were against the union. (At various
times when Carden was denying testimony given by
other witnesses, as when he gave this denial, his
face became flushed and he appeared quite
agitated.) I credit Brandon's version of what was
said.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next morning, August 5, Brandon brought
two applicants, Horace Ferrell and Charles Thomp-
son, from Manchester. Both, after being hired,
worked behind the picket line That afternoon, as
Brandon credibly testified, he told Foreman Ed-
ward Mazarra that he was quitting and went home.
That evening, Mazarra and Plant Manager Carden
went to his home to try to persuade him to return
to work. In the conversation, Carden told Brandon
and his wife about the strike, and said that if the
employees (in Brandon's words) "did not come in
and stick together the union would come in the
plant and the plant would be closed " Brandon's
wife, Barbara, testified, "Harry had quit work.
Then they came and said they wanted him to come
back to work They wanted him to come back to
work and bring his riders to keep the plant open
He would have his job They said if the union would
come in they would close down the plant." (She
also impressed me as a credible witness ) Brandon
agreed to return to work
The Company called three witnesses to testify
about this incident. One of them, employee Frank
Reed, asserted that he "sure did" hear Brandon
telling Foreman Mazarra that Brandon "wasn't
going to be back the next morning." (This confirms
Brandon's testimony that he told Mazarra that he
was quitting .) Reed then testified that Brandon
"told me the next day Gene and Ed came up to his
house and got him to come back to work and Gene
promised him a raise." The Company's other two
witnesses had a different version. Mazarra testified
that he heard that when Brandon "left the plant
that he had made a comment he was tired of being
harassed and threatened and he was going to leave
the employment of the Company. I got to Gene
Carden and told him what I had heard." Although
agreeing with this version, Carden corroborated the
Brandons' testimony to some extent when he
testified that at their home on that Tuesday even-
ing, August 5, "1 explained we needed to keep
production running during the strike We needed
him and the men that rode with him. I asked him to
return to work the next day." Both he and Mazarra
denied that anything was said about closing the
plant. When asked on cross-examination whether
he talked to Brandon "at all about the Union" at
Brandon's home, Carden first gave a positive
answer, "No." Later when asked whether the
Union was mentioned in connection with the strike,
he answered, "I will not say definitely we would not
say the name Sheet Metal Workers Union We may
have." (When so testifying, he appeared to be seek-
ing plausible answers, rather than attempting to
recount accurately what had happened.) Whereas
the Brandons impressed me as trustworthy wit-
nesses, I was not similarly impressed by the
demeanor of Carden and Mazarra as they testified
about this incident . I credit the Brandons'
testimony about what happened
Accordingly, I find, as alleged in the complaint,
that at the home of an employee Plant Manager
Carden made the threat that, if the Union got in,
the plant would be closed, thereby violating Section
8(a)(1) of the Act.
3. Granting wage increases
During the second strike, the employees con-
tinued to seek a wage increase and other benefits,
in addition to seeking the reinstatement of the two
discharged employees The strike was settled on
Wednesday, August 6, in negotiations between
Plant Manager Carden and three employees (one of
whom was leadman Gannon). Carden agreed to
change Miller's separation notice to show that he
quit for a better position and agreed to give further
consideration to the employees' wage and other
strike demands The employees (except Miller and
LaFever) returned to work the next morning, Au-
gust 7.
Two days later, on August 9, the Company in-
creased the employees' 90-day wage progression
rate from 5 cents to 10 cents an hour and granted a
wage increase to 14 of its 36 employees All the in-
creases were at the new 10-cent progression rate,
except three in the amount of 5 cents, which were
given to senior employees whose wages were al-
ready within 5 cents of the maximum rates for their
classifications. Leadman Gannon and another lead-
man were granted additional 5-cent increases, total-
ing 15 cents for each of them. Most of the increases
were given about 2 or 3 weeks before the expira-
tion of 90 days since the date of hire or date of last
increase, but the Company had in the past some-
times given such raises early. The wage increases
were given to senior employees on the Woodbury
line as well as to some of the other senior em-
ployees and to strikers as well as nonstrikers. The
raises were apparently given on the basis of merit
Discrimmatee Grady Parton gave credited, un-
disputed testimony that, when Foreman Pat Stin-
nett advised him of the 10-cent raise, Stinnett said,
"I made him a good hand and everybody wasn't
getting that raise." (Parton, as previously men-
tioned, was not reassigned when the Woodbury
door line was shut down on August 22 ) In contrast,
one striker and one nonstriker, Melton and Wood-
ward, did not receive any raise even though they
had been employed more than 4 months and 3
months, respectively (I note that both Melton and
Woodward were retained on August 22.) Plant
Manager Carden testified that the employees who
"deserved" raises got them
The complaint alleges that the wage increases
were given in order to discourage the employees'
union activities The Company had promised a
week earlier, before the advent of the Union, to
give consideration to the employees' strike de-
mands, including higher wages, and the employees
had returned to work with the understanding that
the Company would give its answer within a week.
Later, the second strike was settled after the em-
ployees were assured that their wage and other
V. E. ANDERSON MFG. CO.
strike demands were still under consideration for
the remainder of the week . It was on Saturday of
that week that the Company increased its 90-day
wage increment from 5 to 10 cents and granted the
merit increases to senior employees only. Under
these circumstances , I find that the Company, faced
with a high labor turnover and repeated strikes for
higher wages , was motivated by economic factors in
granting the increases . Even though the Union had
sought recognition in the meantime, I find that the
General Counsel has failed to prove by a preponde-
rance of the evidence that the granting of the in-
creases was for the purpose of inducing the em-
ployees not to support or vote for the Union In the
absence of such proof of unlawful motivation for
taking this particular action , I shall recommend
dismissal of the allegation . Tonkawa Refining Co.,
175 NLRB 619, N.L R. B. v Exchange Parts Com-
pany, 375 U.S. 405
4. Wearing of union buttons prohibited
The complaint alleges, and the Company ad-
mitted in its answer , that , during the latter part of
August , Foreman Pat Stinnett " told employees at
the plant to remove union buttons from their
clothing " Leadman Gannon credibly testified that
some of the employees started wearing union but-
tons ( described as small pins ) in the plant after
returning from the second strike, that Foreman
Stinnett " told me to tell them not to wear them in
the plant," and that he heard Stinnett ask three of
the employees to remove their buttons. This
testimony is undisputed.
At the trial, the Company counsel admitted in his
opening statement that Stinnett did erroneously tell
one employee on one occasion to remove a union
button, but contended that Stinnett was advised to
the contrary , and that the employee was permitted
thereafter to wear the button There is no evidence
to support the counsel 's contentions , nor any
evidence that Stinnett advised the other employees
that they had the right to wear the buttons, or
otherwise nullified the coercive impact of his
prohibition against their exercise of the protected
right to demonstrate their support of the Union in
this way I find that the Company 's action in telling
employees at the plant to remove union buttons
from their clothing was coercive and violated Sec-
tion 8(a)(1) of the Act. Central Soya of Canton,
Inc., 180 NLRB 546; Consolidated Casinos Corp ,
164 NLRB 950
5 Unlawful interrogation
As already found , Plant Manager Carden told
nonstriker Howard Brandon on August 4 (the first
day of the second strike ) that Brandon could bring
in strike replacements if they were not union men.
On August 11, Carden started calling employees
into his office . After talking to them about com-
pany wages and benefits , and asking each employee
463
to relate any problem he would like to discuss,
Carden explained the Company 's position on
unions, "We do not have a union now , we do not
feel we need a union in this plant , and we will do
everything within our legal power to see that a
union does not succeed in this plant ." On August
15, in a speech to the plant employees , President
Anderson concluded, "I want you to know and un-
derstand that I am strongly against a union ever
putting its foot in this door ." (None of these anti-
union statements is alleged in itself to have been
coercive.)
It was a week after its president 's speech that the
Company shut down the Woodbury line, without
reassigning any of the employees working on that
line. The alleged unlawful interrogation occurred
between then and the September 19 election, dur-
ing which time none of the laid -off Woodbury line
employees was recalled.
Howard Brandon credibly testified that one day
(alleged to be during the first week in September)
he asked Foreman Mazarra about Donald Brown,
his brother - in-law , coming back to work. (Brown,
who had been transferred from the Manchester
plant , had been terminated on May 5 because of a
bad attendance record . However, Brown had lost a
thumb on the job at Manchester, and at the request
of the former Manchester plant manager, Carden
had shown on the separation papers that Brown was
being "laid off" for "lack of work," instead of
being discharged , to make it easier for Brown to
find another job ) Mazarra said he would talk to
Carden about it Then, in Brandon 's words, "Gene
[Carden ] came out and asked me was he a union
man. I said , no." (Emphasis supplied.) Carden later
returned to the plant area and informed Brandon to
tell Brown to come back to work . The next day,
September 5, Brown was rehired Carden 's inter-
rogation of Brandon , about the union membership
or sympathies of Brown , is alleged to be unlawful.
The Company called Foreman Mazarra and em-
ployee Frank Reed (who worked across a table
from Brandon) to testify about this matter But
neither of them was questioned about whether he
overheard Carden asking Brandon if Brown was a
union man (as credibly testified by Brandon). Reed
testified that , after Brown came to work on Sep-
tember 5, Brandon reported that Carden said to get
Brown to work on time and " no drinking" at any
time.
Although Carden denied having had any discus-
sion with Brandon concerning Brown and the
Union , Carden did not impress me as being as relia-
ble a witness as Brandon , and I discredit the denial.
I note, though , that Carden admitted talking
directly to Brown about the Union Carden testified
that when Brown came to work, "I explained we
had had two strikes, that the Sheet Metal Workers
were in the process of attempting to organize our
plant ; that we expected an election sometime in the
future. . . . I said, we do not have a union now; we
do not feel we need a union and we will do
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
everything within our legal power to see that a
union does not succeed in this plant."
In his brief, the General Counsel contends that
"Carden's inquiry of Brandon as to Brown's union
sympathies not only constituted interrogation of an
employee in violation of Section 8(a)(1), but also
demonstrates Respondent's desire to obtain only
those who have no union sympathies subsequent to
the August 22 layoff." I agree. The interrogation
came at a time when senior employees from the
Woodbury line were not being recalled, and Carden
was demonstrating to Brandon by the question
about Brown's union status or sympathies that only
nonunion persons were being considered for em-
ployment at that time (before the election). In this
context, and following the repeated pronounce-
ments of the Company's antiunion attitude, I find
that the interrogation of Brandon was coercive and
interfered with the employees' exercise of their
Section 7 rights, in violation of Section 8(a)(1) of
the Act.
C. Other Circumstances of Layoffs
1. Denials of antiunion motivation for layoffs
There are two central questions in the case. The
first is why the Company, faced with the need for a
second storm door production line-but having a
shortage of experienced, qualified production work-
ers-decided during the Union's organizing cam-
paign to lay off five of its senior production em-
ployees and five junior employees (including three
trainees for the second storm door line), and to
postpone establishment of the second line. The
other question is why the Company decided to lay
off the five senior employees and announced the
layoffs without any mention of ever recalling any of
them, rather than laying off junior employees.
Despite the General Counsel's evidence of anti-
union motivation (discussed further hereafter), the
Company without explanation failed to produce as
a witness the person, President Anderson, who pur-
portedly gave the instructions. The Company's only
witness on these matters was Plant Manager
Carden, who testified that when "Anderson real-
ized how bad our problems were" he instructed
Carden "to lay off the men on the Woodbury door
line" and "let our work force drop down to 19
men." Carden gave no explanation for the decision
not to proceed with the second storm door line, and
no reason for letting the work force drop to 19 em-
ployees (from the 34 employees on the payroll on
August 22).
Thus, Carden gave no business or other nondis-
criminatory reason for delaying the second storm
door line, for Anderson's instruction to lay off-in-
stead of reassigning-the leadman and four other
senior employees from the Woodbury line, or for
letting the work force drop that far.
Carden did deny any antiunion motivation.
As already indicated, Woodbury line leadman
Gannon was a leader in all three incidents of strike
activity earlier that month, and the six other em-
ployees on the Woodbury line also participated in
each of the three incidents. It seems obvious that
the layoff of these particular employees-in view of
the pending election proceeding and the fact that
five of the employees were senior production em-
ployees who had recently received wage in-
creases-would raise questions of union considera-
tion Yet Carden gave the following testimony
when questioned by the General Counsel about the
layoffs:
Q. In accomplishing or effectuating this
layoff did you have any or give any thought to
the union campaign that was going on at the
plant at that time
A. No, I did not
Q. Didn't think of it at all in connection
with the layoffs?
A. No.
Q. Did you think of the implications that
might flow from this?
A No.
Q. Is it your testimony then that the union
never entered your mind in connection with
this layoff?
A. That's correct.
Carden appeared particularly agitated, when giving
these answers.
Later he testified to the opposite, admitting that
"Yes," he had thought of the union in connection
with layoffs-after testifying that he had been
"aware of the union situation" and had checked
with the Company counsel concerning the layoffs.
Having previously found that Carden was not a
credible witness when testifying about various mat-
ters which might incriminate the Company, and
having considered the above-quoted conflicting
testimony, I do not place any credence in his
further denials that participation in either the Au-
gust 1 or the August 4 strike, or the engagement in
any protected concerted activity or union activity,
played any part in the decision to lay off the seven
Woodbury line employees.
2. Decision to postpone second storm door line
Plant Manager Carden testified that the decision
not to expand the storm door line "was actually
made on August 20, I believe." Other evidence
does not support this claim.
On August 20, about the time 88 of the faulty
Woodbury doors arrived back at the plant, Com-
pany President Anderson and another person from
the home office met with Carden at the Woodbury
plant to decide what was to be done. In a letter
dated August 27, Carden submitted to Anderson "a
recap of the points covered" on Anderson's August
20 trip to Westbury. The letter first detailed a
number of improvements to be made in the CHD
mobile home doors, and stated that the "produc-
V E. ANDERSON MFG. CO. 465
tion level for this product has been set" for 30 units
a day, and "this will continue for approximately
three months while a field checkout is being ac-
complished." (As already noted, an average of only
four CHD doors a day had been produced since
May 1 The evidence does not disclose how many
were being produced in August.) The letter then
detailed the many changes which had to be made in
the Woodbury doors, and recited the decisions to
limit production of one type of Woodbury door to
"what is required to meet existing orders," and to
discontinue production of other Woodbury doors
until a different material could be obtained.
Nowhere in this letter was there any mention of
any problem with the design, quality, or production
of storm doors, or any indication that a decision
was made that day to delay the establishment of the
second storm door production line. Because of the
completeness of the letter, which on its face pur-
ports to be "a recap of the points covered," I find
that if a delay was discussed, or if a decision to
delay the storm door expansion had been reached
on that date, the discussion or decision would have
been mentioned.
When questioned by company counsel about the
storm door production, Carden testified
Q. ... Why didn't you discontinue the
storm door line or minimize the production in
some form or curtail production of the storm
door line? [Emphasis supplied.]
A. The ... storm door is an established
product.
Q. By established what do you mean by
that?
A. We have been producing the same storm
doors we are producing today for about four
years.
0. Did you have the same engineering and
production problems with the storm door line
you had with the Woodbury door line?
A. No, we experienced none of the
problems.
Thereafter, Carden explained:
We moved an existing operation All the
equipment was existing in Manchester. Over
one week end we picked up and started in at
the place at Woodbury. Within two or three
days lafter the end of that week we were back
to pretty close to normal operations. [Emphasis
supplied. ]
Carden further testified that the production
gradually increased. He gave this description of the
minor nature of the production problems when
asked what kind of problems had been encountered
on the storm door line: "We still have line up
problems and getting the material and equipment
flowing through the line on particular doors which
are not high volume items. But these are things that
can be worked out. You can relocate work stations
on the line." Nowhere did he suggest that such
problems had been a reason for delaying the
establishment of a second storm door line.
As previously indicated, Carden told employees
prior to August 22 that the Company was selling
more storm doors than it was producing at the time.
There is no evidence that there was any decrease in
the orders. Furthermore, since July when the Com-
pany approved Carden's request for money to
purchase equipment for the second storm door line,
Carden had been preparing to establish the new
line by purchasing production facilities and training
extra employees. On August 22, Carden not only
had 3 trainees on the existing storm door line, but
also 2 other extra employees-totaling 18-in order
to increase the production Also, the Company had
taken steps to curb its high labor turnover and to
retain its experienced, senior production em-
ployees, by granting the August 9 wage increases to
40 percent of the plant employees
Thus, Carden's testimony shows reasons for
retaining its senior production employees and
proceeding to establish the second storm door line,
rather than reasons for postponing the expansion
plans, laying off production employees, and curtail-
ing storm door production The question remains,
what was the reason for the postponement. The
answer is indicated in President Anderson's August
15 speech to the employees.
3. Company's antiunion campaign
As already found, Plant Manager Carden in-
formed one of the plant employees and his wife on
August 5 (about the time the Union requested
recognition) that, if the Union came in, the plant
would be closed. Thereafter, during the week of
August 11, Carden held individual interviews with
plant employees in his office and explained the
Company's antiunion policy that "We do not have
a union now, we do not feel we need a union in this
plant, and we will do everything within our legal
power to see that a union does not succeed in this
plant "
On Friday of that same week, August 15, Pre-
sident Anderson went to the plant and delivered a
written speech to the employees. Despite repeated
disclaimers, the Union's organizing drive and the
recent strike activity were the obvious reasons for
the speech. The speech began, "This gathering has
nothing to do with the Union or the Company's
feeling regarding this subject." Thereafter in the
speech, the word "union" or "unionization" was
used six times, as follows (emphasis supplied).
After referring to "some recent activities" (the Au-
gust 1 and 4 strikes) and reminding that "it is
management's job and not the workers to run a
business," Anderson stated in the speech that this
condition must exist "regardless of the state of ex-
istence of any union " Thereafter, Anderson stated
in the speech that "the recent union activity has no
bearing" on the Company's laying the groundwork
for developing incentive programs at the plant.
Further, Anderson asserted in the speech that what
he had said about the economic factors "has
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nothing to do with recent union efforts." (In the
context, it is clear that Anderson was using the
"suggestion by denial " technique .) He referred to
the Union again when he claimed in the speech, "I
want you to keep the two subjects separate in your
minds, one being union efforts and the other being
economics of this operation." The speech con-
cluded, "However, even though I have separated
these subjects on the question of unionization I
want you to know and understand that I am
strongly against a union ever putting its foot in this
door."
In addition to the antiunion nature of the speech,
its major import was a strong warning that, unless
productivity improved, the plant would be closed.
After stating the Company's reasons for locating in
Woodbury, and stating "We have planned" to dou-
ble the current $ 100,000 annual payroll "within the
first year," Anderson read in the speech the state-
ments (emphasis supplied): "as long as we are here .
.. If the situation does not change completely ...
We will have no choice but to close this operation
down ... I have advised this management that if
they want the plant to remain open and to keep their
jobs ... if they want this plant to stay open ... We
are not here for our health.... We intend to stay in
business. We will not continue to lose money on a
production operation. We will either correct it or
shut it down ... How you treat these facts of life is
your business. Since you and this community have
the most at stake I suggest you consider it carefully.
... If the doors of this company are to remain open,
it will depend upon your productivity and nothing
else...."
This speech, delivered about 5 days after the
Company learned that many of the Woodbury mo-
bile home doors would be returned as defective,
made no specific mention of the faults in the mo-
bile home doors, and the small number of those
doors produced, nor the now-admitted fact that
operations on the storm door line were "close to
normal" within 2 or 3 days after the move from
Manchester. Without distinguishing between the
established storm door production and the faltering
mobile home door production, Anderson stated in
the speech that there had been an operating loss of
about $60,000 in the first 3 months of operation,
and that direct manufacturing costs, not including
distribution costs, exceeded the selling price. He
also asserted: "The majority of the production now
produced in this plant has already been produced
elsewhere at a fraction of the cost it is being
produced here and under much worse conditions
and with much worse equipment. . . . We have not
only produced doors elsewhere at the recognized
standard but have produced them at less than the
theoretical labor cost which has resulted in incen-
tive bonuses...." (Emphasis supplied.) He did not
explain which type doors he was referring to, and
there is no evidence supporting these assertions. It
is evident that these assertions did not apply to the
production of storm doors, which were being
produced in the Woodbury plant with the same
equipment, on the same production line which had
been moved (along with 19 transferred employees)
from Manchester, where production of the storm
doors had begun 4 years earlier. (Storm doors are
not manufactured at any of the Company's other
plants. Carden claimed at one point that the Com-
pany had an average daily production goal of "ap-
proximately 200" storm doors, but he did not in-
dicate what the production at Manchester had
been.)
I find that this speech, opposing the Union, re-
peatedly referring to a possible plant closure, and
blaming employee productivity generally for
operating losses (without any mention of the obvi-
ous engineering faults in the mobile home doors or
the high labor turnover), was not primarily in-
tended to encourage the employees to work harder.
Under all the circumstances, I find that President
Anderson delivered the carefully worded speech-
using the technique of "suggestion by denial"-to
demonstrate to the employees the Company's reac-
tions to the Union's organizing drive and to make
them fearful of losing their jobs unless they heeded
the Company's strongly expressed opposition to the
Union. (The vote in the September 19 election was
17 to 2 against union representation.)
The speech not only demonstrates the Com-
pany's union animus, but it also indicates when the
Company decided to postpone establishment of the
second storm door line Toward the beginning of
the speech, Anderson referred to the plans for
doubling "within the first year" the Company's cur-
rent $ 100,000 annual payroll. Then, about the mid-
dle of the speech (immediately before alluding to
"some recent activities"-referring to the strike ac-
tivity--and stating that it was "management's job
and not the workers' to run the business"), Ander-
son stated:
If the situation does not change completely
to the point where you can produce windows
and doors as efficiently as we have and do in
other locations and as efficiently as our com-
petitors do the Company will have no choice
but to close this operation down.
Did I say windows?
We had plans to add such production facili-
ties here and jobs in the community as soon as
you were efficiently running the lines you al-
ready have. [Emphasis supplied.]
In the context, it was not clear whether Anderson
was deferring the production of windows in the
plant until the door production lines were running
efficiently, or whether he was announcing also that
the planned second storm door line would be post-
poned until all the door lines were running effi-
ciently. The Company's intentions were revealed
when it had the speech reported on local radio.
Plant Manager Carden testified that, on the after-
noon after Anderson made the speech, "we felt the
speech was of considerable importance to the com-
munity as a whole," and the Company tried to get
V. E. ANDERSON MFG. CO.
the radio station to carry some of the points men-
tioned. The station wanted a written news release.
Such a release was furnished on August 20 (I as-
sume after being cleared through company chan-
nels). It stated that in his August 15 comments to
the employees, "Mr. Anderson pointed out that ...
plans have been made to double [the $100,000 an-
nual] payroll within the first year of operation" but
that "those plans for expansion have been delayed
due to high operating costs and low efficiency . . .
When asked at the trial what the August 15
reference to expansion plans meant, Carden
testified, "We had had plans to add a second storm
door line."
Thus, according to the Company's own speech
and news release, the Company had decided by Au-
gust 15 to delay the establishment of the second
storm door line until all three of the production
lines (one storm door line and two mobile home
door lines) were operating efficiently. Because of
this evidence, and the failure of Carden to mention
storm door production in his August 27 "recap of
the points covered" in President Anderson's August
20 visit, I discredit Carden's testimony that the
decision to delay expansion of the storm door line
was made on August 20 and find that it was made
by the time President Anderson delivered the writ-
ten antiunion speech to the employees on August
15.
The question still remains, why the decision was
made. The Company's only justification is the argu-
ment in its brief that, in view of the problems ex-
perienced in the production of the mobile home
doors, "it appears within the realm of normal good
business practice" for the Company to "delay ex-
pansion of the storm door line until quality and
production standards had improved." In making
this argument, the Company does not refer to any
problems experienced in the production of storm
doors. Neither does the Company offer any ex-
planation of why the Company, after going to the
expense of purchasing the equipment for a second
storm door line and training employees for that new
line, would permit the problems in manufacturing
the unsuccessful products (the mobile home doors)
to disrupt its plans and preparations for doubling its
capacity for manufacturing the well-established,
major products (the storm doors). The brief does
not state how this could be a "normal good busi-
ness practice."
Even without considering the Company's sub-
sequent actions (which further reveal its antiunion
motivation), I find that the Company decided on or
before August 15 that it was willing to forgo the
normal expansion of the plant, and to deny itself
the production on a second storm door line to fill
its customers' orders, until the Union's organiza-
tional drive was defeated. In making this finding, I
rely particularly on the timing of the decision (the
week after the Union requested recognition ), Plant
Manager Carden' s statement to an employee and
his wife that the plant would be closed if the Union
467
came in, and the Company's failure to explain why
production problems elsewhere in the plant would
cause it to defer expansion of its long-established
storm door production. I further find that the union
animus, shown by President Anderson's August 15
speech to the employees during the Union's or-
ganizing drive, supports the foregoing finding.
4. The August 22 layoffs
On August 22, when regular production on the
Woodbury door line was halted, major revisions in
design and construction of the Woodbury doors
were necessary, and the resumption of regular
production was not expected for a number of weeks
or months. Yet the Company did not reassign any
of the Woodbury line employees. Instead, Plant
Manager Carden read them a formal speech, giving
them the first notice of a layoff
In the speech, Carden announced that the
redesigning work was "a very time consuming
thing," that "new materials must be obtained," and
that the production of all mobile home doors was
being discontinued "until the problems can be
solved." He announced, "I have been instructed by
Mr. Anderson to reduce our work force," effective
that day; that most of the men affected were on the
mobile home door line, but because of the delay in
the expansion plans, he was forced to lay off also
the extra men being trained (on the storm door
line). He added, "I regret having to do this. It is bad
for the Company, me, the supervisors, you and the
community But I have no choice since I do not
have the work for you. The men who have been
laid off will find a separation slip stapled to their
time cards." Nothing was said about recalling any
of them (even though Carden testified "Yes" at the
trial when he was asked if he had intended on Au-
gust 22 to recall some of these employees, and the
Company now contends in its brief that "it was the
intent of Respondent at all times to recall all laid
off employees whenever suitable positions were
available ") He gave no reason for delaying the
establishment of the second storm door line, but
referred to complaints on the mobile home doors
"caused by a combination of poor workmanship, bad
materials, and poor design," and reminded the em-
ployees of President Anderson's August 15 warning
that "We must improve our efficiency and the
quality of our product or we cannot stay in busi-
ness." (Thus, he did not refer to any storm door
production problems. Concerning the reference to
poor workmanship on the mobile home doors, the
Company had not established a quality control pro-
gram.)
That afternoon, Carden retained the seven junior
employees (hired in July) who were working on the
storm door and CHD production lines. He laid off
the entire Woodbury line (senior employees Mul-
linax , Owens, and Parton, hired in May, as well as
Barnes and Simpson, hired in July), with the excep-
tion of leadman Gannon and employee Thomas,
whom he retained for a few days because there
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"was still some work to be done on the line," grad-
ing inventory and making corrections. Leadman
Gannon was laid off on September 2. Carden first
testified that Thomas was also laid off at that time
because "There was nothing left for them to do"
(indicating that Carden had intended to lay off the
entire Woodbury line-as he elsewhere testified
that "this line was laid off"), but the company
records shows that Thomas (who had not been
reassigned in the meantime) quit for a better job on
September 3. (Thomas is not alleged as a dis-
criminatee. The six other Woodbury line employees
are alleged discriminatees.) Carden also laid off al-
leged discriminatees Ferrell, Sain, and Thompson,
the three storm door line trainees who were "the
most recent people to enter the plant" (during the
second strike, on August 5) He retained on the
storm door line a total of 15 employees-2 above
the normal requirement of 13 employees.
5. Discrimination against Woodbury line
employees
a. Selection of employees for layoff
In its brief, the Company ignores the apparent
discrimination in its decision to lay off five senior
production employees from the Woodbury line,
while retaining seven junior employees hired during
the previous month. Thus, the brief does not at-
tempt to reconcile the Company's actions 2 weeks
earlier in giving all five of the senior Woodbury line
employees increased wage increments before any
periodic merit raises were due them (in order to
help cope with the high labor turnover and the
labor unrest), and its conduct on August 22, an-
nouncing the layoffs without any mention of re-
calling any of them. Despite the fact that one of the
senior Woodbury line employees was the leadman,
who had worked on all the CHD line jobs and on
several of the storm door jobs, the Company de-
cided to lay off the leadman and the four other
senior Woodbury line employees, retaining em-
ployees not then assigned to that line, including (1)
junior employee Sullens, hired July 23, who "had
worked in shipping and had occasionally filled in on
the storm door line when he was needed," and who,
when assigned to the Woodbury line, worked
"primarily packaging of the product at the end of the
production line"-clearly not an experienced
production worker; (2) senior employees Melton
and Woodward, hired on March 26 and May 5,
respectively, but never given any merit raises
(which Plant Manager Carden testified are given to
employees who "deserved" them); and (3) em-
ployee Roger Reed, hired June 16, who was laid off
on October 3 after the Company began recalling
the Woodbury line employees on September 29 and
30 It is undisputed that, when senior Woodbury
line employee Parton was told about his August 9
merit raise, the foreman told him that he was "a
good hand."
The evidence is clear that the Company gave no
thought to reassigning any of the Woodbury line
employees to the remaining storm door and CHD
lines (Several of the jobs on the different lines
were the same or similar, only short training
periods were required for most or all the jobs; em-
ployees were transferred from one line to another
as needed; and the wage rates on the lines were
comparable except for a 10-cent higher maximum
rate paid the miter saw operator.) According to
Carden, he was simply instructed "to lay off the
men on the Woodbury door line," and "to let our
work force drop down to 19 men." (The timing and
purpose of the decision to allow the employment to
drop to a minimum of 19 is discussed later.)
Thus the Company, experiencing a high labor
turnover and a shortage of experienced production
workers to man its previously planned storm door
expansion, decided to lay off five of its senior
production workers-thereby aggravating its high
turnover of experienced workers-rather than reas-
signing them to remaining jobs or proceeding to
establish the second storm door line. Even assum-
ing, despite lack of supporting evidence, that the
high labor turnover had materially curtailed
production on the existing storm door line, the
Company clearly was not seeking to solve the labor
turnover problem when it decided to lay off the en-
tire Woodbury line and to permit the employment
to drop to 19. Moreover, the Company had
proceeded with its preparations for the second
storm door line until President Anderson joined in
the antiunion campaign at the plant, and the senior
Woodbury line employees became available for
reassignment.
The only allusions in the Company's brief to the
alleged discriminatory layoff of Woodbury line em-
ployees are the arguments (made in connection
with the Company's defense to the allegation of dis-
criminatory recalls), that "it is clear that of the 22
employees who had engaged in strikes 13 were
never laid off. In addition four who had never en-
gaged in strike activity were at one time or another
laid off." The evidence shows that only 2 of the
nonlaid-off 13 had engaged in both the August 1
and 4 strikes. (One of them, junior employee Sul-
lens, was no longer assigned to the Woodbury line )
All seven of the Woodbury line employees had en-
gaged in both those strikes, as well as having gone
as far as the water fountain to strike the second
time on August 1 One of the four laid-off non-
strikers was Roger Reed, who was laid off 6 weeks
later, on October 3, after three of the laid-off
Woodbury line employees had been offered recall
on September 29 and 30-following the Union's
election defeat. Concerning the three nonstrikers
laid off on August 22 (alleged discriminatees Fer-
rell, Sain, and Thompson), the General Counsel
contends that they were included in the layoff only
as "window dressing" to "lend credence to the
selection of the union supporters for layoff. Indeed,
Respondent would have been hard pressed to justi-
V. E. ANDERSON MFG. CO.
fy the retention of these three most recently hired
employees in the face of the layoffs.... However,
because the three employees hired during the strike
were also laid off as part of the Respondent's dis-
criminatory plan the layoff was also discriminatory
as to them."
After considering all the foregoing circum-
stances, I find that the Company discriminated
against the senior Woodbury line employees in
selecting them for layoff on August 22, and further
discriminated against them, as well as the junior
employees laid off the same day, by failing to assign
them to the second storm door line
b. Delayed recalls
The evidence further shows that the Company
discriminated against the Woodbury line employees
by waiting until after the conclusion of the
representation proceedings before it reinstated any
of them.
On August 25 and 26 (the Monday and Tuesday
after the August 22 layoffs), two employees quit.
The next day, August 27, the Company replaced
one of them (and also put to work, for 3 days, a
former employee who was on leave from the Ar-
my) In selecting the replacement, the Company
did not assign or recall any of the senior production
workers from the Woodbury line. Instead, it re-
called Ferrell, the junior laid-off employee who (1)
had been hired on August 5 to work behind the
picket line, (2) had been hired on the condition
that he was not a union man, (3) had worked less
than 3 weeks, and (4) had been laid off 5 days
earlier because (in Plant Manager Carden's words),
"He was not as experienced as the other men."
Within the next week, on August 29 and Sep-
tember 2, two additional employees quit. Again, the
Company failed to recall any of the senior em-
ployees Instead, the Company rehired Donald
Brown (the employee who had been terminated in
May because of a bad attendance record) after
Plant Manager Carden was assured that Brown was
not a union man. The evidence is clear that the
Company had the election in mind when it rehired
Brown, because Carden admitted telling Brown on
September 5 when he came to work, "that the
Sheet Metal Workers were in the process of at-
tempting to organize our plant; that we expected an
election some time in the future ... we do not feel
we need a union and we will do everything within
our legal power to see that a union does not suc-
ceed in this plant."
When asked how he happened to recall Ferrell
on August 27, Carden testified, "If I remember one
or two people quit within a short time after the
layoff on the storm door line." Thus on August 27,
Carden was replacing one employee who quit after
the August 22 layoffs-as well as employing the
soldier for a few days. Then the following week,
after additional employees quit, Carden employed
another replacement The employment of these
469
replacements soon after the August 22 layoffs
shows that the Company had not decided at the
time of the layoffs to let the work force drop to 19,
as claimed by Carden.
The Company did let the payroll drop, without
hiring or recalling any other replacements, between
September 5 and the date of the election. (The
Company and the Union signed a stipulated con-
sent election agreement on September 8-the Mon-
day after Brown was rehired on Friday-agreeing to
an election on September 19.) Two additional em-
ployees quit, on September 8 and 12-bringing to
four the number of non-Woodbury line employees
who quit after August 22 without being replaced,
and reducing the payroll to 20 employees until after
the election. (The vote in the election was 2 for and
17 against the Union, with challenged ballots cast
by former Woodbury line employees Mullinax, Par-
ton, and Simpson. No election objections were
filed.) The last day for filing objections was Friday,
September 26. The next Monday and Tuesday, Sep-
tember 29 and 30, the Company recalled four of
the alleged discriminatees. The other alleged dis-
criminatees were recalled in October and
November. (None of these employees was recalled
to the Woodbury production line, which remained
down at the time of trial.)
The Company's only explanation for allowing the
employment to decline before the election is Plant
Manager Carden's testimony that President Ander-
son gave him the instruction "to let our work force
drop down to 19 men." Nowhere does the Com-
pany give any reason, of any kind, for Anderson
giving such an order, depriving the Company of the
services of the laid-off employees. There evidently
was no shortage of storm door orders. Carden ad-
mitted telling employees before the August 22
layoffs that the Company was selling more storm
doors than it was producing at the time, and
testified (in answer to a question by the company
counsel) why the Company did not "minimize ...
or curtail production of the storm door line." Until
the August 22 layoffs, the Company was employing
five more than the normal number of employees on
the storm door line, to increase production and to
train employees to man the new storm door line.
Moreover, on August 22, it retained two above the
normal number of employees on the storm door
line.
In its brief, the Company argues that all laid-off
employees were recalled on varying dates and
claims (without record support) that they were re-
called "as they were needed in relatively reasonable
sequence according to their experience and abili-
ties " The brief ignores the fact that the recall of
Woodbury line employees was deferred until after
the election. The Company further argues, "While
seniority was not observed in recalling employees,
seniority was not shown to be a criteria commonly
used by Respondent in this regard during organiz-
ing efforts or otherwise. Furthermore, there was no
logical advantage to be gained by Respondent in
427-835 0 - 74 - 31
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jockeying with the order of recall of employees
when it was the intent of Respondent at all times to
recall all laid off employees whenever suitable posi-
tions were available." In making these arguments,
the Company ignores, and offers no explanation
for, the decision to let the work force drop to a
minimum of 19, and the Company's failure to in-
clude in the August 22 layoff speech any mention
of recalling any of the employees. The Company
also fails to give any explanation for not letting the
payroll drop to 19 following the election. There
were 20 on the payroll on September 19, and no
one left the Company's employ between that date
and September 29, when employees were recalled.
I therefore find that the Company's decision
(reached on or after September 5) was to allow the
work force to drop through attrition to a minimum
of 19 employees until after the representation
proceedings were concluded, in order to avoid re-
calling Woodbury line employees in the meantime.
The General Counsel contends in his brief that
the Company's discrimination against the Woodbu-
ry line employees is further shown by the failure to
include any of their names on the election eligibility
list, even though Carden admitted that he intended
on August 22 to recall Woodbury line employees. I
agree, particularly in view of the added fact that
Woodbury line employees were recalled im-
mediately after the expiration of the time for filing
election objections.
6. Concluding findings
Although all seven of the Woodbury line em-
ployees engaged in all three incidents of strike ac-
tivity on August 1 and 4, and Woodbury line lead-
man Gannon was recognized as a leader or
spokesman for the striking employees, there is no
direct evidence that the Company was aware that
these seven employees were union supporters.
However, I find merit to the General Counsel's ar-
gument that "It was quite apparent that the mobile
home line was the `hot bed of discount' which pro-
vided the stimulus to the union activity. . . . If any-
body was likely to be a union supporter, it would be
those employees who had even without a union
walked out to protest their wages, hours, and work-
ing conditions."
Accordingly, I find that the Company's motiva-
tion for discriminating against the Woodbury line
employees was to defeat the Union's organizational
drive by keeping these strikers and suspected union
supporters out of the plant during the election
proceedings. I further find that the Company laid
off the three storm door trainees in an attempt to
conceal its discrimination against the Woodbury
line employees. The Company therefore violated
Section 8(a)(3) and (1) of the Act, by dis-
criminatting against the six Woodbury mobile home
door and three storm door employees to discourage
membership in the Union and to interfere with the
employees' organizational rights.
CONCLUSIONS OF LAW
1. By discriminatorily laying off and delaying re
call of Vernon L. Barnes, Horace Ferrell, Lloyd
Gannon, Terry Mullinax, James Owens, Grady T.
Parton, Charles M. Sain, Jimmy R. Simpson, and
Charles Thompson, the Company engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
2. By threatening to close the plant if the Union
came in, by instructing employees not to wear
union buttons, and by engaging in coercive inter-
rogation, the Company violated Section 8(a)(1) of
the Act.
3 The General Counsel failed to prove the al-
legations that the Company threatened on August 1
to discharge employees for engaging in protected
concerted activities and granted wage increases in
August for the purpose of discouraging its em-
ployees' union activities
THE REMEDY
Having found that the Respondent has com-
mitted certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist from
such conduct and from any like or related invasion
of its employees' Section 7 rights, and to take affir-
mative action, which I find necessary to remedy
and remove the effect of the unfair labor practices
and to effecutate the policies of the Act.
The Respondent having unlawfully discriminated
against nine of its employees, thereby depriving
them of employment between the dates of their
layoffs and the dates of their recalls, I shall recom-
mend that it be ordered to compensate them for
their lost pay, computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, plus in-
terest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
Accordingly, on the basis of the foregoing
findings and conclusions , and on the entire record,
I recommend pursuant to Section 10(c) of the Act
issuance of the following:
ORDER
Respondent, V. E. Anderson Manufacturing
Company, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating
against any employee to discourage membership in
or activity on behalf of Local 424, Sheet Metal
Workers' International Association, AFL-CIO, or
any other labor organization.
(b) Postponing plans for establishing additional
production facilities to discourage employees from
voting for union representation.
V. E. ANDERSON MFG CO. 471
(c) Threatening any employee with a plant clo-
sure if a union comes in.
(d) Prohibiting or interfering in any manner with
the wearing of union buttons, badges, or other in-
signia by its employees.
(e) Coercively interrogating any of its em-
ployees
(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights under Section 7 of the Act
2 Take the following affirmative action necessa-
ry to effecutate the policies of the Act.
(a) Make Vernon L Barnes, Horace Ferrell,
Lloyd Gannon, Terry Mullinax, James Owens,
Grady T Parton, Charles M Sain, Jimmy R. Simp-
son, and Charles Thompson whole for their lost
earnings, in the manner set forth in the section of
the Trial Examiner's Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
recommended Order.
(c) Post at its Woodbury, Tennessee, plant co-
pies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the Re-
gional Director for Region 26, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(d) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of receipt
of this Decision, what steps have been taken to
comply herewith.'
IT IS ALSO ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
3 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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 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 Na-
tional 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 "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 26, in writing, within 10 days from the date of this Order, what steps
Re%pondent 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
WE WILL NOT try to discourage our em-
ployees from voting for Local 424 , Sheet Metal
Workers' International Association , AFL-CIO,
or any other union , by discriminatorily laying
off union supporters and not recalling them
until after an election.
WE WILL NOT postpone installing a new
production line in order to avoid keeping
union supporters on the payroll.
WE WILL NOT lay off or otherwise dis-
criminate against any employee because of his
union membership or activity
WE WILL NOT lay off junior employees to
conceal discrimination against union suppor-
ters.
WE WILL pay the following employees for
the earnings they lost from the time they were
laid off until they were offered recalls, plus 6
percent interest:
Vernon L . Barnes James Owens
Horace Ferrell Grady T Parton
Lloyd Gannon Charles M. Sain
Terry Mullinax Jimmy R. Simpson
Charles Thompson
WE WILL NOT threaten to close down or
move the plant if a union comes in.
WE WILL NOT interfere with our employees'
right to wear union buttons or badges at work.
WE WILL NOT coercively question any of our
employees about any employee's union mem-
bership.
WE WILL NOT unlawfully interfere with our
employees ' union activities.
V. E. ANDERSON
MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 746 Federal Office Building, 167
North Main Street, Memphis, Tennessee 38103,
Telephone 901-534-3161