VADA of Oklahoma, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 750 (N.L.R.B. 1975)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VADA of Oklahoma, Inc. and International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO. Case 16-CA-5451
February 26, 1975
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 9, 1974, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a brief in support
of the Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings,' and
conclusions2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, VADA of Oklaho-
ma, Inc ., Springer, Oklahoma, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order.
MEMBER KENNEDY , dissenting:
I would remand this case for a new hearing before
a different Administrative Law Judge.
My colleagues err, I think, in their short-form
adoption of a decision which fails to adequately
analyze the evidence in support of Respondent's
economic defense. Characterizing the layoff as a
"primitive, heavy-handed invasion by the Respond-
ent of the rights of its employees" is not a substitute
for rational analysis. Apparently, this Administrative
Law Judge believes that he can lace his decisions
with such phrases as "virulently anti-union employ-
er" and thereby eliminate the need for a careful,
objective review of the evidence presented. In my
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
216 NLRB No. 135
view, the issues in this case are far too important to
both the dischargees and the Respondent for me to
countenance such cavalier treatment.
I note that a panel of this Board in a Decision in
which I did not participate recently found it
necessary to "disavow and repudiate" an entire
"section" of a Decision of this same Administrative
Law Judge. The Board there found this same
Administrative Law Judge's "numerous characteriza-
tions of Respondent were unwarranted and injudi-
cious." See Farah Manufacturing Company, Inc., 214
NLRB No. 48 (1974). The Board reversed the
Administrative Law Judge's finding that Respondent
had discharged six employees in violation of Section
8(a)(3) of the Act. Footnote 4 of the Farah decision
illustrates the necessary concern of this Board with
the approach of this Administrative Law Judge in his
analysis of factual and legal issues . That footnote
stated:
4 The Administrative Law Judge found that
Respondent's defense to the discharge allegation
was that the six employees, rather than being
discharged, quit; and that such an argument was
"frivolous" which called for an enlarged remedial
order including the assessment of costs against
Respondent. The Administrative Law Judge has
continually throughout his Decision incorrectly
referred to Respondent's defense as that the six
employees quit rather than were discharged.
Respondent never argued that the six quit; rather,
Respondent has contended that they were eco-
nomic strikers. And rather than find it a frivolous
argument , we have found it has merit.
More recently, on December 10, 1974, the full
Board unanimously remanded Monroe Tube Compa-
ny, Inc., Cases 2-CA-13128 and 2-RC-1626, for a
new hearing before a different Administrative Law
Judge. The cases had been heard by the same
Administrative Law Judge who heard the instant
case . The Board concluded that a remand was
necessary because his "Decision is sufficiently replete
with pejorative comments respecting Respondent
and its officers and agents that we are left in doubt as
to whether his judiciousness may have been prejudi-
cially impaired by an emotional approach to this
particular proceeding." The Board was there unwill-
ing to rely on his credibility judgments because of his
"less than completely judicious approach."
2 In view of our decision herein , we find it unnecessary to pass upon the
gratuitous comments of the Administrative Law Judge set forth in fn. 19 of
his Decision.
Member Jenkins agrees with the Administrative Law Judge that a
bargaining order is warranted herein , but would also find the 8(a)(5)
violation , - for the reasons expressed in his dissent in Steel Fab Inc., 212
NLRB 363 (1974).
VADA OF OKLAHOMA, INC. 751
I am not satisfied that the Administrative Law
Judge 's credibility findings are based on objective
considerations . Fairplay, I think , dictates that a new
hearing should be ordered.
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
WAITER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing at Ardmore, upon a
complaint t issued by the Regional Director of the Board's
Region 16, alleging that the Respondent , VADA of
Oklahoma, Inc.,2 violated Section 8(axl), (3), and (5) of
the National Labor Relations Act. More particularly, the
complaint alleges that the Respondent unlawfully interro-
gated employees concerning union membership , threat-
ened to close the plant and discharge employees if they
became or remained members of the Union, unlawfully
laid off some 38 named employees on February 6, 1974, in
order to discourage union activity, discriminatorily failed
to rehire employees Buddy Royall and Richard Young on
February 11, and refused to bargain collectively with the
majority representative of its production , maintenance,
and construction employees . Respondent denies the
allegations in the complaint, stating that it laid off its work
force on February 6 because of a shortage of materials and
difficulties in obtaining delivery of raw materials because
of a truckers' strike . Respondent also denies that the
Charging Party is the duly designated representative of a
majority of its employees . Upon these contentions, the
issues herein were joined.3
A. Outline of the Events in Question
In the fall of 1972, A.C. "Ace" Pletcher, a farmer and
rancher living in the environs of Ardmore, Oklahoma,
acting in conjunction with a Georgia corporation bearing
the name VADA, organized the Respondent corporation
for the purpose of manufacturing wagons and other farm
implements . Production began in the spring of 1973. A
factory and office building were constructed on a portion
of Pletcher's farm located adjacent to Oklahoma Route 77.
Across the road and about a quarter of a mile from the
main portion of the factory is a former airplane hangar
which Pletcher used, until February of this year, to
assemble the chassis which formed the base of the wagons.
Until the fall of 1973, VADA manufactured peanut
wagons, which are solid metal wagons which may be pulled
into a field and towed behind a harvesting machine to
receive peanuts or other grain as it is being picked or cut.
I The principal docket entries in this case are as follows : Charge filed by
International Association of Machinists and Aerospace Workers , AFL-CIO
(herein called the JAM or the Union) on February 11, 1974; complaint
issued by Regional Director on April 30 , 1974; Respondent's answer filed
on May 9, 1974 ; hearing held on May 21 thru May 24 , 1974, at Ardmore,
Oklahoma ; briefs filed with me by the General Counsel and the Respondent
on July 1, 1974.
2 The Respondent admits, and I find, that VADA of Oklahoma , Inc., is
an Oklahoma corporation which maintains its place of business at Sponger,
Oklahoma . It is engaged at this location in the manufacture, sale, and
distribution of cotton and grain drying trailers and related products. During
The grain can then be hauled back to a barn or elsewhere
and dried while still in the wagon by a fan attached to the
wagon which may be hooked up to an electrical source.
Most of VADA's production is devoted to cotton trailers,
which are manufactured in 24-foot, 32-foot, and 40-foot
lengths . Cotton trailers are open wagons and consist of a
series of vertical and horizontal steel bars to which
expanded metal, or wire screening, is welded in order to
hold the cotton in place . The wagon can be towed into a
cotton field , loaded directly from a mechanical cottonpick-
er as it proceeds through a field , and then hauled directly
to the gin, thus obviating any manual touching of the
cotton from the time it is picked until it arrives at a factory
to be processed . VADA also produces an occasional
specialty wagon , and recently has begun to produce
headgates, which are metal stanchions through which the
head of a cow may be placed in order to lock the animal in
a stall.
Despite various difficulties which will be discussed later,
VADA of Oklahoma has grown rapidly since production
began 18 months ago. It has developed a market for its
products throughout the southwest and especially in the
cotton growing area around Lubbock , Texas . Respondent
sells its products both to farm implement dealers and also
directly to farmers. This expansion of business has, among
other things, required it to expand the building on
Pletcher's farm in which it manufactures trailers, and has
prompted the Respondent to build a painthouse as well.
During the fall of 1973 , the Respondent was operating two
shifts and used a large number of Vocational Technical
School (or Vo Tech) students to supplement its regular
labor force . These employees were laid off shortly after
Christmas of 1973.
In the manufacture of cotton wagons and other imple-
ments , the Respondent originally utilized large amounts of
2 inches by 2 inches by 1 /8 inch and 2 inches by 2 inches
by 3/16 inch angle iron , a metal product fabricated in long
thin strips and having two sides which form 90 ° angles.
Respondent also utilized large amounts of bar channel
iron, a product also fabricated in long thin strips but
having a third side which forms a wide groove or channel
down the middle of the entire strip . More recently,
Respondent has substituted for these items 2 inches by 1
inch metal tubing , which is so fabricated that its four sides
form an enclosed rectangular tube running the length of
the strip. Respondent also purchases tubing hub and
channel iron in larger sizes and utilizes a large number of
spindles and wheels in the manufacture of its various
products.
Beginning in the fall of 1973, Respondent began to
experience difficulty in obtaining angle iron and channel
iron in the quantities it needed . The prices of these items
the past 12 months, a representative period , it shipped from its place of
business at Springer , Oklahoma , to points and places outside the State of
Oklahoma goods valued in excess of $50,000, and received at its Springer,
Oklahoma , plant from points and places outside the State of Oklahoma,
goods valued in excess of $50 ,000. Accordingly, it is an employer within the
meaning of Section 2(2), (6), and (7) of the Act. I also find that the
International Association of Machinists and Aerospace Workers, APL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3 By motion dated June 26, 1974 , the General Counsel sought to have 14
corrections made in the transcript. The motion was unopposed . I grant the
motion and direct that the transcript be corrected as requested therein.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were controlled at the mill but not at the warehouse. Being
a new company, VADA did not have the mill allocations
enjoyed by other steel users and was forced to "scrounge"
for steel at warehouses or wherever steel could bg located.
As a result, Respondent was paying uncontrolled and
rapidly increasing prices for its raw material , all of which
forced it in November to raise its own prices as well.
Despite these difficulties , Respondent maintained an
optimistic outlook for 1974. At a Christmas party which he
held on December 23, 1973, for about 45 or 55 of its
employees , Pletcher reported a successful first year,
thanked employees for their support, and predicted that in
1974 VADA would produce 1 ,000 cotton trailers, 1,000
peanut trailers , and 500 or 1,000 headgates . At that time, a
concrete slab had already been poured on the east end of
the main building as a prelude to the expansion of that
building, and a second foundation had also been poured to
the west of the main building to provide for the eventual
erection of a paintroom.
Throughout January, Respondent continued to be
plagued with a shortage of steel, but was still able to keep a
regular complement of 41 men working a full 40-hour
week, including an aggregate of 38 hours of overtime.
From time to time, certain employees were detailed, as
weather would permit, to engage in construction work on
the paintshop and the expansion of the main plant. With
little or no exception, all of the construction work in 1974
on the plant expansion and the paintshop was performed
by VADA's production employees . This construction was
largely completed by the time of the May 1974 hearing.
Production figures supplied by the Respondent for the
winter and spring months of 1973-74 are as follows:
Month Speciality
Trailer
24-foot
cotton
Trailer
32-foot
cotton
Trailer
40-foot
cotton
Trailer
Headgates
December 1973 256 7 -
January 1974 129 2 4
February 1974 1 14
March 1974 20 10 1 - 30
April 1974 53 18 2 53
May 1974 (Thru
may 10) 4 41 13 18
During this same period of time, the size of Respondent's
production and maintenance unit varied from 65 employ-
ees on December 28, to 41 on February 6, to 4 on February
7, and back up to 106 by May 21, the date of the hearing.
On or about January 23, Bud R. Royall , a welder who
had joined VADA late in December, began to solicit cards
for the IAM. He contacted the IAM Local in Ardmore,
spoke by long-distance telephone to Grand Lodge Repre-
sentative Jim Wagoner who was then in another city, and
obtained from a secretary in the Ardmore office a number
of IAM designation cards . He began to solicit signatures
throughout the plant. By Friday, February 1, Royall had
obtained a total of 24 cards in a unit of 41 employees.4
On the morning of February 1, Royall handed Plant
Manager Eddie Norman a letter which read as follows:
This is to inform you that I am in the process of getting
the Machinists Union in our place of employment as
4 Both parties agree that a unit composed of production , maintenance,
and construction employees at the Springer , Oklahoma, plant constitutes an
appropriate unit. They also agree that at least 41 employees were employed
in that unit between February I and 6, the date of the shutdown and layoff.
The parties disagree as to the status of a 42d person , Bobby Gene Fnemel.
The General Counsel contends that Friemel is a supervisor within the
meaning of the Act, although a person deserving of reinstatement as the
victim of illegal activity aimed at unit employees under a line of Board cases
beginning with Better Monkey Grip, 115 NLRB 1170 (1956), enfd . 243 F.2d
836 (C.A. 5, 1957), cert. denied 353 U.S. 864. Respondent originally agreed
that Fnemel was a supervisor, but revised his position to claim that Fnemel
was a nonsupervisory leadman.
For most of the time prior to the layoff (which, as noted, was on
February 6), Respondent assembled chassis in an abandoned airplane
hangar located about one-fourth of a mile from the main production
building. Fnemel was admittedly the work leader of the I I or so production
employees who worked in that budding making chassis . Friemel had the
keys to the hangar . He arrived in the morning one-half hour before work
our bargaining representative at the Vada plant located
at Springer, Oklahoma.
I trust you will abide by the National Labor Relations
Act which gives the employees the right under federal
law to form, join, and assist in getting a Union in at
their place of employment.
Respectfully yours,
Buddy Royall
Norman took this letter immediately to Pletcher, who
summoned Royall to his office together with Norman,
Harrell, and Purchasing Agent (and assistant to the
president) Phleat Boyd. Pletcher greeted Royall angrily
with the question, "What the hell are you trying to do?"
and pointed out to Royall that if any employee had a
problem, the Company had always maintained an open
door policy permitting the employee to come directly to
was scheduled to begin in order to open the building and start up the heat.
He was normally the only person in supervision at the hangar during the
entire day, except for short visits by Friemel 's superior, Levy Harrell, who
worked at the main building. Fnemel was told by Harrell when he assumed
the position of foreman at the hangar that it was up to him (Fnemel ) to keep
the men busy and get the work out . Friemel regularly assigned work to
employees and oversaw their job performance . He made up regular daily
production reports and submitted them weekly . As noted, he was
responsible for the entire production effort of employees at the hangar. He
did no manual work himself, except on incidental occasions . He interviewed
prospective employees , rendered reports on probationary employees, and
recommended raises . He also recommended employees for layoff. He could
excuse employees during the day for good cause . Fnemel was paid an
hourly wage , unlike other supervisors who were given a salary . From time to
time, he attended supervisory meetings. I conclude that Friemel was a
supervisor within the meaning of Section 2(11) of the Act, and thus he is
excluded from the bargaining unit.
VADA OF OKLAHOMA, INC.
Pletcher to talk the matter over. Pletcher asked Royall
what prompted his action in seeking a union, and Royall
replied by reciting an incident involving a welder's helper
named Anderson who was assertedly fired because he did
not have a wrench and some bolts with him at a particular
job assignment. Pletcher sarcastically asked Royall, "So
you think you are the champion of the people?" to which
Royall replied that he thought a union would be of some
help. Norman interjected that possibly the establishment of
a grievance committee would be of some value. Finally,
Pletcher suggested to Royall that they both speak to a
meeting of the entire plant concerning union representa-
tion in order to see if the people were for or against the
Union. Royall agreed. He was then allowed to return to his
work.
Late the same afternoon, the entire work force was
assembled in the main factory building for the "town
meeting" discussion orginally suggested by Pletcher. A
barrel was placed in the middle of the assembled audience
to serve as a podium. Pletcher and Royall addressed the
employees from this platform. Pletcher told the employees
that he was neither for or against a union but that a union
would break the back of the Company because the
Company was too small to afford a union. He further
stated he was trying to keep the men working despite the
trucker's strike, but reminded them that he had been in the
cattle business before going into the trailer business and
that he could turn the factory building into a feed lot or he
could store hay in it if he wanted to, and could make a
living in that manner.5 Pletcher further stated that Royall
had underhandedly gone behind his back and had solicited
union cards on company time, but conceded that he had to
respect Royall because Royall had signed a letter stating
that he was organizing the plant. When his turn came,
Royall stated that a union would be helpful to employees
in processing grievances because , at present , the men have
no representation. He claimed that, in the event of a
grievance, employees at the present just have to duck their
head and take what the Company felt like dishing out or
"hit the gate," that is, quit. A number of comments and
questions were voiced by other employees.
Ace Pletcher then introduced his nephew, Raymond
Pletcher, who is employed as an engineer at the Uniroyal
plant in Ardmore. Raymond Pletcher had spoken to
assemblies of VADA employees on other occasions
concerning unionization . While Ace Pletcher and Norman
summarized Raymond Pletcher's talk as just giving the
pros and cons of unionization, it is clear that Raymond
Pletcher's talk was a hard-sell antiunion pitch. He
mentioned his own experience with a railroad during a
strike during which there was turning over of railroad cars.
He equated unionization with strikes, the burning of
houses, and killings, making reference to the Yablonski
killing . He stated that such events could occur in the
context of unionization. Another employee, Alton Cal-
houn, stated that he worked at another plant which went
out on strike, and his family nearly starved to death. Buddy
Royall stated that if he had known that Raymond Pletcher
6 Pletcher has been in the hay business 12 years.
6 Pletcher denies that this meeting ever took place . I discredit his denial.
7 Harrell stated that he was aware of the meeting scheduled to take place
753
was going to speak, he would have invited a union
representative to be present.
Shortly after the general meeting concluded, Pletcher
had a meeting of supervisors and his nephew, Raymond, in
his office .6 In attendance at this meeting was Bobby
Friemel. According to Friemel, whom I credit, A.C.
Pletcher asked the assembled supervisors "What can we do
about Buddy Royall?" His nephew commented that they
could not do anything about Royall because if they tried,
the Union would be down on them. Levy Harrell then
chimed in, "You mean I can't fire that son-of-a-bitch?"
Raymond Pletcher advised that they could not, but he did
suggest that they might give Royall some unpleasant work
assignments that would goad him into quitting. Harrell
then asked Friemel if he had tried to sign up employee
Herbert Pelt. Friemel denied trying to do so. Harrell also
asked Fnemel if he had signed a card himself. Friemel
denied having done so. A.C. Pletcher wondered aloud
whether Royall had signed up 50 percent of the employees.
Shortly thereafter, the supervisory meeting broke up.
On the same evening, Friemel went to Royall's house to
inform him of the conversation which had taken place
during the supervisor's meeting. He warned Royall to be
on his toes because VADA' s management was going to try
to run him off. Specifically, Friemel repeated to Royall Ace
Pletcher's question about "What can we do about Royall?"
and Raymond Pletcher's suggestion that they could give
him some unpleasant work assignments to pressure him
into quitting. He also reported Levy Harrell's remark,
"You mean I can't fire that son-of-a-bitch?"
Shortly thereafter, Royall phoned Wagoner to arrange a
meeting between Wagoner and various unit employees at
which Wagoner could present the Union's version of the
organizing campaign. A meeting was set for Tuesday,
February 5, after work at a Tom's Country Kitchen, a
restaurant located about one-half mile west of the VADA
plant on Route 77. On Monday and Tuesday, Royall
circulated a notice by word of mouth throughout the plant
of the upcoming union meeting . He told Friemel, among
others, of the time and place of the gathering. On Tuesday,
Norman came to Royall and asked him if it would be
permissible for Ace Pletcher and himself to attend the
meeting. At first, Royall agreed but called Wagoner to
check. Wagoner informed Royall that Harrell and Pletcher
should not attend because Federal labor laws prohibited
supervisors from attending union meetings . Royall passed
this information along to Harrell, and neither he nor
Pletcher attended the meeting.?
During the morning of Tuesday, February 5, Wagoner
went to the VADA office and asked to see A.C. Pletcher.
He was told by the secretary that Pletcher was out of the
office attending a funeral, and was advised to return at 2
p.m. He identified himself at this time tp Harrell. When he
returned at 2 p.m., he did not get to speak to Pletcher, who
was in . He was told by the secretary, at Pletcher's
direction, that if he had any message, he should put it in
writing. Wagoner borrowed a slip of paper from the
at Tom's Country Kitchen but "did not recall" asking Royall for permission
to attend . I credit Royall's recollection.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary and wrote the following message in his own
handwriting:
2-5-74
Mr. Pletcher:
I am requesting that you recognize the International
Association of Machinists Union as the bargaining
representative concerning wages, hours of work, work-
ing conditions, and other conditions of employment of
your production and maintenance employees.
I am also requesting a reply. My address is IAMAW
Local 2252, Broadlawn Village, Ardmore Oklahoma.
Telephone 405-223-8467.
Respectfully,
Jim Wagoner
IAM Rep.
He gave the message to the secretary and she relayed it to
Pletcher.
Within 2 hours of the receipt of this note, Pletcher called
Norman and Boyd into his office and told them that,
unless a full day's supply of all materials were in the yard
by the following morning, he was closing the plant as of
Wednesday afternoon.
On Tuesday afternoon , the union meeting took place
immediately after working hours, as scheduled. About 25
employees attended .8 Wagoner explained to those in
attendance that he had made a demand for recognition
upon Pletcher earlier in the afternoon, and went on to
explain some of the details of organizational activity and
union benefits .9
On the following morning, Pletcher caused his secretary
to post a layoff notice on the bulletin board. The message
was terse and read as follows:
To: All Employees
Due to the truck strike and unavailability of materials
this plant will be closed at 4:00 p .m. today, until further
notice.
s/A.C. Pletcher, Jr.
The message came as a surprise to some employees.
Friemel asked Levy Harrell what the reason for the layoff
was and was told, "You know what the deal is." He was
also told to remove all equipment and materials from the
hangar and to bring them to the main building by the end
of the day . As the notice gave no indication of when, if
ever, production would resume , employee Charles Robin-
son asked Harrell how long the layoff would last . Harrell
s Witnesses for the General Counsel point out that most employees,
upon leaving the VADA plant , drive out the gate and turn left to travel
toward Ardmore , Springer, and the town of Gene Autry. After work on
Tuesday, the bulk of employees drove out the gate and turned right toward
Tom's Country Kitchen . From the evidence presented, I cannot conclude
that the Respondent knew which employees attended the union meeting,
but it is clear from the Respondent 's previous knowledge and interests in the
meeting and the ease by which it could observe from the company office the
path taken by employees as they left the company premises that it was well
aware that a large number of employees were in attendance at the meeting.
replied that he did not know, but stated that employees
would be called back in order of seniority.10
Beginning the following Friday, February 8, the Re-
spondent began sending out letters of recall. It sent out 12
such letters on that date, requesting employees to report to
work the following Monday, February 11. These letters
indicated that employees would be assigned to work on
building construction rather than the production of
trailers, that the offer of employment was temporary and
based on seniority, and that it would last approximately 30
days. The letters further advised that "If and when VADA
does go back into production, you will maintain your
seniority and retain your benefits." Similar letters of recall
for construction work were sent out on February 11 (to one
employee), February 20 (to two employees), February 27
(to four employees), and March 8 (to three employees). On
March 11, the Respondent resumed trailer production on a
limited basis. It continued to send out letters of recall.
Employees who were recalled at this time were assigned to
complete construction then in progress on the east end of
the main building and also to work on the construction of
the paintshop. This work was completed before any
resumption of production and before completion of most
of the items in production on the date of the layoff. On
March 26, Respondent placed a want-ad in a local paper
seeking experienced welders. By mid-May, the Respondent
was back in production with an employee complement
nearly double the number of men that were on its payroll
in late December.
B. Analysis and Conclusions
1. The independent violations of Section 8(a)(l)
and union animus
Immediately after Royall presented the Plant Manager
Norman with a letter on February 1, notifying hint that he
was in the process of organizing the plant, Royall and
several supervisors were summoned to a meeting in
Pletcher's office . The fact of this meeting is undenied.
Pletcher admits asking Royall at the meeting whether he
was soliciting signatures on union cards on company time
and why he was buttonholing people. Royall credibly
states, and no one denies, that Pletcher also asked him
angrily "What the hell do you think you are doing?" and
that Pletcher likewise inquired of Royall what prompted
his decision to start the organizational drive. Pletcher also
remarked rhetorically and sarcastically "So you think you
are the champion of the people?"-a question which
required an answer in the nature of an argument. I
conclude that, by such interrogation of Royall, the
Respondent herein violated Section 8(axl) of the Act,•
thereby displaying intense union animosity which looms as
9 Sometime during the afternoon of February 5, Wagoner followed up
his handwritten demand with a more formally styled demand, typed on
union stationery , which was then forwarded to Pletcher by registered mail.
Pletcher admits receipt the second demand letter on February 7. On
February 11 , the Union filed not only the instant charge but also a
representation petition in Case 16-RC-651 I. The representation petition is
necessarily blocked.
10 No supervisors, other than Friemel, were laid of Four unit employees
in the shipping and receiving department were not laid off.
VADA OF OKLAHOMA, INC.
a substantial factor in evaluating other facets of its
conduct.
Several witnesses testified credibly that , in the course of
his remarks to the open forum which Pletcher conducted
for his employees on the afternoon of February 1, Pletcher,
who operates the factory on a portion of his farm, stated
that he could turn the factory building into a feed lot or a
hay barn . These remarks were made in the context of an
antiunion statement in which Pletcher first indicated the
perils of unionization at VADA, the fact that VADA could
not afford a union , that he was in the hay business before
he started manufacturing trailers , and that he could make a
living in his previous occupation regardless of what became
of VADA. I conclude that, by these remarks, addressed to
the entirety of the bargaining unit , the Respondent herein
threatened employees with plant closure in order to
discourage union activities , all in violation of Section
8(a)(1) of the Act. N. L. R. B. v. Automotive Corporation, 406
F.2d 221 (C.A. 10, 1969). In evaluating this statement,
addressed as it was to all employees in the plant, as
revealing of his general attitude of the Respondent, I am
cognizant of a recent statement of the Eighth Circuit that:
A threat to close the plant, when made in the context
of the union organization of the employees , has long
been recognized as one of the most potent instruments
of employer interference with the right of employees to
organize under the National Labor Relations Act.
Chemvet Laboratories, Inc. v. N.L.R.B., 86 LRRM 2262
(C.A. 8, 1974).
At a private meeting, held on February 1 shortly after
the general employee meeting , various of Respondent's
supervisors , including its president, inquired aloud as to
what could be done about the Union's principal inhouse
organizer , Buddy Royall ; expressed surprise in the most
hostile terms that he could not be fired for union activities;
and suggested that he be given unpleasant work details in
order to goad him into quitting. These remarks were
communicated by Friemel to Royall. Accordingly, I
conclude that such remarks , coupled with their communi-
cation to Royall , constitute a violation of Section 8(a)(1) of
the Act.
While not an employee of the Respondent, Raymond
Pletcher, nephew of the president of the Company, spoke
at Ace Pletcher's invitation and in his presence to the
February 1 meeting of employees. As such, he spoke as a
nonsupervisory agent whose remarks are attributable to the
Respondent . Raymond Pletcher recounted tales of violence
and bloodshed in connection with unionization and clearly
insinuated that such would occur at VADA if unionization
were permitted to occur. While such remarks may or may
not have constituted a violation of Section 8(a)(1), they are
clear evidence of union animus on the part of the
Respondent and have a direct bearing in assessing the
motives which prompted its other conduct.
Pletcher , when confronted with the fact of an organizing
effort among his employees , suggested a town meeting style
debate on the question of unionization in front of the
bargaining unit . At first blush , this suggestion has a certain
elemental democratic appeal . However, Pletcher's call for
an open forum discussion should be weighed in light of the
755
Supreme Court's cautionary statement in N.L.R.B. v. Gissel
Packing Company, 395 U.S. 575, 617-618 (1969):
Any assessment of the precise scope of employer
expression, of course, must be made in the context of
its labor relations setting. Thus, an employer's rights
cannot outweigh the equal rights of the employees to
associate freely, as those rights are embodied in §7 and
protected by §8(a)(1) and the proviso to §8(c). And any
balancing of those rights must take into account the
economic dependence of the employees on their
employers, and the necessary tendency of the former,
because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear. Stating these
obvious principles is but another way of recognizing
that what is basically at stake is the establishment of a
nonpermanent, limited relationship between the em-
ployer, his economically dependent employee and his
union agent, not the election of legislators or the
enactment of legislation whereby that relationship is
ultimately defined and where the independent voter
may be freer to listen more objectively and employers
as a class freer to talk.
Pletcher's action in summoning a general meeting of his
employees must also be evaluated in light of his announced
intention on February I "to have an open discussion and
see if the people were for or against the Union." Later on
that same day after the conclusion of the meeting, Pletcher
wondered aloud to his supervisors whether the Union
actually had a majority of the employees signed up. So it is
clear that one of Pletcher's purposes in calling the meeting
was not merely to afford all sides an opportunity to be
heard but to ascertain for his own personal information
which employees supported the Union and which did not.
In short, one of the purposes of the meeting was to force a
disclosure of union strength, flushing out the union
sympathizers among his economically dependent work
force by prodding them to make a public profession or
indication of their support. At least three employees-
Royall, Carroll Nipp, and Alton Calhoun-spoke up,
Royall in supporting the Union's position and Nipp and
Calhoun voicing sentiments which could be construed as
promanagement. Pletcher's statement at the hearing that
he would have granted recognition if a majority had
indicated union support is entitled to no credence at all. He
made no such statements to his employees, and when, 4
days later, Union Representative Wagoner came to his
office to make a formal request for recognition, Pletcher
did not have the courtesy to speak to him or to reply to his
written correspondence. As the General Counsel stated in
his brief, "the Company 's response to the Union's
bargaining request was a deafening silence accompanied
by lightning actions which spoke much louder than
words." The "open forum" amounts to an impermissable
probing of union sentiments, and is further evidence of
strong union animus on the part of this Respondent. See
Struksnes Construction Company, Inc., 148 NLRB 1368
(1964).
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The plant closure of February 6, 1974
The General Counsel contends that the Respondent
precipitously shut down its Springer plant and indefinitely
laid off 38 named employees in order to derail the
organizing campaign that was then in high gear. Respond-
ent argues most strongly that the reason for the shutdown
was its inability to obtain raw materials, particularly
channel iron and angle iron, and that an ancillary factor
bearing upon the shutdown was the wildcat strike of
independent truckers which arose early in February to
protest against certain Federal regulations on speed of
truck traffic and the lack of effective controls on the price
of diesel fuel. In this connection , Respondent asserts that it
relies heavily upon independent truckers to obtain deliver-
ies of raw materials.
An evaluation of the Respondent's true motive in
announcing and effectuating the shutdown must be made
against a background of union animus which is well
established in this record by the collateral evidence recited
above. A claim of economic distress has often been found
to be pretextual where the antiunion motives of a
respondent are laid bare by other acts and remarks of its
agents . Serv-Air, Inc., 161 NLRB 382 (1966); Ventre
Packing Company, 163 NLRB 540 (1967); West Coast
Casket Company, 192 NLRB 624 (1971), enfd. 469 F.2d 871
(C.A. 9, 1972); Mannington Electric Company, Inc., 200
NLRB 970 (1972); Santa Rita Mining Company, 200 NLRB
1070 (1972); Radiadores Paragon de Puerto Rico, Inc., 206
NLRB 918 (1973); N.L.R.B. v. Okla-Inn, d/b/a Holiday
Inn, 488 F.2d 498 (C.A. 10, 1973).
Unlike most cases in which an economic defense is
interposed to the charge of discriminatory layoff, the
Respondent here makes no contention that business was
bad in February of 1974 and that it closed its plant because
it was unable to market its goods or services. On the
contrary, this Respondent steadfastly maintains that it
could sell all the cotton trailers that it could produce, that
despite the fact that was supported by borrowed capital it
was quite solvent, but that the problem which confronted it
on February 6 and which finally expanded above and
beyond its control was the fact that it was unable to obtain
sufficient angle iron and sufficient channel iron to
manufacture all the items it wanted to produce.[[ In
support of its position, the Respondent placed in the record
abundant evidence, both documentary and testimonial,
that there was in fact a steel shortage in February of 1974
and that two of the several basic materials it used in its
manufacturing process were hard to come by. However,
like many economic defenses to Board complaints, what is
' Considerable testimony was devoted to the question of whether the
manufacturing of cotton trailers is a seasonal business The cotton
harvesting season begins in June in South Texas and moves northward,
reaching its peak in November and December In 1973-74, the harvesting
season lapsed over into January in some areas . The seasonal variations in a
year-old business may be difficult to ascertain with certainty. Pletcher at
first testified his peak production coincided with the cotton harvest in the
Lubbock area which is at its highest point in October and November, and
then drops off in January. He later qualified his assessment by saying that
his business was not seasonal , even though the business of the ultimate users
of cotton trailers is seasonal , because VADA sells both to dealers and to
farmers, so it is necessary to produce in advance of peak cotton productions
in order to meet the demand for trailers which reaches a crescendo at that
asserted as a general proposition often vanishes as' the
efficient cause of employer action when measured against
meaningful specifics.
Pletcher detailed in this record an energetic and
continuing search-in person, by newspaper advertise-
ment, and by telephone-for steel supplies wherever and
whenever they could be obtained at a price he could afford
to pay. He went by plane to Houston and Odessa, Texas,
to Detroit, Michigan, and elsewhere trying to find
adequate raw materials for his business, and at every turn
he was met by supplier shortages and increased prices.
However, the gaping flaw in the Respondent's contention,
when applied to the question here in issue, is the admitted
fact that there was also a steel shortage in November and
December, when VADA employed a work force of 65 men
and there was also a steel shortage as of the date of the
May hearing, at which time VADA was employing a work
force in excess of 100 men working on a two-shift schedule.
The unanswered question is why did the same steel
shortage cause the only shutdown in production in
Respondent's history on February 6. What Respondent
would have us believe is that vagaries of this steel shortage
finally conspired to overwhelm it to the point of causing a
layoff of the totality of its work force (save for four
shipping and receiving clerks) within 2 hours of the service
by the Union of a written demand for recognition, but that
the said demand for union recognition played no part in
the decision. We must note that the shutdown was the act
of a virulently antiunion employer who moved in the
direction of doing what it had threatened 5 days earlier,
namely turn the factor into a feed lot or hay barn. The
timing of these events, taken together with Pletcher's other
statements and actions, leave too much to be explained by
coincidence.
Throughout the month which preceded the IAM's
demand for recognition, the Respondent provided its
reduced but permanent work force with full employment,
despite a continuing steel shortage and what it described as
a hand-to-mouth presence on the premises of two basic
items essential to continued operation. Part of the January
employment consisted of construction work on its expand-
ed plant facilities. As many as six production employees
were assigned to work on the extension on the main factory
building or in erecting the paintshop. On the day of the
February 6 shutdown, three employees were so employed.
Within 5 days of the announcement of an almost total
layoff, 12 recalled employees were again so engaged. In
January, when shortages were likewise prevalent, Respond-
ent did not reduce its work force by so much as one man
because, as Pletcher explained, "to maintain any kind of
time It is clear to me , both from what Pletcher said and by what he did, that
the production of cotton trailers is moderately seasonal In the fall of 1973,
VADA temporarily hired a large number of Vo Tech students to maintain a
two-shift operation for a period of 90 days At the end of this period , it laid
them off and reduced its trailer production proportionately The hiring of
admittedly short-term employees, their eventual layoff, and the correspond-
ence of this employment with the seasonal nature of cotton harvesting
makes it clear that the December 28 layoff of Vo Tech students was
prompted by seasonal market considerations and not by a shortage of
materials As a result, Respondent 's need for steel in February was
markedly below its need for steel in November and December , at which
time it was also plagued by a shortage of certain supplies.
VADA OF OKLAHOMA, INC. 757
production we needed every man we had. We needed every
one of them . We hated to let one go . We needed all of them
if we-kept getting some material and hoping it would get
better . We had promises of it getting better , and that's one
reason we didn 't lay off more people then ." Pletcher also
expressed a reluctance to a layoff in January because it
could mean a permanent loss of experienced employees
who might seek employment elsewhere if they lost time at
VADA. However, such considerations, which normally
form a part of sound business judgment and which in fact
were a part of Pletcher's own business judgment prior to
the advent of the IAM, were thrown to the wind on
February 6. The layoff effectuated on that day was almost
total ; it came without any warning ; and its announcement
was curt , impersonal , and without any information or
suggestion if or when production might ever resume.
Nothing was done by Pletcher on February 6 to soften the
impact of his decision and thus to discourage a valuable
and needed work force from scattering to other and more
stable employment . In short, within a matter of days if not
hours, Pletcher had done a complete about -face with
regard to this basic element of employee relations.
In addition to motive , timing, and the drastic nature of
the layoff, all of which argue strongly for a finding of
unlawful discrimination, the shifting and contradictory
nature of Pletcher's own explanations and justifications of
the layoff detract further from any credence which might
be accorded to his defense . At first he asserted that cotton
trailer production peaked in fall when the cotton harvest
Date Employee
Virgil R. Page
Bill Melton 21
Billy J. Bishop 23
Tim L. Tigert 37
March 8 Clarence Parker 33
is of
(*
March 27
is of
n to
Johnny McMillan 31
Charles Lowrance 28
Jimmy R. Cross 12
Martin D. Adams 17
Indicates date of actual rehire , not date of
was in full swing. Later, upon reflection , he maintained
that his production was not seasonal because it was not
possible during the height of the cotton harvest to produce
all the trailers which might be sold during those few
months. On one occasion he testified that, on February 5,
the day he decided upon the layoff, there was less than a
day's supply on hand of needed 2 inch by 2 inch by 1/8
inch angle iron . Later , he and other management witnesses
said there was none at all in the yard. On one occasion, he
testified that they would have purchased angle iron and
channel iron at any price in order to keep production
going. On another occasion, he testified that he and
Purchasing Agent Phleat Boyd were searching for those
items at a price they could live with. Respondent at one
point placed great emphasis on the existence of a wildcat
strike of independent truckers as a substantial factor which
prompted the February 6 layoff. Later, he discounted it as
a minor or subsidiary element in the whole picture. He
emphasized the need for continued cash flow in his
business , but made no effort to complete the trailers in
production in early February so that they could be
promptly sold. Most significant, Pletcher claimed that laid-
off employees were recalled in order of seniority. He later
qualified this assertion by stating that VADA followed
seniority within the two classifications of fabricator and
welder. His own records belie either contention.
According to information supplied by the Respondent
and placed in the record, recall letters were sent out w
follows:
Seniority
by hire
date
Feb. 8 Carl G. Buchanan 10
James McClaine 3
Ricky McClendon 24
0. Jearl Meeks 6
Carroll Johnny Nipp 1
Elton Kirk Phipps 4
Henry Quiring 8
Herman Quiring 9
Charles E. Robinson 26
Curtis 0. Stone 19
Jimmy Walker 2
Lloyd (Mike ) Williams 32
Herbert Belt 15
J. R. Clary 7
*Feb. 13 Lorenzo Murray 27
Feb. 20 Robert D. Lesley 35
to of Melvis Dudley 16
Feb. 27 Billy J. Price 20
of of 29
Classification
(Gen. main.)
(Fabrication)
(Painter)
(Stockroom)
(Welder)
(Welder)
(Welder)
(Welder)
(Fabrication)
(Welder)
(Welder)
(Welder)
(Custodian)
(Welder)
(Welder)
(Welder)
(Welder)
(Welder helper)
(Welder)
(Welder)
(Welder helper)
(Welder helper)
(Welder)
(Welder)
(Welder)
(Welder)
(Welder)
letter of recall)
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Known union activist Royall (seniority ranking 34) was not
sent a letter of recall until April 26. Suspected union
sympathizer Fnemel (seniority ranking 18) was not sent a
letter of recall until April 26. Employee Richard Young
was sent a letter of recall on the same date. By that date,
the Respondent had hired 14 new employees who were not
on payroll at all on the date of the layoff. Thus it is clear
that seniority played no part in the Respondent's recall
program. It is equally clear that the delayed recall of
Royall and Friemel can be explained by no other reason
than their actual or suspected union sympathies.
A basic fact at issue in the February 6 layoff was
whether, at that time, there was sufficient angle iron or
channel iron at the company premises which would have
permitted the Respondent to continue in operation, or
whether, as the Respondent contends, it had exhausted its
options and was forced by circumstances wholly beyond its
control to lay off virtually its entire work force. Pletcher
testified that, as of the preceding day, there was less than a
day's supply of angle iron and that some different sizes of
angle iron were present . He later said there was none. He
did admit the availability of 2 or 3 days' supply of angle
iron which was available at a loading dock at Muscogee, a
city about 100 miles away, but it had not been shipped. He
further stated that they were expecting a delivery of
something less than 10 tons of angle iron on February 6,
but it did not arrive until February 12. He did have on
hand 10-15 days' supply of 3 inch by 6 inch rectangular
tubing, and had on hand tons of 8 inch channel iron.
Welder (and now foreman) Roy Wickware testified that, as
of the close of business on February 6, there was enough 2
inch by 2 inch by 1 /8 inch angle iron on the premises to
permit the operation to continue for a week or a week and
one half, enough 8 inch by 3 inch channel iron to last for a
month, and about two bundles of 2-inch channel iron, and
enough other channel iron in short pieces to last for a
month if the pieces were welded together in bars of
sufficient length to use on cotton wagons.12 Hangar
Foreman Friemel testified that, on February 6, there were
enough materials of all variety on the premises to last for
the balance of the month and, for that reason, he was quite
surprised to see a layoff notice which recited that there was
insufficient materials on hand to continue. He testified that
there was three or four bundles of 2-inch channel iron on
hand and also some roll channel iron which was often used
as a substitute for 2-inch bar channel. There was also
enough 2 inch by 2 inch by 1/8 inch angle iron on hand to
permit operations to continue. Employee Jimmy C. Cross
testified that, at the time of the shutdown, there was
enough 2-inch channel iron to manufacture several
wagons. In addition, there was a supply of front ends, rear
ends, braces, and tires in stock to last for 3 weeks to a
12 Wickware originally testified that the Company was "plumb out" of
channel iron , but then corrected his testimony . He also changed his
testimony to say that there was one bundle of 2 inch by 2 inch angle iron on
hand, enough to last I day.
i3 Ace Pletcher's brother , Buck Pletcher , acts as a hauler of VADA
month , and enough expanded iron (wire screening) to last
2 weeks . He also testified that , at that time, the Respondent
substituted form channel iron for 2-inch bar channel iron
whenever the supply of the latter ran out, and that as a
regular practice scraps of channel and angle iron were
welded together to form bars of sufficient length to use in
trailer construction . Royall testified that there were on
hand at the time of the shut down tons of 8-inch channel
iron . He could not say whether or not there was any angle
iron on the premises , and produced photographs of what
he claimed to be 2-inch channel iron lying on company
premises . Eddie Norman testified that the Company had
run out of both angle iron and channel iron on February 6.
Phleat Boyd, whose testimony I regard as almost complete-
ly untrustworthy , stated that there was no angle iron in the
yard as of February 6 , and later qualified his testimony to
say that there were some short pieces of angle iron on the
lot at that time . He also testified that there was no channel
iron available on the premises.
It is interesting to note that the two critical items-
channel iron and angle iron-which constituted the bulk of
the raw materials going into cotton trailers manufactured
prior to February 6 have , since that time , been almost
completely replaced by VADA as components for the
manufacturing of trailers. These items still cannot be
purchased in substantial quantities, so the Respondent now
uses 2 inch by 1 inch rectangular tubing as a substitute
material , utilizing no channel iron at all and employing
angle iron only for the corner pieces of the cotton wagons.
This product alteration took place between February 6 and
the full-scale resumption of production in April.
In my opinion , the most reliable testimony concerning
the status of raw materials on the premises as of February
6 is that of Foreman Friemel , who was in a position to
know what was available and likewise in a position to
know what was required for continued fabrication of
trailers. Jimmy Cross likewise impressed me as a credible
witness . Accordingly, I conclude that in fact there was
material available on February 6 which would have
permitted the Respondent to continue production if it had
wanted to . Moreover , there was material available on the
docks a scant 100 miles away which Respondent could
have obtained to continue production if it had wanted to
do so.13 The fact that a significant number of employees
were recalled almost immediately to continue work on the
construction which was already underway indicates that
there was no necessity that they be laid off at all. Lastly,
the fact that the Respondent can now operate with over a
hundred employees without the use of channel iron and
with the use of only a negligible quantity of angle iron
argues strongly that it could have done so with a reduced
complement of employees 3 months earlier if it had really
supplies and was manifestly not on strike as of February 6 along with an
indeterminate number of independent truckers . The failure of the
Respondent to use him to obtain critically needed materials then available
in Muscogee indicates clearly that the Respondent was not at all pressed to
have those supplies delivered
VADA OF OKLAHOMA, INC.
desired to do so . Respondent's failure to do so compels the
conclusion that it did not in fact want to do so, and for
reasons which had nothing to do with the availability or
scarcity of supplies.
When one takes into consideration the union animus of
the Respondent , the fact that Pletcher had threatened a
shutdown for union-related reasons 6 days before actually
shutting down , the timing of the shutdown immediately
following the Union 's demand for recognition, the spurious
nature of the asserted reason for the shutdown , the fact of a
partial recall almost immediately following the shutdown,
and an expansion of business within 3 months of the
shutdown to twice the work force employed on February 6
in the face of the self-same shortages of raw materials
which served as the pretext for the original layoff, one is
led inescapably to the conclusion that the February 6
layoff was accomplished in order to thwart the Union's
organizing effort and as the response by VADA to the
demand for recognition which had freshly been served
upon it. As such, the layoff was a primitive, heavy-handed
invasion by the Respondent of the rights of its employees
which are protected by Section 7 of the Act and
guaranteed by Section 8(a)(1) and (3) of the Act . I so find
and conclude.
3. The status of Friemel as a discriminatee
As found above , 37 of the 38 employees named in the
complaint are discriminatees by virtue of having suffered a
layoff aimed at chilling union fever , and are entitled by
virtue of the provisions of Section 8(a)(3) of the Act to
reinstatement and backpay . See section entitled "R-
emedy," infra. As a supervisor within the meaning of
Section 2(11) of the Act, Bobby Gene Friemel is not an
"employee" within the meaning of the Act and hence does
not enjoy the protections of Section 8(a)(3). However, our
inquiry as to Friemel may not end with this consideration.
As noted above , the Board , beginning with Better Monkey
Grip, supra, has held in a consistent line of cases 14 that an
employer violates Section 8 (axl) of the Act when it
discharges or otherwise discriminates against a supervisor
for union-related considerations because such action has
the necessary and intended effect of interfering, not with
the rights of the supervisor, but with the rights of
nonsupervisory employees who become aware of the
discrimination and are thereby coerced in the enjoyment of
their own statutorily protected rights . The remedy for such
a violation is to provide the supervisor with the same
remedy normally prescribed for a conventional violation of
Section 8(a)(3). The courts have consistently upheld this
construction of the Act. Pioneer Drilling Company, Inc. v.
N.L.R.B., 391 F.2d 961 (C.A . 10, 1968); King Radio
Corporation v. N.L.R. B., 398 F.2d 74 (C.A. 10, 1968).
In this case , the fate of Friemel is largely indistinguisha-
ble from the 37 other persons who were laid off with him
on February 6. If there is any differentiating note
connected with his layoff, it is that he, unlike some of the
rank-and-file employees named in the complaint , actively
allied himself with the Union . He attended the union
14 Alamo Express, Inc., 127 NLRB 1203 (1960); Miami Coco-Cola
Bottling Company, 140 NLRB 1359 (1963); Golub Brothers Concessions, 140
NLRB 120 (1962); Oil City Brass Works, Inc., 147 NLRB 627 (1964); Ideal
759
meeting on February 5 at Tom's Country Kitchen.
Previous to that time he was interrogated by Harrell as to
whether he had signed a Union card and whether he had
solicited a signature from another employee. Such ques-
tions indicate at least a suspicion in the mind of
Respondent's management that Friemel too was involved
in the Union campaign. Moreover, Friemel promptly
reported to Royall the February 1 discussion in the
supervisor's meeting at which management was consider-
ing ways and means of taking reprisal against Royall for
engaging in union activities . Thus, Friemel is a classic
supervisory conduit through which the Respondent chan-
neled actions aimed at interfering with, restraining, and
coercing its bargaining unit employees in the exercise of
rights protected by Section 7. Accordingly, when Respond-
ent laid off Friemel on February 6, it violated Section
8(a)(1) of the Act.
4. The status of nonunion employees as
discriminatees
As noted before, only 24 employees signed union cards
but 38 were laid off on February 6. It follows that, among
the discriminatees named in the complaint, there were
about 14 persons who engaged in no discernible union
activities and who may indeed have harbored antiunion
sentiments . As to these employees, the Respondent had no
need to take any action aimed at discouraging union
activities because they had undertaken none . However, this
fact alone does not exculpate the Respondent from a
charge of discrimination as to these individuals nor place
them beyond the reach of the Board 's remedies. It is clear
beyond peradventure that both union and nonunion
employees were laid off at the same time and for the same
reason, namely the general discouragement of unionization
of the plant . Hence nonunion discnminatees were vehicles
for unlawful activity on the part of the Respondent rather
than the objects of such activity, but as such they are
nonetheless entitled to the same protections and the same
remedies as are their prounion brethern . They fit the
description found in the Second Circuit decision in
Majestic Molded Products, Inc. v. N.L.R.B., 330 F.2d 603,
606 (1964), when it said:
A power display in the form of a mass lay-off, where it
is demonstrated that a significant motive and a desired
effect were to "discourage memebership in any labor
organization," satisfies the requirements of §8(a)(3) to
the letter even if some white sheep suffer along with the
black.
5. The admissibility of certain designation cards
in establishing the Union 's majority status
With the exception of Friemel, whose placement has
already been discussed , the parties agree that an appropri-
ate bargaining unit between February 1 and 6 was
composed of 41 employees. The General Counsel proffered
some 24 IAM designation cards, signed by unit employees
Baking Company of Tennessee, Inc, 143 NLRB 546 (1963 ), Dal-Tex Optical
Company, 137 NLRB 1782 (1962); Fairview Nursing Home, 202 NLRB 318
(1973); Carter Lumber Company, 207 NLRB 391 (1973).
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between January 23 and February 1, in seeking to establish
that the IAM had acquired the status of bargaining agent
for the employees in that unit. He requests that a
bargaining order be issued. With one exception, the cards
in question were all personally solicited by Bud Royall and
then were delivered to Union Representative Wagoner.
The Union in turn presented them to the Fort Worth
Regional Office of the Board when it filed a representation
petition on February 11. Except for the card of Elton Kirk
Phipps, a deaf-mute employee, Royall identified each of
the cards at the hearing as a prelude to their admission into
evidence. Phipps appeared at the hearing and identified his
own card, stating by way of an in-court written deposition
that he read it before signing it and thereafter gave it back
to a fellow employee, Virgil Page.
The card in question bears a red banner at the top on
which appears, in white print about half an inch high, the
legend : "YES, I WANT THE IAM ." Immediately under the red
banner there appears in boldface print the following
statement:
I, the undersigned employee of
(Company)
authorize the International Associa-
tion of Machinists and Aerospace
Workers (IAM) to act as my collec-
tive bargaining agent for wages,
hours and working conditions. I agree
that this card may be used either to
support a demand for recognition or
an NLRB election, at the discretiop
of the union.
Name (print) Date
Home Address Phone
City_ State Zip__`
Job title Dept. Shift
Sign here x
Note: This authorization to be
SIGNED and DATED in Employee's own
handwriting. YOUR RIGHT TO SIGN THIS
CARD IS PROTECTED BY FEDERAL LAW
Received by (initial)
The language of the card is clearly dual purpose. One
purpose which appears on its face is an authorization of the
IAM to act as the signer's bargaining agent without the
intervention of a board election, at the option of the IAM.
Fifteen cards were admitted into evidence without objec-
tion by the Respondent , although it subsequently attempt-
ed to have some of these cards rejected because of asserted
misrepresentations concerning them . This contention will
be discussed later.
Respondent objected to the admission of the card of
Elton Kirk Phipps because , during the examination of
Phipps, he stated that he did not understand the meaning
of the words on the card which state: "I hereby authorize."
Phipps , however, indicated no difficulty in understanding
the words on the card which read : "I agree that this card
may be used either to support a demand for recognition or
an NLRB election, at the discretion of the union."
Contrary to the Respondent I know of no requirement that
the meaning and effect of a card be explained to an
employee before he signs it . Accordingly, the card was and
is a valid designation for purposes of determining the
Union's status as a bargaining representative.
Respondent also objected to the admission of the cards
of Martin D. Adams, Billy Joe Bishop, Bobby Bridgman, J.
R. Clary, and Jimmy C. Cross on the basis that there
appeared to be a variance in the handwriting on the card
between certain of the items which were filled in and the
signature of the employee. I note no such variations. No
evidence was presented that the employees in question did
not in fact sign their respective cards, and Royall testified
credibly that in fact each of them did sign the cards in
question in his presence . In light of such testimony, any
asserted variances in handwriting between the signatures of
the employees and other matters contained on the card are
wholly immaterial. Respondent also objected to the
admission of these cards in that they allegedly were
solicited by Royall on company time. This objection is
frivolous and requires no elaborate discussion. According-
ly, the cards of Adams, Bishop, Bridgman, Clary, and
Cross were and are valid designations for purposes of
determining the Union's status as a bargaining representa-
tive on Febfuary 1 and thereafter.
The Respondent initially objected to the introduction of
the designation card of employee Melvis Dudley because it
was t}ssertedly procurred as a result of misrepresentation
within the meaning of the Board's Cumberland Shoe
doctrine . 15 Respondent later interposed objections to the
use of six other cards which had earlier been admitted into
evidence , invoking the same legal doctrine in the light of
testimony adduced by its own witnesses. According to
Cumberland Shoe, an otherwise valid union designation
card should not be relied upon in ascertaining a union's
majority strength if in fact it was procured by a misrepre-
sentation uttered by the solicitor to the card signer that the
card will be used solely and exclusively to obtain a Board
election . In later administrative gloss placed upon this rule,
the Board stated that:
The central inquiry in determining the effect to be
given authorization cards is whether the employees by
their act of signing clearly manifested an intent to
designate the union as their bargaining agent. The
starting point, in assessing that intent, is the language
of the card.
Declarations to employees that authorization cards
are desired to gain an election do not under ordinary
circumstances constitute misrepresentations either of
fact or of purpose. As in the instant case, where the
Union did use the evidence of employee support
reflected by the cards to get an election, such
declarations normally constitute no more than truthful
statements of a concurrent purpose for which the cards
are sought. That purpose, moreover, is one that is
entirely consistent with the authorization purpose
expressed in the cards, as well as with the use of the
15 144 NLRB 1629 (1963)
VADA OF OKLAHOMA, INC. 761
cards to establish majority support. A point sometimes
overlooked is that in basic purpose there is no essential
difference between cards that are needed fot a showing
of interest to gain an election and cards that must be
used to support a majority designation showing in a
Section 8(a)(5) complaint proceeding.
Thus the fact that employees are told in the course of
solicitation that an election is contemplated, or that a
purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for
vitiating unambiguously worded authorization cards on
the theory of misrepresentation. A different situation is
presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed representa-
tion that they will use such cards only for an election
and subsequently seek to use them for a different
purpose; i.e., to establish the Union's majority inde-
pendently. In such a situation the Board invalidates the
cards for majority computation because the nature of
the representation is such as to induce a conditional
delivery for a restricted purpose and there is apparent
fraud when that restriction is exceed[ed].
The Board went ' on to elaborate what it meant in a
footnote.
The foregoing does not of course imply that a
finding of misrepresentation is confined to situations
where employees are expressly told in haec verba that
the "sole" or "only" purpose of the cards is to obtain
an election . The Board has never suggested such a
mechanistic application of the foregoing principles, as
some have contended . The Board looks to substance
rather than to form. It is not the use or nonuse of
certain key or "magic" words that is controlling, but
whether or not the totality of circumstances surround-
ing the card solicitation is such as to add up to an
assurance to the card signer that his card will be used
for no purpose other than to help get an election. [Levi
Strauss & Co., 172 NLRB 732, 733 (1968), fn. 7.]
The Supreme Court expressly ratified both the rule and the
rationale expressed above, and added a cautionary word of
its own:
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly cancelled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature . There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election.
Elections have been, after all, and will continue to be,
held in the vast majority of cases; the union will still
have to have the signatures of 30% of the employees
when an employer rejects a bargaining demand and
insists that the union seek an election . We cannot agree
with the employers here that employees as a rule are
too unsophisticated to be bound by what they sign
unless expressly told that their act of signing represents
something else. In addition to approving the use of
cards, of course, Congress has expressly authorized
reliance on employee signatures alone in other areas of
labor relations, even where criminal sanctions hang in
the balance, and we should not act hastily in disregard-
ing congressional judgments that employees can be
counted on to take responsibility for their acts..
We agree, however, with the Board's own warnings
in Levi Strauss & Co., 172 NLRB No. 57, and n. 7
(1968), that in hearing testimony concerning a card
challenge, trial examiners should not neglect their
obligation to ensure employee free choice by a too easy
mechanical application of the Cumberland rule. We
also accept the observation that employees are more
likely than not, many months after a card drive and in
response to questions by company counsel, to give
testimony damaging to the union, particularly where
company officials have previously threatened reprisals
for union activity in violation of §8(a)(1). We therefore
reject any rule that requires a probe of an employee's
subjective motivations as involving an endless and
unreliable inquiry. [N.L.R.B. v. Gissel Packing Compa-
ny, 395 U.S. 575, 606-608 (1969).]
Starting at the starting point recommended by the
Board, the cards here in question contain clear, unambigu-
ous dual-purpose lhnguage permitting the Union to use the
card either to file for a representation election or to
demand recognition from an employer without an election.
The cards themselves are as nearly misrepresentation proof
as it is possible to make documents of this nature. Unlike
many cards which have passed muster in previous cases,
these cards contain not only the conventional language of
union designation; they also bear at the top a bold red-
and-white inscription which is the dominant feature of the
whole design and which reads: "YES, I WANT THE IAM." It is
literally impossible for anyone to see the card and miss this
inscription. Moreover, the formal designation language in
the body of the cards, printed in boldface type, goes far
beyond the normal stylized legal jargon found on union
cards and recites, in basic English, a one-sentence
description of the two purposes for which the card may be
used: "I agree that this card may be used either to support
a demand for recognition or an NLRB election, at the
discretion of the Union." I do not see how it is possible for
any person, however obtuse, to read this simple declaratory
sentence and come away with any other idea than that the
card might be used to secure union recognition without an
election. In fact, the Union in this case did use these cards
in support of a petition for a representation election, but
then abandoned that course when it became apparent (as
will be discussed, infra) that an election could not be relied
upon as a true gauge of employee sentiment.
For the most part, Royall said nothing to employees who
signed cards as to the purpose to be served by the cards.
Indeed, there was no reason for him to do so because the
cards themselves stated their purposes in the most explicit
and easily understood language . Royall did make in
essence the following statement to a handful of employees,
in some instances before they signed and in some instances
after they signed:
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told them after we got recognition from the company
that within, usually with[in], 30 to 90 days that they
would be-like I say, I'm drawing kind of a blank
there, I don't recall the-anyway, that there would be
an election held and if we won the election that we
would get the IAM as the bargaining agent to represent
us.
He also told these individuals that he needed a majority of
the cards before he would give them to Wagoner for
further processing. On cross-examination, he affirmed a
question posed by Respondent' s counsel which repeated
the substance of the above declaration. The net effect of
Royall's admitted statement to a few employees is that he
believed the cards would be used for an election. He also
mentioned that this would happen after the Union got
recognition from the Company. His description in this
regard reflects an imperfect understanding on his part of
the sequence of events which normally occur in obtaining
bargaining rights, but it is a far cry from any misrepresen-
tation that the cards would be used only for an election. He
clearly told them that the Union would go directly to the
employer to seek recognition, and indeed it did.
In a more detailed discussion which Royall held with
employee Melvis Dudley, Royall told Dudley that if "we
get a majority of the people and . . . we do have an
election , you have a right to vote either in the union or you
can go against it." They both went on to discuss the pros
and cons of unionization, including benefits which might
be expected under a union contract. Thereafter, Dudley
signed a card. Royall's statement to Dudley, recited above,
does not constitute a misrepresentation as to the nature of
the card, but reaffirms its dual purpose. It is clear that what
prompted Dudley's signature was his anticipation of
improved benefits which, at that time, he felt would flow
from working in a unionized shop.
In this course of its case, the Respondent presented seven
employees 16 who testified concerning statements made to
them prior to the signing of their cards, which they
identified in each instance in the course of their testimony.
An evaluation of the reliability of these witnesses testimo-
ny, given in the presence of their employer about 4 months
after each of them had signed union cards, must be made
in the light of the above-quoted incisive admonition of our
late chief justice in Gissel. Each of these employees had
been put through a most intimidating experience by their
employer within a matter of days after they signed the very
cards which they were forced to acknowledge publicly and
in his presence. I further note that each of these witnesses
was the beneficiary of company largesse , having been
recalled to work on the construction of new facilities in the
early stages of the Respondent' s resumption of activity
while other less fortunate workers were left idle. I am also
mindful of trial examiner's insight in General Steel
Company, 157 NLRB 636 (1966), that there is a thin line to
draw between permissible representations by a card
solicitor and other statements which invalidate the card
which he obtains. When a union designation card, solicited
in confidence, is made public at the hearing of a card
majority case, a hostile employer then knows with
certainty, and often for the first time, just who signed on
the dotted line against him. Hence, some employees may
feel called upon to regain a spot in their employer's good
graces by recanting their previous deeds. The easiest way
for an employee to recant is to cross the thin line defined
by Cumberland Shoe and claim he was misled into doing
something he really did not intend to do. I believe this is
what happened in the instant case.
In attacking the credibility of Respondent's seven
witnesses on the Cumberland Shoe issue, the General
Counsel asserts that the Respondent's employee witnesses
were coerced, within the meaning of Section 7 of the Act,
by virtue of questioning which was conducted by Respond-
ent's Counsel Pasley in preparation for trial. Normally,
neither an employer nor its attorney agents is privileged to
interrogate an employee concerning any aspect of his
union sentiments , affiliations, or activities, including the
signing of a union card . Because of the necessities of
litigation, the Board has carved out a limited exception to
this rule in order to permit attorneys, under severely
restricted circumstances, to make inquiries directed toward
the preparation of a case. However, in order to avail
themselves of this privilege, the employer (or its agent)
must communicate to the employee the nature of the
questioning, assure him that no reprisal will take place, and
obtain his participation on a voluntary basis. The question-
ing must occur in a context free from employer hostility to
union organization and must not be itself coercive in
nature . The questions must not exceed the necessities of
the legitimate purpose by prying into other union matters,
eliciting information concerning an employee's subjective
state of mind, and otherwise interfering with the statutory
rights of employees. When an employer transgresses the
boundaries of these safeguards, he loses the benefit of the
privilege. Johnnie's Poultry Co., 146 NLRB 770 (1964).
Pasley contends that his interrogation of employees was
friendly, casual, and conducted on a low-key basis. It may
well be that the type of interrogation he employed was no
different from methods routinely used in investigating a
criminal or civil matter. But when the safeguards required
by Johnnie's Poultry are not observed, coercion normally
results because, in speaking to employees about matters
relating to their union activities , an attorney is not merely
one individual speaking to others inter pares. He is the
agent of an employer seeking information from an
employer's economically dependent employees. Because of
this exceptional relationship, safeguards not usually re-
quired of an attorney in other types of litigation have
become a mandatory part of the administration of the
National Labor Relations Act. As the matters relating to
the investigation of the seven Cumberland Shoe witnesses
did not come to light until late in the trial, the General
Counsel did not move to amend the complaint to allege
that this interrogation constituted an independent unfair
labor practice. Nor does he assert that Johnnie's Poultry,
like Miranda,17 lays down a rule of evidentiary exclusion.
Rather, he asserts that a violation of Johnnie's Poultry
amounts to coercion in a labor relations sense which makes
18 Ricky McClendon, Robert Lesley, Virgil Page, Curtis 0. Stone, Melvis
Dudley, Carroll Johnny Nipp, and Jimmy Walker.
17 Miranda v. State ofArizona, 384 U .S. 436 (1966).
VADA OF OKLAHOMA, INC. 763
employee testimony flowing therefrom inherently suspect.
The point is well taken.
In the instant case, the Respondent made no pretense of
complying with Johnnie's Poultry in questioning its employ-
ee witnesses . At no time did Pasley inform the employees
he talked to that they would be free from reprisal if they
talked with him. Moreover, the employer in this case was
guilty of egregious unfair labor practices which were
committed just a few months before its attorney undertook
the investigation in question. Accordingly, it cannot be
said, as Johnnie's Poultry requires, that his inquiries were
made "in a context free from employer hostility to union
organization ." As to some employees, other provisions of
the rule may not have been followed, but on the basis of
these two grounds alone, it is clear that Respondent failed
to comply with the Johnnie's Poultry requirements.
In assessing the reliability of the Respondent's Cumber-
land Shoe witnesses , one further point proves troublesome.
In the course of discussing with the employees in question
what was said to them by Royall or others before they
signed their respective cards, Pasley prepared a single
summary sheet recording their remarks. He showed this
sheet to each employee for approval. Some made correc-
tions or additions, but generally they agreed to its contents,
despite the fact that they were each talking about many
different cardsigning episodes. Hence, these witnesses were
shown in advance of trial and orally assented to a
composite statement of facts prepared by counsel which
amounts to an amalgamation of testimony on many events
which were a similar nature but totally separate in
occurrence. Such preparation does not enhance the
reliability of the testimony, especially when close questions
of fact are involved.
In light of the above considerations, and also with a view
toward their actual demeanor at trial, I am disposed to
discredit the Respondent's employee witnesses, and each of
them. It would serve no useful purpose to detail their
evasions, the inherently incredible replies made by some of
them to certain questions, the furtive glancing at Pletcher
for approval during the testimony, and the selective
memories and argumentative nature of certain witnesses,
all of which play a part of this appraisal.18 Thus, having
discredited the often contradicted accounts of these
witnesses, I conclude that the Charging Party and its
agents did not violate the requirements of Cumberland Shoe
in procuring employee signatures on 24 designation cards
which were obtained on or before February 1. N.LR.B. v.
Sanitary Products Company, 382 F.2d 53 (C.A. 10, 1967).
Accordingly, as of that date, the Charging Party represent-
ed for purposes of collective bargaining a majority of the
Respondent's employees in a unit of production , mainte-
nance, and construction workers employed at its Springer,
Oklahoma, plant.
6. The dismissal of the 8(a)(5) allegation
Sometime after the issuance of the complaint in this case
and the close of the hearing, the Board announced a
change in policy relating to the handling of Gissel or so-
called card cases . For reasons set forth in Steel-Fab, Inc.,
212 NLRB 363 (1974), the Board will no longer make a
finding of a violation of Section 8(a)(5) in Gissel cases, but
will predicate its bargaining order, when appropriate,
exclusively upon the violations of Section 8(a)(I) and/or
Section 8(a)(3) which are established in the record.19 While
it is plain in this case that the Respondent refused to
accede to a demand which was presented by the duly
designated majority representative of its employees in an
appropriate unit, it is not necessary to inquire whether the
Respondent thereby committed a violation of Section
8(a)(5). Accordingly, I will recommend that paragraphs
fifteen and eighteen of the complaint be dismissed.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent, VADA of Oklahoma, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By laying off the following named employees in
order to discourage their membership in, or support of, the
International Association of Machinists and Aerospace
Workers, AFL-CIO, the Respondent herein violated
Section 8(a)(3) of the Act: Carroll J. Nipp, Jimmy D.
Walker, Elton Kirk Phipps, Charles Walker, Herbert W.
Belt, Henry Quiring, Herman Quiring, Roy C. Wickware,
Jimmy Cross, Steven M. Hicks, Martin D. Adams, Curtis
0. Stone, Doyle Bell, Bill A. Melton, J. R. Clary, Charles
G. Lowrance, Johnny R. McMillan, Ricky McClendon,
Lloyd M. Williams, Clarence L. Parker, Buddy Royall,
Alton L. Calhoun, Bobby Joe Bridgman, Billy J. Price,
Billy Joe Bishop, Virgil R. Page, Robert D. Lesley, Tim
Tigert, Charles Robinson, James W. Hunt, Richard Young,
James E. McClaine, Carl G. Buchanan, Melvis Dudley,
Lance Hogan, Lorenzo Murray, and O. Jearl Meeks.
4. By the acts and conduct described above in
Conclusion of Law 3; by interrogating an employee
concerning his union membership, activities, and desires;
by threatening employees with plant closure and discharge
if they became or remained members of the Union; and by
laying off Bobby Gene Friemel in order to interfere with,
restrain, and coerce bargaining unit employees in the
exercise of rights guaranteed to them by Section 7 of the
Act, the above-named Respondent violated Section 8(a)(1)
of the Act.
is Perhaps the least impressive of these witnesses was Curtis O. Stone.
Stone attempted to avoid responsibility for his previous act of signing a
union designation card by feigning illiteracy, or at least partial illiteracy. He
claimed he could not read well enough to read the card in a manner similar
to other people. When put to the test at the hearing, it clearly appeared that
Stone could read and write quite adequately.
IS This new policy eliminates some of the often disputed issues which
were inherent in litigation involving an allegation of an 8(aX5) violation. It
will no longer be necessary under Steel-Fab for the General Counsel to
establish a demand for recognition and a refusal to bargain . In addition,
such diversionary questions as whether cards were obtained before or after
the date of a demand , whether the demand was of continuing nature, and
whether the demand made upon the employer coincides with the scope of
the unit ultimately found to be appropriate , are now moot.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. All production and maintenance employees of the
Respondent at its Springer, Oklahoma , plant , including
construction employees, but excluding office clerical
employees , guards , and all supervisors as defined in the
Act, constitue a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
6. Since February 1, 1974, and continuing to date, the
International Association of Machinists and Aerospace
Workers, AFL-CIO, has been and continues to be the
exclusive bargaining representative of all employees of the
Respondent in the unit found appropriate herein in
Conclusion of Law 5, within the meaning of Section 9(a) of
the Act.
7. The unfair labor practices recited above in Conclu-
sions of Law 3 and 4 have a close , intimate , and substantial
effect on the free flow of commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed
certain unfair labor practices , I will recommend that it be
ordered to cease and desist therefrom , and to take other
actions designed to effectuate the purposes and policies of
the Act. With respect to the violations of Section 8(a)(l)
which have been alleged and proved in this case , it clearly
appears that they have been pervasive and repeated and
that they manifest on the part of this Respondent a
disposition to ignore and invade all of the statutory rights
which Section 7 of the Act was designed to protect.
Accordingly , I will recommend a broad cease-and-desist
order, designed to suppress any and all future violations of
that Section by this Respondent . N.LR.B. v. Entwistle
Manufacturing Company, 120 F.2d 532 (C.A. 4, 1941).
With regard to the violations of Section 8(a)(3) of the
Act, as well as the cognate violation of Section 8(axl)
relative to Bobby Gene Friemel , it is unclear from the
record whether all discriminatees who were laid off on
February 6 have actually returned to work. Accordingly, I
will recommend their reinstatement and will further
recommend that all discriminatees be paid backpay for
time lost as a result of the discrimination , to be computed
in accordance with the Woolworth formula ,20 with interest
at 6 percent per annum.
One of the key issues in this case is whether a so-called
Gissel remedy should be recommended to remedy the
violations of Section 8(axl) and (3) which have been
established . Such a remedy requires an offending employer
to recognize the collective-bargaining representative of its
employees on the basis of designation cards solicited by the
union, and to bargain collectively with the designated
union . The Supreme Court approved such a remedy in its
Gissel decision in these instances where the unlawful
conduct of an employer in resisting unionization has been
so flagrant , and his violations of the Act so pervasive, that
20 F W. Woolworth Company, 90 NLRB 289 (1950).
21 General Shoe Corporation, 77 NLRB 124, 127 ( 1948). The phrase
"laboratory conditions" was used by the Supreme Court in the Gissel
decision 395 U S. 575, 612 (1969).
22 Heat Timer Corporation, 124 NLRB 1256 (1959); Medley Distilling
Company, 187 NLRB 84 (1970); Amsterdam Wrecking and Salvage
Corporation, 1% NLRB 113 (1972); Federal Stainless Sink Company,
Division of Unarco Industries, Inc., 197 NLRB 489 (1972 ); United Packing
they have impaired the likelihood of running a free and fair
representation election under the "laboratory conditions" -
21 which must exist if an election is to serve as a reliable
indicator of uncoerced employee sentiment . Such a remedy
(or its predecessor) has been repeatedly applied by the
Board22 and upheld by the courts in providing redress to
many similar situations. N.L.R.B. v. Okla-Inn, supra;
N.L.R.B. v. Wylie Manufacturing Company, 417 F.2d 192,
(C.A. 10, 1969), cert . denied 397 U.S. 913 (1970); J. C.
Penney Co. v. N. L R. B., 384 F.2dd 479 (C.A. 10, 1967).
In this case , the Respondent not only threatened to close
the plant to thwart an organizing drive . It did so, and in so
doing left its employees out in the cold for varying periods
of time to impress upon them that Pletcher meant what he
said when he voiced opposition to unionization. Such a
ploy has deep and lingering effects and will be remembered
for a long time to come, so it is highly improbable that its
effects can be erased in the foreseable future . Indeed, such
was the result which the Respondent sought to achieve.
Accordingly, a Gissel remedy is clearly warranted to undo
the wrong which has been committed here , and I have no
hesitance in recommending it.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER 23
Respondent VADA of Oklahoma, Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sentiments.
(b) Threatening employees with discharge or plant
closure if they engage in union or concerted activities.
(c) Laying off or otherwise discriminating against
supervisors in order to interfere with, coerce, or restrain
employees in the exercise of rights guaranteed by Section 7
of the Act.
(d) By any means or in any manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer to the following named employees immediate
and full reinstatement to their former positions or, in the
event that their former positions no longer exist, to
substantially equivalent positions , without prejudice to
their seniority or other rights and privileges and make them
whole for any loss of pay suffered by reason of the
discrimination or interference found, in the manner
described above in the section entitled "The Remedy":
Carroll J. Nipp, Jimmy D. Walker, Elton Kirk Phipps,
Charles Walker, Herbert W. Belt, Henry Quiring, Herman
Company of Iowa, Inc., 187 NLRB 878 (1971 ); Essex Wire Corporation, 188
NLRB 39 (1971).
23 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 , and recommended 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.
VADA OF OKLAHOMA, INC. 765
Quiring, Roy C. Wickware, Jimmy Cross, Steven M. Hicks,
Martin D. Adams, Curtis O. Stone, Doyle Bell, Bill A.
Melton , J. R. Clary, Charles G. Lowrance, Johnny R.
McMillan , Ricky McClendon, Lloyd M. Williams, Clar-
ence L. Parker, Buddy Royall, Alton L. Calhoun, Bobby
Joe Bridgman , Billy J. Price, Billy Joe Bishop, Virgil R.
Page, Robert D. Lesley, Tim Tigert, Charles Robinson,
James W. Hunt, Richard Young, James E. McClaine, Carl
G. Buchanan, Melvis Dudley, Lance Hogan, Lorenzo
Murray, Jearl Meeks, Bobby Gene Friemel.
(b) Recognize and, upon request, bargain collectively
with International Association of Machinists and Aero-
space Workers, AFL-CIO, the exclusive collective-bar-
gaining representative of its employees in a bargaining unit
consisting of all production and maintenance employees
employed at its Springer, Oklahoma, plant, including
construction employees, but excluding office clerical
employees, guards, and supervisors as defined in the Act.
(c) Post at its Springer, Oklahoma, plant, copies of the
attached notice marked "Appendix." 24 Copies of said
notice to be furnished to the Respondent by the Regional
Director for Region 16 and duly signed by a representative
of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and shall be maintained
by it 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 to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the receipt of this decision
what steps it has taken to comply herewith.
Insofar as the complaint alleges matters not found herein
to be violations of the Act, the complaint is hereby
dismissed.
24 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
union sentiments or union activities.
WE WILL NOT threaten to close the plant or to
discharge employees and WE WILL NOT close the plant
and lay off employees because they join a union or give
it assistance and support to it.
WE WILL NOT discriminate against supervisors in
order to interfere with the union activities or the
protected, concerted activities of our employees.
WE WILL NOT, by any means or in any manner,
interfere with, restrain, or coerce employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act. Those rights include the
right to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid and protection.
WE WILL offer full and immediate reinstatement to
the following named employees to their former or
substantially equivalent employment, and WE WILL
make them whole for any loss which they have suffered
by reason of the February 6 layoff, with interest at 6
percent per annum.
Carroll J. Nipp Clarence L. Parker
Jimmy D. Walker Buddy Royall
Elton Kirk Phipps Alton L. Calhoun
Charles Walker Bobby Joe Bridgeman
Herbert W. Belt Billy J. Price
Henry Quiring Billy Joe Bishop
Herman Quiring Virgil R. Page
Roy C. Wickware Robert D. Lesley
Jimmy Cross Tim Tigert
Steven M. Hicks Charles Robinson
Martin D. Adams James W. Hunt
Curtis O. Stone Richard Young
Doyle Bell James E. McClaine
Bill A. Melton Carl G. Buchanan
J. R. Clary Melvis Dudley
Charles G. Lowrance Lance Hogan
Johnny R. McMillan Lorenzo Murray
Ricky McClendon Jearl Meeks
Lloyd M. Williams Bobby Gene Friemel
WE WILL, upon request, bargain collectively with the
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive representative of
our employees in a unit composed of all production
and maintenance employees at the Springer, Oklaho-
ma, plant including construction employees, but
excluding office clerical employees, guards, and super-
visors as defined in the National Labor Relations Act.
VADA OF OKLAHOMA, INC.