A. M. Andrews Co. of Oregon

;626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon these uncontroverted facts, we find that George Brown is es- sentially a casual employee and therefore ineligible to vote in the elec- tion 4 Accordingly, we shall adopt the Regional Director's recommen- dation and sustain the challenge to Brown's ballot. Because it there- fore appears that the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representa- tive of the Employer's employees in the appropriate unit. [The Board certified Lodge No. 555, International Association of Machinists, AFL, as the designated collective bargaining representa- tive of the employees of the Employer at its Knoxville, Tennessee, plant.] I See Albers Super Markets, Inc., 110 NLRB 474; H P. Wasson and Company, 104 NLRB 249, 250. A. M. Andrews Company of Oregon and A. M. Andrews of Illi- nois, Inc. and International Association of Machinists, AFL. Case No. 14-CA-1208. May 10,1955 DECISION AND ORDER On October 28, 1954, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that one of the Respondents, A. M. Andrews of Illinois, Inc., hereinafter referred to as Respondent Illinois, had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto; and finding further that the other Respondent, A. M. Andrews Company of Oregon, here- inafter referred to as Respondent Oregon, had not engaged in any un- fair labor practices and was not responsible for the unfair labor practices in which Respondent Illinois had engaged and was engaging. Thereafter the Respondents filed exceptions to the Intermediate Re- port and a brief in support of these exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Respondents' exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifica- tions and additions : 1. In their exceptions and brief the Respondents request that the record be reopened to permit the introduction into evidence of addi- tional data pertaining to the Respondents' financial condition. The data which the Respondents would introduce is set forth in detail in 112 NLRB No. 89. A. M. ANDREWS COMPANY OF OREGON 627 their exceptions. The Respondents assert that the introduction of such data would show that the Carterville plant was shut down and permanently abandoned solely because of economic necessity. The Respondents do not assert that the financial data they now seek to introduce into evidence was newly discovered. The only reason they assign for the failure to introduce it into evidence at the hearing is that "A. M. Andrews and John Tuttle, representatives of the Respondents, appeared at the hearing without benefit of legal counsel neither prior to or at the hearing and without an adequate understanding of the scope or purpose of the hearing." After due notice the hearing in this case was held on September 20, 1954. It had been originally scheduled for July 19 and had been re- scheduled for August 16. As early as June 6,1954, Respondent Illinois was notified that it had been charged with the commission of the un- fair labor practices here in issue. The complaint in this case was served on June 28,1954; an answer to the complaint was received in the Regional Office on July 6, 1954. A second amended charge and an amended complaint was served on the Respondents on August 27, 1954. It does not appear, therefore, nor in fact do the Respondents assert, that the Respondents were not adequately apprised of the charges against them or that they were deprived of the opportunity to prepare their defense. No request for an adjournment was made by the Re- spondents at the hearing for the reason that they were unrepresented by counsel, or for any other reason. The Respondents were granted ample opportunity at the hearing to present their defense. Indeed, during the course of the presentation of concluding arguments, after both the General Counsel and the Respondents had rested their cases, the Trial Examiner, over the General Counsel's objections, permitted the Respondents to introduce certain evidence pertaining to Respond- ents' financial condition which is set forth in the Intermediate Report. In these circumstances, especially in view of the fact that no assertion is made that the evidence the Respondents seek to introduce is newly discovered, we do not believe that the Respondents have shown ade- quate reason in support of their request to reopen the record, and the request is hereby denied.' We note, moreover, that even were we to permit the introduction into evidence of the financial data set forth in the Respondents' exceptions, we would not deem it of sufficient probative force to establish that the Carterville plant was shut down for economic reasons.' Like the Trial IBasic Vegetable Products, Inc, 75 NLRB 815, 818; Vogue-Wright Studios, Inc, 76 NLRB 773, 778, The San Company/ of San Bernardino, California, 105 NLRB 515, ;20 21n rejecting, at this time, the Respondents' request to reopen the record, we (1o not now rule upon the materiality of the financial data set forth in the Respondents' excep- tions upon either (1) the issue as to the amount of work that would have been available to employees during the period June 1-August 3, 1954, but for the Respondents' dnscrim- 369028-56-vol 112-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner, we recognize that the Respondents were beset by financial difficulties. However, also like the Trial Examiner, and for the rea- sons indicated in the Intermediate Report, we are convinced that the plant's shutdown on June 1, 1954, was discriminatorily motivated, and was not the immediate result of the economic considerations the Re- spondents have advanced. The existence, therefore, of economic con- siderations which did not directly cause the plant's shutdown, does not excuse the Respondents' discriminatory action.3 2. We find, in agreement with the Trial Examiner, that the Re- spondents form a multistate enterprise whose combined out-of-State sales 4 are sufficient to meet the Board's recently announced jurisdic- tional standards.5 However, we do not agree with the Trial Ex- ammer's finding that the Respondents are separate Employers nor with the Trial Examiner's further finding that Respondent Oregon may not be held responsible for remedying the unfair labor practices here in question. As set forth in the Intermediate Report, the president and principal stockholder of Respondent Oregon, with 345 shares, is A. Al. Andrews. The other officers and stockholders of this corporation are : Alex Mar- shall, vice president, with 16 shares; Norman Brown, secretary- treasurer, with 1 share; and Ray II. Lesher, formerly secretary, with 1 share. A. M. Andrews is also the president of Respondent Illinois, and owns 1 share, or 25 percent of its stock. John A. Tuttle, the nephew of A. M. Andrews, is its vice president, Norman Brown, its treasurer, and Ray H. Lesher, its secretary. Each of the latter owns 1 share, or 25 percent of the stock, of Respondent Illinois. Both Re- spondents manufacture plastic hose sprinklers. Respondent Oregon started operations in Oregon in 1951, while Respondent Illinois be- gan actual manufacturing operations at Carterville, Illinois, on April 27,1954. Before Respondent Illinois commenced its operations, A. M. An- drews personally contacted a committee of Carterville businessmen. As a result of Andrews' negotiations with this committee, an agree- ment was reached whereby the town erected a building for the use of Respondent Illinois. To operate the plant at Carterville, John Tut- tle, James Paterson, and Milo Smith were transferred from the Port- land plant of Respondent Oregon. Tuttle was named managing agent of the Carterville plant; Paterson and Smith set up the equip- anatoiv lockout of June 1 , and (2) the corollary issue as to the amounts of back pay due the discrnnuiatorily locked-out employees These matters may properly be iaised in the compliance stage of this proceeding See N L 1 11 v Norma illananq Corp , 205 F 2d 38, 44 (C A 4) Fiom June 30, 1953 to June 30, 1954, Respondent Oregon had $791,000 in out-of-State sales During the peuod Janu,uy 1. 1954, to June 30, 1954, its ont-of-State sales aaete in excess of $210 000 Respondent Illinois, dui ing the period April 27, 1954, to July 31. 1954. had $22,000 in out-of-State sales 5 Jonesboro Gi cia Di ping Cooperative, 110 NLRB 481 A. M. ANDREWS COMPANY OF OREGON 629 relent and trained the personnel. Paterson subsequently assumed the duties of the plant's production foreman. Tuttle, the managing agent, reported directly to Andrews; and Andrews handled the labor relations problems for both Respondents. It was Andrews, moreover, who, after conferring with the other officers of the Oregon corpora- tion, ordered the Carterville plant closed on June 1, 1954. Respond- ent Oregon furnished the credit for Respondent Illinois by guarantee- ing the latter's purchases. Raw materials used by the Carterville plant were carried on the books of Respondent Oregon corporation as an account receivable. When the Carterville plant was dismantled on August 3, 1954, all its raw materials, finished products, and ma- chinery were shipped to and taken over by Respondent Oregon. In determining that the Respondents are separate employers and that therefore Respondent Oregon was not responsible for the un- fair labor practices committed at the Carterville plant, the Trial Ex- aminer did not advert to a number of factors of paramount signifi- cance. These are: (1) the fact that both Respondents are engaged in manufacturing and selling the same product and have almost identi- cal names; (2) the fact that A. M. Andrews is the virtual owner of Respondent Oregon and, together with his nephew, owns 50 percent of the stock of Respondent Illinois; (3) the fact the officers in both corporations are virtually the same; (4) the fact that the Respond- ent Oregon lent its credit to Respondent Illinois in the acquisition by the latter of raw materials and machinery-thereby providing the very means whereby the Respondent Illinois could operate; (5) the fact that after the shutdown of the Carterville plant, the raw materials and physical assets of Respondent Illinois were turned over to Re- spondent Oregon, presumably to be disposed of as the latter might di- rect; (6) the fact that the labor relations of both corporations were controlled by the same person, the aforementioned A. M. Andrews; and (7) the fact that A. M. Andrews demonstrated his practical con- trol over Respondent Illinois by himself making the vital decision to shut down operations at Carterville. The existence of these factors demonstrates the close integration of the Respondents. They show further, and we so find, that the Respondents constitute a single em- ployer within the meaning of the Acts It follows therefrom, ,nil we also find, that Respondent Illinois is an integral part of a mnltf- state organization, and that Respondent Oregon is responsible for re.'1- edying the mifair labor practices herein found to have been conunftted 7 6 Pon Juan Co , [nc , 79 NLRB 154, 155, enfd 178 F 2d 625, 627 (C A 2) , N L LP Jr. V Federal Enquncr?my Co . 153 F 2d 233 (C A 6) , N L li B v Condenser Corp , 12,4 F 2d 67, 71 (C A 3) . Somerset Classics, Inc, 90 NLIM, 1676, enfd 193 F 2d 613 (C A 2) , i1lllco Undeigarntcot Co , Inc 106 NLRB 767, enfd 212 r 2d 801 (C A 3) , 1l'iight f McGill Coinpaml, 102 NLRB 1033 Cf N L R 13 v Stowe Spinnuig Co , 236 U S 226. 227 'In view of our determination that the Respondents constitute a single employer within the meaning of the Act, we do not deem it necessary to consider the Tnal Examiner's 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY As the Respondents have engaged in unfair labor practices , we shall order that they cease and desist therefrom . In order to effectuate the policies of the Act , we shall also order that the locked -out employees be made whole for losses of pay they suffered between June 1, 1954, the date of the shutdown of the Carterville plant, and August 3, 1954, the date of the plant's permanent closing; and that the Respondents offer reinstatement to the locked-out employees in the event that the Re- spondents resume operation in Carterville , or in the event that the Carterville operations are resumed elsewhere. Our dissenting colleague would also order Respondent Oregon to place the Carterville employees on a preferential hiring list at the Oregon plant. We believe, however, that in view of the circumstances of this case , such an extension of the remedy is not warranted. In the first place, the Carterville operation appears to have been a localized venture in a geographical area widely separated from that of the Oregon plant. Secondly, and even more significantly, the permanent closing of the Carterville plant was not discriminatorily induced, but was rather, as the Trial Examiner found and as our dissenting col- league apparently concedes , the result of economic considerations. Certainly, therefore , in the normal course of events, the Carterville employees would have had no expectation of employment with the Respondents after August 3,1954. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondents , A. M. Andrews Company of Oregon and A. M. Andrews of Illinois, Inc., their officers, agents, successors , and assigns , shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists , AFL, or in any other labor organization of their employees, by shutting down plants and locking out their employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment. (b) Announcing that they will not tolerate a union in their plant, threatening to move their plant to discourage union activity, and con- ducting polls of their employees to procure their renunciation of sup- port for International Association of Machinists , AFL, or any other labor organization. assumption that the Board may apply one standard in judging corporate-interrelationship for the purpose of asserting jurisdiction and a different one in judging corporate -interrela- tionship for the purpose of remedying unfair labor practices. A. M. ANDREWS COMPANY OF OREGON 631 (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities ex- cept to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Make whole the employees whose names are listed in Appendix A of the Intermediate Report in the manner prescribed in the section of the Intermediate Report entitled "The Remedy." (b) In the event of the resumption of their operations at Carterville, Illinois, or in the event that the Carterville operations are resumed elsewhere, offer to the employees whose names are listed in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and in the event such operations are resumed at a location which is not in the immediate vicinity of Carter- ville, offer to pay the employees any necessary and reasonable expense of moving themselves, their families, and their household effects to the vicinity of the plant where operations are resumed and in which said employees are offered reinstatement. (c) In the event operations are resumed at Carterville, or else- where, post in their plant copies of the notice attached hereto and marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed by Respondents' representative, be posted by Respondents im- mediately after resumption of operations and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourteenth Region, in writing, within ten (10) days from the date of this Order, what steps Respondents have taken to comply herewith. MEMBER MURDOCH, concurring in part and dissenting in part: I am in full agreement with the main opinion except for the order which I believe is inadequate fully to remedy the unfair labor practice found. 8 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." "632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paragraph 2 (b) of the Order is not broad enough to provide an effective remedy for discriminatory lockout of the Carterville em- ployees which the Board finds took place when the Carterville plant was shut down. The Respondents are merely told in the cease and de- sist portion of the Order not to do this any more; and in the affirmative portion of the Order to reinstate the locked-out employees only if the Carterville plant is reopened or those operations are resumed else- where. If these operations are permanently abandoned, there has been no effective remedy. Inasmuch as the Board has found above (1) that Respondents Oregon and Illinois are a single employer, and (2) that Respondent Oregon "is responsible for remedying. the unfair labor practices found to have been committed," I believe it only logical that Respondent Oregon be required to place the Carterville em- ployees on a preferential list for employment at the Oregon plant in preference to any new hires at the plant. Accordingly, I would broaden the Order to that extent and disagree with the present narrow form. MEMBER LEEDO-11 took no part in the consideration of the above De- cision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in International Associa- tion of Machinists, AFL, or in any other labor organization of our employees, by shutting down our plant and locking out our employees, or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employ- ment. WE WILL NOT inform our employees that We will not tolerate a union in the plant or threaten to move our plant to discourage union activity, nor will we conduct polls of our employees to procure their renunciation of support for International Associa- tion of Machinists, AFL, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor A. M. ANDREWS COMPANY OF OREGON 633 organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE WILL make whole the employees whose names are listed be- low for any loss of pay they may have suffered from June 1 to August 3, 1954, inclusive, by reason of our discrimination against them : Lucille A. Anderson Clara Bagwell Evelyn G. Baltimore Elizabeth Beltz Anna* K. Brown Maggie Lee Calvert Helen M. Clark Ruth Ann Elders Carmen Emery Maxine D. Emery Anna J. Eveland Millie Evett Jewell Hall Judith Ann Halstead Paul Halstead Myrtle C. Hess Vera N. Hickam Pearl A. Hoover Eleanor Kelly Lacy L. Lee Eleanor L. Manning June F. Myers Margaret R. McCluskey Alice J. North Bette J. O'Daniel Robert J. Ogden Evelyn M. Ollar Gathel V. Patrick Laverne Phillips Madge Popham Katherine Riggin Wayne A. Rushing Peggy Jo Sickling Elizabeth Ann Smith Milo Smith Rosalie Stocks Alberta Mae Tripp Velma Tygett Claudia Wynn Evelyn Yewell WE WILL, in the event we resume operations at Carterville, Illinois, or elsewhere, offer to the employees whose names are listed above immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and in the event we re- sume operations at a location which is not in the immediate vicinity of Carterville, Illinois, we will offer to pay to said em- ployees any necessary and reasonable expense of moving them- selves, their families, and their household effects to the vicinity of the plant at which we resume operations. A. M. ANDREWS OF ILLINOIS, INC., Employer. A. M. ANDREWS COMPANY OF OREGON, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended ( 61 Stat. 136 ), was heard in St. Louis, Missouri, on September 20, 1954, pursuant to due notice . The complaint and amended complaint, issued on June 28 and August 27 , 1954, respectively , by the General Counsel of the National Labor Relations Board i and based on charges duly filed and served, alleged in sub- stance that Respondents had engaged in unfair labor practices proscribed by Section 8 (a) (1) and ( 3) of the Act ( a) by locking out their maintenance and production employees, on or about June 1, in order to discourage membership in the Union, because they had joined or supported the Union , ( b) by polling and questioning their employees concerning their union activities , sympathies, etc., and (c) by encouraging their employees to form an independent union in order to avoid bargaining with IAM. Respondents answered, denying generally all allegations of the complaint. All parties were represented by counsel or by other representatives , were afforded full opportunity to be heard, to examine and cross-examine witnesses , to introduce relevant evidence, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. Oral argument was heard at the conclusion of the hearing and the General Counsel has filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS ; THEIR INTERRELATIONSHIP A. M. Andrews Company of Oregon is an Oregon corporation , with its principal office, place of business , and plant at Portland, Oregon . Its capital stock is owned by A. M. Andrews ( 345 shares ), Alex Marshall ( 16 shares), Norman Brown (1 share ), and Ray H. Lesher ( 1 share ). A. M. Andrews of Illinois , Inc., is an Illinois corporation, with its principal office , place of business , and plant located at Carterville , Illinois. Its capital stock is owned by A. M. Andrews, John A. Tuttle, Norman Brown, and Ray H. Lesher, each of whom owns one share. Andrews is president, Brown is treasurer , and Lesher is secretary of both corporations .2 Marshall is vice president of the Oregon corporation and Tuttle of the Illinois corporation. Both corporations are engaged in the manufacture of plastic hose sprinklers. The Oregon corporation began operations in 1951. The Illinois corporation was organized February 23, 1954, and began actual manufacturing operations in Carterville on April 27, after negotiations between Andrews and a group of local businessmen. Andrews sent two men from Portland to supervise the setting up of the Carterville plant and the training of personnel ; and one of them, Jimmy Patterson, became pro- duction foreman . In addition , Tuttle, who is Andrews ' nephew, was sent to Carter- ville as the managing agent of the plant. Separate bookkeepers were employed and separate books were kept for the two companies . However, the Oregon corporation furnished the credit for the Illinois corporation by guaranteeing payment of the latter 's purchases ; and, following the final shutdown of the Carterville plant on August 3, the inventory , machinery, and equipment were shipped to Portland and taken over by the Oregon corporation to secure its guarantee of the unpaid balance due thereon. The annual sales of the Oregon corporation (for 12 months ending June 30, 1954) were approximately $943,000, of which approximately $791,000 were to extrastate points Its annual purchases from extrastate points during the same period were approximately $359,000. For 7 months ending July 1954, the total sales of the Oregon corporation amounted to approximately $573,000, of which more than $210,000 were made directly to extrastate points; its extrastate purchases during the same period exceeded $ 120,000 From April 27, 1954, through the month of July, the Illinois corporation sold products amounting to approximately $26,000, of which approximately $22,000 were 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board . The Respondent Companies are referred to, respectively , as Respondent Oregon and Respondent Illinois, and the Charging Union as the Union and as TAM The summary of the pleadings made below is of the amended complaint All events herein occurred in 1954 2 Lesher resigned as secretary of the Oregon corporation on July 26 and was succeeded by Brown. A. M. ANDREWS COMPANY OF OREGON 635 sold and shipped directly to points outside the State of Illinois During the same period the Illinois corporation purchased goods from extrastate points amounting to approximately $21,370. The foregoing facts establish that the relationship between the two corporations was sufficiently close that they may be considered as parts of a multistate enterprise for jurisdictional purposes. Cf. N. L. R. B. v. Charles E. Daboll, Jr., et al., 216 F. 2d 143 (C. A. 9). And when so considered, it is obvious that Respondents' operations meet the jurisdictional criteria recently announced by the Board for the assertion of jurisdiction . See Vol. 34, LRR Analysis, Nos. 19 and 23. It is, therefore , found that Respondents are engaged in interstate commerce within the meaning of the Act, and that it will effectuate the purposes of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership employees of Respondent Illinois. III. THE UNFAIR LABOR PRACTICES A. The evidence The Carterville site was selected by Andrews after negotiations with Godfrey Hughes, of Southern Illinois, Inc . (an organization interested in the industrial development of southern Illinois ), and a committee of Carterville businessmen, con- sisting of Lee Hooker , Mack Steffes, Paul Dorcy , and Wes Hayton. Andrews testi- fied that that industrial group arranged for the financing and construction of the plant building, and that the Illinois corporation entered into a purchase agreement. The plant began actual operations on April 27, with 5 or 6 employees, and by June 1 it had approximately 38 employees . On May 11 the plant was shut down temporarily and the employees were laid off by a notice which informed them that the shutdown was due to lack of orders and that they would be notified of recall. Operations were resumed on May 26 and Tuttle then informed the employees that the Company had plenty of material and orders and that , so far as he could deter- mine, there would be plenty of work for the rest of the summer. During the period of the layoff , the Union (unknown to Respondents ) conducted an organizational campaign among the employees , and under date of May 27, the Union wrote the Illinois Company informing it that a majority of its employees had authorized the Union to represent them and requesting recognition and a meeting for negotiations.3 The Union's letter was received on June 1 at Carterville , by Tuttle, who immediately called Andrews in Portland. Andrews directed Tuttle to close down the plant and Tuttle posted a notice stating that, effective as of 4:30 p. in. (the regular quitting time ), the plant would be closed. The notice specified no reason for the closing, and witnesses for the General Counsel testified that there was no shortage of materials at the time. Shortly after 2 p. in., a committee of businessmen (Hughes, Hooker, Steffes, Hay- ton, and Phil Heckle ) appeared at the plant, called a meeting of the employees during work time, and addressed them on the subject of the Union and its request to bargain. The witnesses were agreed that Hughes read from the Union's letter to the Company, and three of them testified that Hughes went into the office to obtain it. Though neither Tuttle nor Patterson was present during the meeting , Evelyn Baltimore testified that she saw Tuttle in the office ; and Patterson's presence in the plant was established both before and after the meeting. Hughes, who acted as chief spokesman for the group , stated that he had had a phone call from Tuttle , and after reading from the Union 's letter requesting bar- gaining, he said that the notice on the bulletin board that the plant was closing was Andrews' answer to the letter, and that Andrews would not tolerate a union in the plant Hughes continued that if the notice was still on the bulletin board at quitting time, it would mean that there would be no more work , and that the plant would be closed down and would move back to Oregon. Hughes also said that though he could probably get another plant into the building , it would take approximately 6 months to do so, and he could not guarantee that any of the Andrews employees would have jobs there. Hughes inquired whether the employees would reconsider and would continue to work as before, without a union , and stated that if they would, 3 Following a consent-election agreement and the withdrawal by the Union of a refusal to bargain charge, an election was held on June 17, resulting in a vote adverse to the Union On June 22, the Union filed objections to the conduct of the election which are still pending before the Regional Director. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would call Andrews and see if he could get the notice taken off the board before 4:30. Hughes suggested that the employees take a vote on the question, but stated that he was not authorized to call one .4 Thereupon two of the employees went into the office and procured slips of paper which were distributed among the employees in the presence of the committee. Since it was understood the ballots were to be signed, many of the employees apparently did not cast votes, and the slips were destroyed. Thereupon a second vote was called for (either by Hughes or Steffes) by a show of hands; and when a majority voted to continue working without a union, Hughes went in to the office again to place a phone call to Andrews The meeting had lasted from about 2:10 p. in. until after 3 p. m. Hughes did not report back to the employees. The notice was still on the board at 4:30 p. m and Patterson paid off the employees in full, including pay for the time spent in the meeting with the committee.5 The plant has not since operated except for 2 or 3 days in June or July, when 4 or 5 employees were called in to complete a shortage on a Government order. On August 3, the Carterville operations were terminated permanently, the inventory and machinery being shipped to Portland. Aside from the foregoing, the only evidence of unfair labor practices was undenied testimony by Robert Ogden that sometime before the May 11 shutdown, and prior to the IAM's campaign, his foreman, Patterson, had a discussion with him concern- ing unions, during which Patterson said he thought it would be better to have a com- pany union among the employees, and that he did not think Mr Andrews would stand for a large union to come into the plant. However, that isolated instance of the expression of personal views by a minor supervisor cannot be found to constitute an unfair labor practice. The conversation appeared to be a casual one, devoid of either coercive intent or effect. Thus Ogden's testimony contained no indication that he regarded Patterson's remarks as other than an expression of his own opinion, or that Ogden assumed that Patterson was speaking for, or that his views reflected the views of, management There is accordingly no support in the record for the allegation of the complaint that Respondents encouraged their employees to form an independent union. Respondents offered no refutation of any of the foregoing evidence. Tuttle admitted that he called Andrews immediately after receipt of the Union's letter of June 1, and that Andrews thereupon directed the shutdown Andrews admitted that Hughes called him on June 1 and tried to persuade him to keep the plant running a few days as Hughes felt he could straighten out the "union trouble" with the employees Hughes requested authority to direct Tuttle not to shut down. Andrews refused, telling Hughes he would not permit a labor union to dictate his plans, and that he was closing the plant down. Andrews testified that the shutdown was due, as in the case of that of May 11, to a mounting inventory of completed products and to a lack of orders, that it was intended "for the time being" as a temporary shutdown, and he implied that the decision had been reached prior to the receipt of the Union's letter. He and Tuttle testified that at the time of the earlier shutdown there were on hand some 850 dozen sprinklers, which number had been reduced to about 400 dozen on May 26, when operations were resumed; that daily production was around 2,500 to 3,000 (i. e., between 200 to 250 dozen) on May 26, 27, and 28, and that on May 28 the inventory had increased to some 1,250 dozen Andrews testified, however, that with a holiday coming up Monday, he decided to give the employees the paid holiday and 1 day's work on Tuesday, and then close the plant until the inventory was reduced again. Andrews' testimony included no explanation as to the time when the decision was reached, or how, in view of the intervening weekend and Memorial holiday, he could have become apprised of the May 28 inventory prior to Tuttle's call on June 1. indeed, Andrews admitted that the order to close the plant was not given until after he got the call from Tuttle. B. Concluding findings There is no denial, on the record, of the acts and statements which the General Counsel's witnesses testified to, as summarized above. However, the record and the contentions of the parties present three main questions for determination, as 4 At some point during the meeting the employees raised a question about their wage rates and about raises Booker went in to the office to "see Mr Tuttle and get the straight of it," and came back with the information the employees sought, stating that it "was straight from the office " 6 At the time of the previous shutdown on May 11, which also fell on a Tuesday, the employees had been paid only through the workweek which ended the previous Friday. A. M. ANDREWS COMPANY OF OREGON 637 follows. (1) Whether Respondents are responsible for the acts and statements of the businessmen's committee on June 1; (2) whether the shutdown was a lockout which was made to discourage union membership; and (3) whether Respondent Oregon was a coemployer of the Carterville employees or was otherwise responsible for remedying the unfair labor practices which are found herein Those questions will be considered in order, the question of Oregon's responsibility being reserved for final consideration since it relates more directly to the framing of an appropriate remedy. 1. Responsibility for the acts and statements of the businessmen's committee It is sometimes difficult to determine the extent to which principles of the law of agency are to be applied in fixing employer responsibility for the acts and state- ments of outsiders who intrude into organizational campaigns of employees. For instance, in L & H Shirt Company, 84 NLRB 248, the Trial Examiner had based his findings of company responsibility for plant speeches by local businessmen on recognized principles of the law of agency, e g, that the affirmance or adoption of unauthorized acts may be inferred from the failure to repudiate them, where the circumstances are such as to require the principal, knowing of the acts, to disavow them unless he approved Id , p. 274, and cases cited. The Board, though affirming the Trial Examiner's finding of company liability, did so "without passing . . . on whether such liability may be based on technical agency principles," holding that "in view of the circumstances in which the statements were made, the Respondent was under a duty to repudiate and deny their validity" and by its failure to do so, it "became responsible for the utterances." Id , p. 252. More recently, however, the Board has acknowledged the applicability of agency principles in determining the question of company responsibility for the acts of a citizens' committee. Thus, in Livingston Shirt Corporation, et at., 107 NLRB 400, the Board held that the evidence failed to establish "the existence of the requisite prima facie agency relationship," observing that- The record is barren of any evidence that Respondent Livingston aided, abetted, assisted, or cooperated with the Respondent Citizen's Committee. Nor did Respondent Livingston allow the Respondent Citizen's Committee the use of company time or property for the distribution of antiunion argument, by either written or spoken words We therefore find no merit in the agency contentions of the General Counsel. Among the cases there cited by the Board, Waynline, Inc, 81 NLRB 511, and Armco Drainage and Metal Products, Inc., 106 NLRB 725, are more closely in point here. In the Armco case the Board found that the employer was responsible for acts of interference engaged in by individual local citizens who made statements to employees implying that the employer would remove his plant from the locality if the union won the election, since the employer aided, abetted, assisted, and cooperated with those citizens in their campaign against the union. In the Waynline case, the Board held that: In view of the actions of the Respondent's supervisors in allowing the Com- mittee to interrogate Faulk and Pye concerning union activities, to urge them to abandon the Union, and to promise them a wage increase, and in view of the Respondent's subsequent payment of these employees for the time they spent with the Committee, a clear responsibility devolved upon the Respondent to disavow the actions of the Committee. [Citing Fred P. Weissman Company, 69 NLRB 1002, 1019, enfd. 170 F. 2d 952 (C. A 6).] By its silence under these circumstances, the Respondent clearly, as the Trial Examiner found, acquiesced in and approved the interrogation of and promise of benefit to, its employees. The evidence in the present case plainly supplied what the Board found lacking in the Livingston case, supra Thus, the Hughes' committee was substantially identical with the one with which Andrews had negotiated for the establishment of the Carterville plant and which had sponsored or financed the construction of the building which was occupied by the plant. The committee appeared on the scene immediately following Tuttle's receipt of the Union's bargaining request and following a call from Tuttle to Hughes. It called a lengthy meeting of employees which was devoted to attempting to settle the "Union trouble" and to procuring, through threats and promises, the employees' renunciation of the Union. During that meeting Hughes and Hooker procured from the office (in which Tuttle was 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seen) the Union's letter to Tuttle and information to answer employee questions concerning their wage rates. The foregoing circumstances, particularly the timing, the place, and the subject matter of the meeting, establish not only knowledge and acquiescence, but actual as- sistance and cooperation by the Company in permitting the use by the committee of company time and property for coercive acts and utterances which it made no attempt to disavow. Indeed, the Company paid the employees for the time spent with the committee. It is, therefore, concluded and found that Respondent Illinois 6 was responsible for the acts and statements of the committee and that it thereby engaged in inter- ference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act, as follows. Hughes' statements that the shutdown notice was Andrews' answer to the Union's bargaining request and that Andrews would not tolerate a union in the plant; his threat that the plant would be moved back to Oregon and the building leased to another tenant; and by conducting, in the foregoing context, the two polls by which the employees' renunciation of the Union was sought (cf. Richards and Associates, 110 NLRB 132). 2. Was the shutdown a lockout made to discourage union membership? The General Counsel's evidence, considered alone, plainly established the allega- tion of the complaint that the shutdown of June 1 was a lockout which was made to discourage union membership and activities. Thus, the plant had operated for only 3 working days following the resumption of operations on May 26, and Tuttle's statements then made that there were sufficient orders and materials on hand for the summer. The shutdown was ordered precipitately, immediately on receipt of the Union's request for recognition and bargaining; and it was followed immediately by the visit of the committee of businessmen who informed the employees in express terms that the shutdown notice was Andrews' answer to the Union's letter, that An- drews would not tolerate a union, and that he would move the plant away. The foregoing facts, none of which were denied by Respondents, plainly showed that the advent of the Union was responsible for the timing of the shutdown (cf. Ten- nessee-Carolina Transportation, Inc., 108 NLRB 1369) and established a case of discrimination under the Act unless overcome by countervailing evidence on Re- spondent's behalf. But the evidence which Respondents offered was wholly inadequate to overcome the General Counsel's case. Even though Respondents' evidence were accepted literally as establishing a mounting inventory and a lack of orders, it does not establish that the shutdown was made because of those facts. Indeed, Andrews' testimony was wholly unconvincing that any decision was made prior to receipt of the Union's letter. Thus, he admitted that the order was given after Tuttle's call, and it is questionable that Andrews could have become aware of the May 28 in- ventory figures prior to that call. But even assuming such awareness, his explana- tion fails to ring true. For if the Company's business and financial affairs were as precarious as he represented, Andrews would not reasonably have decided to aug- ment its losses and inventory by giving the employees a paid holiday plus another day's work. Furthermore, were the shutdown a temporary one and made on the basis of his claims, no reason is suggested why the employees were not properly notified, as on May 11, or why they were paid off in full at the close of the day. But the final and conclusive refutation of Andrews' claims was furnished by Tuttle's undenied statements to the employees on May 26 that the Company in fact had both orders and materials sufficient to last the summer. It is inconceivable, in the face of those facts, that the Company would have reopened its plant, recalled all its employees, and resumed operations for only 3 days of work. Thus, in character and weight, Respondents' evidence was wholly inadequate to overcome the case made out by the General Counsel; it served only to confirm the conclusion that the shutdown was made to defeat the organization of the employees. It is, therefore concluded and found that by locking out its employees on June 1, Respondent Illinois (see footnote 6, supra) engaged in discrimination proscribed by Section 8 (a) (3) and (1). 3. Oregon's responsibility for the unfair labor practices It is difficult to ascertain the exact nature of the General Counsel's theory insofar as it concerns the status of the Oregon corporation as a party to this proceeding. OIt is found under section 3, tinfra, that Respondent Oregon was not responsible for any of the unfair labor practices which were committed at Carterville. A. M. ANDREWS COMPANY OF OREGON 639 Though the Trial Examiner had assumed, from the facts stated in the margin,7 that that corporation was joined to assure the qualification of the case under the Board's new jurisdictional standards, the General Counsel's brief proceeds from the premise that the Oregon Corporation is the Company and the Respondent herein, and that the Illinois corporation is only the name under which the Oregon corporation operates the Carterville plant as a "branch establishment." Further illustrative of the General Counsel's confusion of the identity of his parties respondent is the reference in his brief to Andrews, individually, as the Respondent "who directs, manages and controls both the Portland, Oregon, and Carterville, Illinois, establishments." The point assumes importance here because the shutdown at Carterville has now become permanent, and because it is necessary to determine whether Respondent Oregon may be held responsible for remedying the unfair labor practices. Though the affiliation between the corporations is sufficiently close that the Board may properly consider the operations of both in deciding whether to assert jurisdiction (see section 1, supra), it is not close enough to establish that either corporation is the alter ego of the other (cf. Diaper Jean Manufacturing Company, 109 NLRB 1045; Mt. Hope Finishing Co. v. N. L. R. B., 211 F. 2d 365, 372 (C. A. 4) ); nor does it show that the Oregon corporation was a coemployer of the Carterville employees, that it actively participated in the commission of the unfair labor practices, or that it is to be held responsible for remedying them. Thus the evidence shows that the two companies were separate corporate entities, which separately owned and operated plants in widely separate localities, which em- ployed separate sets of production employees, and which kept separate books and records. Though Andrews, individually, owned the controlling stock interest in the Oregon company, he did not do so in Illinois. In the latter corporation, for example, Tuttle, Brown, and Lesher were obviously in position to outvote Andrews in all stock- holders' meetings, since together they owned 75 percent of the corporate stock. Cf. Mt. Hope case, supra, at p. 372. Significant also as indicative of separate entities was the fact that though Lesher resigned as secretaiy of Oregon on July 26, he did not resign his corresponding position in Illinois. Of further significance, particularly in assessing Oregon's responsibility for commission of the unfair labor practices, is the fact that Tuttle, under whose immediate management the Carterville plant was operated, was neither a stockholder nor an officer of the Oregon company. The evidence also fails to show that common employment conditions existed in the separate plants which the respective Respondents operated, that their operations were integrated, that they had offices at the same address, or that they maintained a com- mon bank account. Cf. Inter-Ocean Steamship Co (Tomlinson Fleet), 107 NLRB 330. This is not a case of a single, or integrated, enterprise, parcelled into production and distribution, or into other convenient segments, by the corporate arrangements of the Respondents themselves. Cf. N. L. R. B v Concrete Haulers, Inc, 212 F. 2d 477, 479 (C. A. 5). The case is also distinguishable from Somerset Classics, Inc., 90 NLRB 1676, enfd. 193 F. 2d 613 (C. A. 2), where the Board found Modern Manu- facturing Co. to be a coemployer of Somerset's employees and held it responsible for the unfair labor practices committed at Somerset's plant. The Board and the court emphasized the ownership, control, and operation of the two companies by the same family and the fact that Somerset depended entirely on Modern for its work. Though the corporate veil may be lifted and the fiction of separate entities may be disregarded on a sufficient showing, the evidence here is not adaquate for that purpose. And, as previously observed, there is no evidence that the Oregon corporation actively concerted or participated with Illinois in the commission of the unfair labor practices. N L. R B v. Lunder Shoe Corp., 211 F. 2d 284, 289 (C. A. 1). Section 10 (c) of the Act empowers the Board to require unfair labor practices to be remedied by those persons who have engaged in such practices. No provision of the Act authorizes the Board to impose the responsibility for remedying unfair labor practices on persons who did not engage therein. Symns Grocer Co., et al (supplemental decision amended), 109 NLRB 346; N. L. R. B. v. Birdsall-Stockdale Motor Co., 208 F. 2d 234 (C. A. 10). 7 The original and the first amended charge named only the Illinois corporation as the employer, and the original complaint, issued on June 28, named only that corporation as party Respondent On July 1, and again on July 1-5, the Board announced widespread changes in the standards which it would thencefoi th observe in determining whether it would tale iii isdiction of a case. It is questionable whether the operations of the Illi- nois corporation considered alone, would meet the new standards However, on August 27, a second amended charge was filed which joined the Oregon corporation as a coemployer, and simultaneously the General Counsel issued an amended complaint which joined that corporation as a party Respondent and which included among its jurisdictional averments a recital of the business operations of that Company. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is, therefore, concluded and found that Respondent Oregon did not engage in, or participate with Respondent Illinois in engaging in, the unfair labor practices found above and that it may not be held responsible for remedying those unfair labor practices. THE REMEDY Having found that Respondent Illinois has engaged in and is engaging in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Illinois discriminated against its employees by the June 1 lockout. Though the evidence establishes that that shutdown was in- tended at the time to be only temporary, Andrews' testimony was to the effect that subsequent evaluation of the Company's business and fiscal affairs led to a decision to make the shutdown permanent .8 It was in the light of those economic considerations (cf. Tennessee-Carolina Transportation, Inc., 108 NLRB 1369) that the plant was closed permanently on August 3. Yet it is clear from the evidence that but for the discriminatorily motivated shut- down, the Carterville plant would have continued operations for some indefinite time after June 1, up to August 3, and that all or many of the employees would have had work during that period. Furthermore, Andrews' testimony showed that the Illinois corporation has not been liquidated; therefore it may conceivably resume operations at some future time in Carterville or at some other location. It will, therefore, be recommended that Respondent Illinois make whole the em- ployees whose names are listed in Appendix A hereto for any loss of pay they may have suffered as a result of the discrimination against them by payment to each of them of a sum of money equal to that which each would normally have earned as wages during such plant operations as would normally have occurred from June 1 to August 3, inclusive, but for the discriminatory shutdown, less his net earnings dur- ing such period, the back pay to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that in the event of resumption of operations at Carter- ville, or elsewhere, Respondent Illinois offer said employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that, in the event such operations are resumed at a location which is not in the immediate vicinity of Carterville, Re- spondent Illinois offer to pay the employees involved any necessary and reasonable ex- pense of moving themselves, their families, and their household effects to the vicinity of the plant at which operations are resumed and in which said employees are offered reinstatement . Cf. Symns Grocer Co., supra Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent Illinois' activities set forth in section III, above, occurring in con- nection with Respondents' operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminatorily shutting down its plant and locking out the employees whose names are listed in Appendix A, thereby discouraging membership in the Union, Re- spondent Illinois has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent Illinois has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 8 Thus Andrews testified that as of May 31 the Coinpany had "sunk" $71,859 78 in the Carterville operations.