Liberty Coach Co., Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By their conduct described above in section III, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2 ) 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.] Liberty Coach Company, Inc. and Millmen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case No. 10-C.4-4229. July 20, 1960 DECISION AND ORDER On January 8, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions and a supporting brief, a request for oral argument, and a motion to dismiss or in the 'alternative to reopen the record before an unbiased Trial Examiner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner 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 Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the following correc- tions, additions, and modifications. 1. The Respondent's union hostility: We agree with the Trial Ex- aminer that, in precipitately closing its plant and laying off its em- ployees on or about July 25, 1959, immediately after a majority of employees came to work wearing union buttons for the first time, the "We find without merit the Respondent's allegations of bias and prejudice on the part of the Trial Examiner. We are satisfied, on the basis of our scrutiny of the entire record, that he conducted the hearing fairly, that his credibility findings are not clearly errone- ous, and that most of his factual findings, as well as his ultimate conclusions , are sup- ported by the record. See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 1) ; Sealtest Southern Dairies, 126 NLRB 1223; Lewisville Flooring Company, 108 NLRB 1442, 1445 ; The Raser Tanning Co. v. N.L.R.B., 276 F. 2d 80 (C.A. 6), enfg. 122 NLRB 640, a proceeding heard by the same Trial Examiner. The Respondent's motion to dismiss and its alternative motion to reopen the record are, therefore, hereby denied . Its request for oral argument is also denied because the record and the Respondent's exceptions and brief , in our opinion, adequately set forth the issues and the positions of the parties. 128 NLRB No. 24. LIBERTY COACH COMPANY, INC. 161 Respondent was not motivated by "business difficulties," as it asserted, but by a desire to thwart the union organization of its employees- We base this finding in part on the Respondent's antagonism to the- union organization of its employees as evidenced by interrogation, re- marks, and threats. In June 1959, when the plant, a new operation, was being staffed,, Blair, then the plant superintendent,2 told Hardy, an applicant for employment, that the Respondent "was going to pay a wage equivalent to your union and they didn't want the union there . . . don't want to be bothered with them"; told Newman, another applicant, that the Respondent "wasn't going to have no union . . . they was going to pay a wage that the men wouldn't want a union out there"; and asked Threlkeld, when he was hired, whether he had ever been in the Union before and, after Threlkeld admitted that he had, told him "Well, I just want to tell you that the union is not never come [sic] in this building." 2 In addition, employee Dykes testified that Assistant Superintendent Gottschalk asked, when he hired him, whether Dykes had ever worked for a union, to which Dykes replied that he had not, and employee Newman testified that Gottschalk told him, about 2 weeks before the shutdown, that "they was running the other plants without the union and they was going to run that one without the union or else it would be shut down." Gottschalk asserted that this testimony was "not true." The Trial Examiner made no reference to Dykes' testimony in his report, but found that Gottschalk made the remark testified to by Newman. The Trial Examiner, all of whose findings were made "upon the entire record in the case and upon his observation of the witnesses," discredited Gottschalk's denial of Newman's testimony on the added grounds that (1) the statement was consistent with remarks made by Blair, Gottschalk's superior, and (2) the threat to close was carried out promptly upon the employees' demonstration of union adherence by the wearing of buttons. On the basis of these reasons, and of the vague and inconsitent tenor of much of Gottschalk's testimony,4 we discredit his denials and find that Gottschalk asked Dykes if he had worked for a union, and told Newman that this plant, like the Re- 2 The testimony about Blair , who was not employed by the Respondent at the time of the hearing, is uncontradicted . The Respondent apparently made no effort to call Blair as a witness in this proceeding, the Respondent's secretary-treasurer, Bechtold, testifying that he did not know where Blair was . Bechtold originally testified that Blair's de- parture resulted from a mutual understanding, but subsequently testified that Blair was discharged 3 On the basis of the Respondent 's motion after the hearing to correct a typographical error in the record , which the Trial Examiner granted, it is clear that this remark was made by Blair at the time Threlkeld was "hired " and not, as found in the Intermediate Report, when he was "fired." 4 WO find, for example, that Gottschalk's testimony that it was "company policy not to mention union to any employee generally" is, on the basis of the entire record, in- herently improbable. See Valley Steel Products Co, 111 NLRB 1338. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's other plants, would be run without the Union or would be shut down.' We find further that the remark to Newman was clearly coercive, and not, as the Respondent contends, an expression of "opinion" by Gottschalk.' Employee Bobby Lee Powell testified that on "Wednesday before the lay off," July 22, he overheard Leadman Chadwick, whose super- visory status is in dispute, tell another employee that if the "union tried to come in, . . . everybody would be getting two checks on Fri- day," which Powell said he understood to mean they "would be fired." This remark was not denied by Chadwick, who did deny, however, that he made a similar remark to Ira K. Powell on July 24 which was overheard by Dykes who testified about it as is further discussed below. The Trial Examiner apparently confused the two conversations, as he finds that Chadwick denied that he made such remarks on the day before the union organizational meeting, which would refer to July 22. In any event, the Trial Examiner made a finding that he could not accept Chadwick' s denials as credible. He based this, as well as some other credibility resolutions, in part on the fact that much of Chadwick's testimony was elicited through the use of leading questions by Respondent's counsel. There is no doubt that counsel for the Respondent made extensive use of leading ques- tions in examining its witnesses, a few examples of which are set forth in the attached report. The Respondent maintains in its brief that the Trial Examiner's disposition of the testimony elicited by leading questions was evidence of bias on the grounds (1) that "the Trial Examiner told counsel off the record that he did not object to leading questions since they speeded up the hearing," and (2) that practically all such questions were propounded and answered with no objection by counsel for the General Counsel or the Trial Examiner. As the vice in counsel asking his witnesses leading questions is that they suggest the desired answers, which the witnesses, as in the instant case, will often merely adopt, it may seem futile to object once such a question has been asked and the desired answer suggested. In any event, even assuming the Trial Examiner made the statement as alleged by the Respondent, the probative effect to be given testimony thus elicited is for the determination of the Trial Examiner and, upon review, the Board,' with due regard for such considerations as 6 The Respondent evidently was operating elsewhere without a union The only specific reference to another plant of the Respondent was to one at South Bend, Indiana, which Bechtold and Gottschalk both testified was unorganized. 9 "iII" Sys trm, Inc , et al , 118 NLRB 502, 509 4 N L R R , Donnelly Garment Company, 330 U S 219, 236 ; Heat Timer Corporation, 124 NLRB 1256 wigmore on Evidence, 3d ed . sees 769, 770, sets forth the rule that "Question, which so suggest the specific tenor of the reply as desired by counsel that such a reply is likely to be given irrespective of an actual memory , are illegitimate." In our opinion , nevertheless , although it was not prejudicial error not to do so, it would have been better practice for the Trial Examiner to caution the Respondent against such use of le ding questions , on objection by the General Counsel or on his own motion. LIBERTY COACH COMPANY, INC. 163 the extent to which there is corroboration by evidence not obtained with leading questions. Chadwick answered in the negative when asked by Respondent's counsel, "Have you ever used the phrase `two checks' ?" As the Re- spondent withheld 1 week's pay, the phrase "get two checks" was widely used and understood in the plant as equivalent to discharge. In view of the Trial Examiner's findings discrediting Chadwick, and of our findings below discrediting Chadwick as to other matters, and upon the entire record, we discredit Chadwick's denial and find that he made the statement about the employees getting two checks if the Union tried to come into the plant. We also find, as did the Trial Examiner, that Chadwick was a super- visor within the meaning of the Act. The Respondent maintained that the only supervisors at this time were Spencer, president of the Respondent; Bechtold, secretary-treasurer; Blair, plant superin- tendent; and Gottschalk, assistant plant superintendent. Spencer was away from the plant, in the short time it had been operating, for weeks at a time, and Bechtold admitted that he performed his duties largely in an enclosed office, not on the production line. It is estab- lished by the record, and substantially admitted by the Respondent, that the plant had been in mass production for only a few weeks; that there was considerable turnover of personnel ; that the employees, some of whom had never worked on an assembly line basis or on trailer production, were largely inexperienced; that there was no formal training program; that the inexperienced employees needed close supervision; that production depended largely on employee training and that, in July, the Respondent was pressuring the em- ployees to increase their production; and that the Respondent, on July 24, when the plant was shut down, had at least 56 employees, the number laid off. Under these circumstances, we find it incredible that only the superintendent and assistant superintendent were super- vising the manufacturing operations. Moreover, as Gottschalk admitted, some time in July, before the shutdown, Blair and Gottschalk assembled the employees and told them that Chadwick and Moody would be their "leadmen," and would be "in charge," respectively, "over the various departments" of the east bay and the west bay. There were about 25 employees in each bay. There is also a great deal of testimony by employees about Chadwick and Moody assigning work to them, directing their work, and, on occasion, transferring them. The Respondent did not refute this except to the extent that it maintained that Chadwick and Moody could take such action only with the permission of Blair and Gottschalk; but there is no showing that the employees were aware of this limitation on the authority of the two leadmen. The employees also testified that Chadwick and Moody attended manage- 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment meetings. The Respondent admitted that they attended meet- ings with Blair, Gottschalk, and Van Lue, an engineer, and denied only that they met with "top management." Chadwick and Moody -were not laid off when the plant shut down. The Respondent maintains that the Board is precluded from finding the leadmen to be supervisors in this case as, in an election proceeding involving this plant in September 1959,8 the parties stipulated that the leadmen were not supervisors within the meaning of the Act, and they were included in the unit of production and maintenance em- ployees. We find, however, that the representation proceeding did not finally and conclusively resolve the issue of the leadmen's super- visory status, and the stipulation therein did not estop the General Counsel from contending here that the leadmen are supervisors.' As the record in the present case, in which this issue was fully litigated, convinces us, and we find, that Chadwick, during the period here relevant, had authority responsibly to direct employees in a manner requiring the exercise of independent judgment, he was therefore a supervisor within the meaning of the Act. The record also convinces us that Chadwick, as set forth below, was carrying out management's antiunion policy and that the Respondent is therefore responsible for Chadwick's conduct.10 On Friday, July 24, a majority of the Respondent's employees came to work wearing union buttons, which had been distributed at a meet- ing the previous evening.ll The three stewards who were elected at that meeting wore buttons which were larger than the others and designated them as stewards. Two of these stewards, Marks and Minor, and an unidentified employee, also distributed buttons and membership cards at the plant gate before work that Friday morning. The Respondent, which discontinued operations that evening, made clear to the employees during the day its opposition to their union organization. Marks, for example, testified that on Friday morning Blair told him that he would have been discharged that morning if it were not for the steward button he was wearing, accused him of being the "instigator" of the Union, and warned him of discharge if he was caught "huddled" with employees during working hours talking about the Union, although there was no rule at the plant prohibiting em- ployee conversations. Blair, as noted above, did not testify. Chad- wick testified that he heard this conversation, that Blair told Marks, since he was wearing the button and since the Respondent was afraid it would be said that it dismissed him because of the union button, it was not going to dismiss him; and that Blair did not make the other "Case No. 10-RC-448, unpublished 9 Southern Airways Company, 124 NLRB 749 10 Cf. Montgomery Ward d- Co , Incorporated, 115 NLRB 645 - n Gottschalk testified that the first he knew of any union activity at the plant was on Friday when the men came in wearing union buttons, but, when asked if he had heard any rumors about it the day before, admitted that he had. LIBERTY COACH COMPANY, INC. 165, remarks attributed to him by Marks. Chadwick testified , in explana- tion of Blair's remarks, that "I understand this was a conference con- cerning Mr. Marks that morning, and after the buttons showed up, they made a decision not to let Marks go. He was scheduled to be fired that Friday . . . . For not reporting to work." There is no evi- dence whatsoever of the extent to which Marks or any other employee was absent from work. Moreover, all the testimony on this matter, including that of Chadwick, shows that nothing was said to Marks about absence from work . Finally, we note that Marks was recalled after the shutdown . For these reasons, and as we agree with the Trial Examiner's finding that Chadwick's testimony regarding this Blair- Marks conversation did not constitute "either an effective or credible denial," we find that the conversation took place as described by Marks, that it occurred because of his steward button and his organiz- ing activity at the gate that morning, and that the remark was coercive. Employee Phillips testified that he heard a conversation on July 24 between Blair and Gottschalk, both of whom were directly behind him and so near that he "couldn't help but hear them," in which they were discussing "what was they going to do about the fellows wearing buttons." According to Phillips : "Mr. Blair said, well, those wearing buttons will get two checks this evening. Mr. Gottschalk laughed and walked off." Gottschalk, when asked whether this occurred, replied, "Not to my knowledge it didn't, no . . . . Never heard any- thing about two checks," and he replied "No" to the question by Respondent's counsel, "You never used those words?" As with respect to the similar denial by Chadwick that he ever used this phrase, we agree with the Trial Examiner that Gottschalk's denial of Blair's remark was not "convincing." Employee Phillips also testified that he heard Chadwick, on July 24, tell another employee that "the company would close down before they would recognize the union." Employee Dykes testified that, on that same date, he heard a conversation between employee "Ira Powell" and Chadwick in which Powell "told him talking about the buttons and everything, he told him he was going to get him a button,, and Mr. Chadwick said, you better not do that because I heard every- body had a button going to get two checks today." Chadwick denied both of these conversations. Chadwick also testified that he had known Ira P. Powell for 25 years, denied that he ever made any state- ment even resembling that to Powell , and, as pointed out above, denied that he ever used the phrase "two checks." On the basis of all the relevant testimony, we do not credit Chadwick 's denials that he made the remarks attributed to him by Phillips and Dykes. Accordingly, we conclude that Blair and Gottschalk interrogated prospective employees about their union sympathies ; that Gottschalk 577684-61-vol. 128-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Chadwick told employees that the plant would operate without a union or close down; that Blair and Chadwick stated to employees, or in their hearing,12 that they would get two checks, which in this plant meant discharge, if the Union came in; that Blair threatened Marks with discharge because of his union activity; and that the Respondent thereby interfered with, restrained, and coerced its em- ployees in violation of Section 8 (a) (1) of the Act. Moreover, these remarks, as well as the other antiunion remarks found above, form a backdrop of union animus and determination to take drastic measures to forestall union organization against which the shutdown must be viewed.13 2. The shutdown: When the employees left the plant on Friday, July 24, there was no indication of a possible shutdown.14 According to Bechtold, he met that evening with Blair and Gottschalk, and Blair reported on damage to materials and insubordination of employees. Bechtold denied that they talked about the Union, but admitted that "We talked about the buttons, yes." Gottschalk testified that at this meeting the main thing discussed was what "had been happening throughout the plant during the previous week or two," that he had never before met with Bechtold for such a discussion, and that the Union "could have been mentioned" at that time. As Spencer, presi- dent of the Respondent, was out of town, Bechtold was the only officer in the plant at the time. He testified that after this discussion with Blair and Gottschalk "the decision was tentatively made that we would have to stop production until we were able to get things under control again." He testified further that, "On Saturday morning, I decided that I should confirm this with Mr. Spencer, President, so I made a telephone call to Indiana on Saturday morning." Bechtold testified that he told Spencer, who had been away from the plant for 2 weeks or more, what the situation was, that he did not discuss the Union with him "except to tell him that the men were wearing but- tons," and that the "decision to definitely close was made during the telephone conversation with Mr. Spencer in Indiana." Bechtold also discussed the decision to close with Respondent' s legal counsel. When the decision was made to close, Bechtold instructed Gottschalk to tell the employees that the closing was because of "business difficul- ties." Just before that, Gottschalk admitted, they had "discussed the union being at the plant . . . it was obvious." The employees 1® Coercive remarks made by one supervisor to another within hearing of employees at work, and actually overheard by an employee, constitute violations of Section 8(a)(1) of the Act Wright & McGill Company, et al, d/ b/a Sharp Point Fish Hook Company, 102 NLRB 1035, 1037 13 Buckley Development Company, 126 NLRB 1171 ; Sealtest Southern Dairies, 126 NLRB 1223 ; Capitol Fish Company, 126 NLRB 980; The Atlanta Coca-Cola Bottling Company, 124 NLRB 1281. 14 On Friday, July 24, Gottschalk told some of the men who at times worked on Saturday not to come in the next day, but there was no indication that a shutdown was contemplated LIBERTY COACH COMPANY, INC. 167 were told, some on Saturday by telephone, others when they reported for work on Monday morning, that the plant was closed because of "business difficulties." There is evidence that employees were told that the plant might be closed for an indefinite time, from a few days to a month, that those who had tools in the plant should get them, and that they would be notified when to return. There was no men- tion of damaged materials. No employees had been warned in advance of the possibility of a shutdown nor even given any intima- tion of such a possibility. Even Van Lue, the plant engineer, did not hear of the shutdown until about 11 Saturday morning. In determining the real cause of the shutdown, we find significant the precipitateness with which it occurred on the heels of the Union's show of strength by the display of buttons.15 Indeed, there is no con- tention by the Respondent that it had been considering a shutdown before the appearance of the union buttons. On the contrary, the Re- spondent claims that it was discussing, on the morning of the day the plant was shut down, the discharge of an individual, Marks, for absenteeism. The Respondent maintains that closing the plant when it did was made necessary by damage which had been done to materials and parts. We have carefully considered all the evidence about such damage, which must be evaluated, of course, against the facts, noted above, that the damage occurred in a new plant, operating with inex- perienced personnel, with no formal training program; significantly too, although the inexperienced employees needed close supervision, there were at most six supervisors, only four of whom were admitted by the Respondent to be supervisors, including Spencer, who was away from the plant for weeks at a time, and Bechtold, who testified that he spends his time chiefly in the office, particularly when Spencer is away, "working sales, purchasing, accounting finance." Moreover, the Respondent produced no business records based on number of items, dollar value, canceled orders, or any factor more specific than its general assertions, to establish that damage during the week of July 24 made a precipitate shutdown necessary. The lack of such records is especially significant in this case in view of the evidence that some damaged materials could be, and were, used in production; the evidence that the receiving clerk did not examine all materials on delivery; Gottschalk's admission that he did not know whether some damage to materials was caused before or after delivery to the Re- spondent; and Bechtold's admission that there had been "substantial" damage to materials before the week of July 24 due to the inexpe- rience of the employees. 'b See Buckley Development Company, supra ; Sealtest Southern Dairies, supra; The Atlanta Coca-Cola Bottling Company, supra; Heat Timer Corporation, 124 NLRB 1256; E Z Ply Panel Corporation, 122 NLRB 1165, 1172. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, Bechtold admitted that "the extent of the damage was not realized until Saturday morning." And, although his testimony was contradictory about the extent to which he personally viewed the damage reported to him by Blair, he admitted that he went out in the plant with Blair to view the damage "more on Saturday than before because I didn't have the time to be out there during the week...." The Respondent maintained at the hearing and in its brief that dam- age found after the closing justified its determination to close. The issue to be here resolved, however, is not whether the damage was a proper reason for closing the plant, but whether it was, in fact, the reason. We agree with the Trial Examiner that this issue should be resolved on the basis of the situation as it existed at the time of the, closing.16 Bechtold maintained that some of the damage found during the week of July 24, unlike earlier damage, appeared to be "deliberate sabotage." He admitted, however, that this conclusion was based on "assumptions . . . made both by Mr. Blair and myself. . . ." More- over, the claim of deliberate damage is contradicted by Bechtold's tes- timony that one reason for closing was because "we actually in fact were going to have to start all over again with respect to training- employees. ..." Further gainsaying the allegation of deliberate damage is the Respondent's admission that Blair, Gottchalk, and Chadwick -saw some of the damage occur, and could determine from the work assignments which employees were responsible for certain other types of damage, yet no employee was discharged, disciplined, or even questioned 17 that week about such damage at the time it occurred. When Gottschalk, who testified that he had previously dis- charged employees for causing damage he observed, was asked about the week ending on the 24th, he replied, "I can't remember ever firing anybody that week, no." When asked how many employees he ques- tioned about damaged materials and parts, he replied that he did not know. And when asked why he did not discharge these employees at the time they caused this damage, Gottschalk's reply was, "I don't think I can give you an answer to that either." We conclude, under all the circumstances, that the evidence does not support the Respond- ent's claim of sabotage.'° We note other inconsistencies in the Respondent's testimony relating to damaged materials . For example, there was testimony by Mr. and Mrs. Cook, who supply cabinets and other furnishings for the Re- spondent's trailers, about the "hundreds" of such items which were damaged on the Respondent's premises. The Cooks testified that Mr. 1i See Capitol Fish Company, 126 NLRB 980. '- See Sealtest Southern Dairies, supra we find no merit in the argument made in the Respondent 's brief that it was the General Counsel's duty to show "that the union did not authorize and direct the sabotage, slowdown and damage as part of its organizing tactics." LIBERTY COACH COMPANY, INC. 169 Cook checked the materials when delivered to the Respondent's plant and found them undamaged; that these materials were stored in an area designated by the Respondent which its employees "aren't sup- posed to bother at all"; that these materials nevertheless were later found damaged; and that some of the damage was apparently due to deliberate sabotage. Yet, we note that the Cooks repaired or re- placed the damaged items, and the Respondent, on whose premises the damage allegedly occurred, assumed no liability therefor. Also, al- though Mr. Cook, who spent a good deal of time at the Respondent's plant, testified that he found most of the damaged items, the record shows that Blair called Mrs. Cook to come out to the plant to see the damage. Furthermore, Bechtold, who testified that his knowledge of the damage was derived from reports made by Blair, testified that "I have no definite knowledge of cabinet work being damaged. . . ." Inconsistencies appear also in the production data presented by the Respondent to explain the abrupt closing. Bechtold testified that, at the time of the closing, the Respondent was producing 1 trailer a day with about 73 men, but the fact appears to be that the employee com- plement consisted of approximately 56, and that all or practically all of them were laid off when the plant closed. He claimed also that, a few weeks after reopening the plant, the Respondent was producing 1 trailer a day with about 40 men, but the record shows that 45 of the laid-off men returned to work, and it was established, in the repre- sentation case referred to above, that this employee complement was thereafter substantially increased. Moreover, Bechtold testified that six trailers were produced during the week ending July 24 and six the preceding week, and Chadwick testified that approximately four trailers were on his line on Friday, the 24th. As the 16th trailer pro- duced came off the line during the week ending the 24th, it appears that there had been an increase in production, and that Bechtold's one-a-day figure was not entirely accurate. Some of the gaps and inconsistencies in the Respondent's evidence that it had to close because of damage may be due to the fact that Blair, who was not available as a witness, was apparently the plant official principally concerned about the damage. He was the only one who reported damage to Bechtold prior to the shutdown. He called Mrs. Cook to come to the plant and look at the damaged cabinet items. He also spent a good deal of time after the shutdown showing dam- aged items to various people. Moody, the leadman, testified, for ex- ample, that he had discovered one item of damage on Saturday which "supposedly should have been done" on Friday, and that Blair pointed out to him on Saturday several other damaged items. It was also Blair who escorted representatives of the county and city police de- partments around the Respondent's premises and pointed out dam- aged materials to them. These police representatives, however, were 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unable to recall the date when they went to the plant to view the damage, and were vague about the purpose of their visits as they had no experience in carpentry or sheet metal work which would enable them to determine the cause of the damage, and the Respondent did not request an investigation to find those responsible for causing dam- age nor the issuance of warrants against those known to have done so. It appears, therefore, that the Respondent was not so much concerned with determining who caused the damage as it was with establishing a reason for closing the plant. It was undoubtedly for this same purpose that Bechtold, on July 27 or 28, a few days after the shut- down, called in photographers to take pictures of damaged materials, which pictures are in evidence. Further doubt is cast on the Respondent's claim that the closing was due to damage, much of it deliberate, by the fact that the Re- spondent recalled some employees it knew to be responsible for certain damage. In addition, although witnesses for the Respondent reiter- ated that the closing was necessary because of the employees' insubor- dination, only one employee, Leuze, was identified as having been in- subordinate, as well as having caused damage, and he was recalled. Also, although the Respondent claimed that one reason for the closing was the need to retrain the employees, there is no evidence of the inauguration of a retraining program during or after the shutdown. The laid-off employees resumed work at various times beginning on Wednesday, July 29, after the plant had been closed for 2 days. The Respondent claims that there was no damage after the plant reopened. This claim-in light of the facts that the Respondent recalled some employees who had caused damage, that the Respondent was unable in many instances to determine which employees might have caused certain damage, and that the Respondent failed to show that em- ployees had received the further training they admittedly needed- in our opinion casts doubt on the Respondent's claim of damage so widespread and deliberate just before July 24 that it was necessary to close suddenly and without notice. In conclusion, on the basis of the entire record in this case, and, in particular, the precipitateness of the closing, the patent inconsist- encies in the testimony of the Respondent's witnesses about damage to materials, the absence of records kept in the normal course of busi- ness showing increased damage, and the evidence of the Respondent's opposition to union organization of its employees, we are convinced that the Respondent discontinued its operations, immediately after observing that a majority of its employees were wearing union buttons, in order to discourage the union organization of its em- ployees, and not because of damaged materials.19 Accordingly, we 11 See Buckley Development Company, supra; The Atlanta Coca-Cola Bottling Company, supra; Heat Timer Corporation, supra; E Z. Ply Panel Corporation, supra, at 1172. LIBERTY COACH COMPANY, INC. 171 find that the Respondent discriminatorily laid off 56 employees on or about July 25, 1959, in violation of Section 8(a) (3) and (1) of the Act. 3. Failure to reinstate certain employees: The Trial Examiner found that, following the layoff, the Respondent unlawfully failed to recall 11 named individuals 20 He also found that William Thomas Phillips, one of those laid off, was recalled on August 19. For the reasons hereinafter set forth, we agree with the Trial Examiner as to the 11 named individuals but find, contrary to the Trial Examiner, that Phillips was also not recalled. Preliminarily, the Respondent argues that the issue of its failure to reinstate employees was injected by the Trial Examiner and was further evidence of his bias in this case. We find no merit in this argument. In the first place, having laid off its employees in viola- tion of Section 8(a) (3) and (1) of the Act, as found above, the Re- spondent was under a duty to recall them or justify its failure to do so.21 In addition, this issue is expressly raised by the pleadings. The complaint alleges, among other things, that the "Respondent, at all times material herein, has failed and refused to reinstate its em- ployees" named in the complaint as having been laid off and locked out. The Respondent, in its answer filed on September 8, 1959, re- sponded that eight named employees 22 had been discharged for cause. During the hearing, the Respondent placed in evidence an employ- ment analysis showing the dates of reinstatement of 45 of the 56 em- ployees named in the complaint, and indicating that the remaining 1123 had been terminated.24 According to this list, the Respondent began recalling employees on Wednesday, July 29 ; recalled others on various dates thereafter; and by September 15 all but these 11 terminated employees had returned to work. A comparison of the answer giving the names of the 8 employees allegedly discharged for cause with the names of those shown on the employment analysis as having been terminated reflects that a total of 14 employees are listed as having been terminated and/or discharged for cause. Re- spondent's counsel explained at the hearing that 2 of these 14, Mark M. Hardy and Frederick S. Leuze, were reinstated on August 6 and were later terminated; these later terminations are not in issue in this case. In addition, another of the 14, William Thomas Phillips, who is listed on the employment analysis as having returned to work on 0' Matthew Battle, Oscar Earl Day, Billy Dykes, Claude L. Forsythe, Jr, Tommy A. Gibbons, Tom L. Johnson, Bill Minor, Jr., Roy Mitchell, Bobby Lee Powell, James D. Rouse, and Harvey Threlkeld. "See Bituminous Material & Supply Co., 124 NLRB 1007. 22 Bill Minor, Jr., Tommy A. Gibbons, Claude L. Forsythe. Jr., Billy Dykes, William Thomas Phillips, Bobby Lee Powell, Frederick S. Leuze, and Mark M. Hardy za See footnote 20, supra a+ The Respondent explained at the hearing that the employment analysis listed as "terminated" individuals who were no longer employed for any reason. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 19, is listed in the answer as having been discharged for cause. Phillips, however, testified that he was never called back to work. The Respondent excepts to the sstatement in the Intermediate Report that "company records show that Phillips actually was re- called on August 19," and claims that this was a different employee named Phillips. There is, however, only one Phillips named in the charge, the complaint, and the employment analysis; in every instance Phillips is named as William Thomas Phillips; it was William Thomas Phillips who testified; and there was no reference at the hearing to any other person in the plant named Phillips. It appears, from all the evidence, that the Respondent's records to this extent are in error, and that Phillips was never, in fact, recalled. Thus, there are 12 employees who did not return to work for the Respondent after their discriminatory layoff. The Respondent con- tends that of these 12, 6 were discharged for cause 25 and 1 "quit"; 26 there is no evidence in the record as to why the remaining 5 did not return. Like the Trial Examiner, we find unpersuasive the reasons advanced by the Respondent, principally through Bechtold's testimony,27 for failing to reinstate the six employees allegedly discharged for cause. The Respondent, on August 7, notified Minor, Gibbons, Forsythe, Dykes, and Phillips in writing that they were terminated for causing "substantial damage to parts and/or material," and notified Powell that he was terminated for "poor workmanship." Powell, however, had been told by Blair that he "was doing good just to be learning, working there a week," 28 and, while Powell admitted that Chadwick had criticized him, it was not for "poor workmanship" but for not "drilling holes fast enough." There is no showing of how other em- ployees compared with Powell for efficiency or speed. Furthermore, Bechtold was exceedingly vague in his testimony about the reasons for the terminations. He admitted, for example, as to Gibbons, that "The specific reasons I don't recall." 29 Asked if Powell had exercised generally poor workmanship, he replied that "I couldn't say for sure." Bechtold was specific only when incorporat- 25Bill Minor, Jr., Tommy A. Gibbons, Claude L. Forsythe, Jr., Billy Dykes, William Thomas Phillips , and Bobby Lee Powell. 23 Harvey Threlkeld. 24 We do not, however, adopt the statement in the Intermediate Report that Bechtold was the only management representative to testify concerning the terminations. As shown by the report, there was also testimony about the discharges by other management representatives. 28 According to the record, Powell testified that he was hired on July 22, 1959, but this appears to be a typographical error as it is clear from all the testimony that he had worked more than 2 days before the shutdown. 29 Gibbons was allegedly discharged because he ran a truck into a trailer and knocked the steps off. There is no showing that it was deliberate or even due to negligence. Nothing was said to Gibbons about it at the time , although Leadman Moody testified that he saw it occur. LIBERTY COACH COMPANY, INC. 173 ing in his answers the reasons for discharge contained in his counsel's leading questions. And to the extent that he testified about damage, he was not clear as to how it occurred as he is admittedly not a "quali- fied carpenter or sheet metal man" and he testified about poor work- manship and damage by specific individuals on the basis not of his own knowledge but of reports made to him. Moreover, the damage attributed to these employees is not shown to have been greater than that caused by other employees who were reinstated. It is likewise not shown that any of this damage was deliberate, or was caused by carelessness rather than lack of training. Phillips, for example, had been employed only 2 weeks at the time of the shutdown.30 Further, there is no showing that any of these em- ployees was reprimanded or even questioned about this damage,31 although management representatives were present and observed some of these incidents at the time they occurred, nor is it shown that the discharges were due to any additional derelictions by these employees discovered between the time of the shutdown and August 7, when the discharge letters were sent. The Respondent further maintains that Harvey Threlkeld, listed on the employment analysis as terminated, quit his job prior to the shutdown. The record establishes, however, that Threlkeld said only that he was looking for another job; that he was out of work on Thursday, July 23, for this purpose; that he was not successful and returned to work on Friday, July 24; that he was handed a union button at the gate that morning and wore it in to work; u that he worked all that day with no mention by anyone of his quitting; that he reported for work on Monday, July 27, and was told at the gate by Gottschalk and Blair that the plant was shut down because of "business difficulties"; and that he had kept the Respondent informed during the shutdown of his address and telephone number. Chad- wick, who claimed that Threlkeld told him he was quitting, and that he so informed Blair, admitted that, while Threlkeld said he was look- ing for another job, he did not say when he was quitting. On the basis of all the evidence, we are convinced, as was the Trial Examiner, that Threlkeld did not quit his job and that the Respondent was not under the belief that he had quit. 30 Chadwick testified that on July 24, the day the buttons were worn and the plant was shut down , he "went up to talk to Mr. Phillips and Mr. Phillips kinder lost his head up there and began to curse, cursed me for S B and drew a hammer on me . . . Phillips was not recalled for questioning about this testimony. We shall not, however, pass upon this alleged conduct of Phillips as Chadwick admitted that Blair told him, not Phillips, to "keep cool," as Phillips was evidently not reprimanded for this conduct, and as it was not given as a reason for Phillips' discharge. 81 Sealtest Southern Dairies, supra. 33 Blair had been aware of Threlkeld 's union sympathies since he interrogated him on the matter when Threlkeld was hired, and warned him that a union would never be successful there. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent argues that the failure to recall any of these seven employees was not shown to be discriminatory as the General Counsel failed to show that they were union members or that the Respondent was aware of their membership. Gibbons and Minor, however, were stewards, and Minor passed out union cards and buttons at the plant gate on the morning of July 24. Dykes, Phillips, Powell, and Threl- keld were members and wore union buttons on July 24. There is no evidence as to the membership of Forsythe, who did not testify. As all 56 employees were discriminatorily laid off, however, all are en- titled to the same relief, without regard to their union membership or activity, or the Respondent's knowledge thereof,33 unless such relief is denied for good cause, which has not been shown here. The remaining five employees 34 who were listed as having been terminated did not testify and the Respondent presented no evidence regarding the failure to recall them. In its brief, the Respondent stated that all five had refused to come back to work when recalled after the layoff. Under all the circumstances, we shall include these five in our reinstatement order, but subject to compliance investiga- tion. If it appears, in the compliance stage of this proceeding, that these five employees have been recalled in a manner in keeping with the Board's usual concept of adequate reinstatement, the Respondent shall be under no obligation to offer them employment under our Order. In view of the nature of the unfair labor practices which we have found that the Respondent committed, the commission by the Re- spondent of similar and other unfair labor practices may reasonably be anticipated. The remedy should be coextensive with the threat. We shall therefore order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 ,of the Act.35 As Georgia has a right-to-work law, we shall delete from paragraph 1(c) of the Trial Examiner's recommended order the proviso "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act." 31 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 nAmerican Bottling Co., 99 NLRB 345, 352, enfd. 205 F. 2d 421 (CA. 5), cert. denied 346 U S. 921 34 Matthew Battle, Oscar Earl Day, Tom L. Johnson, Roy Mitchell, and James D. Rouse. as See May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U S. 376, affg. as modified 146 F. 2d 66 (C.A 8) ; N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ; Charles H. Seyfert, an individual d/b/a Seyfert Foods Co., 109 NLRB 800, 817. 3e Sharon Hats, Incorporated, 127 NLRB 947. LIBERTY COACH COMPANY, INC. 175 Relations Board hereby orders that the Respondent, Liberty Coach Company, Inc., Columbus, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Millmen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFT,--CIO, or in any other labor organization, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any term or condi- tion of employment, because of their exercise of the right to self- organization or to join a labor organization. (b) Threatening employees with reprisals because of their union membership or activity or interrogating them as to their union affilia- tion or adherence in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Milimen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to all its employees discriminatorily laid off on or about July 25, 1959, and not recalled, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "The Remedy" in the Intermediate Report. (b) Make whole all its employees discriminatorily laid off on or about July 25, 1959, for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy" in the Intermediate Report. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its plant in Columbus, Georgia, copies of the notice attached hereto marked "Appendix." 31 Copies of said notice, to be 37 In the event that this Order is enforced by a 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 a United States Court of Appeals , Enforcing an Order." 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and 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 by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Millmen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFL- CIO, or in any other labor organization of our employees, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against them in regard to hire, tenure, or any term or condition of employment. WE WILL NOT threaten our employees with reprisals, or interro- gate them as to their union affiliation or adherence in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the National Labor Relations Act. 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 labor organizations, to join or assist Millmen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, or any other-labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to all our employees laid off on or about July 25, 1959, because of the plant shutdown, and not recalled, immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them and all our employees laid off on or about that date, because of the plant shutdown, whole for any loss of pay they may have suffered by reason of our discrimina- tion against them. LIBERTY COACH COMPANY, INC. 177 All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union, or any other labor organization. LIBERTY COACH COMPANY, INC., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been filed and served, and a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, was held in Columbus, Georgia, on December 1 and 2, 1959, before the duly designated Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses, and to present evidence perti- nent to the issues. Oral argument was waived. Briefs have been received from General Counsel and the Respondent. Accompanying the Respondent's brief was a motion, hereby granted and made a part of the record, to correct a typographical error in the transcript. Disposition of the Respondent's motion to dismiss the complaint , upon which ruling was reserved at the conclusion of the hearing , is made by the following findings, conclusions, and recommendations. Upon the entire record in the case, and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Liberty Coach Company, Inc., is an Indiana corporation , qualified to do business in the State of Georgia . It maintains an office and place of business in Muscogee County, Georgia, where it is engaged in the manufacture and sale of mobile homes. During the 3-month period since the commencement of operations at its Mus- cogee County plant, the Respondent manufactured and sold products directly to customers outside the State of Georgia at a rate of more than $50,000 a year. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Millmen Local 2768 , United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief issue raised by the complaint is whether or not the Respondent un- lawfully, to discourage membtrship in and activity on behalf of the Charging Union, locked out its working crew of more than 50 employees on July 24, 1959. The Respondent denies General Counsel's claim and affirmatively alleges that its plant was closed on this date "out of business necessity." General Counsel also contends that shortly before the shutdown various repre- sentatives of management threatened such action before they would recognize the Union. Such contentions are relevant to the question of motive for the actual lockout and serve also as claims of independent violations of Section 8(a)(1) of the Act. The Respondent's Georgia plant has had but a short operating history. It opened in early June 1959. "Mass production" of trailers, according to the testimony of 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. W. Bechtold, secretary-treasurer of the Corporation, did not begin until the latter part of that month. Also according to Bechtold, who at the time material to the complaint was the highest-ranking official at this plant, the employees were largely inexperienced in the type of work required of them. That the events at issue, described in sections below, occurred in an atmosphere antipathetic to organization of the employees, is established by undisputed testimony. When employee W. D. Newman was hired in mid-June he was asked by Superin- tendent S. Blair if he was a union member. Newman replied that he had a with- drawal card. Blair then told him that the Company was "going to have no union" and would pay "a wage that the men wouldn't want a union." Shortly before this, when he was making out his application for employment, employee Mark Hardy was also told by Blair that "they didn't want the union there," that "they were going to pay wages enough to keep them out," and that they "don't want to be bothered with them." i B. The shutdown of July 24 Although it appears that some employees had signed application cards earlier than this date, it was not until Monday, July 20, 1959, that a representative of the Charging Union first met with them for the purposes of an organizational campaign. A general meeting of all employees was scheduled for the following Thursday evening, July 23. Some 44 employees attended and all but 1 signed cards. Three stewards were elected: Tommy A. Gibbons, Arthur C. Marks, and Bill Minor, Jr. At this meeting union buttons were distributed and those present voted to wear them at the plant the next day. The stewards were issued special buttons, somewhat larger in size. On Friday morning two of the stewards, Marks and Minor, together with another employee, were at the plant gate passing out cards and buttons. Later the same day Marks was told by Superintendent Blair that had it not been for his steward's badge he would have been fired that morning, accused him of being the "instigator" of the Union, and warned him that he would be fired if caught "huddled" with any of the men during working hours talking about the Union.2 There was no rule at the plant prohibiting talking among the employees. Several days before this Friday Assistant Superintendent H. K. Gottschalk told employee Newman that the Company was running its "other plants without the umon and they was going to run that one without the union or else it would be shut down." 3 On the day before the Union's general organizational meeting James Chadwick, Jr., to whom about half the working force looked for company policy and instructions, told an employee that if the Union tried to come in, "everybody would be getting two checks on Friday," which in employee parlance meant being laid off and paid in full The Trial Examiner concludes and finds that the Respondent must be held accountable for this remark. Its claim that Chadwick was not a supervisor within the meaning of the Act is not supported by its own witness, Assistant Superintendent Gottschalk, who testified that Chadwick "had the authority to do what" he "pleased on the line with respect to assignment of work," with his own and Blair's "per- mission." Gottschalk also said that shortly before July 24 he told all employees that Chadwick and another individual, Moody, "were in charge over the various departments." Furthermore, it is uncontradicted that Chadwick and Moody were i Whether or not such interrogation and remarks by Blair are to be considered as unlawful-and in their brief counsel for the Respondent contend that they may not be so held-they plainly are revealing of top management's hostility toward any organiza- tion of their employees and constitute circumstances of probative value in determining the motive for the Respondent's later action in locking out the employees Blair was not called as -a witness, Bechtold stating that he did not know where he was at the time of the hearing No showing was offered that any effort to obtain his appearance had been made. 2 The Trial Examiner does not consider the testimony of Sanies Chadwick, Jr , a super- visor who said he was nearby when Blair and Marks were talking, that he "did not hear" Blair make the above statements to be either an effective or credible denial His later agreement with counsel's obviously leading question "And Mr. Blair did not make that statement"' is without impressi'.e weight, in the opinion of the Trial Examiner 3 The Trial Examiner cannot credit Gottschalk's denial that lie made this remark Not only was the statement consistent with antiunion remarks made by his superior, Blair, as to which the evidence is uncontradicted, but also with the fact that upon the open demonstration of union adherence on Friday, July 24, the plant was indeed shut down LIBERTY COACH COMPANY, INC. 179 at the plant with management officials on Monday, July 27, after all production employees had been locked out. And whether or not Chadwick is considered to be a supervisor within the strict difinition of the Act, Gottschalk's testimony makes it clear that employees generally were instructed and expected by management to obey and rely upon Chadwick's directions and remarks. On the day before the lockout-when employees began wearing union buttons- Chadwick told an employee that the plant would be closed before the Union got in.4 Directly revealing of the motive for management's decision that night to close the plant is the fact that Blair was overheard telling Gottschalk on Friday that "those wearing buttons will get two checks this evening." 5 Other facts tending to support General Counsel's claim of the Respondent' s illegal motive in shutting down the plant include Bechtold's testimony that on Friday night he discussed with Blair and Gottschalk the wearing of union buttons that day, that on Saturday morning he called his superior, President Spencer, at another plant, and told him "that the men were wearing buttons," and that the decision "to definitely close" was made "during the telephone conversation " During the hearing the parties stipulated that. Almost all employees worked Friday, July 24, but were not told of a shut down. The majority of employees were instructed (by telephone) on July 25 and the remainder at 7:00 am. on July 27 at the plant gate that the plant was closed for an indefinite period and they would be recalled as needed. Some were told the shut down was for "shop" or "business" difficulties, while the company was unable to contact others . . Although Saturday was not a workday, occasionally full plant production took place prior to the shutdown, and on some other Saturdays, certain employees were called in to work. Counsel for the Respondent concede that the following-named employees were: "laid off" after the close of work on Friday, July 24: Adams, Robert Aughtmon, Frank G. Bass, George O. Battle, Matthew Beard, Alfred Birge, Allen M. Byard, Donald L. Cadenhead, E. W. Cannon, M. F. Carden, F. L. Cato, Billy Chandler, J. H. Day, O. E. Dykes, Billy Forsythe, C. L. Gazeaway, E. Gibbons, T. A. Golden, Joe Gore, Henry Gray, W L. Grissett, Willie Hardy, Mark M. Harrison, J. W. Henderson, W. R. Hollis, E. E. Holt, J. A. Hoopaugh, J. C. Hudson, J. L. Hutcherson, R O. Johnson, T. L. Leuze, F. S. Lilly, E. B. Marks, A. C. McClung, M. L. Melton, F. L. Mills, L. J. Mims, E H. Minor, Bill, Jr. Mitchell, Roy Moulton, J. H. Myers, D. L. Newman, W D. Owens, H. C. Owens, Jerry Owsley, Wayne Phillips, W. T. Powell, B L. Rorabaugh, H. Rouse, J. D. Smith, A. L. Smith, Temple Teel, A. B , Jr. Thompson, W. Threlkeld, H. Wallace, Ted Walton, James On Monday, July 27, the Union filed with the Board a charge that the above- named employees were unlawfully laid off. This charge was served upon and received by the Respondent on July 29. Promptly upon its receipt the Respondent be- gan calling back the employees. On various dates between July 29 and September 8 all but the following named were reemployed: Battle, Matthew Minor, Bill, Jr. Day, O. E. Mitchell, Roy Dykes, Billy Powell, B. L. Forsythe, C. L. Rouse, J. D. Gibbons, T. A. Threlkeld, H. Johnson, T. L. 4 Chadwick denied making both remarks attributed to him The Trial Examiner cannot accept his denials as credible As the record shows, of some 90 questions asked of Chadwick by counsel for the Respondent, all but a scant few contained the answer sought And, as noted heretofore, when Chadwick did venture independent testimony, he readily was led to amend it to conform to a leading question. 5 As previously noted, Blair was not a witness. Gottschalk's claim that he "never heard anything about two checks" is not considered to be a convincing denial. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before turning to consideration of the Respondent's claims as to why at least some of the above-named 11 employees were not recalled, the Trial Examiner here concludes and finds that the preponderance of credible evidence fully sustains General Counsel's allegation that the plant was closed and employees discrim- inatorily locked out on July 25 in order to discourage membership in the Union. The antiunion factors leading to this conclusion, including the threats to do precisely what was done immediately upon open display by employees of their union adherence, have been set forth in detail above. On the other hand, the Trial Examiner finds no merit in the reasons advanced by the Respondent through Secretary Bechtold for the sudden lockout. In the first place, as the record plainly shows, Bechtold's testimony on the subject was not in- dependently given, but was largely in affirmation of or prompted by his counsel's questions, and so lacks the impressiveness of direct and straightforward evidence.6 After many pages of such testimony concerning "damage" to materials and work in progress-much of which he neither "discovered" nor learned about until after the lockout-Bechtold was finally asked to relate the circumstances leading to the "decision" to close the plant. Bechtold then said: Well, I had a discussion with two of the top supervisors regarding the general deterioration of the production, the quality of production, the amount of pro- duction, and the damage to materials, and we came to the conclusion that it was so extensive that we should determine who caused it, what was the cause of it, and what we could do about bettering it, because we knew we had to call a halt to it. Well, the decision was tentatively made that we would have to stop production until we were able to get things under control again. He then added that "The decision to definitely close was made during the telephone conversation with Mr. Spencer in Indiana." Bechtold's vague and extravagant generalities find dubious support in specific details, a fact which is reasonably understandable since it is clear that Bechtold him- self is inexperienced in any of the trades involved, that the employees themselves were inexperienced, and that the plant had been in operation but a few weeks. It would indeed have been unusual if, in the initial stages of mass producing house trailers by inexperienced employees, there had not been some faulty workmanship and damage to parts. Furthermore, it appears to the Trial Examiner to be rudimentary logic that if, as a fact, the quality and quantity of production plus damage to materials were the factors considered by Bechtold and upon which the shutdown decision was made, the validity of his claimed motive may in no reasonable way be established by -testimony as to what either he or someone else discovered after the decision had been made. And he admitted that as to such matters as had come to his attention before the lockout, no one was fired. He further admitted that he interrogated no employee regarding any of the claimed "damage." His vague claims as to what was reported to him before the decision to shut down was made are unsupported. Blair, as noted, was not a witness. And Blair's assistant, Gottschalk, admitted that he said nothing to Bechtold about any damage until the night of July 24. As to "'damage to materials," according to Gottschalk there was no way of telling -whether it was caused before or after it was received at the plant. G For example, immediately after being identified, Bechtold was led as follows : Q. I will ask you if during the week preceding July 24, if you were in charge of the plant at that time, in charge of the operations? Were you the senior officer in charge at that time' A. That is correct. Q. I would like to ask you this: During the week preceding July 24, did you not learn of some damage that was being done to material at the plant? A. Yes, I did. * n n • * s s Q Did you begin to notice more of it as the week progressed or was it about the same1 In other words, did it grow in magnitude during the week of July 249 A It positively grew in magnitude during the week as the week progressed Q. Toward the end of the week? A. Yes, sir Q. I would like to-now, these items of damage, many of them you saw and many ,of them were reported to you by people in supervision, is that correct? A. Yes, sir. LIBERTY COACH COMPANY, INC. 181 Bechtold's claim that it was decided to shut down to "determine who caused it, what was the cause of it," finds notable lack of support in the testimony of Detective E. C. McElveen, of the Columbus Police Department, who said he was called to the plant sometime after the lockout. He claimed he saw some damage, but had no way of determining whether it was caused by accident or was deliberate. The vacuity of his testimony as support for the Respondent's claims is apparent by the following colloquy: Q. (By the Trial Examiner.) Well, could you determine who, in your opinion, was responsible for any of this so-called damage that you saw? A. No, sir. Q. What did you do? Were you called out there just to look at something somebody said was damaged? A. Well, I presumed that was it. Q. Were you asked to find out who did it? A. No, sir. It is clear that after deciding to close the plant management consulted attorneys and obtained the services of a photographer to take pictures of certain damage and faulty construction, but it appears that no genuine effort was made to determine the identity of individuals responsible. The device of having police view damage collected and photographed, but not attempt to find out who or what caused it, suggests that it was a belated effort to divert attention from the real cause of the shutdown to a hastily fabricated pretext, after the event. Finally, in the few cases where a specific individual was identified as having done something in error it is established that the fact was known before the general shut- down, yet no disciplinary measures were taken. It plainly would be unreasonable to believe that management would close down all production to obtain facts it already possessed. C. The failure to recall certain employees It has been found above that all employees laid off after the close of work on July 24 were discriminatorily locked out and that 11 such individuals had not at the time of the hearing been recalled. Of these 11 employees, it was stipulated during the hearing that 4 of them (Dykes, Forsythe, Gibbons, and Minor), as well as W. T. Phillips, received a letter from management on or about August 7 stating that their employment was "terminated" because they had "caused substantial damage to parts and/or material." It was further stipulated that on the same date Powell received a similar letter of termina- tion, stating that the reason was "poor workmanship." Bechtold was the only management representative to testify concerning such "terminations " As to Gibbons: When asked by his counsel for the reason Gibbons was dis- charged, Bechtold replied: The specific reasons I don't recall. It was due to damage which was discovered. Bechtold was thereafter openly led into answering in the affirmative as to the following two points: Q I will ask you if he was the one that knocked the steps off the trailer with the truck. Was that reported to you? Q. I will ask you whether it was reported to you whether he caused these inside partitions to be split with nails, so far as you can best determine? As in other matters, the Trial Examiner can place no reliance upon this type of testi- mony. Who, if anyone, reported anything to Bechtold, is not established by credible or competent evidence. There is testimony by Moody, found above to be in charge of part of the plant, that either on July 23 or 24 he saw Gibbons "knock a set of steps off a trailer," but there is no evidence that anything was said or done about it at the time. Whether the steps were "knocked off" by accident or negligence, if the matter had been at all serious, action would have been promptly taken, in the opinion of the Trial Examiner, and not have been delayed for some 2 weeks. The Trial Examiner finds no merit in the Respondent's claim as to the "termination" of Gibbons. As noted heretofore, Gibbons was one of the three stewards who openly wore his steward button on Friday and as previously found was discrimi- natorily laid off on July 25. The failure to recall him was likewise unlawfully discriminatory. 577684-61-vol. 12S-13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to Forsythe : Here again there is only testimony openly suggested by counsel to support its claim . Having come forward with such claim , it was plainly the Respondent's burden to support it with competent testimony .? The testimony itself: Q. I will ask you if you discharged a man named Claude L. Forsythe, Jr.? A. Yes, we did. Q. I will ask you if it was reported to you that he caused the inside parts to be split by driving nails or screwing screws into them? A. Yes. Q. I will ask you if it was reported to you that he had knocked holes through the roof with a hammer when he was nailing the partitions to the roof? A. That was reported to me. In short, the Trial Examiner is of the opinion and finds that there is insufficient evidence to support the Respondent's claim as to why it "terminated" Forsythe. Its failure to recall him was of a pattern with its discriminatory objective in causing the shutdown. As to Dykes and Phillips: Again Bechtold replied in the affirmative when asked if these two were "let go" because it was reported to him that they had "put on side panels all the way along the side of a trailer on July 24 improperly ?" The only support this suggested affirmative has is in the testimony of Supervisor Chadwick to the effect that at the time of this incident both he and Superintendent Blair were standing there and watching Dykes and Phillips "put the top course on a trailer wrong." Had the error been of a serious nature, it appears clear that Blair would have taken prompt disciplinary measures at once and not have waited 2 weeks. Furthermore, company records show that Phillips actually was recalled on August 19. As to Bill Minor: Again Bechtold was led to reply in the affirmative by being asked if this employee was let go because it was reported to him that he had "knocked the bottom through on the trailer under the heating unit." Unsupported by other credible testimony, the Trial Examiner considers it insufficient to sustain the Respondent's claim. As heretofore noted, Minor also was plainly known by management to be a union steward The Trial Examiner finds, contrary to the Respondent's contention, that Minor's "termination" was of the same unlawful design as his layoff. As to Powell: Bechtold, being asked the reason for "letting him go," independently answered, "As I recall, it was a case of drawing pictures on the side of trailers " It appears that this answer failed to impress even his own counsel , for the attorney then led with the following question , "Was it reported to you he exercised general poor workmanship?" Bechtold replied , "I couldn't say for sure." Finally counsel pressed with • "Well, in other words, I am trying to get down to the reasons for the discharge being made at the time Was he a good worker or poor worker9" Bechtold then answered, "Well, he was reported to be a poor worker." Bechtold failed to state, however, either from whom he received any such reports or the specific nature of them. In short, as to Powell 's termination, the Respondent did not sustain its burden The failure to recall him was of a pattern with his unlawful layoff As to Threlkeld: Counsel for the Respondent claimed during the hearing that he "quit " Not only is this claim inconsistent with a document placed in evidence by the Respondent itself showing that this employee was "terminated ," but it has only the dubious support of testimony by Chadwick , whom the Respondent claims is not in a supervisory position. As in other matters , Chadwick's testimony concern- ing this employee consisted mainly in agreeing with the leading nature of the ques- tions put to him. He replied in the affirmative when asked if Threlkeld had told him he was going to quit and that he had so reported to Blair. Chadwick's own independent testimony is in agreement with that of Threlkeld to the effect that the Thursday before the layoff he did stay out of work to look for another job . Credible evidence establishes, however, that he did not locate a job, returned to work and did work on Friday, was observed by Blair to be wearing the union button, was told by Blair that the "union would never come into the plant ," and on the following Monday morning was told by both Blair and Gottschalk at the plant gate that the plant was shut down for "business difficulties " The Trial Examiner finds in the record no credible support for counsel's claim that Threlkeld "quit." The failure to recall him was of the same unlawful pattern as his layoff. As to the remaining five employees who, according to the Respondent 's records were also "terminated" and not recalled to work after the layoff ( Battle, Day, 7 Quaker State, Oil Refintng Corporation , 121 NLRB 334, 337, 338. LIBERTY COACH COMPANY, INC. 183 Johnson, Mitchell, and Rouse), Bechtold was not questioned as to why they were not reemployed. Since there is no evidence to support any claim by the Respondent, the Trial Examiner concludes and finds that the failure to recall was an extension of the illegal layoff of July 25. D. Conclusions in summary In summary, the Trial Examiner concludes and finds that the precipitate shutdown and layoff of the 56 employees listed in section B, above, was in retaliation for the open display, on the same day, of union buttons at the plant indicating union adherence, and for the purpose of discouraging such membership. This action, prompted by a discriminatory motive, was clearly unlawful. (Pepsi Cola Bottling Company of Montgomery, 72 NLRB 601; J. B. Wood, an individual, d/b/a Wood Manufacturing Company, et al., 95 NLRB 633.) By this unlawful discrimination, and by the following action described heretofore: (1) Superintendent Blair's inter- rogation of employees as to their union membership at the time of hiring, (2) Assist- ant Superintendent Gottschalk's declaration to employee Newman that the plant would be closed before a union would be recognized, and (3) Supervisor Chadwick's statements that the plant would be closed before the Union got in, and that the men would get two checks that Friday, the Respondent has interfered with, re- strained, and coerced employees in the exercise of rights guaranteed by the Acts IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer immediate and full reinstate- ment to all employees listed herein, who have not been recalled since the layoff of July 25, to their former or substantially equivalent positions, without prejudice to their seniority rights and other privileges, and make them and all other employees named herein, who were discriminatorily laid off and locked out on July 25 and thereafter, whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he would have earned as wages, absent the discrimination against him, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440. It will be further recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. 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. Millmen Local 2768, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees listed herein, thereby discouraging membership in the above-named labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. 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 The Trial Examiner finds the evidence insufficient to sustain the allegation of the complaint that Chadwick engaged in surveillance of a union meeting in September 1959.