Madison Industries, Inc. of Georgia

MADISON INDUSTRIES OF GEORGIA Madison Industries, Inc. of Georgia and Sheet Metal Workers, International Association, AFL-CIO, Local 380. Case 10-CA-7763 June 9, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On November 25, 1969, Trial Examiner Morton D. Friedman issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed cross-exceptions and a supporting brief, along with a brief in answer to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommen- dations of the Trial Examiner, except as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor ' The Trial Examiner apparently made inadvertent errors with respect to certain dates They are hereby corrected as follows in the first paragraph of section 111, B, the date April 8, 1969, is changed to March 10, 1969, and in the fourth sentence of that paragraph March 10 is changed to April 8, in the fifth paragraph of section 111, B, April 10 is changed to April 9 We do not agree with the Trial Examiner that the Respondent violated Section 8 ( a)( I) by its reiteration on May 6 of a promise to increase s ages made before the advent of the Union Since the employees were au are of the increase , we do not believe that Respondent 's reference to it unla%% fully interfered with the employees ' choice as to their bargaining representative See William L Bntuiell Co , Inc , 170 NLRB 204, Stater'r Johnruntille Meats, lnt , 174 NLRB No 94 183 NLRB No. 16 131 Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Madison Industries, Inc. of Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 1(d) and renumber para- graph 1(e) as 1(d). 2. Delete the second paragraph of the notice marked "Appendix." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN , Trial Examiner: Upon a charge filed on April 29, 1969, by Sheet Metal Workers, International Association , AFL-CIO, Local 380 , herein called the Union , the Regional Director for Region 10 of the National Labor Rela- tions Board , herein called the Board, issued a com- plaint on June 11, 1969, on behalf of the General Counsel of the Board against Madison Industries, Inc. of Georgia , herein called the Respondent or the Company , alleging violations of Section 8(a)( 1 ) and (3) of the National Labor Relations Act, as amended (29 U.S C., Sec. 151 , et seq.), herein called the Act. In its duly filed answer to the com- plaint , the Respondent , while admitting certain al- legations of the complaint , denied the commission of any unfair labor practices. Pursuant to notice , the hearing in this case was held before me in Atlanta, Georgia , on July 15 and 16, 1969 . All parties were represented and were af- forded full opportunity to be heard , to introduce relevant evidence , to present oral argument, and to file briefs . Briefs were filed by counsel for the General Counsel and for the Respondent. Upon consideration of the entire record , including the briefs of the parties , and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Georgia corporation, main- tains an office and place of business in Conyers, Georgia, where it is engaged in the metal fabrication and installation of service stations. During the calendar year immediately preceding the issuance of the complaint herein, a representative period, Respondent sold and shipped products directly to customers outside the State of Georgia and per- formed services outside the State of Georgia of a value in excess of $50,000. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 427-258 O-LT - 74 - 10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED representative of the Union at a truckstop. Present at that meeting, among other employees, was Tony Black, another of the alleged discriminatees. At that meeting, the employees compared the con- tracts between various unions and other Madison companies, one at Phoenix, Arizona, another at Tulsa, Oklahoma, and a third at Los Angeles, California. Thereafter, on March 10, Littleton talked with Mr. Ken Hurst, a business representa- tive of the Union Littleton asked Hurst to call a meeting of the employees to further the interest of the Union in the plant. Littleton also wanted to see some of the contracts which the Union had with other companies. After getting the contracts together on April 23, Hurst called Littleton and set up a meeting for April 24, the following day, as soon as the people quit work for the day. The meeting was scheduled to take place at the Veterans of Foreign Wars Club in Conyers, Georgia. On April 24, the meeting began as scheduled about 4:30 p.m The meeting took place in a large room which was about 40 feet from the main entrance door of the club. Those sitting around the table at the meeting had a clear view of the entranceway to the club and anyone en- tering the club through the main entrance could clearly see into the room and to the table around which the employees were assembled Sometime after the meeting had started, perhaps 15 or 20 minutes later, the main door of the club opened and Leroy Gibbons, Respondent's plant su- perintendent, and Floyd Holcombe, the metal shop foreman, entered, passed the entrance to the meet- ing room, and went into the club bar. In approxi- mately another 10 or 15 minutes the main door again opened and Stephen Frey, Respondent's job estimator and sales coordinator, entered, passed the door of the meeting room, and entered the bar. Thereafter, while the meeting was proceeding, Gib- bons, Holcombe, and Frey passed through the hall and passed the door of the meeting room several times. There was ample opportunity for the em- ployees seated around the meeting table to observe this passing and there was equal opportunity for Holcombe, Gibbons, and Frey to see the employees who were seated around the table. After the meet- ing broke up and the employees departed, Gibbons, Holcombe, and Frey all left almost immediately •; While Frey, Gibbons, and Holcombe were in the bar, Tommy Grenade, an employee and member of the club, spoke to Frey and the others and asked if they knew that there was "a Madison union meet- ing in there." Grenade said that he had been in the meeting before but he thought drinking beer was better. On the way home from the club, Gibbons told Frey that he had recognized two employees from Gibbons' shop, Lonnie Tant and Melvin Vaughn.' ' From credited testimony of Kendall Hurst , George Littleton Tony Black , Joel Terry, Mehra Vaughn, and the admissions of Frey ' From the testimony of Frey It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Issues During the Union's organizational campaign among the Respondent's employees, the Respon- dent's officers and supervisors observed a meeting held by the Union and attended by a number of the employees. In addition, the Respondent announced, in futuro, the granting of an additional holiday and a wage increase. Moreover, one of the Respon- dent's supervisors allegedly interrogated an em- ployee concerning the latter's union preference. Finally, the Respondent in an allegedly economic move laid off five employees, two of whom were active in the Union's organizational drive. The compaint alleges and the General Counsel contends that the Respondent's unilateral grant of an extra holiday, the promise of a wage increase, the solicitation of employees to form a committee to deal with the Respondent, and the alleged inter- rogation of an employee by a Respondent super- visor all constituted interference, coercion, and restraint in violation of Section 8(a)(1 ), of the Act. The General Counsel additionally contends and the complaint further alleges that the layoff of the two active union adherents by the Respondent was dis- criminatory and occurred as a result of these em- ployees having engaged in concerted and union ac- tivities for the purpose of collective bargaining and other mutual aid or protection. The layoffs were, according to the General Counsel, in violation of Section 8(a)(3) of the Act.' The Respondent, on the other hand, denies the commission of any unfair labor practices and proffers what it contends to be a lawful explanation for each of the alleged acts of interference, coer- cion, and restraint. With regard to the alleged dis- criminatory layoffs, the Respondent contends that they were economically motivated only and that the selection of the individuals for layoff was made strictly on the basis of business necessity and did not involve discriminatory practice. B. Interference, Coercion, and Restraint 1. The events The union activity among Respondent's em- ployees began approximately April 8, 1969,2 when George Littleton, one of the alleged discriminatees herein, had a meeting with an International I The complaint does not allege, nor does the General Counsel contend, that the observation of the union meeting by company officials constituted surveillance Unless otheru tse specified all dates herein are in 1969 MADISON INDUSTRIES OF GEORGIA To go back, on April 10, the day Littleton met with the union representative, Littleton was given Board pamphlets to hand out at the plant These pamphlets prepared by the Board for the informa- tion of voters in Labor Board elections were then distributed by Littleton and by Tony Black in and about the plant. During this distribution, Littleton was in sight of Floyd Holcombe, whom I find hereinafter to be a supervisor. Black saw another alleged supervisor, Turner, as Black was handing out the pamphlets Later on that day Production Superintendent Gibbons was seen by Littleton with one of these pamphlets in his pocket.5 On April 25, the day after the meeting at the Veterans of Foreign Wars Club, Littleton and Black, among other employees,' handed out union authorization cards both in the company parking lot and in the plant during nonworking time. Littleton carried the cards he distributed in his pocket in plain sight and handed them out openly in the plant during break and at lunch. Floyd Hol- combe was present at times when Littleton passed out the cards. Holcombe was approximately 40 or 50 feet from Littleton at the time. Later on in the same day, Littleton and Hol- combe had a conversation in which Littleton said to Holcombe that he had seen Holcombe at the Veterans of Foreign Wars hall the night before Holcombe answered "Yea, I seen you over there too "' Later that same day, April 25, Littleton was about to clock out at the end of the workday when Holcombe approached him and told him that Christian wanted to see Littleton. When Littleton arrived at Christian's office he was told that he was to be laid off for lack of work. On the same day Tony Black was also laid off as were two other em- ployees. The details of these layoffs and the Respondent's explanation thereof are treated later in this Decision. On either May 5 or 6, the Respondent posted a notice on the timeclock in the plant informing the employees of a new holiday schedule which in- cluded an additional holiday, the day after Thanks- giving. All of the employees who testified with re- gard to this announcement uniformly stated that they had never heard prior to that date of any talk or any discussion from management with regard to the grant of an additional holiday Thus, it is con- cluded and found that this granting of an additional holiday was not announced at any time before the advent of the Union's organizing campaign Rex E. Baker, the Respondent's resident manager, explained in his testimony that the Respondent's labor relations policy is made by a parent corporation with offices in California. He further testified that soon after Thanksgiving of 1968 he spoke to the authorities in the home office From the credited testimony of Littleton Assisting Littleton in handing out the cards beside Black were em- ployees James Berry, Franklin Terry, Lonnie Tant , Jimmy Johnson , Melvin 133 and told them that he would like to see another day established at Conyers for a holiday for the day after Thanksgiving. Baker identified an interoffice communication dated February 3, 1969, which date antedates the advent of the Union's campaign, stat- ing that other subsidiaries of the parent corporation were presently giving the day after Thanksgiving for a holiday to employees of the various subsidiaries who were covered by union contracts and that it would cause less misunderstanding if that policy was maintained in the Georgia plant. This interof- fice memo was signed by the president of the parent company. According to Baker, a notice of company policy from the main office to each of the subsidiary companies dated May 1, 1969, was received by him to be placed in the company manual which listed the new roster of holidays which included the additional holiday of the day following Thanksgiving. Baker immediately posted this notice on the bulletin board and this is the notice to which the employees heretofore men- tioned testified The Respondent, through Resident Manager Baker and Sales Coordinator Stephen Frey, admits that on May 6 the Respondent called a meeting of four of its employees as representatives of the four main departments in Respondent's shop. Present at that meeting representing the Respondent were Baker, Frey, and Production Superintendent Leonard Christian. Among the four employees from the four different departments were Melvin Vaughn and Jimmy Johnson. Both Vaughn and Johnson were told by their respective foremen that they were to attend the meeting. So far as either testified, there was no selection of represen- tatives made by the rank-and-file employees What was discussed at the meeting is not al- together clear. Baker and Frey testified that Baker explained the purpose of the meeting was twofold, first to revitalize a moribund grievance procedure which had been established by management a year earlier and under which no grievances had ever been filed and, second, to create a committee for the purpose of establishing a better means of com- munication between management on the one hand and rank-and-file employees on the other. Vaughn and Johnson, while not directly con- tradicting this testimony, testified that additional matters were discussed They testified that copies of the notice of the additional holiday were dis- tributed Additionally, Baker announced that an ad- ditional wage rate increase was being planned for the following September and steps were already being taken to bring this about However, in con- nection with this announced pay increase, Baker testified that the Respondent regularly, at or about 6-month intervals, gave pay increases and that at the time of the last increase in March, before the V aughn, and Willie Bigsby From the credited undenied testimony of Littleton 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advent of the Union, a pay raise had been given and at that time the supervisors were instructed to in- form the employees that a further increase was being planned for September. Vaughn admitted that he had heard rumors to that effect and John- son admitted that at the time the March increase was granted it was announced that the employees could anticipate a similar wage increase in Sep- tember. Vaughn further testified that a number of "gripes" were discussed at the meeting and the com- pany officials stated that they would see about hav- ing soft drink machines installed in the plant and arrange for breaks during the workday. Vaughn testified additionally that no meeting such as this had ever been held before. Johnson also testified as to other matters that were discussed. One of these was the proposed in- stallation of fans to alleviate the heat conditions in the working areas. It was also announced that meetings such as this would be held every month to attempt to satisfy the employees' grievances. Addi- tionally, the matter of the Union was brought up and Baker told the employees that unions were just a bunch of crooks and were out to get the em- ployees' money. Baker , according to Johnson, then told the em- ployees that over a period of 2 years the Union could get the men only about 30 cents whereas without the Union the employees would probably receive about 60 cents. In connection with the formation of this commit- tee, both Baker and Frey testified that the meeting was called because management had been con- cerned that none of the men had taken advantage of the grievance procedure which had been set up about a year earlier. They knew that there must be some grievances which the men wanted to call to the attention of management and therefore they concluded that it would be a good idea to form a committee which would make the processing of grievances more attractive to the employees. To show that this idea had had its inception prior to the advent of the Union, Frey testified that he had read in the March edition of a publication, The Na- tions' Business, that good management was management which had good communications with its employees. Therefore, it was during this period and prior to the Union's commencemept of or- ganizing activities among the employees that the idea for the formation of the committee had been born. They therefore testified that the advent of the Union did not have anything to do with the forma- tion of the committee Only one other committee meeting was held sub- sequent to the one described above. This meeting was called to tell the employee representatives that there would be no further committee meetings and that the committee was disbanded upon advice of counsel because counsel thought that with the ad- vent of the Union the purpose of the committee might be misinterpreted and might constitute the basis for an unfair labor practice charge On May 5, the day before the meeting, Johnson had a conversation with Plant Superintendent Christian at Johnson's work station. According to Johnson, Christian asked him if he had signed any union cards or how many union cards he had signed. Johnson answered that he had signed just one. Christian did not deny the conversation but stated that it occurred when Johnson brought up the complaint that the California branch employees had better working conditions and benefits than the employees in Conyers and Christian jokingly replied, "How many union cards have you already signed today?" With that Christian walked off. 2 Concluding findings with regard to interference, coercion, and restraint Although the Respondent had no official notice of the Union's campaign among its employees until May 19 when the Union filed a representation peti- tion with the Board, it may readily be concluded that Respondent's management had ample informa- tion that at least some of its employees were in- terested in unionization and that some were ac- tually engaged in organizing activity. Thus, Gib- bons, Frey, and Holcombe had ample-opportunity to observe the meeting of Respondent's employees with Business Representative Hurst at the Veterans of Foreign Wars Club on April 24. Then on April 10 and on April 25, Littleton, Black, and other em- ployees openly and notoriously circulated Board pamphlets and union designation cards in the park- ing lot, at the entrances, and within the plant itself. Moreover, this distribution was observed specifi- cally by Holcombe. It was only after these events and the advent of the Union that projects were effectuated by Respondent's management even though such pro- jects were, perhaps, discussed before the advent of the Union. But, the events that occurred following the union meeting on April 24 followed so closely one upon the other and were timed too closely to the beginnings of the union activity in the Respon- dent's plant to be considered merely coincidental spontaneous activity by the Respondent, not at all related to the attempted unionization of the em- ployees. I do not at this point consider the merits of the layoffs of Littleton and Black which followed their active distribution of Board pamphlets and designa- tion cards However, I do note the other events which followed soon after. First came the an- nouncement on or about May 5 of the additional holiday to be given the day after Thanksgiving, fully 5 months away Second, this may have been given consideration by Respondent's management earlier, but certainly a less critical time for the announce- ment could have been made Then, almost simul- taneously came the attempted formation of the MADISON INDUSTRIES OF GEORGIA combined grievance and communication committee with a reiteration at that committee meeting that the employees would receive a wage rate increase 4 months hence, coupled with disparaging remarks about the Union by Resident Manager Baker. Also, at that meeting, a statement was made that the em- ployees would get twice as much out of the Respon- dent without the Union as with the Union, 60 cents as against 30 cents. I therefore find and conclude that the announced additional holiday, the reiteration of the wage rate increase to be given in September, and the attempt to form the grievance and information committee were for the purpose of discouraging support for the Union. The Act "prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect."" The timing of the decisions to give the employees these newly added benefits and the timing of the announcement of a vacation plan was of crucial sig- nificance in determining the question of the true purpose and therefore the unlawfulness of the Respondent's actions. In connection with the foregoing, the Supreme Court has said, "The dangers inherent in well-timed increases and benefits is the suggestion of a fist in- side the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. "9 I therefore find and conclude that the announce- ment of the granting of the extra holiday, the an- nouncement and reiteration of the wage rate in- crease to take place the following September, and the attempt to form the grievance and information committee were all acts constituting interference, coercion, and restraint of the Respondent's em- ployees calculated to discourage their union activi- ties and therefore violative of Section 8(a)(1) of the Act. As noted above, employee Jimmy Johnson testified that Leonard Christian, plant superinten- dent, asked Johnson if the latter had signed any union cards or how many union cards the latter had signed. Christian admitted asking Johnson, "how many union cards have you signed today9" but stated that he asked the question jokingly. It must be noted that this conversation occurred about the same time that all of the foregoing events took place In light of this, I cannot conclude that Christian's remark no matter how lightly said was not likely to have a coercive effect upon Johnson and upon any employee to whom Johnson related the incident. Thus, I find and conclude that this in- terrogation of Johnson was an additional incident in which the Company was involved in attempting to 135 discourage its employees' union activity and affilia- tion. Accordingly, I find and conclude that the in- terrogation constituted unlawful restraint in viola- tion of Section 8(a)(1) of the Act. C. The Layoffs 1. The circumstances and the defense As set forth above, George Littleton and Tony Black were laid off along with two other employees, Tony Hall and Charles Dalton, on April 25, the day after the meeting at the Veterans of Foreign Wars Club and the same day that Littleton and Black dis- tributed union authorization cards at Respondent's premises. Littleton commenced working for the Respon- dent on June 22, 1966, and worked continuously thereafter until the day of the layoff. At the time of his layoff, Littleton was a brake or press operator and had been such for some months. There is no showing that Littleton performed his work in an un- satisfactory manner. However, there is record sup- port, including Littleton's own admission, that he complained of various jobs that he had held in the plant before that of brake operator, and that at one time when he had been asked to transfer temporari- ly from the job of brake operator to another opera- tion, he had not completely demurred but had ex- pressed his reluctance in no uncertain terms. With regard to Littleton's union activity, he was the instigator of the Union's drive in the Respon- dent's plant and, as shown above, arranged for and called the employees to the meeting at the Veterans of Foreign Wars hall on April 24. Black had worked for the Respondent for a little over a month as a helper on the press in the por- celain department. At an earlier period, for about 8 months in 1966, Black had worked for the Respon- dent but had been discharged at that time for ex- cessive absenteeism. There is no record showing that with regard to his latest employment with the Respondent, there was anything unsatisfactory in his performance. Littleton and Black were laid off at approximate- ly 4:30 on the afternoon of April 25. Earlier that day, both had distributed union authorization cards openly in and about the Respondent's premises. That the Respondent had knowledge of Littleton's activities on behalf of the Union can be inferred from the fact that he was observed in the act of handing out union authorization cards by Floyd Holcombe, the sheetmetal foreman and Littleton's immediate superior. Although there is some doubt as to Holcombe's authority to hire or discharge em- ployees, there is little doubt that he effectively directs the work of the employees in the sheetmetal shop and that the employees follow his directions. Moreover, that Holcombe is more than a leadman is borne out by the testimony of Shop Superinten- "NLRB v E chungeParts Co , 375US 405 ,409 "N LRB v Lsc/wineParts ( o,supra.tt409 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent Leonard Christian to the effect that when Christian returned to work from his shortened va- cation on April 24, he consulted and reviewed his work schedule with Holcombe before taking ac- tion. Although there may be some room for doubt, I conclude on the basis of the entire record that 'Holcombe is a supervisor or at least an employee so closely aligned to management that notice to Hol- combe may be considered as notice to the Respon- dent. From this I infer specific knowledge on the part of Respondent's management that Littleton had distributed authorization cards on Respon- dent's premises on the day of the layoff. Moreover, as stated above, both Littleton and Black dis- tributed the cards openly so that they could readily be observed by anyone in the plant including the upper echelon of Respondent's management. Littleton was laid off at 4:30 p.m. on April 25 by Leonard Christian. When Christian informed Littleton of the latter's layoff he told Littleton that the latter's machine had caught up and that they were going to have to lay him off for lack of work. Upon receiving this news, Littleton asked if he could be transferred to another job temporarily. Christian answered that the Respondent could not put a high paying man on a low paying job, in other words, could not put Littleton on a job which or- dinarily could be performed by a man who was being paid at a much lower rate than was Littleton.10 That Littleton was qualified to perform other jobs within the plant is established by the fact that he had satisfactorily advanced from lower pay- ing jobs to the current job over the period of time that he had been employed in the Respondent's plant. Littleton testified that at the time of the layoff, there was no lack of work for his machine. This testimony was repeated in the testimony of other employees called by the General Counsel. Thus, employee Lonnie Tant testified that there was work available for Littleton's machine on the day the latter was laid off and that the machine did not remain idle for more than a day or two after littleton was laid off but was operated by other em- ployees and ran continuously until Littleton was re- called on June 9. Witness Joel Terry likewise testified that there was sufficient work available for the machine Littleton operated; that other em- ployees were put on Littleton's job on April 28 or 29; and that the machine has run steadily ever since that time up to the date of the hearing. Also cor- roborating this testimony was the testimony of wit- nesses Vaughn and Hamlin. The same type of testimony was offered with re- gard to the layoff of Black. It should be noted, in connection with this layoff, that Black is Littleton's brother-in-law. Besides Black, witnesses Vaughn and Hamlin testified that Black had ample work and that the machine on which Black assisted was never shut down during the entire time that Littleton was laid off. Hamlin, in fact, testified that Black was his helper and that after Black was laid off he was assigned another helper who continued to aid him to work his machine regularly. On its part, the Respondent contends that the layoffs were necessitated by economic circum- stances and that the selections for layoff were made by criteria which were based on sound business judgment and not influenced on any antiunion con- siderations. In support of these contentions, Respondent offered first the testimony of both Re- sident Manager Baker and Sales Coordinator Frey to the effect that Respondent's business is seasonal in nature; that most of its production is the prefabrication of automotive service stations for various oil companies; and that the summer is the Respondent's busiest season, the winter and early spring the slowest. In addition, Baker and Frey testified that one of the Respondent's largest customers, Pure Oil, and the one from whom the Respondent had been expecting its largest con- struction orders for the year 1969, had not placed the contracts because of a curtailment of Pure Oil's building program. Thus, at the time just before the layoffs, a review of the jobs on hand was made, which review led to the conclusion that there was not enough work on hand, or in prospect for the immediate future, to warrant keeping on the full complement of employees. As proof of the foregoing, Respondent in- troduced into evidence its erection schedule as of April 23. Witness Frey, testifying from this schedule, stated that as of that date the shop had scheduled for production only enough sheetmetal work for 104 days of scheduled erection work and had to produce steel work to support 97 days of scheduled steel erection work. In contrast to this, the erection schedule for June 11, 1969, 2 days after the Respondent sent notice to those laid off to return to work, showed that there 188 days of sheetmetal erection work for which the shop had not yet fabricated the metal and there were 173 days of steel work for erection which had not yet been fabricated. Thus, according to Frey, there was an absence of work available for the employees as of April 23 while there was sufficient work as of June 9, the date the notices to return to work were forwarded to the laid-off employees. Accordingly, on the face of the record the workload was much lower in April than it was in June. In addition to the foregoing, there was testimony to the effect that Respondent had laid off em- ployees at former times when work became slow in the shop. Thus although Littleton testified that he had never known of anyone being laid off by the Employer prior to his layoff on April 25, he ad- mitted on cross-examination that a senior em- ployee, one Leslie Johnson, had been laid off " From the testimony of Littleton Christian did not dispute this testimony to any great effect MADISON INDUSTRIES OF GEORGIA 137 several times for a week or two. Lonnie Tant also testified that after he had been employed by the Employer for 1-1 /2 years as a brake operator in the sheetmetal shop he had been laid off for several months for lack of work. In addition to this, witness Terry, another witness for the General Counsel, ad- mitted that in January 1969 five employees had been laid off for lack of work. Additionally, Production Supervisor Christian testified that the foreman in the steel shop quit on April 24, 1969. As soon as the Respondent had made its necessary adjustments to the quitting of the steel shop foreman, it laid off another steel shop employee, Ed Henry, who had been employed for over 4 years. Henry was not one of the four laid off on April 25 but was laid off a week after Littleton. He was not recalled until after Littleton had been recalled. Additionally, an employee quit in the steel shop the next week and he was not replaced Moreover, all of the General Counsel's witnesses who testified that Littleton's machine was being operated all of the time that Littleton was laid off, further testified that there was no overtime work during that period and that the work went along well without the help of Littleton and the others who had been laid off. With regard to the selection for layoff the record shows that Joel Terry attended the union meeting on April 8, 1969 , he attended the union meeting on April 24, and he distributed cards on April 25 Also, James Berry, another employee, distributed cards on April 25 and also attended the union meeting on April 8 Melvin Vaughn, another General Counsel witness, attended the meeting on April 8 and 24 and handed out Board pamphlets on April 10 and union authorization cards on April 25. Yet, none of these employees were laid off on the April 25 layoff. Additionally, Vaughn testified that on April 25 he spoke with Shop Foreman Floyd Holcombe about the meeting at the Veterans of Foreign Wars Club on the previous evening and yet Vaughn was not laid off. Moreover, Sales Coor- dinator Frey testified that Metal Shop Supervisor Holcombe had told him on the evening of April 24 that he had recognized employees Vaughn and Tant at the meeting which the employees were holding at the Veterans of Foreign Wars Club on that date. In addition to all of the foregoing, Christian testified as to the reasons for the selection of the men who were laid off. With regard to Littleton, Christian testified that he discussed with Holcombe and Frey the amount of work and the type of work that was scheduled to come through the shop. It was decided that the big brake, which Littleton operated, would not be needed for the next week or so as much as the other, smaller brake which was being operated by Lonnie Tant. Tant had been a brake operator since 1964. Littleton had been a brake operator only for about 3 months and there- fore Tant was the more experienced and, in Christian's opinion, was the better brake operator. Furthermore, in the past, Littleton had been asked to do some other machine work in the shop besides operating the brake. This was 2 or 3 weeks before they laid him off and while the sectioning man was on vacation. Littleton replied in answer to the request that he not go to the section department and that he did not want to go back there. Although he did not refuse, he just told Hol- combe, his supervisor, that he did not want to go. Accordingly, according to Christian, Littleton was selected for layoff. Furthermore, after Littleton was selected for layoff his brake was operated a few days later for a short time by Lonnie Tant, whose brake was then not being operated at all. Thereafter, employee Grenade worked on the brake a good deal of the time that Littleton nor- mally would have worked on it had Littleton been working. The reason that they did not call Littleton back at that time was that they did not have enough work for both Grenade and Littleton and Grenade was a more senior employee and a very capable brake operator. At the same time the review was made of man- power in the P.E. fabrication shop where Hall and Black worked. In that shop they had two small brakes and decided that Tony Black was the newest man in the department and that Ernest Howard, who was Littleton's helper, had been with the Respondent about 2 years. They decided that Howard was a good employee and that his pay rate was in line with the pay scale in the P.E fabrication shop. As a result, they decided to move Howard to Black's position as a helper and lay Black off. Furthermore, they considered Howard a more relia- ble employee than Black who had previously been discharged some years before because of excess ab- senteeism. Additionally, employee Charles Dalton, who was a helper and a grinder, had been employed at the Respondent's shop only about a week to 2 weeks before the layoff. Since he was the newest em- ployee they decided to lay him off. Additionally, Christian testified that employee Tony Hall was laid off because there was not enough work in the finishing department to keep him busy. It should be noted that neither Hall nor Dalton were in any way involved with the Union. Additionally, the reason that Grenade was not laid off was because he, with all his experience, would willingly perform almost any job in the shop and therefore could be used wherever he would be needed. In contrast, Littleton was not satisfactory in this respect because of his reluctance to perform any work but that of brake operator. 2. Concluding findings with regard to the layoffs As heretofore related, the Respondent contends that there was good economic reason for the layoffs. It cites the seasonal nature of its business, the failure of its largest customer to place expected 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contracts, the erection schedules which showed a dearth of work for the period immediately follow- ing April 23, the increase showed by the schedule of June 11, the fact that although there were a number of quits immediately following the layoffs there was no attempt to replace the employees who quit and that, in fact, employee Henry, a long-time employee, was also laid off about a week after Littleton and Black. Finally, Respondent points to the fact that during the layoff period its work force was ample and that production was not hampered; there was no overtime and there was no replace- ment of employees who had quit or who had been laid off. From the foregoing, I am satisfied and conclude that there was sufficient economic justification for the layoffs since the Respondent's records showed that there just was not sufficient work for the full crew that was working on April 23. Therefore I find and conclude that the only consideration for the layoffs was economic and there was no antiunion consideration for the same. To be decided next is the question of whether the selection of Black and Littleton for layoff was dis- criminatory. In considering this issue, the timing of the layoffs must be considered. They occurred just after the union meeting of April 24 and the very day that Littleton and Black were engaged in dis- tributing union authorization cards in and about the plant. Also, to be considered, as, decided hereto- fore, is the antiunion activity of the Respondent in announcing the additional holiday, the pay increase for the following September, the attempted forma- tion of the grievance and information committee, and the unlawful interrogation. These factors, the timing and the interference, coercion, and restraint raise grave doubts as to the bona fides of the selec- tion of Littleton and Black, union activists, for layoff. However, mitigating against these factors are the facts that other employees, equally as active for the Union, or almost equally as active as Littleton and Black, were not laid off. Also, others who were laid off, including long-time employee Henry, were not in any way associated with the Union Nor does the General Counsel contend that the nonunion em- ployees who were laid off were laid off to camouflage the alleged discriminatory motivation for laying off Littleton and Black. Added to the foregoing are the specific reasons given by Superintendent Christian for the selection of Littleton and Black. In Littleton's case, the latter was the junior brake operator having been on the brake only a few months as contrasted to the years experience of Tommy Grenade and of Lonnie Tant, also a union activist. Also, Littleton had displayed reluctance and displeasure in the past when asked to perform work in the shop other than his regu- larly assigned duties. With regard to Black, he had been employed at this time only for about a month and a half and was not considered as reliable as a more senior em- ployee, especially since Black had been discharged for cause during an earlier period of employment with the Respondent. Thus, considering the record as a whole, I am led to the conclusion, although the situation is not without some doubt, that the preponderance of credible evidence weighs in favor of finding that the consideration for the layoffs of Littleton and Black was economic and nondiscriminatory and that the General Counsel has failed to prove by a preponde- rance of the evidence that Littleton and Black were laid off for antiunion reasons. I therefore conclude and find that the Respondent has not violated Sec- tion 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations of the Respondent as described in sec- tion 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 commerce and the free flow thereof. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be or- dered to cease and desist from engaging in the un- fair labor practices found and take certain affirma- tive action designed to effectuate the policies of the Act It having been found that the Respondent by in- terrogation, promises of benefit, and other means has interfered with, restrained, and coerced em- ployees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom Upon the basis of the above findings of fact and upon the entire record in the case I make the fol- lowing: CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sheet Metal Workers, International Associa- tion , AFL-CIO, Local 380, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. MADISON INDUSTRIES OF GEORGIA 4. By laying off employees George Littleton and Tony Black, the Respondent has not violated Sec- tion 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Madison Industries, Inc. of Geor- gia, its officers, agents, successors, and assigns, shall: I Cease and desist from. (a) Interrogating employees concerning their union activities and their attitude toward the Union. (b) Granting employees benefits such as addi- tional holidays for the purpose of causing its em- ployees to reject the Union as their bargaining representative, or any other labor organization as their bargaining representative. (c) Soliciting its employees to form a committee to deal with the Respondent concerning employee grievances and conditions of employment in order to discourage membership in the Union and to en- courage their employees to reject the Union or any other labor organization as their bargaining representative. (d) Promising employees a wage increase in order to discourage the employees from joining or engaging in activities on behalf of the Union or any other labor organization; provided, however, that nothing herein shall be construed as requiring Respondent to rescind, abandon, or vary any economic benefits or any term or conditions of em- ployment heretofore granted by the Respondent to the employees. (e) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their rights to form, join, assist, or be represented by Sheet Metal Workers, International Association, AFL-CIO, Local 380, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of col- lective bargaining or other mutual aid or protection or to refrain from any and all such activity. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act. (a) Post at its plant in Conyers, Georgia, copies of the attached notice marked "Appendix."" Co- pies of said notice, on forms provided by the Re- gional Director for Region 10, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- 139 cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material No other material relative to this matter shall be posted during this period (b) Notify the Regional Director for Region 10, in writing, within' 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 12 IT IS FURTHER ORDERED that paragraphs 13, 14, and 16 of the complaint herein be dismissed. " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall he deemed caned for all purposes In the event that the Board 's Order is enforced b) a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board " shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " '2 In the event that this Recommended Order is adopted by the Board, this provision shall he modified to read "Notify the Regional Director for Region 10, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herew nh - APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question any employees about their union activities or their attitude toward the Union. WE WILL NOT make promises to our em- ployees of increased wages in order to get them to disaffiliate or disassociate themselves from any labor organization. WE WILL NOT assist and encourage em- ployees to form any committees for the pur- pose of discouraging our employees to join or assist any labor organization including Sheet Metal Workers, International Association, AFL-CIO, Local 380. WE WILL NOT grant additional holidays to our employees for the purpose of causing our employees to reject Sheet Metal Workers, In- ternational Association, AFL-CIO, Local 380, or any other labor organization as our em- ployees bargaining representative. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to join, form, or assist, or be represented by Sheet Metal Workers, International Association, AFL-CIO, Local 380, or any other labor or- ganization, to bargain collectively through 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing, or en- gage in other concerted activity for the pur- pose of collective bargaining or other mutual aid or protection or to refrain from any or all such activity. MADISON INDUSTRIES, INC. OF GEORGIA (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office, 730 Peachtree Street , N.E , Atlanta, Georgia 30308 , Telephone 404-526-5760.