V. E. Anderson Manufacturing Co.

V. E. ANDERSON MFG CO V. E. Anderson Manufacturing Company and Local 424, Sheet Metal Workers ' International Associa- tion, AFL-CIO. Cases 26-CA-3443 and 26-CA-3483 July 7, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On February 24, 1970, Trial Examiner Marion C. Ladwig issued his Decision in these proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision He also found that Respondent had not engaged in certain other unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner as modified herein. The Trial Examiner found that the Respondent did not violate Section 8(a)(I) of the Act when Plant Manager Carden allegedly treatened to fire employees Gannon and Miller if the employees walked out again. Carden denied making the foregoing statement and gave a different version of the incident and the Trial Examiner found it un- necessary to resolve the conflict in the testimony but dismissed this allegation of the complaint on the apparent ground that Carden's subsequent apology constituted an immediate retraction of the statement which was sufficient to nullify its coer- cive effect Assuming arguendo that such a state- ment was made, we do not agree that Carden's apology, which was general in nature, factually or legally would have amounted to a retraction of the 459 specific threat As the credibility issue on this point is unresolved and the finding of a violation in this matter in any event would be cumulative, we find it unnecessary to make any finding on this point ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recom- mended Order of the Trial Examiner and hereby orders that Respondent, V. E. Anderson Manufac- turing Company, Woodbury, Tennessee, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C LADWIG, Trial Examiner: These con- solidated cases were tried at Woodbury, Tennessee, on November 19-21, 1969,' pursuant to charges filed by Local 424, Sheet Metal Workers' Interna- tional Association, AFL-CIO, herein called the Union, on August 15 and September 15 (the latter charge amended on November 3), and pursuant to a consolidated complaint issued on October 1 (and amended at the trial). The primary issues are whether the Respondent, V. E. Anderson Manufac- turing Company, herein called the Company, (a) postponed establishing a second storm door line at its plant during the Union's organizing drive in order to discourage unionization, (b) discrimina- torily laid off and delayed recalling nine employees, and (c) made threats to discharge employees and to close the plant, granted wage increases to discourage union activities, instructed employees not to wear union buttons on the job, and engaged in unlawful interrogation, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Upon the entire record,' including my observa- tion of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE UNION INVOLVED The Company is a corporation which is engaged in the manufacture of storm doors and mobile home doors in its plant at Woodbury , Tennessee ' All dates, unless otherwise indicated, are in 1969 t The General Counsel's December 31 motion to correct the transcript is granted and the transcript is corrected accordingly 184 NLRB No 50 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the past 12 months, it received goods valued in excess of $50,000 directly from outside the State and shipped products valued in excess of $50,000 directly to points outside the State. The Company admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A Layoff of Senior Employees The Company began manufacturing storm doors in 1965 at a plant in Manchester, Tennessee. In March 1969, it moved the existing storm door production line to a new plant in Woodbury, about 25 miles away, where it planned to manufacture also "Woodbury" and "CHD" mobile home doors It transferred 19 of its Manchester area employees to the new location, and within 2 or 3 days, its storm door operations were "close to normal." (Production averaged 150 doors a day in late April, and 170- 180 a day at the time of trial, in November.) In July, the Company decided to add a second storm door line, ordered production facili- ties for the new line, and began putting extra men on the existing storm door line in order to increase production and to train employees for the second line. Plant Manager Lloyd E. Carden admittedly told employees, prior to August 22, that the Com- pany was selling more storm doors than it was producing at the time. Meanwhile, problems plagued the production of both the Woodbury and CHD mobile home doors The Company had planned to manufacture (with seven or eight employees) 100 Woodbury mobile home doors a day, but it produced only about 700 between April 1 and August 22. Because of poor engineering, there were "several basic faults in the door." Around August 10, the Company learned that many of the doors would be returned as defec- tive. The first group (a shipment of 88) arrived back at the plant about August 19 or 20 Hundreds of the doors had to be scrapped, and the Company lost many of its Woodbury door customers. Produc- tion of the CHD ("combination house-type door") mobile home doors was also slow. Since May 1, when production began, only about 300 had been produced-an average of only 4 a day. As produc- tion progressed, many changes had to be made. A shipment of 99 defective CHD doors was later returned to the plant on October I The Company was experiencing considerable dif- ficulty in obtaining and retaining qualified produc- tion employees. On August 22, only six of the em- ployees transferred from the Manchester plant in March (Jerry Barnes, Howard Brandon, Creek, Neeley, Frank Reed, and Rogers) remained on the plant payroll. A number of employees were quitting for better jobs. (The Company had a beginning rate of $1.60 an hour for all new employees, and max- imums of $1.80 and $1.90 for all jobs except a maximum of $2 for the miter saw operator on the storm door line.) Plant Manager Carden testified, "we had problems with turnover and getting the quality of men we wanted." As discussed hereafter, there was repeated strike activity at the plant in early August The leadman on the Woodbury line was a leader in all this activi- ty, and all the other Woodbury line employees par- ticipated each time The Union began organizing, requested recogni- tion on August 5 or 6, and filed a petition for an election on August 15. Sometime between then and August 22, when regular production on the Wood- bury line was halted, the Company decided to lay off the entire Woodbury line These seven em- ployees included the leadman, Lloyd Gannon, who was one of the first employees hired at the new plant (on March 19), and four other senior em- ployees, Terry Mullinax, James Owens, Grady T. Parton, and Kenneth W. Thomas (all hired in May). Within the preceding 2 weeks, Gannon had received a 15-cent hourly wage increase (as lead- man), and Mullinax, Owens, Parton, and Thomas had received 10-cent increases. The two others on the Woodbury line were junior employees, Vernon L. Barnes and Jimmy Simpson, both hired in July. The first notice of the layoffs was given on the af- ternoon of August 22, when Plant Manager Carden read a written speech to the employees. In the same speech, he also announced a delay in installing the second storm door line, and the layoff of the three extra men who were being trained on the existing storm door line for assignment to the second storm door line. (They were Horace Ferrell, Charles M. Sain, and Charles Thompson, all employed August 5.) Carden gave no reason in the speech for not proceeding with the establishment of the second storm door line, gave no reason for laying off the senior employees while retaining seven junior em- ployees (hired in July) on the storm door and CHD mobile door lines, and said nothing about ever re- calling any of the laid-off employees. The General Counsel contends that the delayed expansion of the second storm door line and the reduction in the work force were discriminatorily motivated, that the Woodbury line employees were laid off instead of being reassigned because of their strike activity and supposed union support, and that the three most junior employees on the storm door line would not have been laid off in the absence of the Company's discriminatory motivation. The General Counsel contends that the discriminatory motivation was particularly revealed by the timing of the layoffs (7 days after the Union's election petition), the discriminatory selection of employees to be laid off, the Company's 8(a)(1) violations and announced opposition to the Union, and its failure to recall any of the laid-off Woodbury employees until after the election, although recalling and hir- ing others in the meantime V. E. ANDERSON MFG. CO The Company contends in its brief that "The record lacks substantial evidence to support any finding that Respondent curtailed the expansion plan for a second storm door line to discourage unionization or that there was a discriminatory delay \in recalling laid off Woodbury door line em- ployees." The brief cites the evidence of "problems experienced on the Woodbury door line," as well as the evidence that the CHD doors "were not by any means flawless and were subject to numerous mechanical improvements," and "evidence of the return of a large quantity of defective CHD doors." (The CHD doors were returned on October 1, about 6 weeks after August 22. None of the four CHD employees was laid off.) The Company then argues in its brief that "it appears within the realm of normal good business practice to act as this Respondent acted under these circumstances, to wit, delay expansion of the storm door line until quality and production standards had improved... Similarly, there is a lack of substantial evidence that the recall of laid off employees was effectuated in a discriminatory manner." The 8(a)(1) allegations and other circumstances of the layoffs and recalls are now considered. B. Alleged 8(a)(1) Conduct 1. Threat of discharge About 9 o'clock on Friday morning, August 1, the 1 1 employees assigned to the mobile home door lines went on strike, seeking higher wages and other benefits. They returned to work about an hour and a half later, after reaching an understanding with Plant Manager Carden that he would consider their requests and that they would give him a week to do so. A short time after the employees returned to the plant, Carden went to the Woodbury production line and spoke to leadman Gannon and employee Roger Miller. The evidence is in sharp dispute about what Carden told the employees. Carden testified that he went "to the two men I considered to be the spokemen for the men" and "I told them I had asked for a week to consider the requests that they had made; that we had production to get out and we could not get our production out if they were going to be walking out every few minutes. I told them I did not want any more walkouts." Gan- non recalled that Carden said he felt Gannon and Miller were the leaders, that he did not want it to happen again , and that if it did he was going to fire or dismiss both of them. Employee Grady Parton testified that he did not overhear the conversation, but that Gannon and Miller "came over and told me and some other guys that Gene Carden threatened to fire them if we walked out again." Miller testified that Carden told him and Gannon, "You two boys seem to be spokesmen, ring leaders of the whole thing," and that "If this occurs again you two guys will be dismissed." However, in his 461 pretrial affidavit, given on September 24, Miller stated that Carden told Gannon and him that they seemed to be the spokesmen, "you do all the talk- ing outside," and then walked away without saying anything else. Because of what happened immediately after this conversation, I find it unnecessary to resolve the conflict in testimony. It is undisputed that after Carden walked away employees from the Woodbu- ry line and others then started back out on strike, and Carden met them at the water fountain and apologized (for threatening to discharge the two employees, as recalled by Brandon, or stating "I am sorry if you think I am getting smart," as testified by Carden). The employees returned to work. Thus, if a threat had been made, it was retracted forthwith. I shall therefore recommend dismissal of the allegation in the complaint that Carden on Au- gust 1 threatened employees with discharge for en- gaging in protected concerted activities Nevertheless, I attach some significance to this incident It is clear, even from Carden's version, that he regarded leadman Gannon as one of the leaders of the strikers. Furthermore, not only Gan- non but all the other Woodbury door line em- ployees (whom the Company later failed to reassign on August 22) again demonstrated their discontent with the Company and their intention of going back on strike a second time that day, when they went as far as the water fountain where Carden was and talked to them. 2. Threat to shut down plant A second strike did occur on Monday morning, August 4, when the Company discharged two em- ployees, Miller and LaFever (Neither of them is al- leged as a discriminatee ) This time, 20 of the plant employees (including all those on the Woodbury line) went on strike and sought union representa- tion. A day or two later,-the Union verbally requested recognition, which was refused. Thereafter, the Union made a written request for recognition on August 7 and filed a petition for an election on August 15. On the first day of this strike, one of the nonstrik- ing employees working behind the picket line, Howard -Brandon (who lived near Manchester), talked to Plant Manager Carden about bringing in some strike replacements. According to Brandon (who impressed me as an honest, forthright wit- ness), Carden approved and told him to bring in three to four to six men, if they were not union men. Carden admitted asking Brandon to bring in em- ployees to work, but denied asking him to bring in employees who were against the union. (At various times when Carden was denying testimony given by other witnesses, as when he gave this denial, his face became flushed and he appeared quite agitated.) I credit Brandon's version of what was said. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next morning, August 5, Brandon brought two applicants, Horace Ferrell and Charles Thomp- son, from Manchester. Both, after being hired, worked behind the picket line That afternoon, as Brandon credibly testified, he told Foreman Ed- ward Mazarra that he was quitting and went home. That evening, Mazarra and Plant Manager Carden went to his home to try to persuade him to return to work. In the conversation, Carden told Brandon and his wife about the strike, and said that if the employees (in Brandon's words) "did not come in and stick together the union would come in the plant and the plant would be closed " Brandon's wife, Barbara, testified, "Harry had quit work. Then they came and said they wanted him to come back to work They wanted him to come back to work and bring his riders to keep the plant open He would have his job They said if the union would come in they would close down the plant." (She also impressed me as a credible witness ) Brandon agreed to return to work The Company called three witnesses to testify about this incident. One of them, employee Frank Reed, asserted that he "sure did" hear Brandon telling Foreman Mazarra that Brandon "wasn't going to be back the next morning." (This confirms Brandon's testimony that he told Mazarra that he was quitting.) Reed then testified that Brandon "told me the next day Gene and Ed came up to his house and got him to come back to work and Gene promised him a raise." The Company's other two witnesses had a different version. Mazarra testified that he heard that when Brandon "left the plant that he had made a comment he was tired of being harassed and threatened and he was going to leave the employment of the Company. I got to Gene Carden and told him what I had heard." Although agreeing with this version, Carden corroborated the Brandons' testimony to some extent when he testified that at their home on that Tuesday even- ing, August 5, "1 explained we needed to keep production running during the strike We needed him and the men that rode with him. I asked him to return to work the next day." Both he and Mazarra denied that anything was said about closing the plant. When asked on cross-examination whether he talked to Brandon "at all about the Union" at Brandon's home, Carden first gave a positive answer, "No." Later when asked whether the Union was mentioned in connection with the strike, he answered, "I will not say definitely we would not say the name Sheet Metal Workers Union We may have." (When so testifying, he appeared to be seek- ing plausible answers, rather than attempting to recount accurately what had happened.) Whereas the Brandons impressed me as trustworthy wit- nesses, I was not similarly impressed by the demeanor of Carden and Mazarra as they testified about this incident . I credit the Brandons' testimony about what happened Accordingly, I find, as alleged in the complaint, that at the home of an employee Plant Manager Carden made the threat that, if the Union got in, the plant would be closed, thereby violating Section 8(a)(1) of the Act. 3. Granting wage increases During the second strike, the employees con- tinued to seek a wage increase and other benefits, in addition to seeking the reinstatement of the two discharged employees The strike was settled on Wednesday, August 6, in negotiations between Plant Manager Carden and three employees (one of whom was leadman Gannon). Carden agreed to change Miller's separation notice to show that he quit for a better position and agreed to give further consideration to the employees' wage and other strike demands The employees (except Miller and LaFever) returned to work the next morning, Au- gust 7. Two days later, on August 9, the Company in- creased the employees' 90-day wage progression rate from 5 cents to 10 cents an hour and granted a wage increase to 14 of its 36 employees All the in- creases were at the new 10-cent progression rate, except three in the amount of 5 cents, which were given to senior employees whose wages were al- ready within 5 cents of the maximum rates for their classifications. Leadman Gannon and another lead- man were granted additional 5-cent increases, total- ing 15 cents for each of them. Most of the increases were given about 2 or 3 weeks before the expira- tion of 90 days since the date of hire or date of last increase, but the Company had in the past some- times given such raises early. The wage increases were given to senior employees on the Woodbury line as well as to some of the other senior em- ployees and to strikers as well as nonstrikers. The raises were apparently given on the basis of merit Discrimmatee Grady Parton gave credited, un- disputed testimony that, when Foreman Pat Stin- nett advised him of the 10-cent raise, Stinnett said, "I made him a good hand and everybody wasn't getting that raise." (Parton, as previously men- tioned, was not reassigned when the Woodbury door line was shut down on August 22 ) In contrast, one striker and one nonstriker, Melton and Wood- ward, did not receive any raise even though they had been employed more than 4 months and 3 months, respectively (I note that both Melton and Woodward were retained on August 22.) Plant Manager Carden testified that the employees who "deserved" raises got them The complaint alleges that the wage increases were given in order to discourage the employees' union activities The Company had promised a week earlier, before the advent of the Union, to give consideration to the employees' strike de- mands, including higher wages, and the employees had returned to work with the understanding that the Company would give its answer within a week. Later, the second strike was settled after the em- ployees were assured that their wage and other V. E. ANDERSON MFG. CO. strike demands were still under consideration for the remainder of the week . It was on Saturday of that week that the Company increased its 90-day wage increment from 5 to 10 cents and granted the merit increases to senior employees only. Under these circumstances, I find that the Company, faced with a high labor turnover and repeated strikes for higher wages , was motivated by economic factors in granting the increases . Even though the Union had sought recognition in the meantime, I find that the General Counsel has failed to prove by a preponde- rance of the evidence that the granting of the in- creases was for the purpose of inducing the em- ployees not to support or vote for the Union In the absence of such proof of unlawful motivation for taking this particular action , I shall recommend dismissal of the allegation . Tonkawa Refining Co., 175 NLRB 619, N.L R.B. v Exchange Parts Com- pany, 375 U.S. 405 4. Wearing of union buttons prohibited The complaint alleges, and the Company ad- mitted in its answer , that , during the latter part of August , Foreman Pat Stinnett " told employees at the plant to remove union buttons from their clothing " Leadman Gannon credibly testified that some of the employees started wearing union but- tons ( described as small pins ) in the plant after returning from the second strike, that Foreman Stinnett " told me to tell them not to wear them in the plant," and that he heard Stinnett ask three of the employees to remove their buttons. This testimony is undisputed. At the trial, the Company counsel admitted in his opening statement that Stinnett did erroneously tell one employee on one occasion to remove a union button, but contended that Stinnett was advised to the contrary , and that the employee was permitted thereafter to wear the button There is no evidence to support the counsel 's contentions , nor any evidence that Stinnett advised the other employees that they had the right to wear the buttons, or otherwise nullified the coercive impact of his prohibition against their exercise of the protected right to demonstrate their support of the Union in this way I find that the Company 's action in telling employees at the plant to remove union buttons from their clothing was coercive and violated Sec- tion 8(a)(1) of the Act. Central Soya of Canton, Inc., 180 NLRB 546; Consolidated Casinos Corp , 164 NLRB 950 5 Unlawful interrogation As already found , Plant Manager Carden told nonstriker Howard Brandon on August 4 (the first day of the second strike ) that Brandon could bring in strike replacements if they were not union men. On August 11, Carden started calling employees into his office . After talking to them about com- pany wages and benefits , and asking each employee 463 to relate any problem he would like to discuss, Carden explained the Company 's position on unions, "We do not have a union now , we do not feel we need a union in this plant , and we will do everything within our legal power to see that a union does not succeed in this plant ." On August 15, in a speech to the plant employees , President Anderson concluded, "I want you to know and un- derstand that I am strongly against a union ever putting its foot in this door." (None of these anti- union statements is alleged in itself to have been coercive.) It was a week after its president 's speech that the Company shut down the Woodbury line, without reassigning any of the employees working on that line. The alleged unlawful interrogation occurred between then and the September 19 election, dur- ing which time none of the laid-off Woodbury line employees was recalled. Howard Brandon credibly testified that one day (alleged to be during the first week in September) he asked Foreman Mazarra about Donald Brown, his brother-in-law , coming back to work. (Brown, who had been transferred from the Manchester plant , had been terminated on May 5 because of a bad attendance record . However, Brown had lost a thumb on the job at Manchester, and at the request of the former Manchester plant manager, Carden had shown on the separation papers that Brown was being "laid off" for "lack of work," instead of being discharged , to make it easier for Brown to find another job ) Mazarra said he would talk to Carden about it Then, in Brandon 's words, "Gene [Carden ] came out and asked me was he a union man. I said , no." (Emphasis supplied.) Carden later returned to the plant area and informed Brandon to tell Brown to come back to work . The next day, September 5, Brown was rehired Carden 's inter- rogation of Brandon , about the union membership or sympathies of Brown , is alleged to be unlawful. The Company called Foreman Mazarra and em- ployee Frank Reed (who worked across a table from Brandon) to testify about this matter But neither of them was questioned about whether he overheard Carden asking Brandon if Brown was a union man (as credibly testified by Brandon). Reed testified that , after Brown came to work on Sep- tember 5, Brandon reported that Carden said to get Brown to work on time and "no drinking" at any time. Although Carden denied having had any discus- sion with Brandon concerning Brown and the Union , Carden did not impress me as being as relia- ble a witness as Brandon , and I discredit the denial. I note, though , that Carden admitted talking directly to Brown about the Union Carden testified that when Brown came to work, "I explained we had had two strikes, that the Sheet Metal Workers were in the process of attempting to organize our plant ; that we expected an election sometime in the future. . . . I said, we do not have a union now; we do not feel we need a union and we will do 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD everything within our legal power to see that a union does not succeed in this plant." In his brief, the General Counsel contends that "Carden's inquiry of Brandon as to Brown's union sympathies not only constituted interrogation of an employee in violation of Section 8(a)(1), but also demonstrates Respondent's desire to obtain only those who have no union sympathies subsequent to the August 22 layoff." I agree. The interrogation came at a time when senior employees from the Woodbury line were not being recalled, and Carden was demonstrating to Brandon by the question about Brown's union status or sympathies that only nonunion persons were being considered for em- ployment at that time (before the election). In this context, and following the repeated pronounce- ments of the Company's antiunion attitude, I find that the interrogation of Brandon was coercive and interfered with the employees' exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. C. Other Circumstances of Layoffs 1. Denials of antiunion motivation for layoffs There are two central questions in the case. The first is why the Company, faced with the need for a second storm door production line-but having a shortage of experienced, qualified production work- ers-decided during the Union's organizing cam- paign to lay off five of its senior production em- ployees and five junior employees (including three trainees for the second storm door line), and to postpone establishment of the second line. The other question is why the Company decided to lay off the five senior employees and announced the layoffs without any mention of ever recalling any of them, rather than laying off junior employees. Despite the General Counsel's evidence of anti- union motivation (discussed further hereafter), the Company without explanation failed to produce as a witness the person, President Anderson, who pur- portedly gave the instructions. The Company's only witness on these matters was Plant Manager Carden, who testified that when "Anderson real- ized how bad our problems were" he instructed Carden "to lay off the men on the Woodbury door line" and "let our work force drop down to 19 men." Carden gave no explanation for the decision not to proceed with the second storm door line, and no reason for letting the work force drop to 19 em- ployees (from the 34 employees on the payroll on August 22). Thus, Carden gave no business or other nondis- criminatory reason for delaying the second storm door line, for Anderson's instruction to lay off-in- stead of reassigning-the leadman and four other senior employees from the Woodbury line, or for letting the work force drop that far. Carden did deny any antiunion motivation. As already indicated, Woodbury line leadman Gannon was a leader in all three incidents of strike activity earlier that month, and the six other em- ployees on the Woodbury line also participated in each of the three incidents. It seems obvious that the layoff of these particular employees-in view of the pending election proceeding and the fact that five of the employees were senior production em- ployees who had recently received wage in- creases-would raise questions of union considera- tion Yet Carden gave the following testimony when questioned by the General Counsel about the layoffs: Q. In accomplishing or effectuating this layoff did you have any or give any thought to the union campaign that was going on at the plant at that time A. No, I did not Q. Didn't think of it at all in connection with the layoffs? A. No. Q. Did you think of the implications that might flow from this? A No. Q. Is it your testimony then that the union never entered your mind in connection with this layoff? A. That's correct. Carden appeared particularly agitated, when giving these answers. Later he testified to the opposite, admitting that "Yes," he had thought of the union in connection with layoffs-after testifying that he had been "aware of the union situation" and had checked with the Company counsel concerning the layoffs. Having previously found that Carden was not a credible witness when testifying about various mat- ters which might incriminate the Company, and having considered the above-quoted conflicting testimony, I do not place any credence in his further denials that participation in either the Au- gust 1 or the August 4 strike, or the engagement in any protected concerted activity or union activity, played any part in the decision to lay off the seven Woodbury line employees. 2. Decision to postpone second storm door line Plant Manager Carden testified that the decision not to expand the storm door line "was actually made on August 20, I believe." Other evidence does not support this claim. On August 20, about the time 88 of the faulty Woodbury doors arrived back at the plant, Com- pany President Anderson and another person from the home office met with Carden at the Woodbury plant to decide what was to be done. In a letter dated August 27, Carden submitted to Anderson "a recap of the points covered" on Anderson's August 20 trip to Westbury. The letter first detailed a number of improvements to be made in the CHD mobile home doors, and stated that the "produc- V E. ANDERSON MFG. CO. 465 tion level for this product has been set" for 30 units a day, and "this will continue for approximately three months while a field checkout is being ac- complished." (As already noted, an average of only four CHD doors a day had been produced since May 1 The evidence does not disclose how many were being produced in August.) The letter then detailed the many changes which had to be made in the Woodbury doors, and recited the decisions to limit production of one type of Woodbury door to "what is required to meet existing orders," and to discontinue production of other Woodbury doors until a different material could be obtained. Nowhere in this letter was there any mention of any problem with the design, quality, or production of storm doors, or any indication that a decision was made that day to delay the establishment of the second storm door production line. Because of the completeness of the letter, which on its face pur- ports to be "a recap of the points covered," I find that if a delay was discussed, or if a decision to delay the storm door expansion had been reached on that date, the discussion or decision would have been mentioned. When questioned by company counsel about the storm door production, Carden testified Q. ... Why didn't you discontinue the storm door line or minimize the production in some form or curtail production of the storm door line? [Emphasis supplied.] A. The ... storm door is an established product. Q. By established what do you mean by that? A. We have been producing the same storm doors we are producing today for about four years. 0. Did you have the same engineering and production problems with the storm door line you had with the Woodbury door line? A. No, we experienced none of the problems. Thereafter, Carden explained: We moved an existing operation All the equipment was existing in Manchester. Over one week end we picked up and started in at the place at Woodbury. Within two or three days lafter the end of that week we were back to pretty close to normal operations. [Emphasis supplied. ] Carden further testified that the production gradually increased. He gave this description of the minor nature of the production problems when asked what kind of problems had been encountered on the storm door line: "We still have line up problems and getting the material and equipment flowing through the line on particular doors which are not high volume items. But these are things that can be worked out. You can relocate work stations on the line." Nowhere did he suggest that such problems had been a reason for delaying the establishment of a second storm door line. As previously indicated, Carden told employees prior to August 22 that the Company was selling more storm doors than it was producing at the time. There is no evidence that there was any decrease in the orders. Furthermore, since July when the Com- pany approved Carden's request for money to purchase equipment for the second storm door line, Carden had been preparing to establish the new line by purchasing production facilities and training extra employees. On August 22, Carden not only had 3 trainees on the existing storm door line, but also 2 other extra employees-totaling 18-in order to increase the production Also, the Company had taken steps to curb its high labor turnover and to retain its experienced, senior production em- ployees, by granting the August 9 wage increases to 40 percent of the plant employees Thus, Carden's testimony shows reasons for retaining its senior production employees and proceeding to establish the second storm door line, rather than reasons for postponing the expansion plans, laying off production employees, and curtail- ing storm door production The question remains, what was the reason for the postponement. The answer is indicated in President Anderson's August 15 speech to the employees. 3. Company's antiunion campaign As already found, Plant Manager Carden in- formed one of the plant employees and his wife on August 5 (about the time the Union requested recognition) that, if the Union came in, the plant would be closed. Thereafter, during the week of August 11, Carden held individual interviews with plant employees in his office and explained the Company's antiunion policy that "We do not have a union now, we do not feel we need a union in this plant, and we will do everything within our legal power to see that a union does not succeed in this plant " On Friday of that same week, August 15, Pre- sident Anderson went to the plant and delivered a written speech to the employees. Despite repeated disclaimers, the Union's organizing drive and the recent strike activity were the obvious reasons for the speech. The speech began, "This gathering has nothing to do with the Union or the Company's feeling regarding this subject." Thereafter in the speech, the word "union" or "unionization" was used six times, as follows (emphasis supplied). After referring to "some recent activities" (the Au- gust 1 and 4 strikes) and reminding that "it is management's job and not the workers to run a business," Anderson stated in the speech that this condition must exist "regardless of the state of ex- istence of any union " Thereafter, Anderson stated in the speech that "the recent union activity has no bearing" on the Company's laying the groundwork for developing incentive programs at the plant. Further, Anderson asserted in the speech that what he had said about the economic factors "has 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing to do with recent union efforts." (In the context, it is clear that Anderson was using the "suggestion by denial" technique.) He referred to the Union again when he claimed in the speech, "I want you to keep the two subjects separate in your minds, one being union efforts and the other being economics of this operation." The speech con- cluded, "However, even though I have separated these subjects on the question of unionization I want you to know and understand that I am strongly against a union ever putting its foot in this door." In addition to the antiunion nature of the speech, its major import was a strong warning that, unless productivity improved, the plant would be closed. After stating the Company's reasons for locating in Woodbury, and stating "We have planned" to dou- ble the current $ 100,000 annual payroll "within the first year," Anderson read in the speech the state- ments (emphasis supplied): "as long as we are here . .. If the situation does not change completely ... We will have no choice but to close this operation down ... I have advised this management that if they want the plant to remain open and to keep their jobs ... if they want this plant to stay open ... We are not here for our health.... We intend to stay in business. We will not continue to lose money on a production operation. We will either correct it or shut it down ... How you treat these facts of life is your business. Since you and this community have the most at stake I suggest you consider it carefully. ... If the doors of this company are to remain open, it will depend upon your productivity and nothing else...." This speech, delivered about 5 days after the Company learned that many of the Woodbury mo- bile home doors would be returned as defective, made no specific mention of the faults in the mo- bile home doors, and the small number of those doors produced, nor the now-admitted fact that operations on the storm door line were "close to normal" within 2 or 3 days after the move from Manchester. Without distinguishing between the established storm door production and the faltering mobile home door production, Anderson stated in the speech that there had been an operating loss of about $60,000 in the first 3 months of operation, and that direct manufacturing costs, not including distribution costs, exceeded the selling price. He also asserted: "The majority of the production now produced in this plant has already been produced elsewhere at a fraction of the cost it is being produced here and under much worse conditions and with much worse equipment. . . . We have not only produced doors elsewhere at the recognized standard but have produced them at less than the theoretical labor cost which has resulted in incen- tive bonuses...." (Emphasis supplied.) He did not explain which type doors he was referring to, and there is no evidence supporting these assertions. It is evident that these assertions did not apply to the production of storm doors, which were being produced in the Woodbury plant with the same equipment, on the same production line which had been moved (along with 19 transferred employees) from Manchester, where production of the storm doors had begun 4 years earlier. (Storm doors are not manufactured at any of the Company's other plants. Carden claimed at one point that the Com- pany had an average daily production goal of "ap- proximately 200" storm doors, but he did not in- dicate what the production at Manchester had been.) I find that this speech, opposing the Union, re- peatedly referring to a possible plant closure, and blaming employee productivity generally for operating losses (without any mention of the obvi- ous engineering faults in the mobile home doors or the high labor turnover), was not primarily in- tended to encourage the employees to work harder. Under all the circumstances, I find that President Anderson delivered the carefully worded speech- using the technique of "suggestion by denial"-to demonstrate to the employees the Company's reac- tions to the Union's organizing drive and to make them fearful of losing their jobs unless they heeded the Company's strongly expressed opposition to the Union. (The vote in the September 19 election was 17 to 2 against union representation.) The speech not only demonstrates the Com- pany's union animus, but it also indicates when the Company decided to postpone establishment of the second storm door line Toward the beginning of the speech, Anderson referred to the plans for doubling "within the first year" the Company's cur- rent $ 100,000 annual payroll. Then, about the mid- dle of the speech (immediately before alluding to "some recent activities"-referring to the strike ac- tivity--and stating that it was "management's job and not the workers' to run the business"), Ander- son stated: If the situation does not change completely to the point where you can produce windows and doors as efficiently as we have and do in other locations and as efficiently as our com- petitors do the Company will have no choice but to close this operation down. Did I say windows? We had plans to add such production facili- ties here and jobs in the community as soon as you were efficiently running the lines you al- ready have. [Emphasis supplied.] In the context, it was not clear whether Anderson was deferring the production of windows in the plant until the door production lines were running efficiently, or whether he was announcing also that the planned second storm door line would be post- poned until all the door lines were running effi- ciently. The Company's intentions were revealed when it had the speech reported on local radio. Plant Manager Carden testified that, on the after- noon after Anderson made the speech, "we felt the speech was of considerable importance to the com- munity as a whole," and the Company tried to get V. E. ANDERSON MFG. CO. the radio station to carry some of the points men- tioned. The station wanted a written news release. Such a release was furnished on August 20 (I as- sume after being cleared through company chan- nels). It stated that in his August 15 comments to the employees, "Mr. Anderson pointed out that ... plans have been made to double [the $100,000 an- nual] payroll within the first year of operation" but that "those plans for expansion have been delayed due to high operating costs and low efficiency . . . When asked at the trial what the August 15 reference to expansion plans meant, Carden testified, "We had had plans to add a second storm door line." Thus, according to the Company's own speech and news release, the Company had decided by Au- gust 15 to delay the establishment of the second storm door line until all three of the production lines (one storm door line and two mobile home door lines) were operating efficiently. Because of this evidence, and the failure of Carden to mention storm door production in his August 27 "recap of the points covered" in President Anderson's August 20 visit, I discredit Carden's testimony that the decision to delay expansion of the storm door line was made on August 20 and find that it was made by the time President Anderson delivered the writ- ten antiunion speech to the employees on August 15. The question still remains, why the decision was made. The Company's only justification is the argu- ment in its brief that, in view of the problems ex- perienced in the production of the mobile home doors, "it appears within the realm of normal good business practice" for the Company to "delay ex- pansion of the storm door line until quality and production standards had improved." In making this argument, the Company does not refer to any problems experienced in the production of storm doors. Neither does the Company offer any ex- planation of why the Company, after going to the expense of purchasing the equipment for a second storm door line and training employees for that new line, would permit the problems in manufacturing the unsuccessful products (the mobile home doors) to disrupt its plans and preparations for doubling its capacity for manufacturing the well-established, major products (the storm doors). The brief does not state how this could be a "normal good busi- ness practice." Even without considering the Company's sub- sequent actions (which further reveal its antiunion motivation), I find that the Company decided on or before August 15 that it was willing to forgo the normal expansion of the plant, and to deny itself the production on a second storm door line to fill its customers' orders, until the Union's organiza- tional drive was defeated. In making this finding, I rely particularly on the timing of the decision (the week after the Union requested recognition ), Plant Manager Carden's statement to an employee and his wife that the plant would be closed if the Union 467 came in, and the Company's failure to explain why production problems elsewhere in the plant would cause it to defer expansion of its long-established storm door production. I further find that the union animus, shown by President Anderson's August 15 speech to the employees during the Union's or- ganizing drive, supports the foregoing finding. 4. The August 22 layoffs On August 22, when regular production on the Woodbury door line was halted, major revisions in design and construction of the Woodbury doors were necessary, and the resumption of regular production was not expected for a number of weeks or months. Yet the Company did not reassign any of the Woodbury line employees. Instead, Plant Manager Carden read them a formal speech, giving them the first notice of a layoff In the speech, Carden announced that the redesigning work was "a very time consuming thing," that "new materials must be obtained," and that the production of all mobile home doors was being discontinued "until the problems can be solved." He announced, "I have been instructed by Mr. Anderson to reduce our work force," effective that day; that most of the men affected were on the mobile home door line, but because of the delay in the expansion plans, he was forced to lay off also the extra men being trained (on the storm door line). He added, "I regret having to do this. It is bad for the Company, me, the supervisors, you and the community But I have no choice since I do not have the work for you. The men who have been laid off will find a separation slip stapled to their time cards." Nothing was said about recalling any of them (even though Carden testified "Yes" at the trial when he was asked if he had intended on Au- gust 22 to recall some of these employees, and the Company now contends in its brief that "it was the intent of Respondent at all times to recall all laid off employees whenever suitable positions were available ") He gave no reason for delaying the establishment of the second storm door line, but referred to complaints on the mobile home doors "caused by a combination of poor workmanship, bad materials, and poor design," and reminded the em- ployees of President Anderson's August 15 warning that "We must improve our efficiency and the quality of our product or we cannot stay in busi- ness." (Thus, he did not refer to any storm door production problems. Concerning the reference to poor workmanship on the mobile home doors, the Company had not established a quality control pro- gram.) That afternoon, Carden retained the seven junior employees (hired in July) who were working on the storm door and CHD production lines. He laid off the entire Woodbury line (senior employees Mul- linax , Owens, and Parton, hired in May, as well as Barnes and Simpson, hired in July), with the excep- tion of leadman Gannon and employee Thomas, whom he retained for a few days because there 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "was still some work to be done on the line," grad- ing inventory and making corrections. Leadman Gannon was laid off on September 2. Carden first testified that Thomas was also laid off at that time because "There was nothing left for them to do" (indicating that Carden had intended to lay off the entire Woodbury line-as he elsewhere testified that "this line was laid off"), but the company records shows that Thomas (who had not been reassigned in the meantime) quit for a better job on September 3. (Thomas is not alleged as a dis- criminatee. The six other Woodbury line employees are alleged discriminatees.) Carden also laid off al- leged discriminatees Ferrell, Sain, and Thompson, the three storm door line trainees who were "the most recent people to enter the plant" (during the second strike, on August 5) He retained on the storm door line a total of 15 employees-2 above the normal requirement of 13 employees. 5. Discrimination against Woodbury line employees a. Selection of employees for layoff In its brief, the Company ignores the apparent discrimination in its decision to lay off five senior production employees from the Woodbury line, while retaining seven junior employees hired during the previous month. Thus, the brief does not at- tempt to reconcile the Company's actions 2 weeks earlier in giving all five of the senior Woodbury line employees increased wage increments before any periodic merit raises were due them (in order to help cope with the high labor turnover and the labor unrest), and its conduct on August 22, an- nouncing the layoffs without any mention of re- calling any of them. Despite the fact that one of the senior Woodbury line employees was the leadman, who had worked on all the CHD line jobs and on several of the storm door jobs, the Company de- cided to lay off the leadman and the four other senior Woodbury line employees, retaining em- ployees not then assigned to that line, including (1) junior employee Sullens, hired July 23, who "had worked in shipping and had occasionally filled in on the storm door line when he was needed," and who, when assigned to the Woodbury line, worked "primarily packaging of the product at the end of the production line"-clearly not an experienced production worker; (2) senior employees Melton and Woodward, hired on March 26 and May 5, respectively, but never given any merit raises (which Plant Manager Carden testified are given to employees who "deserved" them); and (3) em- ployee Roger Reed, hired June 16, who was laid off on October 3 after the Company began recalling the Woodbury line employees on September 29 and 30 It is undisputed that, when senior Woodbury line employee Parton was told about his August 9 merit raise, the foreman told him that he was "a good hand." The evidence is clear that the Company gave no thought to reassigning any of the Woodbury line employees to the remaining storm door and CHD lines (Several of the jobs on the different lines were the same or similar, only short training periods were required for most or all the jobs; em- ployees were transferred from one line to another as needed; and the wage rates on the lines were comparable except for a 10-cent higher maximum rate paid the miter saw operator.) According to Carden, he was simply instructed "to lay off the men on the Woodbury door line," and "to let our work force drop down to 19 men." (The timing and purpose of the decision to allow the employment to drop to a minimum of 19 is discussed later.) Thus the Company, experiencing a high labor turnover and a shortage of experienced production workers to man its previously planned storm door expansion, decided to lay off five of its senior production workers-thereby aggravating its high turnover of experienced workers-rather than reas- signing them to remaining jobs or proceeding to establish the second storm door line. Even assum- ing, despite lack of supporting evidence, that the high labor turnover had materially curtailed production on the existing storm door line, the Company clearly was not seeking to solve the labor turnover problem when it decided to lay off the en- tire Woodbury line and to permit the employment to drop to 19. Moreover, the Company had proceeded with its preparations for the second storm door line until President Anderson joined in the antiunion campaign at the plant, and the senior Woodbury line employees became available for reassignment. The only allusions in the Company's brief to the alleged discriminatory layoff of Woodbury line em- ployees are the arguments (made in connection with the Company's defense to the allegation of dis- criminatory recalls), that "it is clear that of the 22 employees who had engaged in strikes 13 were never laid off. In addition four who had never en- gaged in strike activity were at one time or another laid off." The evidence shows that only 2 of the nonlaid-off 13 had engaged in both the August 1 and 4 strikes. (One of them, junior employee Sul- lens, was no longer assigned to the Woodbury line ) All seven of the Woodbury line employees had en- gaged in both those strikes, as well as having gone as far as the water fountain to strike the second time on August 1 One of the four laid-off non- strikers was Roger Reed, who was laid off 6 weeks later, on October 3, after three of the laid-off Woodbury line employees had been offered recall on September 29 and 30-following the Union's election defeat. Concerning the three nonstrikers laid off on August 22 (alleged discriminatees Fer- rell, Sain, and Thompson), the General Counsel contends that they were included in the layoff only as "window dressing" to "lend credence to the selection of the union supporters for layoff. Indeed, Respondent would have been hard pressed to justi- V. E. ANDERSON MFG. CO. fy the retention of these three most recently hired employees in the face of the layoffs.... However, because the three employees hired during the strike were also laid off as part of the Respondent's dis- criminatory plan the layoff was also discriminatory as to them." After considering all the foregoing circum- stances, I find that the Company discriminated against the senior Woodbury line employees in selecting them for layoff on August 22, and further discriminated against them, as well as the junior employees laid off the same day, by failing to assign them to the second storm door line b. Delayed recalls The evidence further shows that the Company discriminated against the Woodbury line employees by waiting until after the conclusion of the representation proceedings before it reinstated any of them. On August 25 and 26 (the Monday and Tuesday after the August 22 layoffs), two employees quit. The next day, August 27, the Company replaced one of them (and also put to work, for 3 days, a former employee who was on leave from the Ar- my) In selecting the replacement, the Company did not assign or recall any of the senior production workers from the Woodbury line. Instead, it re- called Ferrell, the junior laid-off employee who (1) had been hired on August 5 to work behind the picket line, (2) had been hired on the condition that he was not a union man, (3) had worked less than 3 weeks, and (4) had been laid off 5 days earlier because (in Plant Manager Carden's words), "He was not as experienced as the other men." Within the next week, on August 29 and Sep- tember 2, two additional employees quit. Again, the Company failed to recall any of the senior em- ployees Instead, the Company rehired Donald Brown (the employee who had been terminated in May because of a bad attendance record) after Plant Manager Carden was assured that Brown was not a union man. The evidence is clear that the Company had the election in mind when it rehired Brown, because Carden admitted telling Brown on September 5 when he came to work, "that the Sheet Metal Workers were in the process of at- tempting to organize our plant; that we expected an election some time in the future ... we do not feel we need a union and we will do everything within our legal power to see that a union does not suc- ceed in this plant." When asked how he happened to recall Ferrell on August 27, Carden testified, "If I remember one or two people quit within a short time after the layoff on the storm door line." Thus on August 27, Carden was replacing one employee who quit after the August 22 layoffs-as well as employing the soldier for a few days. Then the following week, after additional employees quit, Carden employed another replacement The employment of these 469 replacements soon after the August 22 layoffs shows that the Company had not decided at the time of the layoffs to let the work force drop to 19, as claimed by Carden. The Company did let the payroll drop, without hiring or recalling any other replacements, between September 5 and the date of the election. (The Company and the Union signed a stipulated con- sent election agreement on September 8-the Mon- day after Brown was rehired on Friday-agreeing to an election on September 19.) Two additional em- ployees quit, on September 8 and 12-bringing to four the number of non-Woodbury line employees who quit after August 22 without being replaced, and reducing the payroll to 20 employees until after the election. (The vote in the election was 2 for and 17 against the Union, with challenged ballots cast by former Woodbury line employees Mullinax, Par- ton, and Simpson. No election objections were filed.) The last day for filing objections was Friday, September 26. The next Monday and Tuesday, Sep- tember 29 and 30, the Company recalled four of the alleged discriminatees. The other alleged dis- criminatees were recalled in October and November. (None of these employees was recalled to the Woodbury production line, which remained down at the time of trial.) The Company's only explanation for allowing the employment to decline before the election is Plant Manager Carden's testimony that President Ander- son gave him the instruction "to let our work force drop down to 19 men." Nowhere does the Com- pany give any reason, of any kind, for Anderson giving such an order, depriving the Company of the services of the laid-off employees. There evidently was no shortage of storm door orders. Carden ad- mitted telling employees before the August 22 layoffs that the Company was selling more storm doors than it was producing at the time, and testified (in answer to a question by the company counsel) why the Company did not "minimize ... or curtail production of the storm door line." Until the August 22 layoffs, the Company was employing five more than the normal number of employees on the storm door line, to increase production and to train employees to man the new storm door line. Moreover, on August 22, it retained two above the normal number of employees on the storm door line. In its brief, the Company argues that all laid-off employees were recalled on varying dates and claims (without record support) that they were re- called "as they were needed in relatively reasonable sequence according to their experience and abili- ties " The brief ignores the fact that the recall of Woodbury line employees was deferred until after the election. The Company further argues, "While seniority was not observed in recalling employees, seniority was not shown to be a criteria commonly used by Respondent in this regard during organiz- ing efforts or otherwise. Furthermore, there was no logical advantage to be gained by Respondent in 427-835 0 - 74 - 31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jockeying with the order of recall of employees when it was the intent of Respondent at all times to recall all laid off employees whenever suitable posi- tions were available." In making these arguments, the Company ignores, and offers no explanation for, the decision to let the work force drop to a minimum of 19, and the Company's failure to in- clude in the August 22 layoff speech any mention of recalling any of the employees. The Company also fails to give any explanation for not letting the payroll drop to 19 following the election. There were 20 on the payroll on September 19, and no one left the Company's employ between that date and September 29, when employees were recalled. I therefore find that the Company's decision (reached on or after September 5) was to allow the work force to drop through attrition to a minimum of 19 employees until after the representation proceedings were concluded, in order to avoid re- calling Woodbury line employees in the meantime. The General Counsel contends in his brief that the Company's discrimination against the Woodbu- ry line employees is further shown by the failure to include any of their names on the election eligibility list, even though Carden admitted that he intended on August 22 to recall Woodbury line employees. I agree, particularly in view of the added fact that Woodbury line employees were recalled im- mediately after the expiration of the time for filing election objections. 6. Concluding findings Although all seven of the Woodbury line em- ployees engaged in all three incidents of strike ac- tivity on August 1 and 4, and Woodbury line lead- man Gannon was recognized as a leader or spokesman for the striking employees, there is no direct evidence that the Company was aware that these seven employees were union supporters. However, I find merit to the General Counsel's ar- gument that "It was quite apparent that the mobile home line was the `hot bed of discount' which pro- vided the stimulus to the union activity. . . . If any- body was likely to be a union supporter, it would be those employees who had even without a union walked out to protest their wages, hours, and work- ing conditions." Accordingly, I find that the Company's motiva- tion for discriminating against the Woodbury line employees was to defeat the Union's organizational drive by keeping these strikers and suspected union supporters out of the plant during the election proceedings. I further find that the Company laid off the three storm door trainees in an attempt to conceal its discrimination against the Woodbury line employees. The Company therefore violated Section 8(a)(3) and (1) of the Act, by dis- criminatting against the six Woodbury mobile home door and three storm door employees to discourage membership in the Union and to interfere with the employees' organizational rights. CONCLUSIONS OF LAW 1. By discriminatorily laying off and delaying re call of Vernon L. Barnes, Horace Ferrell, Lloyd Gannon, Terry Mullinax, James Owens, Grady T. Parton, Charles M. Sain, Jimmy R. Simpson, and Charles Thompson, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By threatening to close the plant if the Union came in, by instructing employees not to wear union buttons, and by engaging in coercive inter- rogation, the Company violated Section 8(a)(1) of the Act. 3 The General Counsel failed to prove the al- legations that the Company threatened on August 1 to discharge employees for engaging in protected concerted activities and granted wage increases in August for the purpose of discouraging its em- ployees' union activities THE REMEDY Having found that the Respondent has com- mitted certain unfair labor practices, I shall recom- mend that it be ordered to cease and desist from such conduct and from any like or related invasion of its employees' Section 7 rights, and to take affir- mative action, which I find necessary to remedy and remove the effect of the unfair labor practices and to effecutate the policies of the Act. The Respondent having unlawfully discriminated against nine of its employees, thereby depriving them of employment between the dates of their layoffs and the dates of their recalls, I shall recom- mend that it be ordered to compensate them for their lost pay, computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus in- terest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Accordingly, on the basis of the foregoing findings and conclusions , and on the entire record, I recommend pursuant to Section 10(c) of the Act issuance of the following: ORDER Respondent, V. E. Anderson Manufacturing Company, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Laying off or otherwise discriminating against any employee to discourage membership in or activity on behalf of Local 424, Sheet Metal Workers' International Association, AFL-CIO, or any other labor organization. (b) Postponing plans for establishing additional production facilities to discourage employees from voting for union representation. V. E. ANDERSON MFG CO. 471 (c) Threatening any employee with a plant clo- sure if a union comes in. (d) Prohibiting or interfering in any manner with the wearing of union buttons, badges, or other in- signia by its employees. (e) Coercively interrogating any of its em- ployees (f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessa- ry to effecutate the policies of the Act. (a) Make Vernon L Barnes, Horace Ferrell, Lloyd Gannon, Terry Mullinax, James Owens, Grady T Parton, Charles M Sain, Jimmy R. Simp- son, and Charles Thompson whole for their lost earnings, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Woodbury, Tennessee, plant co- pies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps have been taken to comply herewith.' IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 3 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps Re%pondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT try to discourage our em- ployees from voting for Local 424 , Sheet Metal Workers' International Association , AFL-CIO, or any other union , by discriminatorily laying off union supporters and not recalling them until after an election. WE WILL NOT postpone installing a new production line in order to avoid keeping union supporters on the payroll. WE WILL NOT lay off or otherwise dis- criminate against any employee because of his union membership or activity WE WILL NOT lay off junior employees to conceal discrimination against union suppor- ters. WE WILL pay the following employees for the earnings they lost from the time they were laid off until they were offered recalls, plus 6 percent interest: Vernon L . Barnes James Owens Horace Ferrell Grady T Parton Lloyd Gannon Charles M. Sain Terry Mullinax Jimmy R. Simpson Charles Thompson WE WILL NOT threaten to close down or move the plant if a union comes in. WE WILL NOT interfere with our employees' right to wear union buttons or badges at work. WE WILL NOT coercively question any of our employees about any employee's union mem- bership. WE WILL NOT unlawfully interfere with our employees ' union activities. V. E. ANDERSON MANUFACTURING COMPANY (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161