Franklin Homes, Inc.

FRANKLIN HOMES, INC. 389 Franklin Homes, Inc. and Aluminum Workers Interna- tional Union, AFL-CIO. Cases 10-CA-8037 and 10-CA-8097 December 21, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 22, 1970, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Franklin Homes, Inc., Russell- ville, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as paragraph 2(c), and reletter the following paragraphs accordingly: (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service and the Univer- sal Military Training and Service Act, as amended, after discharge from the Armed Forces. 2. Add the following as the last indented para- graph of the Appendix: WE WILL offer the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. CHAIRMAN MILLER, dissenting in part: The evidence seems sufficient to support the finding of the Trial Examiner that Respondent effectuated a substantial layoff sooner than it otherwise might have, as a result of the union activity at the plant. The Trial Examiner concluded that the layoff was accelerated "for however brief a period, by reasons proscribed by the Act," thus clearly indicating that it was not possible to determine from the evidence precisely how much earlier the layoff occurred than would have been the case if purely economic considerations had dictated the timing. My dissenting views relate to the remedy recom- mended by the Trial Examiner. Having found that the layoff was accelerated, the Trial Examiner recom- mended "that Respondent make these employees whole for any loss of earnings they may have suffered because of the discrimination against them." He went on to say, "Since the amount of backpay to these employees will depend upon the time they would have been laid off absent the discrimination found, I shall leave this matter to be determined at the compliance stage of this proceeding." I fear that if we adopt this recommendation, we are creating an impossible task for our compliance staff. The Trial Examiner provides no standard, nor can I find one, for determining what loss of earnings could be involved. It will be noted that the Trial Examiner did not make any finding that the layoff was prolonged for improper reasons, but only that it occurred sooner than normal. I do not understand how it is possible to compute a measurable make- whole remedy for employees who were laid off on one day instead of another, and the inherent problem is made even more perplexing by the absence of any finding as to how much earlier the layoff occurred because of discriminatory motivation. I would there- fore not adopt paragraph 2 (a) of the Trial Examiner's Recommended Order. Secondly, I can find no basis for the make-whole remedy recommended in paragraph 2 (c) of the Recommended Order. In selecting personnel to be recalled from the layoff, the evidence is sufficient to support the finding that the three employees referred to in paragraph 2(b) of the Recommended Order were not recalled, because of the discriminatory motiva- I We note and correct the following minor errors in the Trial representative of the Charging Party. Also, the parties stipulated that 26 Examiner's Decision which in no way affect the result in this case Oscar employees were recalled by or before October 24, 1969 and not October 26, Wisdom is a representative of the Operating Engineers and not a 1969 187 NLRB No. 51 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. As to the remainder of the laid-off employees who were not recalled, and particularly as to those who were replaced by newly hired employees, there is no showing that the selection was made on a discriminatory basis. The Trial Examiner finds only that Respondent failed to fully document its reasons for recalling certain employees and not recalling others. If this were an arbitration proceeding in which the employer were attempting to defend departure from seniority practices relating to recall, he would indeed have the burden of substantiating his alleged reasons for such deviation. But our law contains no restrictions against an employer's selection of employ- ees for either layoff or recall except as it prohibits the making of such a selection on a discriminatory basis hinging on the degree to which employees may choose to engage in or refrain from engaging in Section 7 rights. There is no proof in this record that employees were selected for recall on this basis or that employees who were not recalled were those who had signed cards or otherwise evidenced their support of the Union's organizational efforts. The remedy proposed by the Trial Examiner parallels the remedy which we would give if this were an unfair labor practice strike. But there we premise the remedy on the theory that failure to recall strikers is, absent some affirmative showing of justification, discrimination against employees because they en- gaged in the protected concerted activity of striking. The instant case does not present a strike situation and the application of our law must, therefore, be different. It is conceded here that the layoff was economic in nature (although accelerated for improp- er reasons). I am, therefore, of the view that the Employer was free to recall whomever he preferred and not to recall whomever he preferred, so long as the basis for his choice did not relate to the extent of the employees' union activity. For the same reasons, I do not find a basis for the preferential hiring procedures recommended in para- graph 2(d) of the Recommended Order. For the above reasons, I would adopt the findings and conclusions of the Trial Examiner, and would modify the Remedy in accordance with the views which I have stated. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon charges filed on November 12 and December 22, 1969, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 10 (Atlanta , Georgia), issued a complaint on January 30, 1970, against Franklin Homes, Inc., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices in violation of Section 8(axl) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent's answer denies the allegation of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Trial Examiner John P. von Rohr on March 18 and 19, 1970, in Russellville, Alabama. All parties were afforded opportuni- ty to adduce evidence , to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Counsel and from the Respondent and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Franklin Homes, Inc., is an Alabama corporation with its principal office and place of business located at Russell- ville, Alabama, where it is engaged in the manufacture and sale of mobile homes. During the calendar year preceding the hearing, Respondent sold and shipped finished products valued in excess of $50 ,000 directly to customers located outside the State of Alabama. The Respondent concedes , and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue On October 17, 1969, Respondent laid off 41 of its 70 production and maintenance employees. The General Counsel contends that the layoff of these employees violated Section 8(a)(3) and (1) of the Act because it was motivated by Respondent's opposition to an organizational drive among its employees which began at a union meeting held on October 15, 1969. Respondent denies any knowledge of union activity among its employees prior to the layoff and asserts that the reason for the layoff was based solely on economic considerations. B. Events Prior to the Layoff On October 15, 19691 a group of six Respondent employees, these consisting of Roy Garrison, Roy Hughes, Terry Cummings, Billy Oswelt, and James Presley, met with Oscar Wisdom, a representative of the Charging Union, at the Dixie Belle Restaurant in Littleville , Alabama.2 Since this meeting involved the inauguration of an organizing drive at Respondent's plant, these employees were given union cards which they were to distribute and attempt to I All dates herein refer to the year 1969. Respondent's plant is located. 2 Littleville is approximately 6 miles from Russellville, Alabama, where FRANKLIN HOMES, INC 391 have signed by the production and maintenance employees They also were given pamphlets put out by the National Labor Relations Board explaining representation election procedure and the rights of employees under the Act Solicitation of employees to sign union cards took place the next day, October 16, and continued until about noon on October 17, this activity occurring at the homes of employees and at the plant during lunch and break periods The record reflects that a total of approximately 12 employees signed cards Employee Roy Garrison testified that just before noon on October 17 he gave the 12 cards to a "boy" who carried them to a union representative who had come out "near the plant " It is undisputed that on October 17, a Friday, at about 3 15 p in (15 minutes before quitting time) Jimmy Wakefield, the plant superintendent, summoned the employees before the timeclock and announced that all who had not been notified to stay on would be laid off for a few days As indicated above, 41 of the 70 production employees were thus put on layoff Since Respondent, by its president, Jerry James, denies any knowledge of union activity prior to the October 17 layoff, I note here the testimony of employee Horace Mann concerning a conversation he had with Moms Bishop, the foreman of the cabinet and paint shop Mann, a leadman in the metal shop, testified that prior to the announcement of the layoff on the morning of October 15, he encountered Bishop near his work area According to Mann, Bishop volunteered that union cards were about to be distributed around the plant Mann testified that he thereupon asked Bishop what he thought about it and that Bishop replied "Well, I can't talk I can't tell you to sign one or I can't tell you not to sign one, that would be just entirely up to you " Bishop conceded that he heard that cards were being passed around prior to the layoff He also conceded that on the day of the layoff he had a conversation with Mann wherein Mann asked if he should sign a union card Bishop's testimony concerning his response to this question was the same as that given by Mann Bobby Ray Isom, an employee in the cabinet shop and one of the first employees to work at the plant, testified that he had a conversation with Plant Superintendent Wakefield in the early part of the week of the layoff He said that at this time he went to the bathroom, that a boy was inside smoking, and that Wakefield walked in just as the latter left Isom testified that Wakefield there upon stated, "I guess you signed a union card " Isom said he replied that he had not seen any union cards, but that he then asked the superintendent what he thought about the union talk that was going around the plant According to Isom, Wakefield responded, "Well, if I find out there is some Union cards in this plant there is going to be the biggest layoff this company has ever seen " Isom testified that Wakefield thereupon additionally stated that "Jerry James said he would close the plant if we ever put up a union" and that "he [James] wasn't aiming to let that happen" Wakefield denied having a conversation with Isom in the bathroom about union activity and testified that the first he heard of any union activity at the plant was on the Monday after the layoff when employee Roy Hughes told him about it From my observation of the witnesses, Bobby Ray Isom impressed me as a truthful witness and I do not believe that his testimony was fabricated I credit his testimony concerning the conversation with Wakefield 3 C Events After the Layoff Employee Bobby Ray Isom , who was among those laid off on October 17, returned to the plant on the Saturday or Monday after the layoff (October 18 or 20) and spoke to Plant Superintendent Wakefield in the salesman's office Isom first asked if his work had been satisfactory Wakefield replied that he did a little too much strolling but that otherwise it was fine Isom then asked if he would be recalled to work, adding that he was in need of work Wakefield's response, according to Isom, was that "as far as I am concerned your services have been terminated " Continuing with Isom's testimony, Wakefield thereupon stated that "a good reliable man" told him that he (Isom) had been passing out union cards and that he should get a job somewhere else because as far as he (Wakefield) was concerned he "was never going to work there or anywhere else that he had anything to do with " Conceding that he had a conversation with Isom within a day or two after the layoff, Wakefield denied that there was any mention of a union According to Wakefield , Isom said he needed work and mentioned that he could go to work for another employer He said that he advised him to do so and that he also told Isom, who at one point asked about his work performance, that he walked around too much For the reason previously stated, I credit the testimony of Bobby Isom concerning this conversation Roy C Gamson, one of the first employees to be hired by Respondent, was included in the October 17 layoff He returned to the plant at 8 a in on October 20 and first asked Plant Superintendent Wakefield if he knew when he would be called back to work Wakefield said he did not know He thereupon waited until President James came in and asked James the same question According to Gamson, James responded, "You have been passing out union cards and I know you signed one and before I let a union come in here, I will close the place down I don't know what you are wanting, I have already given a nickel raise " Garrison spoke up to say that he thought a union would help the Company But, according to Gamson , James then stated, "You have just fixed yourself where you never will work here again or any place else I have anything to do with " Garrison said that when he then asked James "if he realized what he was saying," James responded, "I mean I am not going to have a union come in here " Garrison testified that at this point he started to walk away, whereupon James asked if he wanted to turn his tools in while he was there to save another trip Gamson said he proceeded to do so James recalled talking to Garrison on the morning of 3 Although cards were not distributed at the plant until Thursday Although this conversation also concerned talk of prospective union October 16 the record reflects that talk about a union in general occurred activity I do not set it forth herein because it adds nothing to the case I among the employees earlier that week Indeed Bobby Ray Isom who was refer to it here only because it reflects that talk about a union was corroborated by his brother Donnie Isom credibly testified concerning a occurring at the plant in early October this prior to the actual union conversation with Foreman Bishop in the first week of October 1969 meeting of October 15 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 20 and gave the following version of this conversation in his direct testimony: Mr. Garrison was sitting by the time clock and I approached and he asked me when he would be called back and I told him I didn't know. He asked me did, if the Union activities had anything to do with his being laid off and I said "No, it didn't." I said, "I didn't even know you were involved in any union activity ," and he said, "Well, I was." I believe he said he had been to a meeting. I may be confused as to whether he told me that or whether Mr. Hughes told me but he said , "I have been involved in Union activity, I have destroyed enough cards that this plant will not have an election and I would appreciate your hiring me back" and I said "Your layoff had nothing to do with Union activities and I am not in a position to tell you now when you can come back" or something to that effect. On cross-examination, James acknowledged that during the above conversation he asked Garrison what he thought the Union could do for him and also that he told Garrison he probably would have given him everything he wanted. From my observation of the witnesses , and upon considera- tion of the entire record in this case, I am persuaded that Garrison gave a truthful account of the conversation which he had with James while at the plant on the morning of October 20 . I credit his testimony concerning it. Roy Hughes, employed with the Company since May 6, worked in the electrical department and was included in the October 17 layoff. Hughes, who attended the October 15 meeting and thereafter solicited employees to sign cards, went to the plant to get his check and turn in his tools on Monday morning, October 20, and at this time spoke to Plant Superintendent Wakefield . Hughes testified that he asked Wakefield "if this layoff was because of this Union deal and the same thing went for me that it did with Roy Garrison." Hughes said that Wakefield replied "yes, it did," whereupon he told Wakefield that this was "pretty dirty." According to Hughes, Wakefield then stated , "Well, we have rules here and we have to stick by them." Wakefield's testimony with respect to this conversation was as follows: He was checking in his tools and he called me over there and he said I want to talk to you a minute and I said all right and he said , "Say, was I laid off on account of the Union" and I don't believe I answered and he said, "I just want you to know that I didn't have nothing to do with that . . . [there] was five people up there and I thought the whole plant was going to be there" and I said, "Well, we have got rules that we have to go by and we went by them "or something to that effect... . Hughes also had a telephone conversation with President James, this occurring about 2 or 3 weeks after the layoff. Hughes said he was prompted to make this call because he heard rumors that James had accused him of pushing union cards. Thus, Hughes testified that he called James and "asked him if he had said I had been pushing out union cards." Hughes said that James' response was that "he had not said nothing about me but he said that he had heard that I was pushing out union cards and that he wasn't going to have this going on in his plant ." Hughes testified that when he then asked if this was the reason for his layoff, James denied that it was for this reason , but said that he was laid off because he walked around too much and was capable of doing more work. When Hughes replied that his standing around was not his fault, that there was not always enough work to do , James responded , according to Hughes, "Well, I guess that is partly the supervisor's fault, too." Hughes testified that at this point he told James that he was thinking "about taking [the matter ] to the Labor Board and carrying it to the Union to see what we could do ." To this James responded, according to Hughes, "If you try to get the Union in here , I will shut the son-of-a-bitch down." Acknowledging that he had a conversation with Hughes over the telephone, James denied that during the conversa- tion he threatened to shut the plant down . He then gave the following version: Mr. Hughes called me and told me that he heard that I was telling that he was pushing out union cards and I told him "No, that I had not told anyone he was pushing out union cards but that I had heard the rumor that he was but I had not discussed it with anybody" and he asked me if I had blackballed him from getting a job and I told him "no, I had not." He said that Mr. Garrison had asked him to be a witness in a labor suit against me and that he was considering it but if we would put him back to work that he wouldn't, he would not be a witness and I told him I didn't have any control over what he said and I couldn't tell him when I would call him back but that his union activities had nothing whatsoever to do with his layoff. As stated above, Hughes impressed me as a credible witness. I credit his version over that of James' concerning the foregoing conversation.4 Robert M . Wakefield is a brother of Plant Superintend- ent Jimmy Wakefield and at the times material hereto held the position of leadman over four employees in the electrical department. Wakefield reported to work on Monday morning, October 20, the first workday after the layoff. At this time he encountered Roy Garrison who had come to the plant to check in his tools. During the conversation which ensued, Garrison mentioned that he had spoken to James and then told Wakefield , "Jerry, James says there is a lot of trouble around here and it all started in the electrical department ." With this Wakefield went to James, whom he found with his brother Wakefield testified that he repeated what Garrison had told him, whereupon James pointed his finger at him and accused him of "starting all the trouble." James then stated, according to Wakefield , "and if you don't like it, you can go too." Wakefield thereupon replied , "No, just wait one damn minute and I will be gone ," whereupon he obtained his tools and turned them in . After punching out he went to his brother, the plant superintendent, to report the status of the work in his department. Wakefield testified that after so doing he asked his brother "what the hell was going on." According to Robert Wakefield, the plant superintendent responded, "Well, some of the boys signed union cards." The testimony of President James and the plant superintendent concerning the above incident was very 4 In rebuttal testimony Hughes credibly denied saying anything at all about Garrison during this conversation FRANKLIN HOMES, INC. 393 brief. James simply testified, "Mr. Robert Wakefield gave testimony yesterday that I said he was the cause of the trouble out there and I would like to deny that." The plant superintendent recalled that he was standing with President James at the time his brother came up and quit. Concerning the incident he testified that his brother "said something about problems in the electrical department and that he was a part of it and he was going on that if he was a part of the problem that he would remove it and he was gone and he immediately punched the card." The plant superintend- ent also recalled his brother coming to him a little later to report on the status of work in his department, but he could not recall anything further about the conversation. I credit the testimony of Robert Wakefield concerning the entire events in which he was a participant on October 20. I do so for the following reasons: (1) he impressed me as a truthful witness; (2) he gave a plausible account of the circum- stances of his quitting on October 20, whereas neither James nor the plant superintendent offered any reasonable explanation for his taking such precipitant action; 5 and (3) Respondent's opposition to the Union, as reflected by the events of October 20 concerning which Robert Wakefield testified, is consistent with a pattern of like conduct, as hereinabove set forth, in its dealings with other employees. D. Additional Facts; Conclusions Preliminarily to Respondent's defense, it is relevant to note first that the Respondent's production of mobile homes is performed through an assembly line operation. Thus, as one witness described, construction will start in the frame department, proceed to the metal department, and then down the line for such various functions as sheet metal installation, cabinet installation, electrical work, painting, and the like. The testimony also reveals that Respondent produced approximately 1 1 /2 to 2 mobile home units per day prior to October 17.6 While the testimony is not entirely clear on the subject, it appears that there are "slots" for about three or four coaches on the line. Thomas James, Respondent's secretary-treasurer, Jimmy Jackson, Respondent's sales manager, and Athel G. Button, vice president, gave general testimony to the effect that on several occasions prior to October 17, 1969, they separately discussed the possibility of a layoff with President James. Thomas James testified "we had informal discussions about why our labor factor was so high and what we needed to do about trying to get it down ... we needed to see if we couldn't make the same amount of coaches with less people." Jimmy Jackson said that when President James asked him what effect a layoff would have in September or October, 1969, he responded that "we could start a reorganization at this particular point easier than we could at any other time." Athel Britton, without elaborating, testified simply that prior to October 17 he and President James "discussed the possibility of a layoff to get reorganized. Plant Superintendent Wakefield testified that on the morning of the October 17 layoff there were four holes in the line. He further testified that it would not be possible to operate the plant the following Monday because "we would have had at least 50 percent of our people without anything to do." In his testimony President James accepted full responsi- bility for the October 17, 1969, layoff. His entire testimony concerning the reasons which assertedly impelled him to reach this decision was as follows: For two or three weeks preceding this layoff that has been in discussion here, Mr. Wakefield and I had been talking about it fairly frequently and I had talked informally with all of the stockholders and they had told me that I had the authority to do whatever I wanted to do about it. My decision to make this layoff was not completely made until Friday, but for two or three days before I had been giving it much attention. On Friday, right after lunch I went to the plant and the production line was a complete mess . I saw empty stations, employees milling around and I saw that the plant could not operate Monday without having half the men out, approximately half of them. Mr. Wakefield had also brought this to my attention earlier in the day. I told Mr. Wakefield to get with Mr. Davis and see who should come in Monday to work the line back up in such a shape that the employees could be put back to work. In other words, as we filled the slots we could call the people back that had those jobs to perform. Of course , as the line gradually filled up, then we began to call people back. Thus far the testimony of Respondent witnesses concern- ing the necessity, if any, for the layoff of October 17. However, shedding further light on the subject is the testimony of employees called as witnesses by the General Counsel. Thus, Roy Garrison testified that production on the assembly line was slow during the week of the layoff, more so than it had been the week or month before. He further recalled that there was only a TVA laboratory coach on the line at the time of the layoff.? Indeed, when asked on cross-examination what shape the line was in at that time, Garrison's response was that "it had just about completely stopped on that particular coach." Employee Roy Hughes was also queried on cross-examination as to the condition of the assembly line on October 17. Hughes conceded that "on the last day it was in pretty bad shape." He elaborated this with the statement that except for the TVA coach, "it [the line] had three empty slots." Further, Hughes conceded that during the week of the layoff he observed that employees at certain stations on the assembly line on occasion had nothing to do. When asked if he had observed similar conditions in the past Hughes responded, "No, sir, not so much." Upon a consideration of all the foregoing testimony, I am persuaded and find that the available work on the assembly line was such that the necessity of a short layoff of some employees undoubtedly was forthcoming. However, I am also convinced, and I find, that the layoff at issue was accelerated, for however brief a period, by reasons proscribed by the Act. Thus, upon the entire record, I find that Respondent's announcement of the layoff to all the 5 This quit was of a permanent nature r It is undisputed that this was a specially ordered coach, the first of its 6 The record reflects that Respondent's plant first began production in kind to be built by the Company It appears that normally Respondent about the latter part of April or early May 1969. built mobile homes of similar design from standard type blue punts 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assembled production and maintenance employees 15 minutes before quitting time on October 17, as well as the layoff itself, was designed to thwart the union campaign which had begun among its employees but approximately two days earlier .8 While the facts hereinabove related which compel me to this conclusion are quite clear in themselves, the factors upon which I particularly rely include Respondent's union animus as evidenced by Wakefield's statements to Isom prior to the layoff that "If I find there is some Union cards in this plant there is going to be the biggest layoff this company has ever seen" and that James would close the plant if a Union came in; James' statements to Garrison on October 20 that he would close the place down before he would let a union come in and that he "was not going to have a union come in here"; and James' statement to Hughes that he would not have union solicitation going on in his plant and his further statement that "if you try to get the Union in here, I will shut the son- of-a-bitch down." Also pointing to the discriminatory nature of the layoff are the conversations which Leadman Robert Wakefield had with President James and the plant superintendent when he returned to the plant on Monday, October 20, the first work day after the layoff. It will be recalled that at this time Wakefield quit his job because of his resentment of having been told by President James that he had "started all the trouble" in his department, following which Wakefield told him in response to his question as to what was going on, that "some of the boys signed union cards." Finally, and as hereinafter found, Respondent's independently proven discrimination against three of the leading employee union adherents has been regarded by me as additional evidence that the layoff here at issue was accelerated by antiunion considerations. In view of all the foregoing, and the entire record as a whole, I find that Respondent, by reason of the accelerated layoff on October 17, 1969, discriminated with respect to the hire and tenure of the employees so affected, and thereby discouraged membership in the Union in violation of Section 8(a)(1) and (3) of the Act.9 I turn now to the remaining issues of whether Respon- dent discriminatorily refused to recall certain laid-off employees and whether certain employees were independ- ently discriminated against. Some further facts are here in order. Thus, it is undisputed that of the 41 employees laid off on October 17, 1969, 26 were recalled on or before October 26, 1969. The 15 remaining employees have not been recalled as of the time of the hearing herein.10 8 1 reject Respondent's assertion, including the testimony of President James, that it had no knowledge of union activity prior to the layoff As heretofore noted, knowledge of such activity was admitted by Foreman Morris Bishop ; and Plant Superintendent Wakefields ' conversations with Bobby Ray Isom in the bathroom prior to the layoff, as previously related, reflects that he also was aware of union activity Moreover , the heretofore related testimony of Robert Wakefield concerning the circumstances of his quitting on October 20, 1969, and the testimony of employees Bobby Ray Isom, Roy Garrison, and Roy Hughes concerning the content of conversations with officials shortly after the layoff are further indicative of company knowledge of union activity prior to the October 17 layoff However, in finding company knowledge , I do not rely on the fact, as credibly testified to by several employees, that prior to the layoff several employees wore shirts at the plant with NLRB pamphlets protru4ing from their shirt pockets 9 It is immaterial that some union adherents were not laid off and that two union adherents were subsequently recalled . This does not exculpate Included among the employees not recalled were Roy Garrison, Roy Hughes, and Bobby Ray Isom, all of whom except Isom attended the October 15 union meeting and all of whom, including Isom, actively participated in the solicitation of cards. In view of the credited testimony of these employees as heretofore set forth, there can be no doubt, and I find, that each of them were laid off and were not recalled because of their union activities. Thus, the statements made to each of these employees by either the plant superintendent or by President James when they inquired as to the prospects of their reinstatement were clearly tantamount to admissions of discrimination against them. To briefly recapitulate, Isom was told by Plant Superintendent Wakefield that he (Wakefield) heard he had been passing out union cards and that he would never work at Respondent's plant again; Gamson was told by James that he knew he was passing out union cards, that he (James) would close the place down before he would let a union come in, and that he (Garrison) had fixed himself so that he would never work for Respondent again; and Hughes was told by Wakefield that he was laid off for the same reason as Garrison, in addition to which James told Hughes that he heard that he (Hughes) had been passing out union cards, that he would not permit this to go on in his plant, and that he would shut the plant down if he tried to get the union in. In view of the foregoing I think it clear, and I find, that Respondent laid off and thereafter failed and refused to recall Roy Garrison, Roy Hughes, and Bobby Ray Isom in violation of Section 8(a)(1) and (3) of, the Act.11 I might add, as will be shown below, that the, evidence reflects that these and the other laid off employees were not selected for layoff on the basis of their work performance. Accordingly, and while Respondent offered some testimony as to alleged work deficiency of Roy Hughes, this testimony is immaterial since the alleged deficiency was not considered by Respondent in selecting him for layoff.12 Respondent contends that its recall of 25 employees on or before October 26, 1969, added to those employees who were not laid off on October 17, 1969, gave it a workforce which has since been ample to handle its entire production needs. Thus, President James and Plant Superintendent Wakefield testified that with the workforce so constituted it was able to, and in fact did, produce the same amount of work (approximately 2 trailer homes per day) as it did with the larger work force employed by it prior to the October 17 layoff. This testimony was unrefuted and unrebutted. Respondent for the discrimination herein found N L.R B v W C Nabors d/b/a W C Nabors Company, 196 F 2d 272, 276 (C A 5) Significantly, all five employees who attended the organizational meeting on October 15 were laid off and none were subsequently recalled 10 The names of all the employees who were laid off on October 17, as well as those who were recalled and those who were not recalled, are listed on Appendix B, attached hereto. ii While the record does not disclose the manner or source from which Respondent learned of the union activity of these employees, the admissions of Respondent officials to these employees are sufficient to establish that it had such information. iz It is noted that Respondent does not allude to this testimony in its brief In any event, the testimony concerning the alleged work deficiency of this employee does not stand up under scrutiny and I would find it to be clearly of a pretextual nature. However, for the reason indicated above, I do not seem it necessary to discuss this testimony herein FRANKLIN HOMES, INC. 395 Moreover, there is no evidence that after the layoff Respondent farmed out any work or that there was an increase in overtime. Accordingly, except to the extent hereafter noted, I find that there were no further jobs available after October 26, 1969 and that therefore Respondent was under no obligation to reinstate the 15 employees who were not recalled. However, since these employees were discriminated against by reason of the accelerated layoff, they are entitled to be placed on a preferential hiring list and I will so recommend. In addition, Respondent concedes that it hired six or seven new employees after October 26, 1969, to replace certain employees of the then existing workforce who quit or who had entered the military service. Concerning Respondent's reason for not replacing the foregoing employees with the employees who remained on layoff, James testified as follows: Yes, sir. When we started calling these employees back and we got our production up to the normal two a day with just 54 employees, well it strictly told me something. In other words, we had tried to call back the best employees, the employees we thought were doing us the best job and these came back and then I suddenly realized my production was two a day with 54 people. So, we ran that and it was stabilized that way for awhile with no changes whatsoever and I realized that I had a fine crew and then as some of the boys began going to the Army and dropped out rather than call these people back that I didn't think had done me a good job prior to that I replaced them with good employees." Upon the entire record in this case, I reject the above explanation as being without merit. In the first place, beyond the foregoing conclusionary testimony, Respon- dent presented no evidence of any alleged work deficiencies of the individual employees who were not recalled from layoff. Secondly, Respondent's position becomes further untenable when it is considered that Respondent did not establish that its selection of employees who were laid off on October 17 was predicated upon any criteria of employee work performance. In fact, Respondent's entire testimony concerning the manner and/or criteria involved in selecting the employees to be laid off was vague and confusing. In a pretrial affidavit, James stated as follows: I don't recall if the list of employees to be laid off was drawn up prior to October 17, 1969, 1 relied on the recommendations of Wakefield and foreman Bishop and Davis in selecting those for layoff because I am not that close to the plant. The supervisors listed the men that they could run the plant without. The idea was to reorganize and get started again. Declaring at the hearing that the above statement was not correct, James testified that no actual list was made and that he told Wakefield to determine which employees were to be laid off. Foreman Jack Davis, who said he first learned of the layoff between 2 and 3 p.m. on October 17 and that it came as a surprise to him, testified that he was not consulted as to which employees in his department were to be laid off. Foreman Moms Bishop likewise testified that he did not learn of the layoff until between 2 and 3 p.m. and that he did not participate in the selection of employees who were to be laid off in his department. Wakefield's testimony concerning the manner of the layoff was as follows: Q. And who prepared the list of employees who were to be laid off? A. There actually wasn't a list of the employees to be laid off prepared. We only needed the back end of the line to run because that was the only place there was any work, until they had done some more work there wouldn't be any work for anybody up front so it was more a list of who was to be retained, which was the people who worked across the back of the shop. Q. Who prepared that list? A. I did, sir. Q. Did you obtain any information from Mr. Davis or Mr. Bishop as to which employees they wanted to keep? A. Well, sir, it wasn't exactly a list compiled, I just told Jack up there more or less I said, "Jack, we will work the people that work the frame shop, the floor department, partitions and sidewalls" and I said, maybe a couple of electricians because we will have a coach up there for them that they can finish and that we did. Then Morris came to me and asked for him to bring in one man and I said okay. From all of the above testimony it is clear that Respondent has shown no valid reason for not recalling the appropriate number of laid-off employees in lieu of hiring new employees for the job vacancies which became available after October 26, 1969. Accordingly, I find that Respondent, by its failure and refusal to recall laid-off employees to fill these positions, thereby further violated Section 8(a)(1) and (3) of the Act. Finally, I find that Respondent independently violated Section 8(a)(1) of the Act by the heretofore related threats of President James and Plant Superintendent Wakefield to close the plant, lay off employees, or bar employees from future employment if they engaged in union activities or selected the Union as their bargaining agent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, which occurred in connection with the operations of the Respondent described in Section I, above, have a close, intimate and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes and policies of the Act. It having been found that Respondent unlawfully accelerated the layoff of its employees on October 17, 1969, in violation of Section 8(axl) and (3) of the Act, it will be recommended that Respondent make these employees whole for any loss of earnings they may have suffered as a 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of the discrimination against them . Since the amount of backpay due these employees will depend upon the time they would have been laid off absent the discrimination found, I shall leave this matter to be determined at the compliance stage of this proceeding. The names of the employees laid off on the aforementioned date are listed on Appendix B, attached hereto. It having been found that Respondent unlawfully discharged and unlawfully refused to reinstate Roy C. Garrison, Roy Hughes, and Bobby Ray Isom in violation of Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent offer these individuals reemployment to their former or substantially equivalent positions , and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them the sums of money equal to the amount they would have earned from the date of the discrimination to the date of the offer of reemployment , less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. I have also found that Respondent unlawfully failed and refused to employ certain of the laid off employees to fill the vacancies which became available after October 26, 1969, in violation of Section 8(a)(1) and (3) of the Act. I shall also leave to the compliance stage of this proceeding the determination of: (1) the number of such vacancies which became available, and (2) the particular individuals among the laid off employees who were properly entitled to these positions. Upon such determination, it is recommend- ed that Respondent offer these individuals reemployment to their former or substantially equivalent positions, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, in the manner indicated above . I shall also recommend placing the remaining laid off employees on a preferential hiring list. In view of the nature and extent of the unfair labor practices herein found, I shall recommend that Respondent be placed under a broad order to cease and desist from in any manner infringing upon the rights guaranteed its employees by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Franklin Homes , Inc., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Aluminum Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily accelerating a layoff of its employees on October 17, 1969, by thereafter discriminato- rily failing to recall certain of the laid off employees when work became available for them , and by discriminating with respect to the hire and tenure of employment of Roy C. Garrison , Roy Hughes, and Bobby Ray Isom, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above Findings of Fact and Conclusions of Law, and pursuant to Section 10(c) of the Act, it is recommended that Franklin Homes , Inc., its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discharging, laying off or refusing to reemploy its employees, or otherwise discriminating against employees, in order to discourage membership in or support of Aluminum Workers International Union, AFL-CIO, or any other labor organization. (b) Threatening employees with discharge , layoff, closing of the plant, or other reprisals if they joined the Union or engaged in activities on behalf of the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist Aluminum Workers International Union, AFL-CIO, or any other labor organization , to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make whole each of the employees who were laid off on October 17, 1969, for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in the Section entitled "The Remedy." (b) Offer to Roy C. Garrison, Roy Hughes, and Bobby Ray Isom reinstatement to their former positions or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges enjoyed, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against them, in the manner and according to the method set forth in the section entitled "The Remedy." (c) As further provided in the "Remedy" section of this Decision , offer to those employees who are entitled to the job vacancies which became available after October 24, 1969, immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner as therein provided. (d) Place the employees laid off on October 17, 1969, who FRANKLIN HOMES, INC. 397 have not been reinstated, on a preferential hiring list and fill appropriate vacancies therefrom. (e) 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 determine the amount of backpay due under the terms of this Recommended Order. (f) Post at its place at Russellville, Alabama, copies of the notice marked "Appendix." 13 Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by a duly authorized representative of Respondent, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including 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. (g) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.14 13 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 10248 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 National 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." 14 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writing, within 10 days from the date of this Order what steps Respondent has taken to comply herewith " APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Aluminum Workers International Union . AFL-CIO, or any other labor organization, by laying off or discharging employees or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition of employment. WE WILL NOT threaten to close our plant if our employees engage in union activities or select a union to represent them. WE WILL NOT threaten our employees with discharge, layoff, or other reprisals because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL make whole the employees laid off on October 17, 1969, for any wages lost as a result of our discriminatory acceleration of the layoff which oc- curred on this date. The names of the employees laid off on October 17, 1969 are listed on Appendix B attached hereto. WE WILL offer to Roy C. Garrison, Roy Hughes, and Bobby Ray Isom immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them. WE WILL offer to those employees who were entitled to the job vacancies which became available after October 24, 1969, immediate and full reinstatement to such former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them. WE WILL place all employees who were laid off on October 17, 1969, and who have not been recalled or reinstated, upon a preferential list for employment, and we will fill appropriate vacancies from such list. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named or any other labor organization. Dated By FRANKLIN HOMES, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Bldg., Rm . 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The following employees were laid off on October 17, 1969: Buford Newell Arthur Wright, Jr. Jimmy Clark Donald Lindsey Roy Garrison Bobby Isom Lewis Willis Clifton Hovater Horace Mann Faye Cantrell J. O. Taylor Gerald Murray Glen Hamilton Nolan Hulsey Charlie Hall Norman Cole Terry Cummings Clarence Bendall James Presley Billy Oswalt Lawrence Drummond Jimmy Stanley 398 Roy Hughes Ruby Jackson Bessie Cleveland Allie Creekmore Otho James Patsy Taylor Jimmy Williams Morris Borden Alvin Stancil Jimmy James DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Stone James Fisher James McClusky Carson Hovater Donnie Stancil Arvin Boyles Steve Wallace Leon Abernathy Lowell Kennedy The following employees were recalled after the October 17 layoff: Arthur Wright, Jr. Jimmy Clark Donald Lindsey Lewis Willis Clifton Hovater J. O. Taylor Ruby Jackson Bessie Cleveland Allie Creekmore Otho James Patsy Taylor Jimmy Williams Morris Borden Alvin Stancil Gerald Murray Nolan Hulsey Charlie Hall Clarence Bendall Lawrence Drummond William Stone James Fisher Carson Hovater Donnie Stancil Steve Wallace Lowell Kennedy Jimmy James The following employees were laid off on October 17, but not recalled: Buford Newell Roy Garrison Bobby Isom Horace Mann Faye Cantrell Roy Hughes Gen Hamilton Leon Abernathy Dated By Norman Cole Terry Cummings James Presley Billy Oswalt Jimmy Stanley James McClusky Arvin Boyles FRANKLIN HOMES, INC. (Employer) ( Representative ) (Title), This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Peachtree Bldg., Rm. 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.