Phelps Dodge Aluminum Products Corp.

ALABAMA ROD AND WIRE DIVISION Alabama Rod and Wire Division, Phelps Dodge Aluminum Products Corp . and Aluminum Workers International Union, AFL-CIO. Cases 26-CA-1999 and 26-RC-2271 May 27, 1969 DECISION, ORDER , AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULIOCH AND MEMBERS FANNING AND JENKINS On June 28, 1965, Trial Examiner C. W. Whittemore issued a Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further recommended that the election, of December 22, 1964, be set aside. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Upon consideration of Respondent's exceptions, the Board found that certain of them, dealing with adverse rulings of the Trial Examiner as to the admissibility of evidence, had merit. Accordingly, on May 18, 1966, the Board issued an Order Reopening Record and Remanding Proceeding to Regional Director for Further Hearing in accordance with the Board's Rules and Regulations. Thereafter, Trial Examiner Whittemore, after a further hearing in accordance with the terms of the remand order, issued his Supplemental Decision dated June 19, 1968, attached hereto. The Respondent has filed exceptions to the Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, 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, and Supplemental Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings,: conclusions, and recommendations of the Trial Examiner, as modified herein. 'In its brief in support of exceptions to the Trial Examiner's Supplemental Decision , Respondent renews its motion to disqualify the Trial Examiner on the ground of prejudice and to dismiss the complaint or in the alternative to order a remand of the entire proceeding for hearing before a different Trial Examiner. We find no merit in the Respondent's contentions as we see nothing in the record to indicate that his conduct of the hearing, his resolutions of credibility , or the inferences he drew were based upon a bias and prejudice in favor of the Charging Party and against the Respondent Company ; rather we are of the opinion that the record, as will be discussed in more detail below , supports the findings and the 176 NLRB No. 25 181 In his original Decision dated June 28, 1965, the Trial Examiner found that Respondent had engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the Act. Thereafter, we found merit in certain exceptions to the Decision filed by the Respondent because of the failure of the Trial Examiner to receive certain evidence, and on May 18, 1966, we issued an Order remanding the proceeding to the Regional Director of Region 26 which directed that a further hearing be held before the Trial Examiner for the purpose of receiving additional evidence relevant to: (1) authorization cards, and (2) the defenses of economic necessity and altered operations. Pursuant to this Order, a further hearing was conducted on October 25 through 28, 1966. By agreement of the parties the hearing was recessed in order to permit the parties to determine whether court enforcement of certain subpoenas would be sought. On June 14, 1967, the United States District Court issued its Order enforcing the subpoenas, and on August 22, 1967, the hearing was resumed, with the witness failing to appear. This particular witness, Mr. Arthur Hanks, an International Representative of the Charging Party, had been subpoenaed to testify regarding the authorization cards which he had solicited from various of the Respondent's employees. On October 5, 1967, we ordered that the hearing be reopened again for the purpose of receiving testimony of this single new witness. Subsequently, however, the General Counsel moved to dismiss from the complaint the 8(a)(5) allegations. On April 4, 1968, the Trial Examiner granted General Counsel's motion and dismissed the 8(a)(5) allegations, and the hearing was closed without Hanks' testimony having been taken.' After reviewing the record evidence in the remanded hearing relating to the? Respondent's defenses of economic necessity and altered operations, the Trial Examiner issued his Supplemental Decision of June 19, 1968, in which he reaffirmed his Section 8(a)(3) and (1) findings in his original Decision to which the Respondent has again excepted. 1. We agree with the Trial Examiner's findings that the Respondent violated Section 8(a)(1) of the Act. The record shows that almost every category of classical independent 8(a)(1) violations was engaged conclusions of the Trial Examiner. Accordingly, the Respondent's motion is hereby denied . See Henry Colder Company, 163 NLRB No. 13, fn. 1. 'The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products. Inc., 91 NLRB, 544, enfd. 188 F.2d 362 (C.A 3) We find no such basis for disturbing the Trial Examiner's credibility in this case. 'We find no merit in the Respondent's contention that the failure of union representative Hanks to testify was prejudicial in view of the dismissal of the 8(a)(5) violation to which his testimony would have been relevant. Whether the card signers had "union interest" or were "union adherents" is in our opinion merely a matter of semantics since to discharge employees for either reason would be violative of the Act. See Infra. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in by the Respondent. The violations were not only massive in the number of incidents involved, but were unsubtle in the message they conveyed to the employees that the Respondent not only opposed the Union, but would take positive steps to prevent the employees from exercising their right to self-organization. The 8(a)(1) violations found by the Trial Examiner in his original Decision are amply documented. The General Counsel presented approximately 26 witnesses, some still employed by the Respondent, who credibly testified to over 100 separate incidents of independent Section 8(a)(1) violations.' The General Counsel's witnesses testified to extensive and intensive interrogations by Respondent: e.g., they were asked how they felt about the Union, how other employees felt about the Union, if they had signed union authorization cards, if other employees had signed authorization cards and who those employees were . Most of these witnesses testified that management representatives had threatened them with plant closure if the Union were successful . Several testified that Respondent threatened to effectuate a general layoff and/or to discharge specific employees because of their union activity. The testimony further revealed that Respondent continually and constantly impressed upon its employees the futility of selecting the Union as their representative for the purposes of collective bargaining, by stating that the employees would be on strike if the plant were organized; by alluding to strikes at other unionized companies; by stating that the Union caused the employees at another of Respondent's plants to lose their benefits, and to miss receiving a wage increase. The testimony also revealed that several management representatives engaged in the surveillance of a union meeting in mid-October 1964, at a time the Union had begun its organizational campaign. In addition, testimony disclosed that Respondent created the impression of surveillance of the employees' union activities by telling employees that Respondent had someone watching their homes at night to see that the employees stayed in; that Respondent knew who had signed union cards; that Respondent knew "what's been going on ever since it started"; and that employees were seen at other employees' homes getting union cards signed. The Respondent also made manifold promises to its employees that if they would refrain from being or becoming union members or engaging in any activity on behalf of the Union they would be guaranteed job security, better working conditions, higher wages , and greater fringe benefits.' Not wishing to burden the record with cumulative evidence regarding 8(aXl) violations, the Trial Examiner suggested to the General Counsel that additional evidence of this nature was unnecessary . Accordingly, the General Counsel limited his witnesses and pursuant to such suggestion thereafter merely proferred the names of approximately 12 additional witnesses who would testify if called as witnesses to alleged unlawful interrogations by Respondent's supervisors. Additionally, the Respondent promulgated a no-solicitation rule which was directed only against union activity. At the same time it permitted and condoned participation in antiunion activity by one of its employees. Accordingly, the Trial Examiner's detailed findings and conclusions of violations of Section 8(a)(1) based as they are on testimony oftentimes uncontradicted6 and many times corroborated or partially corroborated by management witnesses,' are hereby adopted. 2. The Respondent excepts to the Trial Examiner's Section 8(a)(3) findings regarding the discharges of employees Clymer and Rochelle. For the reasons discussed below, we find without merit the Respondent contentions that these employees were discharged for insubordination rather than for union activity. The Trial Examiner found that Clymer was the leader among the employees in the initial organizational drive which began in early October 1964 and that he was discriminatorily discharged on October 8, 1964. The Trial Examiner concluded that the reason advanced for Clymer's discharge, his insubordination towards the plant superintendent over a work assignment, was pretextual and that the true motive for the discharge was to rid the Respondent of the principal union advocate among its employees. Not only does the Respondent contend that Clymer was discharged for cause, but denied that it had knowledge of Clymer' s union activities. We note initially that Respondent's contention that it had no knowledge of Clymer's union activity at the time he was discharged is contrary to the evidence. Clymer was one of the first four employees to contact the Union on October 2, 1964, at which time he signed a union authorization card. Thereafter, he led the union organizational drive 'Respondent granted a wage and fringe benefit increase to its employees shortly after the Union began its organizational campaign. 'For example, General Counsel presented several witnesses who testified to 8(aXl ) conduct engaged in by General Foreman Bernard Elmer Burns, namely, interrogation, threats to close the plant , threats to effectuate a general layoff of employees and/or to discharge specific employees, promises of benefit, and creating the impression of surveillance. Burns was never presented by Respondent to testify, and therefore, each of these specific accusations was uncontroverted. 'Welding Foreman Ezell Rose admitted having many conversations with employees about the Union, both at the plant and at the homes of employees. He admitted interrogating employees about the union activity and about the union cards without telling them why they were being interrogated ; he admitted telling employees that if the Union was successful in its organizational campaign the employees would not work as much overtime ; and he admitted telling employees during a conversation about the Union that the employees were better off working than losing time. Rod Mill Foreman J. B. Burns admitted talking to employees about the Union, at the plant and at the employees' homes and to telling them during these conversations that if the Union were defeated , the Company would be a better place to work. Bar Mill Foreman Milton Stephens also admitted to extensive union discussions with employees in which he told these employees that the plant would close if the Union's campaign was successful. He also admitted telling employees, during these union conversations, that if the Union was defeated, the Company would be a better place to work in the future. ALABAMA ROD AND WIRE DIVISION seeking out employees at their homes and obtaining signed authorization cards from a majority of unit employees. During this week and prior to his discharge, he admitted on several occasions to Scalping Foreman James Lunn that he was for the Union. After he was discharged by Plant Superintendent Cobb, employees were warned by management officials to stay away from Clymer. We find, therefore, that Respondent had knowledge of Clymer's activities on behalf of the Union prior to his discharge. As for the reasons advanced by the Respondent as a basis for his discharge, we find, in agreement with the Trial Examiner, that Clymer's alleged insubordinate conduct toward his superiors was not the true cause. The record shows that soon after he became active in organizing the Union he was given without explanation a disagreeable work assignment and when he inquired about the reason for such assignment he was merely told that he, Cobb, was not obliged to give any reason and that Cobb could put Clymer on a pick and shovel if he wanted to. Admittedly, Clymer was a satisfactory employee and there had been no criticism of his work prior to the reassignment . After this curt explanation Clymer returned to his work station and there uttered language which is the basis for Respondent's charge that he was insubordinate to a degree requiring his discharge. We note that Clymer's allegedly profane remarks were an expression of his resentment of what he considered arbitrary treatment by Plant Superintendent Cobb, and, were stated to Foreman Stephens who was not responsible for Clymer's transfer. Foreman Stephens immediately reported Clymer's conduct to Cobb, whereupon Cobb called for Clymer and peremptorily terminated him. We further note that such language was not uncommon in the plant and was part of the give and take relationship between employees and supervisors as well as between employees. In view of the provocation which prompted Clymer's remarks, the nature of the remarks themselves, and the plant background in which the remarks were uttered, we are unable to find that they indicated such aggravated and gross misconduct as to warrant such drastic and precipitate action by Cobb, and we agree with the Trial Examiner that in the circumstances the discharge of Clymer was not for the reasons asserted by the Respondent, but was for discriminatory purposes." We further find that Clymer's discharge was part of Respondent's extensive overt antiunion campaign and that the true motive in discharging Clymer was to rid the Respondent of the Union's major adherent and to defeat the Union' s organizing campaign. Accordingly, we conclude that by such discharge, Respondent violated Section 8(a)(3) and (1) of the Act. 183 Similarly, we agree with the Trial Examiner that Rochelle was discharged by the Respondent because of his union activity and not for the purported reasons stated. Respondent's knowledge of Rochelle's union interest appears clear. He was one of the first employees to sign a union authorization card, toward which activity, as discussed, the Respondent evinced a public and hostile interest. He was seen at the union hall by management officials in the acts of surveillance in mid-October found to be violative of Section 8(a)(1). Also, shortly before the discharge Plant Manager Rainey sought out Rochelle to convince him of the advantages of working for Respondent. Rochelle at that time made unmistakably clear to Rainey that he supported the Union. Rochelle was terminated for refusing to punch out when ordered to do so by Plant Superintendent Cobb and for making insubordinate remarks when he and two other employees allegedly violated a safety rule. During the trial Respondent sought to imply that the reason for Rochelle's discharge was his violation of a safety rule. No disciplinary action was taken against the other alleged violators, and Respondent' s counsel ultimately asserted, "Respondent is not contending that the man was fired because he was off the mill." The Respondent contends that it did not intend to discharge Rochelle at the time he was called into the office but only to discipline him. We are satisfied that when Rochelle was called into Cobb's office, it was for the purpose of discharging him and not for the purposes of discipline as asserted by Cobb. At no time was Rochelle told that he was only to be disciplined by a temporary suspension at the time he was ordered to punch out. Nor do we find the Respondent's explanation strengthened by its subsequent explanations that Rochelle had been involved in previous acts of insubordination and that the above conduct must be viewed as more than just a single incident. On the basis of the foregoing, including Respondent's demonstrated hostility to the organizing activities of its employees, its knowledge of Rochelle's participation in such activities, and the fact that the reasons advanced for Rochelle's discharge do not withstand scrutiny, we agree with the Trial Examiner that the reasons advanced for Rochelle's discharge were pretextual and that the real reason for his discharge was because of union activity in violation of Section 8(a)(3) and (1) of the Act.' 3. The Respondent excepts to the Trial Examiner's finding that the Respondent's discharging 32 unit employees on November 20, 1964, was violative of Section 8(a)(3) of the Act. Principally, Respondent contends:(1) that it was 'See Santa Fe Drilling Co., 171 NLRB No. 27, cases cited in fn. 3. 'See e.g., Buss Machine Work , Inc.. 170 NLRB No. 109; LTV Electrosystems, 169 NLRB No. 64. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deprived of due process and a fair hearing in that it was not permitted to call and examine International Representative Hanks, and (2) that the Trial Examiner failed to consider, properly evaluate, and make appropriate findings regarding Respondent's defenses of economic necessity and altered operations. With regard to the first contention, Respondent argues that the testimony of International Representative Arthur Hanks, who had solicited union authorization cards from several employees, would be relevant to the alleged 8(a)(3) violations since the General Counsel relied upon the Union cards as the sole basis for showing that the alleged discriminatees were sympathetic to the Union. Respondent argues that if it had been permitted to call Hanks it would have been able to show that the employees solicited by him had signed the authorization cards for the sole purpose of getting an election rather than to designate a representative and thus, according to its view of the law, the cards could not be used as evidence of union activity on the part of the employees. Assuming that Respondent's witness would have so testified, the argument nevertheless is without merit. The signing of a union authorization card is no less a protected activity under Section 7 if the motive of the signer is to obtain an election than if it is to designate a bargaining representative. Clearly, both types of activity are protected under the Act."' An employer who discharges an employee because he had signed a union authorization card for the sole purpose of obtaining an election discriminates against such employee within the meaning of Section 8(a)(3) just as much as does one who discharges an employee because he has signed an authorization card for the specific purpose of designation of a bargaining representative. Indeed, Respondent's contention is refuted by conduct of its own supervisory officials seeking to identify card signers through unlawful interrogation, surveillance of union meetings, and other illegal activity discussed above, conduct clearly demonstrating that the Respondent regarded the act of signing cards as an expression of sympathy and support for the Union and as identifying such signers as union supporters. Moreover, such conduct demonstrates that Respondent had knowledge of this union activity of the card signers. In any event, it is clear that Respondent was not apprised of the fact that the card signers may have signed the cards only to obtain an election until long after the events in issue occurred. It is clear, therefore, that this contention of Respondent is an after thought and merits no serious consideration. The issue as to whether the Respondent's reasons for terminating the employees on November 20, "It is true, of course, that an authorization card may be invalidated as a reliable designation of a bargaining representative when signed solely for the purpose of obtaining an election. However , this is not the issue here. 1964, were based upon economic considerations is, of course, pertinent and crucial. The Respondent contends that it was obliged to lay off the 32 employees in question because of lack of orders, and that the layoff was made permanent because the installation of new equipment made full scale production in the immediate future unlikely. The Respondent's widespread and intensive antiunion campaign strongly supports the inference, absent convincing and credible evidence to the contrary, that the Respondent's action on November 20, 1964, was motivated by antiunion animus. As noted above, and detailed in the Trial Examiner's Decision, the record is replete with evidence of numerous threats by Respondent's supervisors to terminate employees because of their union activity. Thus, Foreman Bernard Elmer Burns told employee Pigg that "it would not hurt Phelps Dodge. . . to Iay off some men for a while," and he told employee Ivey that if the Union did not come in, no one would be fired. Foreman Stephens threatened employee Wallace King that the employees "would be out of a job in the winter time watching others work." Foreman J. P. Burns admitted to employee Odom that the November 20 terminations, and the employees selected therefor, were based on union activity. He also told William LeMay that if the Union came in, employees would be laid off and the plant closed, but if the Union was defeated, there would not be any layoff. As to timing, the layoffs appear to be the last phase of a calculated plan to counteract the Union's activity and to discourage support for the Union. Thus, the Union's organizational drive began the beginning of October, and on the day the demand for recognition was made on October 8, the leading instigator of the union activity, Clymer, was unlawfully discharged; thereafter, the Respondent engaged in extensive 8(a)(1) activity, and employee Rochelle, a vocal union supporter was unlawfully discharged on November 2; and finally, on November 20, about a month before the representation election, 32 employees, mostly union adherents, were discharged. The employees affected in the layoff were not selected strictly through seniority and had been given no advance notification. Respondent's contentions that the layoff was precipitated by lack of orders appears to be unsupported. Although from 50 to 75 percent of Respondent's orders came from other Phelps Dodge plants and records were thus easily available, Respondent introduced no substantial evidence to support its lack of business defense. Instead, the Respondent sought to support its contention through the introduction of certain charts containing summaries reflecting a parallel diminution in production and personnel. Perhaps the most significant conclusion to be drawn from these records was stated by Rainey during his testimony: ALABAMA ROD AND WIRE DIVISION The production of the rod plant was cut with the termination of the people, because at that time we couldn't operate the two mills simultaneously. [I]t takes a certain number of people to operate these mills, which prior to this date of November 20 we operated simultaneously. After termination of these people we could only operate the mills individually. Consequently our production rates went down, because we couldn't operate the rod mill, which is the one that produces rods. We could only operate it on alternate days. Thus, these charts do not in our opinion demonstrate that the employees were laid off because of a lack of orders, nor do they demonstrate that there was in fact a lack of orders. Rather, they merely support Rainey's testimony that a relationship exists between the amount of production and the number of production employees available, and that production is necessarily curtailed when the number of employees is reduced. The only other substantial evidence relating to the Respondent's contention that the November 20 layoffs were based upon economic considerations was the uncorroborated testimony of Plant Manager Rainey that in his opinion there was a business slowdown. We, therefore, find the economic justification put forward by the Respondent to justify the layoffs unpersuasive. The facts relating to the terminations must be considered against the background of the Respondent's active and vigorous union animus, as detailed above, including numerous threats by supervisors and officials that the plant would be closed and that employees would be discharged because of the interest of the employees in the Union. We find significant that in discharging the 32 employees seniority was not followed strictly and that 90 percent of the employees involved had signed union authorization cards, and that no advance notice or announcement was made to the employees affected. On the basis of this background and the entire record, we are satisfied, in agreement with the Trial Examiner, that Respondent's termination of the 32 employees on November 20 was motivated not by economic considerations, but by Respondent's hostility to the Union and was intended to discourage union membership and activity, and to deprive employees of the rights guaranteed by the Act, thereby violating Section 8(a)(3) and (1) of the Act. 4. With regard to the objections to the election, as noted above, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) during the critical period, between the date the petition was filed, October 12, 1964, and the date the election was held, December 22, 1964. It has been held that when such conduct occurs during this period this is a fortiori grounds for setting aside 185 the results of the election, since it is clear that such election could not be held in an atmosphere conducive to a free choice of representatives." Accordingly, we shall set aside the election and direct that a second election be conducted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Alabama Rod and Wire Division, Phelps Dodge Aluminum Products Corp., Columbus, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete "Conclusions of Law" numbered "4" and "5" and renumber the following "Conclusions of Law" accordingly. 2. Delete paragraph 3 from the section entitled "The Remedy." 3. Delete paragraph 1(b) from the Recommended Order and reletter the following paragraphs accordingly. 4. Delete paragraph 2(d) of the Recommended Order and reletter the following paragraphs accordingly. 5. Delete the fifth indented paragraph of the Appendix B "Notice to all Employees." IT IS FURTHER ORDERED that the 8(a)(5) allegations contained in the complaint be, and they hereby are, dismissed in their entirety. IT IS FURTHER ORDERED that the election held on December 22, 1964, among Respondent's employees, be, and it hereby is, set aside, and that Case 26-RC-2271 be, and it hereby is, severed and remanded to the Regional Director for Region 26 for the purpose of conducting a new election among the employees in the unit found appropriate in his Decision and Direction of Election dated December 9, 1964, at such time as he deems that the circumstances permit the free choice of a bargaining representative. [Direction of Second Election12 omitted from publication.] "Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786-87. "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc., 156 NLRB 1236; N L.R.B. v. Wyman-Gordon Company, 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE C. W. WHITTEMORE, Trial Examiner: Upon charges and amended charges filed by the above-named labor organization on several dates between December 23, 1964, and February 15, 1965, in Case 26-CA-1999, and pursuant to a Supplemental Decision and Order Directing Hearing, issued by the Regional Director for Region 26 on February 23, 1965, in Case 26-RC-2271, the said Regional Director on behalf of the General Counsel of the National Labor Relations Board on March 19, 1965 , issued an Order Consolidating Cases, a complaint and a notice of a consolidated hearing. On March 29, 1965, the Respondent filed an answer to the complaint . The complaint alleges and the answer denies that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended . Pursuant to notice a hearing was held in Columbia, Tennessee, on April 20, 21, 22, and 23, 1965, before me. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally and to file briefs . A brief has been received only from General Counsel. After the hearing, and pursuant to an understanding reached by all parties during the hearing , I have received from General Counsel copies of certain documents relating to Case 10-RC-6126, involving the certification of the Charging Union at another plant of the Respondent. General Counsel's covering letter states that copies of said documents have been served upon the Respondent. No objection having been received from the Respondent, said documents and covering letter are hereby made a part of the record as Trial Examiner's Exhibit 1. Upon the record thus made, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT-EMPLOYER Alabama Rod and Wire Division, Phelps Dodge Aluminum Corp., is a Delaware corporation with a plant and place of business located at Columbia, Tennessee, where it is engaged in the manufacture of aluminum rods. During the year preceding issuance of the complaint it produced, sold and shipped products valued at more than $50,000 from its Columbia plant directly to points outside Tennessee. The complaint alleges , the answer admits, and it is here found that the Respondent is engaged in commerce within the meaning of the Act. 11. THE CHARGING PARTY-PETITIONER Aluminum Workers International Union, AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and chief issues In mid-May 1964, the nationally known concern of Phelps Dodge purchased a going business in Columbia, Tennessee, called Columbia Metal Products, Incorporated. One Horace Rainey, Jr., continued to be the plant manager, as he had been since 1955 with the predecessor enterprise. At the time of the hearing Phelps Dodge had at least three plants in its aluminum division: one in Florence, Alabama, another in Covington, Georgia, and the plant which it had recently taken over in Columbia, the one plant with which this case is immediately concerned. The testimony of Rainey establishes that the two operations in Georgia and Alabama directly control the majority of aluminum rod production at the Columbia plant, since the latter depends upon the other two for between 50 and 75 percent of such orders. The record indicates no history of unfair labor practices or of efforts at self-organization at the Columbia plant until a few months after Phelps Dodge acquired it. On October 2, 1964, at the invitation of an employee made earlier, a representative of the Charging Union came to Columbia, where he met in a public place with four plant employees, one of whom was summarily discharged a few days later under circumstances described in a later section and whose dismissal is alleged as a violation of Section 8(a)(3) of the Act. These four employees and others participated in an intensive organizing campaign , visiting at employees' homes and obtaining signatures to authorization cards. As will be discussed hereinafter a majority of the employees then on the payroll signed such authorization cards on or before October 8, when the Union sent to the employer a formal demand for recognition and bargaining. Management not only failed to reply to the Union letter but it is conceded in the answer that at all times since receipt of the demand the Respondent has refused to bargain with the Union. This refusal is the basis for the 8(a)(5) allegation of the complaint. Also on October 8 the Respondent not only fired the employee leader above referred to but through its plant manager, Rainey, assembled all employees and announced that an 8 cents hourly wage increase would become effective as of the following week, and made it clear that "outside" representation was not wanted at this plant. It is General Counsel's contention that this raise and other promised benefits were given for the unlawful purpose of discouraging union organization. On October 12 the Union filed with the Regional Office a petition for an election and certification. A hearing was held on the petition on November 4. The day before this hearing management summarily discharged another employee-leader in the union organizational campaign, one Rochelle, whose dismissal is also the subject of an 8(a)(3) allegation. On November 20, some 2 weeks after the representation hearing, the Respondent suddenly terminated the employment of nearly half its working force in the appropriate unit. The mass discharge is alleged as a violation of Section 8(a)(3) of the Act. A direction of election was issued on December 7, 1964, and the election was conducted on December 22. The following day the Union filed the first of its several charges and on December 29 filed its objections to the election . Some 28 of the 33 challenged ballots involved employees included in the mass discharge of November 20. On February 23, 1965, as previously noted, the Regional Director issued a Supplemental Decision and Order Directing Hearing, in which he ruled upon certain objections but ordered a hearing on others. ALABAMA ROD AND WIRE DIVISION The record is replete with credible evidence, much of which is undisputed, to the effect that since early October 1964, when management admittedly became aware of its employees' efforts to organize, many of its representatives engaged in conduct prohibited by the Act, all of which General Counsel contends was designed to deprive employees of their rights guaranteed by Section 7 of the Act. A summary of such conduct appears in the following section of this Decision. B. Interference, Restraint, and Coercion At the outset I note that in nearly 28 years of conducting hearings for the Board never have I received so much detailed and credible testimony concerning coercive threats and promises uttered by management representatives to so many employees in so small a plant, as in this proceeding. Indeed, so burdensome was the record becoming with evidence concerning incidents of a like nature and involving the same company agents that I finally asked General Counsel to forego offering more such cumulative testimony. Acceding to this request, General Counsel named a dozen additional witnesses whom he had intended to call but whom he would and did withhold. All such threats and promises by subordinate management representatives summarized below are consistent in tone and intent with the company policy set out at length in a letter admittedly sent to each employee by Plant Manager Rainey just before the Board-conducted election. In that letter Rainey bluntly made the Respondent's position unmistakeably clear by stating: "We are very much opposed to this Union," by warning employees that at the election they would be voting "to determine whether or not your rights as an employee of this company will be turned over to the Aluminum Workers Union,"' and by the thinly veiled threat that "the decision you make will probably be one of the most important decisions you will ever make since the outcome of this election could affect your future and could seriously change the future of this plant."2 Before turning to the summary of actual events, it may be well here to determine a point in issue: whether or not the Respondent is to be held accountable for conduct engaged in by three individuals; Billy Haines, Howard Burns and Elmer Rummage, all of whom the complaint alleges and the answer denies are "agents of the Respondent" and supervisors within the meaning of Section 2(11) of the Act. Whatever their actual titles, if any (Rainey claimed they were called "lead men," the more credible testimony of at least two employees is to the effect that bulletins were posted announcing Rummage and Burns to be "assistant foreman") there is small dispute as to the facts that: (1) all three act as and exercise the full authority of department foremen, admitted to be supervisors within meaning of the Act, when such foremen are absent from their assigned departments because of illness, vacations, or temporarily in other plant areas; 'An obvious distortion of facts , since a Board election merely determines whether or not a majority of employees , as principals, desire a union to serve them as their bargaining agent. 'The significance as a violation of the Act of this bald threat to an employee's future, voiced as it was shortly after the abrupt discharge of half the working force, will be considered below. 187 (2) higher management considers recommendations of these individuals, as it does of foremen; (3) Haynes, at least, actually discharged one employee, and effectively recommended the hire of another; (4) all three are paid substantially higher wages than employees under them; (5) all three are present at supervisory meetings not attended by rank and file employees; and (6) on a number of occasions, described more specifically below, each of the three accompanied foremen on their visits to employees' homes in carrying out management's announced policy of "opposing" the Union. It is concluded and found that Haynes, Howard Burns, and Rummage were, at times material herein, supervisors within the meaning of the Act and agents of the Respondent.' The Respondent concedes the management representative status of the following named, who are involved in one or more of the incidents to be described below: Plant Manager Rainey ------ Foreman Stephans Plant Superintendant Cobb ----- Foreman Ross General Foreman B.E. Burns Foreman J. B. Bruns The following summary findings, noted below, are based upon the credible testimony of employees, a good part of which is not specifically contradicted and some of which is not disputed in any fashion. General Counsel's witnesses not only testified at length and in detail but withstood rigorous cross-examination despite the advantage accorded counsel for the Respondent in permitting him to use, for cross-examination, affidavits previously obtained by Board agents from the witnesses. 1. Foreman Stephens engaged in the following conduct: a. The day after Rainey's promise to all employees of a general raise, Stephens told employee Pigg that both Rainey and Cobb had informed him that no union would be tolerated at the plant, and that to prevent it the plant would be closed. A few days after the promised raise had been received by the Columbia plant employees, Stephens told Pigg that employees at the Phelps Dodge Alabama plant had not received the raise because of the Union. He told Pigg to pass this information along to other "hot heads" in the department. b. Stephens asked employee Moore what he thought about what was "going on," and declared that the plant would close if the Union came in. Two or three days later Stephens went to Moore's home and repeated the threat of the plant closing. c. On many occasions during the organizing campaign and before his eventual discharge on November 20, employee Ellis was repeatedly warned that if the Union came in the plant would close, and that it was a bad time of the year to be laid off or fired. Stephens mentioned an Alabama plant which had been closed because of a union, where 300 or 400 men lost their jobs. Stephens also asked Ellis who and how many employees had signed union cards. One night Stephens visited Ellis at the home of the latter's father, and for some 2 hours urged him to try to 'As authority for such conclusions General Counsel appropriately cites Research Designing Service, 141 NLRB 211, and The Bama Company, 145 NLRB 1141. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get "the boys" to change their mind and go "non-union." He promised that if so in 2 years Phelps Dodge would be paying them more money than any other plant in the vicinity. He cited a plant in Alabama where employees had lost all their privileges because they had voted a union in. d. Stephens made similar threats of plant closing and promises of higher pay if the Union were kept out to employees Beard, Collins, Hill, Ronnie Lunn, Ray Odom, Whelan King, and Rochell, Jr. e. Stephens asked employee King if he had signed a union card, and when the employee replied that he had not, the foreman asked him to find out and let him know who had signed . A few days later Stephens again called King aside and declared that he knew that either he or his brother had signed a card . Stephens said he would call at his home that night, but later in the day said he could not. Howard Burns went to visit King in Stephens' place. As will be noted more fully below , Burns promised King a job as long as he wanted if he would withdraw from the Union. The next day Stephens asked King if he had thought over what Burns had said, advised him to "wake up," and warned that things were not looking "good." f. In early November Stephens called employee Estes outside, told him that the company knew what was going on ever since it started, queried him about going to a certain place with employee Clymer, an organizing leader who had been fired on October 8, and after ascertaining that he had a wife and family warned him that he would hate to see him lose his job "over something like what was going on." g. On October 8, the day Rainey made it clear to assembled employees that the Respondent opposed union organization, employee Ray Odom and seven others sent Rainey a letter which stated, in part, that because of having been "molested" by foremen about the organization they were frankly admitting to management that they had signed union "authorization cards." Labor Stephens called Odom from his job, asked him to change his mind and help get the Union "out," and if he did he would not be "sorry." Apparently since one of the letter signers, Clymer, had already been fired under circumstances described below, Odom voiced his opinion to Stephens that if the Union were "voted out" he would probably be fired anyway. The foreman assured him that in such case he would not lose his job. Later in the day Stephens again approached Odom and said that Cobb had said that if the Union "was voted in" the plant would close. h. A week or two after employee Kelley was hired on October 5, Stephens asked him if he had heard about the Union, told him the company did not want a union, and asked him to report any union talk he heard. General Foreman Burns engaged in the following undisputed conduct: a. In mid-October he asked employee Pigg what he thought of the "situation." Pigg said he was trying to stay neutral . Burns pointed out that the company had given hi m a wage increase and promised other benefits. He told the employee of a plant in Alabama where a strike had occurred when the Union tried to organize, and that the Union had deserted the employees. When the employee asked for directions to reach this place, so he could go down and get "some first hand information ," Burns began to "back up" and said his story was only "hearsay." Later Burns told the same employee that he had heard the plant would close if the Union should be voted in, and that it would not hurt Phelps Dodge to lay men off for awhile. He told the employee of the company's planned "expansion," and urged him to give the company a "chance." b. Burns approached employee L. D. Estes, Sr., and told him that "it has been reported to us" that his son, also an employee, had been seen with Clymer, a union leader who had been fired on October 8. He told the father that his son was a good worker and he did not want to see him get "mixed up" with "this kind of people." Burns also told him that the "big bosses " had informed him that "the plant would shut down before they would operate under a union." c. Employee Ivey was one of the employees who notified management , in the letter above-referred to, on October 8 that they had signed union authorization cards. Burns called Ivey away from his work, reminded him of all the "company had done" for the employees, and warned that the plant would be closed if the Union came in. He also warned the employee that he had better stay at home with his wife and baby at night, because "we've got somebody out watching you." Ivey replied that it probably would do him little good if he did stay at home, since they had already fired Clymer. Later Burns went uninvited to Ivey's home, and for some 2 hours talked against the Union, threatening that the plant would be closed. d. Shortly after the organizing campaign began Burns and Haynes (previously indentified as one whose supervisory capacity was questioned by the pleadings) went uninvited to the home of employee LeMay and asked him how he felt about the Union and if he had signed a card. LeMay admitted that he had. Burns asked who had given him the card and the employee declined to say. Burns then told him that one King, apparently a divisional manager, had told him that if the employees would give him "two years," they would have better working conditions and higher wages, but had said that if the Union came in they could lay the employees off and "shut the plant down," as they had done in Alabama. He also quoted King as saying that they were planning to p ut another "mill" in the plant, and if the Union did not come in there would be no layoffs. The following conduct was engaged in by Plant Superintendent Cobb: a. Shortly before he was included among the mass discharges of November 20, employee Pigg was approached by Cobb, who said that "sometimes he didn't like to do some of the things he had to do" and then reminded him of the several benefits the company had given and promised. He declared that if he wanted to be "rotten" enough, he could get rid of a man "if he was just so of a mind to," and he "wanted some help in talking to those boys out there." Pigg countered by suggesting that Cobb give his "sales pitch" to employees himself, and was shortly fired. b. Cobb called employee Ivey from his work and in effect asked him why he had to have someone represent him. He pointed out what Phelps Dodge had done for the employees, and said that he would not be fired if he would "forget about it." (As noted, Ivey had signed the letter of October 8.) Ivey reminded him that he would probably be fired anyway, since another signer, Clymer, had been fired. Cobb merely replied, "Yeah." c. Cobb told employee Ellis that if employees would "leave the union alone," for a couple of years Phelps Dodge would see that they got "real good money." ALABAMA ROD AND WIRE DIVISION d. Cobb told employee Sullivan that Phelps Dodge would not let the Union come in, but would close the plant. He told Sullivan, who also had signed the letter of October 8 as a signer of a union card, that if he would "reconsider" he could have a job as long as he wished. Apparently as a result of such warnings, Sullivan and employee Ellis finally went to Cobb and said they had been thinking over what he had said, and couldn't make up their minds. Cobb advised them to write a letter in their own handwriting for posting on the plant bulletin board, to let the "other boys" know they were against the Union. It appears that neither employee wrote such a letter, and both were among the November 20 discharges. e. Cobb guaranteed his job to employee Ronnie Lunn, who also had admitted signing a card in the October 8 letter, if he would "back out." f. Cobb told employee Odom that the plant would close if the Union was voted in. Foreman Rose engaged in the following conduct: a. Rose told employee Stanfill, who also had signed the letter above referred to, that he would guarantee him his job if he would have nothing more to do with the Union, but warned him that if the Union should come in the plant would close. b. About a month before being included in the mass discharge employee Irwin was asked by Rose if he had signed a card and told that if he had, everything would be all right if he would go to the office and talk with Cobb. b. Rose also told employee Sullivan, after the October 8 letter had been received, that if he would reconsider he could have a job as long as he wanted, but warned him, as he had Stanfill, that the plant would be closed if the Union came in. c. Rose accused employee Collins of being seen with the "boys" getting cards signed , and warned him that the plant would be closed if the Union came in. Rummage (previously found to be a supervisor) engaged in the following conduct: a. Rummage told employee Stanfill that he was a good worker, and if he would go to Cobb and tell him he would drop the Union, he would not be laid off and out in the cold. b. Rummage approached employee Sullivan and asked how he felt about the Union. The employee replied that he should know since his name was on the letter above referred to. Rummage then threatened that the plant would close. Haynes engaged in the following conduct: a. He told employees Stanfill and Beard that the plant would close if the Union came in. b. Haynes reminded employee King that he had told him, upon his being hired, that the company wanted no union at the plant, and said that if he would "keep his mouth shut" he could have his job. Howard Burns engaged in the following conduct: a. Burns went to employee King's home, telling him that he came to see if he was for the company or for the Union. He promised the employee that if Phelps Dodge were to be given 2 years the employees would get good "fat" wages. He asked King if he had received any mail from the Union that day, and promised that if he would turn it over to Cobb and "get out" of the Union, he could have a job as long as he wanted. b. Burns threatened employee Estes that the plant would close if the Union came in. The above-described course of conduct of threats, promises, interrogation, and claims of surveillance 189 constituted unlawful interference, restraint, and coercion.' Rainey's speech of October 8, moreover, promising a wage increase and other benefits, while at the same time making it plain to employees that these benefits were for the purpose of discouraging union membership, constituted a violation of Section 8(a)(l) of the Act. As a witness he admitted that he was aware of the union activity when promising the raise.' Also violative of the same section of the Act was the actual granting of the wage increase and benefits, which became effective after the Union's demand for recognition. Also unlawful was an incident of surveillance of a union meeting placed in mid-October, engaged in the same evening by several management representatives, including Stephens, Howard and J. B. Burns, Rose and Haynes. Credible testimony established that these supervisors drove slowly by the hall several times. In substance they admitted being in the vicinity and seeing certain union adherents there. Their feeble claim that they went to look for a used car, in one case, and in another to buy tires lacks persuasive merit, as does the coincidence that all five supervisors should have legitimate reason to be in the same area at the same time. Howard Burns, riding with Stephens, claimed that the latter wanted to look at a car, but admitted they never even stopped at the lot. I also find merit in the allegation of the complaint to the effect that the sudden posting of a notice shortly after Rainey's speech forbidding any union activity during working hours was violative of the Act. No activity, talking, or solicitation except that relating to the Union was so prohibited. Such proscription was clearly disparate and discriminatory. Especially is this so since as found above, supervisors repeatedly and persistently called employees from their work to try, by coercion, to discourage union membership. Finally, credible evidence establishes and it is found that management representatives were aware of, permitted and condoned the activity of one employee, McNeese, in circulating about the plant during working hours, seeking signatures to an antiunion petition. As a witness for the Respondent McNeese admitted that he was able to obtain so few such signatures that he did not, as he had intended, turn the petition in to the Respondent. His activity in this respect is consistent with the efforts of supervisors to get card signers to withdraw their union allegiance.' C. The Unlawful Discharges 1. Carl Clymer Clymer, the most active leader in the organizing campaign, was summarily discharged on October 8 by The Trial Examiner can credit none of the general or specific denials drawn by counsel for the Respondent from the supervisors . In many cases these individuals admitted the occasion, but made such obviously implausible claims as contending that employees came to them for confession and advice In many respects their testimony is seriously contradictory to statements appearing in previously given affidavits to a Board agent. 'Employee Pigg credibly testified that he was told by Stephens that the wage increase was to prevent the Union from coming in. 'In his able brief General Counsel urges that it be found that certain pretrial conduct on the part of counsel for the Respondent, in querying employees just before the hearing as to whether they had signed union cards, was violative of the Act Although the Trial Examiner agrees that such interrogation, made in the presence of Cobb and Rainey, was unlawful, he finds it unnecessary to make a specific finding of a violation of Sec. 8(a)(l) of the Act. The record is replete with far more aggravated incidents of coercion and interference. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cobb, the same day Rainey made his unlawful speech to employees. Circumstances previously described make it plain, and it is found , that management was well aware of his activity in visiting employees at their homes on October 2 and thereafter in getting union cards signed. No credible evidence was adduced by the Respondent to show why Clymer, 3 days before being fired, was suddenly transferred from his regular job to undesirable work usually performed by new and inexperienced employees. Clymer remained, however, at such work for the next 3 days without protest. Finally , on October 8, he asked first Foreman Stephens and then Cobb for a reason. He was told bluntly by the superintendent, according to the latter's own testimony, "that I did not have to give him a reason." Clymer asked him, also according to the superintendent, if his work performance was satisfactory, and was told that it was. The employee returned to his work and may very well have made some uncomplimentary remark to his foreman about the callous and unwarranted treatment he had received from the superintendent. He may even , as Stephens claimed, used a couple of oaths, and said that Cobb should be pulled off his "big white horse." In any event Stephens promptly hastened to Cobb, gave the superintendent some version of Clymer' s protest, and the latter immediately called the employee in and fired him, as he himself admitted, without giving any reason. As a witness, Cobb claimed he dismissed Clymer for insubordination . Under all the circumstances revealed by the record, including the threats uttered both by Stephens and Cobb to other employees, as well as Cobb's own testimony relating to the discharge , I am convinced that the superintendent himself provoked and precipitated any grumbling resentment Clymer may have expressed to his foreman , and that he then used his reported remarks as a pretext for ridding the plant of its known union leader. Subsequent events, undisputed, support the conclusion that the discharge was discriminatory and to discourage union membership and activity . As previously found, Estes, Sr., was told by General Foreman Burns that his son would be fired if he continued in company with Clymer. It is concluded and found that by the unlawful discharge of Clymer the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. 2. Ernest Rochelle This employee, when summarily fired by Cobb on November 3, possesses seniority in service at this plant exceeded by very few others . There is little dispute that down through the years he had engaged in occasional horseplay - indeed in one instance it is undenied that he was aided and abetted by Foreman J. B. Burns, yet at no time until November 3 had he been disciplined or warned. Since at least mid-October, however, a new element entered into employer-employee relationship : Rochelle's vigorous partisanship in the union campaign . The same Foreman Burns, as well as other supervisors participating in the above-described surveillance of a union meeting, admitted having seen Rochelle with Clymer outside the union hall that evening. Furthermore, Plant Manager Rainey himself called Rochelle from his work, showed him a card listing the raises he had received in the preceding 4 1/2 years, and demanded to know why he felt "mistreated here." In view of these incidents and the clear evidence that management well knew the identity of the leading union adherents, the Trial Examiner concludes and finds that Rochelle's union activity was known to the Respondent's officials at the time of his discharge. The incident used by Cobb as the basis for dismissing this employee is so trivial as to stamp it plainly as a mere pretext. It appears that there was a rule at the plant to the effect that only one man was supposed to be away from a certain mill at one time . On November 3 Rochelle headed for the toilet on his break at a time when two other employees on the same mill were also there. As he reached the toilet , Foreman Burns spoke to him , saying, "Hell, it's three men in the bathroom." Rochelle countered with the ambiguous comment, "hell, there will be more than that tomorrow." Burns promptly reported this remark to Cobb. The latter summoned the employee to him, accused him of being smart and ordered him to "punch out." Rochelle declined , obviously fearing that if he did so it would appear that he voluntarily quit. Up to this point, according to Cobb, he had had no intention of firing the employee, but only of giving him a "disciplinary" layoff. Cobb said that he actually discharged the employee for refusing to punch out - but admitted that he neither told Rochelle that this was the reason for the dismissal nor told him that he had intended only a temporary layoff. Contrary to the lame contentions of Cobb, I am convinced and find that the real reason for Rochelle's discharge was to discourage union membership and activity. Such discrimination interfered with , restrained and coerced employees in the exercise of rights guaranteed by the Act. 3. The 32 discharges of November 20 As noted earlier in this Decision , two other Phelps Dodge plants directly control the greater portion of production by the Columbia plant. It is within the power of divisional headquarters to withhold orders, intentionally or for economic reasons, thereby diminishing the call for the greater part of the Columbia plant's output. On November 16 management posted a notice stating, in part: Due to business conditions it is necessary that we reduce our work force effective the end of this week... . We see no prospect of any improvement in business at anytime in the foreseeable future . We suggest that persons being terminated seek employment elsewhere. The notice further stated, in effect (as proved to be the fact) that none of the employees to be terminated would be notified of their identity until the day of discharge, which occurred the following Friday. The Respondent's answer advanced no affirmative reason- for this unusual mass discharge, merely admitting the fact of its occurrence. At the opening of the hearing General Counsel called for production of voluminous records, in response to a subpena previously served , not only for the local plant but also of the other two plants noted above. Counsel for the Respondent objected to the request for compliance, and moved for revocation of the subpena. When the following discussion revealed that such records were called for by General Counsel , not to support his ALABAMA ROD AND WIRE DIVISION own allegations as to the nature of the general discharges, but to refute an anticipated defense - and one admittedly not alleged by the answer, I granted the motion to revoke, stating in effect that the subpena,might be reinstated if, "at a later time (General Counsel) find you want these documents to meet something which the Respondent may" put in. General Counsel then called Plant Manager Rainey, as an adverse witness. He was promptly asked why he had terminated these 32 employees on November 20. He stated flatly and only: "They were terminated because of the lack of business." He repeated his claim, and only this claim, "We had no business. We had a lack of business. Business declined." He then said that the "lack of business" was "lack of orders for aluminum rod," the plant's only product. He then admitted that the two other plants - in Alabama and Georgia, controlled the greater portion of his plant's output, by their orders. At this point, an effective affirmative pleading having been voiced by this company official, and the documents called for appearing to be relevant to this new issue, I, upon motion, reinstated the subpena. He held in abeyance, at the request of and pending examination of Rainey by the Respondent's counsel, revocation of the subpena. Rainey then declared, in response to General Counsel's continued examination, that the "layoff" of November 20 was "permanent," and so intended at the time. I, with counsel for the Respondent's agreement, then questioned Rainey. The manager admitted, in effect, that "orders fluctuate" and that at the time of the layoff he had no assurance that it would have to be "permanent." Considering these admissions, it appeared clear to me that Rainey had conceded the implausibility and lack of merit in his claim that lack of orders necessitated a "permanent" discharge of half his working force. He so stated, and granted the motion to revoke. Counsel for the Respondent asked no questions of Rainey on cross-examination, although he had asked that ruling upon his motion to revoke be held in abeyance, on the ground that such documents were "unnecessary," until he could question the plant manager concerning the discharges. Since the hearing I have reviewed the R case transcript, made on November 4, 1964, less than 2 weeks before the posting of the discharge notice. I find nothing in that record to support any claim of "lack of orders" or falling off of business. On the contrary, according to Rainey's testimony they were so busy they could not spare production men to work on a certain current construction project, and, furthermore, he expected to put some of these construction men, when available, in his production force. And records in evidence show that during a few weeks before the mass discharge the Respondent had hired some 20 new employees. Not until near the end of the hearing, 4 days later, did counsel for the Respondent attempt to raise an entirely new defense for the mass discharges. Then, by way of an offer of proof, he claimed that the terminations were "in anticipation of the ultimate installation of new equipment." The offer was rejected. Plainly spurious on its face, it was raised obviously in an effort to substitute something by way of a reason-appealing defense, after Rainey had cut support from under the reason stated in the posted notice as well as his sole claim on the first day of the hearing. Counsel for the Respondent merits much commendation for zealousness on behalf of his client, but -somewhat less for his judgment: he even endeavored to 191 place in evidence as an "affidavit" a document which had neither been dated nor notarized. The real reason for the terminations, of course, had been made known to many employees, by many plant officials, long before their occurrence, as found in the section above. More than 90 percent of the employees terminated were union adherents, as shown by signed cards in evidence. Many of them had declined to sign the antiunion petition, many of them had been vigorously warned by supervisors of layoffs or closing of the plant. Seniority in selection was not followed. Moreover, it is most difficult to reconcile management's repeated exhortation to employees of how beneficent Phelps Dodge was and would be to them, with the actual lack of consideration displayed by withholding any notice as to the identity of those to be discharged until the very day of separation. The circumstances revealed manifestly indicate an unlawful purpose. I am convinced and find that the 32 employees, listed on Appendix A, were discharged on November 20 to discourage union membership and activity, to make certain, if possible, that the Union would not win the forthcoming election, and to deprive employees of rights guaranteed by the Act. D. The Refusal To Bargain The complaint alleges, the answer admits, and it is here found than an appropriate unit for the purpose of collective bargaining consists of all production and maintenance employees at the Respondent's Columbia, Tennessee, plant, excluding office clerical employees, watchmen, guards, salesmen, professional and technical employees and supervisors as defined in the Act. Documentary evidence and admissions establish and it is found that on October 9, 1964, the Respondent received from the Charging Union a written claim of majority representation and a request for bargaining. The complaint alleges, the answer admits, and the fact of refusal of bargain since October 9, 1964, is here found. The question remains as to whether or not the admitted refusal to bargain was and continues to be in violation of Section 8(a)(5) of the Act. At the outset it is noted that the Respondent' s answer fails to allege any affirmative reason for its refusal to bargain. And as noted above, at the hearing it was conceded that the Respondent at all times had failed to reply to the Union' s demand. First, majority status must be established to sustain General Counsel's allegations. At the hearing, by agreement of the parties, a list of the production and maintenance employees on the payroll as of October 12, 1964, was placed in evidence. As amended at the hearing, it contains 79 names. Included on the list are the names of four individuals claimed by General Counsel to be supervisors within the meaning of the Act: Haynes, Rummage, Howard Burns, and Ernest Wilson. The first three have been found herein to be supervisors. Wilson was found by the Regional Director to be a supervisor, since he was night foreman, and it does not appear that t he Respondent took exception to this finding. General Counsel also contends that the name of one Johnny Spencer should not be included. Credible evidence establishes the merit of this contention. He was clearly a member of the construction crew, which was not included in the agreed-upon unit. Thus the list total is reduced to 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 74. Carl Clymer's name does not appear on the list. Since his discharge has been found to have been unlawful, his name should be added, making a total of 75. I count 45 authorization cards properly authenticated, either by the signer or by other employees who obtained them from the signer, all bearing dates on or before October 8, 1964, of employees of the October 12 payroll. The Respondent called a single witness, one Bobby Willis, whose testimony, if believed, would require not counting the card upon which his name appears. As a witness he declared that he had not signed a card and had not been approached by Clymer (who previously had testified that Willis had signed the card in evidence for him), and asked to sign one. Having observed the witness I cannot believe his denial that he signed the card for Clymer. On cross-examination he admitted that the night before testifying he had been summoned to the Respondent's office before Cobb, Rainey, a company secretary and counsel for the Respondent. Confronted with a photostat of the card in evidence bearing his name, he was asked if he had signed it. He denied it, and as a witness said that this was the first time he knew of the card's existence . To me it seems hardly surprising that Willis, still employed, confronted by so many company officials, and after so many of his fellow-employees had been summarily and without warning fired, should have denied signing a card. Other circumstances discredit him as a witness on this point. He flatly denied that at any time had any employee or anyone else ever said anything to him about the Union. Yet there is also in evidence the McNesse petition, previously discussed, which bears his name. And while I do not presume to be a handwriting expert, the signature on the union card and on the petition appear to have been made by the same individual. It seems hardly likely that Clymer, prounion, and McNeese, admittedly antiunion, should both have perpetrated forgery on opposing do cuments in similar handwriting. In rebuttal General Counsel called others whose cards had been identified by Clymer, and all readily admitted having signed them. In any event, even if Willis' card is not counted, it is clear and is found that on October 8, 1964, the date of the majority claim, the Union in fact enjoyed majority representation status. The sole remaining question is whether or not the Respondent was justified in refusing to bargain . As noted, the answer makes no claim of good -faith doubt as a reason for refusal. As a witness Rainey, at the close of the hearing, claimed that one reason he refused was because of "certain instances in which indications of forgery of signatures on these cards." The claim is so utterly false and ridiculous as to disprove all his other claims of any credibility. There is no evidence that anyone connected with management had ever seen a signed union card until the hearing. Certainly it is admitted that no charge of "forgery" was made to the Regional Director at the time of the R-case hearing . And Rainey was in the hearing room when Willis, the one witness who even raised the question "forgery," said that not until after his card was in evidence had he known anything about it. In short, I find no credible evidence of "good faith" doubt as to majority status in the record. It is concluded and found that the Respondent, at all times since October 9, 1964, has unlawfully refused to bargain in good faith with the Union , although at all times since October 8 it has been the representative of all employees in the appropriate unit . Such refusal interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. In view of the foregoing conclusions, it will be recommended that the election of December 22, 1964, be set aside.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Aluminum Workers International Union , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating against employees Clymer and Rochelle and the 32 listed on Appendix A , as described herein, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. All production and maintenance employees at the Respondent's Columbia, Tennessee, plant, excluding office clerical employees, watchmen, guards, salesmen, professional and technical employees and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By virtue of Section 9(a) of the Act the above-named labor organization has been since October 8 , 1964, and now is, the exclusive bargaining representative of all employees in the above-described unit. 5. By failing and refusing to bargain with the said labor organization on and after October 9, 1964, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondent offer employees Clymer and Rochelle and the 32 employees 'I find no substantial evidence to sustain the allegations of the complaint to the effect that employees Ray Odom and Hobert Stanfill were unlawfully assigned arduous tasks during certain periods before they were discharged on November 20. Nor does General Counsel urge this point in his brief. ALABAMA ROD AND WIRE DIVISION 193 named in Appendix A 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 by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination to the date of offer of full reinstatement, less his net earnings during said period, and in a manner prescribed by the Board in F. W. Woolworth Company 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent, upon request, bargain collectively and in good faith with the Charging Union and, if an understanding is reached, embody such understanding in a signed agreement. In view of the serious and extended nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from infringing in any manner upon the rights of employees guaranteed by Section 7 of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, I recommend that the Respondent, Alabama Rod and Wire Division, Phelps Dodge Aluminum Products Corp., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on behalf of Aluminum Workers International Union, AFL-CIO, or any other labor organization, by discharging, laying off, refusing to reinstate, or in any other manner discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment. (b) Refusing to bargain with the above-named labor organization. (c) Threatening employees with reprisals, or granting or promising benefits, to discourage union membership and activity. (d) Promulgating or enforcing any rule against employee activity during working hours, when the single subject proscribed relates to a union. (e) Interrogating employees as to their union activities in violation of Section 8(a)(l) of the Act. (f) Engaging in surveillance or creating the impression of surveillance of employees in their union activities. (g) In any other manner interfering with , restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to employees Clymer, Rochelle, and the 32 employees listed in Appendix A, and make them whole for any loss of pay suffered by reason of the unlawful discrimination against them in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, furnish Board agents all records necessary to determine the amount of backpay due. (c) Notify said 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. (d) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees at its Columbia, Tennessee, plant, in the appropriate unit described herein, with respect to wages, hours, grievances or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its plant in Columbia, Tennessee, copies of the attached notice marked "Appendix B."8 Copies of the said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' Finally, it is recommended that the election in Case 26-RC-2271, held on December 22, 1964, be set aside. Earnest Beard Stanley Bridges Bobby Cockrell John Collins Wade Collins Billy Ellis David Estes Larry Hill Jessie Leroy Hill Frank Irwin, Jr. Richard Ivey Clyde Kelley Harlong Kelley Marvin Kelley Wallace King Whelan King APPENDIX A Claude Lemay William Lemay Ronnie Lunn Hollis Moore Ray Odom Willard Pigg Harold Reed John Reed Raymond Reed Howard Rochelle, Jr. William Rogers Ray Scroggins Hoberg Stanfill Elgie Sullivan Floyd Sullivan Larry Wood APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act we hereby notify our employees that: WE WILL NOT unlawfully discourage you from being members of Aluminum Workers International Union, 'In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "pursuant to a decree of the United States Court of Appeals Enforcing an Order," shall be substituted for the words "pursuant to a Decision and Order." 'In the event that these Recommendations be adopted by the Board, this provision shall read : "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, or any other union. WE WILL NOT threaten you with reprisals, nor grant nor promise benefits to discourage you from joining any union. WE WILL NOT spy upon your union meetings, and will not violate any of the rights you have under the National Labor Relations Act, to join a union of your own choice or not to engage in any union activities. WE WILL offer reinstatement to employees Clymer and Rochelle, and all 32 employees listed on the accompanying "Appendix A," and give them backpay. WE WILL, upon request, bargain collectively with the above-named Union and , if an understanding is reached, sign an agreement covering such understanding . The unit represented by this union is all our production and maintenance employees at our Columbia, Tennessee, plant, excluding office clerical employees, watchmen, guards, salesmen , professional and technical employees and supervisors as defined in the Act. ALABAMA ROD AND WIRE DIVISION, PHELPS DODGE ALUMINUM PRODUCTS CORP. (Employer) Dated By (Representative ) (Title) Note : Notify any of the employees listed in Appendix A as well as Clymer and Rochelle if presently serving in the Armed Forces of the United States of his 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. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. TRIAL EXAMINER'S SUPPLEMENTAL DECISION C. W. WHITTEMORE , Trial Examiner : On June 28, 1965, I issued my Decision in this proceeding , finding that the Respondent had engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the Act. On May 18, 1966, the National Labor Relations Board found merit in certain exceptions filed by the Respondent, and issued an Order remanding the proceeding to the Regional Director of Region 26, and directing that a further hearing be held before me for the purpose of "receiving additional evidence relevant to: (1) authorization cards, and (2) the defenses of economic necessity and altered operations." Pursuant to said Order , a further hearing was held in Columbia, Tennessee, on October 25, 26, 27, and 28, 1966. At this hearing appearance was entered by Attorney Trost, on behalf of a number of employees who declined to honor subpenas served upon them by both General Counsel and the Respondent. After other available evidence and testimony was received, by agreement of the parties the hearing was recessed to provide said parties with an opportunity to decide whether Court enforcement of the subpenas would be sought. On June 14, 1967, the U . S. District Court for the Middle District of Tennessee , Columbia Division , issued its Order requiring obedience to the subpenas involved. On August 22, 1967, the hearing was resumed . Certain of the employees subpenaed were called by and testified for the Respondent . One individual, a union representative , did not respond to a newly issued subpena served upon him by the Respondent . I denied the Respondent's motion to continue the hearing for the purpose of obtaining enforcement of this one subpena. The hearing was thereupon closed. On October 5, 1967, the Board directed that the hearing be reopened for the purpose of receiving testimony of this single new witness. Various delays followed this Order . It is pointless to describe them here, since the 8(a)(5) issue , to which such testimony would have been relevant , was subsequently withdrawn by the Union and the General Counsel. On April 4, 1968, I granted General Counsel's "Motion to Dismiss 8(a)(5) Allegations of the Complaint," said motion not being opposed by the Respondent . In his order granting the motion I stated that he: (1) Consents (pursuant to Sec. 102 .9 of the Board's Rules and Regulations) to the withdrawal of the 8(a)(5) charge in Case 26-CA-1999; (2) Orders dismissal of the 8(a)(5) allegations contained in the complaint, and (3) Declares the hearing, reopened by the Board in its order of October 5, 1967, closed as of the date of this Order. The same order granted a period of 3 weeks for filing of briefs upon the one remaining issue: the Respondent's "economic defense," as it bears upon the remaining 8(a)(3) issue, evidence as to which was introduced by the Respondent on October 28, 1966. A brief has been received from General Counsel, and has been fully considered . No briefs have been received from the Respondent or the Union. 1. EVIDENCE AS TO THE RESPONDENT'S "ECONOMIC DEFENSE " ADDUCED ON OCTOBER 28, 1966 All testimony on this point, both at the original hearing and the remand, was adduced from Horace Rainey, Jr., manager of the Columbia "rod plant," which was purchased by Phelps Dodge in May 1964. He had been manager of the same plant since 1955, the plant then known as Columbia Metal Products . Summarized in this section is his testimony on October 28, 1966, without comment or findings as to the merit of his statements. According to Rainey: 1. Phelps Dodge bought the plant for the purpose of continuing and expanding production of "alloy redraw rod" and also of producing "conductor grade redraw rod." To implement this plan of expansion , additional equipment was sought and purchased , "in the summer of 1964." 2. Through that summer the "alloy" production was "maintained at reasonable rates," but toward the end of August he anticipated that it would not be continued in September . So "at that time" he talked with W. S. King, general manager of the rod and wire division, and suggested that they "consider a cutback in production and ALABAMA ROD AND WIRE DIVISION probably a cutback in personnel." King told him he felt such action might be "premature" and advised that they "wait and observe the situation." 3. About the middle or the latter part to September, Rainey "felt like possible we were coming up with a real bad prospect for October," so he called King again. In October "production was down drastically" and upon calling King a third time they "agreed to make a cutback and to reduce our forces." 4. In reply to his counsel's direct question as to why he terminated, on November 20, 1964, the employees herein involved, he testified: The reason for letting these people go at that time were [sic] twofold, actually. We needed to make a determination as such because of the declining business, the lack of orders. We decided to make it permanent, after complete review, on the basis of the beginning of our construction period of installing this machinery to increase our production capabilities. 5. Before November 20, 1964, the plant did not have the capability of making the "electrical conductor," but had two mills - one the rod mill and the other the bar mill, for production of "alloy redraw rod." 6. Since November 20, certain changes have been made in the equipment of both the rod mill and the bar mill - to increase "its production rates." And a certain "pre-heat process" was eliminated. 7. A number of new employees were hired during the week before November 20, 1964, "to maintain the normal work force," to operate the rod and bar mills. "It required a certain number of people to operate these mills. Consequently we had to hire replacements all the time." 8. New equipment was "finally purchased in July of 1964." A purchase order for buildings to expand the plant was issued August 14, 1964. 9.. On November 7, 1964, he issued a purchase order to a Pittsburgh concern to "dismantle and load on carriers for shipment" this machinery purchased in Connecticut. 10. In August, 1965, production was shut down for about 90 days "as a result of having to make these changes and put this new equipment in." 11. Division Manager King and Rainey, together, made the decision for the November 20 layoffs. 12. Before November 20 "We shipped rod to both the alloy wire plant in Florence, Alabama, and the screen plant in Covington, Georgia." Both are Phelps Dodge plants. Orders came from the Phelps Dodge sales office in Florence. "All billing" for Columbia production to other customers came from "Florence." Except for other Phelps Dodge plants the Columbia plant had "a relative few number of customers." 13. Questioned as to the records in existence to support his claim of lack of orders, Rainey replied on cross-examination: . as far as to say just whether it was documented that there was a shortage of orders or a lack of orders, or whether I was aware from our own records that we had a shortage of orders, I don't think that that's true, no, sir. 14. The new machinery is now part of the expanded rod mill. The bar mill continued to operate. 15. "The production of the rod plant was cut with the termination of the people, because at that time we couldn't operate the two mills simultaneously." 16. ". . . it takes a certain number of people to operate these mills, which prior to this date of November 20th we 195 operated simultaneously. After the terminations of these people we could only operate the mills individually. Consequently our production rates went down, because we couldn't operate the rod mill, which is the one that produces rods. We could only operate it on alternate days." 11. SUMMARY OF RAINEY S TESTIMONY ON APRIL 20, 1965 RELATIVE TO THE LAYOFFS IN ISSUE Summarized in this section is Rainey's testimony at the original hearing as to his reason for the same terminations, elicited from him by General Counsel, who had called him as a Section 43(B) witness: 1. Asked why the 32 employees were "permanently terminated" he replied: "They were permanently terminated because of lack of business. . . We had no business. We had a lack of business. Business declined." 2. There followed, this colloquy: Q. That is, the economic conditions of your plant here in Columbia worsened so that it necessitated the layoffs of some 32 employees; is that correct? A. Yes Q. And the economic conditions worsened as a result of a lack of orders coming in for the finished product, aluminum rods, is that correct? A. We didn't have the business, that is true. Q. And that was because of the lack of orders for the finished product; aluminum rods, is that correct? A. That' s true. Q. Now that is the only finished product made by the Columbia plant, aluminum rod, is that correct? A. That's correct. Q. Now, is it not correct that between 50 percent to 75 percent or more of the finished product, aluminum rod, from the Columbia plant, is sold directly to the Florence, Alabama and/or Covington, Georgia, plants? A. That's correct. Q. And it was, again, a lack of orders from Columbia customers, two of whom are the Covington, Georgia, plant and the Florence, Alabama, plant that required, or that made the economic conditions of the Columbia plant worsen so that 32 employees had to be laid off'? A. Yes. 3. After an extended discussion by counsel on another matter, and with permission of counsel for the Respondent, the following colloquy occurred: TRIAL EXAMINER: Your orders, which you spoke of, which fell off in whatever month it was here, in November, which caused you to layoff these employees - how long have you been plant manager? THE WITNESS: I have been plant manager, sir, since the Phelps Dodge Corp. acquired this business which was May the 15th, 1964. Prior to that time I had been manager of the plant and the president of the company, which was the Columbia Metal Products Company. TRIAL EXAMINER: Well, has it been your experience, then, that the orders fluctuate, - they go up, they go down? THE WITNESS: Yes, sir. TRIAL EXAMINER: And at your plant in November there was a lack of orders? 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE WITNESS: Yes, Sir. TRIAL EXAMINER: But, you had no assurance that you were not going to have orders in the future, enough to bring back the plant personnel? THE WITNESS: Yes, Sir. 4. The only communication made by management to the employees, as to the impending permanent layoffs was in the form of a notice dated November 16, 1964, identified by Rainey. Its text, in essential part: Due to business conditions it is necessary that we reduce our work force effective the end of this week. Those who are to be terminated will be notified by their supervisors on Friday. Persons terminated Friday will be paid in full through the end of the shift Friday. We see no prospect of any improvement in business at any time in the foreseeable future. We suggest that persons being terminated seek employment elsewhere. 5. None of the 32 employees terminated on November 20, so far as Rainey could recall, was notified of his termination until he went to receive his pay on November 20. III. SUMMARY OF RAINEY S TESTIMONY ON THE SAME POINT AS A WITNESS FOR THE RESPONDENT ON APRIL 23, 1965 Three days after Rainey, as noted above, proffered as the only reason for the effective discharge of the 32 employees: "lack of orders," he was called by counsel for the Respondent. His testimony, relevant to this point is summarized: 1. The year before the corporation was sold to Phelps Dodge there was a discussion as to "modifications of the equipment to be put into the plant." 2. Asked by the counsel "why were the people ter minated, the 32-plus employees terminated?", he replied: These people were terminated in anticipation of the ultimate installations of this equipment. It was at this point that I sustained General Counsel's objection to an offer of proof by counsel for the Respondent regarding introduction of documentary evidence and further testimony as to the purchase and installation of new equipment. In its order, above described, the Board reversed my ruling, and ordered that the evidence be received. IV. SUMMARY OF RELEVANT PORTIONS OF RAINEY S TESTIMONY ON NOVEMBER 4, 1964 In his comprehensive brief General Counsel calls attention to certain testimony given by Rainey on November 4, 1964, at the representation hearing in Case 26-RC-2271, consolidated with the complaint case in this proceeding. I consider such testimony to be relevant to the economic defense issue, since it was elicited only a few days before the "permanent" layoffs of nearly half the then working force, and was referred to briefly in his original Decision. This testimony was developed, it appears, during exploration of a question as to whether or not about 15 employees engaged in certain construction work should be included among the "production and maintenance employees," the unit petitioned for. Rainey testified that some of these construction workers had been hired within the preceding 30 days. The following colloquy occurred between Rainey and his counsel: Q. What do you intend to do with the construction workers as things stand right today? What do you intend to do with them upon completion of the work they are now doing? A. Well, upon the completion of the work that they are now doing in the construction program, any construction program eventually comes to an end. There would be some of them that we would have no further use for them. There would be no work for them to do. As I said before, we still have not put all of our entire casting operation to work. I think there would be some of these boys that would be eligible for or capable of doing the production work in the remainder of the plant. So, we would handle it either way in our jurisdiction, depending on the background of the people themselves and their talents involved. Q. As things stand today, do you anticipate that you will be able to use some of these employees in your production operation? A. I think that's possible. V. CONCLUSIONS AS TO THE EVIDENCE The concluding paragraph of the Board's Order of May 18, 1966, remanding the proceeding, states, in part: It is further ordered that upon conclusion of such further hearing, unless the parties waive their rights thereto, the Trial Examiner shall, on the evidence received pursuant to this Order as well as on the record previously made, prepare and serve upon the parties a Supplemental Trial Examiner's Decision.. . The rights were not waived. It is assumed that the Board intended that in his Supplemental Decision I should appraise the October 28, 1966, economic evidence and, in its light, if any, reconsider evidence on the same point adduced at the original hearing, with the purpose of deciding whether his original conclusions of a violation of Section 8(a)(3) should be affirmed, modified, or reversed. In my original Decision I concluded, in effect, that General Counsel had amply proved violation as alleged and that such proof was not overcome by the Respondent's evidence in support of its claim that economic necessity, in terms of "lack of orders," caused the 32 terminations. Careful review of the entire record, including that part of the RC proceeding which is relevant, leads inescapably, in my opinion, to the conclusion, here made, that the Respondent has failed to adduce competent and convincing evidence that economic necessity, of any nature revealed in the record, required or was the real reason for the terminations. This general conclusion is based upon the following points: 1. As to the claim of "lack of orders" as the reason for the terminations, which was the only one made by Rainey at the opening of this proceeding when called as an adverse witness, in his original Decision the Trial Examiner found lack of merit in it. The plant manager admitted that "orders fluctuate" and that, in effect, he had no assurance at the time that the "layoffs" would have to be permanent. 2. The record, in its entirety, lacks any company records supporting the contention of "lack of orders." ALABAMA ROD AND WIRE DIVISION 197 3. As quoted in Section I, above, at the reopened Hearing Rainey claimed , in substance, that there were no documents to show "there was a shortage of orders or lack of orders." The Trial Examiner is inclined to believe that this was a bit of inadvertent half-truth . But he cannot believe that a company of the size of Phelps Dodge was without any record of orders. 4. As previously found , Rainey admitted that most of his orders came from the other two plants in the same division . It is reasonable to conclude that if there had actually been a "falling off of business" due to "lack of orders," the Respondent would have produced records to substantiate the contention . Its failure opens wide the door to the speculation that if the Columbia plant did not receive orders they were purposely withheld at the Florence sales office. 5. At the reopened hearing on October 28, 1966, the Respondent was permitted to place in evidence a typed summary of purported production records . The summary purports to show the monthly totals , in terms of dollars, beginning in June , 1964. The document was offered through Rainey, who admitted that he could not testify as to its accuracy . In his brief General Counsel contends that this document was not properly authenticated . The Trial Examiner agrees, and does not consider himself in a position to find accuracy where Rainey could not. 6. Accepting this document at its face value, however, points to another inconsistency in Rainey's testimony. As quoted above, in Section 1, the plant manager testified that production was "cut " with the "termination of these people." "A certain number of people," he said, were required to operate the two mills simultaneously . "After the terminations of these people we could only operate the mills individually . Consequently our production rates went down , because we couldn ' t operate the rod mill, which is the one that produces the rods . We could only operate it on alternate days." Yet the summary of "production dollars" indicates that in November production increased to $382, 794 from $287 ,466 the previous month, although for a third part of November the working force had been cut in half. 7. It is plain that such production records are unreliable support for Rainey's claim of "lack of orders." 8. Finally, lack of merit in the claim of "lack of orders" as a dismissal reason is further established by Rainey's testimony at the Representation hearing, given but a few days before posting of the notice of permanent layoffs. Without repeating the full quotation, the substance of the claim on November 4, 1964 , was that the plant could and would use at least some of the construction employees in the production line. It is noted that this testimony was given after the time when Rainey claimed, he and King had already decided to cut the working force. 9. Turning to the plant manager' s claim as to the reason for the terminations , advanced at the reopened hearing in October, 1966. His reply to a direct question on the point from his own counsel is quoted in full in Section I, above . In substance, he testified that the "reason" was "twofold ": that lack of orders, reviewed in light of the fact that "our construction period of installing machinery to increase our production capabilities," was "beginning," was the basis for the decision to terminate the employees. 10. It has been found and concluded that lack of credible and convincing proof deprives of merit the Respondent's claim of "lack of orders." The belated contention of "twofold" reasons must therefore fail of acceptance. 11. Rainey's concurrent claim that permanency of the layoffs was decided "after review" because "of the beginning of our construction period" is not only inconsistent with his original claim , but with other testimony given by him . At the R-case hearing, Ramey said that such "construction" had been going on for at least 10 months before the date of such testimony, which was shortly before the date of the layoffs. 12. In short and in conclusion, I find no merit in the Respondent's various and several defenses. VI. FINAL CONCLUSIONS I herewith affirm the conclusions set forth in my original Decision, to the effect that the terminations on November 20, 1964, were violative of Section 8(a)(3) and (1) of the Act. In the event that the Board approves the dismissal of the 8(a)(5) issues, as described above, the Recommended Order appearing in the original Decision, should, of course, be accordingly modified.