Weather Tamer, Inc.

LA I l IR 'I A\N IR, IN(' Weather Tamer, Inc. and Tuskegee Garment Corpo- Judge arid to adopt his reconmincnecd ()rder.: as ration and International l.adies' Garment modified herein. Workers' Union, AFL-CIO. Cases 15 CA-7047 and 15-CA-70)85 (ORDER Nosvember 14. ')(80 I)ECISI()N AND ()ORI)R BY CItAIRNI \N :\NNINOi \ NI) MI SFltRS JINKINS -\NI) Pl NI I () On lMa\ 29, 198X(), Adminllistrative Law Judge Elbert D. Cadsden issued tlhc attached Decision il this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. 'lh Char ging Party and the General Counsel filed bric; il sup- port of the Decision, and the General Counsel iled an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act. as amended, the Na- tional Labor Relations oard has delegalted its alu- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and concluiio ns 2 of the Administrative Law I Respondentil hi, s 'lc i to ra1 e i credtlihilil, til/llintis a llh h illt Adrllnllistraiit I as Jcgt I Is the Boardt's slhlslicd spol., s III, oscrruil an11 adntlllllrtra ls Ihlui lll ee's roliton ,lis l (iCi It' 1 pt I ri- hilily unless file clear prcpondcr lic' o ;ll (if ilte rclcs a;llt s.ll,ric' 1ll1I tices us% thai the iC-,ohu li' ,i Iticrrect Stw djrlJ /)ri ill i/'rodsi it In/1, 91 N Rti 544 (19511), entll I88 1 2d 1i2 d ('ir 1951) h c carefulls exanlllel the riird and find 1l( hatis fr r'ersillg his filindig, Furthermor. Rspoideit has ialllci. i it brief, to t'l- tet grutlllds fior Ihe claim tha rlinltli s m ere ti.d, onfle hss of ia-l' ;\I sItI. R - spoitdel it et tcil(ior 22 illI hI lsrigarit hc Ilr grI h I it l Ito ld for tI.IIIIg t coilfrrm1 to Ih rcqulltnlerls iof S 102 46(h) oIf ilt' ia;lrid' Rles 1n1 Regulaiionls. Scrics 8. at anlcdte and I1 hcrchs strikilll 'While the Adminlrlsiltie am Judge rrireosx, sated that the p.'ek itr t lal cmplio ilet(itlng ion August 10, 178 . a; Rpo ideirl \ l- Piresidenl ugenc IHeller rather tan lanlt siManager Kenned,. this rri hias rIl hearing oni the outiltrle of tIh cails ' I11 adopting the Admnitstratle Ias Jlidge's ciBltlumsiorl tal Re spolndcnt violated S X(a)i3) antd (I) of te Act h lIaig (1f the enl- ploiyer and clrsing the uskcgee plalll. me. di riot rely ot hlis re ;lsnllllg that the closing as "suhbstantiall, if not siolel nmitisated'' h the em- ploiyens protecteld clttlils Rather, ce arnalis Ih faclts accordlig the test set frlh in I'rtgh Lin . .1 Dievivon i H'rightr Le, In, . 251 NLRHl No 1501 (I ) 11 li doing s(, c find thalt the (ieneral Counsel ha, made a ptrima jaic s, i ihowing sufficrct to supporl the IifertencI thliat the unionh activities tcre a moltiating fctor in Respondenl' dcilion to l a off employees and close the plant l'he AdminilratiN I ia JudgCe I)tci- sion fully set, forlh thie 8(a)(I) slarenlels, the tinllig of li' laiofts. andl other factl which morce thaill dequa tely comnprise a rima Jutiw casc fr Ihe CGeneral Counsel Ths evidence ffcLively, shifled the burdti to Re- spOldent to denilOlntrat' ltha it mould hil e aketn the sanle actlitl even i1I the absence of the ulilon activity Although Respondenl iattemlpted lo %hov that thc lermil;lalon of operatiolls had heen planned il adaillt. )if thc protected acllsilles alld thait the terml natin ma il, for ecoIrlomil rca- sois%, Rspondeit has failled to d so and hits not niet its burdtein fit, depite HRelldent's claims that it had decided hef;re the lnionl hbegai orgaizing that the pltl ti iould he cio,ed Rspioldcnr l aged al xgiorlrus campaignl agalnst the lnilon Serolld, 1l(o iidlitilatoll ils gi cI ultill afller the ULilon ion Ihi cilctioll thait he plant ould close rIhi issu tl'sA riio raised at the preclecion iferencr e tchere tl selflY cIt irllng e ldelicc that Rspoltdeilt coitemplalte cl .isilig tile pan l hefoir tC ililt ill cti. its hbegan FnIall', ill suppostl disatusfalctilltmit v ork qitit ill ilt Itls- kcgee plant as silte os after the ion appearec Accordinglg. , I'ursullant to Section 10(c) of the National Labor Relations Act, as amended, thlie National Labor Re- lations HBoard adopts as its Order the recommended ()rder of the Administrative Law Judge, as nimodi- iced belov, and hereby orders that the Respondent, \eather '[amer, Inc. and Tuskegee (armenct Cor- poration, Columbia aid Lewishurg, llennessee ad Atlherls and Tuskegce. Alabama, its officers, agents, successor s, alld assigns, shall take thle actionl sct fortl Ill tlhe said recom enddcd ()rdcr, as so nmodi- lied: 1. Insert he following as paragraph 1(1): "(I) il any other maner inllterfcring witlh, re- straining, or coercing enlployees in th e exercise of tlle rights guaranteed them ii Scction 7 ' tlhe Act." 2. Substitulte the attached notice for lthat of the Administrative Law Judge. aIlir.ll A Clllt'}, uion If t lllAinitrll.t I l Jdgt hat Re pollldlI silaied l Se Mi(ll3 lnd ll ( i tf lt X i hI lairig oif the riplltes ae d l iling thi I sktigt'' pl ntr : t' u lid Ipprprlatc L1 -\ IIldlltll irai I Jdge' rco immcndel rclli ts, at R ,polld lli rci ltI lihe I Uskege Garnmnt il llh I ille Ii Lkcg c. l;hlbiltill whll ReI , itpoilldelt argue, tl such ali ordr i anr tir llt Iil arclliil hurl l it iha t fale d it pros ildc eld icc ii suppori t that clairll Allihough 1hl rcord ITlld Ca t thati the cl of I ilskg. ia iti' ltlitil ng t lIa u- ill icit a t rlit for th' fa 'iiI fI trrl rs i scI h) R is) dItrt, there i o l ir i itd ti lll cftiltr UltI] . I Iltits l L' IIt a.ai lable in IlkCge A ai result i f tlur all sis if tlh e fict l htrtinl Ii acord t s t iflt l lt . r gh Ii-. sc l forth Iln li 2 aiho i. 1t Is clear ftiat Rtesprdent trnriltdct 1s ioperalionl, Iii lTuskgee a a rsullt tf t trl plo eSC ce xrci.C if their Scc 7 rights ad otl fr an lam f rtil titrl llt reasons Iir agrltemtl with Itht Adni itirat. lc Laml Judge e lfind prc- itrexual RspoidCrilent' clarir that the I uskegcc operatiion as cktiionltucall iil nlsoud lulrtherllor tihe 'osrk performncd h the crnplo , ce, a the I u- kcge planl has tinr berl d scorllntinued, hl is norm perfo rmed elc,, he r ti hi Re spondlnt n I addition. hcre has bc'n a showing that equi prna1il i1 this Indlt r is tl slilaril renied r iotiherv ,e harcd among ariius plail or matuufactlIrr, thus irdicl g Iatig Lat nio heavi iri etilcln of ci il ill1 be require t retorc the operations n luskegeu Respondenl has Itll carrtedi It irlc' I l t lr h iig itha this rtirrCd. 1 reuit i ulinduc conorrut hardlship I is the Board's pi.c. thatl fite wrongd er. rather tIhan the n iocenl victim. hould bear lthe hardships of the ullaIful actloll ' s h retoratlionrl of the tatu quir art'rr I these ii .1- lioil is the appropriale rt'nle d lilless thle wrongdoer canl d rllorltrale Ithal i clinield iabhiili, iould be endanigerd Respoldent has ot i deI insI rated \e adiopl the Admlnt sratis c Lav Judge's ro mmetnilded rtmeid Snt rh .fttiul lurrte (InipanIty, /in , Beacotn it rrl i. 24 NLERB N 1 4 I s) R I t tnrl Supp/i'. Inc. 21S NIRIH (I-144 (1978) ie iagrec ih tilt i' dlrtiniratitc I a Judgts coucIIlisio that th' Iturt Rcpo dni i t 'i ulitalf i labor pra-tc.es sarrant . tc islr lcti' - t brtoad c''lCs-t;lild-d'silt rdcr Wci fi51d hal f such rleti i ,irralied under lh slilllandard tI forth ll iiAioll 'iUsd. II . 242 NI RH l17 (11)7t))1 and U. 1c it ll t iiet l ilt' Ad nlllltrall i It r Jlidgc', rt r'ln rtieditl ()rd(e r ii, hLlt- tit' propcr lngiuagt W&' isi diilufed f1t It 1c t h tlltari stll it l sI rcI mdlerlIctd ()rdcr 253 NLRB No. 36 2'A3 I)ItCISI()NS ()1 NA I I)NAI. I ABlO()R R.TA I I)NS II()Akl) APPENDIX NoTic I To EMI'I )E.IS P)os I I1) Y ()R)IR OF I l N.\ Io()N I I.AIOR RII A'I'IONS 13()ARI) An Agency of the United States GCovernment After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National I ahor Relations Board found that we have violated the National Labor Relations Act, as amiended, aid has ordered us to post this notice. 'The Act gives employees the following rights: 'To engage in self-organization To form, join, or assist any union 'To bargain collectively through repre- sentatives of their own choice 'I'o engage in activities together for the purpose of' collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WI WII. NOT tell employees their jobs will be in jeopardy if they select the Union as their representative. WI. Wl . NOI ask employees why they want a union, telling them the Union is no good and if the Union is selected, we would close the plant. WI Wll I NOI ask employees why they are not wearing a union pin and whether or not they signed a union authorization card. WI. Wl I NO tell employees the Union will put their jobs in jeopardy and the outcome of the union election could affect their future em- ployment with us. WI. Wi.L. NOT ask employees why they want the Union and why they were going to return to vote in the union election and put other employees' jobs in jeopardy. WI; Wll. NOT tell employees the best job security they can have is to vote NO in the union election. Wti wl.t. NOi tell laid-off employees in our other plants that we closed our Tuskegee, Ala- bama, plant because the employees selected the Union as their representative, and we would close our Athens, Alabama, plant if the employees there selected the Union as their representative. WI W. NOT tell employees that certain other identified plants in the country were closed because their employees selected a union as their representative. Wl wili. NO' tell laid-off employees they can return to work only if they reject the Union as their representative. W'i-. wit I NOI discourage membership ill, or support for, International Ladies' Garment Workers' Union, AFL CIO, or any other labor organization, by laying off unit employ- ees and thereafter closing the plant because they select a union as their representative, or otherwise discriminate against them in any manner in respect to their tenure of employ- mcnt or any term or condition of employment. WI" Will. NOI fail or refuse to bargain col- lectively with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bargaining representative of employees in the unit described below, by failing and refusing to meet and bargain with, and to furnish the Union with information requested by it, nor unilaterally lay off unit employees and close our plant, without first consulting with or noti- fying the Union. WI; Wl.l NOT ill any other manner interfere with, restrain, or coerce employees in the exer- cise and enjoyment of rights guaranteed them by Section 7 of the National L.abor Relations Act. WI: wl I , upon request, recognize and bar- gain with Interniational Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all the employees in the bar- gaining unit described below from September 15, 1978, and if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees employed by Respondent at the Tuskegee, Alabama, plant, including sewing machine operators, cutters, spreaders, boxers, bundle- girls, box makers, mechanics, janitors, in- spectors, turners and assistant floor ladies; excluding all office clerical employees, floor ladies, boxing department manager, cutting room manager, embroidery manager, guards and supervisors as defined in the Act. WI Wll.Lrecall and offer to the unit produc- tion employees of Tuskegee Garment Corpora- tion who were laid off between August 17 and 29, 1978, immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suf- 2"4 WIATAItIR FAMI R. INC. fered by reason of the discrimination against them, with interest. W;- wit I reinstitute business (plant) oper- ations in Tuskegee, Alabama, and restore the work formerly performed by the laid-off unit production employees. WIA'IHI:R TAME R, IN(C. ANt) TUSKI- (;EaI GARMENT CORPORATION DECISION S I I OI U N I 01- 1IHF CAS El HIRI D. GAI)I)N, Administrative Lare Judge: Upon charges of unfair labor practices filed in Case 15 CA-7047 on September 11, 1978, and in Case 15 CA-- 7085 on October 16, 1978, by International Ladies' Gar- ment Workers' Union, AFL CIO, herein called the Charging Party or the Union, against Weather Tamer, Inc. and Tuskegee Garment Corporation (herein individ- ually called Weather Tamer and Tuskegee Garment) hereinafter collectively called Respondents, the Regional Director for Region 15 of the National Labor Relations Board issued a complaint and an amended complaint on December 29, 1978, and March 8, 1979, respectively, and a complaint in Case 15-CA-7085 on March 8, 1979. The complaints alleged that Respondent violated Sec- tion 8(a)(1) and (3) of the Act by, inter alia, promising improved insurance benefits, interrogating employees, threatening employees with discharge and/or plant clo- sure, and closing the Tuskegee Garment plant and laying off all employees, for the purpose of discouraging their union activities; and that Respondents violated Section 8(a)(1), (3), and (5) of the Act by closing Tuskegee Gar- ment plant, terminating its operation, and discharging all of the employees, without affording notice to or giving the Union an opportunity to bargain thereon. On April 4, 1979. the Regional Director issued an order consolidating Cases 15-CA-7047 and 15-CA-7085 for a hearing, along with a second amendment to the complaint issued on April 9, 1979, in Case 15-CA-7085, alleging that Respondents constituted a single integrated business enterprise. A hearing in the above matter was held before me at Tuskegee, Alabama, on April 30, and May 1, 2, and 3, 1979. Briefs have been received from counsel for the General Counsel, counsel for Respondent. and counsel for the Union, respectively, which have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGCS OF FACT I. JURISDICTION Respondent is now, and has been at all times material herein, a Delaware Corporation with manufacturing plants located in Columbia and Lewisburg, Tennessee, and Athens and Tuskegee, Alabama, where it is engaged in the manufacture of children's garments. The matter in controversy herein arose at the Tuskegee Garment plant, located at 330 Gautier Street, Tuskegee, Alabama. I)urinig the past 12 months, \which period is representia- tive of all times material herein. Respondent (Weather Tamer) purchased and received goods and materials valued i excess of S5(),(XX), which were shipped directly tlo it in the States of Alabama and Tennessee from points located outside the States of Alabanla aid Tennessee. During the same representatis period. Respondentl (Weather Tamer) sold and shipped goods valued in excess of $50,(XX) from its Alabama anid Tennessee facili- ties directly to points located outside the States of Ala- bahia and Tennessee. The complaint alleges. the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. HFI I AHOR OR(/ANIZA ION NV(OI IL1) The complaint alleges. Respondent admits, and I find that International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. IH- A I .1II) UNI:AIR AHOR PRA( i ('.S A. Background Facts Respondent is engaged in the manufacture of chil- dren's garments, with plants located in Columbia and Lewisburg, Tennessee, and Athens, Alabama. Respond- ent denies that it owns and operates a plant (Tuskegee Garment) in Tuskegee, Alabama. The Columbia. Tennes- see, plant is about 3(X) miles from the Tuskegee plant, Athens is 25 or 30 miles from Lewisburg, and Columbia is 65 miles from Athens. Prior to April 1976. the plant (Tuskegee Garment) lo- cated at Tuskegee, Alabama, was the Barclay Corpora- tion which was also engaged in the manufacture of chil- dren's garments. In fact, the Barclay Corporation manu- factured garments for Weather Tamer until about April 1976, when it was sold. Prior to Tuskegee Garment Corporation, Vice Presi- dent Eugene Heller and the officers at Weather Tamer wanted to manufacture garments without having to over- see the process of manufacturing. They, thereupon, sought a cut-make-and-trim contractor in an effort to eliminate the need for Weather Tamer supplying a man- ager. Under such an arrangement, there would be no need for the investment of capital in a building or plant. Consequently, in April 1976, Heller and his partner, Wexler, purchased 80 percent of the stock of Barclay Corporation, leaving 20 percent to its prior owner. Tucker, who received 20 percent of the profits in salary. Finally, Weather Tamer bought out Tucker on Novem- ber 15, 1976. Steve Kennedy, who had already been sent to the Tuskegee plant as a mechanic, was made plant manager on November 15, 1976. At the time Barclay Corporation was sold, another entity of Weather Tamer, Columbia Equipment Rental Company, gained ownership of the equipment and fur- nishings, which were used interchangeably by Tuskegee Garment and other factories in the industry on a regular basis 2o I)F.CISIONS ()OF NATI()NAI. I.AB()R RLA AIO()NS BOARi) The Union proceeded to organize the Tuskegee plant in the summer of 1978. Respondent Weather Tamer learned about the Union's organizing efforts and the identity of the organizing employees on July 18, 1978, when the Union, orally and in writing, demanded recog- nition by Respondent. Respondent immediately em- barked on a compan, campaign against the Union, and on July 25. Heller refused to recognize the Union, and the Union filed a representation petition on July 26. 1978,1 in Case 15 RC-6337, seeking to represent the pro- duction employees of Tuskcgee Garment. During the first week in August, Respondent's vice president, Weller, met with groups of employees and discussed the effects of unionizing the plant. On August 10, Respondent Weather Tamer met with an agent of the National Labor Relations Board in refer- ence to the scheduled representation hearing, and it agreed on terms for a union election to be held on Sep- tember 15. Respondent Weather Tamer did not mention closing the Tuskegee Garment plant, but on the con- trary, made a speech against the Union on August 17, and commenced laying off' employees between that date (August 17) and August 29. Thereafter, Respondent op- erated the plant with a skeleton work force. On September 13, Heller held a meeting with, and spoke to, the employees against the Union. The election was held on September 15, and the Union received a ma- jority of the votes cast. Thereafter, the Union was certi- fied as the collective-bargaining representative of the production employees on September 25. On September 29, the Union requested Respondent to bargain at a con- venient time and to furnish the Union with certain infor- mation necessary for its preparation to bargain. Respond- ent did not furnish the information and made no response to the Union until its legal counsel advised the Union in a letter dated October 9, that Respondent had terminated the operation of Tuskegee Garment; that there were no employees in the bargaining unit; that Respondent had no plans to reopen the plant; and that the information re- quested by the Union was irrelevant (moot). However, Respondent did offer to negotiate about the effects of the closure of the plant. On October 19, Heller furnished the Union with part of the information previously requested, but failed to fur- nish additional information since unfair labor practice charges were filed and pending against it. Nevertheless, pursuant to Respondent's letter of October 9, it met with the Union in Huntsville, Alabama, on November 2, when it denied the Union's request for severance and vacation pay for the laid-off employees, as well as the Union's re- quest to reopen the plant. 2 Based on the foregoing undisputed and credited evi- dence, I conclude and find that the Union received a ma- jority of the votes cast in the election held on September 15; that the Union was thereafter certified the collective- bargaining representative of Respondent's production employees on September 25; that on September 29, the Union requested Respondent to bargain with it at a time Iltreilrlailr all atcs shall rfer Ilil ti year 1'178, uilsle' ptcifii lll? indicated olhcr ise ' The facts sol foirlh above wrc either amiltcd, agreed n hb the pal- lies, or in general were lo0l ithsputed or iIl coiiflict in he rcc,,rd and place convenient to both parties and to furnish the Union with certain pertinent information necessary for the preparation to bargain; that Respondent did not re- spond or furnish such information until its legal counsel advised the Union in a letter dated October 9, that the Tuskegee Garment plant was closed, that there vere rno employees (essentially all of whom had been laid off) in the bargaining union, that the information previously re- quested by the Union was irrelevant; and that Respond- ent did not at any time furnish the information requested by the Union. Since Respondent was under a legal duty to bargain with the Union on and after September 15, as the collec- tive-hargaining representative of the employees, I further find that Respondent's failure and refusal to do so, and its unilateral action in closing the Tuskegee plant without notifying or consulting with the Union, all constituted conduct in violation of Section 8(a)(5) of the Act. .N.L.R.B. v. Truitrt Mlfi. Co., 351 U.S. 149, (1956); ad N. L.R.B. v. Alcne Industrial Co., 385 U.S. 432 (1967). B. Weather Tamers Relutionrship to Tuskegee Garment With respect to Weather Tamer's relationship to Tus- kegee Garment, the General Counsel was able to estab- lish the following evidence: In Weather Tamer's newsletter entitled "The Weather Tamer Bugler" for April 1976 (G.C. Exh. I1), an article appeared on the first page entitled, "Weather Tamer Adds Third Factory." Under that topic the first para- graph read as follows: Tuskegee Garment Corporation (TGC) became the third plant in the Weather Tamer family on April 5. Vice President Don Levy reported. The above-identified newsletter was published by Weather Tamer periodically and it carried news refer- able to Respondent's Columbia and Lewisburg, Tennes- see, and its Athens, Alabama, plants. The undisputed testimony of record unequivocally shows that Weather Tamer's plants in Columbia, Lewis- burg, and Athens, were engaged in the manufacture of children's outerwear garments; that Weather Tamer con- sidered each operating plant as an individual corporation; that the plant at Columbia, where the corporate offices are located, is called "Weather Tamer"; that the plant lo- cated at levisburg is called "Weather Tamer of Lewis- burg'' arid that the plant located at Athens is called "SPI of Athens, Inc." According to the undisputed and credited testimony of Avers Wcxlcr and Eugene Heller, president and vice president, respectively, of Weather Tamer, Inc., prior to April 1976, other industries were locating in the Colum- bia. Tennessee, area, which resulted in higher wages, and thereby prompted Weather Tamer officers to explore other communities in which to operate. Consequently, Weather Tamer entered into a contractural arrangement with Barclay Corporation located at Tuskegee, Alabama, for the latter to manufacture children's garments. On or about April 5 197h, Officials Heller and Wexler pur- chased 70 to 80 percent of Barclay Corporation, leaving 2')h WFATIiER 'AMEKR, INC the remaining 30 to 20 percenlt reposed in the prior own- ership of Barclay Corporation, until November 1976. At that time, being dissatisfied with the prior performance and business operations of the fiormer owner of Barclay, Heller and Wexler purchased the remaining 30) to 20 per- cent of Barclay. Thereafter, Weather amer officials named the Tuske- gee plant Tuskegee Garment Corporalion. Weather Tamer's vice president and secretary, Eugene Heller, has a half interest ownership in Tuskegee Garment, as well as in the entire Weather Tamer garment operation. Heller further testified without dispute, that the ma- chinery of Barclay was purchased without inventory; that from April 1976 to September 1978. Tuskegee Gar- ment performed labor production services for VWeather Tamer only; that Tuskegec Garment was under contract to cut, make, and trim garments (children's outervear, fall and spring, for a fee in retturn for the garments); aid that Weather l'amer determined what garments. materi- als, styles, quantity, and colors would b produced. All Weather Tamer employees, including employees in Tuskegee Garment, were given a copy of Weather Tamer's booklet of rules. entitled "Welcome to Weather Tamer." Vice President Heller also testified that employ- ees at Tuskegee Garment enjoyed Weather Tamer berie- fits such as vacation, holidays. and employee loans. lie doubted Weather Tamer's scholarship program was in effect during the existence of Tuskegee Garment. Heller acknowledged that at times when special machines were required at Tuskegec Garment in order to produce a par- ticular garment, Weather Tamer would ship in the neces- sary machinery from its other plants to complete the production. However, he pointed out that this practice was carried on throughout the industry irrespective of ownership. Wexler is co-owlner of Tuskegee Garment. aid serves as secretary and member of its board of directors. Hence, Heller aid Wexler are co-owners of WeCather Tamer, Inc., and both serve as members and officers of its cor- porate board of directors. At the time of the purchase of Tuskegee Garment, another etity of Weather Tanler, Columbia Equipment Rental Company. gained owner- ship of the equipment and furnishings, which were used by Tuskegee Garment and other fictories in the industry interchangeable on a regular basis. Immediately subsequent to purchasing Tuskegee Gar- ment, Vice President Heller sent Weather Tamer's engi- neer along with its head mechanic, Steve Kennedy, to study and do what was necessary to improve production at the Tuskegee plant. Steve Kennedy had been in the employ of Weather Tamer for 15 years, and in Novem- ber 1976, he became plant manager of Tuskegee Gar- ment until it was closed in November 1978. Thereafter, Steve Kennedy became plant manager of Weather Tamer's plant, SPI of Athens, Inc. His brother, David Kennedy, who was employed at Tuskegee Garment, became production manager of Sl'l of Athens, Inc. The material supplied to Tuskege Garment by Weather Tamer was shipped to Tuskegee Garment by a truck owned and operated by Weather Tamer at a cost of 72 cents per mile. When the garments were finished by Tuskegee Garment, they were picked up by the deli\- ery truck and returned to Weather Tamer in Columbia, where they were reinspected befoire shipment to custom- ers. Weather Tamer was billed by Tuskegee Garment for the finished product and a percentage of the labor cost incurred in the production. Tuskegee Garment's produc- lion schedule as sometimes changed to reflect the needs of the market by Weather Tamer's controller. Products rejected by customers were returned to Weath- er Tanler where they were processed by Weather Tamer and returned to Tuskegee Garment or the other plants fronm which they came. Morning production reports were transmitted to Weather Tamer at Columbia from Tuskegee Garment and other Weather Tamer plants. Correspondingly, morning production reports from Weather Tamer's other plants were tranismitted to Plant Manager Steve Kennedy, at Fuskegee Garment, for comparative and evaluative production purposes. All of the employee benefits enumerated aboe in Re- spondent's handbook entitled "Welcome to Weather Tamer" (G.C. Exh. 6), and distributed to employees in all plants. including Tuskegee Garment. uere fiormulat- ed, published. and distributed to Weather Tamer and all other employees. Plant Manager Kennedy testified that he complied with the provisions of the handbook in ref- erence to employees at Tuskegee Garment. Vice Presi- dent Heller acknowledged that he was in charge of labor relations policies and their publications as they applied to all plants. In the handbook entitled "'Welcome to Weath- er Tamer" (G.C. Exh. 6h), page 8, under the subject, "''The Subject of Labor Unions," the followilng sentence appears: "It is our belief that we can all work better as a teall ithout a uiion interfering ith the relation- ship betw.kecn the comnpany and employees. Indeed. we believe that union interference with the work- ings of your company can cause us all serious harm." The record is uncontroverted that on July 18, subse- quent to the Union's demand for recognition by Union Representative Dot Mims, Vice President Heller char- tered a plane and visited the Tuskegee Garment plant on the same afternoon and initiated the first of three or four speeches and visits, during which he waged an antiunion campaign. In an effort to obtain medical insurance for employees at Tuskegee Garment, Plant Manager Steve Kennedy approached Heller for approval to implement such a policy. Weather Tamer maintained a checking ac- count in the name of Tuskegee Garment, in Tuskegee, Alabama, on which Plant Manager Kennedy could not draw checks. The employees payroll was paid from said account, which was maintained by Weather Tamer of Columbia. The record also shows that until August 10, 1979, Weather Tamer maintained a "Weather Tamer" sign at Tuskegee Garment plant where no sign ever bore the name "Tuskegee Garment." The sign was taken down at the direction of Hleller. Based on the foregoing, essentially undisputed, evi- dence of record, I conclude and find that Tuskegee Gar- ment was monitored and controlled by Weather amer. and that it did not function as a single employer. he I)DEC(ISI()NS ()OF NA IO()NAI. I.ABOR RLAI I()NS B()ARI) corporate ilerrelationship between Weather Tamer an(d Tuskegee (iarment was further manifested by the inlter- change of machinery and of personnel (Plant Manager Sieve Kennedy, who became plant manager of Tuskegee Giarment), until its closing in November 1978. A that time Steve Kennedy became plant manager of SPI of Athens, Inc. Ozaur Irult'rv, Incorporated and/or lutco quipment C(orpany an id/or :Mlo/ilJrceeze Company, Inc., 161 NLRB 561 (1966). Counsel for the General Counsel cites Brvar Construe- tion Cornpuny and M & C (oal Company and Edwin B. .rmtiluge, Jr., 24() NI.RB3 102 (1979), wherein the oard adopted the Administrative aw Judge's findings of the single integrated employer. Therein, the Administrative La w Judge set forth, rather succinctly, the following: In detlerlilnig vwhether two or mlore businesses are sufficiently integrated so that they may be fairly treated, for jurisdictional and other purposes, as a single enterprise, the oard looks to fiour principal factors: (1) common management; (2) centralized control of labor relations: (3) interrelation of oper- ations; and (4) common ownership or financial con- trol. Radio and l'le wsion Broadcart lechnicians Local Ulnion 1264 v. Broadcast Service of iMoblde, 11., 380 U.S. 255, 256 (1965); Sakrete o .orlhern Cali/brni(l Inc. v N. L.R.B., 332 F.2d 902, 905, fnil.4 (9th Cir. 1964). "The Board has determined that no single criterion is controlling, although it considers the first three, which evidence operational integra- tionl, more critical than the fourth, common owner- ship." ¥ I. R.B. v. riumph Curing Ceniter and M. Lee Serving Company, lnc., 571 F.2d 462, 468hX (9th Cir. 1978) enfg. 222 NLRB 627 (1976). It is therefore clear from the credited evidence of record that there was common management of the plants located in Columbia and l.ewisburg, Tennessee, and the plants located at Athens and Tuskegee, Alabama, by Weather Tamer, through its principal office in Columbia, Tennessee. The fact that morning production reports were submitted to Weather Tamer at Columbia by Tus- kegee Garment: that the payroll checking account of Tuskegee Garment was maintained and utilized by Weather Tamer: that the employee rules as well as bene- fits applicable to all employees were established and maintained by Weather Tamer, all substantiate the fact that centralized control of all plants, including Tuskegee Garment, was vested in and exercised by Weather Tamer. Additionally, since machinery was interchanged between the four plants and garments were sometimes sent to plants, other than the initial plant, for completion, with all products being finally reinspected at the Colum- bia plant, further supports this conclusion. Moreover, since Plant Manager Steve Kennedy was head mechanic for Weather Tamer, but was thereafter utilized as plant manager of Tuskegee Garment, and subsequently made plant manager at SPI of Athens, all demonstrate the in- terrelation of operations of the four plants. Finally, since the evidence undisputedly established that Vice President Heller and President Wexler are co-owners of Weather Tamer and co-owners of liuskegee Garment, common management, ownership, and financial control are estab- lished without question. Local 627 International Union of Operating ngineers, A I'IL-CIO (South Prairie Conrstrue- lion Company and Peter Kiewit Sons Co.) v N. L. R. B.. 518 F.2d ().C. Cir. 1975), affd. in relevant part 425 U.S. X(X) (1976). Consequently, since all of the criteria for satisfying a finding of joint employer status or single integrated em- ployer exist, in the absence of any evidence that Tuske- gee Garment was a sinile and independent employer, it is unequivocally established that Tuskegee Garment was but an important arm of the single integrated employer, Weather Tamer. C. he union activity oJ Respondent lEmployeev and Respondc'nt's know/edge thereo Plant Manager Steve Kennedy testified that he first learned of the union activity of the employees on July 18, 178, when Mims, a representalivc from the Union, appeared at the plant and demanded recognition. tHe thereupon placed a long distance call to Vice President Eugene Heller in Columbia, Tennessee, aid advised him of union representative Mimns' presence and purpose. Ac- cording to the unanimously corroborated testimony of Vice P'resident tteller. in response to the telephone con- versation with Plant Manager Kennedy, he immediately chartered a planie to Tuskegee Garment around noon on the same day. He said Union Representative Mims ad- vised him that a miajority of Tuskegee Garment employ- ees had signed unioI authorization cards. She uao gave Plunt Manager Kennedv the ,ames o/'themployees on the organizing committee. Thereafter, hieller said he held meetings with the employees and showed them a film en- titled "Strangers in ()Our Mist." ill a effort to convince the employees that they did not need the Union. te said the substance of his talk to the employees on July 18, was ias follows ((i.C. xh. 30): I have conc downii here to talk to you because I am very concerned for the welfare of this company and the people who make their living here, Do you know why? Because I am one of those people. I do not want a Union that knows nothing of the problems of designing---sales, financing and adver- tising production-and many other prets [facts] of this company to exert very important pressure. I do not want this Union of outsiders to seriously affect the competitive position-of your company. I am convinced that the major objective of this union is not as they say to do you good. Santa Clause is dead. It i to take away about 100 dollars per year from each person who signs a card. I am convinced that a union can cause serious harm to this company. I am familiar with this union. I have belonged to this union and was on its executive board. I want to show you some slides that is here for the record that tells some truths that should help you make your decision. I will be available for Questions later, 2 minute limit-Question or answer. WEATHIER TAMER, INC Heller further testified that he spoke to employees again on August 10, during which time he read an an- nounicement to the employees explaininig the time arid procedure of' the upcoming union election. Thereafter, he told the employees that he hoped that all of them would decide that they did not want or need the union, and that he will vote against the Urnion on September 15. In reference to w hal he told employees in another speech to "the employees" on September 13, 1978, Heller testified it as follows: Ti; WIrNISS: The exact words I don't remem- ber, hut what I did tell thenl is that a union inll this plant will cause the price of our garments to go up, and if the price of our garments goes up customers will be more apt to buy garments at a lower price if they are offered. Which could indeed jeopardize the entire company. Q. Are you denying then that you did say that as far as that allegation is concerned, threatening em- ployees with jobs in jeopardy if they voted for the union, and as far as that part is concerned it was true; are you denying that you said that? A. I deny it in this context. Likewise, Plat Manager Steve Kennedy. testified that he read a speech (G.C Exh. 31), which was prepared b5 Ozier, counsel for Respondent, which Kennedy read ver- batim without adding anything. He declined to answer questions. He also stated that the meeting in which Heller discussed insurance was held before the August 10 meeting mr which he read the speech. Kennedy fur- ther testified that prior to August 10, Heller instructed him to take down the sign which read "Weather Tamer" because it could be used at Respondent's Lewisburg fa- cility, then under construction. He complied with Hell- er's directive. Steve Kennedy said that since he became manager of Tuskegee Garment the production and the quality of work improved. Style 146 marked September 11, 360 pieces, was one of the garments made by Tuskegee Gar- ment which was rejected. There were other such orders in a smaller quantity which were rejected. Style 146 was the only garment on Respondent's Exhibit 11, which Kennedy said he could identify as having been rejected. The garments produced at Tuskegee Garment were in- spected by employees at Tuskegee Garment before ship- ment to, and reinspection by, employees at Columbia. Kennedy also testified that he attended all of the meet- ings at which Heller spoke, except the times when Heller met with the employees in individual groups in Kenne- dy's office. At no time did he hear Mr. Heller tell em- ployees the plant would close if the employees selected the Union as their collective-bargaining representative. Plant Manager Steve Kennedy further testified that on February 21, 1979, he published an ad in the newspapers which read, "Weather Tamer is expanding again," and "needs a number of good people." This article was pub- lished in the Athens Alabama .Vews. However, Kennedy said the ad was to replace people, not to hire people for new positions. D. 7islirnony o' Employee Witnesses Regarding Respondent' .Meetings with Emploveev and heir Layoffs Elihzaheh Iender.sorn was employed by Tuskegee Gar- ment from April 1976 until August 23, 1978, making lin- ings, under the supervision of Willie Renfroe until she was laid off by Plant Manager Steve Kennedy. She testi- fied that she was present at the second meeting when Heller told employees he did not want the Union. She further testified that she asked Heller why he took the Weather Tamer sign dosn, and Heller said he could take it down whenever he wanted to. In a speech to employees on August 10, Henderson said Plant Manager Steve Kennedy told the employees to think about the welfare of their families before they voted; that they could jeopardize their jobs. She further stated that the sign bearing the name "Weather Tamer" was taken down on that same day, August 10. 1978. Also, after the union election on August 10, 1978. Hen- derson testified that a sign was placed in the window at Tuskegee Garment stating there would be no more appli- cations for employment until further notice. When Heller read his speech to the employees on July 18, Henderson said that she, Elizabeth Henderson looked over his shoulder, but she could not read his hanidsriting. She further testified that Pats Goodlosk looked over Heller's shoulder during his second speech. Henderson said she observed bolts of spring materials (fabric), including cut materials, and machinery being shipped out of the plant in August. She said she was never offered a job at ally of Weather Tamer's other plants. Employee Mary Alice Wright testified that she was employed by the Barclay Corporation in 1974 and con- tinued in the employ of Tuskegee Garment until she was laid off. She said she attended the July 18 meeting held by the Company and saw the film entitled "Strangers in Our Midst," and thereafter heard Heller ask the employ- ees why they wanted a union. He told them the Union was no good for the Company; that he did not want a Union; and that he would close down the plant if the Union came in. She further stated that at the August 10 meeting, Plant Manager Steve Kennedy told them "if you vote yes, your job will be in jeopardy, Heller does not want a Union, and the job would close down. Plant Manager Steve Kennedy, however, denied that he told employees the continuation of the plant depended on how they voted in the union election, or that their jobs would be in jeopardy. He said he read his speech to the employees verbatim. Wright further testified that in July 1977 management officials (Heller and others) visited the plant and advised employees at a dinner that Tuskegee Garment was the number one plant in the Weather Tamer family. She said she had only seen Heller visit the plant on one occasion prior to July 18, when the union representative visited the plant. Ruthina Davis was previously employed by Tuskegee Garment from July until December 1977, and again from June to August 1978. She testified that the union cam- paign commenced in July, and in August her supervisor, 299 DI:CISI()NS ()1: NATIONAL I.A()OR RLAt IONS BO()AR) Mary Ellen, advised Davis and nine other employees at the end of the day that "that was it," and told them to apply for unemployment; and that Mary E'llen said she did not know when Tuskegee Garment would open. She further testified that she saw Union Representative Dot Mims on July 18 in the lounge, waiting to see Plant Manager Sieve Kennedy. Around 1:30 to 2 p.m. that afternoon, she said she saw Vice President Heller when he held a meeting with the employees for an hour. At the meeting, she said Heller showed them the film enti- tled "Strangers In Our Midst" and told the employees that the Ultion was no good; that all the Union was doing was to make them pay out that fee every month: and that after they paid their money the union repre- sentative would ride around in Cadillacs. Davis said Heller visited the plant a week later (about July 27) and called ernploees by departments into the office of Plant Manager Kenined. She continued to tes- tify as followvs: Q Do (olu recall anything else Mr. eller may ha ve said? A. Well, he kept telling us that he did not ,\ant the Union in. and the union couldn't get us no high wages. The union couldn't make him give us nioth- ing that he ssasln't gin ing us already. Davis further testified that on the day of the National l.abor Relations Boards representation hearing on August 10, 1978, Plant Manager Kennedy read a state- ment from Heller to the employees which in essence she described as follows: A. Well, he read what was on the paper. He told us he had something he wanted to read to us that he had gotten from Mr. Heller, ad read it. And, well, I didn't pay much attention to him, but at the end when he made a statement about the way we voted depended the way and how we volted de- pended on our future employment. And, everyone got that part; and when he said, "Thank you," I think somebody was trying to ask hilm something, and he said that lihe didn't know nothing, he couldn't tell us nothing. Al41 he could do was' tell u to read et ween the liltes. On that same day after the meeting, Davis said the sign that was i the window which read, "Applications taken here," was taken out of the window ad replaced by a sign which read, "No more applications being ac- cepted." About a week later, Davis said Heller came to the plant [was] and spoke to the employees during which time he was asked by an employee "if the plant [was] going to close." Heller said, "he did not know, it de- pended on economics." Another employee asked him why sonie of the employees were being laid off and Heller said, it had something to do with bringing the spring shipmeniit to Tuskegee Garment. During his visit she said she had a conversation with Heller at which time she told him that while she would not be there at tile plant, she was going to return to vote in the election. Her conversation colltillued as follows: So I told him I was just here for the time being, but I would be leaving soon but, I would be back for the election to vote. I made that plain to him So, he asked mte why was I omlinrg back to vote to jeopardize other peoples jobs, and I told him I wasn't jeopardizing no ones jobh They w ere jeopardizing their owen sell b not voting the union in. Heller went on to tell her (Davis) about the General Western Company, where the employees voted in the Union in 1925, ad the Company went out of business. Davis said at the beginning of the last meeting with the employees, Heller told them, "I just wanted to make it clear, there is no Santa Clause"; that he was not giving anything, the Union was not going to make him give anything, arid that the knew how Mims and the Union were telling employees how the Union would get them higher wages. Feller also told her that she was very smart and that she should get another job because she had been complainiing about how she wanted another job. He suggested that she talk to her supervisor about it. She acknowledged that Hellcr never told them that the platl would close down if the Union got in. Edith Lou lircker was employed by Weather Tamer at Athens from September 1977 to October 1978 as all em- broidery operator under the supervision of Abby White. She said she first learned about the Union in a letter dated August 29, 1978. About the first of September 1978, Supervisor Abby White held a conversation with her which she described as follows: Q. Do you recall what was said'? A. Yes, sir. Q. What was that'? A. The Tuskegee plant that all the blacks wanted a Unliioni, arid they wanted and voted for it to be in ald Mr. lcllcr closed the plant down, and, she told me, she said, if lie done that at our plant that he would close it down, move the machines and relocate. Q. Was anything else said in that conversation? A. He just said that he could get anybody to work for him in a sewing plant if that was to happen. On cross-examination Tucker acknowledged that she was angry with Abby White when she got laid off be- cause she felt it was White's fault. She also acknowledged that she has never liked White, even when they ere in high school, because White is what she called "a back-stabber." Tucker explained her feelings by telling what happened to her on her last day at work when she reported to work sick. She stated that she had the flu and a temperature of 103 degrees when she informed Supervisor White that she wanted to go home at 1() a.m. White advised her to go to the rear room and lie down. Since she felt the room as not comfortable ad she was affected by the noise from the machiines operating, she left work crying and went home at 10 am W\heii she got home her mother called the plant, and White told her mother Mr. Wilson had al- ' FAI IHEFR IAMI R. IN(C ready hired someone in Tucker's place. luckcr gav a steflement to the Utnion a Jiw da.is afitr her termination. Alvin honma Iouue, presently inll the United States Air Force, formerly orked for Wealler Tamler from March to September 1978, in the embroidery department. under the supervision of Abby While. House also worked in the cutting department under James Harris at the Athens plant. In a meeting with the employees around late August 1978. Ilouse said Plant Manager Ronald Wilson told employees the Union would not do them any good; that union officials just drove around in big fancy cars, and wanted them to pay dues. Around the last of August or the first of September 1978, House said Supervisor Abhb While approached him at his machine and asked him if he had heard that the Tuskegee plant was closing, and lie said no. She old him the new embroidery machine was coming from Tus- kegee and that the reason Respondent could not close the plant at Tuskegee was the Union. She said Weather Tamer would close the plant and trN to relocate if the Union came into the Athens plant, where Ms. Tucker also worked. White further said that the Union tried to come into the Tuskegee Garment plant and Respondent closed it, and that the same thing would happen at Athens if the Union came in. House said he told Ahhy White he wished the Union would come in the Athens plant. He said he never discussed the conversation be- tween he and Ahh White with Tucker. After he left the employ of Weather Tamer in Septem- ber 1978, House said he continued to solicit employees' signatures until he entered the Air Force on March 19. 1979. He said just after Edith Tucker was fired in Sep- tember or November. he told union representlaives that he recommended Tucker as a contact person ho kncw what was going on in the plant. The Union distributed leaflets at the Athens plant in reference to its campaign at the Tuskegee plant. Idonia Jerido frther testified that Mary Ellen Spartley was her supervisor, who advised her about her layoff as follows: A. Well, she told us we was being laid off and lhat-and she told us to go down to unemployment office and apply for our unemployment and when they asked when would we get somec work, she said she didn't kns; she couldn't talk. She said she became aware of tle employee's organi/- ing effort in May 1978; that she was a member of a union 10 years ago, and that she saw Mims on the morning of July 18, 1978, at 9:30 a.m. when she cme to the plant She attended the company meeting that day and in refer- ence thereto, she testified as follows: Q. What do you recall Mr. Heller say ing? A. Mr. Heller spoke and he said that having a union could put our job in jeopardy. So I personal- ly asked him what he meant by "putting our job in jeopardy." He said that it meant by having a union [the price of] the coats could go up so high that wouldn't nobody buy them; there wouldn't be no point in making them. Then he said those ho had signed union cards, that they didn't have to sign them: they didn't ha, e to let the peoples in their homes coming arouiid with cards to be signed; and he also said the more cards the union got signed. then the more the mnoney the ones had them signed would be paid by the union. And he said those who had signed cards could ask for them back. tlit someone asked him ,Ill.y we didn't ha e better in- surance, and he said hc had been looking at some insurance, the same kind his company had ill Ten- nessee. In D)ecember 1977. Jrido said Wexler came to Tuske- gee iarment and told the employees they were doing a good job lie said production as good and they were making a good garment. ()On another occasion employees were called into the front office, wshere Plant Manager Kenniedy told them they were doing a good job. and each were given 30 cents for a coke. She said after July she nticed that no delieries were being made to the plant, but she saw garments, machines, and materials being shipped out She was a member of the union com- mittee, along with Ethel Williams and Bernice Adams. Tihey met ith Ieliler on November 2 197S. in Hunts- ville, Alabama, to learn the status of I ukegee (iarmenit. swhen Heller told them Tukegece Garment w\as closed and was not going to reopen Jerido continued to testify as follows: A. Mr. Heller said he would not open it h ck up. anld he also related to the distance that lie had; to come on his plane and all, that it was da ngerous. And Mr. Heller told us at hal meetinig that Ve was doing good The! didn't close on accoillt 4i be- cause we was bad ad vwasn't doing well. Q. Did you ask him any questions at that time.' A. Yes I asked hill s hy didn't he tell us hle ;sas going to closc aiI hle said it he hd' e told 1(s he was going to close the plant, e vsouldn't hase fin- ished his coats. Jerido acknowledged that Plant Manager Kciiincd had talked to herself and other employees about keeping up their production prior to the onset of union ati it. Bernice Adams has been I machine opcrator sinc 1974 in the Barclay corporation and continued her eim- ployment with Tuskegec Garmenl unlil August 22. 1978. when she was advised by her supervisor that she s; as laid off. She signed a union card onl May 26, 1978. Adams further testified that she attended the econd company meeting on or about I eek after the first meeting. and heard Heller tell employees they did not need the Union: it would be better if the Union didi not comc in: aid that the Union could not promise t hem jobs. He told them that the Union's purpose w;as to get their money, ride around in fine cars. and live in expen- sive hotels and motels. Adams said she attended the thirl company meeting on August 10, and heard Manager Stev e Kennedy tell employees the same thing Heller told them. Kenned also told them if the Union came in their jobs ould be in jeopardy, that the plant u; as not getting work because it \was preparing for a chatlrIgeo\ r (;asonal). Adimlas Said () I I)lCISI()NS OF NATIO()NAL ILAIBOR RLA'I IONS BO()ARI) she saw a boll of fabric being shipped out, which she had never seen occur before. She saw the Weather Tamer sign outside taken down and a sign placed in the window which said. "No More Application for Employ- ment." She said, in the past, the majority of fabrics re- mained in the plant although a few bolts would he shipped out. Vivian ,4. Young testified that she was employed in June 1978 and became aware of the union campaign in the same month. She said she attended a company meet- ing in which Plant Manager Kennedy told employees "Too many people were absent, that they were not get- ting enough work out and he had to send the winter coats to the Athens plant.":' Young further testified that Mr. Heller spoke to em- ployees against the Union but he told them if they voted for the Union it would not be held against them by Re- spondent. Patricia Robinson corroborated Young's testi- mony with respect to Plant Manager Kennedy's speech about absenteeism. Robinson further testified that a week before August 8, 1978, Supervisor Derco asked her if she or any of her fellow employees had signed a union card. She said she did not reply. E. Respondent's Explanation Jbr Closing the Tiuskegee Garment Plant Vice President Eugene Heller testified that at the time he and Wexler purchased all interest in the Barclay Cor- poration in November 1976, he told Plant Manager Steve Kennedy he wanted him to try to make the things go, and if he could not do so, Weather Tamer would have to close the plant. However, in early 1977, when it became clear that operating Tuskegee Garment was going to be a managerial and financial drain on Weather Tamer, Heller said Weather Tamer decided to construct a plant at Lewisburg, Tennessee. During a special meeting of the shareholders and di- rectors of Tuskegee Garment in Chicago, Illinois, on No- vember 7, 1977, there was discussion of the feasibility of continuing the operation at Tuskegee Garment, and they discussed exercising the option to renew the lease in about March 1978. It was further decided that it could not close the Tuskegee Garment plant immediately be- cause of commitments to Weather Tamer's customers, but to keep open the lease option so the Company could operate as long as necessary (Minutes of the meeting, Union Exh. 1). According to Union's Exhibit 2, minutes of the joint Tuskegee Garment shareholders director's meeting in Chicago on May 1, 1978, a lease of the Tuskegee Gar- ment facility was approved to end on September 30, 1979, at $300 per month. The discussion centered around an effort to have the lease expire at a time when con- struction of the new Lewisburg plant would be complet- ed, so that business operations would continue. In the July 1978 issue of "The Weather Tamer Bugle" (Resp. :' Young attempted to testify about a conversation held with her super- visor, loyd D)erco. and an objection was interposed because such con- versaltion was not alleged in the complaint. The objection was overruled I now reverse his ruling, and sustain the obhjecin to, and strike the tesli- mony given over the objection, because the issue was not litigated by Re- spondent Exh. 20), Heller said he expected the Lewisburg facility to be in operation in 4 to 6 weeks (late August or early September 1978), which is also the time the new spring line production was to begin. He said he nevertheless de- cided to go forward with production at Tuskegee with the fall season garment, because Weather Tamer had trouble with the contractor constructing the Lewisburg building, which was not ready for occupancy and oper- ation. He said he decided not to go forward with the spring garments before July 18, 1978, because according to Respondent's Exhibit 14, Weather Tamer was experi- encing a decline in spring and fall sales and orders for 1978 and 79 (Resp. Exh. 22). Heller also said the cost of operating a diesel trailer truck for 365 miles at 72 cents per mile once or twice a week, the cost of paperwork, and the costs and time of his having to charter a plane to come to Tuskegee Gar- ment, were all factors considered in deciding to close Tuskegee Garment. When confronted with his affidavit submitted to the Board agent, Heller admitted that at the March 1978 board of directors and shareholderv meeting, they decided the winter season orders would be the last order sent to Tuskegee, and his projection was to close the facility prior to September 1978, with no precise date set. With respect to extending the lease, Vice President Heller testified that originally the parties had agreed to a lease which was entered into with the board of directors of Tuskegee Garment, on which Tauman is a member, along with the City of Tuskegee (Mayor John Ford) which was to take effect after the expiration of the lease on June 30, 1978. Thereafter. Tuskegee Garment entered into a lease beginning on May 1. 1978, for a period of 15 months, to expire September 30, 1979, with five 2-year op- tions to renew the lease. The September 30, 1979, date was given because Weather Tamer was having a building constructed at Lewisburg, Tennessee, and it did not know for certain when it would be completed. If com- pleted earlier, Tuskegee Garment would have been closed. However, Mr. Heller said closing Tuskegee Gar- ment would have depended upon sales and production in the future. Nevertheless, Tuskegee Garment was closed in August 1978. The Lewisburg plant became operational November 1978, and Weather Tamer could not move the machinery into the plant earlier. Heller further testified that Weather Tamer decided to build a plant at Lewisburg prior to 1978, even though he continued to tell the employees after the layoffs in August 1978 that he was hopeful of reopening Tuskegee Garment. There was no public disclosure of the con- struction of the Lewisburg plant until October 1978, be- cause Weather Tamer had goods to finish at Tuskegee Garment after August 1978. The plant closed on October 9, 1978. Tuskegee Garment Corporation was disolved April 2, 1979. Heller also stated that he had Plant Man- ager Edward Steve Kennedy to announce to employees that Tuskegee Garment was to be closed in August 1978, he could not recall the exact date. He said that in the past Tuskegee Garment had laid off employees for a short period during periods of changeover. The plant re- mained open until October 9, 1978, to enable it to pay 302 W7FAI I:R FAMER, IN(' the rent and to discharge other obligations that may have occurred before it was able to transfer to its Lewisbulg plant. General Counsel Exhibit 37, the official document, showed that uskegee (Garmcnt withdrew from business in the State of Alabama on August 6, 1979. Ileller testi- fied that lcvN, controller of Weather Tamer did not appear and testify in this proceeding because he under- went brain surgery recently and has not ias yet fully re- covered tlie corroborated Steve Kennedy's testimony of sales behiig dos ni hen the Athens plant worked a 4-daS week in the latter part of 1978, and he acknosslcedged that this had never happened before. He explained that "takings" are "sales" equal total of garments conmmitted to sell to customers based on orders received. Finally, Heller testified thlat Tuskegee Garment did not offer !o bargain before Noveniber 2 1978, and that the Union did not request it to bargain, and he acknowl- edged Tuskegee Garment did not notify the Union that it was closing Tuskegee Garment During the November 2. 1978, meeting in Huntsville, Alabama, Heller said he told the union committee the plant would not be reopened under any circumstances, and that the employees would not be given any sever- ance pay as the Union had requested. Hec further ac- knowledged that before the November 2 meeting, the Union requested information concerning the closure of the plant, but Respondent did not provide such informa- tion. Heller continrued to testify as follows: Q. Why did you try to win an election at the fa- cility that you had decided to close? A. To avoid my having to take a week out of my very limited time to be here answering questions for you . Q. Your statement inll your speech was that "The outcome of this election is extremely important to me and to our company A. That's right, and it is, and this proves it. Q. The importance of it was that you would have to spend time doing what, now? A. Discussing this with you. Q. You mean negotiations you're talking about? A. No, this isn't negotiations. This is answering questions, the answers to which I don't have. This is taking my very limited time. I am stretched in all directions, and here I have to sit here and explain to lawyers how to produce goods. I have to explain to this gentlemen, who will not make me a lawyer any faster than I'll make him a production man. The record shows that in a letter dated March 21, 1978, Daniel S. Tauman, attorney for Weather Tamer in Chicago, wrote to the mayor of Tuskegee, the Honor- able Johnny Ford, suggesting that the lease to commence July 1, 1978, contain five 2-year options to extend the term, the first of which at the rate of' $900 monthly, and the last three at the rate of $1,000 monthly. The mayor of Tuskegee, the fHonorable Johnny Ford, testified that he had been actively seeking to bring new businesses into Tuskegee since 1972. The city of Tuske- gee owns a building located on Gautier Street, which was formerly occupied first by Barclay Corporation and then by Tuskegee Garment Company, respectively, until November 1978. Since the departure (if Tuskegee G(ar- ment, the city has been seeking a new tenant and is cur- rently negotiating with Smolar rother, a garment pro- ducer. Smolar is now interviewing prospective workers and has made a written commitment to move into the buildinig within a month or so. A lease is being drawn up. The building is currently under lease to Tuskegee Garment through September 1979. Mayor Ford said in the late sumnlir of 1978 that he learied that the Tuskegce Garment employees were or- ganizing a union. At the same time, Heller talked to him on tlhe telephone and told him his profits were marginal, and that he was not sure, but he thought there was a chance he may or may not continue operating the plant Mayor Ford (lid not recite the date of this conversation, which was sometime in the summer. However, he identi- fied his letter (G.C. Exh. 40) sent to cller ill which he explained as follows: Q. Do you recall sending this letter, sir? A. Yes. The letter w.as sellt after I learned that Mr. Hller had closed and definitely not planned to come back. Somebody called it to my attention, I guess it was some of the employees-that they had definitely closed the plant. I did not have air extra conference with Mr. Heller. I did not know that they had really closed. They had talked about it. But when I learned that they were actually gone, I picked up the phone and called him; and, of course, I wrote him a letter reflecting our conversation and asking him to send a key so we could go over and inspect it. Mayor Ford said, subsequent to his learning the Tus- kegee Garment plant had closed, he called. Thereafter, he commenced seeking a new tenant for the building. He said he made no such effort befiore October 1978. ANALYSIS ANDI CONCI USIONS Although the foregoing testimonial evidence summa- rized under topics B and C is only minimally denied by Respondent (Manager Kennedy and Vice President Heller), I was persuaded by the demeanor of employee witnesses Elizabeth Henderson Mary Alice Wright, Ruthina Davis, Edith Lou Tucker, and Idonia Jerido, as augmented by the circumstantial evidence as a whole, that their testimonial versions were essentially truthful, and Respondent's denials thereof were not. I therefore credit the testimony of the above named witnesses, and discredit Respondent's. Consequently, based on the above referenced testimo- ny and documentary evidence, I find the following: 3. On July 18, after showing the employees an antiun- ion film entitled, "A Stranger In Our Midst," Vice Presi- dent Heller put their jobs in jeopardy. When he was asked by an employee what he meant by the latter state- ment, accordingly he replied, It meant by having a Union the coats would go up so high that nobody would buy them; there would not be any point in making them. Certainly the above statements by Heller, without any assurances against reprisals, clearly suggest that the 1)1.I II()NS ()I NA I I)NAI l.AI)R R A IO)NS Bl()ARI) Union :ould I cause tile garnieints to hb priced so high that they would lot be purchased by his customelrs, thereby fIrciiig Respondenl to go out of' business. Such statemeits b1 IIeller can hardly be cllaractrized other than clonveying a threatlning import that Rspondenl would close its plantl perations if the mnploees exer- cised their rights protected by Sction 7 in llnioni/ling the plant. Fturtlherniee, such conduct clearls violates Section X(a)(1) of tlle Act. 2. Accordinig to the credited tcstimioni of Mlary Alice Wright, on July 18, the salie da' the Unior first demanded recogiition, Ieller asked eniployees why they wvanted the Union. Ie also emphaticall> said he did ot want the Union, that the Union wsias 11no god fr the ComlpaIny, and (ill so maliny words) said itf the Union ciailc ill e would close the plallt. Since leller is a high rianking official of Respondent, it is clear that his askinlg emiployees whiy they sanled the Union, constituted coercive interrogation of employees and that his other statements to the enTploycs not olll evidenced uniionl anili us, bt also constituted more thal a veiled threat to close the planit if the employees succeed- ed in their orgaliziational efforts to nllioniZe the plant. Such conduct abridges crmployce's Section 7 rights, in violation of Section 8(a)(1) of Ihe Act. 3. According to the credited testimonial evidence of Ruthina Davis, on or about July 27, Heller told employees that Respondent's predecessor, the Bar- clay Corporation, 5 ent out of business because the plant became unionized. Since Heller did not furnish the employees with any objective evidence to support the above statement, it is obvious that he presented this conclusionary reference for the employees to use as a comparative analogy as to what would happen to them should they unionize Re- spondent's plant. As veiled as it may seem, such state- ments to employees during a union campaign obviously carried a threatening message to employees for engaging in activities on behalf of the Union, in violation of Sec- tion 8(a)(l ) of the Act. 4. According to the credited testimony of Patri- cia Robinson, on August 8, Respondent's undisput- ed Supervisor, Derco, asked Robinson why she was not wearing a union pin. At a later time, Supervisor Derco asked Robinson and the bundle lady if they had signed a union card. Since Derco was unquestionably a supervisor within the meaning of the Act, and his inquiry was made during the midst of the union's organizing effort, it therefore constituted coercive interrogation of employees, in viola- tion of Section 8(a)(1) of the Act. Even if Derco's inquir- ies were against company orders, it is still nonetheless coercive interrogation, and the option lies with Respond- ent to discipline Derco for violating its order, if it so chooses. This conclusion is especially true, since Derco, like Heller, did not give employees any assurances against reprisal by Respondent. In his brief to the Administrative aw Judge herein, co usel for tile (iGeneral Counlsel requested tile Adminis- tratisc l.aaw Judge to reconsider his ruling excluding tes- tuiilii\ allgilig that ill August, Supervisor loyd I)erco orally threatened all employee with plant closure if the llnion successfully organized employees at luskegec G(arment. Counsel also requested the Administrative ILa\v Judge to accept his, offer of proof of said allegation as evidence. and hce cited several cases purportedly in suplort of his first request. While tlhe allegationi of the proposedl anlndmiciit may in some way be related to the gencral allegations i the original charge at the time of tile ruling, I had no wlay of conclud(ing as the (ienral Counisel argues, that Respond- celt ,was fully apprised of the factuil matter on which the imotion to amend \,as predicated. Counsel does not cite aniy particular page or lanlguage in the authorities cited to support his argument, ()rdinarily, I generally grant such IotiOns to amendlcl the coniplainit rhelCl made early ill tlhe proceeding, and hiln based onil a reasonable cx- planation. In the istaint case, thil hearing as well ut1- derway (near the end ofl the second day), ad itlnesses aind prospective iltnesses had been congrcgatiig and conlversing outside the hearing room onil both days. Counsel for Respoldeit objected strenuously to the latent motion to amcid the complaint. I also viewed the subject of the proposed amendment as merely cumula- live. In any event, after a review of the circunistances herein before described, I do not believe gratiig such anl amelidneleit under such circumstances would comport with fair play. In my judgment, granting the amendment would have been prejudicial to Respondent's defense under the circumstances. Finally I do not find anything reasonably on point in the authors cited by counisel for the General Counsel, \which suggest reversal of the ruling. 5. It was established by documentary evidence (G.C. Exh. 31) that Plant Manager Steve Kennedy gave a written speech to employees on August 10, during which time he told employees, inter alia, the Union could jeopardize their employment. He also told them "you owe it- to yourself and your family to find out the facts on both sides before you vote. The outcome of the election will aect your future as an employee of the Company." When an employee asked Manager Kennedy what the latter vratement meant, he replied: "Read between the lines." The above statements by Plant Manager Kennedy were made without giving employees any assurances against reprisal. Hence, it is obvious that the seriousness emphasized in this meesage by Plant Manager Kennedy, as well as the unequivocal statement of fact that the em- ployees' future employment will be affected by their unionization of the plant, clearly constituted threatening conduct on the part of Respondent, in violation of Sec- tion 8 (a)(l) of the Act. 6. Vice President eliler, gave another speech against the Union on August 17. As the General 304 WEATHER TAM}ER. INC. Counsel points out, the most pertinent parts of that speech were as follows: First of all, you should kow that there is no way that the Union carl guarantee a single job or a single paycheck for the employees of this plant. Each of you has a job here today because we are able to produce a quality product at a competitive price which our customers are willing to purchase. Anything which interferes with our ability to pro- duce good garments at competitive prices can have a serious effect on the future of this plant. The industry that we are in is a very competitive one. The difference in price between our products and another company's product is often quite small. The buyers, or our customers, are always looking for the best possible price and for guaranteed deliv- eries, and union demands for higher wages and benefits could force up the price on our goods so that we are no longer competitive. I think that all of you can see that this effect would be extremely detrimental to your future and the future of this plant . There is no way that we could agree to union de- mands which would make the operation of this plant unprofitable or uneconomical. It would do us no good to manufacture garments when the cost of manufacture was so high that we could not sell them in the marketplace.... It is our desire to continue the operation of this plant as long as it is economically feasible and as long as work is available. I would hate to see any group of outsiders come into this plant and cause the interference and disruptions which would pre- vent us from attaining that goal. As the General Counsel argues, when the above speech by Heller is read in the context of the Union's onoing efforts to organize the plant, and Respondent's many speeches by company officials, it is inconceivable that employees in any plant could arrive at any conclu- sion other than that such speech was a clear message that the plant would be closed in the event of unioniza- tion. This is particularly true when it is observed throughout the record, that Respondent made its many speeches and carried on its many conversations with em- ployees with respect to its opposition to the Union, with- out ever giving employees any assurances that their sym- pathies, desires, interests, or activities for, or on behalf of the Union, would not subject them to reprisals by the Company. Moreover, at no time did Respondent present to its employees any objective considerations such as compara- tive data relating to sales and costs to justify the gloomy economic forecast it painted to its employees. Nor did Respondent furnish any evidence that the Union in ques- tion had presented to it any unreasonable demands or that it would do so in the future. Consequently, Re- spondent's clear threat, implied or expressed, to close its plant if the employees selected the Union as their collec- tive-bargaining representative, violated Section 8(a)(l) of the Act. Jimmv-Richard Co.. Inc., 210 NLRB 802 (1974) and .L.R.B. v. Gisel Packing Co.. Inc.. 395 U.S. 574 (1969). 7. According to the credited testimony of Ruthinia Davis, after the above speech on August 17, while at her work station, Heller asked her why she wanted the Union to come in and tell her how to do her work. During their discussion about wages, Heller asked her if the wages were so bad at Tuskegee Garment, why sa as she working there. Davis told him that she was mercly working there for the time being, but that she would be leaving soon. Heller then asked her hy hKwa she coiing back to vote to jeopardize other people's jobs. The above statements by Heller with reference to jeopardizing other people's jobs is clearly a further threat that if the employees voted for the Union their jobs would no longer be secure. He made further threatening statements by implication, when he asked Davis why did she think the plant (the unionized Barclay Corporation) went out of business three times before he Heller, Weather Tamer) took over the business. Even though the above statements by Heller may have been articulat- ed during a friendly conversation with Davis, Heller was still vice President of Respondent, and Davis was still an employee of Tuskegee Garment. Therefore. Heller's question and threatening statements were not stripped of their coercive effect on the organizing rights of Davis and other employees. Quemtcro. Inc.. a sub.sidiar, of RSR Corporation, 223 NLRB 470 (1976); and Monroe Manu- facturing Company Inc., 200 NLRB 62 (1972). The re- peated reference to plant closures by Heller and Plant Manager Kennedy only reinforces the conclusion that such references in totality, were threats to close the plant and constituted violations of Section 8 (a)(l) of the Act. After laying off its production employees in August. Respondent's campaign of instilling fear and insecurity in employees with respect to their jobs, was further forti- fied by its letter sent to all employees on September 5 (G.C. Exh. 17), which in essence read as follows: 8. The only real job security is provided by our customers. As long as we are able to manufacture quality garments at a competitive price, there will be work in our plant and jobs for our employees. I have enclosed a list of several companies that have recently applied for Federal assistance for their em- ployees due to the fact that they were forced out of business by foreign competition. Several of these companies were making women and children's gar- ments. Many, if not most. of their employees were represented by Unions. The Union did not provide these people with job security.... The best job security that you have is a NVO vote on September 15. Again, Vice President Heller refers to other plant clos- ings, which he implies were forced out of business by cheaper competition because their unionized employees forced them to sell their garments at higher prices. Heller did not provide any objective evidence to support his intimidating statements to the employees. Certainl 305 DIECISIONS OF NATIONAL LABOR RELATIONS BOARD such threats constituted a violation of Section X(a)(l) of the Act. Marathon Lelburneau Company Gulf Marine Division of Northern Manufacturing Company, 208 NLRB 213 (1974). 9. Heller continued in his letter of September 5, sent to employees as follows: Although we have recently suffered a reduction in work, we are hopeful that we will be able to secure new work within the next few weeks and return everyone to full employment. There is no way that the Union can help us find or keep work in our plant. (G.C. Exh. 17). The above paragraph written to laid-off employees in light of the above described unlawful conduct of Re- spondent, clearly conveys or infers to the employees, that they could return to work if they returned without the Union. Heller reinforced the above letter with his letter dated September 12 (G.C. Exh. 19), 3 days before the election held on September 15, in which he empha- sized the following: "To Protect Your Future. Be sure and VOTE NO on September 15" Moreover, on the sample ballot attached to this letter, Respondent said: Employees are urged, "Put 'x' in the 'NO' Box to vote against the Union and for good wages, job security, and individual freedom!!!" 10. On September 13, Heller made another speech (G.C. Exh. 43) to employees, during which he said: "Many companies manufacturing ladies' and children's garments have been forced out of business in the past few years because of increasing competition from foreign countries, and Unions have lost thousands of members with thousands of jobs." Heller continued, "I think that all of us real- ize that it is much better to earn good wages and the benefits and have steady work than it is to have a higher wage-rate and benefits on paper only but with no work to do. Is that clear to everyone?" 11. Also in his letter of September 13, (written speech), Heller continues as follows: Okay, that you are charged that the threatened employees says their jobs were in jeopardy if they voted yes in the Union election. Now as far as that part is concerned if telling the truth is a threat I don't know what we have tried to be absolutely honest with everyone of you. [sic] We put a lot of this stuff in writing and you'll notice I've been read- ing most of this stuff and generally .... what I say I will stand behind, and if you feel that you are threatened . . . I doubt it, I don't think so. We threatened to close the plants if the Union came in. Okay, there too we are trying to be absolutely honest and straight with you but we are not going to tell you fairy tales, we are not going to tell you if the garments cost more than for what we sell them for if we're to keep running the plant, and if any body does tell you that you know and you believe them, its your own fault. The series of remarks in the several speeches hereto- forth described in paragraphs 8, 9, 10, and I 11, remove all reasonable doubt of Respondent's intention to communi- cate to its employees, an ultimatum of either work with- out the Union, or no plant and no work. Heller empha- sized and reemphasized the importance of the outcome of the election as it related to the future employment of the employees of the Tuskegee Garment. More specifi- cally, in his September 13 speech he said, "if only 10 em- ployees vote in the election, the outcome will [be] decid- ed by six people. I wouldn't give away my vote that way and I don't think anybody who values their job should." In further elucidating on his prior comments, Heller also said, "we are extremely hopeful that in the next few weeks increasing orders for the spring line will enable us to call our employees back to work here in Tuskegee." We know that we will be in a much better position to obtain new work and deliver garments on time without the interference of the ILGWUA. Again, Vice President Heller made it clear that contin- ued employment at Tuskegee Garment was conditioned on the employees' rejecting the Union. Such a condition clearly constituted threatening employees to close Tuske- gee Garment if they selected the Union as their repre- sentative, in violation of Section 8(a)(l) of the Act. Additional evidence of Respondent's coercive and un- lawful conduct, as well as its real reason for closing the Tuskegee Garment operation is as follows: 12. In a letter dated August 29, Heller also ap- prised the Athens plant employees of its opposition to the unionization of Tuskegee Garment, or of any of its other plants. Subsequent to the mass layoff of employees at Tuskegee Garment on or about Sep- tember 1, the Athens plant supervisor, Abby White, told Athens employee, Edith Lou Tucker, that4 em- ployees at Tuskegee Garment had voted in the Union and Heller had closed the plant; and if em- ployees at Athens selected the Union to represent them, Heller would close the Athens plant. Such conversations by Vice President Heller and Su- pervisor White, constituted threatening reasons to close the Tuskegee Garment and Athens plants, in the event employees in either or both plants sought unionization thereof. As such, Respondent's conversations were viola- tions of Section 8(a)(1) of the Act; and its actual laying off of employees for such reasons, violated Section 8(a)(3) of the Act. Heller's statement to the employees on September 13, that "that whether or not the Union wins the election on Friday will not determine the future of this plant in Tuskegee .... " does not strip Respond- 4 Although the record shows that Tucker and Whilte did not get along very well from a personal point of ies, [I wls nevertheless persuaded by the rather candid and impersonal manner in which Tucker testified. that her testimony was not colored by her personal feelings towards White I was furher so persuaded by the chain of credited evidence of the orga- itlzitg activities of the Tuskegee Garment employees, which coincided itlil Respondent's closing of the 'Tuskegee plant, and is prophesy close he Athens plant. I do not attribute the contemporaneous Iccur- rence of these events to coincidence, hut rather, Il the well orchestrated efforts of Respondent to intimidate its Athens plant emplioyees from seek- ilg representation of employees at the Athens planit 306 WEATHER TAMER, INC ent's previously uttered threats of their threatening and coercive character, nor does it exonerate Respondent from violation of the Act. Consequently, Respondent's well established 8(a)(1) conduct also clearly reveals, and I so find, that Respond- ent's reason for closing the Tuskegee Garment facility was substantially, if not solely, motivated by the employ- ees successful unionization of the plant. I further find that most, if not all, of Respondents other reasons ad- vanced for closing the plant were merely a pretext to conceal its otherwise unlawful reason. These conclusions are further supported when it is observed that in spite of Respondent's contended reasons for closing Tuskegee Garment, it nevertheless, made exhaustive campaign ef- forts to dissuade not only its Tuskegee Garment employ- ees, but also its Athen's plant employees, from unioniza- tion. The record further shows that it was only after Re- spondent learned on July 18 that a majority of its em- ployees were in favor of the Union, and 2 to 3 weeks before the upcoming union election, that it decided to lay off nearly all of its production employees. In all probability, Respondent elected to designate the separa- tion of its employees from the Tuskegee plant as a layoff, as distinguished front a termination, because it was hoping to gain additional antiunion mileage from the layoff, and retain the option to recall the employees in the event the Union was defeated in the election of Sep- tember 15. When the Union prevailed in the election, Respondent made the layoff of the employees permanent by closing the plant. The evidence also shows that Tuskegee employees did not manifest any idea that the Tuskegee Garment plant would be closing until after Heller's speech on August 10, when he directed that the Weather Tamer sign be taken down. Although employees asked Heller about the future viability of the plant, at no time did Heller, or any other managerial official, ever tell the employees that Respondent contemplated closing the Tuskegee Garment facility. Although Respondent contends that its denial that the plant would close and its reasons for concealing its closure were strategic, in order to have the employees complete work on its garments, I do not credit Respond- ent's contended reasons. This conclusion is especially true when it is observed that Respondent went to great lengths to defeat the Union. Moreover, although Re- spondent's Lewisburg plant was under construction since early January, the record is barren of any nonself-serving evidence that Respondent contemplated closing the Tus- kegee Garment plant prior to the Union's campaign and demand in July. At least it may be reasonably inferred from the evi- dence prior to July 18 when the Union made its demand on Respondent that Respondent intended the Lewisburg facility as a fifth plant, instead of an alternative for the Tuskegee Garment facility. This is also true since em- ployee-witnesses testified how Plant Manager Steve Ken- nedy commended them and gave them a Coca-Cola for doing such a good job. In recent months prior to the clo- sure of Tuskegee Garment, the evidence does not show that Respondent manifested any dissatisfaction with the quality of production of garments manufactured at Tus- kegee Garment. All of Respondent's contended dissatis- factions with garment quality and production at Tuske- gee was presented at this hearing, after the fact of union- ization. I find such testimonial expressions of dissatisfac- tion inconsistent with Respondent's conduct which is self-serving and untruthful. I therefore discredit such rea- sons as being any part of Respondent's predominating reason for closing Tuskegee Garment, the employees se- lection of the Union as their representative. F. Respondent Failed and Refused To Bargain With the Union After the Union obtained a majority of votes in the election held on September 15. it obtained certification as the representative of the production employees of Tuske- gee Garment. Thereafter, on September 29, the Union requested to meet with Respondent for the purpose of collective bargaining. At that time it also requested rele- vant and pertinent information to its bargaining position. On October 9, Respondent replied through its legal counsel, who informed the Union for the first time that the Tuskegee Garment facility had been closed by Re- spondent, and that the information requested was not rel- evant. Although Respondent furnished some information, it did not supply most of the information requested, and it acknowledged such fact at the hearing. Thus, it is clear and undisputed that Respondent's duty to bargain with the Union arose on and after September 15, 1978, when a majority of the employees selected the Union as their collective-bargaining cepresentative. Although Respond- ent laid off many of its employees between August 17 and 29, at no time did it advise the employees that the plant was closed until October 9. Since the October 9 letter also expressed Respondent's refusal to furnish the information requested by the Union on September 29, such refusal constituted a failure and refusal to bargain, in violation of Section 8(a)(5) of the Act. It cannot be reasonably argued that the information requested was not relevant and pertinent to negotiations over the transfer of work and machinery from the Tus- kegee plant to the Lewisburg plant in November, and the effects of the plant closure on the employees who were represented by the Union. Consequently, since Re- spondent closed its plant after September 15 on a perma- nent basis, without giving prior notice to the Union with which it was bound to bargain on and subsequent to Sep- tember 15, such conduct constituted a failure and refusal to bargain in violation of Section 8(a)(5) of the Act. Ozark Trailer, Inc., et al., 161 NLRB 561 (1966). Such closing of the Tuskegee Garment facility also constituted a partial closing of a single integraded business enterprise and did not amount to a complete closure of business by Respondent. As the employer in Bruce E. Kronenberger and Herbert Schoenbrod d/b/a American Needle & N'oveltv Company. Kentucky Manufacturing Company and larris- burg Manufacturing Company, 206 NLRB 534 (1973), Re- spondent decided to transfer work from its Tuskegee production facility to its Lewisburg facility, which trans- fer was the subject for collective bargaining by Respond- ent with the Union. Since Respondent unilaterally made such transfers, closed its plant on a permanent basis, and 307 DECISIONS OF NA'TIONAL LABOR RELATIONS H()ARKI) refused to bargain with the Union with respect to mat- ters of a contract. its actions were discriminatorily moti- vated, and, as such, clearly violated Section 8(a)(5) of the Act. IV. 1' 1 IFFEC'S OF I'HI UNFAIR IAHOR PRACI'I(F-S UPON COMhMIRCI: The activities of Respondent set forth in section III, above, occurring in close connection with its operations as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. REMED)Y Having found that Respondent has engaged in unfair labor practices warranting a remedial Order, I shall rec- ommend that it cease and desist therefrom, and that it take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent on several occa- sions and in various forms interfered with, restrained, and coerced its employees in the exercise of their Section 7 protected rights in violation of Section 8(a)(1) of the Act; that it discriminatorily laid off, and thereafter per- manently terminated, its production employees by clos- ing its Tuskegee Garment plant in violation of Section 8(a)(3) of the Act; and that it failed and refused to fur- nish the Union appropriate information requested, and to meet and bargain collectively with the Union, the certi- fied collective-bargaining representative of the said unit employees; and that it unilaterally closed its Tuskegee Garment plant without consulting with or notifying the Union, all in violation of Section 8(a)(5) of the Act, the recommended Order will provide that Respondent make all unit production employees laid off between August 17 and 29, 1978, whole for any loss of earnings within the meaning and in accord with the Board's decision in F. W Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977),5 except as specifically modified by the wording of such recom- mended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any other manner interfering with, restraining, or coercing employ- ees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act .L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). Upon the basis of the above findings of fact and on the entire record of this case, I make the following: CONCIUSIONS OF LAW 1. Weather Tamer, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is, and has been at all times material herein, a s See, generally, I Plumbing d IHoating Company, 138 NIRIi 716 (1962) labor organization within the meaning of Section 2(5) of the Act. 3. By telling employees their jobs will be in jeopardy if they selected the Union as their representative, Re- spondent violated Section 8(a)(1) of the Act. 4. By asking employees why they wanted a union and telling them that the Union was no good and if the Union got in Respondent would close the plant, Re- spondent violated Section 8(a)(1) of the Act. 5. By asking an employee why she was not wearing a union pin and whether she and another employee signed a union authorization card, Respondent violated Section 8(a)(1) of the Act. 6. By telling employees the Union could put their jobs in jeopardy and that the outcome of the union election could affect their future employment with Respondent, Respondent violated Section 8(a)(1) of the Act. 7. By asking an employee why she wanted the Union and why was she going to return to the job to vote in the union election and put other employees' jobs in jeop- ardy, Respondent violated Section 8(a)(1) of the Act. 8. By telling employees the best job security they can have is to vote NO in the upcoming union election, Re- spondent violated Section 8(a)(1) of the Act. 9. By implying to its laid-off employees that they could return to work only if they (the employees) reject- ed the Union, Respondent violated Section 8(a)(1) of the Act. 10. By telling employees in its Athens plant that its Tuskegee plant was closed because the employees select- ed the Union as their represenative, and that Respondent will close its Athens plant if the employees therein . . . selected the Union as their representative, Respondent violated Section 8(a)(1) of the Act. 11. By telling employees about other plants in the country closing because they were unionized by their employees, Respondent violated Section 8(a)(1) of the Act. 12. By discriminatorily laying off its production em- ployees on and between August 17 and 29, 1978, and thereafter discharging them by closing its Tuskegee plant because they selected the Union as their representative, Respondent violated Section 8(a)(3) and (1) of the Act. 13. By failing and refusing to meet and bargain collec- tively with the Union, by failing and refusing to furnish information requested by the Union, and by unilaterally laying off all production employees, and closing its Tus- kegee Garment plant, without consulting with, or notify- ing the Union, Respondent violated Section 8(a)(5) of the Act. 14. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. I'. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: 30 Vi'A l ll IR l\AM1R. IN( ()ORDfLR' 'The Respondenl. MWeatlhr 'lamcr, Ilnc. and I'usklcec (iarmnt Coporalionll, Atlens and lu tskege, lllllahia. and es ,ishIurg, Tentnessee. its officers, aIgetll t sccCssOs and assigns, shall: I. Cease and desist f'ron: (a) Threatening employees by Itlling then their jobs wvill he jeopardized it' they select the Union as their rep- resenltatl c. (h) Askitng employees wvh the\ Want a union aiind tell- iig them it' the Unioni s selected hb the etrlplo>ees. Re- spondtent \sill close the Tuskegee plait. (el Askinig eClllploe' s i they are no(t \. Carinlg Union pin alld whcther o lot tl h. signed a itill aIL- lhorizAtionl card. (d) Telling employees the Union could put their jobs in jeopardy and/or that the outconle of the union clec- tion can affect their future employment. (e) Askilg cnmployees vhy were they returinlg to tih job to vote in the election ad put other employees' johs in jeopardy. (f Tellinlg employees the best job securit they can have is to \ote NO ill a uion election. (g) Telling laid-off enmployees they can returni to work only if they reject the Union as their representative. (h) Telling employees in its other plants that thie 'Ius- kegee Garment planit was closed because the employees unionized the plant, aid Respondet wrill close its Alhens or other plants. if the employees therein select the Union as their representative. (i) Telling employees other plants ill the country (Bar- clay Corporation, etc.) closed because the employees therein selected a union as their representative. (j) Discouraging membership i, or acti\ities on behalf of, International Ladies' Garmenlt Workers' Union, AFL-CIO, or any other labor organization, by laying off all unit production employees or closing business oper- ations, or otherwise discriminatinlg against employees ill any manner in respect to their tenure of employment or any term or condition of employment, in violation of Section 8(a)(3) and (1) of the Act. (k) Failing and refusing to meet and bargain collective- ly with, or failing and refusing to furnish appropriate in- formation requested by the duly certified representative (Union) of unit employees, and/or unilaterally laying off unit employees and closing business operations, without I the el no exception, are filed ;is prolsided hb Sec 102 46 if Rules ad Regultiorlns f the National Labor Relalions Hoard. Ihe find- ings., coclusions, and rtconlmendcd ()rder herein salilil, as prrv ided Sec 102 4 of the Rules and Rgulations, h adopted hb: the tiaird and become its indilgs, conclusions. and Order, and all ohjelctiorl, thercll shall hb deemed 0 ai.ed firr all purp .t.s con(sulting tilh or inotilyitIg the idutl autlhorized repre- senlatiC cs (Unlilon) of Ihe utlltt elllploN ecs. 2. l;ke the follvs itg affirali e actin io necessar to cft;Lcttllte tle policies of the ct: (a) R.eiistitute the I luskegee (armenlt business ()pcr- ation, (plallt) at Tutskegcc Alabaanl, a1id rstor- ihe Ihc ork forntally perfrIrnled hy the laid-off uit productioln em- plo e tcs. (b) Recall aid offer to the laid-of t uit production en- plocs o uskcgcc (iarnlti Crporation, iniliediate and full rcillstatenllllt to their former positionis or. if suchl positions no longer exist, to substantiallN equialenlt posi- tions, without prejudlie to their senlority r other rights preioulsli el jo>cd. ald mlake them \slc for an loss (of pay sLuffcred bl rasoin o te di,,scritinatiol against teti. wilh interest. i tle mtailiner described i the sc- tioni of this decision ellitled, "lThe Remiedy," (c) Ulpon request. hbargain \ith International l.adies Garmenlit Workers' tUnion AFL-CI(), as the exclusise represeltative (of Respondent's employees i te uit herein fotund appropriate, ad elhbody atly understanditng reached in a signled agreeienltll. (d) Uponl request. provide the Uniol. Interna;tional Ladies' (arment Workers' Union, A L -CO(), ith the specific ilfornmatioll hecirin before requested by the said Union. (c) Preserve and, uponl request, make available to the Board or its agents, for examilation aid copinrig, all payroll records. social security payment records, time- cards. personnel records, ad reports, and all other re- cords necessary to anlalyze the amount of backpas under the terms of this recoilmended Order. (f) ost at Respondenlt's plant and places of business located inl luskecgee aid Athens, Alabama. and Columbia and lewisburg l'elnessee. the attached notice marked, "Appendix. " Copies of said notice. on forms provided by the Regional Dlirector for Region 15, after being dulN signed by Respondent's authorized representative sall be posted by it immediiately upon receipt thereof ad be maintained hy Respondent for 60 consecutive days there- after, in conispicuous places, including all places \shere notices to employees are custonmarily posted. Reasonable steps shall be taken by Respondent to illsure that said no- tices are niot altered, defaced, or covered by ay other material. (g) Notify the Regional Director for region 15, in writing, within 2() days from the date of the Order, w-hat steps Respondent has taken to colnply herewith. In lheVe then that his Order s enforced h a Judgmen t of a lrlitd Slales Courl I}f Appeals. th e uordsn lhl e nltice reading, "'tPotcd h\ Order of The Nltilrl;i I ahoir Relationl Boalrd" shall read '"Posted PIursu tli Ito ia Judgment f IhC Lnilted Stales C lourt of Appea . ll 'nor rilg ;1iI ()rder of he National I ihor Rllions t oard"