T & H Investments, Inc.

T & H INVESTMENTS 409 T & H Investments, Inc and International Wood workers of America, Local Union No 3 10, AFL-CIO Case 19-CA-19057 October 24 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 28 1987 Administrative Law Judge Walter H Maloney Jr issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings findings I and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The judge granted the General Counsels request that the Order in clude a visitatonal clause We find no need for such remedial provision in the circumstances of this case See Cherokee Marine Terminal 287 NLRB 1080 (1988) In finding that the Respondent violated Sec 8(a)(3) the judge did not specifically cite Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 US 989 (1982) approved in NLRB v Transportation Management Corp 462 U S 393 ( 1983) however he made the right analysis We find that the General Counsel made a prima facie showing that union activities were a motivating factor in the Respond ent s decision to discharge five employees The judge s decision fully sets forth the 8(a)(1) violations the timing of the layoffs and other facts that more than adequately make a prima facie case This evidence effectively shifted the burden to the Respondent to demonstrate that it would have taken the same action even in the absence of the union activity Although the Respondent attempted to show that the termination was for economic reasons the Respondent has failed to do so and hence has not met its burden Despite Plant Manager Hopkins claim that he did not foresee any future work the Respondent hired 4 new employees within 3 weeks of the discharge of the 5 union supporters on the stickenng crew and it hired 15 new employees during August September and October As to this latter group the Respondent made no effort to justify why it hired inexperienced unskilled individuals in preference to its own experienced employees Member Cracraft finds it unnecessary to rely on the judges finding that the Respondents use of the label troublemaker was synonymous with union activist Additionally Member Cracraft agrees that the Respondents actions in its April 2 meeting and in preparation for such meeting amounted to a solicitation of grievances in violation of Sec 8 (a)(1) of the Act In light of this finding she finds it unnecessary to pass on the other findings of solicitation of grievances as they would be cumulative and would not affect the remedy herein judge as modified below and orders that the Re spondent T & H Investments Inc Dover Idaho its officers agents successors and assigns shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(b) and re letter the subsequent paragraphs (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis charges will not be used against them in any way 2 Substitute the following as relettered pars graph 2(e) (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tees of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT coercively interrogate employees concerning their union sympathies and activities or the union sympathies and activities of other em ployees WE WILL NOT engage in the surveillance of the union activities of our employees WE WILL NOT create in the minds of our em ployees the impression that their union activities are the subject of company surveillance WE WILL NOT threaten to close the plant if em ployees unionize WE WILL NOT solicit employee grievances with a view toward adjusting them WE WILL NOT blame the Union for our refusal to grant improvements in wages and benefits during the pendency of a representation petition WE WILL NOT discourage membership in or ac tivities on behalf of International Woodworkers of 291 NLRB No 70 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD America Local Union No 3 10 AFL-CIO or any other labor organization by discharging employ ees revising our layoff and discharge practices or otherwise discriminating against employees in their hire or tenure WE WILL NOT in any other manner interfere with restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Billie D Alderman Richard Wallace Russell W Nuxoll Lenard R Lund and Timothy W Hays immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other ben efits resulting from their discharge less any net in terim earnings plus interest WE WILL notify each of them that we have re moved from our files any reference to their dis charges and that the discharges will not be used against them in any way T & H INVESTMENTS INC Eduardo Escamilla Esq for the General Counsel Greg R Tichy Esq of Spokane Washington for the Re spondent Fred Bair of Coeur d Alene Idaho for the Charging Party DECISION STATEMENT OF THE CASE WALTER H MALONEY JR Administrative Law Judge This case came on for hearing before me on an unfair labor practice complaint i issued by the Regional Direc tor for Region 19 and later amended which alleges that Respondent T & H Investments Inc 2 violated Section i The principal docket entries in this case are as follows Charge filed here by International Woodworkers of America Local Union No 3 10 AFL-CIO (the Union) against the Responden on April 13 1987 complaint issued by the Regional Director for Region 19 against the Respondent on May 21 1987 Respondents answer was filed on June 2 1987 amended charge filed by the Union against the Respond ent on August 5 1987 to complaint issued by the Regional Director against Respondent on August 11 1987 second amended charge filed by the Union against the Respondent on August 25 1987 second amended complaint issued by the Regional Director on September 22 1987 hear ing held in Coeur d Alene Idaho on October 27 and 28 1987 briefs filed with me by the General Counsel and the Respondent on or before No vember 30 1987 2 The Respondent admits and I find that it is a corporation organized in accordance with the laws of the State of Idaho and is engaged in the milling and selling of timber products It maintains a place of business at Dover Idaho During the past year Respondent fas sold and shipped ma tenals from its Dover Idaho place of business directly to points and places located outside the State of Idaho or has sold and shipped goods directly to customers within the State of Idaho who are themselves en gaged in interstate commerce which goods have a total value in excess of $50 000 Accordingly the Respondent is an employer engaged in inter state commerce within the meaning of Sec 2(2) (6) and (7) of the Act 8(a)(1) and (3) of the Act More particularly the amend ed complaint alleges that the Respondent coercively in terrogated employees concerning their union sympathies and activities threatened to close the plant if employees selected the Union as their bargaining agent solicited employee complaints during an organizing drive and the pendency of a representation case threatened to freeze wages in reprisal for organizing activity changed its layoff policy for the purpose of discriminating against union adherents and discriminatorily discharged Billie D Alderman Richard Wallace Russell W Nuxoll Lenard R Lund and Timothy W Hays Respondent denies the commission of independent violations of Sec tion 8(a)(1) of the Act and asserts that five employees who were discharged on March 11 1987 were terminat ed for lack of work On these contentions the issues are joined and I make the following FINDINGS OF FACT I THE UNFAIR LABOR PRACTICES ALLEGED The Respondent operates what is referred to in the record as a lumber remanufacturing plant Roughly cut lumber is transported to its facility in Dover Idaho from various other lumber mills and is planned and trimmed to meet the precise specifications of its custom ers most of whom are the mills from whom the lumber is initially obtained Respondent is owned by the five daughters respectively of Buck and Wayne Merritt the principals of Merritt Brothers Lumber Company of Priest River Idaho a town located some 20 miles from the facility involved in this case 3 Respondent started business in June 1986 as a partnership and later became incorporated It currently employs approximately 25-30 production and maintenance employees who are not rep resented by any labor organization The five discriminatees named in the second amended complaint are essentially unskilled employees who were part of a so called stickering crew at the time of their discharges on March 11 The parties stipulated the fol lowing facts concerning their respective employment his tortes Name Date of Hire Hiring in Rate Rate on Mar 11 the Day of Discharge Billie D Alderman July 9 1986 4 $6 00/hr Timothy W Hays Dec 15 1986 $6 00/hr 6 50/hr Lenard R Lund Feb 24 1986 7 00/hr 7 00/hr Richard Wallace June 2 1986 7 00/hr 7 00/hr Russell W Nuxoll Oct 23 1986 5 00/hr 6 00/hr The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 The T and H in the Company s name refer to Terry and Holly Merritt who are daughters of the two Merritt brothers 4 The parties made no stipulation concerning the wage rate of Billie Alderman From other evidence I find that she was hired in at $4 50 an hour but was paid $6 when she performed certain jobs at the mill In order to eliminate urnecessary paperwork relating to different rates for different jobs Alderman was ultimately given a standard rate of $5 50 an hour applicable to any work that she performed That figure was later raised to $6 an hour by the time she was discharged T & H INVESTMENTS 411 Many of the discrimmatees performed from time to time other jobs around the mill besides working on the stickenng crew They did cleanup work pulled staples from incoming wrapped lumber banded lumber pulled the chain on the precision trimmer saw (the PT saw) and one actually operated the PT saw from time to time Stickering work consisted of breaking up incoming loads whit,h were often frozen together into separate pieces of lumber and stacking each board after separating it with cross pieces that would permit green boards to dry out as a result of being ventilated from all sides Later a forklift driver would cart away the separated or stick ered lumber to a drying kiln where the seasoning proc ess was accelerated The mill experienced a layoff early in January that was prompted by the installation of additional machin ery At this time the Respondent was operating two shifts and employed nearly 35 production and mainte nance employees After this layoff the Respondent re sumed operations with just a day shift and employed about 18-20 production employees 8 Not all employees were laid off during this hiatus in production At the time of the layoff Plant Manager Dave Hopkins an pounced that the layoff would last from 2 weeks to 1 month and that laid off employees would be recalled when maintenance was completed Several were recalled after an absence of just a few days Four of the discri nunatees who were still on layoff status in mid Febru ary-Alderman T Hays Nuxoll and Wallace-were re called and placed on the stickenng crew Discriminatee Lund and two others were hired at this time and also as signed to this crew Alderman was told when she was recalled on February 23 that the stickering job would last for 1 month to 6 weeks The bulk of the stickenng work was being performed for two customers Ceda Pine Veneer Company of Samuels Idaho and Lontree Inc of Spokane Washington Not long after the stickering crew had been assembled its members began to discuss the possibility of forming a union The Respondent was aware of this fact On one occasion Plant Manager Dave Hopkins told Hendrick son that General Manager Jim Warren was aware that employees were trying to go union and that he was un happy about it a He stated that if employees unionized the Respondent would shut down the plant and Spokane Lumber its next door neighbor would take it over On another occasion Hopkins told Hendrickson that Warren would remove all the machinery from the plant if em ployees unionized On one occasion Hendrickson Hop Respondent later reinstituted a night shift for its shipping crew 6 While Hendrickson was not a completely reliable witness his testi mony to the effect that company supervisors were aware of union agita tion among stickenng crewmembers is not disputed and I credit it Hop kins made generalized statements that his first knowledge of unionizing effort was March 11 and that he never threatened plant closure in the event of unionization but Hopkins never flatly confronted those portions of Hendrickson s testimony which are credited above kins and Dave Mandigo7 were standing in the plant yard near the stickering crew and were discussing the fact that crewmembers were not working Hendrickson commented that they were just standing around talking about some stupid union One of the supervisors re plied that they had better be doing their jobs or they would be out On other occasions Hendrickson was present and observed Hopkins standing behind stacks of lumber listening unobserved to members of the stickering crew discuss unionization I credit Hendrickson s testi mony that Hopkins told him before the March 11 dis charges that if the Company terminated four or five members of the stickering crew the voting will be on the other people s side because the union effort was concentrated among the stickering crewmembers I credit the testimony of employee Louis R Tifft that after a safety meeting for employees held on March 2 Foreman Herb Janhsen asked Tifft if he had signed a union card Tifft replied that maybe he had and maybe he had not but it was none of Janhsen s busi ness Janhsen then asked why no one had offered him a card Tifft countered by asking Janhsen if he would have signed a card if one had been offered Janhsen said no so Tifft said that this was probably the reason nobody of fered him one On Monday March 9 Alderman and Lund spoke by phone with union official Fred Bair and expressed their interest in organizing the Respondents employees On the following evening they went to Bair s office in the nearby town of Sandpoint and obtained authorization cards On either March 9 or 10 Hopkins spoke with Nuxoll outside the bathroom at the plant He asked Nuxoll if Nuxoll knew anything about the union effort and inquired further about who was supporting it Nuxoll said he knew about the union drive but was not at liberty to disclose the names of the employees who were involved Shortly thereafter Mandigo asked Nuxoll the same question and again Nuxoll replied that he would not disclose the identity of the union supporte s 7 The parties are in dispute about whether Dave Mandigo is a supervi sor within the meaning of the Act Mandigo was night shift foreman until about January 13 when the night shift was terminated and he was trans ferred to the day shift While on the night shift Mandigo was the highest ranking company employee on the premises and could hire and fire em ployees During that period there is no question about his supervisory status After his transfer to the day shift Mandigo worked as a planer op erator and leadman at the same rate of pay he earned as night shift super visor In his new position Mandigo has reprimanded employees for failing to perform their duties and has from time to time given directions to employees concerning the performance of their duties beyond merely transmitting orders given to him by Hopkins although on this latter point Mandigo gave ambivalent testimony He admits that at a crew meeting Hopkins told employees that he was empowered to assign them work if he saw work around the plant that needed to be done I credit corroborated testimony that Hopkins said at this meeting that Mandigo had the same authority as Herb Janhsen an admitted supervisor and that Mandigo had the power to hire and fire employees In light of these fac tors I conclude that at all times material Dave Mandigo was a supervi sor within the meaning of Sec 2(11) of the Act 412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On March 11 Alderman told some employees at the beginning of the 6 a in shift that cards would be avail able at the lunchshack at the 11 a m lunchbreak One of the employees she spoke to was Gary Tyler who drove the carrier lift or straddle buggy Because Tyler s duties required him to circulate throughout the plant she asked him if he would tell others about the availability of cards during the lunchbreak During the morning Hopkins came over to speak with Tyler and said to him I didn t know you were a union man Tyler replied that he had not been a union man in the past but the way things were going employees had to do something and getting a union was the only way to do it Their conversation then grew into a heated ex change Hopkins warned Tyler that you d better take a darn good look and see what the heck a union can do for you He also accused Tyler of being the leader of the union effort Tyler denied the accusation saying that he was just getting the word around Hopkins then said You re doing the dirty work for them They must be chicken for having you do their dirty work Hopkins told Tyler that he had no right to talk to employees except on breaktimes or at lunch Tyler complained that the Company had no standardized breaktime for all em ployees so if he followed Hopkins instructions he would be unable to speak with anyone between then and lunchtime He also told Tyler that Idaho was a right to work State and that we can bring in people around you as long as we negotiate in good faith I also credit Tyler s testimony that Hopkins went on to say that the Compa ny could close the place down if it went union When Tyler asked him if he was sure of this statement Hop kins replied that he was not a part of company manage ment so the prerogative to close the place was not his At the lunchbreak several employees obtained union cards from Alderman at the lunchshack and signed them there This number included four of the five discrimina tees Discriminatee Wallace signed his card after work in the parking lot About an hour before quitting time Hopkins approached the stickering crew and said that he wanted to see them in his office at the end of the shift When they arrived he spoke with each of them separate ly and said approximately the same things to them all He told them that the stickering work for which they had been hired was completed so he was terminating the stickering crew except for Don Hays and Tony Bitton a nephew of Mandigo 8 Each of them asked Hopkins why they were being terminated instead of being laid off His standard reply was that he did not foresee any work down the road adding that each of them could apply for work in the next 30 days if things picked up That evening Alderman turned the signed authorization cards over to Bair Within the next 3 weeks the Respondent hired four new employees-Richard Zech on March 16 Richard Clark on April 7 Michael Dale on April 7 and Jill Clin ton on April 7 In addition to these individuals the Re spondent hired Mark Wheeler on June 8 John Arnold on June 8 Jess Elvester on June 9 and Mark Johnson on July 11 Some of the tasks assigned to them was work that the discharged employees had performed from time to time Sometime during the first week in April Alder man and Lund visited the plant and spoke with Foreman Herb Janhsen They asked Janhsen for their jobs Janh sen sympathized with them saying that he did not think it was fair for the Company to discharge them as it had but he told them that he could not rehire them because he would be down the road himself if he did He ex pressed puzzlement about why the Company chose to terminate employees if they were being eliminated merely because of lack of work On March 17 the Respondent sent a 2 1/2 page letter to all of its employees concerning the organizing drive This letter was composed by Hopkins with the assist ance of legal counsel and bore his signature The letter noted that the Company was new and was experiencing growing pains However he was pleased to note that the lumber market had been fairly stable and hope that it would continue to show strength as the new Company became firmly established Hopkins admitted that there might have been some difficulty in communications be tween employees and management but noted We want to make it very clear that if you have questions about the Company its policies or prac tices or have any problems that are of concern to you as a T & H employee we want to be made aware of such so we can work with you to answer resolve them As a new Company we have many concerns and needs which may take precedent over good com munications It is probably true that some individ uals feel we have not always acted in their best in terest I want to assure you that your concerns and needs are also my concern I can t promise that ev eryone will always be happy here but I can prom ise you an answer or response to the questions or issues you bring to my attention which may have bearing on your work It is unfortunate that a few individuals are trying to take advantage of our current situation of really focusing on laying a good foundation on which this Company can grow They hope to create conflict and adversity in order to achieve some other selfish objectives regardless of the cost to this Company and all that we have accomplished together thus far 8 Hopkins testified that he had sought legal counsel before discharging these individuals This was the first and only time he had ever consulted with a lawyer before firing an employee He testified that he had done so on this occasion because he knew there was union activity at the plant In fact he had attended a seminar 2 weeks before this event concerning the dos and don is of employer behavior in the face of an organiz ing drive He testified that he discharged the five discnminatees rather than laying them off on the advice of his attorney The letter went on to inveigh against union outsiders who want to come in through the back door in a secre tive and dishonest fashion He denounced them as op portunists who could not deliver on their promises and mentioned that there are hundreds of people in our own area that will certainly tell you that unions do not pro vide job security He warned employees about signing T & H INVESTMENTS 413 authorization cards stating emphatically that they should not sign a card unless [they] are willing to accept all the consequences and obligations of union membership He closed by reminding employees that my door is open if there are problems questions or con cerns that need to be discussed I would appreciate your thoughts and ideas on how we can become the best producer in the industry whenever you are willing to share them with me On March 20 the Union filed a representation petition in Case 19-RC-11565 Although the parties agreed to a stip election on April 8 an election has not been held because the petition has been blocked by the pendency of the charges in this case the first one of which was filed on April 13 At or about this same point in time Mandigo had a conversation with Donald Hays who had been called back in February to work on the stickering crew and had survived the March 11 discharges After the sticker ing work was finished he was transferred to working on the chain During the course of a discussion con cerning a work related problem Mandigo asked D Hays what he thought about unionization D Hays replied that in a way unions had benefits and in a way they did not ultimately coming down on the side of unionization as he explained his feelings to Mandigo Mandigo then told D Hays that if the plant went union Buck Merritt would close it down In a later conversation Mandigo told D Hays that he had worked in union shops and had seen unions ruin a lot of good outfits noting again that he felt sure that the Company would close down the Dover plant if it went union D Hays only response was well we 11 just have to see what comes out of it then 9 Sometime in late March Hopkins had a conversation with Tyler concerning employee dissatisfaction Tyler told Hopkins that if the Company would pay equal pay for equal jobs and would install a seniority system the employees would not be half so eager for a union as they currently were 10 Hopkins replied that if this was what was worrying employees they could all talk it over at the next safety meeting He suggested to Tyler that em ployees make up a list of topics they wanted to bung up at the meeting and promised that they would be allowed to talk about them at that time No formal list of griev ances was ever prepared but a lively discussion of em ployee complaints took place at the next safety meeting which was held on April 2 One of the topics that was raised at the conclusion of the April 2 meeting was the discharge of Billie Alder man Employee Dale Roberts asked Hopkins why she and the others had been fired Hopkins admitted saying that Alderman was fired because she spread stones and was a loud mouth and a troublemaker He said that he could not get along with and could not communicate with Dick Wallace who was also fired at the same time adding that Wallace did not do his job Tyler challenged 9In the course of his testimony Mandigo did not deny these state ments nor was he asked to deny them 10 By equal pay for equal jobs I infer that Tyler meant a standard rate applicable to everyone who performed the same job As Warren ex plained at a later crew meeting at that time compensation was highly subjective and was based on managements personal evaluation of each employee s performance this statement He also complained about the fact that the Company had no seniority system and that it did not provide equal pay for equal work To this complaint Hopkins replied that the Company probably would not install standard job rates or a seniority system because Warren would be the one who would have to set them up Hopkins asserted that Warren did not believe in se niority and preferred to pay people for what they did He claimed that he had no authority to institute changes along these lines without approval from Warren Roberts then threatened angrily that if the Company did not start to see a few things the employees way they would bring a union in and go on strike Hopkins replied that if em ployees brought in a union the Company would shut the plant down Roberts challenged that statement accusing Hopkins of resorting to intimidation Hopkins then backed down a little stating that he was merely express ing his own opinion because the Company runs this place I don t The meeting ended with a request by em ployees for another meeting attended by Warren Shortly after the representation election agreement was signed on April 8 Hopkins held a brief meeting with employees to inform them about the agreement and the election which was set for May 21 He took this occa sion to announce that there would be no pay raises or new incentive plans until after the union vote Another meeting was held about April 15 or 16 with Warren in attendance Although Warren holds the title of general manager of T & H Investments Inc he is on the payroll of the Merritt Lumber Company and main tains his office at the Merritt lumber mill some 20 miles away in Priest River At this meeting Warren encour aged the employees in attendance to speak up about what was on their minds and they did so Roberts asked Warren if-Hopkins was within his rights in saying that the mill would shut down if it went union Warren replied that Hopkins was entitled to his opinion but it would be up to the investors to determine whether the mill continued to operate He noted that the Compa ny had been making some fairly heavy investments in the plant Roberts also asked Warren about incentive pay for all the employees at the mill similar to the incentive plan that was already in effect for the shipping crew Warren said that any such plan could not be put into effect until after the forthcoming representation election When a complaint was raised about the failure of the Company to institute standard job rates ( equal pay for equal work ) Warren replied that at the company where he started work no one knew what anyone was getting and he thought it was a lot of fun to operate in that manner He insisted that this was how he was going to run the T & H mill He also told employees that if they were so unhappy they should quit and get other jobs Tyler replied that this was not possible so they were trying to get things straightened out at T & H Warren reiterated that he could not discuss any changes in wages or benefits until after the representation election was over In August September and October after Hopkins left the employ of the Respondent the Respondent hired about 15 new employees most of whom started to work 414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at the Respondents standard hiring in rate of $6 an hour Most of them were assigned to unskilled jobs i 1 Howev er the Company has not recalled or rehired any of the five individuals who were fired on March 11 and has made no effort to contact them II ANALYSIS AND CONCLUSIONS A Independent 8(a)(1) Violations (a) When Hopkins told Hendrickson that General Manager Warren was aware that employees were trying to go union and that Warren was unhappy about it he created the impression that the union activities of em ployees were the subject of company surveillance Such a statement violates Section 8(a)(1) of the Act (b) When Hopkins told Hendrickson that the plant would close and Spokane Lumber would take it over if it went union and when he told Hendrickson on another occasion that Warren would remove all the machinery from the plant if employees unionized the Respondent was guilty of threats that violated Section 8(a)(1) of the Act (c) When on several occasions Hopkins positioned himself in the millyard so as to overhear employee con versations relating to unionization he engaged in surveil lance of union activities in violation of Section 8(a)(1) of the Act (d) When Janhsen asked Tifft if he had signed a union card and pursued the inquiry to ask why no one had ten dered him a card the Respondent was guilty of coercive interrogation that violated Section 8(a)(1) of the Act (e) When Hopkins confronted Tyler in the millyard on March 11 with the statement I didn t know you were a union man he was in effect asking Tyler about his union sympathies and activities and was engaging in co ercive interrogation in violation of Section 8(a)(1) of the Act (f) While an employer may lawfully insist that employ ees who are working refrain from engaging in talk or other activities that are unrelated to work except at lunch or breaktimes it may not single out union activi ties for such proscriptions nor may it time the imposition of such restrictions so that they are designed to interfere with union activities The Respondent in this case has no general rules against the distribution of literature or so licitation for nonwork related causes during worktime When Hopkins told Tyler on the morning of March 11 that he should not inform employees that cards would be available for signature at lunchtime or otherwise discus. union matters with them when he moved around the plant Hopkins was not attempting to preserve worktime for work but was attempting to interfere with the union ization of his employees Admittedly Tyler was free to discuss with any other employee in the course of his I1 The new hires (and their dates of hire) were Bill Bitton (August 3 1987) Dennis Stevens (August 5 1987) Jim Brown (August 17 1987) James Daily (August 17 1987) Frank Engblom (August 24 1987) Vernon Fairchild (August 19 1987) Gene Groseclose (August 19 1987) Brian Krebs (August 21 1987) Rocky Dempenolf (August 31 1987) Dan Delcomte (September 14 1987) Lonnie Stutheit (September 22 1987) Fred Williams (September 28 1987) and Paul Kingslee (October 26 1987) Stevens and Brown have since quit travels any subject other than unionization notwithstand ing the fact that both he and they might be on the clock and assigned to the actual performance of compa ny duties Accordingly by the statements made to Tyler by Hopkins on this occasion the Respondent interfered with the exercise of rights secured to its employees by Section 7 of the Act and thus violated Section 8(a)(1) (g) When Hopkins told Tyler that in a right to work State like Idaho the Company could bung in people around you as long as it bargained in good faith and when in the course of the same heated conversation he threatened to close the plant if it became unionized the Respondent engaged in illegal threats that violated Sec tion 8(a)(1) of the Act (h) When Hopkins asked Nuxoll if he knew anything about the union organizing effort and pursued his inquiry by asking if Nuxoll knew which employees had signed union cards the Respondent was engaging in coercive interrogation that violated Section 8(a)(1) of the Act (I) When Mandigo asked Nuxoll the same questions that Hopkins had put to him the Respondent again en gaged in coercive interrogation that violated Section 8(a)(1) of the Act (1) When Mandigo asked D Hays what he thought about unionization the Respondent was engaging in co ercive interrogation that violated Section 8(a)(1) of the Act When he followed up his question by stating that Buck Merritt would close the plant if it went union the Respondent uttered an illegal threat that violated Section 8(a)(1) of the Act (k) Excerpts from Hopkins letter to employees dated March 17 as well as the fact that the letter was sent im mediately after the inception of an organizing drive mdi cate that the Respondent was taking this means of solicit ing employee grievances with a view toward adjusting them so that employees would be dissuaded from seek ing outside help in pressing their claims Hopkins told employees in this letter that his door was always open that they should feel free to express their concerns di rectly to him and that we want to be made aware of such so we can work with you to answer or resolve them His purpose in wanting to resolve grievances pri vately and directly was to defeat those who hope to create conflict and adversity in order to achieve some other selfish objectives In the balance of the letter he left no doubt about who those selfish persons might be The text of this letter presents a classic solicitation of grievances for purpose of adjustment It is a violation of Section 8(a)(1) of the Act As an expression of company policy and attitude it also brings into proper focus simi lar efforts undertaken by the Respondent a few weeks later to avoid unionization by entertaining employee complaints directly (1) The portion of the April 2 crew meeting which was devoted to the voicing of employee complaints was prompted by Tyler s statement to Hopkins made just a few days earlier that employees would not be half so eager to join a union if the Company would install a se nionty system and do something about establishing standard job rates At this meeting they were given the opportunity to sound off and they did so vigorously T & H INVESTMENTS 415 Roberts asked Hopkins about the firing of Billie Alder man and others who were discharged on March 11 Tyler repeated his standing grievances about seniority and equal pay for equal work Although Hopkins said he could do nothing about Tyler s complaints without approval from Warren it is clear that the purpose of the meeting was to solicit grievances with a view toward ad justment just as it was in Hopkins letter of March 17 This conduct on the part of the Respondent violated Section 8(a)(1) of the Act even though no grievances were in fact adjusted at the meeting The promise of a further meeting with Warren in attendance carried with it the suggestion of favorable company attention to em ployee complaints This promise taken together with promises contained in the March 17 letter is sufficient to warrant a conclusion that the Respondent was impliedly promising adjustment and hence was interfering with protected rights when it provided a forum to employees to air complaints during the pendency of a representation election L M Berry & Co 266 NLRB 47 (1983) Fiber Glass Systems 278 NLRB 1255 (1986) Montgomery Ward & Co 253 NLRB 196 (1980) Berger Transfer & Storage Co 253 NLRB 5 (1980) enfd 678 F 2d 679 (7th Cir 1982) (m) During a brief meeting with employees held in early April Hopkins informed them that a representation election would be taking place and that no pay raises or enlarged incentive pay plans would be put in place until after the voting At his meeting with employees on April 15 or 16 Warren said in effect the same thing when asked about improvements in wages and conditions At no time did the Respondent have any plans to grant any of these increases or make any improvements in job tenure or working conditions Hopkins and Warren were merely taking advantage of the pendency of a represen tation petition to lay the blame for a denial of requested improvements on the Union Such conduct violates Sec tion 8(a)(1) of the Act Otis Hospital 222 NLRB 402 (1976) World Wide Press 242 NLRB 346 (1979) Trover Clinic 280 NLRB 6 (1986) (n) The meeting held by Warren with employees on April 15 or 16 was essentially the same kind of meeting that Hopkins held earlier in the month It was held for the same purpose-to solicit employee grievances during the pendency of a representation petition for the implied purpose of adjusting them and defeating union organiza tional attempts As such it violated Section 8(a)(1) of the Act B Violations of Section 8(a)(1) and (3) The Respondent has not been in business for a very long time and as of March 11 1986 had no written company policies respecting seniority layoffs dis charges or recalls In June 1986 it adopted an employee handbook for the purpose of spelling out its personnel policies but this handbook is rather sketchy and contains nothing meaningful on these subjects It merely imposes an obligation on laid off employees to keep the Company notified of their current address and phone numbers so the Company can reach them in the event it wishes to recall them Respondents practice on the one occasion when it en gaged in a substantial reduction in force was to put a significant number of employees in layoff status and to promise them recalls when the reason for the layoff-the installation of machinery-had passed Many employees laid off at this time were recalled within days of being laid off This same policy was applied to four of the five individuals who were permanently discharged on March 11 They were laid off in mid January but were recalled in late February when additional work became available On March 11 these four who had once been laid off and recalled were permanently separated Then as in the earlier instance the reason prompting the action was economic in character-assertedly there were no jobs for them to perform When Hopkins was asked by dis charged employees on March 11 why they were being fired instead of laid off he said that he did not have any work for them to do in the foreseeable future This was equally true in January at least as to four individuals here in question as evidenced by the fact that a total of 5 weeks had elapsed between layoff and recall Howev er despite such a lengthy hiatus in employment they had not been discharged and when jobs did apse later on the Company made the effort to contact them and bring them back It had not placed on them the burden of making repeated and futile contacts on the off chance that work might have picked up In March the Respondent was faced with an organiz mg drive and it admits that it was aware of this effort When questioned at the hearing about the difference in its personnel practices on these two occasions Hopkins simply replied that in March he felt more comfortable in terminating employees rather than in simply laying them off He did not say why he felt more comfortable He also admitted that he took this action in response to advice of counsel without ever disclosing what the basis for that advice might be From the record two things are clear The Respond ent like many employers had a practice of laying off employees in the face of economic necessity and of call ing them back when the occasion presented itself instead of discharging experienced employees with satisfactory work records and then searching about in the job market for inexperienced help when work picked up again It is also clear that the Respondent departed from that practice on March 11 in the case of the five discri minatees in issue here The reason for its departure from past practice is in dispute The Respondent gave repeated and ample evi dence of its strong animus toward the unionization of its employees This animus spilled over into the commission of repeated unfair labor practices that have been found above Moreover the timing of its change in practice is more than routinely suspicious This change occurred within hours of the beginning of a formal organizing effort and within days of employer awareness that active employee interest in unionization had arisen The reasons asserted for this change in practice-that Hopkins felt more comfortable in discharging employees rather than laying them off and that he acted on advice of counsel- amount to no substantive reasons at all In light of all 416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD these factors I conclude that by altering its practice of laying off employees to one of discharging employees in the face of asserted economic necessity in order to elimi nate union sympathizers the Respondent violated Section 8(a)(1) and (3) of the Act The second contention of the General Counsel relating to the March 11 discharges looks very much like the first and is really a specification of the first The five discn minatees in question were all union adherents and the Respondent was well aware of this fact 12 The stickering crew was a known hotbed of union sentiment and all five discharged employees were members of that crew Within a few days of removing the five discriminatees from its payroll the Respondent started adding to its work crew It made no effort to recall any of the five employees as work picked up and in fact refused appli cations by Alderman and Lund when they asked Janhsen for their jobs back in early April In the course of the April 2 crew meeting Hopkins told employees that he discharged Alderman because she was a loud mouth and a troublemaker The label troublemaker has long been held to be synonymous with union activist 13 Janhsen s response to these applications is further evi dence of the Respondents discriminatory intent Janhsen was candid enough to tell Alderman and Lund that if he rehired either of them his own job would be in jeop ardy All he could offer them was sympathy All the discnminatees could and on occasion did per form various other jobs besides stickenng While one or two new hires may have possessed certain skills which the five discnminatees did not have this was not true of most new employees It was certainly not true of the em ployees hired in June and of others hired between August 3 and October 26 Regarding this latter group Respondent made no effort at all to justify or explain why on these occasions it had hired a large number of inexperienced unskilled individuals in preference to of feting jobs to the experienced people it had laid off in mid March In light of this ongoing conduct it is clear that lack of work was merely the setting for the five dis charges that occurred in mid March Those discharges were personal to the individuals who were terminated and were in no way necessitated by objective circum stances above and beyond the Respondents control 14 These employees were seen as the advance guard of an effort that the Respondent was determined to defeat at all cost even if it meant closing the plant Firing five people was a small token of what it was prepared to do to keep its plant free from opportunists who hope to 2 The fact that Wallace did not sign his card until after the shift was over rather than at the 11 a in lunchbreak does not alter this conclusion Wallace was part of the suckering crew and the union proclivities of this crew were well known to the Respondent His removal was part of the housecleaning that the Respondent undertook on March l l in order to chill the organizing effort in a formal sense until after he was discharged is of no moment 13 Mademoiselle Shoppe 199 NLRB 983 (1972) Illinois Concrete Pipe Co 203 NLRB 223 (1973) W & W Tool & Die Mfg Co 225 NLRB 1000 (1976) A & R Transport 237 NLRB 1084 (1978) 14 In making this assessment I place no reliance on Hendrickson s dis puted testimony that he overheard Hopkins call customers to request that they discontinue shipments so he could get nd of employees who were working on certain orders I discredit much of his testimony that recites these allegations profit financially and politically from the problems cur rently facing [the lumber] industry The reasons ad vaned for its actions were wholly and transparently pre textual Accordingly I conclude that the Respondent discharged Billie D Alderman Russell W Nuxoll Rich and Wallace Lenard R Lund and Timothy W Hays be cause of their membership in and activities on behalf of the Charging Party and in so doing violated Section 8(a)(1) and (3) of the Act On the foregoing findings of fact and on the entire record here considered as a whole I make the following CONCLUSIONS OF LAW 1 Respondent T & H Investments Inc is an employer engaged in commerce within the meaning of Section 2(2) of the Act 2 International Woodworkers of Amenca Local Union No 3 10 AFL-CIO is a labor organization within the meaning of the Act 3 By altering its personnel practice from one of laying off employees for asserted economic reasons to discharg ing employees in the face of asserted loss of jobs and by discharging Billie D Alderman Timothy W Hays Lenard R Lund Richard Wallace and Russell W Nuxoll because of their sympathies with and activities on behalf of International Woodworkers of Amenca Local Union 3 10 AFL-CIO the Respondent violated Section 8(a)(3) of the Act 4 By the acts and conduct set forth above in Conclu sion of Law 3 by coercively interrogating employees concerning their union sympathies and activities and the union sympathies and activities of other employees by engaging in surveillance of the union activities of em ployees and by creating among employees the impression that their union activities are the subject of company sur veillance by threatening to close the plant if employees unionized by directing employees not to discuss union matters during work time while leaving them free to engage in nonwork related conversation and activities by soliciting employee grievances during an organizing drive and the pendency of a representation petition with a view toward adjusting the grievances by laying the blame on the Union for the Respondents inability to grant wage and benefit increases during the pendency of a representation petition that the Respondent had never planned to grant the Respondent violated Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices have a close in timate and substantial effect on the free flow of com merce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has committed van ous unfair labor practices I will recommend that it be required to cease and desist therefrom and to take other affirmative actions designed to effectuate the policies of the Act Since the violations of the Act found in this case evidence an attitude on the part of this Respondent to behave in total disregard of the rights of its employees and the requirements of the Act I will recommend to T & H INVESTMENTS 417 the Board a so called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act Hickmott Foods 242 NLRB 1357 (1979) I will recom mend that the Respondent be required to offer full and immediate reinstatement to the five discriminatees named in the second amended complaint to their former or sub stantially equivalent positions and that they be made whole for any loss of pay or benefits that they may have suffered by reason of the discriminations found here in accordance with the formula set forth in the Woolworth case 15 with interest thereon computed similar to the computation of interest due on the underpayment of taxes as set out in the 1986 amendments to the Internal Revenue Code 26 U S C § 6621 and in accordance with Florida Steel Corp 231 NLRB 651 (1977) See New Horizons for the Retarded 283 NLRB 1173 (1987) The General Counsel has requested a visitatorial clause per mitting discovery under the Federal Rules of Civil Pro cedure in the event that the Board s Order in this case must be enforced by a contempt proceeding in a court of appeals I will recommend such an order I will also rec ommend that the Respondent be required to post the usual notice advising its employees of their rights and of the results in this case On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed1e ORDER The Respondent T & H Investments Inc Dover Idaho its officers agents successors and assigns shall 1 Cease and desist from (a) Coercively interrogating employees concerning their union activities and sympathies and the union ac tivities and sympathies of other employees (b) Engaging in the surveillance of union activities of its employees (c) Creating in the minds of employees the impression that their union activities are the subject of company sur veillance (d) Threatening to close the plant if employees become unionized (e) Soliciting employee grievances with a view toward adjusting them (f) Directing employees to refrain from discussing unionization during the performance of their job duties (g) Laying the blame on the Union for the Respond ent s refusal to grant improvements in wages and benefits during the pendency of a representation petition (h) Discouraging membership in and activities on behalf of International Woodworkers of America Local Union No 3 10 AFL-CIO or any other labor organiza tion by discharging employees by revising its layoff and discharge practices or by otherwise discriminating against employees in their hire or tenure (i) By any other means or in any other manner inter fenng with restraining or coercing employees in the ex ercise of rights guaranteed to them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Billie D Alderman Richard Wallace Russell W Nuxoll Lenard R Lund and Timothy W Hayes im mediate and full reinstatement to their former jobs or if these jobs no longer exist to a substantially equivalent position without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (c) Post at its Dover Idaho facility copies of the at tached notice marked Appendix 17 Copies of the notice on forms provided by the Regional Director for Region 19 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply For the purpose of deter mining or securing compliance with this Order the Board or any of its duly authorized representatives may obtain discovery from the Respondent its officers agents successors or assigns or any other person having knowledge concerning any compliance matter in the manner provided by the Federal Rules of Civil Proce dure Such discovery shall be conducted under the su pervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably re lated to compliance with this Order as enforced by the court is F W Woolworth Co 90 NLRB 289 (1950) 16 If no exceptions are filed as provided by Sec 102 46 of the Boards 17 If this Order is enforced by a judgment of a United States court of Rules and Regulations the findings conclusions and recommended appeals the words in the notice reading Posted by Order of the Nation Order shall as provided in Sec 102 48 of the Rules be adopted by the al Labor Relations Board shall read Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board