Stamping Specialty Co., Inc.

STAMPING SPECIALTY CO. Stamping Specialty Co., Inc. and Chauffeurs, Team- sters, Warehousemen and Helpers of America, Local 135 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO'. Cases 25- CA-17687 and 25-CA-17791 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On August 8, 1986, Administrative Law Judge Donald R. Holley issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs, the Respondent filed a brief in response to the General Counsel's excep- tions, and the General Counsel filed a brief in sup- port of the judge's decision. 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,2 and conclusions as modified, to modify his remedy, 3 and to issue a new Order and notice. 1. We agree with the judge that the Respondent violated Section 8(a)(5) and (1) by failing to timely notify the Union of its September 1985 decision to lay off unit employees, and by failing to provide ' On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO The caption has been amended to reflect that change 2 The Respondent and the General Counsel have excepted to some of the judge's credibility findings 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 3 The General Counsel excepts to the judge's failure to provide a meaningful remedy for the Respondent's unfair labor practices including, inter alia, his failure to order an extension of the certification year We agree that an extension is warranted Thus, the Union was certified as the exclusive representative of employees in the following unit on June 28, 1985 All production employees, including shop and toolroom employees, employed at our 2401 N Ritter Avenue, Indianapolis, Indiana, loca- tion, BUT EXCLUDING all office clerical employees, all profes- sional employees, and all guards and supervisors as defined in the Act Negotiations for a contract commenced in August 1985 Within weeks of initial bargaining, the Respondent unlawfully laid off unit employees for economic reasons without notice to or bargaining with the Union There- after, the Respondent further undermined the bargaining relationship by not affording the Union an opportunity to bargain over the effects of the Respondent's lawful discontinuance of its stamping operation on Decem- ber 2 In these circumstances, in order to fully effectuate the policies of the Act, and to provide the parties with a meaningful opportunity to bargain in good faith for a collective-bargaining agreement, we have modified the recommended Order to incorporate a provision extending the certifica- tion year for an additional year following the Respondent's commence- ment of good-faith bargaining 703 the Union with an opportunity to bargain over the layoff decision and its effect on unit employees. As recently explained by the Board in Lapeer Foundry & Machine, 289 NLRB (1988), an employer has a statutory obligation to bargain about an economi- cally motivated decision to lay off employees. The judge found that the Respondent's decision to lay off employees was economically motivated and turned on labor costs. We agree. Mark Tomlin- son, the Respondent's president, testified that be- tween September 2 and 4, 1985, he decided to lay off unit employees because of a decline in stamping orders. The layoff was not the result of the Re- spondent's decision to change the nature or scope of its business; rather, it was in response to an eco- nomic problem. The judge further found, and we agree, that the Respondent did not notify the Union of its layoff decision until it was a fait accompli. When the Re- spondent mentioned a layoff to the Union on Sep- tember 4, it had already finalized its layoff plans. Moreover, the layoff was imminent; September 5 was the last or next-to-last working day for em- ployees before the layoff. Although the Union did not promptly request bargaining over the effects of the layoff, a request clearly would have been futile.4 Further, the Respondent has not demon- strated any compelling economic circumstances that justify its taking action before giving the Union an opportunity to bargain. Cf. Aquaslide `N' Dive Corp., 281 NLRB 219 (1986). Accordingly, we adopt the judge's finding that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by laying off unit employees on September 9, 1985, without notice to or bargaining with the Union concerning the layoff decision and the effects of that decision. 2. We further find that the Respondent violated Section 8(a)(5) and (1) by failing to bargain with the Union over the effects of its decision to lay off unit employees in December 1985.5 In Otis Elevator Co., 269 NLRB 891 (1984), the Board held that management decisions that do not turn on labor costs but that affect the basic direc- tion or nature of a business are excluded from the scope of mandatory bargaining under Section 8(d). Moreover, in First National Maintenance v. NLRB, 452 U.S. 666, 686 (1981), the Supreme Court ruled 4 Accordingly, we reject the Respondent's argument that the Union waived any bargaining rights by not objecting to the layoff or requesting bargaining until it filed unfair labor practice charges on December 31, 1985 5 The complaint alleged that the Respondent violated Sec 8(a)(5) and (1) by failing and refusing to bargain over the decision to lay off or dis- charge employees on December 2 and the effects of that decision The judge did not rule on these allegations, finding that the layoff was a sub- terfuge to rid the Respondent of those remaining employees who sup- ported the Union, in violation of Sec 8(a)(3) and (1) The judge's 8(a)(3) and (1) findings are discussed infra 294 NLRB No. 56 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that an employer's decision to close down part of its business was not part of Section 8(d)'s "terms and conditions" that required bargaining. However, both Otis Elevator and First National Maintenance made clear that employers are obligated to bargain over the effects on unit employees of management decisions that are not themselves subject to the bar- gaining obligation. The judge found that, beginning in late 1984, the Respondent's stamping business began declining due to later and smaller customer orders and the loss of some accounts. Additionally, in May 1985, the Respondent received word from its major stamping customer, A M General, that it would lose its account unless the Respondent instituted new inspection requirements. After concluding that it could not afford to comply with A M General's requirements, the Respondent notified this custom- er of that fact in November 1985. When A M Gen- eral canceled its account, the Respondent decided to reorganize its operation by concentrating on the manufacture of oilers and by discontinuing its stamping operation except for the highly automat- ed "Mr. Button" account and, as needed, for its own oiler equipment. On November 27 the Re- spondent wrote its customers that it was immedi- ately phasing, out its stamping business and that it would not accept any new orders. The Respondent notified the Union of its decision to discontinue its contract stamping operations on December 2, the same date on which it terminated its remaining work force except for the shop foreman, toolmak- er, and office employees.' The Respondent's decision to discontinue its con- tract stamping operations on December 2 resulted from the deteriorating demand for its stamping pro- duction and the loss of its major customer. It was therefore a decision to discontinue a product line and there is no evidence that the decision turned on the labor costs of the stamping shop. Thus, the decision to reorganize its operations, causing the December 2 layoff of its employees, did not give rise to a bargaining obligation. Otis Elevator, supra. The Respondent, however, was still required to provide the Union with an opportunity to bargain over the effects of its layoff decision. Because the Respondent did not notify the Union of the layoff until it had occurred, it failed to, afford the Union a reasonable opportunity for effects bargaining in violation of Section 8(a)(5) and (1). See, e.g., Inter- systems Design Corp., 278 NLRB 759 (1986). 8 As found by the judge, "Mr Button" is a highly automated press that uses raw materials supplied by customers to produce campaign buttons One employee operates the "Mr Button" press The employees affected by this December 2 layoff were Joe and Harold Bowling and Betty Arms 3. Contrary to the judge, we find -that 'the Re- spondent did not violate Section 8(a)(3) and (1) by laying off employees Joe and Harold Bowling and Betty Arms on December 2. The judge found that the General Counsel estab- lished a prima facie case that union activity was a motivating factor in the December layoff of Arms and the Bowling brothers and that the Respondent failed to rebut this prima facie case. Relying on evidence outside the 10(b) period, the judge found that the Respondent knew that Betty Arms sup- ported the Union and that it had a "marked animus against the Bowling brothers because of their sup- port of the Union." The judge further found that Arms and the Bowling brothers' were capable of performing ,the oiler and stamping work that re- mained after' December 2, and that there was ade- quate work' to gainfully employ them. The judge rejected the Respondent's claims that Robert Grubbs ' and Robert Crabtree performed all the oiler and "stamping work after December 2 and concluded that the Respondent must have contract- ed out oiler work after the layoff. Finally, the judge discounted the Respondent's claims that Grubbs' was retained because of his skill as a die- maker, noting that virtually all of Grubbs' time after December 2 was spent on oiler work at which Joe Bowling excelled. The judge-similarly rejected the Respondent's argument that it lawfully could retain Foreman Crabtree over Arms and the Bowlings, stating that the "Respondent cannot rebut his prima facie proof of violation of Section 8(a)(3) of the Act by showing that it has engaged in conduct that would appear to have violated Sec- tion 8(a)(5) of the Act." The Respondent excepts, claiming that it decided to retain Grubbs because he was capable of per- forming oiler work and because his skills as a die- maker were vastly superior to those of Arms and the Bowling brothers. The Respondent argues that it cannot effectively operate without a diemaker and that the judge's suggestion that it contract out die work is not a cost-efficient alternative. The Re- spondent also claims that when, as here, stamping work is available for only one individual, the Act does not mandate retention of a bargaining unit employee in preference to a working supervisor. Finally,, the Respondent contends that Grubbs and Crabtree performed all of its oiler and stamping work after December 2 and that the judge's sub- contracting findings were unsupported by the record. For the following reasons, we find merit in the Respondent's exceptions and conclude that it has rebutted the General Counsel's prima facie case STAMPING SPECIALTY CO under Wright Line8 by establishing that it would have laid off Arms and the Bowlings even in the absence of their union activity. Initially, we note that the record does not sup- port the judge's conclusions that approximately three employees were required to perform oiler work after December 2. Although 27 to 28 staff hours a day were required for oiler work prior to September 9, the uncontradicted testimony of Mark Tomlinson discloses that Joe Bowling performed 95 percent of the oiler work after that date with limited assistance from Foreman Crabtree. And, contrary to the judge's findings, there is no evi- dence that any of the oiler work performed by Joe Bowling or Crabtree in the fall of 1985 was con- tracted out after December 2.9 Nor does the evi- dence refute the Respondent's claim that, after De- cember 2, Grubbs performed all of its oiler and die work and Crabtree performed its remaining stamp- ing work, including "Mr. Button." Additionally, the Respondent offered nondis- criminatory, business justifications for retaining em- ployee Grubbs. Tomlinson testified that a diemaker was vital to its operation because if a die breaks it must be repaired or replaced or parts cannot be made. Tomlinson asserted that a diemaker would be the last person he would let go and, further, that Grubbs was the only employee capable of per- forming die work that the Respondent required. Indeed, while Grubbs and the Bowlings, to varying degrees, all sharpened and/or repaired dies, only Grubbs made parts for broken dies after February 1984. Although Joe Bowling testified that he had also made die parts, he had not done so since 1972, long before Tomlinson's tenure as Respondent's president. Under these circumstances, and particu- larly as the judge found that, in recent years, layoff selection was based on employee skill rather than seniority, we find that the Respondent established that it would have retained the less senior Grubbs over Arms and the Bowlings, regardless of any an- tiunion sentiments. In so holding, we reject the judge's finding that, as dies are infrequently made, the Respondent should contract out this work and assign oiler duties to the more skilled oiler, Joe Bowling. We will not substitute our judgment for the Respondent's on a record that establishes the Respondent retained an employee capable of per- forming all of its required oiler and die work in 8251 NLRB 1083 (1980), enfd 662 F2d 899 (1st Cir. 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 U S 393 (1983) 0 Although the Respondent apparently refused the Union's December 6, 1985 request for the names of individuals and companies performing work previously undertaken by unit employees, the complaint does not allege an 8(a)(5) refusal to provide information or unlawful subcontract- ing, nor did the General Counsel contend that the Respondent contracted out work to cause or exacerbate the December layoff 705 preference to employees it reasonably determined could not satisfy its diemaking requirements. Finally, the retention of Foreman Crabtree does not violate the Act. The Respondent required only two employees to meet its production needs after December 2. In addition to Grubbs, the Respond- ent selected Crabtree, who admittedly was capable of performing the remaining stamping work. Fur- ther, Crabtree was retained over Arms and the Bowling brothers because he was the Respondent's supervisor who, according to it, had "exhibited a willingness to accept responsibility and . . . dem- onstrated his all-around talents in a shop." Because there is nothing inherently unlawful in retaining a supervisor to perform unit work in these circum- stances, and because the Respondent established that it would have retained Crabtree notwithstand- ing any antiunion animus it harbored against laid- off employees, we find that the Respondent has not violated Section 8(a)(3) and (1) by retaining Crab- tree rather than the laid-off unit employees. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. "4. By failing to give notice to the Union about the December 2, 1985 layoff and to afford the Union an opportunity to bargain about the effects of that layoff on employees, the Respondent has violated Section 8(a)(5) and (1) of the Act." AMENDED REMEDY Substitute the following for the second para- graph. "Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off em- ployees on September 9, 1985, without giving the Union advance notice or an opportunity to bargain over the layoff decision or its effect on unit em- ployees, we shall require the Respondent to reim- burse laid-off employees for backpay they normally would have received from September 9 until De- cember 2, 1985,10 less any net interim earnings, and computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded.' 1 10 Although the remedy for this Sec 8(a)(5) decision-making violation traditionally includes reinstatement of the laid-off employees, we find that the Respondent's lawful, intervening act of discontinuing its stamping op- erations precludes the reinstatement of the laid-off employees and tolls their backpay liability as of December 2, 1985 11 283 NLRB 1173 (1987) Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "Having found that the Respondent, violated Section 8(a)(5) and (1) by failing to notify the Union and afford it an opportunity to bargain over the effects of its decision to discontinue its stamp- ing operation, we shall require the Respondent to pay backpay to its employees laid off on September 9 and December 2, 1985, in the manner required under Transmarine Navigation Corp., 170 NLRB 389 (1968). See Litton Business Systems, 286 NLRB 817 (1987). See also Fast Food Merchandisers, 291 NLRB 897 (1988). Thus, the Respondent shall pay all affected employees backpay at the rate of their normal wages when last in the Respondent's employ from 5 days after the date of this Decision and Order until the occurrence of the earliest of the following conditions: (1) the date the Respond- ent bargains to agreement with the Union on those subjects pertaining to the effects of its December 2, 1985 discontinuation of stamping operations on its employees; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days of this Decision and Order or to commence negotiations within 5 days of the Re- spondent's notice of its desire to bargain with the Union; or (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any of these employees exceed the amount he would have earned as wages from the dates on which he was laid off or terminated to the time he was recalled or secured equivalent employment elsewhere, or the date on which the Respondent shall have offered to bargain, whichever occurs sooner; provided, however, that in no event shall this sum be less than these employees would have earned for a 2-week period at the rate of their normal wages when last in the Respondent's employ. "Having found that the Respondent engaged in refusals to bargain within the meaning of Section 8(a)(5), almost from the beginning of the certifica- tion year, we shall extend certification for an addi- tional year from the time that the Respondent com- mences to bargain in good faith. Mar-Jac Poultry Co., 136 NLRB 785, 789 (1962)." ORDER The National Labor Relations Board orders that the Respondent, Stamping Specialty Co., Inc., Indi- anapolis, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally laying off unit employees with- out providing the Union with notice and an oppor- tunity to bargain about the layoff decision and its effects. (b) Failing and refusing to bargain with the Union over the effects of its decision to discontinue its stamping operation on unit employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with Chauffeurs, Team- sters, Warehousemen and Helpers of America, Local 135, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive representative of employees - in the following unit: All production employees, including shop and toolroom employees, employed at our 2401 N. Ritter Avenue, Indianapolis, Indiana location; BUT EXCLUDING all office clerical employ- ees, .all professional employees, and all guards and, supervisors as defined in the Act. (b) On the Union's request, bargain with it over the effect on unit employees of its decision to dis- continue its stamping operation. (c) Pay the employees laid off on September 9 and December 2, 1985, their normal wages for the periods set forth in the amended remedy portion of this Decision and Order. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Indianapolis, Indiana facility copies of the' attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Re- gional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " STAMPING SPECIALTY CO 707 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. WE WILL NOT refuse to recognize and bargain with Chauffeurs, Teamsters, Warehousemen and Helpers of America, Local 135, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representa- tive of our employees in the following appropriate unit: All production employees, including shop and toolroom employees, employed at our 2401 N. Ritter Avenue, Indianapolis, Indiana location; BUT EXCLUDING all office clerical employ- ees, all professional employees, and all guards and supervisors as defined in the Act. WE WILL NOT unilaterally lay off employees without providing the Union with notice and an opportunity to bargain about the decision to lay off employees, where required by law. WE WILL NOT fail or refuse to bargain with the Union over the effects of our decision to discontin- ue our stamping operation on unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed employees by Section 7 of the Act. WE WILL, on request, bargain in good faith with the above-named labor organization concerning the effects of our decision to discontinue our stamping operation. WE WILL make whole those employees laid off on September 9 and December 2, 1985, for any loss of pay suffered as a result of our unlawful conduct, plus interest. STAMPING SPECIALTY CO., INC. Steve Robles, Esq., for the General Counsel. George Baker, Esq., Indianapolis , Indiana, for the Re- spondent. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On original charges filed in Cases 25-CA-17687 and 25-CA- 17791 on 12 December 19851 and 31 January 1986, re- spectively, the Regional Director for Region 25 of the National Labor Relations Board issued an order consoli- dating cases, consolidated complaint and notice of hear- ing on 28 February 1986, which alleged that Stamping Specialty Co., Inc. (Respondent) had engaged in and is engaging in conduct which violates Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). By timely answer, Respondent denied it had engaged in the unfair labor practices alleged in the complaint. Thereafter, on 16 April 1986, the Region issued an amendment to the complaint which alleged an additional violation of Section 8(a)(1) of the Act, and deleted para- graphs 5(a), (b), and (c) of the original complaint Re- spondent filed timely answer denying it had engaged in the conduct described in said amendment to complaint. The case was heard in Indianapolis, Indiana, on 28 and 29 April 1986. All parties appeared and were afforded full opportunity to participate Subsequent to the close of the hearing, counsel for the General Counsel and counsel for Respondent filed posthearing briefs which have been carefully considered.2 On the entire record, and from my observation of the witnesses who appeared to give testi- mony, I make the following FINDINGS OF FACT I JURISDICTION Respondent maintains its principal office and place of business in Indianapolis, Indiana, where it is engaged in the manufacture, distribution, and sale of metal stampings and lubricating devices. During calendar year 1985, it sold and shipped to customers located outside the State of Indiana, and purchased from suppliers located outside said State products, goods, and materials valued, in both instances, in excess of $50,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Overview of the case Respondent was created in 1945 by Ronald Tomlinson and William Hopkins, who were both trained tool and die makers. Initially, the firm manufactured stamped metal parts for customers who subsequently utilized such parts in the assembly of their own products. Around 1950, the firm commenced to manufacture oilers which are utilized by customers to lubricate both sides of sheets of metal to reduce friction when the sheets are later cut in presses. The market for stampings, which are custom parts made to the customer's specifications, is regional, 1 All dates herein are 1985 unless otherwise indicated 2 Counsel for the General Counsel included several motions in his brief which urge me to reconsider certain evidentiary rulings made during the hearing The rulings are reaffirmed and the motions are denied 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD while the market for for oilers and accessories (stands, pumps, and wiper blades) is national.3 Mark Tomlinson, Respondent's president and manager since 1980, worked at the facility part time as a machine operator while attending school. After graduation from college, he engaged in pursuits unrelated to the stamping business. Two years after his father experienced a dis- abling stroke in 1973, he joined the business. ' ` Through the years, Respondent' s business prospered. During its fiscal year 1983,4 its net profit was approxi- mately $50,000. During fiscal years 1984-and 1985, the net profits were approximately $300,000 and $150,000, respectively. In April 1985, Mark Tomlinson (Tomlinson) met with his employees to inform them their efforts had caused Respondent to have a good year. During the meeting, Tomlinson indicated he might install closed circuit tele- vision cameras • in the shop. A short time later, in late April, Joe Bowling, the most senior employee in the shop, contacted Local 135 regarding employee represen- tation. On 1 May, the employees met at employee Eugene Gann's home and Gann, Joe Bowling, Harold Bowling, Mike Bowling, Bobby Jones, and Richard Plummer signed authorization cards. By letter dated 6 May, the Union notified Respondent Local 135 was or- ganizing its employees and the six above-named employ- ees had joined its organizing committee. A short time later, employees Betty Arms and Shirley Collins signed authorization cards. Joe Bowling asked the two remain- ing employees, Robert Grubbs and Scott Barrier, to join, but both indicated they did not desire union representa- tion.", Thereafter, until a Board-supervised election was held at the facility on 20 June, Grubbs and Barrier took their lunch break in the office rather than with the em- ployees. Additionally, the record reveals that at an em- ployee meeting attended by Tomlinson and Respondent's foreman, Robert Crabtree,6 Grubbs and Barrier made their antiunion sentiments known. The Union won the above-mentioned election by a vote of eight to two, and was certified on 28 June. Joe Bowling served as the Union's observer at the election. - Tomlinson's feelings regarding unionization of his em- ployees was expressed in the shop immediately after he received the Union's 6 May letter. He exhibited the letter to Joe Bowling and asked ". . . if he knew anything about this." When J. Bowling indicated he did, Tomlin- son stated: "I'll close this son-of-a-bitch. I'll turn it into a warehouse. There is no fucking Teamsters union coming in here and telling me how to run my business. You know I have all the bucks I'll ever need, why did you do it Joe?" After J. Bowling replied that Tomlinson belittled 9 The types of oilers and accessories manufactured by Respondent are depicted in a pamphlet placed in the record as G C Exh 2 4 Respondent's fiscal year is I November to 31 October 5 The record also reveals Grubbs and Barrier did not attend the three or four meetings held for Respondent employees at the union hall during the course of the organization campaign 6 Respondent does not dispute, and I find, that Tomlinson and Crab- tree were, at times material , supervisors and agents of Respondent within the meaning of Sec 2(11) and (13) of the Act The General Counsel moved in his brief that the complaint be amended to allege that Crabtree was a supervisor and agent until 2 December 1985 only That motion, which is opposed by Respondent, is denied as it is untimely people and they did not like it, citing Bobby Jones as an example, Tomlinson replied: "Yeah, I'll take 1''$obby Jones, and if he's working here when he dies, He'll be making the same dollar he is right now, I'll take part of the business with me to California. I'love Santa Barbara. The Union will do you no good anyway. All they'll do is take your money." Subsequently, in late May, Tomlinson received a letter from A M General, a major customer, which urged him to institute a quality control system if Respondent de- sired to continue to retain A M General as a customer. After placing a note on the letter, he left it on Joe Bowl- ing's desk. The note indicated Tomlinson's continued dis- pleasure with Joe and Harold Bowling, stating (G.C. Exh. 10): Joe & Harold You guys seem to have all the answers around here. Take care of this for me, will you? Or shall we just ignore it. ' I'm busy with Union plans. Mark On 9 September, Respondentflaid off employees Arms, Collins, Mike Bowling, Gann, Plummer, Jones, and Bar- rier.7 Arms was later recalled on 21 October and worked until 2 December. On the latter date Arms, Joe Bowling, and Harold Bowling were terminated. None of the named employees had been recalled when the hearing was held in the instant case. B. The Alleged 8(a)(1) Conduct The complaint, as amended, alleges, and counsel for the General Counsel contends, that Respondent, through conduct of Tomlinson and Foreman Crabtree, engaged in two independent violations of Section 8(a)(1) of the Act during the months of September and November 1985. Crabtree is alleged to have engaged in violative conduct in late September by informing "its laid off em- ployees that Respondent had sufficient work available to recall employees on layoff if it would only choose to do so." Tomlinson is alleged to have engaged in violative conduct by threatening plant closure in November be- cause employees refused to bargain directly with Re- spondent. I find both allegations to be without merit for the reasons set forth below. The Crabtree Comment No evidence was offered which would reveal that any Respondent official had any conversation with its laid-off employees during the month of September . The evidence relied on to support the allegation is Harold Bowling's undenied claim that Foreman Crabtree informed him in late September that there was enough work in the shop for the people then in layoff to do if Mark Tomlinson would call them back. The General Counsel contends the above-described Crabtree statement is coercive "in that it implies that,the 7 As indicated, infra, Barrier was recalled immediately to a' nonumt office job STAMPING SPECIALTY CO employees laid off on September 9, 1985, were unneces- sarily laid off, `and were being kept on layoff not due to any genuine economic reasons or lack of work, but due solely to their (perceived by Tomlinson) union support and yes votes" (Br. 8). I find that Crabtree's observation that there was, in his opinion, sufficient work in the shop to justify recall of laid-off employees does not warrant the sweeping inferences the General Counsel urges me to make Instead, noting that no reference was made to the reason for the 9 September layoff, and that union activi- ties and union representation were not referred to when the comment was made, I find Crabtree's statement to be an innocuous comment which would not reasonably tend to restrain, interfere with, or coerce employees in the ex- ercise of their Section 7 rights. Accordingly, I recom- mend that paragraph 5(b) of the complaint be dismissed. The Tomlinson Conduct Counsel for the General Counsel sought to prove that Tomlinson threatened employees with plant 'closure be- cause they would not deal directly with Respondent through the testimony of employees Plummer, Harold Bowling, and Joe Bowling A composite of their testimo- ny and that given by Tomlinson is set forth below. At some unstated time subsequent to the 9 September layoff, Respondent received a repeat order for stampings from Deflecto Corporation. Employee Barrier had run the part when a quantity had been ordered previously. The order under discussion was one which would pro- vide approximately 3 weeks' work for one machine oper- ator. Barrier was assigned to run the job and after he had run it about a week or week and a half, the steward, Joe Bowling, complained to" Business Representative Trader.8 The matter was discussed during a negotiation session held on 18 October, and Tomlinson reluctantly agreed to recall the most senior employee on layoff, Betty Arms, to run the job. Arms was recalled on 21 Oc- tober and ran the job several days before she appeared in the office to inform Tomlinson she was not capable of running it. Tomlinson then went to the shop to discuss the situation with Joe Bowling. During their discussion, Tomlinson informed J. Bowling Arms was unable to op- erate the machinery used to produce the Deflecto parts and he asked if Bowling, as steward, would agree that Barrier could run the order. Bowling informed him he did not have the authority to make deals. Tomlinson ob- served he was losing big bucks, and made some comment to the effect that he was not going to call "no dumb fucking truck driver to tell him how to run his business." Tomlinson then asked, "what do we do? Close the fuck- ing doors and go home?" Bowling replied that if that was what he was suggesting he do, that's what he would do. Tomlinson ended the conversation by telling Bowl- ing he was a hell of a businessman. 8 Tomlinson and Barrier claimed during their testimony that Barrier did not work on the order until after Betty Arms, third from the top in seniority, was recalled to run the job on 21 October Harold and Joe Bowling testified Barrier ran the job before Arms was recalled Trader corroborated J Bowling's claim that the steward complained to him that Barrier was running the job Finally, Tomlinson stated in a pretrial state- ment that Barrier ran the job about a week and then Trader called to complain I credit the Bowlings and Trader 709 Absent evidence that Tomlinson knew before he dis- cussed the` Deflecto problem with Union Steward Bowl- ing that the steward did not have the authority to permit Respondent to utilize a nonunit employee to perform bargaining unit work, I find Tomlinson did not attempt to bargain directly with employees concerning the De- flecto matter. Viewing the remarks made by Tomlinson and Bowling in context, I find that Tomlinson did not threaten plant closure if employees failed to deal directly with Respondent in circumvention of the certified bar- gaining agent. Accordingly, I recommend that paragraph 5(a) of the complaint be dismissed. C. The Alleged 8(a)(3) Violations The complaint alleges, and counsel for the General Counsel contends, that employees Arms, Collins, Plum- mer, Jones, Gann, and Mike Bowling were laid off on 9 September because they had joined and supported the Union, and that Arms (after recall), Harold Bowling, and Joe Bowling were terminated on 2 December for the same reason. Respondent claims both situations were layoffs which were effectuated for economic reasons. Prior to 9 September 1985, Respondent employed 10 production and maintenance employees. Four (Robert Grubbs, Joe Bowling, Mike Bowling, and Richard Plum- mer) worked in the toolroom where certain components of oilers were machined, oilers were assembled, and work on dies was accomplished (sharpening, repair, and preparation of new dies). Tomlinson testified that the number of oilers manufactured and sold at all times ma- terial has been relatively constant. He indicated the man- ufacture of the number of oilers regularly sold by Re- spondent involves approximately 27 or 28 man-hours per day. The remaining six employees (Harold Bowling, Betty Arms, Shirley Collins, Eugene Gann, Bobby Jones, and Scott Barrier) worked in Respondent's pressroom prior to 9 September. Those employees produced stamp- ings for customers as well as certain stamped compo- nents for the oilers manufactured by Respondent. Respondent placed in evidence as Respondent Exhibit 2 a composite which reveals its oiler and stamping sales from January 1985 through March 1986.9 The document reveals the following: Sales Month Oilers Mr. Button Stampings Totals 1985 Jan $23,167 $4,440 $74,793 $102,400 Feb 22,654 4,845 46,301 73,800 Mar 31,141 6,822 55,169 93,132 Apr 22,404 5,964 53,640 82,008 May 21,094 5,519 44,465 71,078 June 24,476 3,963 51,703 .80,142 9 The column entitled "Mr Button" indicates the 'amount of sales of campaign buttons to the customer Mr Button Respondent witness Koers indicated Mr Button sales were set out separately because the stampings are produced by use of highly automated presses and the customer sup- plies the raw material to produce the buttons One employee operates the presses which produce the campaign buttons 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Sales Month July Aug Sept Oct Nov Dec 1986 Jan Feb Mar. Oilers Mr. Button Stampings Totals 24,228 5,477 59,378 89,083 23,092 5,585 29,302 57,979 21,671 6,151 28,006 55,828 28,013 5,332 20,903 54,248 25,736 6,440 18,996 51,172 26,578 4,684 17,331 48,593 22,892 3,812 7,642 34,346 23,128 5,320 10,173 38,621 26,055 5,802 2,960 34,817 Stamping Specialty Stamping Customers Sales Tomlinson testified he noticed as early as late 1984 that orders for stampings had dropped off, and that his regular customers were ordering later than usual and were ordering smaller quantities. He, and his assistant, Diane Koers, both indicated during their testimony that they learned during 1984 or before December 1985, that certain major stamping customers would not be placing orders with them in the future. i ° Among those were: Amstore which placed orders in 1984 that produced some $50,000 net profit, but purchased nothing during 1985; Carson, which indicated in November 1985 that it would do business with a competitor; Schwitzer, which had been sold; A T & T, which had indicated it was moving its operations out of Indianapolis; and Beverly and Safeway Door, which had indicated they would be placing no new orders after December 1985. In addition, and to Respondent most important, Tomlinson testified that his biggest dollar volume customer, A M General, a government contractor, insisted in May 1985 that each of its parts manufactured by Respondent must be inspected if it was to continue to do business with the Company. When Tomlinson informed A M General representatives in November 1985, that he would be unable to institute the inspection procedures demanded, that customer pulled out its tooling except for that needed to produce orders already "in-house." Stamping Specialty Stamping Customers Sales FY 1985 Customer FY 1984 $153,760 A M General $224,988 -0- Amstore 61,741 i 64,211 DeFlectro 57,492 54,181 Carson 43,755 27,245 Divers 27,138 26,166 Elliot Williams 23,677 17,239 Becker - 0 - 16,999 Emquip 15,907 10 A listing of Respondent's stamping customers and the amounts they purchased during its fiscal years 1984 and 1985 was placed in the record as R Exh 3 The 20 customers (by dollar volume purchased) are set forth by name and the remaining customers, which purchased small amounts and were approximately 30 in number, are lumped together The document indicates the following FY 1985 Customer FY 1984 15,395 Gould 11,660 12,316 Wayne Home 8,463 12,074 Schwitzer 14,655 11,704 Beverly 10,755 11,436 Safety Vehicle 11,429 10,112 Safeway Door 13,362 10,081 Diamond Chain 3,508 9,834 AT&T 10,153 9,280 Day & Zimmerman 9,191 8,398 Andover 13,064 7,495 Sissons 3,540 6,544 Cummins 12,734 47,837 All Others 91,284 65,643 Mr Button Products 87,484 $597,650 Total $756,000 As indicated by Respondent's Exhibit 2, which is set forth, supra, Respondent's stamping sales (excluding Mr Button .sales) were $59,378 in July 1985. They dropped to $29,302 in August, dropped further to $28,006 in Sep- tember, dipped to $20,903 in October, and continued to fall during the remainder of 1985. Tomlinson testified that by the first of September he had only one job for all the stamping employees and he decided during the period 2-4 September that he could accomplish the needed stamping and oiler work by laying off all his pro- duction workers except Harold Bowling, Joe Bowling, and Robert Grubbs (the tool and die man). Having made the decision he claims he telephoned- Union Business Representative Trader on Wednesday, 4 September, to discuss the matter. According to Tomlinson, he told Trader there was to be a layoff and he desired to clear with him his desire to transfer Scott Barrier, the least senior employee at the facility, from his bargaining unit job to an office position. Tomlinson testified Trader in- formed him the transfer would pose no problem since it was to a job outside the unit, but he would prefer that Barrier not be given a big raise. i i On Thursday, 5 September, Respondent handed each of its production employees a copy of a letter placed in the record as General Counsel's Exhibit 5 when it gave them their paychecks. The letter indicated that Arms, Collins, Plummer, Gann, Mike Bowling, Jones, and Scott 11 As indicated, infra, Respondent furnished its employees with copies of a layoff letter placed in the record as G C Exh 5 when it gave them their paychecks on 5 September Despite this, Trader denied having learned of the 9 September layoff until Joe Bowling told him about it prior to a meeting they attended after the layoff Significantly, when asking if he was notified of the layoff before it occurred, the General Counsel asked Trader if he had received "written" notice He answered no Noting that Trader admitted during his testimony that he did not object to the Barrier transfer if he did not receive a raise, that Joe Bowl- ing, the steward, received notification of the layoff, that Trader did not specifically deny having had a telephone conversation with Tomlinson on 4 September, and that Trader did not protest the layoff after he admitted- ly learned of it, I credit Tomlinson STAMPING SPECIALTY CO Barrier were laid off as of 9 September but their insur- ance would be continued in effect for 60 days. The situation produced by the layoff was one which left Joe and Harold Bowling, Grubbs, Barrier, and Crab- tree on Respondent's payroll. Joe Bowling (30 years' service) and Harold Bowling (second in senority) were senior to all employees in layoff, but Arms, Collins, Jones, and Mike Bowling had more time with the Com- pany than Grubbs. Counsel for the General Counsel did not seek, however, to show any of the employees laid off on 9 September were qualified to perform the tool and die work performed by Grubbs. Although the record re- veals Respondent and the Union met for the purpose of conducting bargaining negotiations on 18 October and 2 December, the record fails to reveal that the 9 Septem- ber layoff was discussed during those bargaining sessions During the period extending from 9 September to 2 December, Harold Bowling, Foreman Crabtree, and (after 21 October) Betty Arms produced the stampings sold by Respondent. As noted, supra, employee Scott Barrier performed limited pressroom work during the period when he ran the Deflecto order. Additionally, ac- cording to Harold Bowling, Barrier would appear in the shop on occasion to spend a short period of time packag- ing a part for shipment or assisting in the loading of trucks. During the same period, the employees who were producing oilers were Joe Bowling and Robert Grubbs. In addition to assisting Joe Bowling in the boiler work, Grubbs continued to accomplish work on dies as needed. The record reveals that some of the work necessary to produce the oilers manufactured during the period under discussion was accomplished outside the plant. Thus, Harold Bowling testified that before and after the June election, Betty Simpson had accomplished certain weld- ing on oiler tanks or reservoirs outside the plant, and that Diane Koers' mother had sewed carpet on small oiler rollers (less than 37 inches) at her home. According to Harold Bowling, after the election Crabtree started to take large oiler rollers, which had previously been car- peted by Mike Bowling and Richard Plummer, home with him and his wife returned them after they had been carpeted. Trader testified he protested the contracting out of the large roller carpeting during a bargaining ses- sion held on 18 October. Tomlinson defended the prac- tice by claiming they did not have room to accomplish the work at the plant. No agreement was reached on the matter and the practice apparently continued.12 Harold Bowling testified he suspected that an unspecified number of large oilers were made by an outside contrac- tor during the period under discussion as there would be no big oilers ready for shipment when he completed his 4-day workweek on Thursday evening, but that he would see completed large oilers which were ready for shipment when he reported for work on Monday morn- ing.13 12 The record fails to reveal the number of man-hours of work lost per day or week as a result of such subcontracting 13 While Respondent may have contracted out work on large oilers as suspected by H Bowling, I cannot find that was done as the Bowlings worked 12-hour shifts Monday through Thursday, and were not in the plant on Fridays when Crabtree and Grubbs were working In any event, no subcontracting violation is alleged in the complaint 711 On 21 October, Betty Arms was recalled by Respond- ent to produce an order for a firm named Deflecto Cor- poration. The circumstances surrounding her recall have been discussed, supra. On 27 November, Respondent sent all its stamping customers but Emquip a copy of a letter placed in the record as General Counsel's Exhibit 11.14 The message conveyed to its customers by such letters was that as of that date Respondent was phasing out its stamping oper- ations and would process "in-house" orders, but would not accept new orders. Respondent and the Union had scheduled a negotiating session for 2 December. When Tomlinson appeared at the meeting, he handed Union Business Representative Trader copies of documents placed in the record as Gen- eral Counsel's Exhibits 7, 8, and 9. General Counsel's Exhibit 7, a document dated 14 November 1985 ad- dressed "To Whom It May Concern," and signed by Tomlinson and Respondent Co-owner Hopkins, 15 states: After spending several months looking at the present state of this business, we have decided to make appropriate changes that brings the business more in line with the current state of the economy and the best interests of the company. The goal of management is to combine marketing and manufacturing interests in such a way as to direct the company toward product development, sales and marketing. All "in-house" metal stamping that does not directly relate to prototype develop- ment, proving of tools and production samples, will be phased out. The only exception to this will be the infrequent stamping of a few oiler parts. In other words, contract metal stamping will be phased out as rapidly as possible. Virtually all parts manufacturing will be done by outside sources and we will do -only minor inspection, assembly and shipping here. At the end of the reorganization, the total number of people that will be required will consist of one employee in the shop area, one employee in the tool room, and a "yet to be determined" number of employees in the office. Thank you. Through General Counsel's Exhibit 8, Respondent noti- fied the Union and its employees who ". . the one em- ployee in the shop area, and one employee in the tool room" would be, as the document is a letter which noti- fied Arms, Harold Bowling, and Joe Bowling that they were laid off effective 2 December; that they would be paid through the 2 December workweek; and that their insurance would be continued in force during December 1985 and January 1986 In addition to providing Trader with a copy of General Counsel's Exhibit 9, Tomlinson read the document in its entirety to those attending the meeting. Summarized, the document, which was au- 14 Koers testified Emquip was sent a copy of the letter in December when it was learned no copy was sent to it on 27 November 11 Tomlinson testified the memo was typed on 14 November but signed at an unstated subsequent date 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thored by Tomlinson, sets forth various problems inher- ent in the operation of a stamping shop; observes that Respondent had neither the machinery, trained person- nel, nor the capital to compete effectively; states that Tomlinson's training-and health precluded him from con- tinuing to manage a stamping operation; and concluded, stating, inter alia: My situation is this. My stamping customer base is shrinking. I have no competent engineering people to back me up, and I have not been able to find anyone with the correct mix of experience and interests in the last three years. Finally, the cash is not available to make massive changes in equipment and organization that would be required to stay competitive with other upscale contract stamping houses. I, am simply spread too thin and I have reached my physical limit. A company our size re- volves around the owner(s) abilities and interests By necessity, his strengths must set the company's direction, and it is his strongest traits that sets com- pany goals. It is my intention to reorganize the company in such a way that I can reduce external pressures on myself to the point where I feel that they are at a manageable level. I cannot be two tool and die makers, and I am exhausted trying. It is my plan to suspend contract metal stamping. We will suspend the production of all of our own product line's (stock .oilers) component parts, except for those that cannot be done by outside sources. I will let someone else worry about the manufactur- ing problems and I will do the complaining. I plan to spend my time on promotional projects and marketing. Any new additions.to the line will be made on a non-rush basis Due to the new, drastic reduction in volume of internal production, employee requirements will be miminal . We will keep the shop foreman-who has exhibited a willingness to accept responsibility and has demonstrated his all-around talents in a shop- and we will retain the tool maker, who is important as long as we have any machines left in the compa- ny All other employees will be phased out as stamp- ing and machine shop jobs are phased out. During the 2 December meeting, Trader claimed that Harold and Joe Bowling had the ability to perform the required work in the pressroom and the toolroom, and they should be retained as they were senior to Crabtree and Grubbs. Trader testified he asked Tomlinson if he was saying the Bowlings did not have the ability to per- form the remaining work, and claims Tomlinson said "no." Tomlinson's position was that he intended to retain Crabtree because he was the foreman, and he intended to retain Grubbs as he was the only employee capable of building dies. Respondent and the Union next met on 6 December. After handing Tomlinson a document placed in the record as General Counsel's Exhibit 12, Trader asked Tomlinson to reconsider his position on retaining less senior people to perform bargaining unit work. Respond- ent failed to alter its position . The body of the document delivered at the meeting states. In response to your letter dated November 14, 1985, addressed to "To Whom It May Concern," provided to me, the undersigned, in the negotiating session of December 2, 1985, this is to advise you that this Local Union goes on record to request the names of those individuals and/or companies who will be performing the stamping of products pres- ently being performed by your company and/or the bargaining unit employees. Also we are requesting the name(s) of the "out- side sources" who will be doing the parts manufac- turing. This Local Union is going on record to protest your Company subcontracting work that was previ- ously performed by bargaining unit employees of Stamping Specialties, Inc. This Local Union is protesting your actions as outlined in the letter of November 14, 1985 in its entirety. - Trader testified he requested during the 6 December meeting that agreement be reached on a time and date for continuation of negotiations. He indicated he re- ceived no response, and testified Respondent has not re- sponded to the above-described letter dated 5 December 1985. During the 40 years it has been in existence, Respond- ent has always made a profit, and it has experienced few layoff situations. Employee Harold Bowling, who was hired in 1962, recalled that he and another employee were laid off for about 3 weeks in 1965. He claims that seniority was observed during that layoff and he recalled none after that prior to 9 September 1985. Tomlinson, who joined Respondent on a full-time basis 11 years ago, testified that he recalled that all of the Respondent's female employees were laid off for a period in 19751 6 and were subsequently recalled in early 1976, and that a few people were laid off for a couple weeks in 1978 or 1979. He claims ability to perform the work, rather than seniority, was the criteria utilized during the layoffs to determine who would work. 17 Discussion The 9 September Layoff The General Counsel's burden under Wright Line18 was to establish that the union activities of the employ- 16 Tomlinson testified the female employees perform no set-up work but all the male employees perform set-up to some extent He claimed less senior males were retained at the time of the 1975 layoff because they had a wide range of work skills 17 The General Counsel urges me to discredit Tomlinson's testimony concerning layoffs Noting the record reveals that Shirley Collins and Betty Arms were both hired in 1973, and were not called as witnesses to refute Tomlinson's claim that all female employees were laid off in 1975, and that Tomlinson exhibited favorable demeanor when describing the layoffs, I credit his testimony concerning the layoffs he described 18 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) STAMPING SPECIALTY CO ees laid off on 9 September were a "motivating factor" in Respondent's decision to terminate them. If the Gener- al Counsel sustained that burden, as I find he did, Re- spondent's evidentiary burden was to show that it would have laid off the employees in the absence of such pro- tected activities. For the reasons set forth below, I find Respondent satisfied that burden The General Counsel's first task was to prove that Mike Bowling, Richard Plummer, Eugene Gann, Bobby Jones, Betty Arms, and Shirley Collins engaged in pro- tected conduct and that Respondent was aware of their activities and sentiments. Respondent does not argue in this case that it had no knowledge of the above-named employees' support of the Union. In addition to clearly revealing that each of the named employees signed union authorization cards and voted for union representation during the 20 June election, the instant record reveals: Tomlinson observed the prounion employees keep their distance from antiunion employees Grubbs and Barrier during the organizational campaign ; Tomlinson and Crabtree heard Grubbs and Barrier voice their support of the Company during employee meetings; the Union's 6 May letter gave Respondent notice that the first four named employees were on its organizing committee; and, finally, Tomlinson admitted during his testimony that he was of the opinion after the election that Grubbs and Barrier had cast the "No" votes. It is clear, and I find, that each of the employees terminated on 9 September supported the Union and that Respondent was aware of their advocacy Having established that the employees laid off were union advocates and that Respondent was aware of their sentiments; the General Counsel adduced evidence which reveals that Tomlinson threatened, when he learned the Union was attempting to organize its em- ployees, to close the facility and to turn it into a ware- house or move it to California because the Teamsters were not going to tell him how to run the business; that Tomlinson evidenced his particular displeasure with Harold and Joe Bowling by leaving the A M General letter with a note on it on Joe Bowling's desk; that Re- spondent's business had been uniformly profitable over the years, and that layoffs had been rare, that oiler sales had been steady during times material herein, that the six above-named prounion employees were laid off on 9 September, while antiunion employees Grubbs and Bar- rier were retained; that two of the six employees, Mike Bowling and Plummer, manufactured oilers; and that Grubbs was junior in seniority to Arms, Collins, Jones, and Mike Bowling, while Barrier was junior to every employee working at the facility. By adducing the facts set forth, I find the General Counsel established, prima facie, that Arms, Collins, Mike Bowling, Jones, Gann, and Plummer were laid off on 9 September 1985 for dis- criminatory reasons. Turning to Respondent's defense that economic cir- cumstances dictated that it effectuate the 9 September layoff, I note, at the outset, that the Union apparently took no action with respect to that layoff until it filed the initial charge in this case (Case 25-CA-I7687) on 12 December 1985, more than 3 months after the layoff. Indeed, the record fails to reveal that Business Repre- 713 sentative Trader challenged Respondent in any way con- cerning the 9 September layoff at any of the negotiation sessions which were held subsequent to the layoff. The Union's failure to act, although it had members working at the facility who were aware of the workload, causes me to give considerable weight to Tomlinson's claim that while oiler sales, and Mr. Button sales remained relative- ly stable throughout 1985, orders for customer stampings started to drop off in late 1984, and had slipped by late August or early September to the point that one job or order was all the Company had to keep employees in the pressroom busy. Tomlinson's testimony is supported by the composite placed in evidence as Respondent's Exhib- it 2, which reveals that stamping sales (excluding Mr. Button) dropped from $59,378 in July to $29,302 in August and thereafter continued to drop until they reached $18,996 during the month of November 1985. Tomlinson testified in early September he decided he could fill the orders the Company had by laying every- one off but the working foreman, Crabtree, the Bowling brothers, and his tool and die maker, Grubbs. Significant- ly, the General Counsel offered no evidence which would reveal that Respondent was unable to fill the orders it received during the months of September, Oc- tober, or November 1985, with the individuals retained on and after 9 September. I am convinced, and find, that Respondent has shown the 9 September layoff was dic- tated by economic circumstances. The General Counsel contends that, assuming ar- guendo, economic circumstances dictated that a layoff be effectuated on 9 September. Respondent nevertheless violated Section 8(a)(3) by failing to lay off according to seniority, and by, instead, retaining Grubbs and transfer- ring Barrier to an office job outside the unit. I find the contention to be without merit for several reasons. First, I note that the General Counsel has failed to show that Respondent altered its normal practice in layoff situations at the time of the 9 September layoff While he sought, through the testimony of H. Bowling, to establish that Respondent followed seniority when it laid off H. Bowling and another employee 20 years ago, I have credited Tomlinson's testimony which reveals that the criteria utilized to decide who would be selected for layoff in more recent years has been ability to perform available work rather than seniority. Second, I conclude that the record supports Respond- ent's contention that Grubbs and Barrier were retained on 9 September because they were best qualified to per- form the work available. The General Counsel's conten- tion that Grubbs should not have been retained because Arms, Collins, Jones, and Mike Bowling were more senior is quite weak as the record fails to reveal that any of the named employees possessed any expertise in the sharpening, the repair, or the building of dies. The record reveals that when Respondent utilizes its presses it needs, at miminum, an employee who can sharpen and repair dies. Grubbs has performed those functions at the facility since some time in 1984 In my view, Respondent has shown adequate reason for retaining him on 9 Sep- tember. , 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD While Respondent's retention of Barrier; the least senior employees in the facility on 9 September, justifi- ably causes one to suspect that Tomlinson was favoring Barrier because he had supported the Company at the time of the election, Tomlinson testified he retained Bar- rier because, he needed an assistant for Koers in the office -and Barrier possessed the qualification for the job as he was-a high school graduate and he had gained sev- eral years sales experience by managing a battery firm in the Indianapolis area. While the General Counsel argues that any of the employees laid off on 9 September could have performed the sales job given to Barrier on 9 Sep- tember, Tomlinson testified he did not consider those employees because none of them had graduated from high school. Noting that Union Representative Trader did' not object to Tomlinson's proposal to transfer Bar- rier to a nonunit job and the fact that the General Coun- sel has failed to show that any of the employees laid off on 9 September were qualified to fill the position, I find he has failed to show that Respondent violated Section 8(a)(3) by giving Barrier, rather than one of the employ- ees laid off on 9'September, the office sales position. In sum, for the reasons stated, I find that Respondent has shown that it would have laid off employees Arms, Collins, Jones, Mike Bowling, Gann, and Plummer on 9 September even if they were not known by it to have joined or supported the Union.19 The 2 December Terminations As indicated above, Respondent terminated the em- ployment' of Joe Bowling, Harold Bowling, and Betty Arms on 2 December 1985. Each of the employees had joined the Union and had voted for it during the elec- tion. Indeed, Joe Bowling had instigated the organization campaign and had served as the Union's observer at the election and was the union steward at the time he was terminated. Tomlinson's above-described conversations with the Bowling brothers in early May and his subse- quent handling, of the A M General letter matter reveal he harbored marked animus against the Bowling brothers because of their support of the Union. While he dis- played no open animosity toward Arms, he admittedly suspected after the election that she was also a union supporter. It is clear, and I find, that Joe Bowling, Harold Bowling, and Betty Arms were union supporters and Respondent was aware of their advocacy During the hearing, the General Counsel established that Joe Bowling had worked,for Respondent for 30 years. During that period, he had performed every func- tion related to the manufacture of stampings and oilers. He credibly testified he was capable of sharpening dies and repairing dies and that he had made an undisclosed number of dies prior to 1972. For some period preceding his termination he supervised the construction of oilers and directed Mike Bowling and Richard Plummer in the performance of their oiler manufacturing functions. Simi- 19 In reaching such a conclusion, I have considered Harold Bowling's fragmeritary testimony which was to the effect that he suspects Crab- tree's wife has been sewing carpet on oiler rollers since the election Absent a complaint allegation concerning that matter, I am not disposed to make any findings concerning it as the record reveals that Respondent contracted out similar work to Diane Koers' mother prior to the election larly, Harold Bowling, who had been employed by Re- spondent for some 24 years at the time of his' termina- tion, was shown to have been intimately familiar with all phases of Respondent's operation. The record reveals that Tomlinson recognized Harold Bowling's expertise by making him the shop foreman, and Tomlinson admits he accepted Harold's resignation of his supervisory posi- tion reluctantly in April 1985. Significantly, the record reveals that Harold Bowling spent a considerable portion of his working time in the operation of the presses which produce the Mr. Button stampings during that period which extended from April until 2 December 1985. Like his brother, he is capable of sharpening dies. While the record fails to reveal the full extent of Arms' capabilities, Tomlinson indicated during his testimony that Arms is an excellent machine operator. He particularly empha- sized the fact that she is an exceptional operator on single-piece parts jobs. It is undisputed that prior to 2 December some 27 or 28 man-hours per day were required to produce the oilers manufactured by Respondent. During his testimo- ny, Tomlinson claimed that Robert Grubbs, the tool and die worker who was retained because he alone possessed the requisite tool and die skills required to keep the fa- cility's presses operating, has accomplished all the oiler work performed at the facility since 2 December. Tom- linson indicated during his testimony, however, that for years Respondent has sent dies, particularly large ones, to a firm across the street from his plant for repair, and it has had the same firm build a number of dies. Signifi- cantly, the record reveals Respondent's oiler sales ranged from $21,671 to $28,013 during the period extending from June through November 1985, and that during the 4-month period extending from December 1985 through March 1986, they have ranged from $22,892 to $26,578 Similarly, the record reveals that the production and sale of Mr. Button stampings, items produced in the press- room, have continued during the past 2 December period to be essentially the same as the production expe- rienced during the months of the preceding year. Finally, the record reveals that while the production and sales of stampings other than Mr. Button stampings have dropped off precipitously beginning in August 1985, Re- spondent was still producing a significant number of stampings for others during December 1985 and Febru- ary 1986, as sales during those months were $17,331 and $10,173, respectively. Unaccounted for are the stampings utilized by Respondent to manufacture the component parts for its oiler products. In sum, the evidence summarized above, considered in conjunction with the antiunion animus expressed by Tomlinson after Respondent's employees sought and ob- tained union representation, and the animosity he direct- ed toward the Bowling brothers in particular, warrants an inference that the union activities of Joe Bowling, Harold Bowling, and Betty Arms were a "motivating factor" in Respondent's decision to terminate them on 2 December. Respondent's defense is bottomed upon a contention that it was lawfully entitled to retain Crabtree as he is a member of management and a supervisor, and that it was STAMPING SPECIALTY CO. lawfully- entitled to retain Grubbs because he was needed to perform the tool and die work that is required if the presses are to be operated. I find both contentions to be without merit. While the record does not precisely reveal what work tasks Crabtree has performed since 2 December, it does reveal that prior to that time his function was to deter- mine what stampings were to be manufactured and to assist bargaining unit employees by helping them set up the presses and machinery necessary to accomplish pro- duction. Since Respondent has continued since 2 Decem- ber to produce stampings in the pressroom, and Crabtree is the only individual working there, it necessarily fol- lows that he is, and has been since 2 December, perform- ing work previously performed by bargaining unit em- ployees Harold Bowling and Betty Arms. Since the Union has continuously indicated since 2 December that it objects to Respondent's Crabtree's performance of bar- gaining unit work, I find, in accord with the General Counsel's contention, that Respondent cannot rebut his prima facie proof of violation of Section 8(a)(3) of the Act by showing that it has engaged in conduct which would appear to have violated Section 8(a)(5) of the Act. In the circumstances, I find that Respondent has failed to show that it would have terminated Harold Bowling and Betty Arms in the absence of their participation in union activity. Turning to the toolroom and the production of oilers, work performed and directed by Joe Bowling prior to 2 December, I note that three men (Joe Bowling, Mike Bowling, and Richard Plummer) assisted on occasions by the tool and die maker, Grubbs, assembled the oilers and components prior to 9 September. During the period ex- tending from 9 September to 2 December, Joe Bowling and Grubbs accomplished the work. Apparently, Grubbs, known by Respondent to be a company support- er rather than a union advocate, has spent virtually all his working time in the manufacture of oilers since 2 De- cember 1985. Noting that the oiler production since 2 December has remained about the same as that experi- enced before that date, I am compelled to conclude that Tomlinson, as he indicated on 2 December, has-contract- ed out some of the work entailed in the production of oilers which was previously performed by bargaining unit employees. As revealed, supra, the Union requested the names of the "outside sources" who would be manu- facturing parts for Respondent in its letter dated 5 De- cember, and it noted therein that it protested Tomlin- son's avowed intention to subcontract bargaining unit work. During the hearing, the General Counsel sought to show that Joe Bowling is as accomplished in tool and die work as Grubbs. J Bowling testified he could sharpen dies, repair them, and make new dies. He admitted, how- ever, that he had not made a die since 1972, and that since 1972 he has worked primarily on oilers. On the other hand, Tomlinson claimed during his testimony that Grubbs is without a peer at the facility and his training as a machinist and his on-the-job training in the sharpen- ing, repair, and building of dies he has received while working at Respondent renders him more qualified than Joe Bowling at die work. Assuming, arguendo, Grubbs is 715 more highly skilled on dies than J. Bowling, that fact would appear to be rather meaningless here because Grubbs has spent virtually all his time working on oilers rather than presses since 2 December. Additionally, the record reveals that Respondent frequently farms out the work of making and repairing dies-the functions which Grubbs may perform more effectively than J. Bowling. In sum, I conclude that Respondent has failed to show that it had a justifiable reason for terminating Joe Bowl- ing on 2 December 1985. Apparently about 27 man- hours per day are still required to manufacture the oilers and components. Moreover, the record clearly reveals J. Bowling was more proficient in the manufacture of oilers than Grubbs. Grubbs' qualifications as a tool and die maker were, in my opinion, merely advanced as a pretext to disguise Respondent's intention to utilize Grubbs in oiler work rather than in his area of specialty. Moreover, if, as the record would appear to suggest, Respondent has contracted out work previously performed by J. Bowling, such conduct would support the General Counsel's contention rather than Respondent's claim that it would have terminated J. Bowling in the absence of his participation in protected conduct. In sum, I find Re- spondent has failed to show that it would have terminat- ed Joe Bowling in the absence of his participation in pro- tected conduct. For the reasons stated, I find that by terminating the employment of Harold Bowling, Joe Bowling, and Betty Arms on 2 December 1985, Respondent violated Section 8(a)(1) and (3) of the Act. D. The Alleged 8(a)(5) Violations The complaint alleges that Respondent refused to bar- gain with the Union and thereby violated Section 8(a)(5) of the Act by (1) failing to give notice of the 9 Septem- ber and 2 December 1985 layoffs, failing to bargain over the decision(s) to effectuate such layoffs, and failing to bargain concerning the effects of such layoffs on employ- ees; and (2) bypassing the Union and dealing directly with employees through Mark Tomlinson's November conduct (concerning the Deflecto order). I have found, supra, that Respondent did not, through Tomlinson's October discussion with Joe Bowling, seek to bypass the Union and deal directly with employees. The remaining allegations are discussed below. Respondent contends it gave the Union adequate notice of the 9 September layoff and it cannot be held to have violated the Act by refusing to bargain over the ef- fects of the layoff upon employees because the Union made no request that it do so. It contends it had no legal -obligation to notify the Union of its 2 December action because its decision to go out of the stamping business was made "purely for economic reasons" and under the rationale of First National Maintenance Corp. v. NLRB, 425 U.S. 666 (1981), such decisions are not mandatory subjects of bargaining. Additionally, it contends it did, in fact, bargain with the Union concerning the 2 December layoff. 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The 9 September Layoff The record evidence which I have credited reveals the 9 September layoff was one in which management's deci- sion to effectuate the layoff turned upon labor costs. In such situations, where an employer's employees are rep- resented by a union, the employer is legally obligated to notify the union and to offer to bargain prior to imple- menting the layoff Peat Mfg. Co., 261 NLRB 240 (1982). I conclude Respondent failed to fulfill either obligation. While I have credited Tomlinson's claim that he tele- phoned Trader and made some undescribed remark con- cerning a layoff, it is clear that Tomlinson, who had ap- parently formulated his plans for the 9 September layoff before calling Trader, did not inform Trader when the layoff was to occur or who would be involved. Such in- formation was provided for the first time to employees on 5 September . Significantly, no communication be- tween Respondent and the Union occurred at that time, and Trader eventually was provided details concerning the layoff when he spoke with Union Steward Joe Bowl- ing. In the circumstances described, it is clear that by the time Trader actually learned of the layoff, he was faced with a "fait accompli " Florida-Texas Freight, 203 NLRB 509 (1973), enfd. 487 F.2d 1275 (6th Cir. 1974). While the Union admittedly failed to request bargaining over the effects of the 9 September layoff, such a request would have clearly been futile in the circumstances which existed after the Union finally gained knowledge of what had been done. Peat Mfg. Co, supra. According- ly, I find that by failing to give the Union adequate ad- vance notice of the 9 September layoff which would afford it an opportunity to bargain concerning the manner in which it was to be effectuated and its effect upon employees, Respondent violated Section 8(a)(1) and (5) of the Act as alleged. . The 2 December Layoff It is not necessary for me to determine here whether Respondent could have effectuated a layoff on 2 Decem- ber 1985 , which was lawful under the rationale of First National Maintenance Corp., supra, as interpreted by the Board in Otis Elevator Co., 269 NLRB 891 (1984), be- cause I have found that, in fact, Respondent engaged in a subterfuge on that date to rid itself of its last three known union adherents and thereby violated Section 8(a)(3) of the Act The remedy I recommend, infra, is re- instatement with backpay rather than a requirement that Respondent bargain concerning the matter. CONCLUSIONS OF LAW 1. Stamping Specialty Co., Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By implementing a layoff of employees on 9 Sep- tember 1985 without giving the Union advance notice and affording it an opportunity to bargain concerning the layoff and its effect on employees, Respondent violated Section 8(a)(1) and (5) of the Act. 4 By discharging employees Harold Bowling, Joe Bowling, and Betty Arms on 2 December 1985 because they joined or supported the Union, Respondent violated Section 8(a)(1) and (3) of the Act. 5. Respondent has committed no unfair labor practices not expressly found in this Decision. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged employees Harold Bowling, Joe Bowling, and Betty Arms in viola- tion of Section 8(a)(1) and (3) of the Act, I recommend that Respondent be ordered to reinstate them to their former or substantially equivalent positions of employ- ment, making them whole for any loss of earnings and other benefits resulting from their discharge. The amount of backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corp., 231 NLRB 651 (1977).20 Consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), it will also be recommended that Respondent be required to expunge from its records and files any refer- ences to the discharges of Harold Bowling, Joe Bowling, and Betty Arms, and notify them in writing that this has been done and that evidence of the unlawful discharges will not be used for future personnel actions against them. Finally, while the General Counsel requests that a "vi- sitorial clause" be included in any Order issued in this case, I note the Board has declined to include such clauses in cases which do not appear to pose complicated compliance problems. See, for example, Cherokee Heating Co., 278 NLRB 399 (1986). In my view, the Order in this case will pose no significant compliance problems, and provisions set forth in the Order which require the Re- spondent to preserve and make available to the Board described records necessary to analyze the amount of backpay due the discriminatees will suffice. Accordingly, the request for a "visitorial clause" is denied. [Recommended Order omitted from publication.] 20 See generally Isis Plumbing Co , 138 NLRB 716 (1962)