Marlan Lewis, Inc

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marlan Lewis Designs, Division of Marlan Lewis, Inc. and UBC Texas Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 16-CA- 8997 and 16-CA-9429 30 April 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 17 April 1981 Administrative Law Judge David L. Evans issued the attached decision. The Respondent and the General Counsel filed excep- tions and supporting briefs, the Respondent filed a motion to supplement the record, and the General Counsel filed an opposition thereto.' 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, and conclusions only to the extent consistent with this Decision and Order. 2 The judge found a violation of Section 8(a)(1) of the Act in Supervisor Moss' comment to employee Linda Downs that he had heard the Respondent's chairman of the board Marlan Lewis state that he would never allow a union in his Company. We find merit in the Respondent's exception to the judge's conclusion. The surrounding circumstances were not coercive. Employee Downs initiated the conversation by asking Moss, a low-level supervi- sor, to sign an authorization card for the Union. Moss indicated that he was not sure whether he would sign, adding that he had heard Marlan Lewis make the above statement about "a union." Moss' comment was casual and offhand. His re- sponse to Downs' request was not hostile, but left open the possibility that he would sign a card for the Union. The statement Moss attributed to Lewis was not linked to the current campaign for the Union. That campaign had just begun and there is no evidence that the Respondent had any prior knowledge of it when Downs initiated the conver- sation with Supervisor Moss. In these circum- stances, we find that Moss' comment did not vio- l The Respondent's motion to supplement the record is denied as there is no evidence to show that the proffered material is newly discovered or was previously unavailable. Rather, it appears that the material was in the possession of the Respondent at the time of hearing before the judge. The Respondent's request for oral argument is denied as the record and the briefs of the parties adequately present the issues. 2 The Respondent alleges bias and prejudice on the part of the judge. We have carefully examined the entire record in this case and find no basis for finding bias on the part of the judge. 270 NLRB No. 80 late Section 8(a)(l) of the Act and we shall dismiss that allegation of the complaint.3 We also reverse the judge's conclusion that the Respondent's January extension of the admittedly lawful Christmas layoff violated Section 8(a)(3) and (1) of the Act. In the absence of any contempora- neous evidence of union animus, we find that the General Counsel failed to establish a prima facie case of unlawful discrimination at that time. For the reasons stated above, we find that Supervisor Moss' comment to Downs in December 1979 did not establish union animus. Nor did the Respond- ent's subsequent conduct in February 1980, dis- cussed more fully below, establish union animus for the Respondent's extension of the layoff in January 1980. We also find that the judge erred in discredit- ing the Respondent's showing of economic justifi- cation for the January extension of the layoff and in drawing one adverse inference from the Re- spondent's failure to proffer documentary corrobo- ration for certain testimony of Marlan Lewis and another adverse inference from Lewis' failure to name or produce the accountant absent any con- trary evidence or any other basis for discrediting that testimony. See Stone & Webster Engineering Corp. v. NLRB, 536 F.2d 461, 466 (lst Cir. 1976).4 Moreover, based on this finding, we would con- clude that the Respondent sufficiently established that the extension was motivated by economic, rather than discriminatory, considerations even absent our reversal of the judge's finding that Moss' comments violated Section 8(a)(l) of the Act. 5 3 Member Zimmerman would find the violation. Moss was a supervi- sor and Downs had no reason not to accept what he said as fact. Regard- less of the casual nature of the conversation between Downs and Moss, the latter's remark about what he heard the chairman of the board say clearly communicated that Lewis would never permit a union to repre- sent his employees, thereby implying that Lewis would take whatever steps were necessary to keep a union out. Consequently, Moss' statement concerning Lewis' opposition to unionism was, as found by the judge, co- ercive in nature, notwithstanding that Moss' own conduct was not. 4 With regard to Lewis' failure to name the accountant, we note that he was not asked to do so by any party. The Respondent's motion to strike that portion of the judge's decision in which he drew an adverse inference is denied. 5 Member Zimmerman finds no reason to reverse the judge's discredit- ing of the Respondent's economic defense, noting, as did the judge, that the Respondent not only failed to produce any documentary evidence to support it, but failed to name or present the accountant who purportedly discovered the inventory error which had led him to misstate earnings by 5113,000 for the year. Member Zimmerman notes that, even under the revised earnings figure, the Respondent showed a profit. He also notes that notice of the January layoff extension came within a week of the Union's written claim to be the employees' bargaining representative. Thus, he would affirm the judge's rejection of the Respondent's reasons for extending the layoff beyond 14 January and would adopt the judge's finding that the extension violated Sec. 8 (a)(3) and (1) of the Act. That finding is supported by the timing of the extension, the lack of a credible defense, the union animus shown in Moss' comment to Downs about Lewis' aversion to unionization of the Respondent, and the subsequent unlawful conduct of the Respondent in not recalling employees to avail- able jobs after 25 February 1980, as found infra. 432 MARLAN LEWIS, INC. We find that the General Counsel established un- lawful discrimination toward laid-off employees as of 25 February 1980. On that date the Respondent advertised in the newspaper for assemblers and ma- chine operators rather than recalling laid-off em- ployees to those positions. The Respondent's expla- nation that it wanted employees with machine op- erating experience is belied by the statement in the Respondent's advertisement that "[d]ependability and a willingness to work are more important than experience." Moreover, the credited evidence es- tablishes contemporaneous management statements of intent to discriminate against union supporters in connection with the February job openings.6 Ac- cordingly, we affirm the judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily failing to recall laid-off em- ployees to available jobs on and after 25 February 1980. Finally, we reverse the judge's conclusion that the General Counsel failed to establish that the Re- spondent's refusal to promote employee Carolyn Davis to a lattice machine operator's job violated Section 8(a)(1) and (3) of the Act. As the judge noted, the Respondent knew of Davis' extensive union and concerted activities following her recall from layoff. On 6 October 1980 General Manager Ewell and Plant Production Manager Dcnaldson told Davis that employee Greg McGovern had been selected for the machine operator's job over her. In that same interview Ewell and Donaldson gave Davis both explicit and veiled warnings about her concerted and union activities and laid down an overly broad no-solicitation/no-distribution rule.7 The judge rejected as "incredible" manage- ment's testimony concerning supposed deficiencies in Davis' performance on the lattice machine that allegedly led the Respondent to select McGovern for the lattice machine operator's job over Davis. Nonetheless, the judge found that, because the record was "void of any suggestion that Davis was a better operator than McGovern," no violation was made out despite the "strong suspicion" raised by the prima facie case presented by the General Counsel. ^ We find no basis for overturning the judge's crediting of this evi- dence. The Respondent contends that the judge erroneously found that the statements plant engineer Ghoshi attributed to two management offi- cials were undenied. In our view, neither of the two officials to whom Ghoshi attributed the statements directly denied them. We affirm the judge's conclusion that the no-solicitation/no-distribu- tion rule and warning violated Sec. 8(a)(1) of the Act. Although the judge in his Conclusions of Law found that the warning violated only Sec. 8(aX1) of the Act, earlier in his decision he had found that the warn- ing also violated Sec. 8(aX3). We find it unnecessary to pass on whether the warning also violated Sec. 8(aX3) since the Order would be unaffect- ed in any event. We find, on the contrary, that the General Coun- sel met his burden of establishing unlawful discrim- ination. The General Counsel showed that the Re- spondent had knowledge of and animus toward Davis' concerted activities and her recently re- sumed campaigning for the Union. Further, the General Counsel showed that the Respondent linked the denial of Davis' promotion to her con- certed and union activities by reprimanding her for those activities in the same interview in which it denied her promotion. Since the reasons advanced by the Respondent for denying Davis a promotion to the machine operator's job were discredited, the General Counsel's evidence of unlawful discrimina- tion was left unrebutted.8 Moreover, it was strengthened by the Respondent's proffering of false reasons for its action.9 We therefore find that the Respondent violated Section 8(a)(1) and (3) of the Act by denying Carolyn Davis a promotion to a lattice machine operator's job on and after 6 Oc- tober 1980. AMENDED CONCLUSIONS OF LAW We adopt the judge's Conclusions of Law with the following modifications: Substitute the following for Conclusion of Law 3. "3. By failing, because of its employees' union activities, to recall laid-off employees to available jobs on and after 25 February 1980, until the dates on which they received valid offers of reinstate- ment, the Respondent violated Section 8(a)(3) and (1) of the Act." Insert the following as Conclusion of Law 6 and renumber the succeeding paragraphs accordingly. "6. By denying Carolyn Davis a promotion to a lattice machine operator's job because of her con- certed and union activities, the Respondent violat- ed Section 8(a)(1) and (3) of the Act." Consistent with the above Amended Conclusions of Law, we have also modified the remedial relief recommended by the judge as set forth infra. l' s See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). Cf. NLRB v. Transportation Management Corp, 103 S.Ct. 2469 (1983). 9 See NLRB v Wright Line, 662 F.2d 899, 909 (Ist Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Griggs Equipment, 307 F.2d 275, 278 (5th Cir. 1962). o1 All references to supervisors in the Order and notice have been de- leted in accordance with our decision in Parker-Robb Chevrolet, 262 NLRB 402 (1982). In addition, we have eliminated from the backpay remedy employees terminated before the lawful Christmas layoff on 21 December 1979 and those employees recalled or offered recall before 25 February 1980, the date on which we find the Respondent's discrimina- tion commenced. We defer to subsequent compliance proceedings the question of how many jobs were available for the remaining 17 laid-off employees on and after 25 February 1980 and which of those employees would have been recalled to fill the job openings absent unlawful dis- crimination. 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Marlan Lewis Designs, Division of Marlan Lewis, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Denying reinstatement to laid-off employees because of its employees' union activities. (b) Promulgating overly broad no-solicitation or no-distribution rules. (c) Issuing warnings to employees because they have violated its overly broad no-solicitation or no- distribution rules. (d) Denying promotions to employees because of their concerted and union activities. (e) 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) Expunge from its files any and all records of the warning issued to Carolyn Davis 6 October 1980. (b) Rescind its overly broad no-solicitation and no-distribution rule verbally promulgated 6 Octo- ber 1980. (c) Make whole, with interest, the following named employees for any loss of earnings and other benefits they may have suffered by reason of its failure, for unlawfully discriminatory reasons, to recall them to available jobs on and after 25 Febru- ary 1980 until the dates on which they received valid offers of reinstatement: Debbie Leslie Laird Wright Linda Downs Janice Fromm Darlene Caldwell Adrian Ramos Cheryl Lancaster Carolyn Davis Bobby Haywood Charles Jordan Joe Montgomery Debbie Sexton Phyllis Chavis Vance Blanton Oscar Orreola Cuong Hoang Kent Peterson (d) Offer Carolyn Davis a promotion to a lattice machine operator's job, displacing, if necessary, any employee assigned to a lattice machine opera- tor's job on or after 6 October 1980, and make her whole, with interest, for any loss of earnings and other benefits suffered by reason of the denial to her of a promotion to lattice machine operator on and after 6 October 1980. (e) 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 for determination of the amounts owing under the terms of this Order. (f) Post at its Dallas, Texas place of business copies of the attached notice marked "Appen- dix."" Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found are dismissed. 1 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the UIrited States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." 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- tives 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 WIL L NOT deny reinstatement to laid-off em- ployees because employees have sought to organize and bargain collectively through representation by UBC Texas Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. WE W!I.I NOT promulgate overly broad no-solic- itation or no-distribution rules. 434 MARLAN LEWIS, INC. WE WILL NOT issue warnings pursuant to any overly broad' no-solicitation or no-distribution rules. WE WILL NOT deny promotions to employees be- cause of their union or concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole, with interest, the follow- ing named employees for any loss of earnings and other benefits suffered by reason of our failure to recall them to available jobs for which they were qualified on and after 25 February 1980 until the dates on which they received valid offers of recall. Debbie Leslie Charles Jordan Laird Wright Joe Montgomery Linda Downs Debbie Sexton Janice Fromm Phyllis Chavis Darlene Caldwell Vance Blanton Adrian Ramos Oscar Orreola Cheryl Lancaster Cuong Hoang Carolyn Davis Kent Peterson Bobby Haywood WE WILL offer Carolyn Davis a promotion to a lattice machine operator's job, displacing, if neces- sary, any employee assigned to a lattice machine operator's job on or after 6 October 1980. WE WILL make Carolyn Davis whole, with in- terest, for any loss of earnings and other benefits suffered by reason of the denial to her of a promo- tion to lattice machine operator on and after 6 Oc- tober 1980. WE WILL expunge from our files any and all records of our warning issued to Carolyn Davis on 6 October 1980 pursuant to an overly broad no- solicitation/no-distribution rule. WE WILL rescind our overly broad no- solicitation/no-distribution rule verbally promulgat- ed on 6 October 1980. MARLAN LEWIS DESIGNS, DIVISION OF MARLAN LEWIS, INC. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. A hear- ing on this matter was held before me on December 16 and 17, 1980, on charges filed on March 3 and October 10, 1980,' against Marlan Lewis Designs, Division of All dates herein are between December 1, 1979, and November 1, 1980, unless otherwise specified. Marlan Lewis, Inc., the Respondent, by UBC Texas Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the Union. The complaint alleges the Respondent extended a layoff of employees in violation of Section 8(a)(1) and (3) of the Act and further alleges other acts to have oc- curred by which the Respondent violated Section 8(a)(1) of the Act. The Respondent filed an answer denying the commission of any unfair labor practices. After the close of the hearing the General Counsel and the Respondent filed briefs which have been carefully considered. On the entire record and having taken into account the arguments made at the hearing and the briefs submit- ted, I make the following FINDINGS OF FACT I. JURISDICTION At all times material herein the Respondent has been a Texas corporation maintaining an office and place of business in Dallas, Texas, where it is engaged in the busi- ness of producing decorative wood products. During the 12-month period preceding issuance of the complaint herein, which period is representative, the Respondent in the course and conduct of its business operations pur- chased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Texas. The complaint alleges, the Respondent admits, and I find that the Respondent is and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION STATUS OF THE UNION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Extension of the December 21 Layoff The Respondent is engaged in the manufacture of dec- orative wooden lattice work at a plant in Dallas, Texas. Its founder and chairman of the Board is Marlan Lewis, who invented the machines on which, after sawing, wooden strips are assembled into the lattice work. Assist- ing Lewis in the construction of these machines was plant engineer Fayez Ghoshi. The Respondent's execu- tive vice president is Joe Carlock; its general manager is Jerry Michael EWell; its plant production manager is Holland (Jake) Donaldson; and one foreman is Elliot Moss. It was stipulated at the hearing that Lewis, Car- lock, Ewell, Donaldson, and Moss were supervisors within the meaning of Section 2(11) of the Act at all times material herein. At the time the events of this case arose, the Respond- ent employed approximately 40 employees in classifica- tions of assemblers, lattice machine operators, saw opera- tors, and helpers. There were two organizational at- tempts by the employees. The first one began in Decem- 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 1979 when employee Linda Downs, a lattice ma- chine operator, contacted union representative Al Spring. Spring conducted a meeting, attended by only about three employees, on December 19. Downs, who attended that meeting, testified that the "next day or two" after the meeting she spoke to Fore- man Moss and: I asked Elliot Moss if he would like to sign a union card, and he wasn't sure at first; and he proceeded to tell me that he had heard Marlan state that he would never allow a union in his company. Moss was not called to testify. While Lewis denied making any such statement to Moss, Downs' testimony is undenied and I found it credible. I further conclude that, as alleged, the remark was coercive in nature and, as such, violated Section 8(a)(1) of the Act. Because of reduced retail sales, the Respondent's slack period is around Christmas time. During the Christmas- New Year period the previous year, the Respondent closed the plant for an unpaid vacation period. The Re- spondent did the same for the 1979 Christmas season by notice to employees posted before any of the union ac- tivity began. The notice posted December 13, 1979, states: "Marlan Lewis Designs will discontinue produc- tion from December 24, 1979 through January 1, 1980." The notice, signed by Joseph Carlock, does not describe the shutdown period as a layoff, but that is essentially what it was. On December 21 the Respondent laid off all production and maintenance employees. The General Counsel does not contend that the initial layoff was un- lawful. On December 28 the employees reported to the plant to receive their paychecks covering the last week before the layoff. With each check was attached the following notice: Because of an unsufficient number of orders for our products we will delay the re-opening of our manu- facturing plant following this holiday break. Please report for work on Monday, January 14, 1980. If at all possible we will resume production before this date, so be sure to leave us your current phone number so that we may contact you with new infor- mation. The notice bore the typewritten signatures of Carlock and Lewis. On December 31, the Union, by Al Spring, sent a letter addressed to Carlock claiming to be the majority representative of the Respondent's employees, requesting recognition, and naming Linda Downs and Laird Wright as in-plant employee organizers. On January 4, Spring sent Carlock another letter naming 10 additional employ- ees, including Carolyn Davis and Darlene Caldwell, as employee organizers. On January 7, the Respondent, by its office clerical employees, called the employees on layoff to the plant where they were presented with a written statement which was also essentially read by Lewis. In the first paragraph Lewis states that the Nation was entering a recessionary period. In the second paragraph he states that since the Respondent's products are not necessities purchases were being deferred by consumers and since November the Respondent had accumulated a large in- ventory. In the third paragraph Lewis states that by De- cember it was clear that the Respondent was collecting more of an inventory than it could afford to carry and, though it offered sizable discounts to customers, the goods were still not moved. The fourth paragraph states that the closing of the plant between the Christmas and New Year's holidays was an attempt to reduce the inven- tory and, that the Respondent received insufficient orders to return the employees to work on January 2 and therefore it extended the plant closure until January 14. The fifth paragraph claimed that another survey of cus- tomers had been conducted and only a few customers planned to make orders by the end of February with almost none indicating orders in January. The sixth para- graph claims that it is unlikely that the Respondent will be able to return to its previous level of employment until well into 1980 and that, because "business will not recover until after the recession ends," the Respondent expects to operate the plant with one-fourth the employ- ees it had in late 1979, and: "It is unlikely that we will again reach that number of employees in this plant." The seventh paragraph states: We will retain all the department managers and a few additional employees with the longest service in their department. We have contacted approximately ten persons to return to work immediately. We expect to contact perhaps four or five more during the next two or three weeks if we receive sufficient orders during this period to justify adding to our work force. The eighth paragraph states in part: If you have not been contacted to return to work, your employment by Marlan Lewis Designs is hereby terminated. All benefits previously available to you will also terminate immediately. The letter concludes with an offer to clarify personally the statements contained therein and makes expression of hope that the employees will be able to find new jobs. In no apparent order of seniority, 2 the Respondent re- tained 10 employees to continue production. Between the week ending February 1 and the week ending February 29, the Respondent attempted to recall 16 employees, only 1 of whom accepted, David Marrow, and continued to work regularly thereafter. One employee, Cindy Smith, worked 2 days during that period and quit. On Monday, February 25, the following advertisement appeared in the Dallas Times Herald in the help-wanted section: 2 For example, Downs, Caldwell, and Wright were passed over in favor of junior employees. 436 MARLAN LEWIS, INC. ASSEMBLERS & MACHINE OPERATORS Permanent positions available with wood product manufacturer. Excellent benefits and working con- ditions. Dependability and willingness to work are more important than experience. A production bonus provides excellent salary potential. Garland/Northeast Dallas area. 681-1321. Equal Opportunity Employer. Linda Downs saw the advertisement and recognized the telephone number as that of the Respondent. She credibly testified that she called Lewis and Carlock to seek reemployment, but that her calls were not returned. On February 25 Downs also wrote to Lewis and Car- lock: "I understand that you are going to call back some of your former employees in a few days and I want you to know that I am available for work." On March 3 the charge in Case 16-CA-8997 was filed by the Union. At that point the Respondent began attempts to reinstate laid-off employees. Linda Downs was called to report for work on March 7 and began working on March 10. Downs credibly testi- fied that on the day she reported she was interviewed by Carlock and: Well, he told me that he was going to start calling back some of the employees. He said, however, there were some employees we will not call back. It didn't matter if they put him in jail. He didn't speci- fy who. Fayez Ghoshi testified that about the time the above- quoted newspaper advertisement appeared he ap- proached Carlock and:3 I saw Carlock sitting at the desk and he have a couple order to make and hand lattice. I said,"Oh, good, we need to go call some people to make this hand lattice." So he said, "No, I want to hold this order. I don't want to do anything else and I don't want to call anybody right now to make this orders." Q. Did he say why? A. Because he said he don't want to call the Union people back, and he go find somebody else to do it. Ghoshi further testified that, in reference to Downs and Laird, Carlock also said: "I not going to call these people back, no matter what happens." When asked if Carlock gave a reason Ghoshi testified: Yes. He said, "Because this is the people strong from the Union and these people start the Union and I don't want to take them back." Ghoshi also testified to a conversation with Ewell about the same time. Q. What did Mr. Ewell tell you? 3 The transcript is correct; English is not Ghoshi's native language. A. Mr. Ewell said to me, "If we be calling these people back, we make sure we make them quit too." I said, "How?" He said, "We know. We have a way. We tell the supervisor. We have the supervisor to make him to quit." Ghoshi had been discharged by the Respondent by the time he testified. Carlock, Ewell, and Lewis testified that at the time of his discharge Ghoshi said that Lewis would be sorry for discharging him. From this, the Re- spondent makes the contention that Ghoshi should be discredited because of bias. I disagree. First of all, Ghoshi credibly denied making the remark. However, even if he had, there is no reason to believe that Ghoshi meant other than the fact that he felt that he had ren- dered valuable assistance to the Respondent in construct- ing the lattice machines which are unique. However, more importantly, although Carlock and Ewell testified, neither of them denied the remarks attributed to them by Ghoshi. I found Ghoshi credible in his testimony and find that the remarks attributed to Carlock and Ewell were as related by Ghoshi, with reasonable allowances for the fact that Ghoshi's English was less than perfect. On the basis of the timing of the Respondent's actions, coming as it did immediately after the revelation of the union activity by Downs to Moss, the declaration by Moss that Lewis would never have a union at the plant,4 and the expressions of animus and motivation by Carlock and Ewell as related by Ghoshi,5 I find and conclude that the General Counsel has established a prima facie case that the Respondent extended the layoff of Decem- ber 21 and thereafter delayed the reinstatement of em- ployees because of their organizational activities or the organizational activities of other of the Respondent's em- ployees. The Defense Marlan Lewis testified that in November he took a business trip to visit the Respondent's largest customers and to seek new business. He found that "everyone" was in a "state of shock" and putting off any buying deci- sions because of rising interest rates and tighter credit controls imposed about that time. Because of this cus- tomer attitude, "at the very first of December" Lewis decided that the Respondent "could not continue to build an inventory and we must begin laying off employ- ees." He and Carlock counseled and, since their account- ant, who was not named, had reported $85,000 in earn- ings for the previous 3 months, and $173,400 for the first 11 months of the year, they decided that: . . .we could afford to be generous with our em- ployees since they were earning a significant profit for us, and that since this was the Christmas season I Mountain NMears, 236 NLRB 1481 (1978) b The remarks by Carlock to Ghoshi that the Respondent %was holding orders and did not want to call the employees who had started the Union constitute compelling admissions Marcel Schurman Co, 238 NLRB 1277 (1978); Hurst Performance. Inc. 242 NLRB 121 (1979) 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we would not lay them off early in the year; that perhaps we could get by repeating a technique that we had used earlier, and that was simply closing be- tween Christmas and New Year's, which gave them a chance to take a vacation, and perhaps that would stop our inventory accumulation and perhaps our customers would begin to reorder in January of 1980. During the scheduled layoff the unnamed accountant reported to Carlock and Lewis, according to Lewis: He discovered that he had been making an error in not counting carefully our inventory at the end of each month .... He discovered that his erroneous estimates of our material consumption during this period of time had led him to misstate profits during that period; and he reported to us in late December that he was going to have to make an adjustment of $113,000, a negative adjustment of $113,000 to the earnings that he had reported to us so far. So he re- duced our earnings from $173,000 to approximately $70,000 for the period .... For the entire year. Further, according to Lewis, the Respondent checked with customers "as soon as they would answer the phone after the New Year's holiday" and was told that because interest rates were still climbing nobody was or- dering. Lewis testified that he prepared the letter to em- ployees partially quoted above on January 4, and "then I had decided that we owed the employees an opportunity to hear this from me face-to-face and ask questions. So we scheduled a meeting and I withheld the mailing of that letter and presented it to those who attended the meeting on January 8." Lewis testified that he was able to secure enough cap- ital to resume production by obtaining a $100,000 line of bank credit which was approved on March 31, 1981. From the strength of a verbal commitment to the loan, Lewis testified that he was able to begin recalling em- ployees in late February. Lewis testified that the individuals selected to continue working after January 8 were supervisors and "our most senior employees and they embodied the information and the skill with which to operate the plant and to train others to operate the plant." Lewis also testified that Thang Van Le and Martin Herrera were retained be- cause they were the most "proficient" lattice machine operators. Three other employees were recalled within 2 weeks because of a special need in their department. For example, Ed Buschman was recalled because Supervisor Tim Cloud had more moldings to produce than he could handle by himself. Without a question being posed, Lewis also added that "approximately 12 jobs" in the saw department were eliminated by the installation of new equipment during the shutdown, but he did not specify which employees' jobs had been eliminated. Further, according to Lewis, because of the modernization: We had a surplus of unskilled, untrained individuals with no demonstrated ability to operate the rather complex lattice machines, and I was very skeptical about taking these individuals whom we had hired with no skill requirements whatsoever and placing them on costly complex machinery; and it was my desire that we begin a search for individuals with a background and an experience record which would qualify them for the operation of this complex ma- chinery. We made an effort to try out some of our hand lat- tice machine assemblers on our lattice machines, but that effort has not to date been very successful. Only one out of ten of those individuals has actually succeeded learning the machines with any facility. Lewis was further asked on direct and testified: Q. Now, as a result of your desire to have more highly skilled employees, what transpired next? A. I asked that an advertisement be placed in the newspaper seeking individuals with this machinery- operating background. Then, according to Lewis, he was notified that "a number of dissatisfied individuals" were preparing to file charges and: To the detriment of our subsequent production, we adopted a different philosophy and that is: "Let's take a path which the NLRB is the most likely to recognize, and that is recall by seniority our previ- ous employees, regardless of their ability to run this machinery or not .... " [And] that is what we did. At the point Carlock began recalling all former em- ployees. Some of them accepted, some refused, but the General Counsel does not contend that any of the offers made by Carlock were inadequate offers of recall or re- instatement. Conclusions Once the General Counsel establishes a prima facie case, the burden shifts to the Respondent to go forward with probative evidence to support its claim that it had a legitimate economic reason for its reduction in force;6 merely "a plausible economic explanation" will not do.' the Respondent relies on Lewis' testimony and summa- ry documentation to support its contention that an exten- sion of the December 21 layoff was necessary. The docu- mentation produced by the Respondent shows that in- ventory was at an all-time high at the end of December. However, inventory had been on a precipitous rise since September, and Lewis testified that it was "the first of December" that he realized that inventory was too great. He added that he determined then that a layoff was nec- essary, yet nothing was done about it, save for the not unprecedented holiday shutdown, until after Downs told Moss that a union movement was in progress.8 More evi- st. Regis Paper Co., 247 NLRB 745 (1980). 7 Fabricut, Inc., 238 NLRB 768 (1978). 8 Although Lewis denied knowledge of union activity before Decem- ber 31, I discredit this testimony; the communication by Downs to Super- visor Moss is knowledge chargeable to the Respondent's principals. 438 MARLAN LEWIS, INC. dence that inventory, though high, was not intolerable is the fact that the Respondent retained a cadre of supervi- sors and most"proficient" employees to continue produc- tion, including specifically the most "proficient" of those who operated the lattice machines which produce 90 percent of the Respondent's business according to Lewis' testimony. Respondent relies heavily on the unnamed account- ant's report of not "counting carefully" inventory and the misstating of materials consumption. On this it ad- vances a proposition that its December 28 extension of the layoff to January 14 and the conversion of the tem- porary layoff to a permanent one were based on the dis- covery of the accounting mistakes and a fear of decline of orders. The testimony of Lewis in support of this theory is plainly incredible. While certified public accountants (like brain surgeons and administrative law judges) make mistakes, they do so in ink. If such erroneous accounting activity had been conducted over an I l-month period as Lewis claimed, some record thereof could have been, and would have been, produced. Not only that, the ac- countant would have been produced or, at least, named. I draw one adverse inference from the Respondent's fail- ure to produce any9 documentation of the accounting errors on which it so heavily relies °' and another from its failure to produce the unnamed accountant on whose hearsay report of errors the Respondent so heavily relies' I and I discredit entirely Lewis' testimony that he was presented with evidence of such errors at any time. Nor do I credit Lewis' testimony of fear of failure of orders in the year 1980. None of this testimony was sup- ported and, in fact, according to the Respondent's own exhibits, orders rose precipitously in the December to May period just as they had done the year before. When the Respondent's inventory was essentially de- pleted at the end of February12 it advertised for, and hired, new employees. While Lewis testified that great technical skills were needed to operate the Respondent's machinery, the only qualification listed by the advertise- ment are: "Dependability and a willingness to work [which] are more important than experience." Thus, I discredit Lewis' generalized testimony that the modified machinery required any skill which could not have been taught to the permanently laid-off employees. Therefore, no cogent reason exists for the Respond- ent's originally extending the temporary layoff on De- cember 28, nor its conversion of the temporary layoff to a permanent one, nor the failure and refusal to recall the laid-off employees until after the original charge herein was filed. ' 3 9 The verified audit dated June 30, 1980, is no such evidence. °o Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972); St. Regis Paper Co., supra. iI Fabricut. Inc., supra. 12 In making this finding I draw another adverse inference from the Respondent's leaving blank on its exhibit 26 only the product inventory amount for the critical month of February 1980. Nor can credence be given its graph. R. Exh. 16; that exhibit shows the December insentory to be approximately $75,000 while R Exh. 26 lists that product inventory to be only $56,169.97. The Respondent's graphing techniques are there- fore unreliable. s" See West Side Plymouth. Inc., 170 NLRB 686, 692 (1968). I find that the real reason was that, as Moss told Downs, Lewis intended never to have a union in the Re- spondent's plant, and that, as Carlock told Ghoshi, rein- statement was delayed or denied because those who had been laid off, including specifically Downs and Laird, had started the Union.' 4 Accordingly, I shall recommend that all employees whose December 21 layoffs were extended beyond Janu- ary 4, including specifically those whose recalls were only delayed until January 8, be made whole for the dis- crimination against them.' 5 Those employees are:1 6 Thang Van Le Martin Herrera Debbie Leslie Steve Guidry Laird Wright Helen Bayonne Tony Neubauer Maxine Arthur Theodis Hodge Linda Downs Jerry Bannister Karen McClatchy Richard Cobb Tim Moorehead Janice Fromm Ed Buschman Virginia Russell Kimmy Ross Darlene Caldwell Adrian Ramos Juanita Todd Cindy Smith Richard Arechiga Ruth Radde Manuel Ramirez Cheryl Lancaster Carolyn Davis Roy Velasquez Bobby Haywood David Morrow Charles Jordan Joe Montgomery David Kennedy Debbie Sexton Phylis Chavis Vance Blanton Miguel Manrriquez Oscar Orreola Jimmy Smith Francisco Becerra Cuong Hoang Paul Pyron H. B. Daniel Gustavo Sanchez Kent Peterson Also laid off as a part of the Respondent's design to dis- criminate against employees because of their protected union activities and therefore entitled to be made whole are supervisors Toui Van Tran, Elliot Moss, and Tim Cloud. t' B. Alleged Violations of October 9, 1980 In September 1980 employee Carolyn Davis contacted Spring and suggested that another organizational attempt be made among the Respondent's production and mainte- nance employees. Spring gave Davis several authoriza- tion cards which she distributed among the employees. On breaks, before and after work, in the parking lot, and in the ladies' restroom Davis talked to employees about the Union. On September 9, Davis also solicited Supervi- sor Moss to sign an authorization card. Davis had applied in May for the lattice machine oper- ator's job and served a training period abbreviated by ill- '4 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). '. Lewis' casual reference to the abolishment of "approximately 12 jobs" during the layoff is hardly sufficient to establish the fact. However, if the Respondent can show this to be the case, it will be given the op- portunity to do at the compliance stage of this proceeding. 'i See R. Exh. I 17 Pioneer Drilling Co. 162 NLRB 918 (1967), enfd in relevant part 391 F. 2d 961 (10th Cir 1968). 439 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ness. Also applying for the job were employees Greg McGovern and Greg Halsey. On October 6, Davis was told by her immediate supervisor to report to Donald- son's office where she met with Donaldson and Ewell. According to Davis, Donaldson told her she would not be getting the lattice machine operator's job and that Greg McGovern would. The only reason they gave for the selection was that "I had let the machine run out of glue a couple of times and they felt that McGovern would be a better choice." The glue referred to is that which holds the lattice work together; failure to glue the wood properly results in the wooden sticks jamming the lattice machine resulting in 30 minutes downtime with a resultant interruption of production and possible slight damage to the machine. Davis disagreed with Donald- son's appraisal of the comparative merit of herself and McGovern and stated that she had only let the machine run out of glue once and that McGovern had let it run out more than she. Davis further testified that Donaldson then brought up the subject that: "He did not approve of me appointing myself some sort of grievance committee to take all of the employees' complaints." Davis asked what Donald- son was referring to, and he replied that she had been complaining about being held over in an employee meet- ing 5 minutes after working time ended. Davis disagreed and said that it was actually 20 minutes and she thought that she and the other employees should be paid for that time. Donaldson responded that she might as well get used to it because the Respondent might ask her to stay late again and Davis replied that that would be fine "provided that he paid me for it, because the Labor Board required that he paid me." Donaldson responded that Davis seemed to be "up to date on Labor Board rules and I simply agreed. Further, according to Davis, Donaldson told her "not to concern myself with other employees, only myself." Davis testified that Ewell then started talking and stated that he had received three complaints of her har- assing other employees. She asked for identification of those who had complained and Ewell refused to name the employees. Then,"Jake Donaldson, about that time told me I might as well quit, and I told him that if they had a reason to fire me, then why didn't they, because I had not harassed anyone." Then Ewell said that Davis was being given a verbal warning and Donaldson stated that she was being put on probation. Donaldson told her that one of the reasons she was being put on probation was that she was holding up production and had inter- fered with an employee, Kay Turbeville, whom Davis had held up for 2 minutes. Davis claimed that she was engaging in a work-related conversation and she was helping Turbeville, a new employee, because Supervisor Glenda McMann had not been around at the moment. Donaldson told her that it was not her job to answer questions. Further, according to Davis: "Mike Ewell proceeded to tell me that there were certain things that I was doing on company time and company property that I would not continue to do. If I wanted to do them, I could get out on the street and do them." Davis and Donaldson argued about what was "company time," Davis asserting that lunch and before and after work was definitely her time because the Company did not pay for it. According to Davis, Donaldson agreed with that statement, but stated "that he would not continue to let me get people off to the corner or something like that and talk to them on company property nor continue to harass people." Davis responded that she had not harassed anyone but felt that she was being harassed then. It is undisputed that the Respondent allows employees to sell raffle tickets and solicit for wedding presents and new-baby gifts, and that once the Respondent allowed a candidate for the U.S. Congress to address its employees on working time. Donaldson testified that he and Ewell called Davis in to tell her that they were choosing McGovern over her- self and Halsey for the lattice machine operator job. Davis asked why she was not chosen and Donaldson re- plied that "the position was filled on the basis of merits of the operation and the machinery and their interest and their skills that they developed in the training period, and that [McQovern] was the best qualified, I felt." Davis responded that she thought that she was not given the position because of her union activity and Donaldson and Ewell denied that. Donaldson testified that the con- versation then "diverged into a rather hostile discussion regarding union activities in which I said very little re- garding that particular subject. I did then bring up a point that Carolyn was visiting and talking and conduct- ing-doing other things during work time that I felt was distracting from her efficiency." Davis replied: "If you are not satisfied with my work, why don't you fire me?" To that Donaldson replied that the Respondent did not want to fire her and that she was only getting a verbal reprimand regarding the matters they had just discussed. On direct examination Donaldson was asked what was the basis of the appraisal for Davis' skill, and he replied that at least twice she allowed the machine to run out of glue. On cross-examination Donaldson acknowledged that the "reprimand" had to do with her visits with other employees but denied knowing what the visits were about. Donaldson acknowledged that he and Ewell gave Davis a warning against soliciting for the Union during "working hours." On cross-examination Donaldson was asked what "working hours" were and he testified: "Working hours are any time other than break or lunch hour or quitting time or prior to opening." Ewell testified that the reason Davis was denied the lattice machine operator's job was that: The fact that she didn't fully know how to run the machine. I mean, several major mistakes had been made on the machine where it cost us not only pro- duction, but time as well, not only her time, but the time of Jake's or another employee io come and correct the mistakes that were made on the ma- chines. Q. What types of mistakes were they? A. Mainly the glue system was allowed to be emptied. Q. How many times did that occur? 440 MARLAN LEWIS, INC. A. I heard of two instances where it occurred. Q. Any other problems of operations? A. Learning the electrical end of the machine seemed to be-pushing the wrong button on occa- sions was a problem. Ewell testified that Davis became argumentative and asked why the supervisors did not just fire her and, in effect, challenged them to do so, stating that they could not because of her union activities. Ewell was asked if he made any other observations about Davis' work and he testified that he told Davis that "she's spending far too much time working on ac- tivities other than what she's supposed to be doing as an employee of the Company; mainly talking to other em- ployees, spending time out of her work area and even when she's in the work area, she spends a great deal of time talking to those employees that she's surrounded by." Further, according to Ewell, Davis was told at that time that she was being given a verbal warning for such conduct and "any further activity along this line, that she would find herself put on probation." Donaldson fur- ther acknowledged on cross-examination that he knew Davis was active on behalf of the Union. Ewell testified on cross-examination that there was a discussion about what time of day Davis was on "her own time to do what she wished." According to Ewell: We basically agreed with Carolyn, that breaks and lunch are free times. We reminded her that we do pay her salary during breaks and breaks are intend- ed to make a phone call if you wish or go to the restroom if you wish or sit down or smoke a ciga- rette or something along this line. Lunch period is a non-paying time period and she is virtually free to do as she wishes. She can leave the premises if she wishes and so on and so forth. Ewell testified that part of the warning to Davis was about her conduct "coming back from breaks or possibly lunch on several occasions where Carolyn would either be in the break room talking to someone or coming out of the women's restroom and was delayed often where she was talking to another employee." Conclusions The General Counsel makes several allegations regard- ing the October 6 incident. First, the complaint alleges that Donaldson threatened Davis with discharge by stat- ing that she should quit because the Respondent would find a reason for her termination; second, the complaint alleges that the Respondent in that conversation promul- gated an overly broad no-solicitation and no-distribution rule in violation of Section 8(a)(1). The complaint further alleges that in violation of Section 8(a)(3) the Respond- ent refused to promote Carolyn Davis to the lattice ma- chine operator job and that the Respondent "placed em- ployee Carolyn Davis on probation."' 'i Although Davis' testimony that Ewell and Donaldson instructed her not to concern herself with, and voice the complaints of, other employ- ees, the General Counsel does not allege a violation of Sec. 8(a)(1) based Donaldson admitted knowing that Davis was prounion and had recently solicited Supervisor Moss to sign an au- thorization card. Therefore, it is clear from the total con- text that when Donaldson and Ewell accused Davis of "harassing" other employees they were admonishing her about real or suspected protected activities. While the complaint alleges that at some point during the conversation Davis was told that the Respondent would find a way to discharge her if she did not quit, Davis did not testify to such a statement having been made either by Donaldson or Ewell. Also, I found Don- aldson and Ewell more credible in their testimony that it was Davis who asked why the Respondent did not just fire her, rather than that it was they who suggested that she quit. Accordingly, I shall recommend dismissal of this allegation of the complaint. The only real conflict between Davis, Donaldson, and Ewell regarding the instruction against solicitations, in- cluding union solicitations, is that Davis testified that the supervisors included the paid break periods as time in which solicitations were prohibited. To the extent the ac- counts differ, I found Davis the more credible. However, the above-quoted testimony by Ewell that "breaks are in- tended to make a phone call if you wish or go to the restroom if you wish or sit down or smoke a cigarette or something along this line" demonstrates that the Re- spondent intended that breaks were less free for solicita- tions than the lunch periods. If this was not Ewell's intent in explaining the then promulgated no-solicitation and no-distribution rule, it was the Respondent's duty to clear up any ambiguity even if the rule had been, or was to be, lawfully interpreted and enforced. Solo Cup Co., 144 NLRB 1481 (1963); Ace Machine Co., 249 NLRB 623 (1980). Since the ambiguous verbal rule limitating the employees' statutorily protected union activity conceiv- ably extended beyond working time into the nonworking time of employee breaks, by its promulgation the Re- spondent thereby violated Section 8(a)(1) of the Act. Essex International, 211 NLRB 749, 750 (1974); McBride's of Naylor Road, 229 NLRB 795 (1977). Furthermore, since the warning' 9 given Davis was, in effect, pursuant to the Respondent's invalid rule, the im- position thereof was violative of Section 8(aX1) and (3) of the Act, 20 especially since the Respondent failed to show "with particularity how such conduct interfered with production." Switchcraft., Inc., 241 NLRB 985 (1979). The question regarding the refusal to promote Davis to the lattice machine operator job is more difficult. On the one hand, the evidence of the Respondent's animus in general toward the employees' organizational activities is made clear by the previously discussed unlawful exten- sion of the December 21 layoff. Also, its knowledge of and its animus toward Davis' activities are made clear by on that instruction by the Respondent that Davis not engage in protected concerted activity. "I I found Donaldson and Ewell more credible than Davis in their tes- timony that Davis was warned but not placed on any type of probation. Although the complaint refers only to "probation," the proof is within the ambit of the pleadings. Party Cookies, Inc., 237 NLRB 612 (1978). 20 See Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) her solicitation of Moss; (2) the admission by Donald- son that he knew she had been active on behalf of the Union; (3) the instruction that she should not concern herself with other employees' problems; and (4) the im- posing on her, individually, of an overly broad no-solici- tation rule. Also, the basis of Ewell's criticism of Davis' performance on the machine is questionable. Ewell testi- fied that he "heard" of two occasions when Davis let the machine run out of glue when she had been operating it. However, Davis admitted to letting that happen only once, and Ewell's hearsay testimony establishes that it happened no more times than that one. It is undisputed that all operators, including McGovern, had let the ma- chine run out of glue at least once. Also, when asked on direct examination for other specific deficiencies in Davis' performance, Ewell could no more than general- ize that "pushing the wrong button on occasion was a problem." Ewell appeared to be groping for justification in giving this answer and, in the absence of evidence that any such criticism was ever brought to the attention of Davis, I find Ewell's testimony incredible. Also incredi- ble was the amorphous evaluation of McGovern versus Davis contained in Donaldson's testimony that the selec- tion was based on "the merits of the operation and the machinery and their interest and their skills that they de- veloped in the training period." 21 Taking all of these factors into account, the record is nevertheless void of any suggestion that Davis was a better operator than McGovern. Therefore, while there is a strong suspicion raised by the prima facie case pre- sented by the General Counsel, especially when viewed in light of the unconvincing reasons advanced by Ewell and Donaldson, the General Counsel has failed to prove by a preponderance of the evidence that the selection was, in fact, based on unlawful considerations. Accordingly, I shall recommend that the 8(a)(3) alle- gation of the complaint based on the denial of the lattice machine operator job to Davis be dismissed. C. Other Allegations On the night of October 23, 1980, employees Davis, Vance Blanton, and Darlene Caldwell, all day shift em- ployees, came to the Respondent's premises to solicit night-shift employees while they took their breaks near a mobile vendor's stand in the parking lot. Accompanying these three employees was then former employee Linda Downs, who had resigned in May. Also appearing at the premises that night were Lewis and the Respondent's vice president Carlock. The employees asked Carlock why he and Lewis were there and he replied that he was there to keep out persons who should not be there.2 2 Neither Carlock nor Lewis nor any other supervisor of the Respondent ordered the employees and Downs to 2' Other incredible testimony of Davis' deficiencies was offered by Lewis, who testified that the operation of the lattice machine, which is essentially a rote operation, needed "a logic of the understanding of the machine." 22 Not that it matters ultimately, but I do not credit Carlock's testimo- ny that he and Lewis were there that Monday evening because the Re- spondent had received a threat that the premises would be bombed the preceding weekend. leave the premises or made any other remarks alleged to be coercive by the General Counsel. Having previously resigned, Downs was in the status of a nonemployee organizer. As stated by the Board: "Union representatives and employees who choose to engage in their union activities at the employer's prem- ises should have no cause to complain that management observes them." Milco, Inc., 159 NLRB 812, 814 (1966). Accordingly, I shall recommend that the surveillance al- legation based on this incident be dismissed. Finally,2 3 the General Counsel makes another surveil- lance allegation that on October 23, after employee Cald- well had solicited a union authorization card from an- other employee in the parking lot during lunchtime, Donaldson followed her inside. From this, the General Counsel requests a surveillance finding be made and an order be issued. The General Counsel suggests no way in which Donaldson could have known that Caldwell was soliciting signatures on authorization cards; the General Counsel suggests no way in which Donaldson's conduct could have been coercive. Under these circumstances I shall recommend dismissal of this allegation. On the foregoing findings of fact and conclusions based thereon, and on the record as a whole, I make the following CONCLUSIONS OF LAW 1. The Respondent, Marlan Lewis Designs, Division of Marlan Lewis, Inc., is an employer engaged in com- merce within the meaning of Section 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 extending the December 21, 1979 layoff of the following employees and supervisors, the Respondent has violated Section 8(a)(l) and/or (3) of the Act: Thang Van Le Martin Herrera Debbie Leslie Steve Guidry Laird Wright Helen Bayonne Tony Neubauer Maxine Arthur Theodis Hodge Linda Downs Jerry Bannister Karen McClatchy Richard Cobb Tim Moorehead Janice Fromm Toui Van Tran Ed Buschman Virginia Russell Kimmy Ross Darlene Caldwell Ruth Radde Manuel Ramirez Cheryl Lancaster Carolyn Davis Roy Velasquez Bobby Haywood David Morrow Elliot Moss Charles Jordan Joe Montgomery David Kennedy Debbie Sexton Phylis Chavis Vance Blanton Miguel Manrriquez Oscar Orreola Jimmy Smith Francisco Becerra Cuong Hoang Paul Pyron 23 As issued, the complaint alleges that on September 23 the Respond- ent refused a transfer request of employee Vance Blanton. In his brief the General Counsel moves for the dismissal of said allegation. The motion is granted. 442 MARLAN LEWIS, INC. Adrian Ramos H. B. Daniel Juanita Todd Gustavo Sanchez Cindy Smith Kent Peterson Richard Arechiga Tim Cloud 4. By imposing upon its employees an overly broad no-solicitation and no-distribution rule, the Respondent has violated Section 8(a)(1) of the Act. 5. By issuing a warning to employee Carolyn Davis pursuant to an overly broad no-solicitation and no-distri- bution rule, the Respondent has violated Section 8(a)(1) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 7. The General Counsel has proved no other allega- tions of the complaint. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that the Respond- ent be ordered to cease and desist from engaging in such unfair labor practices. I shall also recommend to the Board that the Respondent be required to take certain af- firmative action in order to effectuate the policies of the Act. Such affirmative action will include the payment of backpay to all employees and supervisors named in para- graph 3 of the Conclusions of Law above. Backpay is to be computed on a quarterly basis in the manner pre- scribed by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as established by the Board in Florida Steel Corp., 231 NLRB 651 (1977) (see generally Isis Plumbing Co., 138 NLRB 716 (1962)). [Recommended Order omitted from publication.] 443