Tylertown Wood Products

TYrLERTOWN WOOD PRODUCTS 515 Tylertown Wood Products and United Furniture Workers of America, AFL-CIO, Local 282. Case 15-CA-7153 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On April 21, 1980, Administrative Law Judge Bruce C. Nasdor issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is dismissed in its entirety. I In its exceptions the General Counsel argues, and we agree, that the Union was entitled to be notified of the layoffs and that Respondent was obligated to bargain over the effects of the layoffs. However, in agree- ment with the Administrative Law Judge, we find that in this case the Union had actual notice of the layoffs and that Respondent in fact did bargain over the effects of the layoffs. DECISION STATEMENT OF THE CASE BRUCE C. NASDOR, Administrative Law Judge: This case was heard in Tylertown, Mississippi, on June 18-20, 1979. The charge and amended charge against Respond- ent were filed by the Union on December 21, 1978, and February 5, 1979, respectively. The complaint alleges in- dependent violations of Section 8(a)(1) and a refusal to bargain in violation of Section 8(a)(5) of the National Labor Relations Act, as amended (herein called the Act). Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of briefs, I make the following: 251 NLRB No. 48 FINIINGS OF FACT i. JURISD)ICTION Respondent is a division of New Orleans Furniture Manufacturing Co., a Louisiana corporation, engaged in the manufacture of furniture parts at its furniture dimen- sion plant in Tylertown, Mississippi. During the preced- ing 12-months, a period representative of all times mate- rial herein, Respondent in the course and conduct of its business operations purchased and received goods and materials valued in excess of $50,000, directly from points located outside the State of Mississippi, and sold and shipped goods valued in excess of $50,000, directly to points outside the State of Mississippi. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE lABOR ORGANIZATION United Furniture Workers of America, AFL-CIO, Local 282 (herein called the Union) is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues I. Whether Respondent, by its vice president, D. F. Walker, interrogated, threatened, or coerced employees in violation of Section 8(a)(1) of the Act. 2. Whether Reverend Casey Holmes, Jr., was an agent of Respondent, and if so, did he engage in violations of Section 8(a)(1) of the Act. 3. Did Respondent unilaterally lay off employees and thereafter fail and refuse to bargain with the Union con- cerning the layoffs in violation of Section 8(a)(1) and (5) of the Act. 4. The appropriate remedy if a violation is found. B. The Facts Tylertown Wood Products is a division of New Or- leans Furniture Manufacturing Company. Another divi- sion, Oklahoma Furniture Manufacturing Company, has a contract with United Furniture Workers of America, AFL-CIO, covering its production and maintenance em- ployees. On August 25, 1978,' an election was conducted among the production and maintenance2 employees of Respondent at its Tylertown Wood Products plant in Case 15-RC-6322. A majority of the valid votes was cast for the Union, and on September 5, it was certified as the collective-bargaining representative. During the Union's organizational campaign, the unit consisted of approximately 100 employees. I All dates are in 1978. unless otherwise indicated 2 The appropriate unit is: All full-time and regular part-time production and maintenance em- ployees, including leadermen. production clerks, the draftsmen and the quality control employees employed by Respondent at its Tyler- town, Mississippi. location, ecluding all office clerical employees, fire launchers. guards and supervisors as defined in the Act. T'LERTOWN WOOD PRODUCTS 515 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edna Rose Wilson, a production clerk, was called by counsel for the General Counsel as a witness to testify with respect to paragraphs 7(a) through (e) of the com- plaint. She testified that approximately 3 days prior to the election, D. F. Walker, vice president of Respondent, called her into a plant conference room between 9:30 and 10 a.m. and asked her to identify the employees re- sponsible for initiating and supporting the Union. Ac- cording to Wilson he told her that he had been advised she was one of the union leaders. Wilson denied being a leader in the union campaign and Walker allegedly asked her to identify the union supporters. She testified that Walker told her he would not fire any employees for being involved with the Union, but simply wanted to know their names so that he might have an opportunity to talk with them. Walker allegedly stated that if the Union was voted in, the plant would be closed, and if Wilson ever repeated the conversation he would call her a liar. Wilson testified that on four or five occasions during the latter part of July through the first of August, em- ployees handed out leaflets announcing union meetings. According to Wilson, on the days following the distribu- tions Walker asked her what was said at the union meet- ings. Wilson testified that she admitted attending these meetings, but refused to provide information as to what was said except she told Walker that the employees agreed to stick together and not be persuaded to change their minds or, "to let Mr. Walker turn us around." Walker testified recalling two occasions when he talked to Edna Rose Wilson about the Union. According to Walker, some time during the first week of August, he learned from an office employee that Wilson had re- ceived a black eye from her husband because she refused to attend a union meeting. He heard that she had come to work and had fainted that morning, and an ambulance was called to come and get her. Thus she was not at the plant that morning for any length of time. Walker testi- fied that the next day Wilson came to work and he took her into the conference room and closed the door and asked her what happened. She confirmed what Walker had learned the day before and according to him, he stated to her that it was not worth getting beat up over. If her husband wanted her to go to the union meeting she should go to the union meeting. He stated further to her when the time comes to vote, nobody is going to know how you vote. You vote the way you want to, but do not let anybody beat you up for, or against, going. According to Walker, Wilson stated that she appreciated it and would do it. Walker testified that the second conversation occurred a week or 10 days after the conversation set forth above. According to Walker he was told by the same office em- ployee, Sue Carter, that Wilson wanted to talk with him about the Union. Walker testified that Wilson asked him why he was opposed to the Union, and Walker replied that he was not opposed to the Union as such, but was opposed to the division that it caused between employees and management. She then asked what would happen if the Union won the election. Walker replied that after the election was held if the Union wins there would be a certification by the Labor Board and after that, a union representative would get in touch with management rep- resentatives and they would sit down and start negotiat- ing a contract. Walker testified further that on 7, 8, or maybe even 10 occasions, he had heard rumors from em- ployees that some of them had been told that if the Union won the plant would be closed. Walker avers that on each occasion he would tell the employees that there was not a word of truth to that, neither he, nor Leather- man, president of the Company, could make that deci- sion. Regardless of whether they wanted to close or not would not be left up to them, but rather it was a board of directors' decision. Walker specifically denied Wil- son's testimony regarding threats and interrogation. Wilson and employee Daisy Owens testified that Wilson received a black eye after the election and it had nothing to do with her refusal to attend a union meeting. Daisy Owens testified that on August 22 or 23, Odell Lee, a foreman, approached her and said that she was wanted in the front office. She left her machine and met Walker in the front office where he introduced her to Reverend Casey Holmes, Jr., and Walker immediately left the office. According to Owens, Holmes stated that he had known Walker for a long time and understood that a union campaign was in progress and an election was fast approaching. Holmes stated that Walker told him that Daisy Owens was one of the union leaders and asked him to discover why they wanted the Union. Owens testified that Holmes further stated that Walker and Leatherman were christian hearted people and if given a chance would correct all the injustices suffered by employees which would remove any need for a union. Employee Sedonia Slocum testified that about a week or a week and a half before the election she was called into the office by her supervisor, Odell Lee. She testified that when she went to the office she met Cliff Arinder, former plant manager. Arinder in the presence of Walker introduced her to Reverend Casey Holmes, Jr., a baptist minister. Arinder allegedly stated, "this is Sedonia, what- ever she tells you, you can put your foot on it, because he is a straight going person." Then Arinder and Walker left the office. Holmes allegedly stated that he and Walker had been friends for a long time, and asked Slocum if she would not be better off without a union. Holmes, according to Slocum, promised that Walker would correct the problems at the plant if employees would give him another chance by voting against the Union. Holmes allegedly said that all the employees had to do to correct their problem was to go to the front office and call Walker at his office in Columbia, Missis- sippi. Slocum testified that she replied that employees had done that before without success and if the Union came in the plant, their problems could be resolved. On August 23, Willie Rudd, International vice presi- dent of the Union, arranged to meet Holmes at his church in Columbia, Mississippi. That evening Rudd ac- companied by Robert Span, International representative and employees Daisy Owens, Sedonia Slocum, Bobbie Dilon, and Anthony Dillon went to the church. Rudd testified that at the meeting he initially began, by asking Holmes what his role was in the union campaign. TYLERTOWN WOOD PRODUCTS 517 Holmes allegedly stated that he was merely a concerned citizen and minister who had a right to know how the employees felt about the Union. Rudd replied that Holmes' concern was suspect, having come only a few days before the election, and he asked Holmes if Walker or Leatherman paid him to sell out the employees. Holmes denied being on Respondent's payroll but ad- mitted receiving a financial contribution from Walker and Leatherman for his church. Rudd asked Holmes what purpose would they have for making a financial contribution to his church and Holmes responded that they were just friends of his. Rudd asked Holmes how he became involved with the campaign and Holmes re- sponded that Walker had called him and told him he had a problem in the plant and asked for his assistance in communicating with black employees about the Union. Holmes asked if Rudd was proposing a checkoff in the contract and Rudd responded that he probably would. Then Holmes countered with, suppose the Company will not give it. Rudd answered that they would cross that bridge when they came to it. Holmes asked what would happen if Rudd called the people out on strike, who was going to take care of them? Rudd told Holmes that the Union does not call people out on a strike, rather, in the event of a strike the people vote for it by secret ballot. It would be their decision, and furthermore, if there was a strike, the Union would support the employees financial- ly. Holmes allegedly also asked during the conversation who was going to take care of the people when the plant closes down. Rudd responded, who said the plant was going to close. Holmes allegedly repeated that if it were to close who would take care of the people. Rudd told Holmes that he had apparently been reading too much of the Company's propaganda, because that is one of the oldest tricks in an organizing campaign, and one of the first threats made, that if the Union came in the plant would close down. In his experience and years of orga- nizing he, Rudd, had never seen that happen. Rudd told Holmes that he should be at the plant trying to help the people, rather than doing what he was doing, because its been his belief and teaching, that the duty of a minister was to try to help people rather than to harm them. Holmes told Rudd he was not going to sit there and listen to anymore of his insults and as far a he was con- cerned the meeting was over. Rudd testified he apolo- gized to Holmes and told him he was sorry if he had in- sulted him. Rudd testified that before the outburst they discussed the dinner to be held at Mae's Restaurant and he asked Holmes who was paying for the dinner, to which Holmes responded he was. Rudd said if that is the case, the dinner was his idea and Holmes was paying for it, he would appreciate an invitation. Rudd also asked him if any of the company officials were going to be at the dinner and he said no, that the dinner was only for the employees. Rudd asked him what the purpose of the dinner was, and Holmes allegedly responded, to chat, so he could find out how the employees felt about the Union. Rudd told Holmes that by now he should know how the employees felt about the Union because he talked to some of the leaders and supporters. He stated further that they would not be having an election Friday, if the majority of the people had not signed au- thorization cards for union representation. Rudd repeated that he would appreciate an invitation to the dinner and Holmes stated that he did not think that would be possi- ble, but he would check and let Rudd know. Holmes stated there were some other concerned citizens in- volved in the dinner, but he could not tell Rudd who they were. The meeting ended with Holmes advising Rudd that he would call him the following day and let him know whether or not he was invited to the dinner, but Rudd never received a call. On the following day Rudd went to the restaurant to attend the dinner and as he was serving himself, Day, personnel director, told Rudd he could not attend the dinner or speech. Rudd therefore left the premises. Walker testified that he had known Reverend Holmes for 12 to 15 years when Holmes was in Columbia, Mis- sissippi. Holmes subsequently moved to Atlanta, Geor- gia. Walker admitted making contributions to the church, the first in the summer of 1977. Moreover, since around 1967, the Company at Christmastime mails donations to 12 or 15 Baptist churches. They donate to the Marion County Baptist Association. Walker testified that he was contacted by telephone by a Richard Price, an insurance agent in Columbia. Price wanted to know if it would be possible for Reverend Holmes to talk to the employees at Tylertown. Walker told him he was not sure, but he felt that some arrangements could be made. On the following day Walker advised Price that if Holmes talked to the employees as a concerned citizen on his own, with the Company being left totally out of it, he did not see a thing wrong with it. According to Walker, Holmes had been very active in the civil rights movement, and was well respected in both the black and white community. Walker talked directly to Holmes, and Holmes wanted to know whether he could come over to the plant and talk to the employees. Walker advised him that there was no way that he could do that. Holmes then asked Walker whether there was an employee at the plant that he could talk to, to get some feeling of what is going on. Walker advised Holmes that he was sure he knew some- one that he could introduce him to, and when Holmes came to the plant Walker introduced him to Daisy Owens. According to Walker, he learned from several people that Owens was well respected and a leader in the community. Walker testified that he did not intro- duce Reverend Holmes to any other employee at any time. He qualified this comment to the extent that when Holmes came to the office he introduced him to some management individuals and clericals. Walker testified that he learned about the dinner at Mae's Restaurant from Price, and that Price paid for the dinner. He testified further that he instructed Day and Odell Lee, a supervisor, to be at the meeting to identify company employees, because as a result of the meeting with Holmes the day before, Holmes was concerned that there would be heckling or disruptions at the meeting. Day and Lee were to make sure that the only people at the dinner were employed by the Company, and then they were to leave. TLERTOWN WOOD PROI)UCTS 517 518 DECISIONS OF NATIONAL LA1()OR RELATIONS BOARD Walker denied that he and Letterman instructed Carter to make arrangements for the dinner, in the pres- ence of Wilson. Wilson testified that Holmes came to the plant on the Friday preceding the election. That would make the date August 18. He also testified that Arinder's last day worked at the Company was July 26. Edna Rose Wilson testified that Arinder resigned around the middle or last part of June. The Layoffs and Bargaining In 1973, a buss planer was installed to perform the planing on the rough lumber in the mill. There were re- peated bearing failures causing excessive wear due to heat, vibration, and locked bearings. In addition, during August, the cutter head shaft was broken or cracked, and a new part had to be welded in place. Suffice it to say, that the planer, continually malfunctioning, was a continuous and constant problem for Respondent. On August 23, the level of vibration and noise reached the point where an examination was necessary which re- vealed that welds had broken loose and bearings had again worn out. A new set of bearings was ordered and other repairs were made. On August 23, the planer was put back into operation, but the vibration continued to be excessive and to increase over the next couple of days. Finally, the vibration reached such a level that management felt it was a hazard to employees, in that there was a possibility welds could break, and at 5,000 revolutions per minute if the cutter head broke loose and flew off, it could harm or kill employees in the area. Thus, the planer became inoperative and the work which was to be processed through the rough mill could not be performed. On August 30, when the planer was shut down, Re- spondent sent certain employees home because it did not have any work for them. Respondent expected it would be able to resume production, and the employees were instructed to report back on a certain day. The testimony and documentation reveal immediate efforts on the part of Respondent to locate a used planer which could be put into operation immediately, and production resumed. Furthermore, Respondent solicited quotations for a new planer and its efforts in this regard continued. Charles Harrison, who was Respondent's sales manager at the time, testified that based on figures provided by Buss Automation of Lenore, North Carolina, the cost of a new planer reached between $235,000 and $240,000. The new material handling equipment necessary to utilize it would run approximately $86,000. Moreover, this new equipment would require an additional 6,000 square feet of floor space necessitating a new building which would be approximately $45,000. Approximately $12,000 to $15,000 would be required for installation and to connect the equipment to various electrical air and dust collec- tion systems. Walker testified that Respondent did not initially con- sider sending employees home on August 30 to be a layoff as such. It is undisputed that hardly a week went by that there was not some delay or problem with the planer. Walker was the individual who instructed Harri- son to tell the people to go home, and he told Harrison to get the maintenance department to see what could be done. He assumed that the planer could be repaired, as in the past, and he gave instructions that the employees should come back to work on Tuesday of the following week. Respondent was faced with the fact that approxi- mately 2,000 individuals at the various furniture compa- nies would be affected if deliveries could not be effectu- ated by Respondent. Moreover, it is in the fall of the year when the furniture industry is at its peak. Accord- ing to Walker, that afternoon the Company attempted to locate kiln dried plain lumber which it could utilize during the emergency period of shutdown in order to maintain its operations. The lumber was not available. On August 29, Rudd sent a letter to Respondent re- questing bargaining and seeking data. On September 5, Respondent answered this letter, furnishing the informa- tion sought by Rudd. Respondent offered to meet with the Union at any time during the week of September II, reserving the option to change this until a definite date was agreed upon. Rudd testified he first learned about the layoff from Daisy Owens, an employee who is president of the local, when she telephoned him on August 30. On September 1, Owens again called Rudd and told him that the re- porting date had been changed from September 5 to Sep- tember 11. Thereafter, there was a -day layoff of rough mill employees on August 30, a 2-day layoff on August 31, a 4-day layoff on September 1, followed by the an- nouncement of an indefinite or permanent layoff on Sep- tember 8. On September 12, Rudd called Walker to set up a date, time, and place to begin negotiations. The date of September 20 was agreed on. Rudd then told Walker that he had been informed of the layoff of some of the employees, and that he wanted to know why. Rudd testi- fied that he was informed that the planer had broken down in the rough mill, that the Company was working on it, and they would have it repaired as soon as possible and the employees could go back to work. Walker told Rudd in this conversation that Respondent did not know when the employees would be recalled because Respond- ent at that time did not know whether it could repair the present planer or procure a new one. Rudd testified that he told Walker he hoped that Walker's taking so long to reopen the plant had nothing to do with the outcome of the election, and Walker responded that it did not. On September 14, Rudd sent a letter to Walker requesting immediate bargaining with reference to the plant closing and laying off of the employees. Rudd advised Walker that the Union considers the layoff to be an unfair labor practice. The letter was received by Respondent on Sep- tember 18. At the first meeting Rudd renewed his request which he had made in the August 29 letter for certain bargain- ing unit information. Walker responded that he had mailed the information. Representing the Union at these negotiations was Rudd and an employee negotiation committee consisting of Daisy Owens, Edna Rose Wilson, Eddie Magee, Sonny Magee, Suelon Rowell, and Helen Holmes. Respondent was represented by Walker, Day, and Shirley Burkett, Walker's secretary. - - __ - ___ __ -- - ___ ------ ------- - TY1.FRT0()UWN WOOD PRODUCTSCT 519 Walker brought up the September 14 letter stating that the Union's unfair labor practice accusations were not true since the machine broke down and it was beyond Respondent's control. Walker stated that there was no al- ternative on August 30, other than to keep employees at the plant without any work for them to do. Further- more, Respondent investigated to see if the planer could be repaired and whether there was any work in inven- tory or overstock. The overstock had been used up in the previous week, and when the planer broke down the maintenance people checked and determined that it could not be repaired. Rudd requested additional infor- mation relating to hospitalization insurance, and Walker gave the premium cost with the amount contributed by Respondent and the employee. Rudd asked what had been done to repair the planer and Walker responded that they were still working on it but to complete repairs would cost about $18,000 and could take up to 6 months. Rudd's testimony and Respondent's minutes reflect that Walker made reference to Rudd's September 14 letter, and Walker gave a report of the reasons for the layoffs, the estimated cost of the replaced planer and a general discussion of efforts on behalf of the Respondent to locate a used planer. Rudd and other committee mem- bers asked if the layoffs were by seniority or by depart- ment and Walker responded that the layoffs had been by departments. Rudd commented that he understood that some people on layoffs had more seniority than those working, and Walker replied that Respondent considered layoffs by department to be the only fair way. He point- ed out that it would be impractical to train employees in one department to work in another department for a week. Rudd asked if Respondent would continue to op- erate as much of the plant as it was able, and was told that it would. Walker explained the problems of main- taining insurance for employees who might find other jobs, in response to Rudd's question as to whether Re- spondent would maintain insurance coverage. Walker stated that if layoffs were extensive, he would recall senior employees and layoff junior employees. Walker agreed to make a public statement dispelling the rumor that the layoffs had anything to do with the Union. Rudd asked if Respondent would continue paying insur- ance premiums for laid off employees, and Walker stated that he did not know if any wanted to return but he would investigate the matter and let Rudd know Re- spondent's position at the next meeting. Rudd acknowl- edged that he knew that the work in the plant would gradually run out unless the Company got a new planer or new orders. The parties did agree to the method of recall from layoff in the contract which was eventually consummated. The latter part of this first meeting was spent discussing the Union's contract proposals. Initially, Walker had suggested in response to Rudd's demand that instead of volunteering the statement to dis- pell any rumors that plant closure might have to do with union activity, employees should call Walker. The Union pressed the issue that Walker should volunteer it to a newspaper or radio station and finally Walker agreed. When contacted by the newspaper, Walker stated that the plant would be reopened when a new planer was procured, and that the plant had not been closed because of the Union. The second negotiation session was held on September 27. Rudd began the meeting by asking if any progress had been made in repairing the planer and recalling the laid-off employees. Walker advised Rudd that the present planer could not be put back into operation because of the expenses, and there was also the problem of whether or not OSHA would approve the utilization of the pres- ent planer. Therefore Respondent has decided to replace the planer. Walker stated that he had compiled a list of laid off employees and he would see what could be done about recalling these employees. Rudd wanted to know about the status of hospitalization insurance coverage for laid-off employees and Walker responded they were cov- ered as long as the premium was paid and that employ- ees often continued paying the premium when they are on leave of absence. Walker did not know whether or not there were any provisions for the payment of premi- ums in the event of the layoffs. There was further discus- sion as to whether layoffs would be on a departmental or plantwide seniority basis. At the third meeting on October 5, Rudd inquired of Walker as to any progress in repairing or replacing the planer. Walker told him that no progress had been made, but Respondent was continuing to search for a planer pursuant to Rudd's request, and would provide a list of companies that had been contacted in Respondent's search for a new planer. Rudd inquired as to whether Respondent had recalled any employees, and Walker re- sponded no one had been recalled and that by October 10, the Company expected to be caught up with every- thing. Inasmuch as there were no new orders, the plant would be completely shut down. Rudd asked that Respondent put the Tylertown em- ployees to work at its nearby furniture plant in Colum- bia, Mississippi. Walker agreed to do this as jobs became available. Then discussion ensued with respect to the turnover rate at Columbia, and how long the hiring process might take. Rudd requested that Respondent notify the laid off Tylertown employees about the avail- ability of jobs in Columbia, but Walker took the position that the notification should be done by the Union's nego- tiation committee. Some days after this third session, Walker sent Rudd a list of companies that had been con- tacted with respect to a new planer. On the following day after the third session, Respond- ent laid off nine employees in shipping, the machine room, and finish room. At the fourth bargaining session on October 16, Rudd inquired again about Respondent's progress in replacing the planer. Walker responded that a planer had not been found, but that Respondent was continuing the search. By this time most of the employees had been laid off and a committee member asked how much longer people would be working in the plant. Walker told her it would be approximately I week, except for one order which would run for a longer period. Rudd inquired as to whether anyone from Tylertown had applied for work at Columbia. Walker told him no, and explained that 20 people had been laid off in the upholstery department at TRTWN WOOD PRODUCTS 519 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia, and the Company was trying to place them, so there are no openings. Any future openings would be filled with the laid-off employees at Columbia. At the fifth meeting on October 27, Rudd asked what progress had been made with respect to reopening the plant, and Walker responded that Respondent still had not located a planer but was hopeful of purchasing one in Indiana. Rudd again asked about health insurance cov- erage for laid-off employees. Walker stated that letters had been sent out informing employees how far behind the insurance payments were, how much was due, and when to come to the office to make payments. Walker agreed with Rudd, that people would be covered up to a certain period of time. Rudd asked why Respondent would not pay the premiums and Walker replied that he did not know which employees had taken other jobs. Walker stated that so far, only 10 people had shown a desire to remain covered by the health insurance, by showing up in response to a prior letter. Rudd asked why Respondent had not hired some of the laid-off em- ployees in Columbia, and Walker told him that only two had applied, and the Company still had employees from the upholstery department in Columbia who had not been placed. Between the fifth and sixth session, on November 3, Respondent laid off an additional nine employees. At the sixth session on November 6, Rudd asked Walker his position with respect to payment of health in- surance premiums for the employees. Walker responded that Respondent would not make these payments, if em- ployees wanted coverage, they would either have to mail in their payment or come to the plant and make their payments. At the meetings of December 4, 5, and 11, the discus- sions centered around contract negotiations. On January 5, 1979, Respondent laid off six employees who were the last ones working at the plant. The 10th bargaining session was held on February 16, 1979. The parties discussed the complaint which is the subject of this decision and Rudd asked Kullman, Respondent's at- torney, who was in attendance at this session, what Re- spondent was going to do with respect to reopening the plant. Kullman responded that Respondent was still look- ing for a new planer, but had been unsuccessful thus far. The parties continued to engage in contract negotiations. After the 10th negotiation session, during March 1979, Rudd and Walker were in contact by mail and telephone. Essentially, Respondent communicated to the Union that unless the contract was agreed to in the near future, the Tylertown facility might permanently close, because of the uncertainty of labor costs. Rudd proposed resump- tion of negotiations, and a meeting was held on April 6, 1979. At this, the 11th meeting, Walker informed Rudd that if a contract was agreed to he would recommend to the board of directors that a planer be purchased and the plant reopened, with a target date of July 1, 1979. Rudd questioned Walker's authority and effectiveness in making recommendations, and Walker replied that in 25 years he had never had a recommendation rejected. At the 12th and final negotiation session on April 16, the parties reached accord and signed a contract based on the Union's Oklahoma agreement. This 2-year con- tract does not contain checkoff which the Union had consistently sought throughout the negotiations. CONCLUSIONS AND) ANAI YSIS I view the testimony of Edna Rose Wilson as fabricat- ed, and not worthy of belief. As the weaknesses in her story were gradually brought to light on cross-examina- tion, she became increasingly hostile, left the witness stand, menacingly approached counsel for Respondent, and lapsed into irrationality and incoherence. After being told repeatedly by me and counsel for the General Coun- sel to retake the stand, I finally threatened to strike all of her testimony. At that point, she took the stand. It should be pointed out that counsel for Respondent cross- examined her courteously and in a well modulated tone, he was not argumentative, nor did he in any way pro- voke such an outburst. D. F. Walker appeared to me as a truthful and reliable witness. He was careful to be accurate and credibly ex- plained the context and reasons for any conversations he had with Edna Rose Wilson about the Union. Accord- ingly, I fully credit Walker's testimony and specifically discredit Wilson's testimony. I therefore recommend that the allegations that Walker interrogated, threatened, or coerced employees be dismissed. 3 I believe that Walker testified honestly with respect to his and Respondent's relationship with Reverend Casey Holmes, Jr. I specifically discredit the testimony of Se- donia Slocum. Her testimony conflicts with Walker's and, as stated earlier, I found Walker to be a credible witness. Moreover, Slocum was evasive on cross-exami- nation and her testimony that the plant manager, Cliff Arinder, introduced her to Holmes, a week or a week and a half before the election is, in my opinion, a fabrica- tion. The facts reveal that Holmes came to the plant on the Friday preceding the election, and Arinder left Re- spondent's employ at least 3 weeks prior to the incident alleged in Slocum's testimony. Holmes did not testify, and although the testimony by Slocum and Daisy Owens is hearsay, I can accept it, but not for the truth or falsity of the statements attributed to Holmes. If Holmes is an agent of Respondent then some of the statements attributed to him during the conversa- tion with Daisy Owens, and during the meeting at the church in Columbia, Mississippi, would be violative of Section 8(a)(l) of the Act. In my view the evidence does not support the proposition that Holmes was an agent for Respondent. I view the credible evidence as reflecting that Holmes came to the plant on one occasion, and was introduced to one employee. It was Rudd, the Union's vice president, who arranged the meeting with Holmes at his church. No evidence whatsoever was adduced with respect to Holmes' address, if there was any, at Mae's Restaurant. In my view Holmes was not placed in a position to be identified with management in the eyes of the employees, and to translate to them the policies and desires of management. This language is used by the : Out of a complement of 100 employees, only Wilson testified that Walker engaged in violations of Sec. 8(a)(l) of the Act. TYILERTOWN WOOD PRODUCTS 521 Board in The Huntington Hospital. Inc., 227 NLRB 316 (1976). 4 Accordingly. I will recommend dismissal of those allegations relating to the Reverend Casey Holmes. Jr. The record clearly demonstrates that the failure of the planer made the plant inoperable, leading inevitably to the layoffs. Respondent could not have anticipated that on August 30. the planer would prove to be inoperable as a result of malfunctions on several days prior thereto. Thus, how could Respondent inform the Union it antici- pated laying off employees? It is beyond dispute that at the third negotiation session on October 5 Respondent made it very clear that by October 10 it expected to be caught up in its orders, it had no new orders, therefore it would have to close completely and lay off the remain- der of the employees. As the evidence discloses, Respondent laid off employ- ees incrementally. It would be ridiculous to expect Re- spondent to telephone or write the Union each and every time throughout this period, on every occasion when three employees or five employees were laid off. The parties were in contact throughout the period of the lay- offs, and met on 12 occasions to discuss the affects of the layoffs on these employees,5 and to negotiate a collec- tive-bargaining agreement. I am convinced by all of the evidence that Respondent engaged in good-faith bargain- ing from the beginning,6 and eventually entered into a collective-bargaining agreement with the Union. A review of the bargaining sessions clearly discloses give and take on both sides with respect to the contract itself, ' Cf. Montgomery Ward & Co.,. Incorporated, 228 NLRB 750 (1977) t Indeed Respondent compiled and mailed information to the Union even prior to receipt of the Union's official certification T riplex Oil Refining Division of Pentalic Corporation, 194 NLRB 500 (1971}. and a great deal of discussion as to the employees in layoff status. Moreover, the Company gave in to many of the union demands with the exception of continuing the payment of insurance for laid-off employees and checkoff. When the Union requested data and had ques- tions, Respondent complied in a timely manner. The Re- spondent also made a statement to the newspaper as to the basis for the layoff, so as to dispell any rumors link- ing same to union activity or the election results. I will therefore recommend that the 8(a)(5) allegation in the complaint be dismissed. CONCI USIONS OF LAW 1. Respondent is engaged in commerce 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. The allegations of the complaint that Respondent has engaged in conduct violative of Section 8(a)(l) and (5) of the Act have not been supported by substantial evidence. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 7 It is recommended that the complaint herein be, and it hereby is, dismissed in its entirety. 7 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Hoard, the find- ings, conclusions, and recommended Order herein shall, as pros vided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived fr all purposes TLERTOWN WOOD PRODUCTS 521