Battle Creek Steel Fabricating Co., Inc.

National Labor Relations Board - Board DecisionsFeb 16, 1968

169 N.L.R.B. 884 (N.L.R.B. 1968)

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Battle Creek Steel Fabricating Company, Inc. and Shopmen's Local Union No. 688 , International As- sociation of Bridge , Structural and Ornamental Iron Workers , AFL-CIO. Case 7-CA-588 February 16, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On September 5, 1967, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, to which the General Counsel filed an answering brief. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as herein modified. We agree with the Trial Examiner's conclusion that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off seven em- ployees on January 23, 1967. Although an economically justified reduction in force may have been imminent sometime during the period between January and March 1967, it is clear that the motivating cause for the layoffs which did occur at that particular time was the Employer's discovery, 2 days earlier, that these seven employees had signed union authorization cards. We do not, how- ever, adopt the Trial Examiner's conclusion that the alleged economic reprisal directed against manage- ment-trainee Patten, in the form of a demand for the prepayment of an outstanding loan, constituted a violation of Section 8(a)(1) of the Act. This asserted economic reprisal directed against Patten was alleged in the complaint as and found by the Trial Examiner to be a violation of Section 8(a)(1) of the Act only as it affected the other em- ployees. In view, however, of Patten's employment status and his unique personal relationship with President Love, we believe it unwarranted to infer from the fact of employment by a common em- ployer, and unlike the Trial Examiner we do not infer, that the shop employees must have become aware of the nature and circumstances of Love's demand for prepayment of the loan. Without such inference, there is insufficient basis in the record for a conclusion that Love's demand of Patten for prepayment of the loan exerted a restraining effect upon the shop employees' exercise of Section 7 rights. As there is no allegation in the complaint or finding by the Trial Examiner that Love's actions tended to interfere with Patten's own exercise of Section 7 rights, we shall, under all the circum- stances of the case, dismiss the allegation of the complaint that Love's demand for prepayment of the loan violated Section 8(a)(1) of the Act. Amended Conclusions of Law 1. Delete the Trial Examiner's third Conclusion of Law. 2. Renumber the Trial Examiner's fourth Con- clusion of Law by substituting the number "3" for the number "4." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Bat- tle Creek Steel Fabricating Company, Inc., Battle Creek, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 1(b) from the Trial Ex- aminer's Recommended Order. 2. Change paragraph 1(c) of the Trial Ex- aminer's Recommended Order to 1(b). 3. Delete the second indented paragraph of the notice. IT IS HEREBY FURTHER ORDERED that the allega- tion appearing in paragraph 8 of the complaint which alleges an economic reprisal as a violation of the Act be, and it hereby is, dismissed in its en- tirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: This case was heard in Battle Creek, Michigan, on May 10 to 12, 1967, pursuant to a charge duly filed and served,' and a com- plaint issued on March 27, 1967. The complaint presents questions as to whether the Respondent discriminatorily terminated seven employees within the meaning of Sec- tion 8(a)(3), and whether it engaged in various other acts of interference, restraint, and coercion in violation of Sec- tion 8(a)(1) of the National Labor Relations Act, as ' The Union filed the charge on January 25, 1967- 169 NLRB No. 125 BATTLE CREEK FABRICATING CO. amended. In its answer, the Respondent conceded certain facts as to its business operations, but it denied all allega- tions that it had committed any unfair labor practices. All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing, and to file briefs. Oral argument was presented by the General Counsel, but waived by the other parties. On June 30, 1967, the Respondent sub- mitted a thorough and comprehensive brief on the issues. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Michigan corporation with a plant located at Battle Creek, Michigan, is engaged in the fabri- cation and erection of structural steel and related products. During its last fiscal year prior to the hearing, the Respondent purchased steel and other material valued in excess of $50,000, which it had delivered to its plant, directly from points located outside the State of Michigan. Upon the foregoing facts, the Respondent concedes, and the Trial Examiner finds, that Battle Creek Steel Fabricating Company, Inc., is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and the Trial Examiner finds, that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The stock in the Respondent corporation is owned wholly by Laurence W. Love and his wife. The former is also the president and treasurer . The employees are clas- sified as either shop or field personnel . The shop workers are the layout men, welders, painters , and laborers en- gaged in the fabrication of iron and steel at the Battle Creek plant. The finished products are installed or erected at the construction site by the field workers. De- pendent on the season and the volume of business, the number of shopmen has varied from 7 to 18, and the number of field personnel from 2 to 14.2 Although at the time in question the Respondent had Charles Reitsma, as superintendent of its shop , and John Wech as the superin- tendent of its field crew , President Love himself was ac- tively engaged in every phase of the day-to-day manage- ment and supervision of the business. For many years the field employees have been represented by either Local 340, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO , or Local 324, International Union of Operat- ing Engineers, and the Respondent has collective-bar- gaining agreements with both of these labor organiza- tions. Until January 1967, however , the shop employees were unorganized. 885 On January 17, eight of the shop employees signed authorization cards in the Charging Union. On January 23, seven of this number were laid off. According to the General Counsel these layoffs were discriminatory. This allegation is denied by the Respondent in its entirety, ac- cording to whom the layoffs were dictated solely by pressing economic considerations. On January 25, the Respondent received a written de- mand from the Union that the Company recognize it and begin collective-bargaining negotiations. On February 1, the Respondent executed an agreement for consent elec- tion. On February 28, in an election conducted by the Board's Regional Office at the Respondent's shop, a majority of the employees voted for representation by the Union and on March 8, 1967, the Union was certified as the exclusive bargaining agent for a production and main- tenance unit at the Battle Creek plant. B. The Layoffs Early in January, several of the shop employees discussed the desirability of securing a union to represent them. About the middle of January, Ray Ter Beek, a layout man, contacted an organizer for the Charging Union and was given a supply of authorization cards. On January 17, Ter Beek arranged a meeting with his cowork- ers which was held at the end of the shift and at a restau- rant near the plant. In addition to Ter Beek, seven of his fellow employees were in attendance. These were Ralph Swift, Robert Lambert, Allen Connor, Russell Root, Allen White, Gaudulupe Arredondo, and Siegfried Doerfer. Ter Beek led the discussion on the issue as to whether the employees would benefit from joining a union and endeavored to answer the questions raised by his coworkers. At the conclusion of the meeting, all of those present signed authorization cards and turned them over to Ter Beek. Before the end of the meeting, Robert E. Patten, Jr., one of the office personnel, appeared at the restaurant. Patten, who knew all of those present, did not join them while they were still in a group at one of the ta- bles. He waited instead until the end of the meeting and then left the restaurant accompanied by Ter Beek with whom he shared a carpool. On the morning of January 23, a Saturday, Edwin Hinkley, one of the employees in the shop, telephoned President Love at his home to express his fears about something in progress among his coworkers. Love sug- gested that Hinkley meet him at the plant and reveal the cause of his concern, but the latter declined and urged that the meeting be held elsewhere. Love then proposed that Hinkley come to his house. About 10 o'clock that morning, Hinkley, accompanied by Siegfried Doerfer, ar- rived at Love's residence. According to Love, Doerfer thereupon told him that during the course of the week a number of the employees, including Ter Beek, Swift, White, and several others, had met at a restaurant near the plant and had signed a "petition" for a union. Love testified that after Doerfer and Hinkley left his home he went to the shop about noon, and there checked the books and records of the business. Since it was a Satur- day and no one else was at work, the plant president telephoned both Reitsma, the shop superintendent, and Wech, the field superintendent, to ask that they report to his office. According to Love, he called in Reitsma, "to L This was during the penod from June 1966 to February 1967. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD verify my opinion as to the necessity of [a] layoff because of lack of work." In addition to soliciting Reit- sma's views on the need for a layoff, the plant president also questioned him as to whether he knew about the union activity in the shop. The same questions were asked of Wech when he reported to Love's office.3 Later that day, Love telephoned Attorney Robert A. Huston and arranged for an appointment on the following Mon- day morning. On January 23, the Respondent's president had the scheduled conference with his counsel. At the end of the shift that afternoon he called all of the shop employees to his office for a meeting. Love then announced that because of a decline in orders and the depressed economic condition of the building industry, a layoff had become imperative, and that those who would be retained had been selected on the basis of seniority and ability. Love then read off the list of those who would be kept. At the time there were 14 employees in the shop. Love an- nounced that only six, whom he listed, would be retained. Siegfried Doerfer was one of the six whom Love so designated for retention. He further announced that the remaining eight would be laid off, effective at once. In the latter group were Gaudulupe Arredondo, Allen Connor, Robert Lambert, Russell Root, Ralph Swift, Ray Ter Beek, Allen White, and Gene Fulcher. Apart from Fulcher, who had been hired only a few days before the layoff, the other seven had signed union authorization cards at the restaurant meeting the preceding week. Be- fore Love concluded the conference with his employees, Ter Beek protested that although the president declared that the layoffs had been determined on a seniority basis, the Company had not followed it with respect to his status since he was senior to Doerfer, who was being retained. According to Ter Beek, Love's answer was that, notwithstanding any such difference as to seniority, Doerfer was still his choice.4 C. The Respondent's Attitude Toward Unions 1. Love's conversations with the shop employees In its brief the Respondent has stressed the significance of the fact that for many years it has had collective-bar- gaining agreements covering the field employees. In addi- tion, President Love testified that at one time he himself was an active union member. It was also undenied that in various conversations with the employees he expressed the view that if the employees wanted a union that was their right and privilege. At the same time there was credible testimony from some of the employees which made it clear that, insofar as the shop employees were concerned, President Love did not consider the advent of the Charging Union as an unmixed blessing. On January 24, Allen Connor and Robert Lambert, both of whom had been laid off the day before, returned 3 Both Reitsma and Wech had been at work the day before, but at that time Love had not asked for their views on whether a layoff would be necessary 4 Love testified that when Ter Beek claimed that his seniority was greater than Doerfer's he dismissed the protest by telling the employee that if he was right the Company had made an honest mistake. According to Love, after the meeting he checked the seniority records and discovered that Ter Beek was, in fact, correct He testified that he did- nothing about the matter thereafter, however, because at that point Ter Beek had already left the shop. 5 Ray Ter Beek testified that at the time of his initial employment inter- to the shop where they asked Love whether he would give them letters of recommendation. Both testified that he readily acceded. Lambert testified that in a reference to their union activities, Love also told them that "he would not fight a union, that he had carried a card all his life, but if we had come to him ... instead of going to the Union, we would not have had all the trouble we were having." Connor testified that in this same conversation the plant president told them that "he didn't like the idea of us going behind his back...." Love conceded that he had had a conversation with Lambert and Connor at the time and place in question, but he denied having made any of the foregoing comments. The testimony of the em- ployees, however, impressed the Trial Examiner as being completely frank and trustworthy. For that reason, the Trial Examiner concludes and finds that their testimony is a substantially accurate account of their conversation with Love. Ralph Swift, another employee who was laid off on January 23, was reemployed on February 14 Lambert, a coworker, was recalled on February 15. Swift and Lam- bert testified that, subsequent to their recall and prior to the representation election on February 28, Love was ex- tremely cordial and frequently chatted with them during the course of each workday. These employees testified, however, that this attitude of friendly interest on the part of the plant president abruptly changed to outright hostili- ty on the same afternoon that the Union won the election. According to both Swift and Lambert, within an hour after the results of the voting were announced Love came to where they were working, made a bitter comment, and, from that time until the day on which they testified at the hearing, never spoke to them again. The testimony of Swift and Lambert in this connection was credible and undenied.5 2. The Patten incident Robert E. Patten, Jr., was hired in November 1964, as a management trainee and detailer. In this position he worked on plans and drawings for the work that went through the shop and carried out other tasks assigned him by the plant president. In August 1966, Love loaned Pat- ten $3,800 to assist him in buying a home. For this, Pat- ten signed a noninterest bearing note which only obligated the borrower to repay Love at the rate of $25 per week until the full amount of the principal had been returned. At Christmas time in 1966 Patten received a $5,000 bonus.6 It is apparent from the foregoing recitation alone that, for a long while, Patten enjoyed a unique standing with the plant management. This situation prevailed until the latter part of January 1967, when Patten suddenly found himself out of favor with Love. Patten attributed this deterioration in his status to the fact that he had, inadver- tently or through coincidence, become associated with view in 1964, Love questioned him as to his attitude on unions and so- licited his assistance in keeping the management informed as to the union activities of the men Love denied ever having made any such request of Ter Beek. Whereas Ter Beek impressed theTnal Examiner as a generally credible witness, the account which he gave of this alleged conversation was somewhat implausible Consequently, and particularly in the light of the plant president's denial, the Examiner will not credit Ter Beek's testimony in this connection. 6 The record does not indicate the total amount paid to Patten in salary and bonus during 1966 BATTLE CREEK FABRICATING CO. the efforts of the shop employees to organize. The facts in this regard are set out below. Patten lived in Grand Rapids, Michigan, a point some 62 miles from Battle Creek. Ter Beek was also a resident of Grand Rapids and about mid-1966 he and Patten formed their own carpool for the daily commuting between their homes and the Battle Creek plant. On January 17, Ter Beek apprised Patten of his plan to join the other employees at a restaurant near the plant after work that afternoon and asked that Patten, who was driv- ing that day, meet him there. Patten testified that, when he arrived at the restaurant, the meeting was still in progress, and, that, in addition to Ter Beek, he observed Doerfer and all the other employees who were present. According to Patten, however, he took no part in the discussion, but remained on the other side of the room until the meeting disbanded and then left with Ter Beek on the journey back to Grand Rapids. Patten testified that on the morning of January 24, he questioned John Wech, the field superintendent, as to the cause of the extensive layoff the preceding afternoon. Ac- cording to Patten, Wech told him that "Larry Love received a phone call ... Saturday morning from parties unknown" and that thereafter Love had interrogated Wech and Reitsma as to their knowledge of union activi- ties in the shop. Patten testified that Wech also informed him that Love had learned that Patten had prior knowledge about the union activities of the men, and that the plant president was very disturbed about Patten's silence. 7 Patten testified that early on the morning of January 30, Love came to his office and demanded that he repay the outstanding balance on the $3,800 loan by the follow- ing morning. According to Patten, when he inquired as to the reason, Love replied, "You know why," and when Patten asked "Because of this union thing?" Love an- swered, "Yes." Patten testified that Love then told him that originally he had considered Patten managerial material, but that he had been wrong. According to Pat- ten, Love "then went on to say how could I do this to him . he said'I was stupid, the stupidest man he knew. That I was a fool. That I was disloyal and not trustworthy." Patten testified that he explained to the plant president that, whereas he had stopped at the restaurant when the employees had been discussing the Union, he had not participated in their meeting and that he had left as soon as Ter Beek was free. According to Patten, Love was completely' dissatisfied with his explanation and ada- mantly insisted that the note be repaid immediately. Patten left the plant and secured the advice of an attor- ney in Grand Rapids as to whether the terms of the note required that', he meet Love's demand. His counsel ad- vised Patten that as long as he repaid $25 per week, Love was powerless to accelerate maturity of the note. The next day, Patten quit the Respondent's employ.8 Love denied that his demand for repayment of the note was related in any way to Patten's failure to report on the union activities of the shop employees. According to the plant president, he had become increasingly disenchanted with Patten, because the latter had originally promised to 9 Patten's testimony as to his conversation with Superintendent Wech was credible and undemed. Although Wech was still in the employ of the Respondent at the time of the hearing he was never cal led as a witness. 8 The General Counsel conceded that Patten had quit and that his de- parture was not being alleged as an unlawful termination. 9 At the hearing the Respondent contended that Fulcher was employed on a temporary basis This contention, however, appears to have been an 887 move to Battle Creek, but had not done so. Love testified that when he learned that Patten had bought a house in Grand Rapids he realized that the man had no serious in- tention of remaining with him and that this assumption was subsequently confirmed when he heard that Patten was looking for other employment. Love testified that he felt that after Patten had received a generous Christmas bonus of $5,000 he should have repaid the note and that his demand of January 30 was based on this ground. He further testified that, when Patten endeavored to bring up the subject of union activities among the shop employees, he refused to enter the discussion . According to Love, "I ... repeated that I could not say anything about it. I was under orders from my attorney not to discuss it with him.11 The testimony of Patten and Love as to the details of their conversation on January 30 presents sharp and ir- reconciliable conflicts. Both testified at length and with considerable feeling as to their exchange. Of the two, however, and on the basis of their comparative demeanor, Patten was quite obviously the more frank and credible. Even standing by itself, Love's explanation for his bel- ligerent demand on Patten was unconvincing. Only a few weeks before the outburst, Love had given Patten a Christmas bonus that was so extraordinarily generous it could only be interpreted as a very clear index that at that point Patten was obviously very high in the plant pre- sident's esteem. Love was unable to point to anything which Patten did during the succeeding weeks of his em- ployment that satisfactorily explained that individual's precipitous decline in his Employer's estimation. There was nothing, indeed, other than Love's discovery that one whom he had considered a potential member of his management team had failed to make him privy to the in- formation that the shop employees were organizing a union. On the basis of their testimony, and from his ob- servation of their demeanor, it is the conclusion of the Trial Examiner that Patten was the more credible witness and that Love's anger and outrage during their meeting on January 30 arose from the Employer's feeling that Patten had betrayed the management in not reporting to him about the union activities of the men. D. Contentions of the Parties With Respect to the Alleged Violations of Section 8(a)(3); Findings and Conclusions in Connection Therewith The General Counsel established the following facts which tended to prove that the Respondent's decision to lay off the employees on January 23 was arrived at hasti- ly and not for reasons of economy: In the period prior to the layoff, all of the shop employees were working a full 40-hour week, and those who were questioned about the matter testified that during this period they had work to keep them busy at all times. In this connection, it is sig- nificant that on January 12 the Respondent hired Gene Fulcher, a new employee, to work as a laborer in the shop.9 It is also noteworthy that at about the same time in January, and only a short while before the layoff, em- afterthought. It has no convincing support in the record. Thus, Love, who hired Fulcher, conceded that the man was never sc informed at the time he was employed More significantly, during the month after the layoff, when the Respondent supplied a list of employees eligible to vote in the representation election that was scheduled for February 28, Fluche-'s name appeared on the list along with the names of all the other regular full- time employees who were still on layoff status 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees Ter Beek, Swift, Lambert, and Doerfer were given wage increases. Prior to the layoff the Respondent had 14 shop employ- ees.10 The sudden layoff of eight men on January 23 eliminated almost 60 percent of the rank-and-file em- ployees in the shop. Love conceded that never before in its history had the Respondent laid off over half its work force at one time. The Respondent customarily paid its employees on Friday. On Friday, January 20, the em- ployees received their pay in the usual manner without being given any hint that because of a serious decline in business a wholesale layoff awaited them the following Monday afternoon. During the week of January 23 when the number of shop employees was drastically curtailed, the Respondent's field personnel were left untouched." The General Counsel contends that this fact by itself in- dicates that the shop personnel were singled out for dis- criminatory treatment because it was among them that the Union had so recently become active. Three of those who were laid off were later recalled. Ralph Swift returned to work on February 14, Robert Lambert on February 15, and Allen White on April 27, 1967. Subsequent to the layoffs on January 23, the Respondent hired no new employees. However, Charles Reitsma, the shop superintendent prior to the layoff, returned to rank-and-file work subsequent to January 23, and John Wech, the field superintendent who took Reit- sma's post, thereafter worked along with the men in the shop in addition to acting as their supervisor. The Respondent conceded that its fiscal year which ended on February 28, 1967, had been the most profita- ble in its corporate history. At the same time it offered elaborate and extensive documentation to establish that its business prospects in January were poor and that pru- dent management compelled a drastic reduction of its work force. Thus, Love testified that whereas in January 1966, the backlog of orders which awaited completion ap- proximated $360,000, in late January 1967 the Respond- ent had a backlog of only two substantial orders, one for the Hackett Construction Company for about $36,000 and the order for the Don B. Smith Construction Com- pany for slightly over $18,000. It was also in the process of completing a $5,000 order for the Clark Equipment Company. In addition to the completion of these orders, the Respondent had a number of the shop personnel en- gaged in the fabrication of steel work for a new building which the Company was erecting for its own operations. This structure was begun in November 1966. At the time of the hearing it was still uncompleted. Love testified that for many months prior to the layoff he anticipated that a reduction of the shop personnel would be necessary during the winter. According to the plant president, although he had first considered the need for a curtailment of his work force in November 1966, it was not until Saturday, January 21, that he carefully reviewed the corporate books and records and concluded 10 This figure does not include Reitsma, the superintendent. I 1 President Love conceded that no field men were laid off during the week of January 23. 11 A layoff based on seniority offered a clean sweep of the union ad- herents with one exception . Doerfer, the informant , had less seniority than Ter Beek, the principal union proponent among the men. When con- fronted with this dilemma in his announcement of the layoff, Love at- tributed the selection of Doerfer over Ter Beek to an honest mistake which he was unable to rectify. At the hearing, however, the Respondent endeavored to establish that the choice of Doerfer over Ter Beek had been based on the fact that Doerfer was younger, that Ter Beek had once that the layoff had to be effected at once. That the Respondent had suffered a substantial decline in business during the winter of 1966 to 1967, as compared with similar periods in preceding years, is at once apparent from any examination of the records which were in- troduced in evidence. Moreover, it appears likely that, at some time during the period from January through March, the Respondent would have laid off some of its shop personnel. On the other hand, it is the conclusion of the Trial Examiner that President Love's decision to ef- fectuate the layoff on January 23 and the manner in which employees were selected for this reduction in force were both discriminatory and designed to destroy the Union's strength among the shop personnel. This conclu- sion is based upon the findings that are set forth below. Prior to the layoff, all of the shop personnel had been working a full 40-hour week, several had been given wage increases that month, and one new employee had been hired a short while before. On January 20, a payday, the management gave the shop personnel no hint or sug- gestion that news of a drastic reduction in force was in the offing. In fact, Love conceded that it was not until about noon on January 21, that he went to his office and, after an examination of the Company's book concluded that a reduction of the shop personnel was imperative. This Saturday visit to the Respondent's office was made im- mediately after Siegfried Doerfer had come to Love's home and there disclosed that, a few days earlier, a majority of the shop employees had signed union authorization cards. While at the shop that Saturday, Love summoned Superintendents Reitsma and Wech to his office where he questioned them about their knowledge of union activities among the men and sol- icited their views on the need for a layoff. On January 23, the next workday, Love announced the immediate ter- mination of all the card signers except Doerfer.'2 On January 24, Patten, the management trainee who accompanied Ter Beek from the scene of the union meet- ing, questioned Superintendent Wech as to the reason for the layoff. In response to this question, the latter stated that the preceding Saturday, President Love had been contacted by certain individuals whom he referred to as "parties unknown," and that subsequently Love inter- rogated both him and Reitsma as to their knowledge of union activities among the shop personnel. In this conver- sation, Wech also cautioned Patten that Love was very disturbed about Patten's failure to report what he knew about the employees' organizational efforts. Only a few weeks before the advent of the Union in the shop Patten had received a Christmas bonus that was so extremely generous it clearly established the high regard which Pre- sident Love then had for him and his prospects for ad- vancement. On January 30, however, and shortly after Wech had warned Patten that he was out of favor with the plant president because he had not shared with manage- ment his knowledge of union activity in the shop, Love had a heart attack and that, in the opinion of Love, Doerfer was the more versatile. On the other hand, Ter Beek credibly testified that throughout his employment with the Respondent he had never been laid off for as much as one day and that he had frequently worked overtime and on Saturdays. In the months subsequent to the layoff Ter Beek was neverre- called, although three other employees with less seniority than he were reemployed. On the basis of the facts found earlier herein, it is the conclu- sion of the Trail Examiner that the Respondent's explanation for its choice of Doerfer over Ter Beek was unconvincing and that the real reason for Ter Beck's layoff was his prominence in the union campaign. BATTLE CREEK FABRICATING CO. assailed Patten as the "stupidest man he knew ... a fool disloyal and not trustworthy." In concluding his denunciation , Love demanded that Patten immediately repay a large loan. On the basis of the foregoing facts, the Trial Examiner finds that although President Love may have had a per- sonnel retrenchment under consideration for some time, the motivating cause for the precipitate layoff of January 23, the largest in the Respondent 's history , was the infor- mation about the union activities among the shop em- ployees which Doerfer brought to him on January 21. Accordingly , the Trial Examiner concludes and finds that the termination of Ter Beek, Arredondo , Connor, Lam- bert, Root, Swift , and White on January 24 violated Sec- tion 8 (a)(3) and ( 1) of the Act . Myers Ceramic Products Co., 140 NLRB 232, 233-234; Ox-Wall Products Manu- facturing Co., 135 NLRB 840, 842, enfd. 310 F.2d 878 (C. A. 2); M. Swack Iron and Steel Co., 146 NLRB 1068, 1082, enfd . October 20 , 1965, by the United States Court of Appeals for the Sixth Circuit (opinion not re- ported); Camco, Incorporation , 140 NLRB 361, 363-365 ; Dubois Chemicals , Inc., 140 NLRB 103, 104, enfd. 327V .2d 494 (C.A. 5). It is also the conclusion of the Trial Examiner that the Respondent's demand that Patten immediately repay the outstanding balance on the loan , which Love had made to him, arose directly out of Patten 's failure to disclose to the plant president the information which he had on the union activities of the shop employees . The action taken against Patten , who was not himself a rank-and-file em- ployee, could not help but become known to the shop per- sonnel and have a chilling effect on the incipient union movement . For this reason , the Trial Examiner finds that Love's demand that Patten repay the loan, in the context here present , constituted unlawful interference , restraint, and coercion within the meaning of Section 8 (a)(1) of the Act. Cf. Gainesville Publishing Company, 150 NLRB 602, 627; Key West Coca Cola Bottling Company, 140 NLRB 1359, 1360-61; Talladega Cotton Factory, 106 NLRB 295, 297, enfd. 213 F.2d 208, 216-217 (C.A. 5); Oil City Brass Works v. N.L.R.B., 357 F.2d 466, 470-472 '(C.A. 5). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce, and the Union is a labor organization, all within the meaning of the Act. 2. By discriminatorily terminating Gaudulupe Arre- dondo, Allen Connor, Robert Lambert, Russell Root, Ralph Swift, Ray Ter Beek, and Allen White on January 23, 1967, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By demanding that Robert E. Patten, Jr., im- mediately repay an outstanding loan, in reprisal for his having failed to report to management any information about the employees' organizational activities, the Respondent interfered with, restrained, and coerced its employees in the rights guaranteed under Section 7, and thereby engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY 889 Having found that the Respondent has engaged in cer- tain unfair labor practices, the Trial Examiner will recom- mend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Earlier herein it was found that the Respondent dis- criminatorily laid off seven employees on January 23, 1967. It was also found, however, that the Respondent may have been justified, for economic reasons, in ter- minating some of its employees during that general period in January and thereafter. Whereas some of the dis- criminatorily terminated employees might have been af- fected in any such nondiscriminatory reduction of person- nel, the record furnishes no basis for determining the order in which they might have been laid off. Under these circumstances, it will be recommended that the Respond- ent be ordered to offer to the hereafter named em- ployees, who were unlawfully terminated in January and who have not been recalled for employment, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights 'and privileges, and, in the event that there is insufficient work for all such employees, to dismiss, if necessary, all persons who were newly hired after the discriminatory terminations in January. If there is not then sufficient work for the remaining employees and those to be offered reinstatement, all available posi- tions shall be distributed among them without discrimina- tion against any employee because of concerted activi- ties, in accordance with a system of seniority or other nondiscriminatory basis. Further, the Respondent shall place those employees, if any, for whom no employment is available after such distribution, on a preferential list, with priority in accordance with a system of seniority or other nondiscriminatory basis, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work: Gaudulupe Arredondo, Allen Connor, Robert Lambert, Russell Root, Ralph Swift, Ray Ter Beek, and Allen White. It will also be recommended that the Respondent be or- dered to make whole the above-named employees, against whom it has discriminated, for any losses they may have suffered because of the Respondent's dis- crimination, by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement, or placement on a preferential list, as the case may be, less his net earnings during said period. The backpay here involved shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291 294, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As it is possible, however, that one or more of these employees might have been terminated in a reduction of the work force even if the Respondent had selected em- ployees for layoff on a nondiscriminatory basis, this pos- sibility will be taken into consideration in determining the amounts of backpay due to these employees in com- pliance with the Recommended Order. In view of the nature of the unfair labor practices com- mitted, the commission by the Respondent of similar and 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other unfair labor practices may be anticipated. It will therefore be recommended that the Respondent be or- dered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following: RECOMMENDED ORDER Battle Creek Steel Fabricating Company, Inc., its of- ficers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Shopmen 's Local Union No . 688, International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, or in any other labor organization of its employeees , by dis- criminatorily discharging , terminating , or laying off any employee , or in any other manner discriminating against any employee in regard to hire , tenure, or any other term or condition of employment. (b) Engaging in economic reprisals against any member of its staff, or any employee , for failure to report on the union or concerted activities of the employees. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist the above-named labor organization , or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in other concerted activities for the purpose of mutual aid or pro- tection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Offer to Gaudulupe Arredondo , Allen Connor, Robert Lambert , Russell Root , Ralph Swift , Ray Ter Beek , and Allen White immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make each of them whole for any loss of earnings suffered by reason of the discrimination against him in the manner set forth in the section above entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Battle Creek, Michigan, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered , defaced , or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 14 '3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." '4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in Shop- men's Local Union No. 688, International Associa- tion of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, or in any other labor organization of our employees by discharging, terminating, or lay- ing off any employee, or in any other manner dis- criminating in regard to their hire, tenure of employ- ment, or any term or condition of employment. WE WILL NOT engage in economic reprisals against any member of our staff, or any employee, for failure to report on the union or concerted activities of our employees. WE WILL offer Gaudulupe Arredondo, Allen Con- nor, Robert Lambert, Russell Root, Ralph Swift, Ray Ter Beek, and Allen White immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activi- ties. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. BATTLE CREEK STEEL FABRICATING COMPANY, INC. (Employer) Dated By (Representative) (Title) BATTLE CREEK FABRICATING CO. Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive 891 days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they maycommunicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.