Franklin Homes, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 389 (N.L.R.B. 1970)

FRANKLIN HOMES, INC. 389
Franklin Homes , Inc. and Aluminum Workers Interna-
tional Union , AFL-CIO. Cases 10-CA-8037 and
10-CA-8097
December 21, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On July 22, 1970, Trial Examiner John P. von Rohr
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged 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 Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that the Respondent, Franklin Homes, Inc., Russell-
ville, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following as paragraph 2(c), and
reletter the following paragraphs accordingly:
(c) 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 and the Univer-
sal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
2. Add the following as the last indented para-
graph of the Appendix:
WE WILL offer 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.
CHAIRMAN MILLER, dissenting in part:
The evidence seems sufficient to support the finding
of the Trial Examiner that Respondent effectuated a
substantial layoff sooner than it otherwise might have,
as a result of the union activity at the plant. The Trial
Examiner concluded that the layoff was accelerated
"for however brief a period, by reasons proscribed by
the Act," thus clearly indicating that it was not
possible to determine from the evidence precisely how
much earlier the layoff occurred than would have
been the case if purely economic considerations had
dictated the timing.
My dissenting views relate to the remedy recom-
mended by the Trial Examiner. Having found that the
layoff was accelerated, the Trial Examiner recom-
mended "that Respondent make these employees
whole for any loss of earnings they may have suffered
because of the discrimination against them." He went
on to say, "Since the amount of backpay to these
employees will depend upon the time they would have
been laid off absent the discrimination found, I shall
leave this matter to be determined at the compliance
stage of this proceeding."
I fear that if we adopt this recommendation, we are
creating an impossible task for our compliance staff.
The Trial Examiner provides no standard, nor can I
find one, for determining what loss of earnings could
be involved. It will be noted that the Trial Examiner
did not make any finding that the layoff was
prolonged for improper reasons, but only that it
occurred sooner than normal. I do not understand
how it is possible to compute a measurable make-
whole remedy for employees who were laid off on one
day instead of another, and the inherent problem is
made even more perplexing by the absence of any
finding as to how much earlier the layoff occurred
because of discriminatory motivation. I would there-
fore not adopt paragraph 2 (a) of the Trial Examiner's
Recommended Order.
Secondly, I can find no basis for the make-whole
remedy recommended in paragraph 2 (c) of the
Recommended Order. In selecting personnel to be
recalled from the layoff, the evidence is sufficient to
support the finding that the three employees referred
to in paragraph 2(b) of the Recommended Order were
not recalled, because of the discriminatory motiva-
I We note and correct the following minor errors in the Trial representative of the Charging Party. Also, the parties stipulated that 26
Examiner's Decision which in no way affect the result in this case Oscar employees were recalled by or before October 24, 1969 and not October 26,
Wisdom is a representative of the Operating Engineers and not a 1969
187 NLRB No. 51
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion . As to the remainder of the laid-off employees
who were not recalled, and particularly as to those
who were replaced by newly hired employees, there is
no showing that the selection was made on a
discriminatory basis . The Trial Examiner finds only
that Respondent failed to fully document its reasons
for recalling certain employees and not recalling
others. If this were an arbitration proceeding in which
the employer were attempting to defend departure
from seniority practices relating to recall, he would
indeed have the burden of substantiating his alleged
reasons for such deviation. But our law contains no
restrictions against an employer's selection of employ-
ees for either layoff or recall except as it prohibits the
making of such a selection on a discriminatory basis
hinging on the degree to which employees may choose
to engage in or refrain from engaging in Section 7
rights . There is no proof in this record that employees
were selected for recall on this basis or that employees
who were not recalled were those who had signed
cards or otherwise evidenced their support of the
Union's organizational efforts.
The remedy proposed by the Trial Examiner
parallels the remedy which we would give if this were
an unfair labor practice strike. But there we premise
the remedy on the theory that failure to recall strikers
is, absent some affirmative showing of justification,
discrimination against employees because they en-
gaged in the protected concerted activity of striking.
The instant case does not present a strike situation
and the application of our law must, therefore, be
different. It is conceded here that the layoff was
economic in nature (although accelerated for improp-
er reasons). I am, therefore, of the view that the
Employer was free to recall whomever he preferred
and not to recall whomever he preferred, so long as
the basis for his choice did not relate to the extent of
the employees' union activity.
For the same reasons, I do not find a basis for the
preferential hiring procedures recommended in para-
graph 2(d) of the Recommended Order.
For the above reasons, I would adopt the findings
and conclusions of the Trial Examiner, and would
modify the Remedy in accordance with the views
which I have stated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon charges filed
on November 12 and December 22, 1969, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 10 (Atlanta , Georgia), issued
a complaint on January 30, 1970, against Franklin Homes,
Inc., herein called the Respondent or the Company,
alleging that it had engaged in certain unfair labor practices
in violation of Section 8(axl) and (3) of the National Labor
Relations Act, as amended, herein called the Act. The
Respondent's answer denies the allegation of unlawful
conduct alleged in the complaint.
Pursuant to notice , a hearing was held before Trial
Examiner John P. von Rohr on March 18 and 19, 1970, in
Russellville, Alabama. All parties were afforded opportuni-
ty to adduce evidence , to examine and cross-examine
witnesses , and to file briefs . Briefs have been received from
the General Counsel and from the Respondent and they
have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Franklin Homes , Inc., is an Alabama corporation with its
principal office and place of business located at Russell-
ville, Alabama , where it is engaged in the manufacture and
sale of mobile homes . During the calendar year preceding
the hearing, Respondent sold and shipped finished
products valued in excess of $50 ,000 directly to customers
located outside the State of Alabama.
The Respondent concedes , and I find , that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Aluminum Workers International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
On October 17, 1969 , Respondent laid off 41 of its 70
production and maintenance employees. The General
Counsel contends that the layoff of these employees
violated Section 8(a)(3) and ( 1) of the Act because it was
motivated by Respondent 's opposition to an organizational
drive among its employees which began at a union meeting
held on October 15, 1969. Respondent denies any
knowledge of union activity among its employees prior to
the layoff and asserts that the reason for the layoff was
based solely on economic considerations.
B. Events Prior to the Layoff
On October 15, 19691 a group of six Respondent
employees , these consisting of Roy Garrison, Roy Hughes,
Terry Cummings, Billy Oswelt, and James Presley, met with
Oscar Wisdom, a representative of the Charging Union, at
the Dixie Belle Restaurant in Littleville , Alabama.2 Since
this meeting involved the inauguration of an organizing
drive at Respondent's plant , these employees were given
union cards which they were to distribute and attempt to
I All dates herein refer to the year 1969. Respondent's plant is located.
2 Littleville is approximately 6 miles from Russellville, Alabama, where
FRANKLIN HOMES , INC 391
have signed by the production and maintenance employees
They also were given pamphlets put out by the National
Labor Relations Board explaining representation election
procedure and the rights of employees under the Act
Solicitation of employees to sign union cards took place
the next day, October 16, and continued until about noon
on October 17, this activity occurring at the homes of
employees and at the plant during lunch and break periods
The record reflects that a total of approximately 12
employees signed cards Employee Roy Garrison testified
that just before noon on October 17 he gave the 12 cards to
a "boy" who carried them to a union representative who
had come out "near the plant "
It is undisputed that on October 17, a Friday, at about
3 15 p in (15 minutes before quitting time) Jimmy
Wakefield, the plant superintendent, summoned the
employees before the timeclock and announced that all
who had not been notified to stay on would be laid off for a
few days As indicated above, 41 of the 70 production
employees were thus put on layoff
Since Respondent, by its president, Jerry James, denies
any knowledge of union activity prior to the October 17
layoff, I note here the testimony of employee Horace Mann
concerning a conversation he had with Moms Bishop, the
foreman of the cabinet and paint shop Mann, a leadman in
the metal shop, testified that prior to the announcement of
the layoff on the morning of October 15, he encountered
Bishop near his work area According to Mann, Bishop
volunteered that union cards were about to be distributed
around the plant Mann testified that he thereupon asked
Bishop what he thought about it and that Bishop replied
"Well, I can't talk I can't tell you to sign one or I can't
tell you not to sign one, that would be just entirely up to
you " Bishop conceded that he heard that cards were being
passed around prior to the layoff He also conceded that on
the day of the layoff he had a conversation with Mann
wherein Mann asked if he should sign a union card
Bishop's testimony concerning his response to this question
was the same as that given by Mann
Bobby Ray Isom, an employee in the cabinet shop and
one of the first employees to work at the plant, testified that
he had a conversation with Plant Superintendent Wakefield
in the early part of the week of the layoff He said that at
this time he went to the bathroom, that a boy was inside
smoking, and that Wakefield walked in just as the latter
left Isom testified that Wakefield there upon stated, "I
guess you signed a union card " Isom said he replied that he
had not seen any union cards, but that he then asked the
superintendent what he thought about the union talk that
was going around the plant According to Isom, Wakefield
responded, "Well, if I find out there is some Union cards in
this plant there is going to be the biggest layoff this
company has ever seen " Isom testified that Wakefield
thereupon additionally stated that "Jerry James said he
would close the plant if we ever put up a union" and that
"he [James] wasn't aiming to let that happen" Wakefield
denied having a conversation with Isom in the bathroom
about union activity and testified that the first he heard of
any union activity at the plant was on the Monday after the
layoff when employee Roy Hughes told him about it From
my observation of the witnesses , Bobby Ray Isom
impressed me as a truthful witness and I do not believe that
his testimony was fabricated I credit his testimony
concerning the conversation with Wakefield 3
C Events After the Layoff
Employee Bobby Ray Isom , who was among those laid
off on October 17, returned to the plant on the Saturday or
Monday after the layoff (October 18 or 20) and spoke to
Plant Superintendent Wakefield in the salesman 's office
Isom first asked if his work had been satisfactory
Wakefield replied that he did a little too much strolling but
that otherwise it was fine Isom then asked if he would be
recalled to work , adding that he was in need of work
Wakefield 's response , according to Isom , was that "as far as
I am concerned your services have been terminated "
Continuing with Isom's testimony , Wakefield thereupon
stated that "a good reliable man" told him that he (Isom)
had been passing out union cards and that he should get a
job somewhere else because as far as he (Wakefield) was
concerned he "was never going to work there or anywhere
else that he had anything to do with " Conceding that he
had a conversation with Isom within a day or two after the
layoff, Wakefield denied that there was any mention of a
union According to Wakefield , Isom said he needed work
and mentioned that he could go to work for another
employer He said that he advised him to do so and that he
also told Isom, who at one point asked about his work
performance, that he walked around too much For the
reason previously stated , I credit the testimony of Bobby
Isom concerning this conversation
Roy C Gamson, one of the first employees to be hired by
Respondent, was included in the October 17 layoff He
returned to the plant at 8 a in on October 20 and first asked
Plant Superintendent Wakefield if he knew when he would
be called back to work Wakefield said he did not know He
thereupon waited until President James came in and asked
James the same question According to Gamson, James
responded, "You have been passing out union cards and I
know you signed one and before I let a union come in here,
I will close the place down I don't know what you are
wanting , I have already given a nickel raise " Garrison
spoke up to say that he thought a union would help the
Company But, according to Gamson , James then stated,
"You have just fixed yourself where you never will work
here again or any place else I have anything to do with "
Garrison said that when he then asked James "if he realized
what he was saying ," James responded , "I mean I am not
going to have a union come in here " Garrison testified that
at this point he started to walk away, whereupon James
asked if he wanted to turn his tools in while he was there to
save another trip Gamson said he proceeded to do so
James recalled talking to Garrison on the morning of
3 Although cards were not distributed at the plant until Thursday Although this conversation also concerned talk of prospective union
October 16 the record reflects that talk about a union in general occurred activity I do not set it forth herein because it adds nothing to the case I
among the employees earlier that week Indeed Bobby Ray Isom who was refer to it here only because it reflects that talk about a union was
corroborated by his brother Donnie Isom credibly testified concerning a occurring at the plant in early October this prior to the actual union
conversation with Foreman Bishop in the first week of October 1969 meeting of October 15
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 20 and gave the following version of this
conversation in his direct testimony:
Mr. Garrison was sitting by the time clock and I
approached and he asked me when he would be called
back and I told him I didn 't know . He asked me did, if
the Union activities had anything to do with his being
laid off and I said "No, it didn 't." I said, " I didn't even
know you were involved in any union activity ," and he
said , "Well, I was ." I believe he said he had been to a
meeting . I may be confused as to whether he told me
that or whether Mr. Hughes told me but he said , "I have
been involved in Union activity , I have destroyed
enough cards that this plant will not have an election
and I would appreciate your hiring me back" and I said
"Your layoff had nothing to do with Union activities
and I am not in a position to tell you now when you can
come back" or something to that effect.
On cross-examination , James acknowledged that during
the above conversation he asked Garrison what he thought
the Union could do for him and also that he told Garrison
he probably would have given him everything he wanted.
From my observation of the witnesses , and upon considera-
tion of the entire record in this case , I am persuaded that
Garrison gave a truthful account of the conversation which
he had with James while at the plant on the morning of
October 20 . I credit his testimony concerning it.
Roy Hughes , employed with the Company since May 6,
worked in the electrical department and was included in the
October 17 layoff . Hughes, who attended the October 15
meeting and thereafter solicited employees to sign cards,
went to the plant to get his check and turn in his tools on
Monday morning , October 20 , and at this time spoke to
Plant Superintendent Wakefield . Hughes testified that he
asked Wakefield "if this layoff was because of this Union
deal and the same thing went for me that it did with Roy
Garrison ." Hughes said that Wakefield replied "yes, it did,"
whereupon he told Wakefield that this was "pretty dirty."
According to Hughes, Wakefield then stated , "Well, we
have rules here and we have to stick by them." Wakefield's
testimony with respect to this conversation was as follows:
He was checking in his tools and he called me over there
and he said I want to talk to you a minute and I said all
right and he said , "Say, was I laid off on account of the
Union" and I don't believe I answered and he said, "I
just want you to know that I didn 't have nothing to do
with that . . . [there] was five people up there and I
thought the whole plant was going to be there" and I
said, "Well, we have got rules that we have to go by and
we went by them "or something to that effect... .
Hughes also had a telephone conversation with President
James , this occurring about 2 or 3 weeks after the layoff.
Hughes said he was prompted to make this call because he
heard rumors that James had accused him of pushing union
cards . Thus, Hughes testified that he called James and
"asked him if he had said I had been pushing out union
cards." Hughes said that James ' response was that "he had
not said nothing about me but he said that he had heard
that I was pushing out union cards and that he wasn't going
to have this going on in his plant ." Hughes testified that
when he then asked if this was the reason for his layoff,
James denied that it was for this reason , but said that he
was laid off because he walked around too much and was
capable of doing more work . When Hughes replied that his
standing around was not his fault , that there was not always
enough work to do , James responded , according to Hughes,
"Well, I guess that is partly the supervisor 's fault, too."
Hughes testified that at this point he told James that he was
thinking "about taking [the matter ] to the Labor Board and
carrying it to the Union to see what we could do ." To this
James responded , according to Hughes , "If you try to get
the Union in here , I will shut the son-of-a-bitch down."
Acknowledging that he had a conversation with Hughes
over the telephone , James denied that during the conversa-
tion he threatened to shut the plant down . He then gave the
following version:
Mr. Hughes called me and told me that he heard that I
was telling that he was pushing out union cards and I
told him "No, that I had not told anyone he was
pushing out union cards but that I had heard the rumor
that he was but I had not discussed it with anybody"
and he asked me if I had blackballed him from getting a
job and I told him "no, I had not."
He said that Mr. Garrison had asked him to be a
witness in a labor suit against me and that he was
considering it but if we would put him back to work that
he wouldn ' t, he would not be a witness and I told him I
didn't have any control over what he said and I couldn't
tell him when I would call him back but that his union
activities had nothing whatsoever to do with his layoff.
As stated above, Hughes impressed me as a credible
witness. I credit his version over that of James' concerning
the foregoing conversation.4
Robert M . Wakefield is a brother of Plant Superintend-
ent Jimmy Wakefield and at the times material hereto held
the position of leadman over four employees in the
electrical department . Wakefield reported to work on
Monday morning, October 20 , the first workday after the
layoff . At this time he encountered Roy Garrison who had
come to the plant to check in his tools. During the
conversation which ensued , Garrison mentioned that he
had spoken to James and then told Wakefield , "Jerry,
James says there is a lot of trouble around here and it all
started in the electrical department ." With this Wakefield
went to James, whom he found with his brother Wakefield
testified that he repeated what Garrison had told him,
whereupon James pointed his finger at him and accused
him of "starting all the trouble ." James then stated,
according to Wakefield , "and if you don 't like it , you can go
too." Wakefield thereupon replied , "No, just wait one
damn minute and I will be gone ," whereupon he obtained
his tools and turned them in . After punching out he went to
his brother , the plant superintendent , to report the status of
the work in his department . Wakefield testified that after so
doing he asked his brother "what the hell was going on."
According to Robert Wakefield , the plant superintendent
responded , "Well, some of the boys signed union cards."
The testimony of President James and the plant
superintendent concerning the above incident was very
4 In rebuttal testimony Hughes credibly denied saying anything at all
about Garrison during this conversation
FRANKLIN HOMES, INC. 393
brief. James simply testified, "Mr. Robert Wakefield gave
testimony yesterday that I said he was the cause of the
trouble out there and I would like to deny that." The plant
superintendent recalled that he was standing with President
James at the time his brother came up and quit. Concerning
the incident he testified that his brother "said something
about problems in the electrical department and that he
was a part of it and he was going on that if he was a part of
the problem that he would remove it and he was gone and
he immediately punched the card." The plant superintend-
ent also recalled his brother coming to him a little later to
report on the status of work in his department, but he could
not recall anything further about the conversation. I credit
the testimony of Robert Wakefield concerning the entire
events in which he was a participant on October 20. I do so
for the following reasons : (1) he impressed me as a truthful
witness; (2) he gave a plausible account of the circum-
stances of his quitting on October 20, whereas neither
James nor the plant superintendent offered any reasonable
explanation for his taking such precipitant action; 5 and (3)
Respondent's opposition to the Union, as reflected by the
events of October 20 concerning which Robert Wakefield
testified, is consistent with a pattern of like conduct, as
hereinabove set forth, in its dealings with other employees.
D. Additional Facts; Conclusions
Preliminarily to Respondent's defense, it is relevant to
note first that the Respondent's production of mobile
homes is performed through an assembly line operation.
Thus, as one witness described, construction will start in the
frame department, proceed to the metal department, and
then down the line for such various functions as sheet metal
installation, cabinet installation, electrical work, painting,
and the like. The testimony also reveals that Respondent
produced approximately 1 1 /2 to 2 mobile home units per
day prior to October 17.6 While the testimony is not entirely
clear on the subject, it appears that there are "slots" for
about three or four coaches on the line.
Thomas James, Respondent's secretary-treasurer, Jimmy
Jackson, Respondent's sales manager, and Athel G.
Button, vice president, gave general testimony to the effect
that on several occasions prior to October 17, 1969, they
separately discussed the possibility of a layoff with
President James. Thomas James testified "we had informal
discussions about why our labor factor was so high and
what we needed to do about trying to get it down ... we
needed to see if we couldn't make the same amount of
coaches with less people." Jimmy Jackson said that when
President James asked him what effect a layoff would have
in September or October, 1969, he responded that "we
could start a reorganization at this particular point easier
than we could at any other time." Athel Britton, without
elaborating, testified simply that prior to October 17 he and
President James "discussed the possibility of a layoff to get
reorganized.
Plant Superintendent Wakefield testified that on the
morning of the October 17 layoff there were four holes in
the line. He further testified that it would not be possible to
operate the plant the following Monday because "we would
have had at least 50 percent of our people without anything
to do."
In his testimony President James accepted full responsi-
bility for the October 17, 1969, layoff. His entire testimony
concerning the reasons which assertedly impelled him to
reach this decision was as follows:
For two or three weeks preceding this layoff that has
been in discussion here, Mr. Wakefield and I had been
talking about it fairly frequently and I had talked
informally with all of the stockholders and they had
told me that I had the authority to do whatever I
wanted to do about it. My decision to make this layoff
was not completely made until Friday, but for two or
three days before I had been giving it much attention.
On Friday, right after lunch I went to the plant and
the production line was a complete mess . I saw empty
stations, employees milling around and I saw that the
plant could not operate Monday without having half
the men out, approximately half of them.
Mr. Wakefield had also brought this to my
attention earlier in the day. I told Mr. Wakefield to get
with Mr. Davis and see who should come in Monday to
work the line back up in such a shape that the
employees could be put back to work. In other words, as
we filled the slots we could call the people back that had
those jobs to perform. Of course , as the line gradually
filled up, then we began to call people back.
Thus far the testimony of Respondent witnesses concern-
ing the necessity, if any, for the layoff of October 17.
However, shedding further light on the subject is the
testimony of employees called as witnesses by the General
Counsel. Thus, Roy Garrison testified that production on
the assembly line was slow during the week of the layoff,
more so than it had been the week or month before. He
further recalled that there was only a TVA laboratory
coach on the line at the time of the layoff.? Indeed, when
asked on cross-examination what shape the line was in at
that time, Garrison's response was that "it had just about
completely stopped on that particular coach." Employee
Roy Hughes was also queried on cross-examination as to
the condition of the assembly line on October 17. Hughes
conceded that "on the last day it was in pretty bad shape."
He elaborated this with the statement that except for the
TVA coach, "it [the line] had three empty slots." Further,
Hughes conceded that during the week of the layoff he
observed that employees at certain stations on the assembly
line on occasion had nothing to do. When asked if he had
observed similar conditions in the past Hughes responded,
"No, sir, not so much."
Upon a consideration of all the foregoing testimony, I am
persuaded and find that the available work on the assembly
line was such that the necessity of a short layoff of some
employees undoubtedly was forthcoming. However, I am
also convinced, and I find, that the layoff at issue was
accelerated, for however brief a period, by reasons
proscribed by the Act. Thus, upon the entire record, I find
that Respondent 's announcement of the layoff to all the
5 This quit was of a permanent nature r It is undisputed that this was a specially ordered coach, the first of its
6 The record reflects that Respondent's plant first began production in kind to be built by the Company It appears that normally Respondent
about the latter part of April or early May 1969 . built mobile homes of similar design from standard type blue punts
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assembled production and maintenance employees 15
minutes before quitting time on October 17, as well as the
layoff itself, was designed to thwart the union campaign
which had begun among its employees but approximately
two days earlier .8 While the facts hereinabove related which
compel me to this conclusion are quite clear in themselves,
the factors upon which I particularly rely include
Respondent's union animus as evidenced by Wakefield's
statements to Isom prior to the layoff that "If I find there is
some Union cards in this plant there is going to be the
biggest layoff this company has ever seen" and that James
would close the plant if a Union came in; James' statements
to Garrison on October 20 that he would close the place
down before he would let a union come in and that he "was
not going to have a union come in here"; and James'
statement to Hughes that he would not have union
solicitation going on in his plant and his further statement
that "if you try to get the Union in here, I will shut the son-
of-a-bitch down." Also pointing to the discriminatory
nature of the layoff are the conversations which Leadman
Robert Wakefield had with President James and the plant
superintendent when he returned to the plant on Monday,
October 20, the first work day after the layoff. It will be
recalled that at this time Wakefield quit his job because of
his resentment of having been told by President James that
he had "started all the trouble" in his department, following
which Wakefield told him in response to his question as to
what was going on, that "some of the boys signed union
cards." Finally, and as hereinafter found, Respondent's
independently proven discrimination against three of the
leading employee union adherents has been regarded by me
as additional evidence that the layoff here at issue was
accelerated by antiunion considerations. In view of all the
foregoing, and the entire record as a whole, I find that
Respondent, by reason of the accelerated layoff on October
17, 1969, discriminated with respect to the hire and tenure
of the employees so affected, and thereby discouraged
membership in the Union in violation of Section 8(a)(1) and
(3) of the Act.9
I turn now to the remaining issues of whether Respon-
dent discriminatorily refused to recall certain laid-off
employees and whether certain employees were independ-
ently discriminated against. Some further facts are here in
order. Thus, it is undisputed that of the 41 employees laid
off on October 17, 1969, 26 were recalled on or before
October 26, 1969. The 15 remaining employees have not
been recalled as of the time of the hearing herein.10
8 1 reject Respondent 's assertion , including the testimony of President
James, that it had no knowledge of union activity prior to the layoff As
heretofore noted , knowledge of such activity was admitted by Foreman
Morris Bishop ; and Plant Superintendent Wakefields ' conversations with
Bobby Ray Isom in the bathroom prior to the layoff, as previously related,
reflects that he also was aware of union activity Moreover , the heretofore
related testimony of Robert Wakefield concerning the circumstances of his
quitting on October 20, 1969, and the testimony of employees Bobby Ray
Isom , Roy Garrison , and Roy Hughes concerning the content of
conversations with officials shortly after the layoff are further indicative of
company knowledge of union activity prior to the October 17 layoff
However, in finding company knowledge , I do not rely on the fact, as
credibly testified to by several employees , that prior to the layoff several
employees wore shirts at the plant with NLRB pamphlets protru4ing from
their shirt pockets
9 It is immaterial that some union adherents were not laid off and that
two union adherents were subsequently recalled . This does not exculpate
Included among the employees not recalled were Roy
Garrison, Roy Hughes, and Bobby Ray Isom, all of whom
except Isom attended the October 15 union meeting and all
of whom, including Isom , actively participated in the
solicitation of cards. In view of the credited testimony of
these employees as heretofore set forth, there can be no
doubt, and I find, that each of them were laid off and were
not recalled because of their union activities. Thus, the
statements made to each of these employees by either the
plant superintendent or by President James when they
inquired as to the prospects of their reinstatement were
clearly tantamount to admissions of discrimination against
them. To briefly recapitulate, Isom was told by Plant
Superintendent Wakefield that he (Wakefield) heard he
had been passing out union cards and that he would never
work at Respondent's plant again; Gamson was told by
James that he knew he was passing out union cards, that he
(James) would close the place down before he would let a
union come in, and that he (Garrison) had fixed himself so
that he would never work for Respondent again; and
Hughes was told by Wakefield that he was laid off for the
same reason as Garrison, in addition to which James told
Hughes that he heard that he (Hughes) had been passing
out union cards, that he would not permit this to go on in
his plant, and that he would shut the plant down if he tried
to get the union in. In view of the foregoing I think it clear,
and I find, that Respondent laid off and thereafter failed
and refused to recall Roy Garrison, Roy Hughes, and
Bobby Ray Isom in violation of Section 8(a)(1) and (3) of,
the Act.11 I might add, as will be shown below, that the,
evidence reflects that these and the other laid off employees
were not selected for layoff on the basis of their work
performance. Accordingly, and while Respondent offered
some testimony as to alleged work deficiency of Roy
Hughes, this testimony is immaterial since the alleged
deficiency was not considered by Respondent in selecting
him for layoff.12
Respondent contends that its recall of 25 employees on or
before October 26, 1969, added to those employees who
were not laid off on October 17, 1969, gave it a workforce
which has since been ample to handle its entire production
needs. Thus, President James and Plant Superintendent
Wakefield testified that with the workforce so constituted it
was able to, and in fact did, produce the same amount of
work (approximately 2 trailer homes per day) as it did with
the larger work force employed by it prior to the October 17
layoff. This testimony was unrefuted and unrebutted.
Respondent for the discrimination herein found N L.R B v W C Nabors
d/b/a W C Nabors Company, 196 F 2d 272, 276 (C A 5) Significantly, all
five employees who attended the organizational meeting on October 15
were laid off and none were subsequently recalled
10 The names of all the employees who were laid off on October 17, as
well as those who were recalled and those who were not recalled, are listed
on Appendix B, attached hereto.
ii While the record does not disclose the manner or source from which
Respondent learned of the union activity of these employees, the
admissions of Respondent officials to these employees are sufficient to
establish that it had such information.
iz It is noted that Respondent does not allude to this testimony in its
brief In any event, the testimony concerning the alleged work deficiency of
this employee does not stand up under scrutiny and I would find it to be
clearly of a pretextual nature . However, for the reason indicated above, I
do not seem it necessary to discuss this testimony herein
FRANKLIN HOMES , INC. 395
Moreover, there is no evidence that after the layoff
Respondent farmed out any work or that there was an
increase in overtime. Accordingly, except to the extent
hereafter noted, I find that there were no further jobs
available after October 26, 1969 and that therefore
Respondent was under no obligation to reinstate the 15
employees who were not recalled. However, since these
employees were discriminated against by reason of the
accelerated layoff, they are entitled to be placed on a
preferential hiring list and I will so recommend. In
addition, Respondent concedes that it hired six or seven
new employees after October 26, 1969, to replace certain
employees of the then existing workforce who quit or who
had entered the military service. Concerning Respondent's
reason for not replacing the foregoing employees with the
employees who remained on layoff, James testified as
follows:
Yes, sir. When we started calling these employees back
and we got our production up to the normal two a day
with just 54 employees, well it strictly told me
something. In other words, we had tried to call back the
best employees, the employees we thought were doing
us the best job and these came back and then I suddenly
realized my production was two a day with 54 people.
So, we ran that and it was stabilized that way for awhile
with no changes whatsoever and I realized that I had a
fine crew and then as some of the boys began going to
the Army and dropped out rather than call these people
back that I didn't think had done me a good job prior to
that I replaced them with good employees."
Upon the entire record in this case, I reject the above
explanation as being without merit. In the first place,
beyond the foregoing conclusionary testimony, Respon-
dent presented no evidence of any alleged work deficiencies
of the individual employees who were not recalled from
layoff. Secondly, Respondent's position becomes further
untenable when it is considered that Respondent did not
establish that its selection of employees who were laid off
on October 17 was predicated upon any criteria of
employee work performance. In fact, Respondent's entire
testimony concerning the manner and/or criteria involved
in selecting the employees to be laid off was vague and
confusing. In a pretrial affidavit, James stated as follows:
I don't recall if the list of employees to be laid off was
drawn up prior to October 17, 1969, 1 relied on the
recommendations of Wakefield and foreman Bishop
and Davis in selecting those for layoff because I am not
that close to the plant. The supervisors listed the men
that they could run the plant without. The idea was to
reorganize and get started again.
Declaring at the hearing that the above statement was not
correct, James testified that no actual list was made and
that he told Wakefield to determine which employees were
to be laid off. Foreman Jack Davis, who said he first
learned of the layoff between 2 and 3 p.m. on October 17
and that it came as a surprise to him, testified that he was
not consulted as to which employees in his department were
to be laid off. Foreman Moms Bishop likewise testified that
he did not learn of the layoff until between 2 and 3 p.m. and
that he did not participate in the selection of employees
who were to be laid off in his department. Wakefield's
testimony concerning the manner of the layoff was as
follows:
Q. And who prepared the list of employees who
were to be laid off?
A. There actually wasn't a list of the employees to
be laid off prepared. We only needed the back end of
the line to run because that was the only place there was
any work, until they had done some more work there
wouldn't be any work for anybody up front so it was
more a list of who was to be retained, which was the
people who worked across the back of the shop.
Q. Who prepared that list?
A. I did, sir.
Q. Did you obtain any information from Mr. Davis
or Mr. Bishop as to which employees they wanted to
keep?
A. Well, sir, it wasn't exactly a list compiled, I just
told Jack up there more or less I said, "Jack, we will
work the people that work the frame shop, the floor
department, partitions and sidewalls" and I said, maybe
a couple of electricians because we will have a coach up
there for them that they can finish and that we did.
Then Morris came to me and asked for him to bring in
one man and I said okay.
From all of the above testimony it is clear that
Respondent has shown no valid reason for not recalling the
appropriate number of laid-off employees in lieu of hiring
new employees for the job vacancies which became
available after October 26, 1969. Accordingly, I find that
Respondent, by its failure and refusal to recall laid-off
employees to fill these positions, thereby further violated
Section 8(a)(1) and (3) of the Act.
Finally, I find that Respondent independently violated
Section 8(a)(1) of the Act by the heretofore related threats
of President James and Plant Superintendent Wakefield to
close the plant, lay off employees, or bar employees from
future employment if they engaged in union activities or
selected the Union as their bargaining agent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in Section III,
above, which occurred in connection with the operations of
the Respondent described in Section I, above , have a close,
intimate and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes and policies of
the Act.
It having been found that Respondent unlawfully
accelerated the layoff of its employees on October 17, 1969,
in violation of Section 8(axl) and (3) of the Act, it will be
recommended that Respondent make these employees
whole for any loss of earnings they may have suffered as a
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of the discrimination against them . Since the amount
of backpay due these employees will depend upon the time
they would have been laid off absent the discrimination
found , I shall leave this matter to be determined at the
compliance stage of this proceeding . The names of the
employees laid off on the aforementioned date are listed on
Appendix B, attached hereto.
It having been found that Respondent unlawfully
discharged and unlawfully refused to reinstate Roy C.
Garrison, Roy Hughes, and Bobby Ray Isom in violation of
Section 8 (a)(3) and (1) of the Act, it is recommended that
the Respondent offer these individuals reemployment to
their former or substantially equivalent positions , and make
them whole for any loss of earnings they may have suffered
as a result of the discrimination against them , by payment
to them the sums of money equal to the amount they would
have earned from the date of the discrimination to the date
of the offer of reemployment , less net earnings during said
period, to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and shall include the payment of interest at the
rate of 6 percent to be computed in the manner set forth by
the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
I have also found that Respondent unlawfully failed and
refused to employ certain of the laid off employees to fill
the vacancies which became available after October 26,
1969, in violation of Section 8(a)(1) and (3) of the Act. I
shall also leave to the compliance stage of this proceeding
the determination of: (1) the number of such vacancies
which became available , and (2) the particular individuals
among the laid off employees who were properly entitled to
these positions . Upon such determination , it is recommend-
ed that Respondent offer these individuals reemployment
to their former or substantially equivalent positions, and
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them, in
the manner indicated above . I shall also recommend
placing the remaining laid off employees on a preferential
hiring list.
In view of the nature and extent of the unfair labor
practices herein found , I shall recommend that Respondent
be placed under a broad order to cease and desist from in
any manner infringing upon the rights guaranteed its
employees by the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Franklin Homes , Inc., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Aluminum Workers International Union , AFL-CIO
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily accelerating a layoff of its
employees on October 17, 1969, by thereafter discriminato-
rily failing to recall certain of the laid off employees when
work became available for them , and by discriminating
with respect to the hire and tenure of employment of Roy
C. Garrison , Roy Hughes , and Bobby Ray Isom, thereby
discouraging membership in the above-named labor
organization , 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.
4. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(I) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the above Findings of Fact and
Conclusions of Law, and pursuant to Section 10(c) of the
Act, it is recommended that Franklin Homes , Inc., its
officers, agents , successors , and assigns shall:
1. Cease and desist from:
(a) Discharging , laying off or refusing to reemploy its
employees, or otherwise discriminating against employees,
in order to discourage membership in or support of
Aluminum Workers International Union, AFL-CIO, or
any other labor organization.
(b) Threatening employees with discharge , layoff, closing
of the plant , or other reprisals if they joined the Union or
engaged in activities on behalf of the Union.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization, to form , join , or assist Aluminum Workers
International Union , AFL-CIO, or any other labor
organization , to bargain collectively through representa-
tives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or mutual aid or protection , or to refrain from any or all
such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole each of the employees who were laid off
on October 17, 1969, for any loss of pay they may have
suffered by reason of Respondent 's discrimination against
them, in the manner set forth in the Section entitled "The
Remedy."
(b) Offer to Roy C. Garrison, Roy Hughes, and Bobby
Ray Isom reinstatement to their former positions or to
substantially equivalent positions , without prejudice to
their seniority and other rights and privileges enjoyed, and
make each of them whole for any loss of pay he may have
suffered by reason of the discrimination against them, in
the manner and according to the method set forth in the
section entitled "The Remedy."
(c) As further provided in the "Remedy" section of this
Decision , offer to those employees who are entitled to the
job vacancies which became available after October 24,
1969, 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 in the manner as
therein provided.
(d) Place the employees laid off on October 17, 1969, who
FRANKLIN HOMES , INC. 397
have not been reinstated, on a preferential hiring list and fill
appropriate vacancies therefrom.
(e) 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 determine the amount of backpay due under
the terms of this Recommended Order.
(f) Post at its place at Russellville, Alabama, copies of the
notice marked "Appendix." 13 Copies of said notice on
forms provided by the Regional Director for Region 10,
after being duly signed by a duly authorized representative
of Respondent, shall be posted by it 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 Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.14
13 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 10248 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 for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
14 In the event 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 Respondent
has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Aluminum
Workers International Union . AFL-CIO, or any other
labor organization, by laying off or discharging
employees or otherwise discriminating in any manner
with respect to their tenure of employment or any term
or condition of employment.
WE WILL NOT threaten to close our plant if our
employees engage in union activities or select a union to
represent them.
WE WILL NOT threaten our employees with discharge,
layoff, or other reprisals because of their union
activities.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL make whole the employees laid off on
October 17, 1969, for any wages lost as a result of our
discriminatory acceleration of the layoff which oc-
curred on this date. The names of the employees laid off
on October 17, 1969 are listed on Appendix B attached
hereto.
WE WILL offer to Roy C. Garrison, Roy Hughes, and
Bobby Ray Isom 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 suffered as a result of the discrimination
against them.
WE WILL offer to those employees who were entitled
to the job vacancies which became available after
October 24, 1969, immediate and full reinstatement to
such former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings suffered as a result of the discrimination
against them.
WE WILL place all employees who were laid off on
October 17, 1969, and who have not been recalled or
reinstated, upon a preferential list for employment, and
we will fill appropriate vacancies from such list.
All our employees are free to become, remain, or refrain
from becoming or remaining members of the above-named
or any other labor organization.
Dated By
FRANKLIN HOMES, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Peachtree Bldg., Rm . 701, 730 Peachtree Street, N.E.,
Atlanta , Georgia 30308 , Telephone 404-526-5760.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The following employees were laid off on October 17,
1969:
Buford Newell
Arthur Wright, Jr.
Jimmy Clark
Donald Lindsey
Roy Garrison
Bobby Isom
Lewis Willis
Clifton Hovater
Horace Mann
Faye Cantrell
J. O. Taylor
Gerald Murray
Glen Hamilton
Nolan Hulsey
Charlie Hall
Norman Cole
Terry Cummings
Clarence Bendall
James Presley
Billy Oswalt
Lawrence Drummond
Jimmy Stanley
398
Roy Hughes
Ruby Jackson
Bessie Cleveland
Allie Creekmore
Otho James
Patsy Taylor
Jimmy Williams
Morris Borden
Alvin Stancil
Jimmy James
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Stone
James Fisher
James McClusky
Carson Hovater
Donnie Stancil
Arvin Boyles
Steve Wallace
Leon Abernathy
Lowell Kennedy
The following employees were recalled after the October
17 layoff:
Arthur Wright, Jr.
Jimmy Clark
Donald Lindsey
Lewis Willis
Clifton Hovater
J. O. Taylor
Ruby Jackson
Bessie Cleveland
Allie Creekmore
Otho James
Patsy Taylor
Jimmy Williams
Morris Borden
Alvin Stancil
Gerald Murray
Nolan Hulsey
Charlie Hall
Clarence Bendall
Lawrence Drummond
William Stone
James Fisher
Carson Hovater
Donnie Stancil
Steve Wallace
Lowell Kennedy
Jimmy James
The following employees were laid off on October 17, but
not recalled:
Buford Newell
Roy Garrison
Bobby Isom
Horace Mann
Faye Cantrell
Roy Hughes
Gen Hamilton
Leon Abernathy
Dated By
Norman Cole
Terry Cummings
James Presley
Billy Oswalt
Jimmy Stanley
James McClusky
Arvin Boyles
FRANKLIN HOMES, INC.
(Employer)
( Representative ) (Title),
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board's Office,
Peachtree Bldg., Rm . 701, 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308, Telephone 404-526-5760.