King Electrical Mfg. Co.

National Labor Relations Board - Board Decisions

Feb 4, 1974

208 N.L.R.B. 916 (N.L.R.B. 1974)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King Electrical Mfg. Company and Sheet Metal
Workers International Association, Local 383,
AFL-CIO. Case 19-CA-6336
DECISION
STATEMENT OF THE CASE
February 4, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 8, 1973, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions, a supporting brief, and an
answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
1 The Charging Party excepted to the Administrative Law Judge's ruling
that portions of two notebooks used by Respondent's President Wilson were
admissible into evidence as business records. The Administrative Law Judge
specifically discussed the reliability of these documents in his Decision and
found evidence independent of these notebooks to support the conclusion
that Wilson made the layoff decision prior to the Union's demand for
recognition. We find that the admission of this evidence was not prejudicial
and shall therefore affirm these rulings
2 The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 enfd. 188 F.2d 362 (C.A 3). We have carefully
examined the record and find no basis for reversing his findings.
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was tried at Seattle, Washington, on July 25, 26, and
September 5, 1973. The charge was filed on April 3, 1973,
by Sheet Metal Workers International Association, Local
383, AFL-CIO, herein called the Union. The complaint
issued on May 31, 1973, alleging that King Electrical Mfg.
Company, herein called Respondent, violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended.
Issues
The primary issues are:
1. Whether Respondent laid off 10 employees and
converted previous temporary layoffs of 4 other employees
to indefinite layoffs on March 23, 1973, to undermine the
Union and to destroy its majority status.
2. Whether Respondent converted those layoffs to
terminations effective April 1, 1973, for the same reasons.
3. Whether Respondent told an employee that certain
employees were being laid off because of the efforts of the
Union to represent them.
4. Whether on and after March 23, 1973, Respondent
unlawfully refused to recognize and bargain with the
Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-
examine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on behalf
of the General Counsel and the Respondent.
Upon the entire records of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Washington corporation, manufactures
electrical heating units in its Seattle, Washington, plant.
During the year preceding the issuance of the complaint,
Respondent purchased goods and services from outside of
Washington valued in excess of $50,000. The complaint
alleges, the answer admits, and I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended admits,
and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
i The transcript to the record is hereby corrected.
208 NLRB No. 137
KING ELECTRICAL MFG. CO. 917
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations that Respondent Violated
Sections 8(a)(1) and (3) of the Act
1. The General Counsel's case
a. The union a 'tivity, the question of Respondent's
knowledge of that activity, and the demand for
recognition
In mid-November 1972, Gary Nelson, who at the time
was the leadman on Respondent's swing shift,2 contacted
John F. Lubetich, an International organizer for the
Union, and told him that employees of Respondent were
interested in representation. Lubetich followed up on this
inquiry by holding a meeting at Nelson's house on
December 3, during which he distributed union authoriza-
tion cards to employees who attended. Some cards were
signed at that time.3 Subsequently, Nelson gave a number
of blank authorization cards to Ralph Neeland,4 who
solicited employees and secured many signed authorization
cards. Other employees also participated in the organiza-
tional drive. By March 7, 1973, 18 employees had signed
the cards. As of Mach 23, 1973, when the Union requested
recognition from Respondent, all 18 card signers were still
employed. The total employee complement in the appro-
priate units as of that time was 23.6
On the evening of March 22, 1973, 16 of Respondent's
employees attended a union meeting at which the various
alternatives for securing recognition were discussed.
Lubetich said that ?he Union would go to the plant, or at
least send a letter, no later than Monday, March 26. A
number of employees requested Lubetich to go to the plant
the following morning, Friday, March 23. It was decided at
that meeting that representatives of the Union would go to
the plant the following day about 1 p.m. to request
recognition from Respondent.
At 2 p.m. on Friday, March 23, 1973, Lubetich together
with two other union representatives went into the plant
office of Robert Wilson, Respondent's chief management
official,7 claimed to represent 80 percent of Respondent's
employees, and requested recognition as the exclusive
bargaining agent. Wilson refused to grant recognition.8
That conversation took place between about 2:05 p.m. and
2:35 p.m.
Though it seems likely that Wilson would have obtained
some information about the union organizational drive
during the months preceding the demand for recognition,
he testified that he first became aware of union activity at
2 Nelson continued Jr that position until the swing shift was discontin-
ued on December 8. 1972 About a week later he quit Nelson's status as a
supervisor is in issue
R The cards read: "I, the undersigned, hereby authorize the SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION, or any affili-
ated Local Union thereof, to represent me for purposes of Collective
Bargaining , and in my behalf , to negotiate and conclude all agreements as
to hours of labor, wages, and other conditions of employment "
4 Neeland's status as a supervisor on and after January 1, 1973, is in
issue. It was stipulated that before that date he was an employee and was
not a supervisor within the meaning of the Act
I The complaint alleges , the amended answer admits , and I find that the
following unit is appropriate for bargaining within the meaning of Sec. 9(b)
of the Act:
the plant when the demand for recognition was made to
him at about 2 p.m. on March 23, 1973. There is no
evidence in the record to contradict Wilson's assertion.
Indeed, in arguing another point in his brief, the General
Counsel agrees that Wilson had no prior knowledge. The
briefs states: "The secret signing and turning in of
authorization cards by employees is the obvious reason
why Wilson was totally unaware of the union activities
until the time of the demand on March 23, 1973." I
therefore credit Wilson's assertion that he did not know of
the union activity before that time.
b. The layoff of March 19, 1973
Eighty-five or ninety percent of Respondent's operations
involve the manufacture of baseboard heaters. The balance
consists of work on such items as fireplaces. The first step
in the production of baseboard heaters is performed in the
element department where work is done on the coil
elements that go into the heaters. Violet Buchanan is the
supervisor in that department .9 On Monday, March 19,
1973, there were four employees in the element depart-
ment. All four were laid off on that date. Wilson makes all
decisions with regard to layoffs and terminations. As noted
above, he did not know of any union activity in the plant
until March 23, and there is no allegation by the General
Counsel or in the complaint that these layoffs were in
violation of the Act. However, the General Counsel does
contend that the circumstances surrounding those layoffs
are important in evaluating Respondent's subsequent
conduct of March 23, 1973.
The four employees laid off on that date were Joyce
Doyle, Mary Hintz, Brenda Pineda, and Charlotte Serdahl.
The testimony of all four was mutually corroborative.10 In
substance it was as follows: On March 19, Buchanan spoke
to the four employees individually and told each of them
that there was no work for them for the remainder of the
week because of a lack of supplies, and that they were to
come back to work on Monday, March 26, 1973. The
employees asked whether they should call in first and
Buchanan told them that it was not necessary, and that
they could dust report back for work on Monday. On
Friday, March 23, Buchanan called each of the four
employees on the telephone. She spoke to Hintz' daughter
about 2:30 or 3 p.m., Serdahl about 3 or 3:30 p.m., Doyle
about 3:30 p.m. and Pineda's husband about 3:45 or 4 p.m.
Buchanan told each of them that the layoff would continue
and that there would be no further work for them until
they were called again . On March 28, Buchanan called the
four employees on the telephone once again and informed
All production employees, maintenance employees and shipping and
receiving employees employed by the Employer at 913 1 -10th Avenue
South. Seattle. Washington, excluding office clerical employees,
salesmen, guards , watchmen, professional employees and supervisors
as defined in the Act
6 Four of those employees were on layoff status
7 Wilson is president, general manager , and sole owner of the stock of
Respondent . I find that he is a supervisor within the meaning of the Act
" Later the same day Lubetich mailed a letter to Wilson confirming the
prior oral request That letter was received on March 27, 1973.
9 The answer admits and I find that Buchanan is a supervisor within the
meaning of the Act
10 The only major exception was that of Pineda who appears to have
confused some of the events of March 28 with those of March 23.
919 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them that she didn't know when they would be called back
and they were free to look for other jobs or to sign up for
unemployment.
Buchanan testified that on March 19 she told the four
employees that there would be no work for them that week
because parts had not come in and that she would be in
touch with them. She denied that she told them to come
back the following Monday and asserted that Doyle and
Serdahl asked her to call them so that they could start their
unemployment if their layoff was going to be longer.
Buchanan testified that she called all four employees on
the telephone at 2:30 p.m. on Thursday, March 22, 1973,
and spoke to Pineda's husband, Hintz' daughter and the
other two employees. She averred that she told them that
she didn't know when they would be back to work because
the parts had not come in and that if they wanted to they
could sign up for unemployment. In her initial testimony
she averred that she called the employees on March 22 or
23 and didn't recall the exact date. When she was recalled
as a witness she used the date March 22 in referring to that
incident. Buchanan also acknowledged that she called the
employees again on March 27 or 28 and told them that
there was no work.
The corroboratory' nature of the testimony of the four
employees convinces me that their recollection of the
events in question is more accurate than Buchanan's and I
credit them. I therefore find that the four employees were
told by Buchanan on March 19 to report back to work the
following Monday, March 26. I also find that shortly after
the union representative requested recognition on March
23, Buchanan called the four employees and told them that
the layoff would continue until further notice.
c. The incidents of March 23, 1973
The meeting at which the Union requested recognition
lasted until 2:35 p.m. on March 23, 1973. At 2:40 p.m.
Wilson went into the production room of the plant where
three of his supervisors (Buchanan, Charles Storhoff, and
Joe Tyree)" were having coffee. Wilson spoke about
certain problems that Respondent was having with a
competitor named Tennessee Plastics. During this meet-
ing he also asked them if they knew that there was union
activity in the plant. They all said that they didn't know
anything about it except for Tyree who volunteered the
fact that he had been contacted by Lubetich.12 At the same
meeting Wilson told the supervisors that there was going to
be a substantial layoff of employees. He also told the
supervisors in substance that it was going to look very bad
to have a layoff, but as it takes a great deal of preparation
11 It was stipulated that Tyree was a supervisor . Storhoff was directly
under Wilson in Respondent 's supervisory hierarchy.
12 Sometime previously, Lubetich had asked Tyree whether Tyree could
obtain a list of names of employees. Tyree had refused..
13 Neeland was not present at that meeting . Wilson asked him whether
he knew anything about the Union in a conversation about 4:30 p.m. that
day. Neeland replied that he did . Wilson said that he really didn't want to
know who had signed cards and who hadn 't because if he did know it might
be claimed that he laid employees off because of the union activities. Wilson
asked who had started it and Neeland replied that it was Nelson . At that
time Nelson was no longer employed . Though Neeland 's status as an
employee or supervisor on other dates is in issue , the General 'Counsel does
not contend that he was an employee subject to unlawful interrogation at
that time . In his brief the General Counsel states : "General Counsel does
to shut the plant down , he had to go through with it.
Wilson testified that the supervisors already knew that
there was going to be a shutdown and that he merely
reconfirmed that fact at the supervisory meeting.13 The
meeting lasted until about 3:10 p.m . Between 3:10 and
3:30 p.m. Wilson went to a number of employees who he
wanted to come in the following Monday and told them to
report on that day . &bout that time Storhoff spoke to four
employees on the assembly line. He told them that they
would be laid off for a few days.14
Paragraph 10 of the complaint alleges that on March 23,
1973, Respondent violated Section 8(axl) of the Act by
Buchanan telling an employee that other employees were
being laid off because of the efforts of the Union to
represent them . The complaint does not allege any other
independent violation of Section 8(a)(l) of the Act. With
regard to that incident, employee Betty Hollis testified that
at 2:40 p .m. on March 23, 1973, while she was working in
the element department, Buchanan told her , "Well, you're
laid off and it might be for quite a while, the union 's trying
to get in." 15
Buchanan averred that she had a conversation with
Hollis about 10 a .m. on March 23 in which she told Hollis
that there was no work in her area . However, she testified
that this conversation occurred before she had any
knowledge that the Union was active in the plant and that
she did not then or later say anything to Hollis about the
Union.
Buchanan was not always completely accurate in her
testimony . As noted above , I have credited the testimony
of the four employees who were laid off on March 19
where that testimony conflicted with hers. In addition, her
testimony varied at times from assertions she admitted
making in an unsigned statement given to an agent of the
Boar. In that statement she said that there was no
discussion about the Union in the supervisor meeting of
March\ 23, while in her testimony she acknowledged that
there had been such a discussion. In the statement she
indicated she received a memorandum from Wilson on the
morning of March 23 relating to the anticipated layoff,
while in her testimony she asserted that she received it on
the 22nd . While I believe that Buchanan was not always
completely accurate in her recollection of events, and
particularly of dates, I was impressed by her straightfor-
ward manner and I believe she was a basically credible
witness. Though Hollis also appeared to be a candid and
credible witness, I am persuaded that Buchanan's denial
that she mentioned the Union to Hollis is worthy of belief.
Buchanan's demeanor on the witness stand indicated to me
not dispute that Neeland became a supervisor a day or two before March
23, 1973." In any event, there is no allegation in the complaint that
Respondent unlawfully interrogated employees. In this conversation Wilson
also talked about problems created by Tennessee Plastics.
11 Employee Kulp credibly testified that Storhoff told her that it would
be a short layoff for inventory purposes. Employees King and McDonald
credibly testified that they were told the layoff would be for a few days.
15 Hollis worked both in the office and in the production area. In the
office she helped prepare catalogues . For some days prior to March 23 she
had worked on the catalogues . Wilson wanted to tell her at the end of the
workday on March 22 not to come back because there was no more
catalogue work, but he did not reach her and she came back the following
morning March 23. At 9:30 that morning Wilson told her that it was her
last day and sent her to Buchanan's element department.
KING ELECTRICAL MFG. CO.
that she was a cautious person who would not be likely to
volunteer information that might cause a problem for
herself or her employer. There had been another union
organizational drive by a different labor organization
sometime before while Buchanan was working for Respon-
dent. A prior election had been set aside because
Buchanan had been seen in the election area.16 She was,
therefore, well aware that her actions or statements
concerning the current drive could create a problem. In
addition, it is noted that within hours after the Union's
March 23 demand she called the four employees who had
been laid off on March 19 and none of those employees
indicated that the Union was mentioned. Hollis' assertion
that Buchanan mentioned the Union to her stands out in
stark isolation and does not fit into any established pattern
of conduct. I am unable to credit Hollis and I do credit
Buchanan's denial.
At 3:45 p.m. on March 23 Wilson addressed the
assembled employees in a production area of the plant.
The meeting took 4 or 5 minutes. During that time Wilson
spoke of the economic problems caused by the competition
of Tennessee Plastics, told the employees there was going
to be a layoff, and asked them to write their phone
numbers on the back of their timecards. In the course of
the meeting he mentioned problems that Respondent had.
There is a conflict of testimony with regard to his reference
to those problems. Five employees17 testified that Wilson
said in substance that a couple of problems had walked in
the door or in his office. Three other employees Is testified
that he said another problem came up or that some
problems had arrived. Wilson averred that he only
mentioned problems in the context of the economic
problems created by Tennessee Plastics and that he did not
say anything about problems walking in the door. He
testified that he received a number of phone calls that
morning concerning Tennessee Plastics and that he
referred to them in his meeting with the employees. I credit
Wilson's testimony in this regard. He impressed me as a
m4n who would :)e very careful in choosing his words and
also very accurate in remembering what he said. In any
event, even if Wilson did refer to problems walking in the
door, I do not believe that in the context of the entire
meeting such a remark could be interpreted as an
admission by Wilson that he was laying the employees off
because of the Union's demand.
The workday ended at 4 p.m. on March 23 and a number
of employees including the 10 named in the complaint19
were laid off at that time.
16 Wilson credibly testified that in 1969 the International Brotherhood of
Electrical Workers engaged in an organizational effort that led to two Board
conducted elections which that union lost. He averred that the first was set
aside because of the presence of Buchanan in the polling area.
17 Hollis, Kulp, McDonald, King, and Clarv.
is Neeland, Gonzales, and Vallende
19 These employees were: Donald Cantrell, Betty Hollis, Eddy Hooker,
Catherine King, Duane Klusman, Dan Kopp, Sharon Kulp, Roberta
McDonald, Donald McGregor, and Mark Shickley There is no contention
that Wilson knew who had signed cards for the Union or that any
employees were selected for layoff because of their individual union
activity.
919
d. The letter of March 26, 1973
On March 23, 1973, Respondent sent the following letter
to 13 of the 14 employees named as discriminatees in the
complaint: 20
Do to the economic uncertainties of this industrie [sic ]
caused by Tennessee Plastics and the slow down in
business it was with sincere regret you had to be
discharged on Friday March 23, 1973. Since this is not
a temporary lay off you may wish to contact King
County Medical to continue your coverage which will
terminate on April 1, 1973, under our current group
plan.
Robert E. Wilson
King Electrical Mfg. Co.
Wilson acknowledged that no such letter had been sent
in prior layoffs. He averred that in a prolonged layoff the
prior year, Respondent had continued to pay premiums on
a medical plan for a number of laid off employees who
secured other employment or who did not return after the
layoff. He further testified that at that time (the prior year)
he decided that for any future prolonged layoff he would
notify the employees that their medical coverage would be
terminated. According to Wilson, the March 26 letter was
simply the effectuation of that decision which he had made
the year before.
Though the letter of March 26 used the word "dis-
charge," all of the alleged discriminatees were offered
reemployment. Eight of them accepted the offer and
returned to work.21 Though new employees were hired at
various times for certain work, Respondent offered
reinstatement to all laid off employees who had performed
the type of work for which the recall was made before
hiring any new employees.22
e. Wilson's conversations with Gary Nelson, Brenda
Pineda and Dan Kopp
Near the end of April 1973, Wilson had a telephone
conversation with Gary Nelson. Nelson had left Respon-
dent's employ the month before. Nelson testified as
follows: Wilson said that he had heard that Nelson had
started working with the Union, and Nelson admitted that
he had. Wilson asked the names of people involved in the
Union, and there was a discussion concerning a number of
the employees. Nelson did not tell Wilson about the
activities of any of the employees other than Neeland.
Wilson said the three union representatives walked into his
office and told him that a majority of the people wanted
the Union. Wilson referred to the representatives as hoods
or thugs and expressed a negative attitude about the
20 It was stipulated that 13-named employees were sent the letter The
stipulation mentioned the names of all the alleged discriminatees except for
Pineda.
21 The following employees returned to work on the dates indicated-
Pmeda, April 23, 1973; Shickley, May 9 ; Hintz and King, June 4; Serdahl,
June 5; Doyle and McDonald, June 11 , McGregor, July 9. The following
employees were offered, but refused , reinstatement on various dates in May
1973 (except for Hollis where the date was late May or early June): Hollis,
Kopp, Cantrell, Hooker, Kulp, and Klusman
22 These findings are based on Respondent's records and the uncontra-
dicted testimony of Wilson
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. Wilson also said that shortly after the men came
into his office, he had to lay off a majority of the plant.23
Wilson referred to the Union in conjunction with the
economic problem arising from Tennessee Plastics. Wilson
also told Nelson: "all the people that worked for me have
you to blame for losing their jobs ...." 24
Wilson testified that the conversation was somewhat
different. According to Wilson: Wilson told Nelson that
Neeland had said that Nelson started the organizational
drive, and Nelson acknowledged that he had. Wilson, who
considered Nelson to be a close personal friend, asked in
effect why Nelson had done this to him. Wilson asked
Nelson which employees were involved in the Union, and
they discussed a number of employees in the plant. Wilson
told Nelson that he thought that Tennessee Plastics might
be trying to put him out of business through the Union.
Wilson said that Tennessee Plastics had just been organ-
ized by the Sheet Metal Workers, and he thought that the
Union was an agent of his competitor who was out to
injure him. Wilson also said that if Nelson had been an
instrument of Tennessee Plastics, then Nelson was respon-
sible if the Company shut down. Wilson did not tell Nelson
that he had to layoff the whole plant after the three union
agents walked in, and he did not blame Nelson for being
responsible for the loss of the employees' jobs.
Nelson was not always a fully candid witness. He
testified at one point that he did not ask any employees to
sign cards 25 However, in a prior affidavit, he acknowl-
edged that he had asked employees to sign cards. When
confronted with the affidavit, he at first said that he may
have asked people to sign, and then he changed his mind
and said that he had not asked people to sign. I believe that
Wilson's recollection of the conversation was more
accurate than Nelson's, and I credit Wilson's testimony as
to what was said.
Brenda Pineda left Respondent's employ on June 1,
1973. At 4 p.m. that day, when her employment was ended,
Wilson had a conversation with her in his office. Pineda
testified to the following: Wilson told her that she was no
longer an employee so he could talk to her. He asked her if
she had signed a union card. She replied that she had. He
asked why she wanted a union, whether she had been
satisfied with working conditions and whether she knew
anything about the union they had chosen. He said he
didn't think much of it.
In his testimony, Wilson acknowledged that he had a
conversation with Pineda at that time. He denied that he
asked her if she signed a union card and also denied telling
her that he thought that the employees had picked a
terrible union. He acknowledged that he did ask her why
the women in the plant picked the Union to represent
them. He also acknowledged that he asked her what the
working conditions were that encouraged them to want a
union and what the Company had done wrong. He asked
23 In an affidavit that he gave to the Board, Nelson quoted Wilson as
saying, "As soon as I found out about the Union from the three people, I
had to lay off a majority of the plant. What else could I do" The summary
of Nelson's assertions set forth above are based on the testimony that
Nelson gave on the stand, which I believe is more reliable than his affidavit
24 It is noted that in an affidavit Nelson gave the Board, he did not state
that Wilson told him that he (Nelson) was to blame for the employees losing
what could be improved for the people who would come
back to work.
I credit Wilson's version of the conversation. Pineda may
well have interpreted Wilson's question concerning why
the women picked the Union as an interrogation relating to
her own union activity, but I believe Wilson had an
accurate recollection of what was said.
Wilson made several efforts to recall Dan Kopp. When
Kopp called Wilson back to say that he definitely would
not be returning, Wilson asked him if he had attended the
union meeting on March 22. Kopp replied that he had.
Wilson then asked him whether the union representatives
knew that there was going to be a layoff the following day.
Kopp replied in the negative. Wilson then said that there
was going to be a layoff, the Union knew it, and they were
playing the Company for suckers.26 With regard to that
March 22 union meeting, employee David Vallade credibly
testified that he recalled someone saying that they should
be sure to ask their supervisors when they were laid off
why they were laid off and whether it was for union
activity. He did not remember who made that statement.
Employee Mary Hintz also credibly testified that there was
general conversation among the employees at that union
meeting to the effect that they would be laid off. She
testified, however, that she was told the layoff would be
because of the Union.
2. The Respondent's case
a. Respondent's contentions
Respondent contends and presented evidence intended
to establish that the shutdown of its baseboard heater
operation and the resulting mass layoff of March 23 was
unconnected in any way with the Union 's activities in the
plant. According to Respondent, the shutdown was
planned before it obtained knowledge of any union activity
and was consistent with patterns of production that had
been followed for many years.
The testimony of Wilson, which was corroborated in part
by Buchanan and Storhoff and which was supported in
part by documentary evidence, was in substance as
follows:
Eighty-five to ninety percent of Respondent's business
consists of the manufacture of baseboard heaters. Pro-
duction of these heaters is keyed to the needs of the building
industry and Respondent's business is therefore cyclical in
a pattern that is established by construction activity.
Construction normally starts in April, May, and June and
Respondent has to be prepared for the demand by keying
its busy time to the preceding September, October,
November, and December. While January is still a busy
month for Respondent, there is usually a slackening off in
February. March is a low point and April, May, and June
are the poorest months in the business . That is the time
their jobs. This omission is one factor to be considered in evaluating
Nelson's credibility
2.3 There was much testimony concerning Nelson's union activity
because Nelson was alleged to have been a supervisor.
26 This finding is based on the credited testimony of Kopp Wilson
testified that he called Kopp and asked him to return but that he did not
remember speaking about the Union
KING ELECTRICAL MFG. CO. 921
when there is the greatest period of slack in both sales and
employment.
In February 1973 sales began declining in conformity
with the usual seasonal pattern. Wilson anticipated a
further slowdown in March and April. In February he
wrote and placed on a production board, which is visible to
anyone in the plant who wishes to read it, a production
schedule that showed all work to be completed by March
15, 1973. At that time he anticipated that there would be a
shutdown of all baseboard production on March 15. In
prior shutdowns Wilson never gave advance notice to
either the employees or his supervisors in the belief that
such advance notice caused a falling off of work.27 He gave
no advance notice on this occasion.
Wilson was out of town on a business trip from March 1
through March 11, 1973. On March 13 Buchanan informed
Wilson that she was out of work for the four employees in
her department. Wilson told her that they were reviewing
production and there would be a layoff. On the same day,
March 13, Wilson wrote in his notebook "start shutdown
week of 19." 28 On March 14 and 15 Wilson reviewed
inventories and came to the conclusion that production
had slowed down during his absence and that some more
work was needed. On March 16 he revised the production
schedule to show another week's work. This revised
schedule showed 39.73 hours of work for the factory in the
production of baseboards. A few days later the revised
production schedule was posted. All the supervisors and
most of the employees could interpret the schedule and
they therefore knew that no work was scheduled beyond
March 23. On March 15, the day before the revisions were
made for the production schedule, Wilson wrote "layoff"
in the March 23 box of a calendar in his notebook. The
words "payroll end" were also put in that box.
Consistent with his decision to close the baseboard
heater part of his factory, Wilson began to cut back on the
delivery of supplies that he ordinarily needed for the
manufacturing process. The week preceding March 16 he
called one of his suppliers, Honeywell, Inc., and requested
a delay in the delivery date of materials. The original order
had been placed on February 7, 1973, for delivery on
March 15, 1973. The delivery date was changed to April
27, 1973. On March 16 a revised purchase order was made
out to reflect the new delivery date. Supplies ordered from
American Steel, Inc., on February 7, 1973, for delivery on
March 12, 1973, were on March 9 given a new date of
delivery of April 23, 1973. On March 16, 1973, Wilson
changed the delivery date on an order placed with
Honeywell on February 7, 1973, from April 5, 1973, to
May 25, 1973.
On March 21 Wilson typed the following memo to
Storhoff and Buchanan and placed it on their desks:
27 Both Buchanan and Storhoff corroborated the fact that they were not
given advance notice of prior layoffs
28 The notebook and other documents mentioned below were admitted
into evidence
21 In her initial testimony, Buchanan averred that she received this note
on March 21 When confronted with her unsigned statement in which the
date was set forth as Friday morning, March 23, she averred that she was
confused as to the date given in the statement but that she received the note
on March 22 Storhoff '.estified that he received the note on March 21, but
that he didn't recall the day. I credit Wilson's testimony that he handed out
the note on March 21.
Reduction in employees
Do to the price activity of Tennessee Plastics , Inc. we
will probable have a substantial lay-off. No date has
been set but it will be very soon. [ sic]29
Wilson sent this note because Buchanan had been in and
out of the plant with serious personal problems and he
wanted to make certain that she took no action as a
supervisor inconsistent with the coming shutdown. Sto-
rhoff, as Wilson's second in command, received copies of
all such memos.
On March 22, 1973, Wilson wrote the following in a
memo notebook:
3-22-73
Shut plant down on Friday 3-23-73 lay off Joe Tyree
and most of fab. Keep Ralph Neeland-Storhoff-let
Vie go until inventory-finish furnaces with Carol Rich
keep Spence for kuh & shearing KCC grills lay off
Janice in the office 3-23-73. Hold payroll to approx
5000.00
On the same day Respondent wrote out an anticipated
payroll which reflected the mass layoff to come the
following day.
As set forth in detail above, Wilson instructed Buchanan
to lay off all four employees in her department on March
19, 1973. Buchanan carried out those instructions on that
day 30 The mass layoff took place on March 23, which was
the last working day of a payroll period. The last week in
March was used for inventory and March 31, 1973, was the
end of Respondent's fiscal year.
A summary of material in Respondent's records supports
Respondent's contention that both sales and employment
are down each spring. The 4-year average of sales shows a
substantial drop in sales in February, a further drop in
March and even greater falloffs for April and May. The
figures for the total employment complement (including all
persons employed) for the last 4 years show that there has
been a substantial layoff in the spring of each year. In
1970, 8 employees were laid off in the eighth payroll period
(the payroll periods are 2-week intervals beginning in
January each year), reducing the work force from 25 to 17.
That year it took until the 19th payroll period for the
complement to get back to 19. In 1971 there was a layoff of
8, from 27 to 19, in the seventh payroll period. In the eighth
payroll period, two more were laid off. It was not until the
14th payroll period that the complement rose to 22. In 1972
there were 10 layoffs, from 33 to 23, in the fifth payroll
period. The complement did not rise to 26 until the 11th
payroll period. For the layoff in question, which was 1973,
eo Though I have found that Buchanan told those four employees to
report back for work the following Monday, March 26, 1973, 1 do not
believe that an inference is warranted that as of March 19 Buchanan knew
there was going to be work for them on that Monday Buchanan saw there
was no immediate need for the employees and also anticipated the mass
layoff. However, with Wilson 's policy of not informing his supervisors when
layoffs were going to occur, it is reasonable to assume that she told her
employees to come back the following Monday because she did not know
just when the closedown would occur and she didn 't want the responsibility
for making it an indefinite layoff until she received the final word from
Wilson.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there were 13 layoffs, from 33 to 20, in the eighth payroll
period and 2 more in the ninth.31 The complement did not
rise to 30 until the 14th payroll period.
Respondent's records show that in 1970, 18 persons were
laid off, of whom 7 returned to work. Eight of the layoffs
were on March 20, 1970. One of those eight returned in
May. two in June and one in October 1970. In 1971 there
were 15 layoffs, of whom 5 returned to work. Seven were
laid off on March 12, 1971, and one on March 19. Three of
those eight returned in mid and late April and one in July
1971. In 1972, 10 were laid off of whom 3 returned. The
first layoff was on January 29, 1972. There were eight more
between February 5 and 19 and one on March 11, 1972. Of
these 10, 2 returned in May and 1 in December 1972. With
regard to the payroll period ending March 24, 1973, there
were 3 1-day layoffs, 2 1-week layoffs, 14 indefinite layoffs
.the employees named in the complaint) and 2 permanent
layoffs (one a supervisor and one an office employee). Of
the 14 indefinite layoffs, all were offered reemployment
and 8 returned to work. The first returned April 23 and the
last July 9, 1973.32
b. Findings with regard to Respondent 's contentions
Wilson's assertion that the March 23 shutdown was
planned before the Union demanded recognition is
supported by much documentary evidence. Though Wilson
asserts that his notations in his notebook, concerning the
prospective layoffs, and the proposed list of employees
who would be working after the layoff, were made prior to
March 23, it would not have been difficult for Respondent
to make those notations and the list after the Union's
demand for recognition. In deciding what weight to give to
Wilson's testimony I have considered that fact. However,
there is much corroborative evidence independent of those
notations and the list. The documentary evidence clearly
establishes that the week preceding March 23 Respondent
was actively seeking to limit the inflow of materials used in
the manufacturing process. The purchase orders showing
delayed delivery dates makes it clear that Respondent did
intend to limit production before March 23. The March 21
note to Buchanan and Storhoff indicated the layoff would
be "very soon." The production board posted on about
March 19 showed no work after March 23. The compari-
son with prior years shows that Respondent's conduct was
fully consistent with the pattern established in prior years
when the Union was not in the picture. The layoff of the
four employees who worked under Buchanan indicates
that the general layoff was not only in the planning stage
but was beginning to become operative 4 days before the
Union's demand for recognition.
Wilson asserts that the shutting down of the baseboard
section of his plant could not be done without substantial
prior planning. That assertion is fully credible. My
observation of Wilson as he testified convinced me that he
is a cool, efficient manager who would not be subject to
31 These figures , which are obtained through Resp . Exh 13, are not fully
consistent with the detailed breakdown set forth in Resp. Exh. 16 Where
there is a discrepancy, I rely on Exh 16 as set forth below.
.12 For the dates the employees returned and the dates on which the
offers to return were made to the other employees see In . 21, and Resp. Exh.
16.
emotional tantrums that might hurt his business. The
General Counsel contends that Wilson decided to close
and informed his supervisors of the layoff within minutes
after the Union made its demand for recognition and
notified the employees only shortly thereafter. I do not
believe that Wilson made a spontaneous decision to close
the major portion of his plant when the Union demanded
recognition. To do so without any prior preparation could
have resulted in unfulfilled customer orders, surpluses of
materials, and other harm to the Company. I am persuaded
that Wilson had prepared for the shutdown well before the
Union's demand as was reflected by the production board
made up on March 16 which showed that there would be
no work after March 23.
In sum, I credit Respondent's assertions set forth above
and particularly its assertion that the March 23 shutdown
was planned before it obtained knowledge of any union
activity and was consistent with patterns of production
that had been followed for many years.
3. Conclusions
The General Counsel has established by credible
evidence that some of Respondent's employees were active
on behalf of the Union and this activity was manifested
through the Union's demand for recognition on March 23;
that at the time of the demand. Respondent learned of the
union activity; that Respondent bore a hostility against the
Union; that the same afternoon it learned of the union
activity, Respondent closed a large portion of its factory
and indefinitely laid off the 14 employees named in the
complaint; and that 3 days later, on March 26, Respondent
wrote to 13 of those employees, telling them that it was not
a temporary layoff but that they were discharged.
Though there was no credible evidence of any independ-
ent violations of Section 8(a)(1) of the Act, Respondent's
conversations with Nelson, Pineda, and Kopp establish
that Respondent did bear an animosity against the
Union.33 It is noted, however, that the animus expressed
against the Union by Respondent did not appear to be so
virulent as to supply a powerful motive for Respondent to
close most of its factory. It is also noted that the timing of
the demand for recognition with regard to the plant closure
can be explained in more than one way. Wilson' s statement
to Kopp that the Union knew there was going to be a
layoff and was playing him for a sucker may not have been
based on pure conjecture. Employee Vallade recalled that
someone at the March 22 union meeting said that the
employees should be sure to ask their supervisors when
they were laid off why they were laid off and whether it
was the union activity. Hintz also recalled talk at the
meeting about a layoff. At the same meeting, Lubetich said
the Union would go to the plant or at least send a letter no
later than Monday, March 26, but a number of the
employees requested that he go the following morning,
Friday, March 23. That request may well have been
33 The evidence does not warrant an inference that Respondent was
seeking to use these three ex-employees as conduits through which to
unlawfully influence employees Cf. Watgreen Co, 206 NLRB No. 15
General Counsel does not contend nor does the complaint allege that
Respondent violated Section 8(a)(1) through these conversations.
KING ELECTRICAL MFG. CO. 923
prompted by knowledge on the part of the employees that
the production board showed no work after March 23. If
so, the employees may have been afraid that if the Union
made its demand on March 26 they would already have
been laid off. Though there is no clear proof that the
Union's demand was timed to immediately precede an
anticipated layoff, a question must be raised as to whether
the inference is warranted from all the facts that the
closedown which followed shortly after the demand was
caused by the demand.34
The wording of Respondent's March 26 discharge letter
does lend support to the General Counsel's contentions. In
past layoffs such "discharge" letters had not been sent.
However, Respondent's assertion that the purpose of the
letter was to limit its liability for medical payments and
that the decision to send such a letter had been made the
year before must :)e viewed in the light of Respondent's
subsequent conduct. All of the 14 laid-off employees were
offered their jobs back. The layoff was comparable in
length to layoffs in previous years. In fact, a larger
percentage of laid-off employees returned to work than
had returned in prior years. I credit Wilson's assertion that
the letter was sent to limit medical payments, and I
therefore do not find that it was motivated by the
employees' union activity.
In Wilson's late April 1973 conversation with Nelson,
Wilson said that he thought a competitor was using the
Union to injure him and that if Nelson was an instrument
of that competitor, then Nelson was responsible if the
Company shut down. Wilson was referring to economic
problems that he anticipated from the competitor and the
Union, but I do not believe that the conversation can be
used as probative evidence to establish that the layoff of
March 23 was caused by union activity.
General Counsel's case must be viewed in the light of the
Respondent's defense. Respondent has established by
credible evidence, and I have found, that the March 23
shutdown date was set by March 16 when Wilson wrote the
new production schedule. Preparations for an orderly
shutdown were set in motion even before that date through
the obtaining of extended dates for delivery of supplies.
The first stage o^ the shutdown occurred on March 19
when the four employees under Buchanan were laid off. In
short, for the reasons already stated, I find that Respon-
dent did not make a spontaneous decision to shut the plant
when the demand for recognition was made on the
afternoon of March 23. The decision to close on March 23
preceded the demand for recognition. Wilson's testimony
that he was totally unaware of the union activity until the
time of the demand on March 23 is not contested by the
General Counsel, who in his brief refers to the secret
signing of the cards as the obvious reason why Wilson was
unaware of the union activities until the demand. As I have
found that Wilson did not have knowledge of the union
34 Cf. Roman Cleanser Co, 188 NLRB 931.
35 With regard to the single, independent Section 8(a)(1) allegation of the
complaint , as set forth above, I have not credited Hollis' assertion that
Buchanan told her: "Well, you're laid off and it might be for quite a while,
the union's trying to get in "
36 Respondent has raised several alternate defenses to the allegation that
it violated Section 8(a)(5) of the Act . Its contention that the authorization
cards relied on by the Union to establish a majority claim were tainted in
activity until the demand of March 23, it follows that there
can be no causal connection between the decision to close
the plant on March 23 (which was made prior to the
demand) and that demand.
In conclusion, I find that the decision to close part of the
plant and lay off employees on March 23 was made before
Respondent obtained any knowledge of union activity, and
that the effectuation of that partial closedown and layoff
on March 23 was not motivated by a desire to undermine
the Union or to destroy its majority status as alleged in the
complaint. In addition, I find that Respondent's letter of
March 26 was not motivated by those reasons. I shall
therefore recommend that the portions of the complaint
that allege violations of Section 8(a)(1) and (3) of the Act
be dismissed.35
B. The Allegation that Respondent Violated Section
8(a)(5) of the Act
An employer need not accept a union's representation
that it represents a majority of the employer's employees.
In such circumstances an employer can lawfully refuse to
recognize a union as long as it refrains from unlawful
coercion of the employees and from other unlawful
conduct that would "have the tendency to undermine
majonty strength and impede the election process."
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
The bargaining order sought by the General Counsel in
this case is predicated on a contention that Respondent's
violation of Section 8(a)(1) and (3) precluded the possibili-
ty of a fair election. General Counsel's brief states "the
pervasive unfair labor practices committed by Respondent
make it impossible to conduct a fair election in the instant
case." However, as found above, Respondent did not
violate Section 8(a)(1) and (3) of the Act as alleged in the
complaint. The election route for recognition has not been
obstructed by Respondent's unlawful conduct. I therefore
find that Respondent did not refuse to bargain in violation
of Section 8(a)(5) of the Act, and I shall recommend that
that allegation in the complaint be dismissed.36
In conclusion I find the General Counsel has not
established by a preponderance of the credible evidence
that Respondent violated the Act as alleged in the
complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
that they were secured by Supervisors Nelson and Neeland is based on
substantial record testimony There is also testimony concerning the
allegation that authorization cards were obtained through misstatements
concerning their purpose The General Counsel introduced evidence
intended to refute Respondent 's contentions . However, an evaluation of the
testimony relating to alternative defenses would needlessly extend this
decision in view of the findings set forth above
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record , and pursuant to Section 10(c) of the ORDER37
Act, I hereby issue the following recommended:
The complaint is dismissed in its entirety.
37 In the event no exceptions are filed as provided by Sec . 102.46 of the 102.48 of the Rules and Regulations, be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings , its findings , conclusions , and order , and all objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.