Redd-I, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1988

290 N.L.R.B. 1115 (N.L.R.B. 1988)

REDD-I, INC
Redd-I, Inc . and Sheet Metal Workers International
Association . Case 10-CA-21436
September 16, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 10, 1986 , Administrative Law
Judge J Pargen Robertson issued the attached de-
cision The Respondent and the General Counsel
filed exceptions, supporting briefs , and answering
briefs
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions, to modify the remedy , ' and to adopt
the recommended Order as modified 2
The General Counsel excepts to the judge's re-
fusal to allow the complaint to be amended to in-
clude an additional 8(a)(1) and (3) allegation con-
cerning employee Don Kelley 's discharge on
August 19 , 1985 Kelley was named as an alleged
discnminatee , along with eight other employees,3
in a charge filed September 30, 1985 (Case 10-CA-
21246) This charge was withdrawn November 14,
1985 On January 6 , 1986 , the charge in the instant
case was filed alleging that the Respondent violat-
ed Section 8(a)(1) and (3) by terminating the em-
ployment of all the employees named in the Sep-
tember charge with the exception of Kelley This
charge was amended March 3 , 1986, to include
seven additional employees who were also laid off
i In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987 ), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1981 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp , 231 NLRB 651 (1977)
2 The Respondent 's exceptions state , and we agree, that the figure rep-
resenting the Respondent 's weekly sales bookings for the week ending
August 2, 1985 , should read $92,157 and not $95,157 as it appears in the
table of weekly sales bookings in the judge's decision It follows, there-
fore, that the total figure should read $235,548 and not $238,548 for the
3-week period covering August 2, 1985 However , this error does not
affect the validity of Judge 's ultimate conclusion regarding the August 15
layoffs
The General Counsel has requested that the Order include a visitatonal
clause We find no need for such remedial provision in the circumstances
of this case See Cherokee Marine Terminal, 287 NLRB 1080 (1988)
Finally, we have modified the judge 's recommended Order to include a
notification paragraph and have attached a new notice to our Decision
and Order because the judge failed to include an expunction provision in
the recommended notice attached to his decision
s Seven of the other alleged discnminatees were laid off August 15,
1985 They are Robert Plemons , Bobby McFalls, Brenda F Harte, Fred
W Harte, Marguerite Price, Diana Lowe , and Michael C Parris The
eighth , Diane Hartman, was discharged September 20, 1985
1115
August 15 , 1985 Kelley's name was not included in
this amended charge On May 6, 1986, the Charg-
ing Party, by telegram, requested that the charge
be amended further to include Kelley's name
The General Counsel moved at the hearing to
amend the complaint to include an allegation con-
cerning Kelley's discharge 4 The judge first grant-
ed the General Counsel 's motion to amend but then
denied it after reviewing the parties' arguments
during a recess in the hearing The judge relied on
Winer Motors,5 prohibiting the revival of with-
drawn charges outside the 6-month limitations
period , to find the allegation concerning Kelley's
discharge barred by Section 10(b) Apparently the
judge interpreted Winer Motors as prohibiting the
revival outside the 10(b) period of any allegation
contained in a withdrawn charge, no matter how
closely related it is to another timely filed charge
that is still pending Thus, he refused to take any
evidence on the circumstances surrounding Kel-
ley's discharge to determine whether that allega-
tion was closely related to the allegations in the
pending timely charge , stating that Kelley 's "sepa-
rate discharge" was not sufficient "to trigger the
`relate back' doctrine " In his decision , the judge
denied the General Counsel 's posthearing request
that he reconsider this ruling on the motion to
amend
In her exceptions , the General Counsel argues
that the motion to amend the complaint should
have been granted because Kelley's discharge is
closely related to the allegations in the timely filed
January charge The General Counsel contends
that this is not an attempt to resurrect the dead al-
legations of the withdrawn September charge out-
side the 10(b) period , but rather an attempt to add
closely related allegations to the January charge
which has been pending and viable at all times
since it was filed
Contrary to the judge, we would allow the Gen-
eral Counsel to litigate the allegation that employee
Kelley's discharge violated Section 8(a)(3) and (1)
Even though Kelley's discharge occurred more
than 6 months before the General Counsel's motion
to amend the complaint, we would not find the
amendment barred under Section 10(b) as the judge
did, because the discharge occurred within 6
months of a timely filed charge and the alleged
violation appears to be closely related to the allega-
tions of that charge Furthermore , unlike the judge,
we do not find the withdrawal of an earlier timely
charge concerning Kelley's discharge relevant in
4 The record does not indicate whether the General Counsel took any
other action in response to the Charging Party 's attempt to amend the
charge
5 265 NLRB 1457 (1982)
290 NLRB No 140
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deciding whether the discharge allegation is closely
related to the charge in this case. Neither Winer
Motors nor Ducane Heating Corp.6 applies here, be-
cause neither case involved an attempt to add
closely related allegations to a pending charge.
Rather, each involved an attempt to reinstate the
dead allegations themselves without reference to
any other pending timely charge.'' Instead, we
would apply the traditional Board test to determine
if the untimely allegation is factually and legally re-
lated to the allegations of the timely charge, with-
out regard to whether another charge encompass-
ing the untimely allegation has been withdrawn or
dismissed.
On the record here, it appears that Kelley's dis-
charge may be sufficiently intertwined with the
other layoff and discharge allegations of this
charge to be considered closely related under the
traditional Board test. Because the judge did not
permit the General Counsel to present any evi-
dence about the circumstances surrounding Kel-
ley's discharge, however, it is not possible to be
sure. Therefore, we will remand that allegation to
the judge for further evidence and findings both on
the merits and on whether all the 8(a)(3) allegations
are closely related.
Traditionally, the Board and the courts have al-
lowed the General Counsel to add complaint alle-
gations outside the 6-month 10(b) period if they are
closely related to the allegations of the timely filed
charge. The most frequently cited test for finding
allegations closely related is set forth in Dinion
Coil:8
(1) A complaint, as distinguished from a
charge, need not be filed and served within the
six months , and may therefore be amended
after the six months. (2) If a charge was filed
and served within six months after the viola-
tions alleged in the charge, the complaint (or
amended complaint), although filed after the
six months, may allege violations not alleged
in the charge if (a) they are closely related to
the violations named in the charge, and (b) oc-
curred within six months before the filing of
the charge.
In deciding whether complaint amendments are
closely related to allegations in the charge, the
Board and the courts have looked at whether the
amendments are factually and legally related to the
charge. In National Licorice9 the Supreme Court
held that various complaint allegations were relat-
ed to the charge when the violations alleged in the
complaint were "of the same class of violations as
those set up in the charge and were continuations
of them in pursuance of the same objects." The
Second Circuit has said that "the complaint issued
by the Board must deal with the same subject
matter and sequence of events . . . although the
specific events stated in the complaint may precede
or follow those stated in the `charge."10 Finally,
the Board has found complaint allegations closely
related when they "arise from the same factual sit-
uation , are of the same class as, and clearly related
to, the [allegations] . . . set forth in the charge." l i
When applying this "closely related" test, neither
the Board nor the courts have mentioned the exist-
ence of another withdrawn or dismissed charge as
a factor considered determinative or even relevant.
They have only looked at whether there is a timely
charge now pending that would support the new
untimely allegation. We see no reason to depart
from these well-established precedents.
In his dissent, Chairman Stephens relies on pro-
cedural due process and fairness concerns to find
that the charge here did not put the Respondent on
notice that it would have to defend against an alle-
gation concerning Kelley's discharge. He finds the
allegation concerning Kelley's discharge is barred
by Section 10(b) because the withdrawal of an ear-
lier charge alleging the unlawfulness of this dis-
charge misled the Respondent into thinking it
would not be held accountable for any illegality
concerning the discharge after the 6-month 10(b)
period expired. Even though he finds that Kelley's
discharge is closely related to the allegations of a
timely charge that was still pending after the 10(b)
period ended, he concludes this second charge did
not put the Respondent on notice that it would
have to defend against an allegation that Kelley's
discharge was unlawful. It is not the function of
the charge, however, to give notice to a respondent
of the specific claims made against him. Rather,
8 273 NLRB 1389 (1985)
In Ducane, Member Dennis specifically noted that the Board had no
reason to pass on the question of whether another pending timely charge
might have supported the dismissed allegations under a "closely related"
theory, because of the way that case was litigated and briefed Id at 1391
fn 9.
8 NLRB Y Dinton Coil Co, 201 F 2d 484, 491 (2d Clr 1982), cited with
approval in NLRB v Complas Industries, 714 F 2d 729, 732-733 (7th Cir
1983), NLRB v. El Cortez Hotel, 390 F 2d 127, 129-130 (9th Cir 1968),
Goca4 Inc, 257 NLRB 270, 271 (1981), Red Food Store, 252 NLRB 116,
119 (1980), and Fern Laboratories, 240 NLRB 487, 488 fn 2 (1979)
8 National Licorice Co. v NLRB, 309 U S 350, 369 (1940)
10 Douds P Longshoremen , 241 F 2d 278, 284 (2d Cir 1957)
11 Jack LaLanne Management Corp, 218 NLRB 900, 913 (1975), enfd
539 F 2d 292, 295 (2d Cir 1976) In enforcing the Board 's decision on
this point, the Second Circuit stated that the additional complaint allega-
tions "are all concerned with similar unfair labor practices designed to
further the Company 's common objective . represent 'closely related'
parallel conduct toward other employees and constitute 'the same
class of violations as those set up in the charge (Citing NLRB P Font
Milling Co, 360 U S 301 ( 1959), and National Licorice, supra.)
REDD-I, INC
that is the function of the complaint 12 Denial of
due process is usually claimed in cases when the
complaint has never been amended to include alle-
gations that have been litigated and found to be
violations 13 Here, although the initial complaint
did not allege that Kelley's discharge was unlaw-
ful, the General Counsel moved to amend the com-
plaint on the first day of the hearing to add an alle-
gation concerning Kelley's discharge In Dinion
Coll,14 the Second Circuit specifically rejected an
argument that making a complaint amendment
dunng the hearing was a denial of due process,
absent some showing of surprise that would have
hampered presentation of the respondent's defense
at the hearing 15 There is no such showing in this
case
The First Circuit has stated that the test for al-
lowing allegations that have never been alleged in a
complaint to be litigated and decided is "one of
fairness under the circumstances of each case-
whether the employer knew what conduct was in
issue and had a fair opportunity to present his de-
fense "16 The Respondent here cannot claim sur-
prise because it knew on the first day of the trial
that Kelley's discharge was in issue and this was
well before it would have had to present its de-
fense on this issue Furthermore, the Respondent
here cannot claim it had insufficient time to pre-
12 It is well settled that it is the complaint , not the charge, that is sup-
posed to give notice to a respondent of the specific claims made against
it The Second Circuit stated in Douds v Longshoremen , 241 F 2d 278,
283-284 (2d Cir 1957)
The complaint , much like a pleading in a proceeding before a court,
is designed to notify the adverse party of the claims that are to be
adjudicated so that he may prepare his case, and to set a standard of
relevance which shall govern the proceedings at the hearing
The "charge" has a lesser function It is not designed to give notice to
the person complained of or to limit the hearing or to restrict the scope
of the final order It serves in the function of drawing the Board 's atten-
tion to a cause for economic disturbance
The Supreme Court agreed with this view in NLRB Y Fant Milling
Co, 360 U S 301, 307-308 (1959), when Justice Stewart stated
A charge filed with the Labor Board is not to be measured by the
standards applicable to a pleading in a private lawsuit Its purpose is
merely to set in motion the machinery of an inquiry The re-
sponsibility of making that inquiry, and of framing the issues in the
case is one that Congress has imposed upon the Board , not the
charging party To confine the Board in its inquiry and in framing
the complaint to the specific matters alleged in the charge would
reduce the statutory machinery to a vehicle for the vindication of
private rights This would be alien to the basic purpose of the Act
See also Texas Industries v NLRB, 336 F 2d 128, 132 (5th Cir 1964),
"[Tlhe charge is not a formal pleading, and its function is not to give
notice to the respondent of the exact nature of the charges against him
This is the function of the complaint "
Ia See, e g, Soule Glass Co v NLRB, 652 F 2d 1055, 1073-1074 (1st
Cir 1981), and NLRB v Atlas Linen Supply, 322 F 2d 216 , 219 (6th Cir
1963), cert denied 376 U S 951 (1964)
14 Supra, 201 F 2d at 491
Is Moreover , in NLRB v Atlas Linen Supply, supra, 322 F 2d at 220,
the Sixth Circuit stated that if the complaint was never amended, but the
issue had been fully litigated , the respondent could not "be heard to com-
plain of lack of opportunity to meet the charges against it , even though
the complaint be found lacking , for a complaint may be amended to con-
form to proof adduced on the hearing "
16 Soule Glass P NLRB, supra, 652 F 2d at 1074
1117
pare its defense or was denied an opportunity to
present its case, as the judge refused to allow the
General Counsel to amend the complaint or
present evidence concerning Kelley's discharge, so
no defense was necessary By allowing the com-
plaint amendment, we are remanding the case to
the judge Thus, both parties will now have the
time to prepare and the opportunity to present
their cases That is all that is required to establish
procedural due process 17
Chairman Stephens also finds that the Respond-
ent here would be prejudiced if we allowed the
complaint amendment because it was misled into
believing it would not have to defend against this
allegation by the withdrawal of the first charge and
by the failure to allege Kelley's discharge in the
second charge He notes that these events might
have induced the Respondent not to preserve evi-
dence relevant to Kelley's discharge If an untimely
complaint amendment is indeed factually and legal-
ly related to the allegations of a timely charge,
however, a reasonable respondent would necessari-
ly have preserved evidence relevant to all of these
interrelated events Thus, a decision whether or not
the complaint amendment here is closely related to
the second charge would also resolve the question
of prejudice without any independent inquiry
whether this particular Respondent was actually
prejudiced
Furthermore, when there is a timely charge
pending giving us the authority to proceed on
closely related events, we cannot be concerned
solely with a respondent's right to rest easy when 6
months have passed about what claims it might
have to defend, because we also have a duty to
protect certain public rights As the Supreme
Court stated in Fant Milling"8
The Board was created not to adjudicate pri-
vate controversies but to advance the public
interest in eliminating obstructions to interstate
commerce
Once its jurisdiction is invoked the Board
must be left free to make full inquiry under its
broad investigatory power in order properly
to discharge the duty of protecting public
rights which Congress has imposed upon it
There can be no justification for confining
17 See, e g, NLRB v Complas Industries, supra, 714 F 2d at 734, when
the Seventh Circuit found a denial of due process because no adjournment
was provided to allow the respondent a meaningful opportunity to meet
the amended claim and the amendment occurred during a 1-day trial
The court, however, stated that if the General Counsel 's evidence on the
amendment had made out a puma facie case it would have remanded to
provide the respondent with an opportunity to offer a valid explanation
of its actions Id at 735
18 Supra, 360 US at 307-308
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
such an inquiry to the precise particulariza-
tions of a charge.
Previous cases have generally not considered the
existence of an earlier withdrawn or dismissed
charge concerning the untimely allegation to have
any bearing on the application of the "closely relat-
ed" test.19 Perhaps this is because before Ducane
issued, the Board had interpreted the Act as allow-
ing the General Counsel "virtually unlimited" dis-
cretion to reinstate dismissed charges outside the
10(b) period, 20 so there was no reason for the Gen-
eral Counsel to use the "closely related" test when
the dismissed charge itself could be reinstated. Re-
garding withdrawn charges, the Board and the
courts have traditionally found that they ceased to
exist on withdrawal,21 so there was no reason even
to acknowledge a withdrawn charge when apply-
ing the "closely related" test to a later timely
charge covering the same matters. Although Winer
Motors and Ducane provide little guidance here,
Koppers Co.,22 which is cited in both Winer Motors
and Ducane, is instructive. In Koppers, 163 NLRB
at 517, the Board stated
The practical effect of the proviso to Section
10(b) is that, absent the existence of a properly
served charge on file, a party is assured that on
any given day his liability under the Act is ex-
tinguished for any activities occurring more
than 6 months prior thereto. [Emphasis added.]
When there is a pending timely charge on file,
however, a respondent has no such right to assume
his liability is extinguished; nor can he claim a lack
of notice, at least about closely related allegations.
In deciding whether allegations are closely relat-
ed, we will apply the traditional Board test de-
scribed above to determine if the untimely allega-
tion is factually and legally related to the allega-
tions of the timely charge without regard to
19 See , e g , Soule Glass v NLRB, supra, 652 F 2d at 1083 There, the
First Circuit dismissed a unilateral change violation on due process
grounds because there was no complaint allegation specifically stating
such a claim and the other unilateral change allegation in the complaint
could not fairly be read to give notice of this different type of unilateral
change being unlawful The court noted in passing that this additional
8(a)(5) violation had previously been specifically alleged in a charge, but
the Regional Director had refused to issue complaint on it, however, the
court apparently did not consider the earlier dismissal of this particular
allegation relevant in deciding whether to allow the Board's finding of a
violation to stand , as it did not rely on this point, but rather went on to
discuss due process and rule on the merits See also Southern Florida
Hotel Assn , 245 NLRB 561, 600 (1979), enfd in relevant part 751 F 2d
1571 (11th Or 1985)
20 See Ducane, supra, 273 NLRB at 1391, citing California Pacific
Signs, 233 NLRB 450 (1977)
21 See Member Zimmerman 's concurring opinion in Winer Motors,
supra, 265 NLRB at 1460, quoting NLRB v Central Power Co, 425 F 2d
1318, 1321 (5th Cir 1970), for the proposition that a withdrawn charge
is no charge at all "
22 163 NLRB 517 (1967)
whether another charge encompassing the untimely
allegation has been withdrawn or dismissed. A de-
cision whether certain untimely allegations can be
added to a complaint as closely related to a pend-
ing timely charge should be entirely separate from
a decision whether a withdrawn or dismissed
charge containing these untimely allegations can be
reinstated outside the 10(b) period. Under the
"closely related" test, there is no reason why a
person who has never filed a timely charge con-
cerning a particular allegation should be in a better
position than a person who has attempted to pre-
serve his rights by filing a timely charge that is
later withdrawn or dismissed.
In applying the traditional "closely related" test
in this case, we will look at the following factors.
First, we shall look at whether the otherwise un-
timely allegations are of the same class as the viola-
tions alleged in the pending timely charge. This
means that the allegations must all involve the
same legal theory and usually the same section of
the Act (e.g., 8(a)(3) reprisals against union activi-
ty). Second, we shall look at whether the other-
wise untimely allegations arise from the same factu-
al situation or sequence of events as the allegations
in the pending timely charge. This means that the
allegations must involve similar conduct, usually
during the same time period with a similar object
(e.g., terminations during the same few months di-
rected at stopping the same union organizing cam-
paign). Finally, we may look at whether a respond-
ent would raise the same or similar defenses to
both allegations, and thus whether a reasonable re-
spondent would have preserved similar evidence
and prepared a similar case in defending against the
otherwise untimely allegations as it would in de-
fending against the allegations in the timely pend-
ing charge.
Here, the facts show that Kelley's discharge oc-
curred within 6 months before the filing of the
timely charge in this case. Further, the untimely al-
legation concerning Kelley's discharge is of the
same class as the other layoff and discharge allega-
tions in the timely charge because they all involve
retaliation against union activities in violation of
Section 8(a)(3). The record does not establish,
however, whether Kelley's discharge arose from
the same factual situation or sequence of events as
the other layoffs and discharge alleged in the
timely charge or whether the Respondent would
have preserved similar evidence and prepared a
similar case in defending against that allegation.
All we know about Kelley's termination is the
date it occurred (3 days after the layoffs and about
1 month before the other discharge) and that it was
called a discharge. Although it appears that Kel-
REDD-I, INC
ley's discharge involves similar conduct during the
same time period as the other discharge and lay-
offs, it is difficult to tell from this record if Kelley's
discharge had the same object as the other dis-
charge and layoffs or if the Respondent would
have preserved similar evidence and prepared a
similar case in defending against that allegation
Thus, there is no evidence about the circumstances
surrounding Kelley's discharge , such as the reason
given, what supervisor made the decision , the fac-
tual basis for the decision , and any statements made
about him or his discharge by the Respondent
Further, although the record reveals that Kelley
was one of two employees who initially contacted
the Union, there is no evidence whether the Re-
spondent knew of his union activities or expressed
any animus toward them Finally , there is no evi-
dence about any asserted justification for Kelley's
discharge , whether the Respondent would have as-
serted similar defenses to all the allegations, or
whether a reasonable respondent would have pre-
served evidence necessary to these defenses
On this record, we cannot determine whether
the allegation concerning Kelley's discharge is
closely related to the discharge and layoff allega-
tions of the timely charge Because there is no evi-
dence about the circumstances surrounding Kel-
ley's discharge or about any asserted justification
for the discharge on which to base such a determi-
nation , we will allow litigation on the merits of
that allegation to decide whether it is closely relat-
ed to the other allegations Only if we find that the
allegations are closely related will we proceed to a
decision on the merits of the otherwise untimely al-
legation
This does not mean that we would always allow
litigation on the merits of an untimely allegation
that the General Counsel claims is closely related
to the allegations of a timely filed charge In some
cases there may be enough information in the
pleadings and the parties ' position statements to de-
termine whether the allegations are closely related
In other cases , the General Counsel may make an
offer of proof that provides more evidence on
which to base a decision However, we have no
such information here
Accordingly, we will remand the allegation con-
cerning Kelley's discharge to the judge for the pur-
pose of hearing evidence and making findings both
on the merits and on whether all the discharge and
layoff allegations are closely related
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
1119
spondent , Redd-I, Inc , Chattanooga, Tennessee, its
officers, agents, successors, and assigns , shall take
the action set forth in the Order as modified
1 Insert the following as paragraph 2(e)
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply "
2 Substitute the attached notice for that of the
administrative law judge
IT IS FURTHER ORDERED that the allegation in
this proceeding concerning the discharge of Don
Kelley be remanded to Administrative Law Judge
J Pargen Robertson for the purpose of holding a
hearing to obtain evidence and make findings both
on the merits and on whether all of the discharge
and layoff allegations are closely related
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a supplemental deci-
sion containing findings of fact and conclusions of
law in light of the Board 's remand Following serv-
ice of the supplemental decision on the parties, the
provisions of Section 102 46 of the Board's Rules
and Regulations shall be applicable
CHAIRMAN STEPHENS, dissenting in part
I disagree with the majority that under the cir-
cumstances of this case the "relation back" doc-
trine may warrant adding employee Kelley's dis-
charge more than 6 months after the discharge oc-
curred i I would affirm the dismissal of the allega-
tions regarding Kelley's discharge because, under
the circumstances here, I do not believe that the
Respondent was given timely notice during the
10(b) period that it might be called on to defend
that discharge as part of an overall scheme to
defeat the Union's campaign by a strategy of
laying-off all suspected of being union supporters
At the outset, I need to make clear my view of
the latitude we possess in applying the 10(b) bar
Section 10(b) is a statute of limitations that must be
applied to achieve its intended objectives, but it is
not strictly "jurisdictional " Were it an inflexible
limitation on jurisdiction , it would not be waivable,
yet it is settled that this is a defense that will be
deemed waived if not timely asserted 2 Further, I
2 I agree that Winer Motors, 265 NLRB 1457 (1982), and Ducane Heat-
ing Corp, 273 NLRB 1389 (1985), do not bar any application on the rela-
tion back doctrine Indeed , it is noteworthy in this regard that Member
Dennis, a member of the three-member panel m Ducane, expressly noted
that, because of the way m which that case was litigated and briefed, the
Board had no occasion to pass on the question whether proceeding on
the allegations that the Board there dismissed aught have been justified
on a theory that they were "closely related" to a timely filed charge 273
NLRB at 1391 fn 9
2 Zrpes Y Trans World Airlines , 455 U S 385, 395 fn 11 (1982), Flex
Plastics, 262 NLRB 651, 656 fn 26 (1982), enfd on other grounds 726
F 2d 272 (6th Cr 1984), NLRB v Penn Corp , 630 F 2d 561 , 563 (8th Or
1979), Shumate Y NLRB, 452 F 2d 717, 721 (4th Cr 1971), Chicago Roll
Forming Corp , 167 NLRB 961, 971 (1967), enfd on other grounds 418
F 2d 346 (7th Cr 1969)
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agree that it is subject to equitable tolling on
grounds such as fraudulent concealment.3 Thus, in
applying the 10(b) limitation, we must determine
simply whether it is essential to bar litigation of a
particular allegation in order to effectuate the basic
policy of protecting respondents with clean hands
from being forced to defend against a claim of
which they had not been given even the most gen-
eral notice within a period of 6 months after the
charging party knew or should have known of the
claim.
The relation back doctrine, which is well estab-
lished in Board law and accepted by the courts,4 is
one way of balancing the interest in permitting liti-
gation of alleged violations of our statute that have
been called to our attention against the interest in
avoiding the sort of prejudice to a respondent that
the 10(b) limitation is intended to prevent. Under
that doctrine, we permit a belatedly raised allega-
tion to be litigated so long as it relates to a charge
that was timely filed. This doctrine, which has a
partial counterpart in Rule 15(c) of the Rules of
Civil Procedure,5 also has support in the common
understanding of the function of a "charge" in our
proceedings because the 10(b) bar applies to the
filing of an unfair labor practice charge rather than
to the General Counsel's subsequent issuance of a
complaint. As the Supreme Court made clear long
ago in NLRB Y. Fant Milling Co., 360 U.S. 301, 307
(1959), unfair labor practice charges may be read
broadly and are "not to be measured by the stand-
ards applicable to pleading in a private lawsuit."
Thus, a respondent cannot reasonably expect that
all the particulars of the complaint that might ulti-
mately issue against it will necessarily be included
in the charge that starts up the Board's investiga-
tive machinery. Hence, if a respondent is charged
with violating Section 8(a)(3) and (1) of the Act by
Ducane Heating Corp, supra, 273 NLRB at 1391.
See, e g, Algreco Sportswear Co, 271 NLRB 499, 514-515 (1984),
NLRB v. Complas Industries, 714 F 2d 729, 732-733 (7th Cir 1983),
Gocat, Inc, 257 NLRB 270, 271 (1981), NLRB P Dinion Coil Co, 201
F 2d 484, 491 (2d Cir 1952)
5 In applying Fed R Civ.P 15(c) to determine whether a new plaintiff
may be added to a civil action after the statute of limitations has run, the
courts have applied a two-pronged test under which they consider
whether the new plaintiffs claim arises out of the same transaction as the
one sued on and whether the defendant had fair notice from the original
complaint of the existence of the belatedly added claim Leachman v
Beech Aircraft Corp, 694 F 2d 1301 (D.C Cir 1983), Williams v US, 405
F.2d 234 (5th Cir. 1968), Paskuly v Marshall Field & Co, 494 F Supp 687
(N D 111 1980), affd 646 F 2d 1210 (7th Cir 1981) The parallel is not
exact, however There is greater room for relation back in Board pro-
ceedings because, as noted above, our limitations period relates to
charges, which have traditionally been given a broader reading than
would be given formal court pleadings Although the Board clearly lacks
"carte blanche authority to expand the charge as it might please, or to
ignore the charge altogether ," it is free to add, as related claims, what-
ever allegations of violations might reasonably be found in an investiga-
tion of the events referenced in the unfair labor practice charge NLRB v
Complas Industries, supra, 714 F 2d at 733 fn 3
discriminatorily laying off employees to defeat a
union and by interfering with the employees' Sec-
tion 7 rights by those "and other acts," it can rea-
sonably assume that contemporaneous unfair labor
practices related to the employees' union activities
might also be included in a subsequent complaint if
the General Counsel decided to issue one. Clark
Equipment Co., 278 NLRB 498 (1986); NLRB v.
Complas Industries, supra, 714 F.2d at 733.
Although I recognize this significant difference
between a charge and a complaint in our statutory
scheme, I cannot agree with my colleagues that a
charge has no notice function whatsoever. If it had
no such function, there would be no reason for us
to place the limitations of the relation back doc-
trine on subsequent amendments to a charge. It
would be enough that a charge had started up our
machinery against a particular respondent, and a
respondent's protest against facing a totally new
type of charge could be answered by saying that
this was all part of the same proceeding against it
and that the complaint would adequately apprise it
of the particulars of this totally new charge. Of
course, the relation back restriction means that the
public interest in adjudicating and remedying unfair
labor practices may be frustrated in some instances.
But as the Supreme Court explained in Machinists
Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411,
428 (1960), Congress saw fit to balance the interest
in protecting respondents from stale charges
against the interest in vindicating employee rights
protected by the Act, and the resulting adjustment
in Section 10(b) does not give absolute ascendancy
to either interest.
In balancing the interest at issue here, I do not
assume that simply because a particular charge was
dismissed or withdrawn and not refiled within the
10(b) period, its allegations can never be included
in an unfair labor practice complaint, no matter
how closely it relates to another, timely filed
charge. Rather, I would make two inquiries. First,
I would consider whether the "relation back" doc-
trine would permit belated addition of that particu-
lar allegation if it had never been filed in the first
place during the 10(b) period. If the answer to that
is in the affirmative, then I would consider whether
the original filing and withdrawal of the charge
would necessarily have misled the respondent into
believing that it would not be faced with that alle-
gation in a Board proceeding and therefore might
have induced the respondent not to preserve evi-
dence generally relevant to the events concerned in
that charge. In short, as in the administration of
F.R.Civ. P. 15(c), it is a question of fairness. Wil-
liams v. U.S., 405 F.2d 234, 236-238 (5th Cir. 1968).
REDD-I, INC
In the present case , I would find that if the
charge concerning Kelley 's discharge had not been
filed within the 10(b) period and then withdrawn,
it might have been fairly added later on as a charge
"related to" the 8(a)(3) charge that was filed on
January 6, 1986 But given the particular circum-
stances here , I believe that the withdrawal of the
charge relating to Kelley would reasonably have
led the Respondent to believe, at the end of the
10(b) period , that there was no possibility that it
would be called on to defend against an allegation
that Kelley's discharge violated the Act
Several facts in the course of events here are sig-
nificant to me Although the General Counsel may
be correct in alleging that the Respondent was en-
gaged in an overall scheme to rid itself of the
Union's supporters , the fact remains that Kelley's
discharge occurred as a separate event between the
August 15 mass layoff of 14 employees and the
September discharge of another employee Hence,
when the charging party withdrew its September
unfair labor practice charge , which had named nine
employees-i e, Kelley, seven of the employees
laid off August 15, and another who was dis-
charged in September-and when that withdrawal
was followed by the filing of a new charge on Jan-
uary 6 naming all those employees except Kelley,
the clear implications were (1) that none of these
specific discharges had escaped the notice of the
charging party , (2) that the August 15 layoffs and
the discharge occurring in September were regard-
ed as unlawful , and (3) that Kelley 's was not re-
garded as unlawful The Respondent would have
no reason, therefore, to seek to preserve evidence
for future litigation concerning Kelley 's discharge,
and forcing it to litigate that discharge by virtue of
the belated attempt to amend would contravene the
policies underlying Section 10(b)
Had Kelley been one among those terminated on
August 15 , however, his omission in the January
charge might have appeared to be simply a clerical
error In any event, the Respondent would, as a
result of the charge, have been induced to preserve
evidence relating to events of that day Indeed,
that is why we do not regard as barred the March
amendment of the charge to include the eight em-
ployees (not named in earlier charges ), laid off on
August 15 Even if Kelley 's discharge had not been
part of that mass layoff, but was arguably related
as part of an overall discriminatory scheme, the
January charge might have placed the Respondent
on notice to defend against that discharge as a re-
lated allegation if it had not been misled by the
specific withdrawal of the earlier charge regarding
Kelley Our relation back rule properly operates to
allow for the litigation of matters related to a
1121
timely filed charge , because a prudent respondent
will collect and preserve evidence about such mat-
ters Under the circumstances here , however, the
January charge simply did not constitute timely
notice concerning Kelley
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT interrogate our employees about
their activities on behalf of Sheet Metal Workers
International Association , or any other labor orga-
nization , or because of any other concerted pro-
tected activities
WE WILL NOT threaten our employees with dis-
charge because they engaged in union or protected
activities
WE WILL NOT solicit our employees to engage in
surveillance of other employees' union activities
and report those activities back to management
WE WILL NOT threaten our employees with
layoff because they engage in union or protected
concerted activities
WE WILL NOT threaten our employees that we
will close our plant because of our employees'
union or other protected activities
WE WILL NOT discharge our employees because
they engage in union activities
WE WILL NOT lay off our employees because of
our employees ' union activities
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer immediate and full reinstatement
to Diane Hartman, Marguerite Price , Diana Lowe,
Mike Parris, Fred Harte, Robert Plemmons,
Debbie Crabtree, Theresa Pursley, Brenda Harte,
Jim Harvey , Wendell Whitley, Bobby McFalls,
Boyd Webb, Donna Lambert, and Donnie Keahey
to their former positions or, if those positions no
longer exist, to substantially equivalent positions
without prejudice to the employees ' seniority or
other rights and privileges
WE WILL make Diane Hartman , Marguerite
Price , Diana Lowe, Mike Parris, Fred Harte,
Robert Plemmons, Debbie Crabtree, Theresa Purs-
ley, Brenda Harte, Jim Harvey , Wendell Whitley,
Bobby McFalls , Boyd Webb, Donna Lambert, and
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Donnie Keahey whole for any loss of earnings they
may have suffered by reason of our discrimination
against them with interest.
WE WILL remove from our files any references
to the discharge of Diane Hartman on September
20, 1985, or the layoff of employees Marguerite
Price, Diana Lowe, Mike Parris, Fred Harte,
Robert Plemmons, Debbie Crabtree, Theresa Purs-
ley, Brenda Harte, Jim Harvey, Wendell Whitley,
Bobby McFalls, Boyd Webb, Donna Lambert, and
Donnie Keahey on August 15, 1985, and notify
each of them in writing that this has been done and
that evidence of their unlawful discharge or layoff
will not be used against then in any way.
REDD-I, INC.
Richard P. Prowell, for the General Counsel.
William G. Trumpeter, for the Respondent.
Respondent's position. I deny the General Counsel's re-
quest for reconsideration. Winer Motors, 265 NLRB 1457
(1982); Howard Mfg. Co., 231 NLRB 731 (1977), NLRB
v. Gaynor News Co., 197 F.2d 719 (2d Cir. 1952)
However. Respondent's motion that I should deny the
General Counsel's motion to amend the complaint to
allege additional 8(a)(1) violations was not granted
during the hearing. The 21 February 1986 complaint was
based on a 6 January 1986 charge that generally alleged
actions violative of Section 8(a)(1). That charge and its
amendments involved activities during a union organiz-
ing campaign during the late summer of 1985. The com-
plaint amendments of additional 8(a)(1) allegations were
allegedly part and parcel of that same campaign. The
record evidence supports the General Counsel in that
regard Therefore, I deny Respondent's motion to ex-
clude the additional 8(a)(1) allegations as amended
during the hearing. That amendment does not violate the
provisions of Section 10(b) of the Act.
FINDINGS OF FACT
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This case was heard in Chattanooga, Tennessee, on 8 and
9 May 1986. The complaint alleges that Respondent en-
gaged in several actions in violation of Section 8(a)(1)
and that Respondent laid off 14 employees and dis-
charged an employee in violation of Section 8(a)(1) and
(3). The charge was filed on 6 January 1986 and was
amended on 3 March and 6 May 1986. The complaint
issued on 21 February and was amended on 8 May 1986.
Respondent admitted the commerce allegations, the juris-
dictional allegation, that the Charging Party is a labor
organization, and the supervisory allegations of the com-
plaint. However, Respondent denied that the alleged su-
pervisors acted on behalf of Respondent or as agents of
Respondent in all cases and under all circumstances. Be-
cause of the above, and the entire record, I find that at
material times Respondent is and has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) and that Sheet Metal Workers International As-
sociation is a labor organization within the meaning of
Section 2(5) of the Act. I also find that the supervisors
alleged in the complaint were agents of Respondent at
times material to these proceedings. To the extent the
issues involved the alleged supervisors, their actions
were shown to have been conducted during the existence
of employer-employee relationship.
At the hearing, Respondent objected on the basis of
Section 10(b) of the Act to the General Counsel's motion
to amend the complaint to allege three additional viola-
tions of Section 8(a)(1) through interrogations of employ-
ees and a threat to discharge employees, and an addition-
al 8(a)(1) and (3) allegation regarding employee Don
Kelley's discharge on 19 August 1985. I agree with Re-
spondent and denied the General Counsel's motion to
amend regarding the alleged discharge of Don Kelley.
The General Counsel has requested that I reconsider and
reverse my ruling in that regard. Jurisprudence supports
I. ALLEGED UNFAIR LABOR PRACTICES
The complaint allegations involve a union organizing
campaign at Respondent's facility in the summer of 1985.
Diane Hartman testified that she and some other employ-
ees were contacted by Organizer Jack Gregg of the
Sheet Metal Workers International Association (Union)
in late July 1985.
On 9 August the employees held the first union orga-
nizing meeting with Organizer Gregg Hartman testified
that one-third of Respondent's employees signed authori-
zation cards within 3 days after the 9 August meeting.
A. 13 or 14 August 1985
According to employee Diane Hartman, a day or two
before a 15 August 1985 layoff Supervisor Jimmy Dover
talked to employee Buddy Fuller about the upcoming
layoff. Hartman testified that she overheard Fuller ask
Dover if Dover thought Fuller would be one of the
people that would be laid off. Dover replied "We have a
list of people that had signed union cards and they
would be the first ones to go."
Conclusions
Fuller testified that he did not recall talking to Dover
about the 15 August layoff, or that he talked to Dover
before 15 August about the, Union. Fuller said that he
did not know about the Union until after 15 August.
However, on cross Fuller demonstrated difficulty in
recalling events before 15 August. For example, Fuller
testified that he was not sure which supervisor he
worked under on 15 August
Jimmy Dover denied talking to Fuller on 14 August.
Dover testified that he first learned of the employees'
union activity during a 15 August supervisors' meeting
In that regard Dover's testimony does not square with
that of former Supervisor Charles Songer. Songer, who
was called by the General Counsel in rebuttal, testified
that during the 15 August supervisors' meeting all the su-
pervisors said they had heard about the Union Songer
REDD-I, INC 1123
recalled that it was well known on 15 August that the
employees were involved in a union organizing cam-
paign
I am convinced that Buddy Fuller did not truthfully
recall that he did not talk to Jimmy Dover about the
Union before 15 August Fuller, by specifying on two
occasions that he did not talk to Dover about the Union
before the 15 August layoff, left the impression that he
and Dover discussed the Union after that date Fuller ad-
mitted that he and Dover talked about "everything" in-
cluding "hunting , football , baseball , and softball "
Fuller's testimony on cross illustrated that his recollec-
tion was not so precise as to permit him to pinpoint that
he did not discuss the Union on the day before the 15
August layoff Moreover, I am convinced that the union
activity was discussed among employees before 15
August Former Supervisor Songer testified that all the
supervisors knew about the union activities before 15
August and former employee Greg Floyd testified that
the union organization was a routine topic of discussions
among the employees Floyd recalled that union organi-
zation was generally discussed as early as June 1985
Floyd said he did not know of talk of the Sheet Metal
Workers Union in June, but there was talk of "just
union" and "if we could get a union in "
As shown below, I do not credit the testimony of
Jimmy Dover I do credit the testimony of Diane Hart-
man regarding the Dover -Fuller conversation Hartman
appeared to testify condidly regarding that conversation
The usual nature of her testimony and inclusion in Hart-
man's testimony of two other witnesses , tends to buttress
its validity The timing of the Dover-Fuller conversation
is consistent with affidavit testimony of President Ken-
neth Redd Redd testified , "I believe that the plant man-
ager spread the work on 8-13-85 that there was going to
be a layoff "
I find in agreement with the General Counsel that
Dover's comments constituted a threat to discharge em-
ployees because of their union activities in violation of
Section 8(a)(1)
B 14 August 1985
Respondent's president and part owner, Kenneth
Redd , admitted that he was told about the union organiz-
ing activity on 14 August Redd 's bookkeeper, Joyce
Davis, told Redd of the union activity Davis told Redd
that employees Diane Hartman , Diana Lowe , and Mickie
Sewell were involved in the union campaign
C 15 August 1986
On 15 August, around noon , Kenneth Redd told Plant
Manager Charles Campbell of the employees ' union or-
ganizing activities According to both Redd and Camp-
bell, Campbell expressed surprise Redd testified that
Campbell asked who was involved in the union activity
Although Redd admitted though that employees Hart-
man, Lowe, and Sewell were involved , he testified that
he told Campbell that he did not know who was in-
volved
At the end of the shift on 15 August , Respondent noti-
fied 14 unit employees that they were being laid off due
to slack work
Kenneth Redd testified that he returned to work on 13
August from a 3-week vacation According to Redd, he
immediately reviewed the production figures, the "paya-
bles and receivables" from July and the first week of
August (a partial week including 2 August), and sales
bookings that had come into the plant since he left on
vacation on 22 July Redd testified that the records
showed him that during his vacation, "(1) Our produc-
tion was tremendously low, (2) we really were not pick-
ing up orders from backlog into the plant, (3) 1 knew im-
mediately, just looking at these figures we had lost a lot
of money in July " Redd asked Plant Manager Campbell
about production being down Campbell replied there
were insufficient orders to keep each department busy
Redd and Campbell walked through the plant and con-
firmed , according to their testimony that there were not
enough orders to keep everyone busy
After checking with his accountant , Redd told Plant
Manager Campbell that he felt they needed to `Jay off
approximately 15 employees to get the payroll to the
level that we needed to be at "1 The General Counsel al-
leges that Respondent laid off the employees on 15
August in violation of Section 8(a)(1) and (3)
Conclusions
Record evidence substantially supports the General
Counsel 's allegation that Respondent 's 15 August layoff
was conducted because of the employees ' union activi-
ties That support regards the timing of the layoffs,
coming 2 days after Kenneth Redd learned of the em-
ployees' organizing efforts, the threat by Supervisor
Dover that the union card signers would be the "first
ones to go", and the 16 August comments of Plant Man-
ager Campbell to employees Alder and Floyd that he
had laid off employees who were trying to get a union in
(see below)
The General Counsel also argues that by 12 August
one-third of Respondent 's employees had signed union
authorization cards and on 15 August all but four of
those employees had been laid off As to that point the
record is unclear What the record does show is found in
the testimony of Diane Hartman under cross-examina-
tion Hartman's testimony in that regard refers to her af-
fidavit, which was not introduced An examination of
Hartman 's testimony shows that it could reflect, as the
General Counsel argues, that all but three or four of all
the employeees that signed union cards were laid off
However , the testimony shows that Hartman could have
been talking about those employees that signed authori-
zation cards at the "second" union meeting If so, the
record evidence does not show how many employees
signed cards at that meeting There is no other evidence
1 The record shows 14 unit employees were laid off on 15 August
1985 Of those 14, 7 have since been recalled Three were recalled on 16
September, one on 23 September, one on 29 October , one on 19 No-
vermber, and one on 9 December 1985
The total work force included 73 employees immediately before the 15
August layoff
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that shows that all but three or four card signers were
laid off on 15 August.
In fact, the figures show otherwise Hartman's testimo-
ny that one-third of the employee work force signed
cards would place the total number of card signers at ap-
proximately 24 or 25. Since Respondent laid off some 14
unit employees on 15 August, there would be a minimum
balance of 10 or 11 card signers that were not laid off.
Nevertheless, the proven elements of timing and actual
threats from the plant manager and a supervisor illustrate
that the layoff was called by Respondent because of the
employees ' union activities . Regarding that allegation, I
find a prima facie case has been established.
Additionally, the threats by Campbell and Dover es-
tablished that Respondent was under the impression that
it was laying off some of the employees who were in-
volved in union organizing efforts. It is not necessary for
the General Counsel to show that Respondent was cor-
rect in that impression. Crucible, 228 NLRB 723 (1977);
Birch Run Welding & Fabricating v. NLRB, 761 F.2d
1174 (6th Cir. 1985). In that regard, I am mindful of evi-
dence showing that Diane Hartman was one of two lead-
ing union advocates and that Hartman was not laid off
on 15 August. However, jurisprudence has clearly estab-
lished that it is not necessary in order to establish a case
of illegal termination to show that an employer terminat-
ed all or even the leading union advocate. Birch Run
Welding & Fabricating v. NLRB, supra. In fact, as shown
below, Respondent illegally discharged Diane Hartman
on 20 December.
Therefore, I must now consider whether the record
evidence proved that Respondent would have laid off 14
unit employees on 15 August in the absence of the em-
ployees' union activities. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981).
The decision to conduct the 15 August layoff was ad-
mittedly made by Kenneth Redd. Redd testified that he
made that decision on 13 August, the day he returned
from a 3-week vacation. According to Redd, he made
the decision on the basis of records he had that extended
through the week of 2 August (i.e., 2 weeks before the
week of 13 August), Redd testified that those records in-
cluded the production figures, the "payables and receiv-
ables," and sales bookings that came into the plant since
he left for vacation on 22 July. Redd testified that on
checking with Plant Manager Campbell on 13 August,
he learned that "there was very little in orders . . . out
in the plant to keep each department busy."
The issue presented by Redd's testimony is a difficult
one from Respondent's standpoint. According to Ken-
neth Redd, the situation on 22 July 1985 was not one
that prevented him from leaving on a 3-week vacation.
In fact, the record failed to show that Redd felt it was
necessary for him to either personally monitor the finan-
cial situation or to have someone else, such as his ac-
countant or the plant manager, keep a close watch on
the financial figures during his absence. There was no in-
dication that Redd felt a layoff was under consideration
when he left on 22 July. Nevertheless, according to
Redd, Respondent's financial condition changed so dras-
tically between 22 July and 13 August that Redd decided
to hold the largest layoff in Respondent's history imme-
diatley on his return from vacation. The records relied
on by Redd, and the record evidence as a whole, must
be considered in light of the context of Redd's decisions
The record evidence regarding payables and receiv-
ables, production and income, fails to show a drastically
changed situation during the period of Redd's vacation.
The record is blank concerning specific production fig-
ures. As to income, the record shows income (rounded
to the nearest thousand) of $372,000, in June, down to
$188,000 in July, but back up to $358,000 in August.
However, the record also shows that Respondent had a
2-week shutdown in July.2
Regarding payables and receivables, the figures show
(rounded to the nearest thousand):
Week Weekly Sales
Bookings
8/02/85 ... . . .................................. $95,157
7/26/85 ............................... .. . .... 35,777
7/19/85 . . . . . . . ........................... 107,614
Total, 3 weeks sales bookings..... $238,548
7/12/85 ......................... .... $55,657
7/05/85.... ..... ... . . .. .... .................. 42,278
6/28/85 .. .. . ................................... 48,999
Total, 3 weeks sales bookings ......... $146,934
However, Redd's testimony shows that he was most
directly influenced and on 13 and 14 August by orders
received during his vacation.
In consideration of that testimony by Redd, the critical
question must involve what records existed, vis-a-vis
sales bookings orders, when Redd left on vacation on 22
July as opposed to sales booking orders on hand when
he returned on 13 August. Redd had sales bookings
records available that extended 2 weeks before each criti-
cal date (i.e, 2 weeks before 22 July and 2 weeks before
13 August).
Those respective records show that during the week
of 2 August Respondent's weekly sales bookings totaled
$92,157. On 22 July when Redd left for vacation, the
records for the week of 2 weeks before (i e, the week of
12 July), show weekly sales bookings of $57,157. Re-
garding the 3 weeks of records that surfaced during
Redd's vacation, the record evidence shows the follow-
ing.
Week Acct. Receivable Acct. Payable Cash Debit
7/12/85 $715,000 $260,000 $80,000
8/02/85 627,000 238,000 45,000
A comparison for the last 3 weekly records available
for Redd's examination on 22 July shows:
2 Normally Respondent shuts down for 1 week around 4 July During
1985 that shutdown was extended to 2 weeks
REDD-I, INC
Because of the above, it is apparent that Respondent
experienced a comparative sales bookings increase in
excess of $90 ,000 during the 3 weeks of Redd 's vacation
The comparison shows that a greater need for a layoff
existed on 22 July than on 13 August The record
showed that no critical factors intervened during Redd's
22 July to 13 August vacation other then the employees'
union organizing activities
In making a determination regarding how Respondent
would have reacted in the absence of union activities, it
is not sufficient to question whether Respondent 's busi-
ness conditions justified a layoff Respondent 's account-
ant testified that Respondent was in poor financial condi-
tion and that a layoff was justified The accountant testi-
fied that he recommended a layoff in June 1985 3 In fact,
Respondent did lay off eight employees on 20 June 1985
Previously Respondent had two earlier layoffs-one in-
volving five employees in March 1983 and one of six em-
ployees in October 1984 During those periods the total
work force was at least as large as the work force of 15
August 1985
The record shows that Kenneth Redd made the deci-
sion to lay off 14 employees on 13 August , despite
records showing improved sales during the time he was
on vacation According to Redd 's testimony , sales book-
ings records were the last factors he considered before
directing the layoff Redd testified that he checked with
Plant Manager Campbell and was told that orders were
too low to keep the departments busy Redd then direct-
ed Campbell to lay off approximately 15 employees The
record shows that on 22 July when Respondent was
faced with a recommendation from its accountant to cut
costs, and with decreasing sales bookings, Redd did not
elect to conduct a layoff Indeed , Redd left the situation
without personal attention for a 3 -week vacation On 13
August, when faced with increased sales bookings, and
an employee union organizing campaign , Redd decided
to conduct the largest employee layoff in the history of
the Company See Purolator Armored, Inc v NLRB, 765
F 2d 1423 (11th Cir 1985), Birch Run Welding & Fabri-
cating v NLRB, supra, Lemon Drop Inn, 752 F 2d 323
(8th Cir 1985), Soil Engineering Co, 269 NLRB 55
(1984), Jenkins Index Co, 273 NLRB 736 (1984)
Several other factors are noteworthy in considering
the layoff allegation Respondent called several employ-
ees who testified that work was slow before the 15
August layoff However , two of Respondent's supervi-
sors, Will Overall and Jimmy Dover , and alleged discn-
minatee Diane Hartman , contradicted Respondent's con-
tention that work was slack in all departments on 15
August Overall testified that employee Sewell was as-
signed to work with Hartman immediately following the
layoff because the department was behind in its work
Dover testified in a pretrial affidavit that his department
had a good bit of work on 15 August 1985 Hartman tes-
tified that there was an increase in orders between the 4
July shutdown and the 15 August layoff
3 Respondent's accountant also testified that he talked with Redd
shortly before Redd left for vacation in July, but that he did not talk to
Redd while Redd was on vacation The accountant was not sure whether
he talked to Redd on 13, 14, or 15 August 1985
1125
Respondent also argued that Kenneth Redd did not
learn of the employees' union activities until the morning
after he directed the August layoff However, that testi-
mony was contradicted by credited evidence that Plant
Manager Campbell and Supervisor Dover told employ-
ees that the layoff was called to get the union supporters
Respondent also argued that the employees were se-
lected for layoff by their respective supervisors rather
than by Redd or Campbell Although that testimony was
supported by several current supervisors , it was rebutted
in part by the testimony of former Supervisor Charles
Songer Songer testified that he was told that on the oc-
casion of the 15 August layoff, his employees would be
selected by Campbell and Redd rather than through the
normal method of having the supervisors select employ-
ees for layoff Songer testified that he was directed to
prepare a list in order to permit Campbell and Redd to
compare the supervisors' recommendations with their
own Songer's testimony was corroborated by Charles
Campbell 's handwritten layoff list According to Songer,
he recommended that employees Sims , Harte, and
Dotson be laid off According to Songer , however,
Campbell rejected Songer's recommendations and instead
laid off employees Parris (Pans), Plemmons, and Harte
Campbell 's handwritten list shows all five employees
mentioned in Songer 's testimony, i e , the three recom-
mended by Songer included the two not laid off, Suns
and Dotson, plus the three selected by Campbell, i e,
one of which had been recommended by Songer Re-
spondent's other records also support Songer by showing
that Parris, Plemmons, and Fred Harte were laid off on
15 August, but that Dotson and Sims were not laid off
Therefore, it is apparent that although Campbell listed
all the employees recommended by Songer by writing
them on his list, he chose instead one employee recom-
mended by Songer, Fred Harte, and two that were not
recommended by Songer Plemmons and Parris
After Songer testified , Charles Campbell was recalled
At that time Campbell testified for the first time that he
told the supervisors during their meeting of 15 August
that unless they actually selected for layoff those em-
ployees that were contributing the least, he, Campbell,
would select employees for layoff in the future It is
noteworthy that other than Campbell, none of the cur-
rent supervisors that testified about the 15 August super-
visors' meeting recalled the above mentioned comments
by Campbell All those supervisors testified before
Charles Songer None , other than Campbell , was re-
called after Songer testified
In view of the above, and on the basis of my observa-
tion of their demeanor , I credit the testimony of Charles
Songer over that of Charles Campbell regarding what
Songer was told concerning how his employees would
be selected for the 15 August layoff
Respondent also pointed to a comparison of the
weekly sales bookings records during the layoffs of 20
June and 15 August On both those occasions Respond-
ent experienced a large volume of sales booking around
the time of the layoffs However, Kenneth Redd was ad-
mittedly unaware of those sales bookings when the lay-
offs occurred It is noteworthy, however, that the figures
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
available before those two layoffs showed sales bookings
down 2 weeks before the decision to lay off on 20 June
(i e., those last available figures showed total sales book-
ings of only $47,532 if the last available figures were
those for the week ending 31 May, or $58,771 if the last
avaiable figures were those for the week ending 7
June),4 as opposed to the last figures available before the
decision was made to hold a layoff on 15 August. A
comparison shows a substantially higher weekly sales
bookings figure for the week ending 2 August-$92,157.
Nevertheless, the layoff was called on 15 August and
that layoff involved almost twice the number of employ-
ees laid off on 20 June.5
I am convinced because of the entire record that Re-
spondent would not have conducted the 15 August
layoff in the absence of its employees' union activities.
D. 15 August 1985
Former employees Paul Alder and Greg Floyd testi-
fied to a conversation with Plant Mananger Charles
Campbell at Alder's home on the morning of 16 August.
At that time both Alder and Floyd were working for
Respondent P. Alder asked Campbell about a 15 August
supervisors' meeting.6 According to P. Alder and Floyd,
Campbell replied that the employees were trying to get a
union in, and he had laid them off Campbell asked P.
Alder and Floyd to find out who else was supporting the
Union. Campbell identified Diane Hartman as a union
supporter.
Campbell admitted that he talked with Alder and
Floyd at P. Alder's home on 16 August. According to
Campbell, it was Alder who brought up the Union,
saying that he heard that someone was trying to organize
a union. Campbell testified that he denied knowing who
was trying to organize Respondent, but admitted to P.
Alder and Floyd that Kenneth "Redd did tell us that
someone out there in the plant was trying to organize a
Union."
Both P. Alder and Floyd admitted that they resigned
from Respondent's employment in November because
they felt Alder's wife, who is also Floyd's mother-in-law
and was an employee of Respondent, was being harassed
at her work by Supervisor Jimmy Dover and because
Plant Manager Campbell did nothing regarding harass-
ment.
Conclusion
Despite their actions in resigning under circumstances
that generated hard feelings, I am convinced that P.
Alder and Floyd testified truthfully regarding their con-
The record does not show when Respondent made the decision to
hold a layoff on 20 June If the decision was made during the week of 20
June, the last sales bookings records would be those for the week of 7
June If the decision was make during the week before 20 June, the last
sales bookings records would be for the week ending 31 May
5 Eight employees were laid off on 20 June 1985 One was recalled
before the 15 August layoff-on 5 August 1985 Another was recalled
shortly after the 15 August layoff-on 16 September 1985
The total work force included 84 employees on 20 June and 73 em-
ployees on 15 August
a Respondent's president, Kenneth Redd, did hold a supervisors' meet-
ing on 15 August. During that meeting Redd discussed the union organiz-
ing campaign
versation with Campbell. In many respects their testimo-
ny was confirmed by Campbell. Campbell admitted that
he was at Alder's home, that Alder and Floyd were
present, that they talked about the supervisors' meeting
on 15 August, and that that meeting included discussion
of the employees' union activities. Other testimony, in-
cluding Campbell's and Redd's testimony that Redd first
told Campbell on 15 August that Redd had learned of
the employees' union activities and that Campbell asked
Redd who was involved, casts doubt on Campbell's ver-
sion of his conversation with Alder and Floyd. Campbell
allegedly had not heard which employees were involved
with the Union when he talked with P. Alder and Floyd.
Nevertheless, according to Campbell he initially ex-
pressed no interest in learning of employees' union in-
volvement from Alder and Floyd. However, Campbell
admitted that when Alder told him that he would let
Campbell know anything he learned about the Union,
Campbell replied, "I'll sure appreciate that."
Campbell admitted that he P. Adler, and Floyd were
good friends. In the context of Campbell's first learning
of the employees' union activities on 15 August and his
admitted interest in which employees were involved, I
find that his version of the 16 August conversation is not
believable. Campbell's version reflects that he expressed
little interest in P. Alder's comments about the Union.
Campbell responded that he knew nothing about which
employees were involved although he admitted that
Kenneth Redd had said someone in the plant was trying
to organize a union. According to Campbell, P. Alder
told Campbell that he was surprised that anyone would
work for a union "because of the way Mr. Redd treated
everyone." Because of the context of their conversation
and their close friendship, I find it more believable that
Campbell would pursue the conversation in the manner
alleged by P. Alder and Floyd.
Moreover, I was impressed by the demeanor of P.
Alder and Floyd. Both responded forthrightly to ques-
tions regarding their resignation from Respondent and
their feelings regarding the alleged harassment of Alder.
Finally, I am convinced that Campbell mentioned that
Diane Hartman was involved in the Union. Campbell did
not deny that part of the conversation and, as shown
above, Kenneth Redd admittedly learned of Hartman's
involvement 2 days before the Campbell-Alder-Floyd
conversation.
E. 5 September 1985
Diane Hartman testified that President Kenneth Redd
held a meeting of all employees on 5 September. Hart-
man testified regarding Redd's comments to the employ-
ees:
Mr. Redd discussed the Union. He said he had
heard rumors of a Union. He had heard about
Union cards being signed. He said he had discussed
this with his lawyer, he had been going to the li-
brary studying on the matter. He was concerned
about the uneasiness of the people. He told us, you
know, before he would let someone come into his
plant and tell him how to run his business, he would
REDD-I, INC
close the door, go back to Miami where there
would be no problem and find him a job
The General Counsel also cited affidavit testimony by
Kenneth Redd regarding his 5 December speech to em-
ployees Redd testified in that affidavit as follows, inter
alia
I urged whoever was involved in the Union to con-
tact someone regarding the number of jobs that had
been lost due to Union activities elsewhere I said
that the Union , by law, could promise them any-
thing and I could promise them nothing As I con-
cluded the meeting I told them that with the busi-
ness problems that I had with this added on top of
them that I didn 't need the aggravation I said I
could just as easily go back to Miami , that I could
get a job anywhere and I didn 't need this job
In his testimony at the hearing Kenneth Redd denied
that he threatened to close the plant However , Redd ad-
mitted saying that if the people did not stop fighting
each other "there will be not company here ," because
the "bank will shut us down "
Conclusion
Redd 's testimony revealed that his recollection of his 5
September speech was not complete His testimony both
at the hearing and in his affidavit is somewhat similar to
that of Diane Hartman I am convinced that Hartman
testified accurately concerning Redd saying he would
close the doors, go back to Miami where there would be
no problem , and find a job I also credit Redd 's affidavit
testimony that he urged the employees to contact some-
one "regarding the number of jobs that had been lost due
to union activities elsewhere "
Redd's threat to close the doors and go back to Miami
was directed against the employees ' union activities and
constitutes a clear violation of Section 8(a)(1) Redd's
comments regarding lost jobs also constitutes a clear
threat Redd offered no further explanation other than
the implication that many employees have lost their jobs
because of their union activities Both the above com-
ments tend to coerce employees in their protected activi-
ties
F 11 September 1985
During September 1985 , William (Will) Overall was
made foreman of the Assembly and Wiring Department
Prior to Overall, the supervisor over Assembly was
Janice Varner As assembly and wiring foreman , overall
was over some 14 employees Of those 14, approximately
8 or 9 , including alleged discriminatee Diane Hartman,
were under Overall in Assembly Shortly after becoming
foreman, Overall held a meeting of the Assembly and
Wiring employees Diane Hartman testified about that
meeting
Mr Overall brought us into the meeting He talked
about him taking over the supervising job in our de-
partment He said there would be changes made in
the department on how order were run He talked
1127
to us about rules that were to apply to us We could
not leave the department without his permission He
told us that the talking would be stopped He told
us that we would be given verbal warnings on our
talking , that we would be given pink slips the
second warning The third warning we would be
sent to the office and sent home
Will Overall testified as follows regarding his meeting
with the Assembly and Wiring employees
Q Do you remember what you told them in that
meeting?
A Yes
Q What was that?
A About staying in their department We're al-
lowed to have coffee, go to the Coke machine, but
I didn't want them cluttering up, abusive talking
Q Abusive talking? What is abusive talking?
A Well, talking and you know, just stop working
and just standing or talking, but if you can work
and talk, this is okay
Q Why did you hold this meeting?
A Well, I was new to some but not new to the
department because I had had it before
Former Assembly Foreman Janice Varner attended
Overall's meeting Varner testified
Q Do you remember what he said?
A Well, he told them that he was going to be
our supervisor , to cut down on the talking and not
to go to other departments In general, what I
always told them
Conclusions
On the basis of the entire record, I am convinced that
Will Overall used strong expression in an effort to dis-
courage work disruptions in the assembly and wiring de-
partments However, I am not convinced that Overall
was actually forbidding all talking Testimony of several
employees indicated that Overall actually cautioned the
employees against talking, which interfered with work
Diane Hartman's testimony that Overall threatened to
progressively discipline continuous offenders was unre-
butted
Although I generally found Diane Hartman to be a
credible witness, I am not convinced that she was cor-
rect in her testimony regarding the scope of Overall's
no-talking rule On the basis of the entire record, I am
convinced that he prohibited talking that interfered with
work and that he threatened to progressively discipline
employees who violated that prohibition There is no
showing that Overall's prohibition in that regard differed
from Respondent's previous policy
I find that Respondent did not violate Section 8(aXl)
by forbidding the assembly and wiring employees to talk
because of the Union
G 16 September 1985
Former employee Theresa Pursley testified that after
she was laid off on 15 August , she was recalled in Sep-
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tember 1985. Pursley worked in the FHP department
under Supervisor Jimmy Dover. On the day she recalled
following the layoff, Pursley met with Supervisor
Dover. According to Pursley
[Dover] asked me if I really needed the job and I
told him, yes. He asked me if I had heard anything
about the Union before I was laid off or if I knew
anything about it. I told him that I had heard bits
and pieces but nothing serious, you know , just that
the Union was trying to come in. He said , well, we
really need you to work for us and if you would
please let me know of anything that 's going on
about the Union, your job may depend on this. So I
agreed to it, but I never let him know anything ba-
cause I never heard anything else about it.
Pursley testified that on several occasions after she re-
turned to work, Dover asked her if she knew anybody
that was involved with the Union.
Jimmy Dover denied that he had any discussion with
Theresa Pursley regarding the Union and that he asked
her to spy on others.
Conclusion
The testimony of Jimmy Dover conflicts with the tes-
timony of three others-Diane Hartman, Brenda Harte,
and Theresa Pursley. Additionally , on cross-examination
Dover was shown his pretrial affidavit in which he testi-
fied that at the time of the 15 August layoff his depart-
ment had a "good bit of work." Dover never explained
the apprent conflict between his affidavit testimony and
his testimony during the hearing that work was slow.
Dover's testimony conflicted with that of Diane Hart-
man regarding a 14 August conversation with Buddy
Fuller (see above), and with the testimony of Brenda
Harte whether Harte volunteered to be laid off on 15
August. Harte testified contrary to Dover that she did
not volunteer. Another witness for Respondent, Vickie
Riness, testified that Harte actually said that if it came
down between her and her husband , who also worked
for Respondent, that Harte would rather it be her. At
best , Riness' testimony shows that there was some ambi-
guity whether Harte would volunteer only to keep
Harte 's husband from being laid off . Dover , in his testi-
mony, drew no such distinction and was, therefore,
giving another version than that of Riness. In fact, both
Brenda Harte and her husband , Fred Harte , were laid off
on 15 August
Because of the above , and my observation of Jimmy
Dover, I am unable to credit his testimony. I credit the
testimony of Pursley. Pursley impressed me as a candid
witness. Pursley's testimony revealed that she was inter-
rogated and threatened with discharge during her con-
versation with Dover. Pursley was not known as a union
advocate. Therefore, I find that she was interrogated and
threatened in violation of Section 8(a)(1).
H. 20 September 1985
On 20 September Diane Hartman was summarily dis-
charged . Will Overall told Hartman that she was dis-
charged because of talking.
Will Overall testified that it was his decision to dis-
charge Diane Hartman According to Overall, Hartman
"wouldn't stop her talking, she left her department (on a
number of times)."
Conclusions
Diane Hartman was, according to her testimony which
I credit, one of two employees that first contacted the
Union . Respondent 's president admitted learning that
Diane Hartman was one of three primary union pushers
In view of the tirrung of her discharge, coming just
over a month after Respondent first learned that Hart-
man was a union pusher ; the animus Respondent illus-
trated against its employees ' union activities as shown
above; the credited evidence showing a comment by
Plant Manager Campbell to effect that Hartman was a
prime union pusher ; and the summary manner of her dis-
charge, I am convinced that the General Counsel
proved, prima facie, that Respondent discharged Hart-
man becasue of her union activities.
Moreover, the record fails to show that Hartman
would have been discharged in the absence of union ac-
tivities. Will Overall testified that he had never dis-
charged anyone other than Diane Hartman. Obviously,
in light of that evidence, discharging an employee was a
serious matter for Overall. Nevertheless, Overall did not
point to a single specific event that precipitated Hart-
man's discharge. Overall did testify that Hartman told
him that he was not going to run over the department.
However, that comment was allegedly made 2 weeks
before Hartman 's discharge . Additionally, nothing was
done or said on that occasion to indicate that Hartman
was being cautioned or otherwise disciplined.
Simiarly, tesitmony that Hartman was noticed to have
been absent from her duty station on the day of Overall's
meeting drew no words of caution Additionally, as in
the case above, that incident occurred 2 weeks before
Hartman was discharged.
Overall said that he was displeased with Hartman's
conduct on several occasions during the 2 weeks he su-
pervised her. Nevertheless, Overall said nothing to Hart-
man. Hartman was never disciplined by Overall until she
was discharged.
When asked why he did not give Hartman a warning
for any of her shortcomings, Overall replied, "I dust
didn't."
Credited evidence proved that it was Respondent's
policy to progressively discipline its employees if they
engaged in excessive talking Hartman was treated differ-
ently. She received no prior disciplinary action for talk-
ing.
Respondent's attorney asked Will Overall about Re-
spondent's policy for disobeying a supervisor and was
told that an employee could be discharged for that in-
fraction. Respondent's "policy" which was received in
evidence , supports Overall 's testimony in that regard.
However, there was no showing of specifics whether
and when Hartman disobeyed Overall. At no time was
Hartman told that an act by her constituted disobedi-
ence.
REDD-I, INC
I credit Hartman 's testimony that she was told she was
discharged for talking Overall never denied making that
comment On the basis of that evidence , and on the
record as a whole, I find that Hartman would not have
been discharged absent her union activities Other em-
ployees in Hartman 's department were shown to have
engaged in excessive talking None of those other em-
ployees was discharged
I find that Hartman was treated differently from other
employees and in a manner that was uncharacteristic of
Respondent 's policy and practice Hartman , unlike all
others, was discharged for talking and, although Re-
spondent's practice was to progressively discipline em-
ployees for talking Hartman did not receive the benefit
of Respondent 's progressive disciplinary policy Lemon
Drop Inn , 752 F 2d 323 (8th Cir 1985), Soil Engineering
Co, 269 NLRB 55 (1984)
CONCLUSIONS OF LAW
1' Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Sheet Metal Workers International Association is a
labor organization as defined in Section 2(5) of the Act
3 Respondent, by interrogating its employees regard-
mg their union activities , by soliciting employees to
engage in surveillance of other employees ' union activi-
ties, by threatening its employees with discharge, by
threatening its employees with layoffs, and by threaten-
ing its employees that it would close its plant because of
its employees' union activities, has engaged in conduct
violative of Section 8(a)(1) of the Act
4 Respondent, by laying off employees Marguerite
Price, Diane Lowe , Mike Parris, Fred Harte, Robert
Plemmons, Debbie Crabtree, Theresa Pursley, Brenday
Harte , Jim Harvey , Wendell Whitley, Bobby McFalla,
Boyd Webb, Donna Lambert, and Donnie Keahey on 15
August 1985 because of its employees ' union activities,
has engaged in unfair labor practices in violation of Sec-
tion 8(a)(1) and (3)
5 Respondent, by discharging its employees Diane
Hartman on 20 September 1985 because of her union ac-
tivities, has engaged in conduct violative of Section
8(a)(1) and (3) of the Act
6 The unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, I shall order it to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act
Having found that the Respondent has illegally laid off
employees Marguerite Price , Diana Lowe , Mike Parris,
Fred Harte , Robert Plemmons , Debbie Crabtree, Theresa
Pursley, Brenda Harte, Jim Harvey , Wendell Whitley,
Bobby McFalls, Boyd Webb, Donna Lambert, and
Donnie Keahey and has illegally discharged Diane Hart-
man in violation of Section 8(a)(1) and (3) of the Act, I
shall order Respondent to offer Marguerite Price, Diana
Lowe, Mike Parris, Fred Harte, Robert Plemmons,
1129
Debbie Crabtree , Theresa Pursley, Brenda Harte, Jim
Harvey, Wendell Whitley, Bobby McFalls, Boyd Webb,
Donna Lambert , Donnie Keahey , and Diane Hartman
immediate and full reinstatment to their former positions,
or, if those positions no longer exist , to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges , and to make the above-
named employees whole for any loss of earnings they
may have suffered as a result of the discrimination
against them Backpay and interest shall be computed in
the manner described in F W Woolworth Co, 90 NLRB
289 (1950), and Florida Steel Corp, 231 NLRB 651
(1977) 7
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eds
ORDER
The Respondent , Redd-I, Inc, Chattanoga , Tennessee
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against employees because of their union and other pro-
tected concerted activity
(b) Coercively interrogating employees about the em-
ployees' union activities
(c) Soliciting its employees to engage in surveillance of
other employees ' union activities
(d) Threatening its employees with discharge because
of their union activities
(e) Threatening its employees with layoff because of
their union activities
(f) Threatening its employees that it will close its plant
because of the employees' union activities
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to employees Diane Hartman , Marquente
Price, Diana Lowe , Mike Parris, Fred Harte, Robert
Plemmons, Debbie Crabtree, Theresa Pursley, Brenda
Harte, Jim Harvey, Wendell Whitley, Bobby McFalls,
Boyd Webb , Donna Lambert , and Donnie Keahey imme-
diate and full reinstatement to their former jobs, or, if
those jobs no longer exist , to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed , and make each of
them whole for any loss of earnings plus interest he or
she may have suffered by reason of Respondent's dis-
criminatory actions
(b) Remove from its files any references to the dis-
charge of Diane Hartman on 20 September 1985 or the
layoff of employees Marguerite Price , Diana Lowe,
Mike Parris, Fred Harte, Robert Plemmons, Debbie
r See generally Isis Plumbing Co, 138 NLRB 716 (1962)
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Crabtree, Theresa Pursley, Brenda Harte, Jim Harvey,
Wendell Whitley, Bobby McFalls, Boyd Webb, Donna
Lambert, and Donnie Keahey on 15 August 1985, and
notify each of them in writing that this has been done
and that evidence of their unlawful discharge or layoff
will not be used against them in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its facilities in Chattanoga, Tennessee,
copies of the attached notice marked "Appendix."9
9 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "