Hardwick Company, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1982

263 N.L.R.B. 302 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardwick Company, Inc. and International Brother-
hood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, AFL-CIO,
Local Lodge No. 583. Cases 10-CA-16384 and
10-CA- 16524
August 11, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On March 30, 1982, Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions' of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hardwick
Company, Inc., Bessemer and Birmingham, Ala-
bama, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
IThe General Counsel excepts to the failure of the Administrative
Law Judge to find, as alleged in the complaint, that Respondent's failure
to recall certain laid-off employees constituted a violation of Sec. 8(a)(3)
and (1) of the Act. On the basis of the entire record, we find that the
General Counsel failed to produce sufficient evidence to establish a prima
facie case that the laid-off employees' protected conduct was a motivating
factor in Respondent's decision not to recall the employees. Accordingly,
we dismiss the complaint insofar as it alleges that Respondent violated
the Act by failing to recall the laid-off employees.
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge:
These matters were heard before me on September 10
and 11, 1981, in Birmingham, Alabama, pursuant to com-
plaints issued on January 7 and 29, 1981, in Cases 10-
CA-16384 and 10-CA-16524, respectively, by the Re-
gional Director for Region 10 of the National Labor Re-
lations Board. The complaints which were consolidated
for hearing by order dated March 13, 1981, are based on
charges filed on October 31 and December 16, 1980,1 re-
spectively, and allege, inter alia, that Respondent violat-
ed Section 8(a)(3) and (1) of the National Labor Rela-
tions Act by (1) interrogating its employees, soliciting its
employees to withdraw their support of the Union, and
threatening its employees with economic reprisals be-
cause of their union activities; (2) reducing the hours of
its employees by transferring work from its Bessemer,
Alabama, facility to another facility because of its em-
ployees' union activities; and (3) laying off five employ-
ees on October 30 and two additional employees in early
November because of their union activities. Respondent
filed a timely answer in which it denied the commission
of any unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which were filed by both the General Counsel and Re-
spondent, have been carefully considered.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Hardwick Company, Inc., herein called Respondent,
is, and has been at all times material, an Alabama corpo-
ration with offices and principal place of business located
in Birmingham, Alabama, where it is engaged in steel
fabrication. During the past calendar year, which period
is representative of all times material, Respondent sold
and shipped from its Birmingham, Alabama, facility
goods valued in excess of $50,000 to customers within
the State of Alabama who in turn sold and shipped
goods valued in excess of $50,000 directly to customers
located outside the State of Alabama. Accordingly, Re-
spondent admits, and I find and conclude, that at all
times material herein Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
1I. THE I ABOR ORGANIZATION
Respondent admits, and I find, that International
Brotherhood of Boilermarkers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO, Local Lodge
No. 583, herein called the Union, is, and has been at all
times material herein. a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALL EGED UNFAIR L ABOR PRACTICES
A. IFct2
1. Background
For approximately 50 years, Respondent has fabricated
and processed steel at its Birmingham, Alabama, facility.
In mid-1979, when Respondent was experiencing an
I Unless otherwise stated, all dates referred to are 1980
2 Except where specifically noted, the material facts are not in dispute
263 NLRB No. 47
302
HARDWICK COMPANY, INC.
upturn in its business, it opened a smaller facility in the
nearby city of Bessemer, Alabama, to handle the over-
flow of orders. Respondent essentially operates as a "job
shop," filling each order to the customer's specification.
As such, Respondent does not maintain any inventory of
finished products or manufacture any items for sale "off
the shelf." Although both facilities can generally perform
the same type of functions, due to the significantly larger
size of both the physical plant and the equipment itself,
the larger orders are handled at the Birmingham facility.
At all times material the Birmingham facility has em-
ployed approximately 35 employees. While the employ-
ment level at Bessemer reached a high of approximately
25 employees shortly after it opened, by the fall of the
following year, that number had been reduced to ap-
proximately 16 employees.
In mid-October employees at both facilities com-
menced an organizing effort by soliciting signatures of
their fellow employees on union authorization cards. On
October 23 the Union filed a petition in Case 10-RC-
12257 seeking to represent a bargaining unit limited to
the Bessemer facility; and on Friday, October 24, Re-
spondent received a copy of the petition from the Board.
On November 7 the petition was withdrawn without
prejudice, and on December 15 a second petition in Case
10-RC-12282 was filed concerning the same bargaining
unit employees. On February 6, 1981, an election was
held with the result that eight employees cast ballots for
the Petitioner and two against with three challenged bal-
lots.
2. The alleged independent 8(a)(1) violations
On the morning of Friday, October 24, Harold Eugene
Wilson, one of Respondent's owners and the individual
with general responsibility for production at both facili-
ties, received a telephone call while in his Birmingham
office from a former employee. This individual informed
Wilson that the employees were trying to organize. He
further identified Dave Murkeson as the employee who
was passing out the cards at Birmingham and stated that
he had also heard through rumor that James Taylor and
Bill Finerty were doing the same at Bessemer. Immedi-
ately following the call, Wilson called both George Par-
sons, the general supervisor of the Bessemer plant, and
David Hardwick, the general supervisor of the Birming-
ham plant, and relayed to them what he had just been
told. Both Parsons and David Hardwick stated that they
did not know anything about any organizing effort.
Wilson instructed both to try and find out what they
could about the rumor.
During the penod immediately following these tele-
phone calls and continuing into at least the early portion
of the following week, Respondent, through Parsons,
Wilson, and to a lesser degree David Hardwick, em-
barked on a course of conduct which the General Coun-
sel alleges not only constitutes multiple, separate, and in-
dependent violations of Section 8(a)(l), but also supplies
evidence of Respondent's unlawful motivation in making
its layoffs on October 30 and on November 6 and 13.
Respondent does not deny that Parsons and David
Hardwick engaged several employees in conversations
about the organizing effort on Friday, October 24. In
fact, Respondent did not call either as witnesses to deny
such testimony. Respondent does, however, contend that
any conversations Parsons may have had with employees
about the Union after October 24 were not attributable
to Respondent since they were direct violations of
orders. 3 In this regard, Robert Hardwick, Respondent's
president, testified that when he was informed of the or-
ganizing effort by Wilson during the day on Friday, Oc-
tober 24, he immediately contacted Respondent's attor-
ney, who advised him to instruct all members of manage-
ment not to interrogate the employees about their union
activity, threaten them with reprisals, engage in surveil-
lance of their activities. or make promises to them.
Robert Hardwick further testified that later that same
day he personally relayed the advice of counsel to David
Hardwick, Wilson, and Parsons.
a. Conduct of Parsons
During the course of Friday, October 24, Parsons ap-
proached on an individual basis at least six different Bes-
semer employees and questioned them generally about
their knowledge of the organizing campaign. In these
conversations Parsons asked the employees if and where
they had signed the union cards and who had given
them the cards. All of the employees indicated they had
indeed signed authorization cards on behalf of the Union.
One employee identified James Taylor and another em-
ployee identified Bill Finerty as the individual who re-
spectively gave each his card. The remaining four em-
ployees questioned by Parsons on October 24 did not
identify the employee who gave them the authorization
cards.
One of these employees, David Cook, testified that
Parsons approached him for a second time about an hour
or two after the first conversation. On this latter occa-
sion Parsons asked Cook what Cook would do if they
closed the shop down. Cook answered he did not know.
Parsons also spoke to employee Cecil James on two
separate occasions on October 24. On the second such
occasion Parsons asked James if he were on company
time when he signed the card. James told him that he
was in the parking lot of a local lounge when he signed
his card. Parsons responded that he had been informed
by another employee that James had signed his card
during working hours. Parsons then stated that he was
going to close the plant down and he (Parsons) and a
senior machine operator would go back to the Birming-
ham shop and the rest of the employees would be out of
work.
On the following Tuesday, Parsons had a conversation
with Cecil James, Ronnie Wilcox, and Jackie Deason in
which he told them that Respondent would be shutting
down the shop in the next day or two because of the
Union. When James asked if they could meet with
Wilson, Parsons answered that it was too late because
Wilson would not have a union in the shop. Sometime
during the course of this discussion, Parsons indicated
3 Respondent's contentions regarding the allegations charged to Wilson
will be dealt with infra.
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he either presently thought or had earlier thought
that Cecil James was an instigator. 4
Wilcox also testified that he had an earlier conversa-
tion that same day with Parsons. On this occasion Par-
sons approached a group of employees and said that they
were going to close the shop down and shut the gates on
the following day on account of the signing of the union
cards. Parsons added that Wilson had talked to an attor-
ney in Atlanta and said that the only way Respondent
could keep the shop open was to get a petition signed by
all the men who had signed the cards withdrawing from
the Union. Parsons then added that Wilson did not want
a union in the shop and would not have one. Parsons
added that Respondent use as an excuse that there was
not enough work to keep the shop open.5
Bill Finerty, a Bessemer employee, testified that on
October 25 he called Parsons from home to find out if a
rumor he had heard to the effect that he was going to be
fired on Monday was true. Parsons answered that it
seemed that Finerty had all the answers. Parsons then
stated that Finerty was stupid for putting his job on the
line and it was going to cost 16 other people their jobs.
Parsons then added that he, Parsons, was going to have
to drive extra miles to go to the Birmingham plant be-
cause Wilson would close the Bessemer plant down. Par-
sons stated that Respondent planned to start closing Bes-
semer down on the following Wednesday.
b. Conduct of David Hardwick
According to Birmingham employee John Murkeson,
he was called into David Hardwick's office about a week
or two before the October 30 layoffs. Hardwick asked
him if he knew anything about the Union going on.
When Murkeson stated that he did, Hardwick asked him
who other than himself and James Taylor was behind it.
Murkeson answered that he knew James Taylor had
been passing cards about at the Bessemer shop, but that
he, Murkeson, did not have anything to do with it. Hard-
wick asked who else was involved, and Murkeson men-
tioned the name of Bill Finerty. Hardwick responded
that that sounded like Finerty. Hardwick then stated that
there was not going to be any union, that it had been
tried once before when his father ran the Company, and
that his father would not have it then and he was not
going to have it now. Hardwick added that before he
would let a union come in he would close the door.
Murkeson answered that Respondent could not do that
right then. Hardwick said that it did not matter, Re-
spondent could close the door down and just make an
excuse to keep the Union from coming in. Again, Hard-
wick asked Murkeson who was involved. Murkeson re-
sponded by asking Hardwick who had been telling lies
about him instigating the Union at Birmingham. Hard-
wick said that he could not answer, and Murkeson in
turn said that he could not tell Hardwick whose idea it
was if Hardwick could not tell him who was telling lies
about him. Hardwick then offered to tell Murkeson who
4 The above account is based on the generally corroborative versions
of James and Wilcox. While there are some uncertainties and variances in
detail, I do not find such as unusual or alarming.
I The other employees who Wilcox places during this conversation,
Jackie Deason, Lester Grimes. and Alvin Douglas, did not testify.
was telling lies about him if Murkeson would tell him
who were the instigators. When Murkeson agreed, Hard-
wick said that Jim Beasley, a former employee, had men-
tioned that Murkeson was the instigator. Murkeson then
told Hardwick that he had heard through rumor that the
other instigator was Cecil James.
c. Conduct of Wilson
Three employee witnesses, Carl Harris, Cecil James,
and James Johnson, each testified that they had conver-
sations with Wilson at the Bessemer plant regaidiig the
Union. Harris testified that on Saturday, October 25,
Wilson approached him and asked if Harris had heard
about petitions circulating in the shop. Harris answered
that he had. Wilson then asked if Harris had signed a
card, and Harris answered that he had. Wilson then
asked him who had given him the card. Harris answered
Bill Finerty. Wilson asked if James Taylor was responsi-
ble for beginning the Union, and Harris responded no,
that it had been a joint venture among everyone. Wilson
then stated that he would not have a union in his shop
and before he would do that, he would close the shop,
put it up for sale, and move the equipment back to Bir-
mingham, possibly as early as the upcoming Wednesday.
Wilson then added that it would be bad with Christmas
coming and the men out of work.
James Johnson testified that, some time after October
24, he was present at the plant with Carl Harris when
Gene Wilson approached them and stated that he had
worked hard all his life to have what he had, that he was
not going to have the Union come in, and that he would
close the plant first.
Cecil James testified that he had a conversation with
Wilson on Saturday, October 25. According to James,
during the course of the conversation, Wilson stated that
he was going to close the place down and have a for sale
sign up on it by Wednesday. Wilson stated that he was
not going to have the Union come in there and tell him
how to run his business, that he worked all his life to
have a place like this and, if that is what the employees
wanted, he would just close down.
Wilson testified that he went to the Bessemer plant on
the morning of Saturday, October 25, and spoke to
Arthur Clemons and Carl Harris and another unidenti-
fied employee around lunchtime. According to Wilson's
account, during the course of the general conversation,
he stated that he heard that the fellows at Bessemer
thought they needed a union and he wanted to ask them
why. He then asked them if the Company mistreated
anybody. One of the employees answered no, the Com-
pany had not mistreated anyone, but they were doing it
for the money. Wilson told the employees that he could
not believe it.
Wilson admitted having a conversation with Cecil
James at the Bessemer plant that same morning. Accord-
ing to Wilson, however, the conversation had nothing to
do with the Union, but involved some hunting traps that
his son had borrowed from James. According to Wilson,
when, during the course of the conversation, the subject
of the decline in work was mentioned, he made the fol-
lowing statement: "Man, I tell you if something don't
304
HARDWICK COMPANY, INC.
pick up by the middle or the end of next week, we're
going to have to shut this place down and give it back to
the damn Indians." Wilson denied ever having a conver-
sation about the Union with employee Mike Johnson.
I credit the above-recited accounts of Harris, James,
and Johnson over the account by Wilson. While their
testimony may have been at times confused on certain
details, each of these employees impressed me as at-
tempting to honestly recall conversations in question.
Moreover, their versions of Wilson's comments are quite
similar in nature to the undenied comments made both
before and after this date by Parsons. Additionally, both
Harris and Johnson were still employed by Respondent
at the time of the hearing. In these circumstances, it
would be unlikely that their testimony, which was ad-
verse to Respondent, would be false. See Georgia Rug
Mill, 131 NLRB 1304, 1305 (1961), modified on other
grounds 369 F.2d 89 (5th Cir. 1962).
d. Recent alleged 8(a)(1) violations
Cecil James testified that, about 3 weeks prior to the
instant hearing, Parsons approached him while at work
and asked if he had met with "that lawyer"6 the previ-
ous night. When James said that he had, Parsons asked
him what he had been told. James answered that the
lawyer thought that the Company had wanted to settle
the case, but that she did not know anything definite at
that time.
James testified that about I week later Parsons again
approached him and on this occasion asked if he minded
telling Parson who had had the union cards. James an-
swered that it had been James Taylor and Bill Finerty.
Nothing further was said.
3. Transfer of machinery
The complaint alleges and the General Counsel con-
tends throughout the hearing that Respondent, in viola-
tion of Section 8(a)(3) and (1), transferred machinery
from its Bessemer shop to its Birmingham shop with the
result that the hours of work of the Bessemer employees
were reduced. The General Counsel's current position on
this allegation is not clear since, in her post-hearing brief,
counsel only notes in passing this subject as an issue and
at no subsequent time during her brief mentions it fur-
ther. In any event, the facts regarding this issue are clear
and are not in dispute.
On either October 27 or 28 Respondent moved a large
angle roller machine from its Bessemer plant to its Bir-
mingham facility for the purpose of repairing it. Concur-
rent with this transfer, Respondent moved a drill press
from the Birmingham plant to the Bessemer plant. The
Bessemer plant employee who had been running the
angle roller immediately commenced operating the drill
press. This employee lost no work as a result of the
transfer of this machinery.
4. The layoffs
On the afternoon of October 30, Wilson and Parsons
called together the Bessemer employees and announced
6 Counsel for the General Counsel.
that five employees, Cecil James, Michael Johnson,
Johnny Seales, Ronnie Wilcox, and Terry Wilson,7 were
being laid off. In making the announcement, Wilson told
the employees the layoffs were due to lack of work and
had nothing to do with the "problems" that they had at
the plant. Wilson did state, however, that because of
these problems, Respondent was changing the method of
selecting employees from a policy of retaining the most
qualified to a policy of making the layoffs solely on the
basis of seniority. The laid-off employees, who apparent-
ly were the five least senior employees, were urged
during this meeting to seek employment elsewhere.
Employee Taylor testified that during the meeting
Parsons stated that the employees who were not being
laid off could not be late or absent or sick without a doc-
tor's excuse. Employee Finerty testified that Wilson
stated during the meeting that, if an employee were I
minute late or missed a day for any reason without a
doctor's excuse, he would be terminated. None of the
other five employees who testified that they were
present at this meeting mentioned any such comments by
either Wilson or Parsons.8 Wilson specifically denied
that either he or Parsons discussed lateness or tardiness
at this meeting.9
On November 6 and 13, Respondent laid off bargain-
ing unit employees David Cook and Arthur Clemons, re-
spectively. These layoffs, like the preceding ones of Oc-
tober 30, were made pursuant to seniority among Besse-
mer employees.
5. Respondent's economic defense to the layoffs of
October 30 and November 6 and 13
Commencing toward the end of the second calendar
quarter of 1980 and continuing throughout that entire
year, Respondent experienced a substantial decline in its
business. The total sales volume of Respondent's oper-
ations during the first half of 1980 was approximately
$1.55 million. This figure was nearly identical with the
figure for the second half of 1979. However, during the
second half of 1980, this figure declined to approximately
S1.18 million. Concurrent with the loss of sales, the
number of hours worked by all employees during the
second half of 1980 fell sharply. For example, during the
first 5 months of 1980 the total number of hours worked
by all employees ranged from a high of approximately
9,000 in February to a low of approximately 7,400 hours
in March. In June the figure fell to approximately 5,700
hours. Although there was a slight improvement during
Son of Gene Wilson.
a Of these five, three-Wilcox, James. and Johnson-were informed of
their layoff at this same meeting.
9 In resolving the question of whether either Parsons or Wilson made
certain comments or threats regarding attendance at the October 30
meeting, I am not persuaded that the accounts of Taylor and Finerty dis-
cussed above are credible. In reaching this conclusion, I rely on the fol-
lowing factors: (I) the absence of any corroboration by the other five
witnesses to the discussion; (2) the inconsistencies between Taylor and
Finerty's version; (3) the inherent improbability that these statements
would be made at the same meeting in which Respondent took paiuns to
insure employees that the layoffs had nothing to do with the "problems"
they were then experiencing; and (4) Taylor's demonstrated inability to
accurately recall other facts, such as the amount of hours worked by the
Bessemer employees immediately following these layoffs.
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the months of July and August, the figure fell again to a
near June level during September. The hours worked for
the month of October improved dramatically to approxi-
mately 8,400 hours. However, a sharp decline was expe-
rienced in November when the total number of hours fell
back to the June level. It was this economic situation
which Respondent contends warranted the reductions in
question.
Although the October 30 layoffs involved a significant
number of the Bessemer employees, it was not the first
such layoff Respondent made during 1980. In March of
that year Respondent laid off an employee who was
never recalled. In mid-June when, as noted above, the
sales volume decreased, Respondent laid off four addi-
tional employees. All four, which included alleged discri-
minatees Johnson, Cook, and Clemons, were recalled
sometime during July and August. In late September,
Respondent made four more layoffs, including the re-
cently reinstated Cook and Johnson. Of these four, three,
again including Cook and Johnson, were reinstated early
in October. On October 2, Respondent laid off and never
replaced yet another employee. This was the final layoff
prior to the ones in question. Of the five alleged discri-
minatees laid off in late October and early November,
two-Johnny Seals and Cecil James-were recalled in
late November and were still working at the time of the
Board election. '
Several of the General Counsel's witnesses, including
alleged discriminatees Johnson and Wilcox, testified that
in the days immediately preceding their October 30
layoff, they were engaged in general cleanup work while
awaiting orders for processing. ''
These layoffs were not the only cost-saving measure
Respondent instituted during 1980. Respondent had
historically given across-the-board wage increases to its
employees every 6 months, with one coming in June and
another in December. In June 1980, Respondent, due to
a decrease in sales, omitted for the first time giving this
raise. 12
B. Conclusions
1. The 8(a)(1) allegations
The credible evidence establishes that immediately
upon being informed of its employees' union activities,
Respondent, through Parsons, David Hardwick, and
Wilson, embarked on a campaign to undercut the
Union's support among its employees and to thwart the
organizing effort at its inception. Respondent initially at-
tempted to accomplish this purpose by questioning its
employees about whether they signed union cards and by
'L Despite the General Counsel's assertion, no evidence was presented
that Respondent deviated from following seniority on recalls.
I A large number of overtime hours were by the Bessemer employees
in the last week of October. This apparent inconsistency is explained by
the fact that Respondent was then in the process of completing a large
order. When that order was done, many of the employees were left with
no production work.
i2 Robert }lardwick testified that to soften the blow of not getting an
across-the-board increase, all employees were given at that time in June a
l-week salary bonus. No figures were offered regarding how much
money Respondent saved by omitting giving the June pay raise.
attempting to ascertain the identities of the union "insti-
gators."
A supervisor's questioning employees regarding their
union sympathies is coercive because such questioning
conveys an employer's displeasure with the employees'
union activities and thereby discourages such activities in
the future. Further, the coercive impact of these ques-
tions is not diminished by either the employees' open
union support or by the absence of attendant threats.
Gossen Company, a Division of United States Gypsum
Company, 254 NLRB 339 (1981). Here, the questioning
of the employees was accompanied by clear and specific
threats of economic reprisals. Parsons and Wilson both
told employees that, because of their union activities, Re-
spondent would shut down, permanently close, and/or
sell the Bessemer facility with the result that they would
lose their jobs. At one point during the following week,
Parsons indicated to the employees that the only way
this action could be forestalled would be for the employ-
ees to sign a petition withdrawing their support of the
Union. In view of Wilson's conduct in uttering certain of
these threats on October 25, 1 find Respondent's asser-
tion that it should not be held accountable for any con-
duct of Parsons occurring after October 24 to be totally
without merit. Accordingly, I find and conclude that Re-
spondent unlawfully interrogated its employees about
their union activities as alleged in the complaint, as
amended.'a I further find and conclude that Respondent
has unlawfully coerced and threatened its employees
with loss of employment because of their union activi-
ties.'4 Additionally, I find and conclude that Parsons' so-
licitation to the employees to withdraw their support of
the Union as a means of saving their employment unlaw-
fully interferes and coerces its employees. Smith's Com-
plete Market of Tulary County, Inc., d/b/a Smith's Com-
plete Market, 237 NLRB 1424, 1428 (1978).
2. The layoffs
The Board, in Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980), set forth the applicable test
ill all cases alleging violations of Section 8(a)(3) and (1)
which turn upon the employer's motivation. First, the
General Counsel is required to make out a prima facie
showing sufficient to support the inference that the pro-
tected conduct was a "motivating factor" in the employ-
er's decision. Once that is established, the burden then
shifts to the employer to demonstrate that the same ac-
tions would have taken place even in the absence of pro-
tected conduct.
s3 Included in my findings are the allegations relation to Parsons' ques-
tioning of employee James in the month prior to the instant hearing. Re-
spondent has offered no legitimate reason for Parsons' inquiries. As with
the other instances of interrogation, Parsons' questions on these occasions
have the effect of interfering with James' exercise of his Sec. 7 rights.
Ricihard IF urrney and .raomi P. Furtney. a Co-partnership d/b/a Mr. F's
Beef and Bourbon, 212 NLRB 462, 466 (1974).
i4 The complaint specifically alleges that Wilson also threatened em-
ployees at the October 30 meeting with more stringent enforcement of its
attendance policy. As set forth above, I have not credited those portions
of the testimony of Taylor and Finerty relating to this issue. According-
ly, I recommcnd that that complaint allegation be dismissed
306
HARDWICK COMPANY, INC.
The General Counsel contends that the clearly demon-
strated strong union animus, when coupled with the
timing of the layoffs, some 6 days after Respondent was
informed of the petition being filed, creates a strong sus-
picion of Respondent's unlawful motivation. This argu-
ment has appeal if one limits the inquiry to those factors
alone. However, when the layoffs are viewed in the con-
text of the entire record, any doubts with regard to Re-
spondent's motivation must be resolved against the Gen-
eral Counsel.
Months before the advent of the organizing campaign,
Respondent began experiencing a substantial decline in
its sales. Financial conditions had deteriorated so badly
that in June it was forced to omit for the first time the
employees' semiannual raise. Additionally, in the 4
months preceding the October 30 layoff, Respondent laid
off seven different employees from its Bessemer oper-
ation.
In comparing the layoffs alleged as unlawful with the
layoffs which preceded any union activity, only one
major difference is readily apparent. The selection of em-
ployees for the October 30 and November layoffs was
made on the basis of seniority rather than subjective
evaluation by Parsons and Wilson. Respondent's presi-
dent, Robert Hardwick, credibly testified that this
change of procedure was recommended by Respondent's
attorney as a way of safeguarding against being accused
of discriminatorily selecting the union activists for layoff.
The General Counsel does not, as I understand it, con-
tend that Respondent changed its procedures regarding
the layoff selection process in an effort to catch the lead-
ing adherents in its net. In any event, the record evi-
dence would not support such a finding. From early on
in the conversations between employees and Parsons and
David Hardwick, it became clear from several sources
that the two Bessemer employees most active in the or-
ganizing campaign were James Taylor and Bill Finerty.
Yet, neither Taylor nor Finerty was included in the
seven alleged unlawful layoffs. Of the seven, only in
Cecil James' case does the evidence support a finding
that Respondent knew or had reason to believe that he
may have been one of the "instigators." In the cases of
Johnson, Wilcox, Cook, and Clemons, all Respondent
knew was that they had each signed authorization cards.
Additionally, Johnson, Cook, and Clemons had all been
laid off and recalled on one or more occasions preceding
the October 30 layoff. No evidence was presented that
either Seales or Wilson. the son of one of Respondent's
owners, even signed authorization cards. Accordingly,
for the reasons set forth above and notwithstanding the
well-established union animus and the timing of Re-
spondent's action, I am persuaded that the General
Counsel has not met its burden of establishing that pro-
tected conduct was a "motivating fact" in Respondent's
decision to lay off employees on October 30 and Novem-
ber 6 and 13. Mini-Industries, Inc., 255 NLRB 995 (1981);
Colorado Forge Corporation, 260 NLRB 25 (1982).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom, and that it take certain affirmative
actions designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the follow-
ing:
CONCLUSIONS OF LAW
1. Hardwick Company, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-
CIO, Local Lodge No. 583, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities, sympathies, and desires, Respondent violated
Section 8(a)(l) of the Act.
4. By threatening employees with shutdown, closure,
and/or sale of the Bessemer plant because of the employ-
ees' union activities, Respondent violated Section 8(a)(l)
of the Act.
5. By threatening employees with discharge because of
their union activities, Respondent violated Section 8(a)(1)
of the Act.
6. By soliciting employees to sign a petition withdraw-
ing their support of the Union as a means of saving their
jobs, Respondent violated Section 8(a)(1) of the Act.
7. Respondent did not violate the Act when it trans-
ferred the angle roller machine from the Bessemer, Ala-
bama, facility to the Birmingham facility.
8. Respondent did not violate the Act as alleged when
it laid off employees on October 30 and November 6 and
13, 1980.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER
The Respondent, Hardwick Company, Inc., Bessemer
and Birmingham, Alabama, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities, sympathies, and desires.
'6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as provided
by Sec. 102.48 of the Rules and Regulations, be adopted by the Board
and become its findings, conclusions, and Order, and all objections there-
to shall be deemed waived for all purposes.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening its employees with shutdown, closure,
and/or sale of the Bessemer, Alabama, facility because of
their activities on behalf of the Union.
(c) Threatening its employees with discharge because
of their activities on behalf of the Union.
(d) Soliciting its employees to withdraw or resign
from membership in the Union.
(e) Any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Bessemer and Birmingham, Alabama,
facilities copies of the attached notice marked "Appen-
dix."' 6 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER RECOMMENDED that insofar as the com-
plaints allege matters which I have not found herein to
have violated the Act, the allegations are hereby dis-
missed.
'^ In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activity together for the purpose
of collective bargaining or other mutual aid or
protection
To engage in activitiy together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to
these rights. More specifically,
WE WILL NOT interrogate our employees con-
cerning their union activities, sympathies, and de-
sires.
WE WILL NOT threaten our employees with plant
shutdown, closure, and/or sale because of their ac-
tivities on behalf of the Union.
WE WILL NOT threaten our employees with dis-
charge because of their activities on behalf of the
Union.
WE WILL NOT solicit our employees to withdraw
or resign from membership in the Union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the National Labor Relations Act, as amended.
HARDWICK COMPANY, INC.
308