Timberline Energy Corporation

National Labor Relations Board - Board Decisions

Sep 25, 1981

258 N.L.R.B. 292 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Timberline Energy Corporation and United Steel-
workers of America, AFL-CIO. Case 3-CA-
9796
September 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 14, 1981, Administrative Law Judge
Edmund A. Neumaier issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge, to
modify his remedy, 2 and to adopt his recommend-
ed Order, as modified herein.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the second para-
graph of the Administrative Law Judge's Conclu-
sions of Law 3:
"By interfering with protected concerted activi-
ties, by interrogating employees concerning union
activities, by promulgating and maintaining an un-
lawful no-solicitation rule,. by urging employees
with promises and a grant of a pay raise to form
their own committees as an alternative to represen-
tation by the Union, and by threatening to close
the plant if union representation occurs, Respond-
ent has violated Section 8(a)(1) of the Act."
i In sec. 1I,B,5, the Administrative Law Judge referred to "the record
sales during the last quarter of 1980." This is apparently an inadvertent
error since the period of record sales occurred during the last quarter of
1979. We hereby correct this error.
2 See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for the
rationale on interest payments.
I The Administrative Law Judge found that Respondent violated Sec.
8(a)(l) of the Act by promulgating and maintaining an unlawful no-solici-
tation rule and by granting pay raises calculated to induce employees to
abandon their support of the Union. We have modified the Conclusions
of Law, recommended Order, and notice to reflect these findings.
In his recommended Order, the Administrative Law Judge provided
that Respondent shall cease and desist from "in any like or related
manner" infringing upon employee rights guaranteed by Sec. 7. In view
of the nature and extent of the violations committed herein, we find that
Respondent has exhibited a general disregard for employees' statutory
rights and that therefore a broad remedial order is warranted. lickmott
Foods. Inc., 242 NLRB 1357 (1979). Accordingly, we shall modify the
Administrative Law Judge's recommended Order and notice in this
regard.
258 NLRB No. 37
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, as modi-
fied below, and hereby orders that the Respondent,
Timberline Energy Corporation, Syracuse, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I. Insert the following as paragraph (c) and re-
letter the subsequent paragraph accordingly:
"(c) Promulgating and maintaining an unlawful
no-solicitation rule."
2. Substitute the following for paragraph l(d):
"(d) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them by Section 7 of the
Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
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 opportu-
nity 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 ordered us to post this notice.
WE WILL NOT interrogate or threaten em-
ployees about union activities or discourage
them by threats of a plant shutdown or prom-
ises of benefits for forming committees as an
alternative to a union, or dominate such em-
ployee committees.
WE WILL NOT grant pay raises in order to
encourage our employees to abandon their
support of the Union.
WE WILL NOT unlawfully prohibit our em-
ployees from soliciting for the Union.
WE WILL NOT lay off or refuse to rehire
those laid off or otherwise discriminate against
employees in regard to their hire or tenure of
employment or any term or condition of em-
ployment because they engaged in protected
concerted activities.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to engage in or refrain
from engaging in any or all of the activities
specified in Section 7 of the Act.
292
TIMBER.INE ENER(GY C)RPORATION
WE WIl offer those listed below immediate
and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their se-
niority or other rights or privileges previously
enjoyed, and WE WIL.L make them whole for
any loss of earnings they may have suffered as
a result of their discharge, plus interest.
Donald Burrows
Sharon Calarco
Pat DeMont
Robert Denny
Steve Greiner
Ken Johnson
Henry Belge
Loren Buschle
Mark Ruskey
Vic Parker
Chris Lamirande
Gordon Bryant
Mike Fidler
Robert Kingsley
Harry (Henry)
Lewis
John Carpenter
Sam Guardino
Linda Jones
H. J. Kingsley
Ethel Lewis
Fred Staiano
L. D. Morrison
William J. Nolan
E. St. Pierre
Catheryn Towndrow
James Young
Patrick Lamirande
Timothy Love
Mark Oberitter
Gerald Russell
William Dillabaugh
Steve Sable
John Stanley
James Towndrow
William Wiers
Broderick Masters
William McCaulley
Richard Suarez
Ron Williams
Douglas Russell
Norris Smith
Ivan T. Preslar III
TIMBERLINE ENERGY CORPORATION
DECISION
STATEMENT OF THE CASE
EDMUND A. NEUMAIER, Administrative Law Judge:
The charge in this case was filed on May 14, 1980, by
United Steelworkers of America, AFL-CIO (herein
called the Union). On July 21, 1980, the complaint was
issued alleging that Timberline Energy Corporation
(herein called Respondent) violated Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended, by
interrogating, threatening, and laying off employees be-
cause of their concerted union interests and activities and
by imposing an unlawful no-solicitation rule. The charge
was amended to allege violative promises and payment
of pay increases, establishment of a negotiating commit-
tee, and use of vulgar and demeaning language towards
employees, as well as additional layoffs by Respondent.
The charge, as amended, is denied by Respondent, which
admits laying off employees at the times averred.
A hearing was held before me in Syracuse, New York.
on March 11 and 12, 1981. A brief was filed by the Gen-
eral Counsel.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINiINGS ANI) CONCI USIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation and a wholly
owned subsidiary of Timberline Stoves Northeast, Inc.,
manufactures coal- and wood-burning stoves. For 12
months prior to issuance of the complaint, Respondent
sold and shipped goods and materials valued in excess of
$50,000 directly from its Syracuse, New York, plant to
points in other States. Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
111. THE ALI.F.GED UNFAIR L ABOR PRACTICES
A. The Facts
1. Introduction
Ivan T. Preslar II is the sole owner and president of
Respondent and its holding company which is otherwise
inactive. Respondent's manufacture of stoves is seasonal.
Normal employee layoffs occur during the final quarter
of the year and recalls are made when sales increase in
January. In the past, no layoffs occurred in the spring.
The layoffs in issue involved 42 of about 62 shop em-
ployees and occurred on May 5, 6, 7, and 9, 1980.'
In the same year, Respondent experienced a decline in
business resulting in a net loss of about 79,000 for a 7-
month period ending December 31, 1980. Profits de-
clined from $292,000 for the fiscal year ending May 31,
1980, to a projected loss of $150,000 at the end of May
1981. During the first 5 months of 1980, Preslar loaned
$67,524 to Respondent to meet payrolls and other urgent
debts. Respondent's business activity was partially im-
pacted by canceled orders in May and an inventory sub-
stantially greater than that in prior years. Owing from
about $300,000 in accounts payable at the time of the
hearing were 1980 Federal and New York State income
tax obligations, of $120,000 and $40,000, respectively.
During the middle of April, William Nolan and other
employees generally discussed among themselves the
prospects of union organization. Nolan frequently wrote
"union made" with chalk on the sides of the stoves. At
or about the same time, Preslar, in a telephone conversa-
tion, told Alvin Stever, Respondent's plant manager, to
prepare for a layoff. At a meeting with Stever later in
the month, Preslar instructed him to have the foremen
take "a hard look at everybody." He advised examina-
tion of the employees' attendance, tardiness, productiv-
ity, and drinking records, as well as their attitudes.
On May 1, Nolan telephoned Louis Thomas, a repre-
sentative of the United Steelworkers, concerning a meet-
See Appendix B which names the employees and shows the dates
when they were laid off and, for some. when they' ere recalled Appen-
dix B omitted from publication]
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with interested coworkers on Friday, May 2, at
Nolan's home. Because of the reluctance of some em-
ployees to attend the meeting that Friday night, the
meeting was postponed to the following Monday night.
Nolan mentioned the meeting to "about everybody at the
plant."
On his initial direct examination by the General Coun-
sel, Preslar recalled Nolan's being seen dispersing union
literature throughout the plant and meeting with other
employees during working hours. He did not remember
when this occurred or whether such behavior was
brought to his attention prior to May 5. On direct exami-
nation by counsel for Respondent, Preslar said, "I heard
nothing of the union activities, didn't know anything
about it. I'd been out of town." He acknowledged that
the foremen knew about union activity on May 5. I be-
lieve Preslar's initial account. Voluntarily, Preslar identi-
fied Nolan in the hearing room as the person he and the
foremen had seen distributing union literature in the
plant during working hours. He said Nolan was doing
this when he was working. Nolan was laid off on May 5
and not recalled. In his subsequent denial of any knowl-
edge about union activity before May 5, Preslar did not
explain this discrepancy. Assertedly, he returned from a
business trip on the weekend immediately prior to May
5. Nolan was laid off on May 5, and he denied being on
plant property after that date. Hence, I find that Re-
spondent's principal officer and supervisors were aware
of the union activities.
2. The layoffs
May 5: On Monday morning, Preslar ordered a layoff
of 10 or 12 employees. Stever met with the foremen. A
"weed the garden" selection policy was followed to
eliminate unproductive and otherwise undesirable em-
ployees. At lunchtime in a work area Leo Remillard, a
parts supervisor, asked Nolan whether he wanted to start
a revolution. Nolan said, "Yes." At the end of the shift,
layoff slips were given to Nolan and 10 others, including
Bob Denny and Catheryn Towndrow, who attended the
meeting at Nolan's house as planned. At the meeting
they decided to continue the organizing campaign.
May 6: Preslar ordered another layoff. The supervisors
met in the morning and nine employees were selected.
Sharon Calarco received her layoff slip the same
morning about 15 minutes after Leo Remillard had seen
her signing a union card. This is a day later than alleged
in the complaint and admitted in the answer. The record
is inconclusive as to whether the Calarco slip bore the
actual layoff date, or whether a slip prepared on May 5
was given to her on May 6. In either case, Calarco was
laid off 15 minutes after signing a union card.
The laid-off employees congregated at the Stadium
Lounge and at a corner across the street from the plant
and solicited workers in the morning, at noon, and at the
end of the shift to sign union representation cards and to
accept union literature. Of those laid off, six or seven
met at the union office and signed representation cards
on May 6.
Coming into the plant, John Stanley met his welding
supervisor, Kent Hoverstadt, and had a "friendly conver-
sation." Hoverstadt asked Stanley, "What was going on
down at the corner," and inquired if Stanley had signed
a union card. He advised Stanley not to talk about the
Union.
In the welding department, Hoverstadt held a brief
morning meeting telling welding employees that if they
valued their jobs they should not participate in the activ-
ity on the corner and not talk about the Union. He
warned that a union would force the plant to close and
move to another State. Stephen Burrows, a foreman, was
present and spoke. Preslar denied giving Hoverstadt any
authority to make a statement about closing or moving
the plant, and generally deems such a plan infeasible.
May 7: Union organizing activities continued at the
corner. At the end of the workday, 10 more employees,
including Stanley and James Towndrow, who had at-
tended the May 5 meeting, were laid off. When Patrick
Lamirande received his slip, he asked whether the layoff
had anything to do with the union organizing. Hover-
stadt answered negatively and explained that he was
only doing his job.
Thomas, as the Union's representative, wrote a letter
to Preslar requesting recognition. By telephone on May
9, Preslar acknowledged receipt of the letter and said
that he would not recognize the Union and that, before
allowing organization of the plant, he would move his
operation out of the State.
May 8: Union activities at the corner continued, and
no employees were laid off.
At the end of the workday, a caravan of several cars
which had been parked near the plant, carrying a dozen
or more laid-off employees, drove past the plant to the
end of the street to turn around and then proceeded
slowly past the plant where Preslar was standing with
office employees to see what was happening. The pur-
pose of the caravan, according to Nolan, was to "[l]et
them know we were there." James Towndrow held up a
Steelworkers paper, and others in the caravan held union
placards. Preslar admitted telling Towndrow "to stick it
in his ass" and gesturing in a vulgar manner with his
arms. Preslar testified that he was provoked by the cara-
van's turning around on plant property, the sounding of
horns, the holding of placards and union papers, and the
"shooting the finger" and other gestures directed at him.
The testimony from the direct examination and cross-ex-
amination of James Towndrow, Nolan, and other wit-
nesses generally conflicts with Preslar's perception of
provocative acts. Partly because of the candor and inten-
sity of Preslar's account and partly because of my appre-
hension of a forebearance on the part of the employee
witnesses to see or hear anything provocative in the
caravan, which was to "[L]et them know we were
there," I conclude that there was provocative activity to
which Preslar responded in kind.
May 9: Nine more employees were laid off, and the so-
liciting at the corner expanded.
During the lunch period, after John Carpenter had re-
ceived his pay and a layoff slip, Burrows asked him
whether he was joining the activities outside. Burrows
recalled asking about the "Union coming into the fac-
tory."
294
TIMBERLINE ENERGY CORPORATION
A television station videotaped an afternoon interview
with Thomas outside the plant concerning the organizing
effort. Nolan, Denny, James Towndrow, and Henry
Lewis, who had been laid off the same day, appeared in
the background of the evening telecast of the interview.
3. Rehirings
Donald Burrows, Gordon Bryant, Robert Kingsley,
Broderick Masters, Timothy Love, Gerald Russell, and
Richard Suarez, who were laid off in May, were rehired
on June 30. Bryant and Suarez had signed union cards.
William McCaulley, Ethel Lewis, Henry (Harry) Lewis,
and John Stanley were recalled in August. All except
McCaulley participated in union activity. John Carpenter
and Sam Guardino were rehired in September. Carpenter
was interested in the Union. Six new and three former
employees not involved in the May layoffs were hired in
June (one), September (four), and October (four).2 The
27 people who were never recalled included Calarco,
Denny, Nolan, both Towndrows, Lamirande, and others
who participated in union activity. (See Appendix B.)
4. Representation and solicitation
On May 12, 1980, a petition for certification of repre-
sentative was filed by the Union. A representation hear-
ing was held in Timberline Energy Corporation, Case 3-
RC-7829, on May 27 and June 2, 1980. 3 By some unspe-
cified time after June 2, Respondent's "Personnel Poli-
cies Manual" was replaced by an untitled manual which,
under the subheading "Standard Shop Rules and Regula-
tions," provides:
5. Visiting or loitering prohibited.
6. Solicitation of membership in any organization
on Company time is prohibited, unauthorized, can-
vassing, selling of lottery tickets or chances, [or]
gambling on Company time or property is prohibit-
ed.
Preslar circulated an undated letter to employees (I)
informing them of a meeting at 4 p.m. on July 22, (2)
asking for their independence in the July 23 election, and
(3) announcing, tentatively, the formation of compensa-
tion, disciplinary, and safety committees. At the July 22
meeting, Preslar told the employees that they could do
whatever they wanted to do, but urged them to form
their own union. He promised a 25-cent-an-hour pay
raise effective immediately but paid a week later because
a week's payroll was held back on the computer. On
July 23, the Union lost the election. On July 23, another
meeting was held by the employees to elect members to
the committees without the presence of Preslar or any
supervisors. Free beer was provided by Preslar's son in
the plant parking lot after these two meetings. Several
subsequent meetings were held among Preslar, Stever,
and committee members mostly about safety matters.
2 Respondent hired new employees Terrence Harmer. Frank Kaylor,
Stephen Monnet., Jose Vallejo, Mark Villenuve, and Chris Dygert and
former employees James Carpenter, Linda Kingsley, and John Vadala.
3 Official notice of the petition filing is taken at the request of counsel
for the General Counsel
B. Concluding Findings
I. The violation attributed to Leo Remillard
During the morning of May 5, Remillard, a foreman,
asked whether Nolan "was trying to start a revolution."
The General Counsel argues that this question establishes
knowledge by Respondent of Nolan's role in the union
organizing campaign and the employee's interest in a
union. Remillard's question is open to various interpreta-
tions, except when considered in the context of Nolan's
answer, "Yes," his leading role in union organizing, and
his layoff on the same day. The inference can be drawn
that Remillard's question recognized and sought confir-
mation of Nolan's union activism. I find that Remillard's
query violated Section 8(a)(1) of the Act.
2. The violations attributed to Kent Hoverstadt
On the morning of May 6, Welding Supervisor Hover-
stadt's "friendly" questioning of Stanley concerning ac-
tivity "on the corner" and about Stanley's signing a
union card, and Hoverstadt's advising Stanley not to talk
about the Union, interfered with protected rights. Stan-
ley was laid off the next day and not recalled until the
second wave of rehirings on August 4. I find a violative
interference under Section 8(a)(1) of the Act.
Later on the same day, Hoverstadt held a meeting in
the welding department and told employees that if they
valued their jobs they should not participate in the activ-
ity on the corner and should not talk about the Union.
He warned that a union would force the plant to close
and move out of the State. Hoverstadt did not testify.
Preslar asserted that Hoverstadt's threats concerning
closing the plant were made without his authority. None-
theless, Respondent is responsible for the conduct of its
agents. There is no doubt that Hoverstadt made these
threats and warned employees about talking about the
Union, and I find a violation of Section 8(a)(l) of the
Act.
3. The violation attributed to Stephen Burrows
Burrows admitted asking Carpenter 4 about the Union's
coming into the plant when Carpenter was laid off on
May 9. Because of a longstanding friendship between the
two, this conversation appears to be on the borderline of
a violation. Bearing in mind that Carpenter was not re-
called until September 8 (the third wave of recalls after
the May layoffs) and Respondent's demonstrated union
animus after May 5, I find a prohibited interference
under Section 8(a)(1) of the Act.
4. The violations attributed to Ivan Preslar 11
The complaint alleges that Preslar threatened to close
the plant if the Union came in. On May 7, Thomas, the
union representative, wrote a letter to Preslar seeking
recognition. On May 9, in a telephone conversation,
Preslar acknowledged receipt of the letter, and said that
he would not recognize the Union and that, before al-
4 Carpenter recalled being asked by Burrows whether he planned to
join the aciivilies outside.
295
DECISIONS OF NATIONAL.. LAI()OR RLI.AII()NS I()ARI)
lowing union organization of the plant, he would move
his operation out of the State. Thomas told Nolan.
Cathryn and James Towndrow, and other employees
what Preslar said in the telephone conversation. Since
Preslar's threat was communicated to the union repre-
sentative and agent of those employees signing union
cards, it had the same impact as if made directly to the
employees. This conversation is not controverted by
Preslar, save his comment that moving the plant was not
feasible.5 Whether such a plant closing and relocation
was feasible in Preslar's mind does not diminish the aim
of his threat to chill union organizational efforts. Thus, I
find interference with protected concerted activity in
violation of Section 8(a)(1) of the Act.
Turning to May 8 and Preslar's response to the union
caravan, there is a question as to whether he interfered
with the free exercise of protected employee rights. The
overall situation of the caravan of automobiles with laid-
off employees showing union papers and placards to
"[l]et them know we were there"' was apprehended by
Preslar as provocation for his "stick it" remark and ac-
companying gesture to the demonstrators. Preslar's ac-
tions were spontaneous. Although Preslar owns and con-
trols Respondent, his display, at best, shows union
animus which did not surprise employees who were
aware of Respondent's laying off of union activists and
others and of the threats made by Hoverstadt in the
welding department meeting 2 days earlier. Preslar's
brief loss of composure in the caravan incident did not
significantly interfere with, restrain, or coerce employees
in the exercise of their rights, and this allegation should
be dismissed.
The complaint also alleges that Respondent (1) estab-
lished committees to negotiate wages, hours, and other
terms and conditions of employment and (2) granted pay
increases to undermine the union organizational drive.
Preslar sent form letters asking employees for "your vote
to keep your independence so you may personally have a
role in shaping the future of this company." The letters
gave notice of a meeting scheduled for July 22, the night
before the election, for the formation of committees deal-
ing with compensation, discipline, and safety. At the July
22 meeting, Preslar urged the employees to form their
own union through the proposed committees and prom-
ised and paid an immediate 25-cent-an-hour raise. After
the meeting free beer was provided by Preslar's son in
the plant parking lot. Preslar tacitly admits the formation
of a labor organization within the definition of Section
2(5) of the Act which is sponsored and dominated by
Respondent and the immediate offer of benefits in the
form of a general 25-cent-an-hour wage increase and free
beer. Another meeting was held on July 24 to allow em-
ployees to select committee members, and a free beer
party was held afterwards. Thereafter the committees
met from time to time to deal mostly with safe working
conditions. The record amply demonstrates the forma-
tion of a company union and the payment of benefits in
s In connection with Preslar's testimony that he did not authorize Ho-
verstadt to tell employees that he would move the plant out of the State.
Preslar said that such a move was unfeasible.
6 Nolan's testimony concerning the purpose or the caravan.
circumstances which I find iolative of Section 8(a)(l) of
the Act.
5. Motivation for the layoffs
The General Counsel alleges that Respondent laid off
employees because of protected concerted union activi-
ties in violation of Section (a)(3) alld (I) of the Act. In
turn, Respondent denies this allegation and presented its
case to show economic reasons for the May layoffs. To
evaluate the causation of motivation for the layoffs in
issue, the current test requires that the General Counsel
make a prima aicie showing sufficient to support an infer-
ence that protected conduct was a motivating factor in
Respondent's decision. Upon such showing, the burden
shifts to Respondent to demonstrate that the same ac-
tions would have taken place without the protected con-
duct.
The General Counsel has made a prima facie case by
showing discrimination against employees and interfer-
ence by Respondent with protected employee conduct.
The concerted union activity by Nolan and others led to
a meeting scheduled with a union representative on the
same day the first employees, including Nolan, were laid
off. The timing of the layoff on Monday, May 5, is in-
consistent with Respondent's past practices. Past layoffs
occurred in the final 3 months of the year and at the end
of the workweek, the usual pay period. No past layoffs
occurred in the spring. The layoffs in issue were progres-
sive and coincided with the intensity of the union activi-
ties. Employees with good records but with an interest in
the Union were released. For example, Ethel Lewis,
whose work performance and attendance were good,
was released. An employee who had a drinking problem
on the job was retained. Union animus was shown by
Preslar in his telephone conversation with Thomas and
in his vulgar words and demeanor towards the union
caravan on May 8. Hoverstadt held a meeting to warn
employees about union activities which would lead to
plant closure. Without retracing all of the incidents,
there is substantial evidence that the layoffs were
prompted by protected concerted union activity.
To meet its burden, Respondent presented evidence of
a business decline in 1980. As will later be analyzed, the
decline actually began at the end of May or at the begin-
ning of June. Respondent's inventory of 1,046 stoves on
May 2 was nearly 10 times as great as on a similar date
in 1979. The large inventory cannot be explained in
terms of a decline in sales. The last 4 months of 1979
were the best in Respondent's history, totaling 9,864
units sold as compared to 2,636 units sold for the same
period in 1978. For the first 5 months, sales were better
in 1980 than in the prior year. During this period, there
were ample economic reasons for Preslar to expect an-
other banner year and to build an inventory to meet the
expected sales demands. At the end of May, both the size
of the inventory and a decline in sales justified a layoff.
In the beginning of May, there were no compelling eco-
nomic reasons shown for the layoffs, but the size of the
7 The applicable test of causality is discussed in Wright Line. a Diviton
ofJ Wright LinIt', Inc.. 251 Nt RB 1083 (1980).
296
TIMBERLINE ENERGY CORPORATION
inventory would enable a layoff to chill the union activi-
ty which began in the middle of April.
Preslar testified that in the middle of April he began
planning a layoff for economic reasons and so notified
his supervisors. He decided to lay off 10 or 12 employees
on Monday, May 5, the next working day after he re-
turned from a business trip. This is also the day of the
scheduled union meeting. The May 5 layoff was deemed
necessary by Preslar because I week of each employee's
wages is held back, and for the reason that he could not
afford 1 more day. The progressive layoffs during the re-
maining days of the week stemmed, allegedly, from the
canceling of orders and the "bouncing" of four checks.
No corroborating documentation was produced, showing
the dates of dishonoring of checks, although some legal
actions later were taken by Respondent wherein such in-
formation would have been presented.
During the first 5 months of 1980, Preslar loaned Re-
spondent $67,524, as follows:
Date Amount
January 31
February 8
February 18
March 15
March 26
April 1
April 3
April 22
May 8
May 20
May 29
May 30
$5,000.00
5,000.00
5,000.00
5,000.00
8,000.00
4,000.00
8,000.00
5,000.00
9,000.00
5,000.00
5,000.00
3,523.69
A cash flow problem developed with the building of an
inventory following the record sales during the last quar-
ter of 1980. Preslar was satisfied with sales early in 1980,
and the inference can be drawn that Preslar's support of
the business with personal loans until the end of May
was based on business optimism.
A comparison of 1980 stove sales with the prior year
does not show a business crisis in May:
Units Sold
Month
January
February
March
April
May
June
July
August
September
October
November
December
1979
527
313
393
257
487
359
667
979
1.,773
2,429
3,064
1,798
For the first 5 months in 1980, Respondent sold more
stoves than in 1979 with a very slight drop in sales
during the critical May period. A profit of $292,000 was
earned for the fiscal year ending May 31, Respondent's
most profitable year. For the last 5 months of this fiscal
period, Preslar displayed some confidence in Respondent
by loaning it his own money when needed. Later he dis-
played confidence by recalling some employees on June
30 and giving a 25-cent-an-hour raise to all employees in
July.
Early in May, the large inventory of stoves permitted
a layoff of production employees without affecting sales.
Purportedly, the inventory was produced from retained
earnings thereby using cash reserves. The general eco-
nomic reason given for the layoff on the first working
day after Preslar returned from his business trip, howev-
er, does not include specific data either on the cash flow
or about specific events or circumstances which prompt-
ed a virtually immediate layoff. Nor are the alleged busi-
ness reasons for progressive layoffs (coinciding with the
intensity of union activity) either documented or other-
wise detailed in the same manner as its other business
and financial data. Respondent's evidence is vague and
too insubstantial to show that the layoffs would have oc-
curred on May 5, 6, 7, and 9 without the protected union
activities by employees at that time. I find that the laying
off of employees on May 5, 6, 7, and 9 was discriminato-
ry and interfered with employee's protected rights and
violated Section 8(a)(3) and (1) of the Act.
6. The refusal to recall employees
Of the 42 employees laid off in May, 27 were never
recalled. (See Appendix B.) This group included Ca-
larco, Denny, Nolan, both Towndrows, Lamirande, and
others who participated in union activity. The group also
included Preslar's son and employees not mentioned in
connection with union activities. Several who had signed
union cards, for example, Ethel Lewis, Stanley, and
Gordon Bryant, were recalled. Henry (Harry) Lewis,
who was on the telecast (with Nolan, Denny, and J.
Towndrow) also was recalled.
Stever, the plant manager, could not give the reasons
why most individual employees were not recalled. With-
out looking at a list of employees, he recalled only
Denny, Nolan, and C. Towndrow as having poor attend-
ance and only Nolan as having a poor attitude. Notations
about attendance, attitude, and work performance are
normally made in an employee's file. Stever's examina-
tion of these employees' files, during cross-examination
by the General Counsel, revealed no notations concern-
ing attendance on attitude. He said he "cleaned house"
and "[w]eeded the garden." The only specific recollec-
tion by Stever was about Denny's being close to termina-
tion in 1979 for throwing a piece of metal against a wall.
The incident was noted in Denny's file. Denny requested
a different job and a new supervisor, Marvin Earl. Ac-
cording to Stever, Earl complained about Denny's atti-
tude, and, therefore, Denny was laid off on May 5. As to
Nolan, Stever complained that on several occasions
Nolan was not in his work area, and a supervisor had re-
quired him to return to work. Similarly, nothing was
found in Nolan's file which disclosed such incidents of a
bad attitude. Those employees most active in union ac-
tivities were not recalled and others such as Carpenter
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not recalled until the third wave of rehirings. In-
stead of recalling experienced employees, six new em-
ployees were hired as well as three former employees
not involved in the May layoffs. Bearing in mind Re-
spondent's demonstrated union animus, the numerous
acts of interference with protected concerted conduct by
employees, and the antiunion discrimination in the May
layoffs, the refusal to recall employees who were active
in the union organizing, without showing some other
cause, is violative of Section 8(a)(3) and (1) of the Act.
7. The no-solicitation rule
Respondent issued a new personnel manual at an un-
disclosed time after June 2. The manual contained prohi-
bitions against loitering and visiting and against solicita-
tion of membership on company time. Together, these
prohibitions effect a stringent total ban on union solicita-
tion and other union activity by employees even at non-
working times. Preslar and Stever explained that the sale
of tickets and products, participation in football pools,
and other nonproductive employee activities prompted
the rule changes. On cross-examination, Stever's memory
was dim about specific incidents which led to the rule
changes. No examples of employee abuses were detailed
by Stever for several months prior to the rule changes.
The no-solicitation rule, however, was imposed after
concerted union activities by employees and a Board
hearing, but probably prior to the final election. Absent
special circumstances not here present, an employer may
neither prohibit employees lawfully on the plant premises
from soliciting union support during nonwork time nor
prohibit the distribution of union literature in nonwork
areas during nonwork time. The no-solicitation rule in
concert with Respondent's other antiunion actions is a
patent interference under Section 8(a)(l) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I recommend that Respondent be or-
dered to cease and desist therefrom and to take certain
affirmative action set forth below to effectuate the poli-
cies of the Act.
As I have found that Respondent violated Section
8(a)(3) and (I) of the Act by discriminatorily laying off
42 employees and by refusing to rehire 27 employees, as
described in Appendix B, I recommend that Respondent
be ordered to offer them immediate and full reinstate-
ment to their former jobs or, if such jobs no longer exist,
to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges. I recom-
mend further that Respondent be ordered to make each
employee, including those laid off temporarily, whole for
the loss of earnings, suffered from the May 5, 6, 7, and 9,
1980, layoffs, respectively by payment of the respective
amounts each normally would have earned from the
layoff date until either the date previously rehired by Re-
spondent or, if not rehired, until reinstated by Respond-
ent pursuant to the Order herein, less net earnings, to
which shall be added interest, said backpay and interest
to be computed as prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).
The posting of notices at Respondent's plant in Syra-
cuse, New York, may he insufficient if either the plant is
closed to laid-off employees or if laid-off employees have
moved elsewhere. For these reasons, I recommend that
Respondent be required to mail a copy of the notice, Ap-
pendix A, to each employee named in Appendix B, at his
on her last known address as disclosed by Respondent's
records or otherwise supplied.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating against, laying off, and refusing to
rehire certain employees, as shown in Appendix B, who
were engaged in protected concerted activity and others,
as shown in Appendix B, who were temporarily adverse-
ly affected by the discriminatory layoffs, Respondent has
engaged in unfair labor practices within the meaning of
Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.
4. By interfering with protected concerted activities
through interrogating employees concerning union activ-
ities, by urging employees with promises and a grant of a
pay raise to form their own committees as an alternative
to representation by the Union, and by threatening to
close the plant if union representation occurs, Respond-
ent has engaged in unfair labor practices within the
meaning of Sections 8(a)(l) and 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
The Respondent, Timberline Energy Corporation,
Syracuse, New York, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Laying off, refusing to rehire, or otherwise discrim-
inating against employees in regard to their hire or
tenure of employment or any term or condition of em-
ployment because they engage in concerted activities
protected by Section 7 of the National Labor Relations
Act.
(b) Interrogating and threatening employees concern-
ing union activity, promising and paying benefits to em-
ployees for no union representation by forming employee
committees, and threatening a closedown of the plant if
the employees designate the Union.
' In he event no xceptions are filed as provided by Sec 102 46 of he
Rules and Regulations of he National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall, as provided in
See 102 4 of the Rules and Regulations. he adopted h) the Board and
become its findings, conclusions. and Order, and all objectioins thereto
shall he deemed %waived for all purposes.
298
TIMBERLINE ENERGY CORPORATION
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer the employees named in Appendix B, who
were permanently laid off, immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights or privileges, and
make all of the employees named in Appendix B, includ-
ing those laid off temporarily, whole for any loss of earn-
ings they may have suffered as a result of the discrimina-
tion practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant in Syracuse New York, copies of
the attached notice marked "Appendix." ' Copies of said
notice. on forms provided by the Regional Director for
Region 3. after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
In the c.cnl that thi, Order i' enforced by a Judgment of a United
States Courl or Appeals. the word% in the notice reading "'osted h
Order of the National I.ahor Relations Board"' hall read "'Poted Pursu-
an1 to a Judgment of the United State Curt of Appeals Enforcing an
Order of the National I ahor Relation, Board "
299