Lindsey's, 1114 (1966)

employer or person to cease doing business with Erectors, Inc., or to force J. C. Penney or any other employer or person to cease doing business with the owner of Bel Aire Shopping Center at Shelbyville, Indiana.

INDIANA AND KENTUCKY DISTRICT COUNCIL, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO,

Labor Organization.

Dated------------------- By------------------------------------------(Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis , Indiana, Telephone No. 633-8921.

Edward M. Lindsey and Oscar H. Lindsey, a Partnership d/b/a Lindsey's and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 96-CA-2020. January 25, 1966 DECISION AND ORDER

On September 1, 1965, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, findings that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these allegations be dismissed. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decison, the exceptions, brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith.

The facts leading up to the alleged violation of Section 8(a) (3) as disclosed by the record and found by the Trial Examiner are as follows : During the late summer of 1964 Respondents decided to remodel their plant facilities at Lawrenceburg, Tennessee, so as to 156 NLRB No. 104.

LINDSEY'S 1115 become more efficient and reduce labor costs in relationship to overall costs. At their Lawrenceburg plant, the planned remodeling consisted essentially of leveling the floors and adding new construction to the wings of the plant. About December 10, 1964, Respondents had substantially completed their remodeling plans except for the completion of one wing on which they had started by adding portions of two new walls. On December 24, 1964, Respondents notified 12 employees that they were being laid off because of lack of work.

On these facts, more fully described in his Decision, the Trial Examiner found that the Respondents laid off 12 employees on December 24, 1964, in violation of Section 8(a) (3) and (1) of the Act, in order to discourage their employees from engaging in union activities.

Despite the lack of evidence showing that Respondents' business was increasing so as to require expanded facilities with the same, or greater work force, the Trial Examiner inferred that such was the reason for the remodeling program. On the basis of this inference and because there was no plan to reduce the personnel complement which had been communicated to the employees, the Trial Examiner concluded that the reduction in force was discriminatory.

We do not accept this conclusion of the Trial Examiner. Rather, on the basis of the record as a whole, including the credited testimony that Respondents' remodeling program was aimed at increased efficiency, we conclude that Respondents contemplated doing the same work with fewer employees, and, upon completion of its remodeling program, laying off those employees it would not need unless, of course, improved business conditions made such a step unnecessary.

The fact that Respondents' business had not increased by the time the remodeling program was substantially completed and the fact that there is no indication in the record that the laid-off employees were replaced by new hires give additional support to the conclusion that the layoff was the natural consequence of Respondents' remodeling program, which was itself undertaken for legitimate economic reasons, as the General Counsel in effect concedes. Accordingly, and as we are unable to accept the Trial Examiner's assumption that, because Responents' did not give their employees advance notice of the layoff, it necessarily must follow that Respondents had not contemplated laying off any employees upon completion of the remodeling program,' we find that the General Counsel has not established by a preponderance of the evidence that the layoff was discriminatorily motivated.

We shall, therefore, dismiss the complaint insofar as it alleges a violation of Section 8 (a) (3) of the Act.

' There no doubt are many reasons why an employer might delay giving notice to his employees of a foreseeable reduction in force-one that comes readily to mind being the fact that such information might cause his employees to seek jobs elsewhere before the employer was ready to give up their services [The Board adopted the Trial Examiner's Recommended Order with the following modifications:

[1. Delete paragraphs 1(a) and 2(a), (b), (c), and (d), and reletter the present paragraphs2(e) and2(f) as2(a) and (b).

[2. Add the following as the last paragraph of the Recommended Order :

[IT IS FURTHER ORDERED that the complaint insofar as it alleges that the Respondents discriminatorily laid off their employees in violation of Section 8 (a) (3) and (1) of the National Labor Relations Act be, and it hereby is, dismissed.

[3. Delete the first and second indented paragraphs of the notice and the Note which appears immediately below the date and title.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

Upon a charge and first amended charge filed on January 28 and March 8, 1965, respectively, by Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ( herein sometimes called the Charging Party or the Union), the General Counsel for the National Labor Relations Board, by the Regional Director of Region 26 (Memphis, Tennessee ), issued a complaint dated March 19, 1965, against Edward M. Lindsey and Oscar H. Lindsey, a Partnership d/b/a Lindsey's (herein sometimes called Respondent or Respondents, Employer or Employers ) alleging violations of Section 8(a)(1) and ( 3) of the Act. Respondents' answer admits many of the fact but denies the commission of unfair labor practices.

Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B.

Stone, at Lawrenceburg, Tennessee, on May 11 and 12, 1965. All parties were represented at the hearing, participated therein, and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral argument and to file briefs.

Upon the entire record in this case , and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' FINDINGS OF FACT

1. THE BUSINESS OF THE EMPLOYERS INVOLVED The facts pertaining to the business of the Employers involved are based upon the pleadings and admissions therein.

   Edward M. Lindsey and Oscar H. Lindsey are, and have been at all times material herein, copartners doing business under the trade name of 'Lindsey 's' with a plant and place of business located at Lawrenceburg , Tennessee, where they are engaged in the manufacture of church furniture During the 12 months preceding March 29, 1965 , Respondents, in the course and conduct of their business operations , sold and shipped from their Lawrenceburg,

   Tennessee, plant, finished products valued in excess of $50,000 directly to points located outside the State of Tennessee . As conceded by Respondents on the foregoing, it is concluded and found that Respondents are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

   H. THE LABOR ORGANIZATION INVOLVED The facts pertaining to the labor organization involved are based upon the pleadings and admissions therein.

   Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ' All credibility resolutions made with respect to the witnesses ' testimony are based on a composite evaluation of witness demeanor and logical consistency of evidence.

   LINDSEY'S 1117 of America, is now, and has been at all times material herein , a labor organization within the meaning of Section 2 ( 5) of the Act.

   3. THE UNFAIR LABOR PRACTICES A. Preliminary issues-supervisory status It is concluded and found ( based upon the pleadings and admissions thereto) that at all times material herein, the following named persons occupied the positions set opposite their respective names and have been, and are now, agents of Respondents at their Lawrenceburg, Tennessee, plant acting on its behalf, and are supervisors within the meaning of Section 2 (11) of the Act.

   Edward M. Lindsey_____________________________ Partner Oscar H. Lindsey_______________________________ Partner As indicated elsewhere in this report I find it unnecessary to determine whether Marion E. Copeland...