Heat Research Corp.

I)I:('ISIONS OF NATIIONAL L.ABOR RLA IIONS BOARD Heat Research Corporations and United Steelworkers of America, AFL-CIO. Case 16 CA 7557 June 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MIEMBERS PENLI.() ANI) TRIrESI)AI.E On February 2. 1979, Administrative Law Judge Peter E. Donnelly issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.' Both General Counsel and the Charging Party filed brief's in support of the Ad- ministrative Law Judge's Decision. 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 bries and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- ' Respondent has requested oral argument. his request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. Respondent also has filed a motion to reopen the record and to abate proceedings before the Board in an effort to introduce into evidence the testimony of Peter von Wlesenthal, Respondent's president, as well as certain documents not presented at the hearing. Respondent asserts that such evi- dence supports its defense of economic necessity in laying off and discharg- ing employees. The General Counsel filed an opposition to Respondent's motion and a motion to strike the "statement of evidence to be presented" attached to Respondent's motion. In iew of the fact that Respondent has not demonstrated that such evidence is newly discovered or that it was un- available at the time of the hearing, Respondent's motion to reopen the record is denied. Wisconsin Rubber Products. Co.. Incr 160 NLRB 166. 167 (1966). The General Counsel's motion to strike is also denied. Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence cons inces us that the resolutions are incorrect. Standard Drs' Wall Products Inc., 91 N.RB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 19511. We have carefulls examined the record and find no basis for reversing his findings. Additionally, we are satisfied that Respondent's contention that the Ad- ministrative Law Judge was biased is without merit. In our opinion. there is nothing in the record to suggest that his conduct at the hearing. his resolu- ltons of credibility, or the inferences he drew were based on either bias or prejudice. We have modified the Administrative L.aw Judge's recommended Order to include the full reinstatement language traditionally provided by the Board. We also modify the proposed notice to conform with the provisions of the recommended Order. low, and hereby orders that the Respondent, Heat Research Corporation, ongview, Texas, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. In paragraph 2(a) insert "without prejudice to their seniority or other rights and privileges previ- ously enjoyed," after the words "to substantially equivalent jobs." 2. Substitute the attached notice fr that of the Administrative Law Judge. APPEN[)IX NO ll(C. To EPI OYIEES PosrEi[) BY ORDER OF E1 NAIIO()NAI. LABO()R RI.I.Al'IONS BOARD An Agency of the United States Government W: Wll.. N coercively interrogate employ- ees concerning their union membership or activi- ties. W w.VII.. NO solicit employees to establish employee committees to represent employees concerning working conditions. Wl. wVi.. N threaten employees with dis- charge for engaging in lawful union solicitation of employees. WI; WIl. NO'I create impressions of surveil- lance of employees' union activity. WE II.L. NO' threaten employees with loss of contracts unless they cease their union activities. Wi WIl.L. N()I request employees to retrieve signed union authorization cards f'rom other em- ployees. WE WII.I. NoIr attribute layoffs and/or termi- nations to the union activity of employees. W}! wii.., NO1 lay off and/or terminate em- ployees thereby discriminating in regard to their hire and tenure of employment in order to dis- courage membership in United Steelworkers of America, AFL-CIO, or any other labor organi- zation. WE wll. NO' in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights guaranteed in Section 7 of the Act. WE WIl.l. offer the following employees imme- diate and full reinstatement to their former jobs. or if they no longer exist, to substantially equiv- alent jobs, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered as a result of our discrimina- tion practiced against them. Joe B. C(lark A. Crayton W. C. Deason G. Rodriguez J. Silverman A. Vona 243 NLRB No. 33 206 HEAT RESEARCH CORPORATIONS T. P. Dillingham B. E. Edwards R. Garcia J. R. Hammond C. Haney R. Howard William Hughes Jimmy Ivy C. C. Johnson A. L. Jones T. Kuhn T. A McCann A. L. Nutt J. Palmer L. N. Perkins H. Q. Phung Steve L. Allen Tony Bankston Steven R. Hogg Donald R. Mangum John Minchew H. A. Wallin F. L. Wells C. A. Williams C. Beatty A. D. Boyd W. D. Echols M. C. Denman K. L. Fields E. L. Gammons B. Jeter E. Mayo J. R. Pomeroy S. W. Proctor T. J. Vail J. W. Weaver Quy Pham Joe C. Smith James H. Teague Mike Weidman Paul Self FINDINGiS OF FA(UI 1. EMP.()OYReS BHSINESS Employer is a corporation organized under and existing by virtue of the laws of the State of Delaware. maintaining a production operation in Longview. Texas, where it is en- gaged in the manufacture of transfer systems and container vessels. During the past 12 months Respondent purchased goods valued in excess of $50.000 which were shipped di- rectly to it from points located outside the State of Texas to its plant in Longview. Texas. Based upon these facts. I con- clude that the Employer is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 11. ABOR OR(iANIZAHON The complaint alleges. at the hearing Respondent stipu- lated. and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named union or any other labor organization. HEA I RESEARCH CORPORA HON DECISION STAIEMENI O() IlE CASEI PETER E. DONNIi,.Y, Administrative Law Judge: The charge herein was filed on October 13, 1977,'1 by United Steelworkers of America, AFL-CIO, herein called the Union or Charging Party. An amended charge was filed on October 17 and a second amended charge on October 25. A complaint thereon was issued on November 29 alleging that Heat Research Corporation, herein called Respondent or Employer, violated Section 8(a)(I) and (3) of the Act by unlawfully coercing employees' and by unlawfully termi- nating and/or laying offemployees. 3 An answer thereto was timely filed by Respondent.4 Pursuant to notice a hearing was held before me on April 5 and 6. May 9, 10, I . and June 6. 1978. Briefs have been timely filed by the General Counsel, Respondent, and the Charging Party which have been duly considered.' All dates refer to 1977 unless otherwise indicated. 2 Par. 7(b) was amended to add an allegation of unlawful solicitation by Foreman Roy Lee on October I I. 3Par. 8 was amended at the hearing to add the name of Joe B. Clark as laid off and/or terminated on October 10. 4 Respondent's answer was amended at the heanng to aver that W. H. Hardwicke voluntarily terminated his employment on or about October II. at the hearing Respondent introduced evidence to show that C. Holloway was actually off the payroll due to a physical disability under workmen's compensation, and the General Counsel takes no position as to them. In these circumstances I cannot conclude that the General Counsel has met its burden of proof to show that they were part of the general layoff and/or terminations, and I shall dismiss the complaint as to them 5No opposition thereto having been filed, the General Counsel's motion to correct record is hereby granted. except as to item 20, which is hereby cor- rected to read "8(aX I)" and item 24, which did not appear at that location in the record. III. A .EGED() UNIFAIR I HABOR PRA( 11( i.S A. Fct.l 1. Employer's operations Respondent operates a production facility in l.ongslew. Texas. engaged in the tilbrication of furnaces and heaters in the petrochemical industry. The basic process involves structural fabrication and coil fabrication. Structural fhbri- cation is the construction of a steel box or container. Coil fabrication is the assembls of pipe or coil going into the box. The completed product is known as a confection box. These operations utilize welders as basic craftsmen. with coil fabrication requiring the more skilled workers. 2. Supervisor status of leadmen At all times material. Respondent's Longvie k plant has been under the overall supervision of a general manager. Coy Moreland; Roger C(hurchman was the plant superin- tendent. responsible to Moreland. General freman of the structural department was William Miller. Roy Lee was the coil department superintendent and assistant plant superin- tendent. The supervisory status of these individuals is not in issue: however, the supervisory status of certain other em- ployees is in issue and must be resolved since certain 8a)( I) violations have been alleged as to them. These individuals ' There is conflicting testimony regarding the 8a} I) alleg.litins of the complaint as well as relevant incidents concerning the uniavlul lasoff termi- nation allegations, including Minchew's discharge. In resolsing these con- flicts I have taken into considerallon Ith apparent interests of the witnesses: the inherent probabilities: the probabilities in light of other events corrobo- ration or lack of iit and consistencies and inconsistencies within the testl- mon) of each witness, and between the testimony of each and that of other witnesses with similar apparent interests. In evaluating the iestlmony of each witness I reb specifically upon his demeanor and have made mli findings accordingly. While apart from considerations of demeanor, I hase taken into account the above-noted credibhilit considerations: my failure to detail each of these is not to be deemed a Ftilure on m? part to have fulls considered it. Bishop and Mala',. Inc. d/h a 'alkcirs, 159 NI.RB 1159. 1I6l H1166) 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are Carroll }arber and Muriel Williams in the coil depart- ment, Donnie Goss and Gerald Moore in the structural department. and William Agnor in the yard. a. Carroll Harber and Muriel Williams At the beginning of October the coil department em- ployed about 30 employees under the overall supervision of Roy Lee. Under Lee, with the title of leadmen, were Harber and Williams. There were no foremen in the coil depart- ment. The record indicates that both Harber and Williams exercised substantial control over the assignment of tasks to be performed by employees in the coil department on a day-to-day basis, and also that they had the authority to change the work assignments of employees. In those in- stances when employees needed time off: the requests were made to Harber or Williams who issued to them gate passes to leave the plant. Further, it appears that at various times when the coil department worked on Saturdays Lee would not be present, and the operational control of the coil de- partment resided in Itarber and Williams. Respondent ar- gues that like the other employees, both punched timecards. are hourly paid, and there are some welders in the coil department who make a higher hourly rate. Further. nei- ther has the authority to hire or fire other employees and any authority exercised by them in directing the activities of other elmployees is routine, not requiring the use of in- dependent judgment. However, a careful review of the en- tire record convinces me that the supervisory authority ex- ercised by both of them in directing the work of other employees is substantial, and that they both exercise suffi- cient indicia of supervisory authority so as to constitute them supervisors within the meaning of Section 2( 1 ) of the Act. b. Gerald Moore Gerald Moore was the sole leadman in the layout divi- sion of structural department. In early October layout em- ployed some 23 employees under the general supervision of Foreman Billy Jones to whom Moore reported. The entire record herein, particularly the testimony of layout em- ployee Steve Hightower, shows that Moore assigned work to the employees within the layout division, and that he had the authority to move employees from one assignment to another. Moore also wrote work orders for maintenance repairs within the division. It appears that Moore spent very little time doing layout division work and was paid substantially more than any other employee in the division. When overtime was worked, in at least some instances, Moore made the selection of employees to perform it. He also had the authority to grant time off to employees at least on a daily basis. Based upon these facts and the entire record, it is my conclusion that Moore's supervisory author- ity was more than routine, and that he exercised sufficient indicia of supervisory authority to find, as I do, that he was a supervisor within the meaning of Section 2(1 1) of the Act. c. Donnie Goss In early October Goss was employed as one of the two leadmen in the fitting division of the structural department. The fitting division employed about 30 employees and was supervised by Foreman Charles Chromer to whom both leadmen were responsible. It appears that Goss had the authority to assign work to employees as well as the author- ity to grant time off to employees as to both leaving early on a daily basis and the granting of days off. Employees who punched out early had their timecards signed by Goss, who also issued gate passes for them to leave the plant. The basic facts are not disputed since neither Chromer nor Goss testified at the hearing. In these circumstances I am con- vinced that Goss' duties constituted him a supervisor within the meaning of Section 2(11) of the Act. d. William Agnor Agnor was employed in early October as one of two lead- men in the yard under the general supervision of Jeff Rowe. Both leadmen were paid more than any other yard em- ployee. The record discloses that Agnor had the authority to assign work to the yard employees and to reassign em- ployees from one job to another, and that he normally per- formed little manual work himself. On Saturdays yard op- erations were supervised by the leadmen when Rowe was not present. Agnor appears to have had the authority to enforce discipline in the plant, and in at least one instance he issued a written reprimand to an employee for damaging plant equipment. Agnor had the authority to select employ- ees for overtime work when the number of volunteers for such work exceeded the demand. These facts and the entire record indicate that Agnor's authority was not routine, and that his duties constitute him a supervisor within the mean- ing of Section 2( 1 ) of the Act. 3. 8(a) 1 ) allegations a. lnlerrogatlion Brad Edwards. an employee in the coil fabrication de- partment, testified that on or about October 4 while he was at work he was approached by Muriel Williams who told him that a man had been seen passing out union cards that day and described the man as tall with black hair. He asked Edwards "off the record" if he were the man. Edwards de- nied it. telling Williams that he did not know what he was talking about. Williams denied any interrogation of em- ployees but did not testify specifically as to this incident, and I credit Edwards that he was so questioned. In another incident on about October 4 while he was working, yard employee Jeff Palmer testified that Agnor asked him if he had signed a union card. Palmer denied having done so although in fact he had. Agnor told him that he was aware that some of the employees had signed union cards and that he had better not sign one "that I'd probably be fired." Later in the conversation he alluded to earlier efforts to organize the plant and told Palmer that management would close down the plant before they would let a union in. On about October 7 Agnor again asked Palmer if he had signed a union card, expressing the hope that he had not and said that "they" were getting up a list of people who had signed cards, remarking that those who had would probably get fired. 208 HEAT RESEARCH CORPORATIONS Agnor denies having asked the questions or made the statements attributed to him by Palmer, but I find his deni- als unconvincing and credit Palmer as to the substance of these conversations. I also find that the queries made by Williams and Agnor constitute unlawful interrogation in violation of Section 8(a)(1) of the Act. Further. I find that Agnor's remarks about the maintenance of a "list" of em- ployees by Respondent constitute an unlawful impression of surveillance as to the activity of employees in the solicita- tion of union authorization cards. I also deem as unlawful the threatening remarks made by Agnor to the effect that union card signers would probably be fired, and that the management would close the plant before allowing it to be organized by the Union. b. Solicitation of employees to establish an employee grievance committee On about October 4, according to Edwards, he was ap- proached by Williams who suggested to him that the em- ployees start their own organization and approach the Company. On October II, the day after the first group of terminations and layoffs, Williams told J. C. Smith, to coil department employee, that the employees were crazy for trying to unionize the plant, and when asked what could be done about it, Williams suggested that he talk to the men and "try to get them to get a committee together and orga- nize a company employee relations type union." Another incident occurred in the afternoon of October I I in the layout department. Steve Hightower testified that Gerald Moore met with a group of employees at the plant and read to them a letter to the effect that the Company was forming a committee of representatives from each de- partment "to meet on a regular basis to discuss safety, job classifications, rates of pay, any complaints any of the men had." Each employee was asked to sign the letter. Hightow- er testified that he asked to read the letter and after doing so signed it. Some days later Moore polled the employees who selected Donnie Bell to represent them. Hightower's account of the incident is not disputed by Moore who actu- ally corroborates the basic elements of Hightower's testi- mony. Similarly in the coil department, on October I I Roy Lee met with the employees and suggested to them that they elect an employee to represent them in discussing their problems with management. A vote was taken among the employees by Lee. Paul Self was elected as the coil depart- ment representative. The essential elements of these ac- counts are undisputed, and I credit the testimonies of the General Counsel's witnesses in concluding both that the incident occurred, and that such solicitation violated Sec- tion 8(aXl) of the Act. Clearly, in these circumstances where the Union is actively engaged in an organizational effort, the Employer is not privileged to interfere with the employees' organizational rights by attempting to establish employee committees. It is apparent that such conduct by an employer has the effect of demonstrating to the employ- ees that a union is not necessary in order to solve their problems. House of Mosaics, Inc., Subsidiary of Thomas In- dustries, Inc., 215 NLRB 704 (1974). c. ,o.-sohcitation rule Brad Edwards testified that during a conversation with Williams on October 4 he was told that employees could be fired for distributing union cards "anytime on the jobh. on company property, during our lunch periods- lunch break. morning breaks, anytime we could be fired." In the same vein, J. C. Smith testified that he was among a group of employees told by Williams that employees could not pass out union cards at various times including breaktimes and lunch. Williams denies telling employees that they could not pass out union cards during lunch or breaktime. but concedes that he did discuss the matter of distributing union cards. Williams testified, "I did discuss with a num- ber of them that you know back in the days I had been in the union many many years and back in the days that I was in the union it just wasn't kosher to pass them out on com- pany time and as advice, I said I didn't think it was a good idea." I find the testimonies of Edwards and Smith to be more persuasive, and I credit them over the denials of W\Vil- liams. I also conclude that the remarks were coercive and constitute interference with the rights of employees. In sub- stance, they constitute a threat of discharge for engaging in lawful solicitation. However. I do not conclude that these remarks constitute oral promulgation of an invalid no-so- licitation rule, absent more substantial promulgation to substantiate a finding that the remarks were, in fact. a "rule" of any significant general application. d. Impression of surveillance by Williams The General Counsel contends that certain statements made by Williams created the impression that Respondent was exercising surveillance over the union activities of its employees. To support this contention the General Counsel presented testimony from certain employees. Edwards testi- fied, as recited above in paragraph 3(a), that on about Octo- ber 4 Williams told him about a man he had seen passing out union cards and described the man, asking if it were Edwards. J. C. Smith testified that on October 4 he was told by Williams, "Now. I know that you haven't got enough signed union cards to pull off an election, you know get an election out here, but anyway you need to get some of those back. Get some of the signed union cards back." On about October 10, according to employee Steve Hogg, in conver- sation with Williams he was told by Williams that the em- ployees were "crazy as hell" for trying to start a union and that he knew everyone who has signed a card. Williams denied having made any such statements to employees, but I deem the testimonies of the General Counsel's witnesses to be more reliable, and I credit them to the effect that the statements were made. I further conclude that the state- ments did convey to employees the impression that their union activities were being surveyed by Respondent and thus interfered with their organizational rights guaranteed by Section 8(a)(1) of the Act. Kraco Enterprises. Inc.. 226 NLRB 22 (1976). e. Williams' solicitation of employees to vwithdraw support from the Union J. D. Smith credibly testified, as noted above, that on or about October 5 he was told by Williams to get some of the 2() DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed union cards back. On about October 10, sometime before the terminations on that date, Williams went to em- ployee Steve Hogg and, according to Hogg. said "a lot of these guys listen to you and you can talk to them. You can tell them to get their cards back." Hogg asked why he wanted to get the cards back, and Williams replied, "To get rid of them, because this company will close down and move to another state before we'll let them go union." Em- ployee J. Bruce Vona testified to a conversation on about October I 11 in which Williams asked him and another em- ployee Freddie Waits, "He asked us if we had any influence over the men out there on the floor or could talk to them about pulling their cards until at least we got some work in there. We told him there was nothing we could do about the Union." Williams denies having made such statements, but I find his denials unconvincing, and I credit the testimonies of the General Counsel's witnesses. I further conclude that such solicitations to induce employees to solicit the retrac- tion of signed authorization cards constitutes interference with the 8(a)(I) rights of employees. f. Attribution of Williams of the layoffs and terminations to union activity On about October 14, according to Vona, he asked Wil- liams who was going to be laid off next, and Williams said that "as long as the front office didn't hear any more Union talk there wouldn't be anybody else." When Vona said "Well, I raised as much hell as the next man, I've made as many mistakes, why am I still here." Williams responded that if he had anything to do with the Union he was over- looked, not caught. Again I find Vona's testimony to be the more reliable, and I credit it. I further conclude that such remarks do have a coercive effect upon the organizational rights of employees and constitute interference within the meaning of Section 8(a)(1) of the Act. 4. Group layoffs and/or discharges on October 10 and 14 The Union's effort to organize Respondent's employees began about September 26 when coil department welder John Minchew made a telephone call to John Thomas, a staff representative of the Union. Thomas was not available at the time but later returned Minchew's call and set up a meeting for September 29 to discuss organizing Respon- dent. The meeting was attended by Minchew and coil de- partment employees Edwards and Smith. The methods of establishing a union were discussed, and a general meeting with employees was set for October 3 which was attended by 14 coil department employees. The matter of organizing methods was discussed, and authorization cards were given to Minchew for distribution to employees, which Minchew accomplished. This distribution took place in the plant dur- ing the week of October 3 by employees Minchew, Ed- wards, and Smith. On October 6 Coy Moreland held a meeting for all coil department employees. At this meeting Moreland advised the employees, inter alia, that there was no assurance that they would obtain the coil work on a certain large Shell Oil job involving 14 furnaces.7 and that Respondent was not I Respondent was currently working on the structural portion of the Shell Oil job. the low bidder on the coil portion of the work. Moreland told them that he was concerned that they would not get any of the coil work on any of the 14 furnaces, but that there was hope of getting at least a portion of' the coil work on those furnances. Moreland also alluded to the fact that their competitor for the work had to a renegotiate a union contract, and that the stability of the Respondent's work force would favor the possibility of obtaining some of the work. At this point, according to Edwards, Carroll Harber said, "In other words boys, if you don't stop this union business we are going to lose the Shell contract." Moreland disavowed Harber's comments. saying that was not the pur- pose of the meeting.' The first of the two group terminations and/or layoffs occurred on October 10 when 39 employees were termi- nated, 34 in the structural department and 5 from the coil department. It is undisputed that the employees received no advance notice of the terminations, and that they took place on a Monday. I day before the end of the normal payperiod. It appears that despite the layoffs and terminations Re- spondent did hire some employees during this time; 3 em- ployees were hired in October, and 2 began work on the date of the first terminations, October 10; 3 more were hired in November, and II were hired in December. Churchman explained that Respondent was always in need of first class fitters and welders and would hire them any time. It is significant to understand how the Employer func- tions. It is physically located at three separate locations, operating as separate cost centers under the control of Von Weisenthal. The offices in New York and Houston perform sales and engineering work, while the plant as Longview, Texas, is the production facility. Once a job comes into the New York or Houston office, Longview is advised of the details and told when it will have an opportunity to bid on the production work. This information is provided to a Mr. Jordan in Longview who prepares a "probable work" sheet therefrom (Resp. Exhs. 57, 58, and 59t. Most of the work performed at Longview is intracompany work, and suffi- cient information is provided to Longview to enable it to win the bid. However it may not always perform the work even if it is intracompany work if a better price can be obtained elsewhere, even from a competitor. As Moreland testified, "they can't afford to pay a higher price for fabrica- tion just because we have got a plant. So we have to com- pete and whether or not we, you know, we adjust our price even if it might be losing money to accept the work depends on the need for that work in the shop in order to maintain a shop load. Of course we can get and do get all the work that we need as long as it is intracompany to keep our shop busy. Price, we get a chance to modify our price but some- times we have to accept a price less than what we would like to have it at in order to be competitive." With respect to intracompany work, Moreland testified that Longview would also do some work below cost in situations where the market was low because "the worst thing that can happen to a manufacturing operation is to operate below the break I Despite Moreland's disavowal I find that the remarks were made by Harber, and that they were coercive in violation of Sec. 8(aX ). 210 HEAT RESEARCH CORPORAIONS even situation so it is much better to book work at a loss than it is to run at such a low level that ou hardly under- absorb your expenses." The Shell Oil coil job was an excep- tion to normal intracompany bid procedures, providing for a sealed bid so that Longview had no better opportunity to obtain this work than any competitor. Respondent's witnesses recited the following accounts to justify the terminations. Respondent claims that the Long- view plant had not been a profitable operation: it showed increasing losses through September 1977. In July 1977 Re- spondent booked the large fabricating job with Shell Oil, as noted above. The abnormally low bid on the Shell job re- quired that the job be done cost efficiently, but Respondent anticipated several large jobs which it looked forward to receiving. These prospective jobs were for Arco-Dupont (a joint venture of Arco Chemical Company and Dupont Company), the TVA, and Pimex Company. These jobs show as "probable" on work projections introduced by Re- spondent (Resp. Exh. 57). The Shell Oil structural work was undertaken largely to maintain the work force for this an- ticipated work. On about October 4, according to Respondent. these large anticipated jobs for Arco-Dupont. TVA, and Pimex "evaporated." The TVA job was lost when Arco dropped out of the joint venture to build a petrochemical plant. as shown by a newspaper article in the Wall Street Journal. (Resp. Exh. 2). According to Moreland, he learned of the dissolution of the joint venture on October 5 when the pres- ident of the Company, Peter Von Weisenthal, visited the plant. According to Moreland, the two met and discussed the failure of the joint venture as well as the fact that Re- spondent was not low bidder on the Shell coil work. How- ever, at this time they still hoped to get perhaps half of the coil work on the 14 Shell furnaces. In addition, they dis- cussed the TVA job in view of the fact that TVA had re- opened the bidding on the work, which eliminated the pos- sibility of any immediate TVA work. In view of the loss of this work it was decided by Von Weisenthal and Moreland on October 5 that the work force would be cut immediately, and the Shell structural job would be stretched out over a longer period.' The Pimex job, which apparently involved a contract with the Mexican Government. was lost when the Mexican Government exercised its contractual option to have the work performed in Mexico. The probable work schedule was changed while Von Weisenthal was at the plant on October 5 to reflect the loss of all this work. A memo to this effect was sent by Moreland to Church- man on about October 7, ordering a reduction in force be- ginning with the less productive employees and setting Oc- tober 17 as a date for further discussion. Later in the day on October 7, according to Moreland, Von Weisenthal called and told him instead to accomplish the reduction as soon as possible. Moreland called Churchman and told him to have a list of terminations ready on Monday, October 10, in the amount of about 25 percent. After getting these instructions, Churchman went to Wil- liam Miller, the general foreman of the structural depart- ment. Together Miller and Churchman evaluated the em- ployees in the structural department and decided on a list Von Weisenthal did not testify at the heanng. of terminations. In the coil department RoN Lee. after re- ceiving instructions from Churchman, made evaluations and selections of employees tfor termination in that depart- ment: none of the other fIremen or leadmen were consulted on the selections. On October 10 some 39 employees were terminated. Five were terminated in the coil department and 34 in the struc- tural department, all without prior notice to the employ- ees.'' After these laoffs. according to Moreland. on about October 12 he Asas advised b the Houston office. "prob- ably Mr. Bozak," director of engineering,'' that the, had lost the bid on the Shell coil work. Thereupon Moreland instructed Churchman to get with Lee and reduce the man- power in the coil department to only what was needed to complete the work already in the plant since there was little backlog and no immediate prospect of new work. Once again Churchman and Lee made the selections tfor termina- tion. Lee testified that the selection of welders for discharge was made according to seniority. Ability as cited as the basis for selecting the others. A total of seven employees were terminated on Friday. October 14, in the coil depart- ment. 5. John Minchew's discharge John Minchew was a welder in the coil department: he was described by coil department Foreman Lee as the best welder he ever had. He was also, as noted above. the initia- tor of the Union's organizational effort at the l.ongviesw plant and was thereafter active in the union cause. In addi- tion, these union sentiments were known to management. Minchew credibly testified that on October 7 during a con- versation with Williams about the Union Minchew invited him to a union meeting; Williams declined the offer. Some- time between October 4 and October 7 he also asked Carrol Harber to sign up for the Union. but Harber declined. With respect to the discharge incident, it appears that near the end of the workday on October 14 Minchew was called into the office of C'oy Moreland. Lee and Churchman were also present. He was told by Moreland that he (More- land) had information that Minchew had threatened the family of another employee, and that he was therefore being terminated. Minchew asked who it was that he was supposed to have threatened, and Moreland refused to tell him, saying that he did not want to disclose the identity of the individual. Minchew was given the option of quitting and being given a favorable recommendation or of being discharged and getting a poor recommendation. Minchew maintained that he had not threatened anyone and declined to quit. Moreland fired him. Lee was not consulted about the discharge and knew nothing about it until he went into Moreland's office. Minchew was given no opportunity to defend himself, and it is undisputed that the decision to discharge him had been made prior to the time of the meet- ing. Moreland testified that he did not ask Minchew for any explanation of the matter because he did not want to iden- tify the man who had been threatened out of fear for his safety. Minchew was not aware until the time of the hearing "0 Despite these layoffs want ads for production employees appeared in several local papers from October 2 through 7. GC. Exhs. 6. 7, and 8. 11 Bozak did not testify. 211 I)ECISIONS OF NATIONAL, LABOR RELATIONS BOARD who it was that he allegedly had threatened, an employee named Ben Haden, and at the hearing he specifically de- nied ever having threatened Haden. Haden, however, testified that on October I in the plant he was told by Minchew that if he did not watch out things could happen to him or his family. Haden could recall nothing else that was said and did not respond to Minchew, but he took the rest of the day and the following day off to check the welfare of his family. Haden testified that when he returned to work 2 days later he complained in general terms to Churchman about the incident but did not identify Minchew. One or 2 days later Churchman called him into his office, asked about the conversation, and asked if he would identify the person who made the threat. At first Haden demurred, saying that he did not want to get in- volved, but then he agreed and named Minchew. B. Anavsis and Discussion Layoffs and terminations of October 10 and 14 It is the position of the General Counsel and the Charg- ing Party that Respondent made the terminations and lay- offs on October 10 and October 14 in order to thwart the Union's organizational effort, and that the reasons offered by Respondent to justify them were, in fact, pretexts de- signed to disguise the real motivation. Respondent, on the other hand, contends that the layoffs and terminations were necessitated by the Company's fail- ure to obtain certain large contracts. In my opinion, the General Counsel and Charging Party must prevail. First of all, let us examine the matter of the lost work, particularly the Arco-Dupont, TVA, and Pimex jobs. With respect to the Arco-Dupont job, Moreland testified that he was ad- vised by Von Weisenthal that they had "lost" the job, pre- sumably because the joint venture between Arco Chemical Company and Dupont Company had dissolved. But to clas- sify this as "probable" work appears to me to be unduly optimistic. The record discloses that work on that job was still far from being a viable possibility. It is undisputed that Respondent had no contract to perform the job and had not even bid on it. Nor is it clear from the record why Respon- dent expected to obtain the Arco-Dupont work except that it has a close association with the engineering construction firm for whom it has historically performed production work. As to the TVA job, Moreland testified that he learned from the sales company that they were working with that the TVA was requiring the general contractors to rebid the job, and that the performance of the entire project was in doubt. Respondent had no contract to perform this work, and apparently no contract had been let even to any gen- eral contractor at the time of the hearing. As to Pimex, Moreland testified that he learned sometime after the first of the year that the Mexican Government intended to exercise its contractual option to have the struc- tural fabrication work performed in Mexico. 2 It is undis- puted that Moreland was aware of this option but re- 12 The Pimex contract was not introduced into evidence. mained'3 "hopeful" that its Longview plant would get a chance to perform this work. As to the Shell coil work, which Respondent relies upon as necessitating the layoffs in the coil division on October 14, Moreland testified that he was aware during the discus- sions with Von Weisenthal on October 5 that Respondent was not the low bidder on the Shell coil work.' However. despite this Moreland testified that he was hopeful of get- ting part of the work anyway because they had performed their last job efficiently for Shell. However, according to Moreland, he was advised on or about October 12 by the Houston office, apparently by a Bozak,.' that the Longview plant would get none of the Shell coil work. I do not believe that the work force was reduced because of the failure of Respondent to obtain these jobs. The abil- ity to secure these jobs was less than probable, essentially a mere hope. It stretches credulity beyond reasonable limits to conclude that Respondent made important business deci- sions grounded upon such remote contingencies. There are other compelling factors which convince me that the layoffs and terminations were discriminatory. The layoffs were made precipitously, the day prior to the end of the normal payperiod. just after the Union's initial in-plant organizational effort began. There was no advance notice whatever to the employees and no consultation with any of them, nor were their immediate supervisors consulted con- cerning the layoffs and terminations. Again, during the period in which the layoffs and termi- nations took place, Respondent was advertising in newspa- pers for employees and, in fact, did hire several, one even while the layoffs were going on. Finally, one cannot overlook the substantial 8(a)(1) and (3) violations herein which evidence a strong antiunion mentality on the part of Respondent, which I deem relevant in reaching the conclusion that the layoffs and terminations of October 10 and 14 were discriminatorily motivated. Vada of Oklahoma, Inc., 216 NLRB 750 (1975). C. Minchew's Discharge General Counsel contends that Minchew was fired be- cause of his union activity. Respondent, on the other hand, contends that Minchew was fired for threatening another employee. My evaluation of the evidence convinces me that the General Counsel and Charging Party should prevail. It is undisputed that Minchew was the moving force be- hind the effort to organize Respondent's plant. This activity 1i These three jobs along with other smaller jobs are listed on the "prob- able work" listings of Respondent. In reviewing the probable work listings for August 25 (Resp. Exh. 56), of the 15 jobs listed in the structural depart- ment, 6 were not performed by Respondent and I was partially performed. In the coil division, out of eight jobs listed four were not done and two were partially done. '' Unlike most intracompany jobs the Shell coil work was a sealed bid affair. 15 Bozak, like Weisenthal, did not testify, nor did any other managerial representatives outside the plant itself. Therefore this record lacks substan- tial and available documentation for the failure of Respondent to obtain the Arco-Dupont. TVA, Pimex, or Shell coil jobs. Such testimony would have been significant since Moreland was not privy to the basic discussions or their ramifications but only advised that the work had been "lost." Nor were any contracts introduced to support any of Respondent's positions as to the Shell coil or Pimex jobs. 212 HEAT RESEARCH CORPORATIONS is outlined in some detail above. It is also clear that Re- spondent, through its agents. was aware the Minchew was engaged in union activity on behalf of Respondent. The Union's organizational activity was common knowledge by the time Minchew was fired on October 14. But more par- ticularly, as noted above, both leadmen in the coil depart- ment, who are supervisors, knew that Minchew was a union activist since he had approached them both, asking Wil- liams if he would like to join a union and Harbor if he would like to sign up. Respondent attempts to justify this discharge by arguing that Minchew was fired because he threatened another em- ployee and his family. However, in this regard however I note that while Haden did complain about an alleged threat, the matter was thereafter pursued not by Haden but by Churchman, who induced Haden to identify Minchew. As to the substance of the threat. I credit Minchew's de- nial that the threat was made: but even assuming that such a threat was made, I would still conclude that it was not the threat but Minchew's union activity which prompted his discharge. In this regard I note that Minchew was Foreman Lee's best welder. Against this background of Minchew's unquestioned competence, I am asked to believe that he was called in and discharged by the plant manager summa- rily, without consulting Lee, and without so much as being given the opportunity to explain his position, which basic fairness would seem to require. Indeed, he could not have done so since Moreland refused even to identify the alleged victim of the threat. In these circumstances I conclude that Minchew was discharged because of his activities on behalf of the Union in violation of Section 8(a)(3) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent as set forth in section III, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close and inti- mate 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 and is en- gaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. I have found that Respondent unlawfully laid off and/or ter- minated 37 employees on October 10, 1977, and unlawfully laid off and/or terminated 10 employees on October 14, 1977, including John Minchew. I shall therefore recom- mend that Respondent make these employees whole for any losses of pay which they may have suffered as a result of the discrimination practiced against them. The backpay pro- vided for herein, with interest thereon, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). '6 Upon the basis of the foregoing findings of fact and con- 'See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962). clusions and upon the entire record in this case, I hereby make the following: CONCI.USIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and 7) of the Act. 2. United Steel Workers of America, AFL-CIO. is a la- bor organization within the meaning of Section 2(5) of the Act. 3. By interfering with. restraining. and coercing employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By laying off and/or terminating employees named below on October 10, 1977, in order to discourage member- ship in the Union, Respondent has violated Section 8(a)(3) of the Act. Joe B. Clark A. Crayton W. C. Deason T. P. Dillingham B. E. Edwards R. Garcia J. R. Hammond C. Haney R. Howard William Hughes Jimmy Ivy C. C. Johnson A. L. Jones T. Kuhn T. A. McCann A. L. Nutt J. Palmer L. N. Perkins H. Q. Phung G. Rodriguez J. Silverman A. Vona H. A. Wallin F. L. Wells C. A. Williams C. Beatty A. D. Boyd W. D. Echols M. C. Denman K. L. Fields E. L. Gammons B. Jeter E. Mayo J. R. Pomeroy S. W. Proctor T. J. Vail J. W. Weaver By laying off and/or terminating the employees named below on October 14, 1977, in order to discourage member- ship in the Union, Respondent has violated Section 8(a)(3) of the Act. Steve L. Allen Tony Bankston Steven R. Hogg Donald R. Mangum Mike Weidman Quy Pham Joe C. Smith James H. Teague Paul Self John Minchew 5. Respondent did not violate Section 8(a)(3) of the Act as to employees C. Holloway and W. H. Hardwick. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the National Labor Relations Act as amended, I hereby issue the following recommended: ORDER 7 The Respondent, Heat Research Corporation, Longview, Texas. its officers, agents. successors, and assigns shall: 11 In the event no exceptions arc filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. (Continued) 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership or activities. (b) Soliciting employees to establish employee commit- tees to represent employees concerning working conditions. (c) Threatening employees with discharge for engaging in lawful union solicitation of employees. (d) Creating impressions of surveillance of' employees' union activity. (e) Threatening employees with loss of work contracts unless they cease their union activities. (f) Requesting employees to retrieve signed union autho- rization cards from other employees. (g) Attributing layoffs and/or terminations to the union activity of employees. (h) Laying off and/or terminating employees thereby discriminating in regard to their hire and tenure of employ- ment in order to discourage membership in United Steel Workers of America, AFL-CIO, or any other labor organi- zation. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Offer to the following employees immediate and full reinstatement to their former jobs or. if those jobs no longer exist, to substantially equivalent jobs and make them whole for any loss of pay which they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Rem- edy." Joe B. Clark A, Crayton W. C. Deason T. P. Dillingham B. E. Edwards G. Rodriguez J. Silverman A. Vona H. A. Wallin F. L. Wells conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. R. Garcia J. R. Hammond A. D. Boyd R. Howard William Hughes Jimmy Ivy C. C. Johnson A. L. Jones T. Kuhn '. A. McCann A. L. Nutt J. Palmer L. N. Perkins H. Q. Phung Steve L. Allen Tony Bankston Steven R. Hogg Donald R. Mangum John Minchew C. A. Williams C. Beatty C. Haney W. D. Echols M. C. Denman K. L. Fields E. 1.. Gammons B. Jeter E. Mayo J. R. Pomeroy S. W. Proctor T. J. Vail J. W. Weaver Quy Pham Joe C. Smith James H. Teague Mike Weidman Paul Self (b) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security records and reports, and all other records necessary to analyze the amounts of hackpay due herein. (c) Post at its production facility in Longview. Texas, copies of the attached notice marked "Appendix."l8 Copies oi' said notice, on forms to be provided by the Regional Director for Region 16, after being duly signed by Respon- dent's authorized representatives, shall be posted by Re- spondent immediately upon receipt thereof; and be main- tained 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16. in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ts In the eent 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 Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 214