Layton Oil Co.

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visors as to Eaton's general attitude of resentment toward criticisms by supervisors and his threats to whip or to get even with those who reprimanded him, they estab- lish that Eaton was discharged for the cause assigned. It is so found. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. I shall also recommend that the complaint be dismissed insofar as it charges Respondent with unfair labor practices under Section 8(a)(3) of the Act. Upon the basis of the above finding of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent did not engage in unfair labor practices proscribed by Section 8 (a) (3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] Caroline M. Layton White, d/b/a Layton Oil Company and Oil, Chemical and Atomic Workers International Union of North America, AFL-CIO. Case No. 16-CA-1249. July 25, 1960 DECISION AND ORDER On December 17, 1959, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean 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 I The Respondent has requested oral argument. As the record and brief adequately present the issues and the position of the parties, the request for oral argument is hereby denied. 128 NLRB No. 27. LAYTON OIL COMPANY 253 rulings are hereby affirmed 2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications. 1. We find, like the Trial Examiner, that the Respondent, through her supervisory agents, Standeford, Stanley,3 Babb, and Emert, vio- lated Section 8(a) (1) of the Act by interrogation of employees con- cerning their union activity, by surveillance of the May 4 union meeting at Sapulpa, and by threats of reprisal and promises of benefit, calculated to discourage union activities. 2. The Trial Examiner found that on April 25, 1959, Respondent terminated the employment of Jack C. Thomas at her Sapulpa field location and on April 30,1959, terminated the employment of Thomas J. King, E. Ray Hall, Robert D. Downey, and Lee M. Williams at her Dewey field location for discriminatory reasons and thereby violated Section 8 (a) (3) and (1) of the Act. We agree 4 and find, consistent with the basic credibility findings made by the Trial Examiner, that there is ample evidence in the record to support the Section 8(a) (3) and (1) allegations of the complaint on both bases on which the com- plaint was litigated, namely : (1) that the Respondent effected the termination of the above-mentioned employees under guise of a reduction in force which would not have been effectuated but for antiunion considerations, and (2) that, even assuming the Respondent effected the reduction in force because of economic necessity alone, the Respondent was motivated by antiunion considerations in selecting the employees here involved, rather than other employees, for termination.' 2 No exceptions were filed with the Board to the Trial Examiner 's rulings concerning Rule 43 ( b) of the Federal Rules of Civil Procedure , and concerning other evidentiary questions which arose at the hearing. As no exceptions were filed, and as a reversal of such rulings would not affect our agreement with the Examiner 's ultimate conclusion that terminations were made at the two field locations in violation of Sec- tion 8 ( a) (3) and (1) of the Act, we find it unnecessary to determine the correctness of the Trial Examiner's evidentiary rulings. awe agree with the Trial Examiner that Stanley, head roustabout at the Dewey loca- tion, was a supervisor within the meaning of Section 2 ( 11) of the Act. The credited testimony establishes that Stanley regularly was in charge of and assigned work to 8 to 12 roustabouts, that he substituted for Field Superintendent Standeford in the latter's absence, that he effected the discharge of employees, and that he was summoned by Respondent to the April 27 meeting of management employees at Independence , Kansas, at which the Union, as well as general business conditions , was discussed. 4 The Trial Examiner dismissed the Section 8(a) (3) allegations as to Paul Smith. As no exceptions were filed to such dismissal, we adopt it pro forma. 8 The Trial Examiner held that, having called certain of the managerial officers and agents of the Respondent as witnesses, the General Counsel became "bound" by their testimony with respect to the Respondent's economic or financial circumstances as of the dates here material . He further found, in accord with this testimony , and, in the absence of exceptions, we adopt such finding , that Respondent's financial condition would have justified reductions in the work force. He concluded, howevef, that neither the financial circumstances of the Respondent, nor any other economic reasons, actually supplied the motivation for the terminations here involved, but, rather, that the operative reasons 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record amply demonstrates the strong antiunion animus and intent of the Respondent, stemming from that purpose, to rid herself of the employees she regarded as responsible for the instigation of union activity 6 Shortly after the union activity began, the Respond- ent's agents took calculated steps, including the interrogation of the employees, to obtain information as to who among them were most strongly in favor of the Union and had promoted activity on its behalf. On April 22, just prior to the meeting held and scheduled by the Union for the Dewey employees, Standeford, Respondent's field superintendent at Dewey, and Stanley, head roustabout, Summoned the employees together and spoke to them about their organizational efforts. Standeford and Stanley clearly indicated, as the Trial Ex- aminer found, that continuation of union activity would result in loss of employment or, at the least, loss of benefits. Despite these coercive efforts to discourage activity, some of the employees nonethe- less attended the Union's April 22 meeting. Within 5 days thereafter, on April 27, the Respondent summoned its supervisory and mana- gerial employees together at its main office and directed them, in effect, to "get" the men who were leaders of the union activities and to fire them. On the very next day, April 28, six employees who had at- tended the Union's April 22 meeting were told by Standeford that they were laid off effective April 30. Five of these six-Blanchard, Hall, King, Downey, and Williams-represented, as a whole, the employee group which had most prominently identified itself with the Union's organizational activity.'' While two other employees who were in fact discriminatory . Cf Missouri Transit Company, and its President, P. W. Fletcher, 116 NLRB 587, 589-590, enfd 250 F. 2d 261 ( C A. 8). See also Harlan B. Browning and Roy J. Rasco, d/b/a Cottage Bakers, 268 F. 2d 938 (CA. 10 ), enfg 120 NLRB 841. The Respondent would have this conclusion reversed because the same Respondent's agents who testified as to what the financial or economic conditions of the Respondent were also testified that these conditions motivated the termination actions here involved We find no merit to this position The Respondent's motivation was the substantive issue raised by the complaint and was presented to the Board for its determi- nation on a record which was not confined solely to the testimony to which the Respond- ent refers. In the exercise of the judicial function thus called into play, the statute mandates that the record as a whole must be appraised both to determine what the true facts are and what inferences such facts reasonably impel. See Section 10 (c) and (e) of the Act. The underlying determinations of credibility and of the weight to be afforded particular and often contradictory pieces of evidence must , of course, be made We are here satisfied , from our examination of the record as a whole, both that no basis exists for overruling the Trial Examiner 's credibility resolutions, and that the preponderance of all of the relevant evidence amply supports the ultimate conclusions sustaining the complaint O Respondent alleges that Thomas , discussed infra, Hall, King, Downey , Williams, and Paul Smith , the employees who were the subject of the Section 8(a) (3) allegations of the complaint, were "laid off " As the undisputed evidence shows that Respondent hired new employees in the same classifications , and did not recall these employees , we find, as did the Trial Examiner, and contrary to the Respondent 's contention , that they were in fact terminated rather than "laid off." 7 Four union meetings were held which employees at Respondent 's Dewey location attended The first meeting was the March 20 regular meeting of the Union 's Caney local. The second meeting was the Caney local's April 3 regular meeting. The Union LAYTON OIL COMPANY 255, had not attended the Union's April 22 meeting also received layoff notices that date, they were not in fact ,terminated.' The strong and almost inescapable inference arising from this sequence of events is that the "layoffs" thus undertaken were to effectuate discriminatory purposes. This inference is bolstered by other facts. Thus, the 2-day notification represented a departure from normal company policy of giving 2 weeks' notice or 1 week's separation pay.' The list of the employees given termination notices, considered as a whole, was totally unrelated to, and represented no consideration of, the seniority and other principles Respondent had theretofore considered in effecting layoffs and discharges? As indi- cated more fully in the Intermediate Report, the reason given to the employees, sale of equipment to third parties, was plainly false, and the reasons for the terminations as supplied by Respondent's agents at the hearing, that there was a causal connection between the state of the Respondent's budget and the alleged curtailment action is squarely contradicted by the objective facts. In more specific terms, Respondent's agents pointed to the depleted state of the funds budgeted for development costs for the fiscal year ending August 31, and alleged both that a firm decision to reduce these costs by curtailing the work force had been made as early as February 1959, and that directions to effect such a result were given at that time to Standeford at the Dewey location. In appraising these claims, we then scheduled and held two special ' meetings for Dewey employees • April 8 and 22. Blanchard , Hall, and Downey attended all four meetings ; King attended all the meetings except for one meeting of the Caney local , and Williams , who commenced working for Respondent on March 30 , attended both special meetings held for Respondent 's employees. There were three employees who also attended the Union 's April 22 meeting but did not receive layoff notices They had not shown the same strong interest in the Union indicated by the employees who were given notice . Two of them had attended no prior meetings and Parks , alone among the three to attend a prior meeting , had only attended that of April 8 at which 17 of the approximately 20 Dewey employees were present. In any event , the failure to give notices to these three in no way negates an inference of discriminatory motivation as to other employees . See N .L.R.B. v. Earl I. Stfer8, d/b/a Ssfers Candy Company, 171 F. 2d 63 (CA 10). 8 Thompson and Stover, these two employees , had attended one prior union meeting. Thompson was told by Standeford on the same day he received his notice to "forget it" but not to tell the other men ; Stover was told on April 30 , the day the layoffs were to be effective, to return to work on May 4 but not to tell the other men. In addition, Blanchard , who, as noted above, had attended all four union meetings , was also told on April 30 to return to work on May 4 but not to tell the other men. When he returned, he was told by Standeford that if he stayed away from union meetings he would be "all right " We note in this connection that Blanchard was the only employee capable of performing the road maintenance equipment work Nowhere does the Respondent explain why she immediately nullified Thompson 's notice and "recalled " Stover and Blanchard , although she is contrarily contending that the April 28 notices were given pursuant to a decision made long before this date to curtail develop- ment costs 8 Where 2 weeks' notice was not possible , Respondent generally paid affected employees 1 week's separation pay. Where terminations occurred because equipment had been sold, Respondent required the purchasers to give the men on the rig a chance to keep their jobs, and she asked purchasers to keep the men for at least 2 weeks 10 Respondent normally took into consideration the seniority and marital status of its employees when planning layoffs and discharges Neither factor was considered by the Respondent in selecting these employees for termination. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD note at the outset that there is an inconsistency between the claimed existence of a curtailment order or decision as early as February and the Respondent's failure to follow the 2-week notice policy in effecting the terminations here involved. This was never explained. More im- portantly, however, we note a basic conflict between these claims and the actual facts as disclosed from an examination of both the Respond- ent's hiring prior and subsequent to the dates relevant here and the size of Respondent's complement of employees at Dewey at a date after the terminations here in issue. Thus, such examination shows that : (1) Standeford hired four new development employees at Dewey be- tween the end of March and the end of April, one of them being hired on April 28, the very day the termination notices were given; 11 (2) Re- spondent hired a number of new employees after April 28, recalling but two of those who had been laid off on that date; 12 and (3) the complement of development employees working at Dewey in early August, and just prior to the end of the Respondent's fiscal year, as well as the total complement of employees, was greater than the num- ber working on April 27, the day prior to the notice of layoff here being considered, and was also greater than the number working at the end of February, a time subsequent to that when the Respondent allegedly made a "firm" decision to curtail its costs by reducing its work force.13 Further, the record shows that although the Respond- ent's depleted budget and its alleged decision to curtail for that rea- u Williams was employed as a relief pumper on March 31 ; Paul Smith and Sheridan as roustabouts in early April ; and Cooper as a second relief pumper on April 28. " We have already noted the "recall" of Stover and Blanchard . The new employees hired included four hired for "summer relief" development work : Roger Elmore on May 18 ( roustabout) ; Reed Wahnee on June 1 (roustabout ) ; Leslie Holmes on June 2 (roustabout) ; and Raleigh Evans on August 7 (relief pumper ). A fifth person, Gene McElyea, was hired on July 13 for permanent work in operations as a pulling unit operator, and did the same work which, as admitted by Field Superintendent Standeford at the hearing, Hall and King, the terminated operations employees, were both qualified to perform. We note in this connection Respondent 's claim that the hiring of the four "summer relief" employees to perform development work represented Respondent's following of past practice of giving temporary employment to needy and promising college students. Whether or not this is true, the fact remains , nonetheless , that Respondent's decision to follow such hiring practice is inconsistent with the claim of a reduction in force moti- vated by the necessity to curtail development costs. ' We append below an analysis of the increases and decreases in the development por- tion of the work force ( comparison table 1 ) on the basis of the record facts available to us. These record facts included: ( 1) a payroll sheet ( Respondent's Exhibit No. 3) and a seniority list ( Respondent's Exhibit No. 4) both containing the names of most though not all of the Dewey employees, but without separately identifying which of them were in development and which were in operations ; and (2 ) testimony given by Respondent's agents at the hearing of hires and terminations of employees not included in the written lists mentioned and of designations of such employees as development or operations employees. For the purposes of making the comparisons reflected in table 1 below, only the testimony given at the hearing provided a usable source of information . This analysis bears both on the defense advanced at the hearing of an economic necessity to reduce development costs and on the defense advanced in Respondent's original answer that employees were laid off for "lack of work" for them to perform. We also append below an analysis of the increases and decreases in the total work force (comparison table 2 ) on the basis of the payroll sheet ( Respondent's Exhibit No. 3) LAYTON OIL COMPANY son affected its development work only, the termination action of April 30 was not confined to development employees but extended to which, because of the omission of employees hired during that period , was supplemented by record testimony. With respect to the dates of the comparisons , we regarded as relevant the period be- tween March 1 and April 27 as one base and the period between April 28 and August 31 (the date the Respondent's fiscal year ended ) as another. However, the testimony given at the hearing indicated that the Respondent discharged one Sheridan sometime between August 10 and September 16, the date the hearing closed, without specifying the day in this period the discharge occurred . Accordingly, the use of August 31 as a date of comparisons was not possible , and we utilized , instead, two dates : August 10, which was before the Sheridan discharge (and prior to the voluntary quits of Wahnee and Holmes between August 12 and 31 ) ; and September 16, the date the hearing closed. The analyses made show as follows : (1) As to the Dewey development complement: TABLE 1 Dates Mar 1-Apr 27------------------------------------------------ 3 0 Apr. 28-Aug.10---------------------------------------------- 5 4 Aug l0-Sept 16 (date instant hearing closed)------------------ 0 3 Total------------------------------------------------------- 8 7 Increases in the number of Dewey develop- ment employees because of hirings, using end of Febru- ary as a base Number 257 Decreases because of terminations or voluntary quits Number (2) As to the total Dewey complement : TABLE 2 Increases in the total num- ber of Dewey employees be- cause of hirings, using end of February as a base Total comple- ment at end of period Decreases because o terminations or voluntary quits Number Number Number Dates Mar 1-Apr 27----------------------------- 4 21 2 Apr 28-Aug 10------------------------------ 6 23 6 Aug.10-Sept.16 ------------------------------ 0 20 3 Total----------------- ---------------------- 10 11 While we note that payroll cost figures submitted through May as part of the Respond- ent's payroll list (Respondent's Exhibit No. 3) tend to indicate some reduction in the payroll costs for the latter month, we also note that list does not provide support for the Respondent's position : The list is inaccurate as it omits employees whose hiring is indi- cated in the testimony, and it does not Indicate whether payroll costs were reduced in subsequent months. We note further that as the Respondent's defense of economic neces- sity to curtail costs was confined to the development phase alone, this list, which is not broken down into operations and development work, does not indicate whether the development costs alone (payroll or total costs ) were reduced by the personnel action taken. Nor is there any other record evidence to indicate whether or to what extent any reduction occurred In the Respondent's overall costs in the periods here material. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two men employed in the separately budgeted operations work, namely, Hall and King.14 In light of all the foregoing circumstances, we are convinced, as was the Trial Examiner, that the Respondent's decision to effect the terminations of April 30 was reached at or just before the manage- ment meeting of April 27, and that such decision did not stem from the Respondent's concern with the depleted state of its budget but, rather, from opposition to the union activity of her employees. We find further that the same antiunion motivations applied to the Re- spondent's unexplained failure to recall these employees. We need not, however, rest our conclusions as to the discriminatory nature of the Respondent's termination of King, Hall, Downey, and Williams, and her failure to recall them, on this basis alone. For, if we assume, as Respondent contends, that she did lay off employees on April 30 for valid economic reasons alone, we nonetheless find that she selected the particular employees affected for layoff, and there after failed to recall them, not because of business considerations but because she intended thereby to rid herself of employees about whom she had strong suspicions, if not actual precise knowledge, of their strong prounion interest and activity,'-' and as part of her demon- strated plan to discourage organizational activities. 'Thus, the record establishes that in the past Respondent has selected employees for layoff on the basis of seniority and other objective con- siderations; these policies were not followed here.ls Moreover, al- though the employees affected were told they would be recalled when work was available for them to perform, instead, at noted above, they were not recalled and Respondent hired new employees just prior and subsequent to April 30 to do work which the terminated employees were admittedly qualified to perform. And, as also noted above, the 14 Although Respondent's brief to the Board implies that operation cost also had to be curtailed , the evidence offered at the hearing as to economic necessity referred only to the separately budgeted development work. 16 In addition to the evidence set forth in the Intermediate Report proving that Re- spondent had specific"knowledge , or strong suspicions as the identity of the union "in- stigators," the record also supports the finding that Respondent had specific knowledge of Hall's role as a union adherent. Thus, Hall Wormed the Union representative , Cross, at the April 22 meeting that Sanborn , his brother-in-law who worked at Sapulpa, had told Hall that he and a majority of other Sapulpa employees were interested in the Union. Cross spoke with Sanborn on April 23 . Sapulpa Field Superintendent Babb immediately heard from Sanborn of his talk with Cross, including the information that Sapulpa employee Thomas, discussed snfre, was interested in the Union and was planning to contact other employees for a union meeting scheduled for Sapulpa on May 4 None of Respondent's supervisors or officers denied knowledge of Hall 's union activities It is reasonable to infer, and we so find, that Field Superintendent Babb also learned from Sanborn that Hall was actively interested in the Union and had sent the union repre- sentative to Sanborn. 16 The employees terminated were all senior to Gayle ,Sherld4n, hired in early April, and to Cary Cooper, hired April 28. In addition , Haull, a qualified-,pulling unit operator, was senior to Luttrell , an assistant pulling unit operator , and to at least seven other employees in various classifications , and King , whom Luttrell assisted. and, Downey were both senior to at least one other employee ( Stover ) who was retained. LAYTON OIL COMPANY 259 employees thus selected for termination were the known or suspected leaders of union activity at Respondent's Dewey operations. Absent a credible explanation, these facts, including the departure from estab- lished practices, clearly establish the discriminatory nature of Re- spondent's selections. Respondent contends, however, that her usual policies were not followed because the employees affected were unable or unwilling to do relief pumping, the sole work allegedly remaining to be done. This claim does not withstand scrutiny. Thus, there is proof that: (1) Williams, who was hired as a pumper, had actually performed relief pumping work while in the Respondent's employ, without criti- cism; (2) Hall had been offered the work of relief pumping early in April, a fact demonstrating that the Respondent felt that he was capable of doing this work, but he was not again offered it at the time of the terminations; 17 (3) King and Downey were never offered relief pumping work; 11 and (4) the new employees who were subsequently hired did work which all four of the terminated employees admittedly were competent to perform and which was other than relief pumping work. In sum, we are convinced, and find, upon the basis of all of the fore- going evidence, and in agreement with the Trial Examiner's ultimate conclusions, that the Respondent discharged King, Hall, Downey, and Williams at its Dewey field location because it knew or suspected these employees to be proponents of union organizational activity, in violation of Section 8 (a) (3) and (1) of the Act. We now turn to the issue raised by the Respondent's termination of Thomas at its Sapulpa operations on April 25. In considering this issue, the Trial Examiner found that the Respondent's removal of rig No. 8 from Pharoah to Sapulpa shortly after that date could result in the layoff of one man at the Sapulpa operation. He con- cluded, however, that the Respondent's "selection of Thomas as that man was directly attributable to his union activity." We agree. As is set forth in more detail in the Intermediate Report, the Respondent terminated Thomas, an employee with 5 months' satis- factory employment, on April 25 and, contrary to the seniority policy and consideration given to marital status previously followed, re- tained Schonfield, an employee hired but 2 weeks before. The termi- nation was effected suddenly and equivocally, without the usual ad- vance notification or 1 week's separation pay. It followed closely, within 2 days, the identification of Thomas to Field Superintendent 17 Hall refused a relief pumper's job on April 3 or 4 when his transferring to that work would have resulted in a net loss of pay. He was not offered the job at the time of the April 30 terminations when the choice for him would have been the relief , pumper's job or no fob. >e Respondent's agents testified to this effect, thereby contradicting an allegation con- tained in Respondent's answer to the complaint that Downey had been offered the work but had refused it. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Babb as the "instigator" of union activity among the Sapulpa em- ployees and the promoter of the scheduled May 4 union meeting,'9' and in a factual backdrop of Respondent's clear opposition to the Union and its manifestation of a particular interest in forestalling the success of the May 4 meeting.20 Furthermore, immediately after the termination was effected, Cochran, one of the supervisors at the Sapulpa operation,21 advised Ray, a coworker of Thomas, that Thomas had been terminated becausehe had been identified as the "instigator" of the Union and because he was promoting the May 4 union meeting. While, as the Trial Examiner finds, this evidence alone clearly sup- ports a finding of a discriminatory motive behind the Respondent's selection of Thomas for termination, we note the existence of addi- tional evidence that the Respondent failed to call Thomas back to work at a time when work he was qualified to perform became avail- able. Thus, it is undisputed that on May 5 Respondent hired Carlock, a new employee, in the same roughneck classification that Thomas had occupied. Carlock was assigned to roustabouting work for about 3 weeks and on May 25, when Schonfield voluntarily quit his em- ployment, Carlock was given the same roughnecking work to do that Thomas had been performing when terminated. The sole defense offered by the Respondent at the hearing related to the selection of Thomas over Schonfield for termination. Respond- ent's supervisors testified that they retained Schonfield rather than Thomas because the rig's return to Sapulpa necessitated the layoff of one roughneck and the assignment of the remaining roughneck to roustabout work-work which Thomas had allegedly shown no "initiative" in doing. The pretextual nature of this explanation, however, was exposed by the direct admission of Babb that Schon- field's ability to do roustabouting work had never been tested and was completely unknown. Furthermore, it is plain that this explanation does not meet the failure of the Respondent to recall Thomas when, 10The Trial Examiner points out that Babb was advised by Sanborn, and possibly-by Cochran , of Thomas' role as an instigator of union activity at Sapulpa prior to the termi- nation action, but does not mention the exact date The record shows, and we find, that Sanborn's information as to Thomas' union activity was acquired on April 23 (see foot- note 15, supra) and, according to Babb's admission at the hearing, was conveyed to Babb, before the morning of April 25 20 In addition to the facts set forth in the Intermediate Report and above as to the Respondent's opposition to the Union, we note the concession of Douglas Layton at the hearing that he was strongly opposed to the organization of Respondent's employees The especial interest of Respondent in forestalling the success of the May 4 union meet- ing is indicated not only by the remarks to this effect repeated by Cochran to Ray, but also by the surveillance of the May 4 meeting by Babb, Emert, and Stanley, three super- visory employees , because, as Babb put it, he "had heard about the union meeting and . . . wanted to see what was going on " 21 we agree with the Trial Examiner that Cochran was a supervisor while rig No. 8 was located at Pharoah . In addition to the evidence summarized in the Intermediate Report with respect to Cochran's supervisory authority, the undisputed facts show that while the rig was at Pharoah, a distance of 50 to 75 miles from Sapulpa, Cochran was in complete charge of both the rig and the employees assigned to it except during Babb's weekly or twice-weekly visits. LAYTON OIL COMPANY 261 as above noted, Carlock was hired in the same roughneck classification on May 5 and Schonfield voluntarily quit his employment on May 25. In light of all of the above facts, we find, as did the Trial Examiner, that the Respondent utilized the opportunity afforded by economic circumstances which could necessitate the reduction of her comple- ment at Sapulpa by one to rid herself of an employee believed to be an active union promoter, and that she did so in furtherance of her demonstrated purpose to discourage the effective unionization of her employees. It follows, and we find, that the Respondent thereby further violated Section 8(a) (3) and (1) of the Act. THE REMEDY The Trial Examiner recommended only a narrow ("in any like or related manner") cease-and-desist order. Because we believe that discriminatory discharges, as in the instant case, go to the very heart of the Act, and also because we believe that it may be anticipated, from the Respondent's past conduct, that the Respondent may commit other violations of the Act in the future, we shall issue a broad cease-and- desist order, forbidding the Respondent from infringing "in any other manner" upon the rights of her employees as guaranteed by the Act, in addition to those rights found to have been violated herein. See- Liquid Carbonic Corporation, 116 NLRB 795, 798. ORDER Upon the entire record in this case, and pursuant to Section 10(c)) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Caroline M. Lay- ton White, d/b/a Layton Oil Company, her agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Oil, Chemical and Atomic Work- ers International Union of North America, AFL-CIO, or in any other labor organization, by discharging, laying off, or refusing to re- employ any of the employees because of their concerted union activi- ties, or by discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) Interrogating employees regarding their union activity, affili- ation, or sympathy or their knowledge of union activity in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (c) Engaging in surveillance of union meetings and telling em- ployees that the instigators and ringleaders of union activity are known. (d) Telling employees that the instigators of union activity will be discharged. 577684-61-vol. 128-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Advising employees to stay away from union meetings. (f) Telling employees that they will lose benefits and that work will be contracted out if they engage in union activity. (g) Threatening to let employees go immediately and to cut the power off if the employees engage in union activity. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Oil, Chemical and Atomic Work- ers International Union of North America, AFL-CIO, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in ,It labor organization as a condition of employment as authorized in ,Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Jack C. Thomas, Thomas J. King, E. Ray Hall, Lee M. Williams, and Robert D. Downey immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimi- nation against them in the manner and method set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other recordshelpful in analyzing the amount of backpay due and the right of reinstatement under this Order. (c) Post at her places of business at Independence, Kansas, and Dewey and Sapulpa, Oklahoma, copies of the notice attached hereto marked "Appendix A."" Copies of said notice, to bfurnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained for a period of 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 the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps Re- ,spo'ndent has taken to comply herewith. 21 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." LAYTON OIL COMPANY 263 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent violated Section 8(a) (3) of the Act by its discharge of Paul Smith, and violated Section 8(a) (1) in respects other than herein found. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Oil, Chemical and Atomic Workers International Union of North America, AFL- CIO, or any labor organization, by discriminating in respect to the hire, tenure, or other conditions of employment of any employee. WE WILL NOT interrogate our employees or question our em- ployees regarding their union activity or affiliation or their knowledge of union activity in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a) (1) of the Act; spy upon union meetings or tell our employees that the ringleaders and instigators of the Union are known to us; tell our employees that the instigators and ringleaders of the Union will be discharged; threaten our employees with loss of benefits, or with contracting out our work, or with cutting off the power if they engage in union activity; or tell our employees to stay away from union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all'such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Jack C. Thomas, Thomas J. King, E. Ray Hall, Lee M. Williams, and Robert D. Downey, immediate rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against then 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization, except to, the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. CAROLINE M. LAYTON WHITE, d/b/a LAYTON OIL COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof,, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard.before the duly designated Trial Examiner in Tulsa, Oklahoma, on September 14, 15, and 16 on the complaint of the General Counsel and the answer of the Respondent. The issues litigated were whether or not Caroline M. Layton White, d/b/a Layton Oil Company, herein called the Respondent or the Company, violated Section 8(a)(1) of the Act in some 14 specified instances; and whether or not Respondent violated Section 8(a) (3) of the Act by discharging 6 employees named in the complaint. The parties, except Oil, Chemical and Atomic Workers International Union of North America, AFL-CIO, presented oral arguments and briefs were received from the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is an individual proprietorship of which Caroline M. Layton White is the sole owner. It does business under the trade name of Layton Oil Company by virtue of the laws of the State of Kansas, and has its principal place of business at Independence, Kansas. During the 12-month period preceding the issuance of complaint it shipped crude oil and related products to points outside the State of Kansas exceeding $50,000 in value. During the same period Respondent pur- chased raw materials, equipment, and supplies from points outside the State of Kansas exceeding $50,000 in value. I find the Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union of North America, AFL-CIO, herein called the Oil Workers or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. The Dewey operations On April 30, 1959, the Respondent employed some 201 employees at what it called its Dewey flood operations at Dewey, Oklahoma. These employees were engaged in usual oil field operations including drilling, pumping, maintenance, etc. They were under the general direction of Henry A. Standeford, field superintendent at Dewey, and Lewis Stanley, variously described as assistant supervisor, gang 1 Respondent's Exhibit No. 4. LAYTON OIL COMPANY 265 pusher, foreman, and head roustabout. Standeford concededly exercised super- visory authority and I also find that Stanley was a supervisor within the meaning of Section 2(11) of the Act.2 Credited and uncontradicted testimony discloses that employees of the Respondent .first became actively interested in organization in March 1959. Carl Bonds, vice president of Local 5-432, located at Caney, Kansas, had established contact with .some of them and on March 20 a few attended a regular meeting of the Caney local.3 The next regular meeting of the local was April 3,4 and the first meeting held specially for Layton employees was April 8.5 A second special organizational meeting was held on April 22. This was the last meeting held for Respondent's employees since the terminations effected April 29 ended all union activity. According to the testimony of Field Superintendent Standeford, he must have acquired knowledge of union activity on the part of the employees almost as soon as it began, since, in March 1959, he informed Douglas Layton .6 at Independence that he had heard the men "wanted to go union." The first overt action taken by Standeford to combat this activity was taken on April 22 when he called a meeting of the employees at the "doghouse" at 2 p.m. At this meeting Standeford admitted telling the men that if they went union they would probably lose their Christmas bonus and overtime pay. He also admitted that at this meeting Lewis Stanley told the men "We will start throwing switches right now" 7 and stated that he reprimanded Stanley for this remark since he did not have the authority to throw the switches. The testimony of employees who attended this meeting goes further than the admissions of Standeford. I credit the testimony of Park and King that Standeford told the men that if they wanted to go "Union" he would "let them go now." I .credit the testimony of Hall and Blanchard that he told them the work could be "contracted out." (Standeford admitted that he told employees that work could be contracted out but he did not admit that he told them so at this meeting.) I credit the testimony of Smith that at the beginning of the meeting he asked the employees what they knew about the Union. I do not, however, credit the testimony of King in which he states that Standeford told the employees at this meeting that he had a list of those who had joined the Union. This is not corroborated by any other employee and is specifically denied by Blanchard. It is the kind of statement which, if made, would ordinarily 'be remembered. It may well have been made to King on another occasion but I make no such finding.8 Apart from the speech made to the assembled employees on April 22 other evidence of interference, restraint, and coercion was offered by the General Counsel. There is uncontradicted testimony by Roy Park, an employee, that on a morning when the men were going to work (the date is not fixed but it appears to have been prior to April 22) Stanley asked to see a box of matches held by another -employee, Art Woody. The box had a union insigne on it and, according to Park, Stanley told Woody he "had better not let Douglas Layton see you with those matches or be will run you off." E. Ray Hall, an employee terminated April 30, testified to a conversation with .Standeford on either April 25 or 26. In this conversation he was asked by a This finding is based on the credited testimony of employees at Dewey that Stanley acted as the alter ego of Standeford and gave orders, made assignments of work, and exercised all of the authority possessed by Standeford whenever Standeford was absent. I credit the testimony of Roy Park, an employee, that he was witness to two instances in which Stanley effected the discharge of employees Stanley was one of those summoned to attend the meeting called at Independence, Kansas, on April 27, of field superintendents and foremen to discuss the general conditions of operations and at which it was deter- mined to lay off employees at Dewey Stanley was not called as a witness by the Respondent 'Chester Barrowman, secretary of Local 5-432, testified that the employees who at- tended this meeting were • Robert Downing, E Ray Hall, Tom King, and H. C. Blanchard. 6 Wesley Stover, Robert Downey, E. Ray Hall, H. C. Blanchard, Lee Williams, and John Thompson attended. 5 A total of 17 employees attended this meeting, including all of those who attended the first 2 meetings. O Although Layton Oil Company was registered in the name of Caroline M Layton White as a sole proprietorship, management of the proprietorship was distributed between Douglas, Clyde, and Marshall Layton, sons of Caroline. 7 By "throwing the switches" Stanley meant that he would shut off the power, thus closing down all operations. 8It was agreed upon between counsel that Downey would corroborate the testimony of the other employees as to what was said at this meeting. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standeford if he knew anything about the Union. When he denied knowledge Standeford repeated his threat that the employees would lose benefits if they "went Union." At the same time he remarked to Hall, "Downey, I wonder why he wants a union to come in?" He then remarked that Downey was not a welder anyway. Continuing, he told Hall that he had just come from town and had been told that the instigator of the Union was "tall, slim, has a crooked nose and he works on the pulling unit." Standeford then remarked that it had to be Tom King.9 He told Hall that he would find out for sure and that if it was King he would run him off, and added that if he found out anybody else was for the Union he would run them off too. While the substance of this conversation was denied by Standeford it was in the form of a blanket denial with respect to the allegations of the complaint (except as it related to Downey). The denial was unconvincing and I credit the testimony of Hall as to the conversation. Standeford was not a credible witness. It was evident that his testimony was gaited to the interests of the Respondent. His admissions of conduct embracing restraint and coercion were made only when the evidence was conclusive. As to individual conversations his testimony was in the form of quick and ready denial and he is not credited where there is conflict unless specific credence is given In making this evaluation of Standeford's credi- bility full consideration has been given to the reliance necessarily placed on his testimony by the Respondent and the determination has not been lightly made. The General Counsel introduced testimony by employees that on the evening of April 22 Standeford was observed at the Sinclair gas station at Dewey having his car washed and greased. Employees who drove from Dewey to Caney to attend the union meeting that night took the route that passed this station. From this the Trial Examiner is asked to infer that Standeford's action in having his car washed and greased at this particular time and at this particular station constituted an act of surveillance No such inference'is drawn and no such conclusion is reached Herschel Blanchard, a road maintainer, was laid off by the Respondent on April 30 and rehired on May 4. He testified that at the time he was rehired he was told by Standeford that if he stayed away from union meetings he would be "all right." Although this is denied by Standeford I credit the testimony and also the testimony by Blanchard that at the time he was notified by Stanley of the meeting to be held on April 22 (the company meeting at the doghouse) he was asked by Stanley if he was a union member. Johnny Thompson, a truckdriver, testified that he had a conversation with Stande- ford in April 1959 in which Standeford asked him if he knew anything about the Union and then told him that he (Standeford) knew who the ringleaders were. Thompson is credited despite the denial of Standeford Lee Williams, a relief pumper, testified that on April 27 Stanley told him he was going to a company meeting at Independence that night. Williams' suspicion that something was wrong was aroused the next day when he observed Stanley and Standeford having a talk with a truckdriver and two roustabouts. (Williams stated it was unusual for both Standeford and Stanley to be in the field at the same time.) That evening Williams contacted Pat Coyne at his home He described Coyne as head roustabout at Amstel, another field location of the Company.10 Williams had worked with Coyne for 4 years (not with the Respondent) and asked him if he (Coyne) had attended the supervisors' meeting at Independence. Coyne told him he had and that the Laytons, their attorney, and all the supervisors were there and that the attorney had advised the Laytons "to get all of the men that were the head of this union and fire them immediately to stop it." Williams also testified that he heard Standeford on April 25, remark to an employee named Pollan that if he found out who the instigator of the Union was he would fire him. This testimony is credited. Coyne, available to the Respondent, was not called as a witness to dispute Williams' testimony. 2. The terminations at Dewey and related events On April 30, 1959, the Respondent, through Superintendent Standeford, laid off the following men at Dewey: Ray Hall, Robert Downey, Tom King, Paul Smith, 9 King was a witness and the description does fit King 101 credit the testimony of "Williams and find that Coyne was it supervisor within the meaning of Section 8(a)(3) of the Act Standeford admitted that Covne attended the meeting of supervisory personnel at Independence on April 27 and that Coyne was a foreman for the Company. Clyde Layton referred to Coyne as head roustabout LAYTON OIL COMPANY 267 Lee Williams, Wesley Stover, and Herschel Blanchard.il Wesley Stover and Herschel Blanchard were reemployed by the Company on May 4 and were not named in the complaint, so the 8(a)(3) issue (at Dewey) is confined to the five first-named employees. Clyde Layton, office manager of the Company, was called as a witness by the General Counsel.12 Layton testified that he had prepared the budget for Respondent and that some $303,000 had been allotted for development operations at Dewey.13 In January 1959, the first 4 months of the Respondent's fiscal year (the fiscal year ran from September 1 to August 31) had elapsed and some $200,000 had been spent on development at Dewey. At a meeting of the brothers sometime in January it was decided that the Dewey development operations would have to be curtailed in the interests of economy. By April 30, 1959, $285,000 had been spent and in July the Company was $19,000 over its budget. Clyde Layton testified that in date April it was decided to terminate some of the Dewey employees. This date is not fixed definitely by any of the witnesses but I conclude from all of the testimony that communication of the decision was made to Field Superintendent Standeford at the meeting of supervisors held at Independence on April 27.14 It is now incumbent to study certain facts relevant to the terminations and the motive for them. E. Ray Hall was classified as a roustabout and pulling unit operator. He testifed that he declined to take the job of relief pumper on April 3, 1959, because that job involved certain automobile expenses and, at least to Hall, meant a reduction in his net earnings. He was not, however, discharged because he refused to take this job. and he testified that at least three other employees had refused it. He was inter- rogated by Standeford as to his knowledge of union activity and denied having any. Hall together with Downey, King, and Blanchard attended the first union meeting according to the testimony of Barrowman, secretary of Local 5-432. (This was the meeting at Caney on March 26.) Hall attended each of the succeeding meetings Meld April 3, 8, and 22 (the last). He, Downey, and Blanchard were the only employees who attended all four meetings, although King missed only the second. From the point of view of original and continuing interest it is clear that the em- ployees most interested in organization were Hall, Downey, Blanchard, and King, all of whom were terminated and only one of whom (Blanchard) was rehired. Hall was notified on April 29 by Standeford that there was to be a layoff of nine employees the next day. The reason given by Standeford was that the Company had sold its working equipment. At this time Hall was sixth on the seniority list at Dewey 15 and was the senior roustabout. Since he was classified as both a roustabout and pulling unit operator it is impossible to tell whether he was assigned to develop- ment or operations and in view of the conceded interchangeability of jobs I find it unnecessary to make such a determination Questioned as to why Hall was selected for layoff instead of Luttrell, who had the same classifications, Standeford replied only that he thought Luttrell was a better worker. (The record shows that Luttrell attended only one union meeting, that of April 8.) This is all the evidence with respect to the discharge of Hall.16 "Larry Mills , a brother-in-law of Douglas Layton, was named by Douglas Layton as an employee to be laid off at this time The records of the Company indicate that Larry Mills quit his employment on April 28 On the testimony of Lee Williams, Clyde G. Layton, and Standeford I find that Mills quit to accept other employment and was not laid off, "The Trial Examiner refused to permit the General Counsel to call Layton under Rule 43-B in view of the allegation in the complaint that the Respondent was a sole proprietorship and not a partnership. In view of this ruling counsel for the General Counsel was warned that he was making Layton his witness and that counsel for the Respondent would be entitled to cross-examine him on all issues 13 The Company distinguished between development and operational costs. Rig costs were development and roughnecks and roustabouts were generally charged to develop- ment Pumping, meter reading , pulling unit operators , and office readers were charged to operational costs. "This determination is based in part on the fact that Standeford notified none of the men of the layoff until he returned from this meeting on April 28 although the effective date of the layoff was April 30. It is reasonable to infer that he had no knowledge of the layoff until the meeting. 16 Respondent's Exhibit No 4. 19 Although both Hall and Standeford testified to an argument over repairing a pump which took place 2 or 3 months prior to the termination , this argument does not appear 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Downey was employed by the Company as a roustabout since August 18, 1958. He attended all four of the union meetings . On April 28, 1959, he was driving a welding truck (there is evidence he was used as a welder ) when he was stopped by Standeford, told that all the "junk equipment " had been sold, and that he was laid off as of May 1. Since the parties agreed that Downey's testimony in other respects would be merely cumulative he was not examined further. There is, however, relevant testimony from other employees with respect to the discharge of Downey. Hall testified that on either April 25 or 26 he had a conver- sation with Standeford in which Standeford , after interrogating Hall as to his own knowledge of union activity, made the remark, "Downey, I wonder what he wants the Union for?" I have previously credited Hall as to this conversation and now find that this is sufficient to establish knowledge of union activity on the part of Downey by Standeford. During this same conversation Standeford told Hall that if he found out anybody else was for the Union he would run them off too. At the time of Downey's layoff all the roustabouts junior to him were likewise laid off, although Stover and Blanchard were recalled on May 4. Thomas J. King was employed as a pulling operator since August 11, 1958. He was, therefore , engaged in operations and not in development at the time of his layoff. He attended the first union meeting, missed the second , and attended the third and fourth. At the time he was notified of his termination he was told by Stanley that he was laid off because the equipment was being sold. In evaluating the reason for his termination the credited testimony of Hall with respect to Standeford's statement that the instigator of the Union was tall , slim, had a crooked nose, and worked on a pulling unit, is relevant . From this information Standeford drew the inescapable conclusion that the instigator had to be King and told Hall that when he found out for sure he would run him off. Williams was employed as a roustabout on March 31, 1959, and Smith on April 16, 1959. Both were presumably engaged in development and neither had been employed for more than a month when they were terminated . Both attended two union meetings. According to Standeford, Williams was tried as a pumper but did not make good and Cary Cooper was hired April 28 ( the day the employees were notified of the layoff ) to do relief pumping. 3. The termination of Thomas at Sapulpa Jack C. Thomas was employed as a roughneck by the Company at its Sapulpa operations on or about November 11, 1958, and his last date of employment was April 24.17 The complaint alleges that Thomas was discharged in violation of Section 8(a)(3) of the Act. Thomas did not appear at the hearing and most of the testimony educed on his behalf was given by his wife. The Respondent asserts that Thomas was terminated for economic reasons. When it became necessary to lay off one of the men on the rig (identified as rig No 8) Thomas was selected by Field Superintendent Babb because, although he was con- sidered a good floorman on the rig, the removal of the rig from Pharoah to Sapulpa would necessitate assigning Thomas to roustabout work and Babb did not consider Thomas well qualified for roustabouting The facts and circumstances respecting the actual termination of Thomas are tainted with some obscurity. Rig No. 8 had been sent from Sapulpa to Pharoah for drilling operations sometime in January. Pharoah is about 50 miles from Sapulpa. In charge of the rig while it was at Pharoah was Claude Cochran, designated as tool pusher at that time . During this period Cochran had the duty of bringing supplies to the operation , seeing that the rig was kept in shape, giving directions and orders to the drillers, moving the rig to various locations . It was the testimony of Douglas Layton that whatever independent judgment had to be used and whatever orders had to be given at the Pharoah jobsite were used and given by Cochran. Cochran had the power to make emergency decisions . In view of the testimony of Respond- ent's own witnesses I find that Cochran, while in charge of rig No. 8 at Pharoah, was a supervisor within the meaning of Section 2(11) of the Act.18 A drilling rig to have been a factor in selecting Hall. Standeford testified that Hall 's attitude was better at the time he was laid off than at any time during his employment , although he also testified that he "couldn't keep him off his rear long enough to work " 17 Respondent's Exhibit No. 2. 38 See Pennsylvania Power f Light Company, 122 NLRB 293 , where the Board held five lines and substation engineers , located at five widely scattered substations at which from three to seven employees were employed , were supervisors since no other supervisor LAYTON OIL COMPANY 269' is an expensive piece of equipment and the operation of drilling equipment requires knowledge, skill, and judgment, it is not a matter of routine direction, and it is hardly conceivable that the Respondent would have placed it in charge of one who did not possess at least the supervisory authority to meet the standards of 8(2)(11). According to Babb, 'Cochran attended the meeting of supervisory personnel at Independence on April 27. According to the testimony of his wife, a credible witness, Jack Thomas met with Arthur L. Cross, International representative of the oil workers, at his own home about April 23. Thomas had been previously given a "book" by a Mr. North, identified only as a Sinclair Oil Company employee. When he met with Thomas, Cross advised him to contact other employees of Layton and to arrange a meeting of these employees in Sapulpa on May 4. Field Superintendent Babb testified that on April 25 he called Elmer T. Ray, a, driller on rig No. 8, and told him to bring his derrick man and complete the Pharoah drilling. At the same time he told Ray that Thomas would not be needed. Al- though Babb testified that Thomas could have worked a few more days it is undis- puted that the removal of the rig from Pharoah back to Sapulpa could result in the termination of one man, since Cochran would be transferred from tool pusher to driller and one man could be bumped down the line. At this time Jerry Schonfield was the only employee junior to Thomas on this rig.19 Babb testified that Thomas was selected for termination ahead of Schonfield because the crew would be doing roustabout work when they returned to Sapulpa and he doubted Thomas' ability to do roustabout work. He also testified that he had heard Thomas was the instigator for the Union 20 and that at about this time the Union was discussed at a company meeting. (It appears that Babb meant the company meeting held on April 27, 2 days after he had decided not to keep Thomas ) Babb admitted that he had heard no rumors that Schonfield was interested in union activity. Babb testified that he had previously laid Thomas off when work on the rig was shut off and rehired him when the rig went back into operation. This, however, was at the time when Babb, believed the rig would be sold and there would be no further work for Thomas. The record does not disclose how many others of the crew were involved in this temporary separation. Babb's testimony with respect to this layoff was typically evasive.21 Elmer T. Ray, a credible witness, testified that he received a telephone call from- Field Superintendent Babb on Saturday, April 25. Babb told him (Ray was a driller on rig No. 8) to take the derrick man and go to work but not to take Thomas. He was given no explanation other than that "we was running pipe" and that Cochran would tell him what the deal was. When he reached the jobsite Cochran told him that "they" had heard that Thomas was an instigator for the Union. Cochran did not tell Ray what action was to be or had been taken with respect to Thomas but Thomas never did return to work. Cochran also told Ray that Thomas had scheduled a union meeting for May 4 at Sapulpa and that that was the reason they didn't want him brought out there." (This refers to the fact that rig No. 8 was to be returned with its crew to Sapulpa ) other than the substation engineer was on hand to assume responsibility for the work and the engineers appeared to be in sole charge at the substations where they were employed. In referring to Cochran, Douglas Layton included him in the classification of head drillers 19 Douglas Layton testified that the Respondent had no fixed seniority policy but that seniority was a factor in selection for termination He further testified that it was a general policy to select single men for termination ahead of married men Schonfield was single, Thomas was married. 2'Babb's testimony was that this was mentioned to him by Dir. Sanborn and possibly by 'Cochran. Sanborn is identified as an employee of Layton at Sapulpa, a brother-in-law of Ray Hall, who sent word to Cross through Hall that he was interested in the Union and that a 50-percent interest could be aroused immediately in the Sapulpa area. This was sometime between April 8 and 22. Sanborn was contacted directly by Cross and he, too, was advised to set up a meeting at Sapulpa for May 4 21 Babb testified . Q. Now when did the first layoff of Thomas occur? A. Oh, that, the records will show that, but I cannot recall it Q. Was it in December of 1958" A. It's a possibility I don't know. Q How long was he off that time" A That I cannot answer. I do not remember. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ray further testified that on the next day, April 26 , Thomas called him to find out "what the deal was" and Ray told him what Cochran had said-that Thomas was an instigator for the Union. Thomas asked if he was being laid off and Ray told him that he did not know but advised him to go call Cochran. Mrs. Thomas testified that on Saturday , April 25, Elmer Ray stopped by their house and told her husband that he (Thomas ) was not going to work that day. Mrs. Thomas heard from her husband that Babb had called Ray, had told him not to take Thomas , and that Buck (Cochran ) would explain the reason to Ray when he reached the jobsite. On Sunday, April 26, according to Mrs. Thomas, her husband called Ray. She heard only one side of the conversation but when it was concluded her husband told her that Babb had informed him that he was being let go because she was the instigator for the Union . As a result of this conversation Thomas called Cochran and again , according to Mrs. Thomas, he was told in effect that he was an instigator for the Union and had better look for another job 22 On the same day Thomas and his wife tried to locate either Ray, Babb, or Cochran but without success . They then determined to go to Independence to see Douglas Layton. They went the next day, April 27, and met with Douglas, Clyde, and Dale Layton, a cousin . Confronted with the circumstances from which Thomas deduced that he was being discharged, Layton denied any specific knowledge of action with respect to Thomas and remarked , "It's hard to believe you have been fired or laid off." When he was asked if Thomas could go back to work he told Thomas that he would have to look into it and that if he had been fired it must have been for "disloyalty " and that he had Babb in the field looking for "loyal" men. Thomas was also told, according to Mrs. Thomas, that the work at Sapulpa would be "contracted out before it goes Union." The conversation ended when Douglas told them he was having a meeting that night (this was the supervisors' meeting) and would get it straightened out. He told Thomas to go to Babb (presumably he meant the next day and after the meeting ) and find out if he had been fired. The next day Mr. and Mrs. Thomas did 'go to see Babb but the conversation, as related by Mrs. Thomas, was inconclusive. While it was established that Thomas was laid off he did not find out why nor who had made the decision . They then saw Claude Cochran who was equally equivocal as to the reasons for the decision to select Thomas, the responsibility for the termination, or how suspicion that Thomas had been guilty of union activity had been acquired. Babb's own testimony as to the termination has been set forth, supra. Babb was an evasive witness throughout and relied on a plea of inability to remember when the questioning probed his reasons for discharging Thomas.23 Nowhere was he able to state in what respect Thomas was inadequate or unqualified for roustabout work or why he should have been selected for termination rather than Schonfield who had been hired only 2 weeks previously. Nothing could be clearer from his demeanor on the stand , his hesitation in answering , his pleaded but incredible ina- bility to remember facts with specificity, his resort to generalizations , than that Babb a3 The testimony related by Mrs. Thomas as to these two telephone conversations was rejected by the Trial Examiner as any evidence of the reasons why the Respondent termi- nated Thomas The testimony was received only for the purpose of showing what action was taken by Thomas and his wife as a result of these calls The conversations, as repeated by Thomas to his wife , are not binding upon the Respondent The testimony with respect to the conversation with Ray is , however, corroborated by the testimony of Ray himself, there is no substantial discrepancy , and I find that such a conversation did take place 23 Here is a portion of Babb 's testimony to support his charge that Thomas could not ado roustabout work: Q. (By Mr. EcKHARDT ) Did Thomas ever do carpentry work') A That was a part of his roustabouting duties Q. Was that all the roustabouting lie was ever tested or was on? A I don't think so He was tried several different places. Q What other places was he tried on" A. On that I will have to check and see. I don't remember Q. Do you know when he did this carpentry work's A No Q Was it in December 1958? A. Could be. Q. Around Christmas A. Could be. I don't remember. LAYTON OIL COMPANY 271 was unwilling to testify truthfully when the truth was adverse to Respondent's interests. The testimony of Douglas Layton is of little help. He stated that the decision had been made in January to lay off a man on rig No. 8 when it was returned from Pharoah to Sapulpa. He did not explain why, if such a decision was made, Schonfield was hired in April. He could not explain why Thomas was terminated rather than Schonfield, except that it was Babb's decision. Layton did not know exactly when Thomas was laid off or give an explanation of the unusual circum- stances under which it took place, including the fact that no supervisor told Thomas that he was laid off or why. Layton did deny mentioning "disloyalty" as a possible factor in Thomas' termination. As to this conflict in testimony I credit Mrs. Thomas. He did testify that Babb told him after the meeting of April 27 that Thomas was the man he (Babb) was going to lay off when he moved the rig. Despite the fact that Layton's conversation with Babb took place after Thomas had been to see him to ascertain the reasons for his layoff, Layton did not find out from Babb why Thomas was selected. The testimony of Layton as to his knowledge of the reasons why Thomas was selected is replete with ambiguity and evasion. One separate incident of violation of Section 8(a)(1) is alleged with respect to Sapulpa. This is the admitted surveillance of the union meeting at Sapulpa on May 4 by Babb, Stanley, and Emert. In view of the admission by Babb, I find this conduct is a violation as alleged. B. Conclusions 1. Evidence of restraint, interference, and coercion The findings with respect to the allegations of violation of Section 8(a)(1) pose no problem. Based on his own admissions I find that Standeford, in his speech on April 22 violated this section by telling the employees that they would lose certain benefits if they affiliated with the Union, including their Christmas bonus and over- time pay. On the testimony of employees who attended the meeting and against the denials of Standeford I find that he also told the employees that if they affiliated with the Union we would let them go immediately and that the work could be contracted out and that at the beginning of the meeting he asked the employees as a group what they knew about the Union. Each of the above statements I find to be a violatioi. Df Section 8(a)(1). At this meeting I find, both because the testimony is uncontradicted and because I credit the testimony of the employees, that Lewis Stanley, a supervisor, told the employees that he would start throwing the switches immediately if the men had affiliated with the Union. The only import to this remark was that the power would be cut off and the work stopped if the men admitted affiliation. I find this to be in violation of Section 8(a)(1). In addition to the foregoing I find the fol- lowing conduct on the part of supervisors constituted violations of Section 8 (a) (1) of the Act: (1) Statement made by Stanley to employee Woody (uncontradicted in the record) that he "had better not let Douglas Layton catch you with those matches or he will run you off " Since the box of matches was marked with union insignia, I find this a clear threat of discharge for using union material. (2) Standeford's statement to Hall that he would "run off" King or anybody else if he discovered he was engaged in union activity. (3) Interrogation of Hall, Thompson, and Blanchard by Standeford and Stanley as to their knowledge of or participation in union activity. (4) Standeford's statement to Blanchard when he rehired him that if he stayed away from union meetings he would be "all right." (5) Standeford's statement to Thompson that he knew who the union ring- leaders were. (6) Standeford's statement to Pollan in the presence of Williams that if he (Standeford) found out who the union instigator was he would fire him. (7) Admitted surveillance of a union meeting at Sapulpa on May 4 by Babb, Stanley, and Emert. (8) Statements made by Standeford to various employees that the Company would "contract the work out" if it went Union. This constituted a threat of loss of employment since the employees of Layton had no assurance they would be retained by the contractor. I have previously rejected the allegation that Standeford engaged in surveillance by having his car washed and greased at a public gas station on April 22. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The terminations at Dewey Seven men 24 were terminated at Dewey on April 30 , 1959. Among the seven. laid off were the four employees who attended the first meeting of Dewey 's employees- on March 26. These were Downey, Hall, King, and Blanchard. Of the six em- ployees who attended the second meeting on April 3 all but one (Thompson) were laid off. These six included, in addition to the four already mentioned, Stover and Williams. If any could be identified as the instigators of union activity at Dewey it must have been the group which attended the first two meetings. They consti- tuted the hard core. Respondent's defense to the charge of discrimination is that the terminations were due to economic factors alone . Since the Respondent's witnesses to this defense were called by the General Counsel I find he is bound by their testimony. The testimony of Clyde Layton was that the budget for development at Dewey had almost been exhausted in April. It had been previously decided in January that de- velopment operations in Dewey would have to be curtailed and in the latter part of- April this decision was made effective . It was communicated to Field Superintendent Standeford who selected the men for discharge and notified them on April 28. The effective date was the close of work on April 30. Bound by the testimony of economic necessity there remain other factors to be- considered. One is whether or not the individuals selected were so chosen because of their union activity and a second is whether they would have been absorbed by other operations had it not been for their union activity. A strong inference of dis- crimination is drawn from the fact that all four of the men who attended the first union meeting were selected 25 (Blanchard was rehired May 4 and no charge was filed as to him.) This inference is strengthened by the fact that of the three addi- tional employees who attended the second meeting two were discharged. (Stover like Blanchard was rehired on May 4.) The inference, however, must be supported by some evidence of company knowledge. As to this there is the credited testimony of Standeford that in March 1959 he informed Douglas Layton that he had heard that the men "wanted to go union ." Although it is denied by Standeford, I credit the testimony of Thompson that sometime in April before the layoff Standeford interrogated him as to his knowledge of union activity and also told him that he (Standeford) knew who the union ringleaders were. The hostility of Standeford to- ward union activity has been clearly shown by threats to individual employees and by his talk to the employees on April 22.26 There is further evidence that Standeford's suspicions and perhaps his knowledge were directed to certain of the employees who were laid off. With respect to King, I credit the statement of Hall that Standeford told him he had heard that the instigator was "tall, slim, has a crooked nose and he works on the pulling unit." Standeford then remarked that this had to be Tom King and that he would "run him off" and "anybody else." During the same con- versation Standeford remarked, "Downey, I wonder why he wants a union to come in?" On the basis of this credited testimony I find that Standeford either knew or strongly suspected that Downey and King were leaders of the Union and that he had- determined to use his own words, to "run them off." It does not appear due to coincidence alone that the evidence of interrogation on the part of Standeford and" Stanley was directed to Hall, Thompson, and Blanchard, all three of whom had attended either of the first two union meetings . If further evidence is required that in the selection of the men for layoff union activity was the prime factor, reliance is placed on the credited statement of Williams and Foreman Coyne, who attended the meeting of company supervisors on April 27, told him that an attorney advised the Laytons to get the men who were leaders of the Union and fire them. Coyne, although still employed by the Company, was not called to refute this testi- mony. There is the testimony, again credited, by Williams that he heard Standeford tell Pollan, another employee, that if he found out who the union instigator was he would fire him and Standeford's statement to Blanchard when he was rehired that he would be "all right" if he stayed away from the Union. A clearer picture of dis- criminatory motive translated into discriminatory action would be difficult to find. 24T have already found that Larrv Mills quit voluntarily on April 28 and was not involved in the layoff. See footnote 11, supra. as See F. W. Woolworth Company, et al., 25 NLRB 1362, 1373. 20 Douglas Layton testified that the Company considered union organization an operat- ing hazard and that it would make it more difficult to operate the properties and to transfer men. LAYTON OIL COMPANY 273 Before considering the circumstances of termination of each alleged discriminatee separately, the Company's own testimony creates a strong inference that the reasons -given were not the real reasons. Following the meeting at Independence on April 27 the first notices were given to the men and this motive was that they were termi- nated 2 days later, April 30. Layton had testified that the Company attempted to provide 2 weeks' notice in cases of termination, yet no explanation is offered of the failure to give notice despite the fact that the layoff had been anticipated as early as January. When the notices were given a false reason (sale of company equip- ment) was given to each man laid off. The only inference to be drawn from this falsehood is that the real reason, discrimination to discourage union membership, could not be given. Again, on its own testimony, the Company, having considered the layoff problem since January and having ample time to evaluate its needs, was forced, after making its terminations, to rehire two of the men and to hire three new employees. With respect to Hall, the only reason assigned by Standeford for his selection was that Luttrell, while junior in point of service, was a better worker. While reference was made to the fact that there had been an argument between them some time prior to the discharge this was not a factor on Standeford's own estimony. I find that there is sufficient evidence, in view of Hall's union activity, to characterize him as an instigator. His interrogation and Standeford's promise to find out who the insti- gators were and to "run them off" support the conclusion previously reached. As to King, he was employed as a pulling unit operator at the time of the layoff and was not engaged in development. Luttrell was retained rather than King, ac- cording to Standeford, because he was a better pulling unit operator although at the time of the layoff he was King's helper. Standeford added that he was also retained because he could pump and King could not, but pumping was a develop- ment operation and was therefore to be cut down-unit operators were operational and not to be affected. It is not without significance that, according to Standeford, Hall and King, among the first four to attend a union meeting, were both terminated because Luttrell, who attended only one meeting, was characterized as a better worker. It became necessary, shortly after the layoff, to hire a new employee to act as helper in Luttrell's place, so that an actual cutback of only one employee was affected by the termination of Hall and King. Lee Williams, hired March 29, was assigned as a relief pumper prior to his dis- charge. According to Standeford he was not adapted for this work and on the day he was terminated another employee, Cary Cooper, was hired as a relief pumper and roustabout. Cooper was hired because he was needed and Stover and Blanchard were rehired because they too were needed, yet the Company asserts that all the terminations of April 28 were the result of economic necessity. The incompatibility between this asserted defense and the Company's own records of hiring and rehiring is nowhere explained. A third new employe, Raleigh Evans, was hired as a pumper to work the vacation periods, but again there is no explanation why a pumper should be hired, even temporarily, when a reduction in force had been effected. I conclude that the economic motive asserted by the Company is inconsistent with the hirings, including rehirings, which took place at the time of and immediately following the terminations; that the reason given the men by Standeford for termi- nating them was false and that the Company did not sell and that it did not contem- plate selling any equipment ; that the real reason for the selection of these particular employees 27 was that Standeford was convinced they were the instigators of the Union and that , in implmentation of his threats, he was "running them off." I therefore find that King , Hall, Downey, and Williams were discharged in violation of Section 8(a) (3) of the Act. I find no evidence to support the conclusion that Smith , hired only 2 weeks prior to the terminations and who could not, for that reason, have been suspected by the Company of having been an instigator or ringleader, was discharged in violation of Section 8 (a) (3). Conclusions as to Thomas The termination of Thomas does not present a serious problem and I find that he was discharged in violation of Section 8(a)(3) and ( 1) of the Act. While it is true that the removal of rig No. 8 from Pharoah to Sapulpa could result in the a'+ Even though a reduction in employment may have been necessitated by economic factors, the selection of the employees on a discriminatory basis is a violation of the Act. See N.L.R.B. v. Deena Pro,duct8 Company, 195 F. 2d 330, 334-335 (C A. 7), cert. denied 334 U.S. 827. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff of one man since Cochran would be reduced from tool pusher in charge of the rig to driller, it is clear that the selection of Thomas as that man was directly attributable to his union activity. I credit the testimony of Ray that Cochran told him that Thomas was selected because he was the instigator of the Union and that the Company did not want him taken back to Sapulpa. At this time, Cochran knew that Thomas had scheduled a union meeting at Sapulpa for May 4 and that he communicated this knowledge to Babb is clear from the subsequent surveillance of the union meeting scheduled for May 4. While it was Babb who selected Thomas for discharge it was admitted by Babb that he had heard Thomas was instigator for the Union. Babb's asserted reason for the discharge of Thomas, i e., that he was not fitted for roustabout work, is unsupported by any specific citation of incompe- tence. When questioned on this point all Babb could rely on was a faulty memory.28 No explanation was given for the fact that the layoff was in contradiction to the company policy, insofar as it had a policy of terminating single men before married men and considering seniority in employment. On either basis Schonfield would have been laid off before Thomas. The General Counsel's case is supported, in- ferentially, by the failure or refusal of any supervisor to tell Thomas why he was laid off or even to tell him directly that he was being laid off. Again, men who work in oilfields are not usually given to such equivocation. Even Douglas Layton was unable to give Thomas a reason for his termination or to find out exactly why Babb, selected Thomas instead of Schonfield. Having credited Mrs. Thomas' testimony that during their conversation Layton stressed "disloyalty," I can only infer that at that time Layton knew that Thomas was promoting a union meeting at Sapulpa and that that was the reason he had been selected. I believe that Cochran's state- ment to Ray that Thomas was terminated because he was the instigator of the Union was the reason for termination. Cochran was available as a witness for the Re- spondent but was not called to refute this testimony. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation 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 the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the purposes of the Act. Having found that the Respondent terminated the employment of Jack C. Thomas on April 24, 1959, in violation of the Act, and terminated the employment of Thomas J. King, E. Ray Hall, Lee M. Williams, and Robert D. Downey on April 30, 1959, in violation of the Act, I shall recommend that the Respondent offer each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount of wages he would have earned subsequent to the time of termination until the date of a proper offer of reinstatement, less his net earnings from other employment in that period. Loss of pay shall be computed in accordance with the formula and method pre- scribed in F. W. Woolworth Company, 90 NLRB 289. Because certain of the unfair labor practices found are isolated incidents encom- passed in the scope of other practices or are merely cumulative in nature, I shall not make a specific recommendation with respect to each violation found. Because there is no evidence that the Respondent has committed other unfair labor practices in the past or that the unfair labor practices found herein will be committed in the future the recommendations are accordingly confined. On the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. Oil, Chemical and Atomic Workers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11 See footnote 23. MISSION MANUFACTURING COMPANY 275 3. By discrimination in regard to hire and tenure of employment of employees, thereby discouraging membership in a labor organization, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. Thereby and by interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Mission Manufacturing Company and Lodge 12 of District 37, International Association of Machinists , AFL-CIO Mission Manufacturing Company and Lodge 2007 of District 37, International Association of Machinists, AFL-CIO. Cases Nos. 23-CA-939 (formerly 39-CA-939) and 23-CA-940 (formerly 39-CA-940). July 25, 1960 DECISION AND ORDER On March 22, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondent had engaged in certain unfair labor prac- tices. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. These findings, conclusions, and recommendations are more fully set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Inter- mediate Report and briefs in support thereof. Exceptions to the Intermediate Report were also filed by the Charging Parties. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Rodgers 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 en- tire record in these cases, including the Intermediate Report and the exceptions and briefs, and hereby adopts the findings,' conclusions, 'We do not adopt , or find it necessary to pass upon , the Trial Examiner 's statement, at footnote 21 of the Intermediate Report, regarding what occurred during the recent national steel negotiations. 128 NLRB No. 18.