Burnup and Sims, Inc.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burnup and Sims, Inc. and Robert J. Davis. Case No. 12-CA-2156. June 25, 1962 DECISION AND ORDER On February 13, 1962, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the said complaint be dis- missed, as set forth in the Intermediate Report attached hereto. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the General Counsel's exceptions to the Inter- mediate Report for the reasons discussed below. Accordingly, the Board adopts only those findings, conclusions, and recommendations of the Trial Examiner which are consistent with the decision herein. 1. The record establishes, as found by the Trial Examiner, that on September 21, 1961, approximately 19 truckdrivers staged a walkout and concerted refusal to resume work and through their spokesman, Robert J. Davis, presented a demand for a pay increase of 15 cents an hour; that Respondent was fully cognizant of the facts that the em- ployees were engaging in a protected concerted activity and the lead- ers during this movement were Davis, Joseph H. Harmon, and John P. McKnight; that the men returned to work after manager Carl Moritz assured them wage increases would be forthcoming within 30 days; that on September 25, Moritz decided to grant pay increases and to institute a cutback in personnel; that wage increases were made effec- tive October 1, 1961; and that Davis, Harmon, and McKnight were terminated at the end of their workday on Friday, September 29,1961. The Trial Examiner accepted Respondent's contention that these terminations were temporary layoffs made for economic reasons and found the fortuitous selection for layoff of the three leaders in the concerted activity insufficient to warrant rejection of Respondent's defense that they were chosen because they exhibited a tendency to be uncooperative and their services were therefore of less value to it than were those of employees retained. In reaching his conclusion, the Trial Examiner was persuaded by what he regarded as a lack of evi- dence bearing upon Respondent's unlawful motive. The General .137 NLRB No. 90. BURNUP AND SIMS, INC. 767 Counsel has excepted to these findings, contending that the record evidence demonstrates that the layoffs were not economically motivated but rather were effectuated in retaliation for the walkout of the prior week, and, even if there were economic reasons for the layoffs, the selection of the three leaders of the walkout for layoffs was discrimina- tory and in violation of the Act. We find merit in the General Coun- sel's contentions. With respect to Respondent's asserted economic reasons for the lay- offs of September 29, 1961, at no time did Moritz testify that his deci- sion to cut back manpower was influenced or necessitated by an anticipated or experienced drop in business.' Although Tawney, Moritz' assistant, testified that at this time they were at the point of operating with excess personnel due to a slowup in business, he did not relate this factor to the decision to institute the layoff, a decision in which he took no part, but rather to the selection of the employees to be laid off. Indeed, other testimony by Respondent's witnesses indi- cates that there was no substantial change in business activity and the layoffs in fact caused some dislocation and operating difficulties. Thus, Tawney testified that right up through the time of the layoff his drivers, including those in the ready-mix and sand departments af- fected by the layoffs, were working an average of 55 hours a week on a 5-day week basis. Moritz testified that the drivers were working 11 to 15 hours a week overtime right through the layoff; that during the layoff other drivers were used on the ready-mix trucks; and that they had to take as drivers employees from other departments, including some mechanics, to keep the ready-mix trucks moving with scheduled orders. In this connection, it is noted that Respondent attempted to establish by testimony that the sand department was an unprofitable operation which was merely an accommodation to customers and that it was eliminated by turning those orders over to a "sand company," thus saving the expenses involved. However, the same witnesses gave contradictory testimony indicating that the sand department was not in fact eliminated, that one of the laborers with less seniority than those employees who were laid off was used to drive the sand truck after the layoff, and that orders were piling up to such an extent that Mc- Knight was recalled about a month later to his old job driving the sand truck. From such evidence, we can only conclude that Respondent did not base its decision to institute a layoff upon any economic necessity related to any anticipated or experienced drop in business. The sole economic consideration claimed by Moritz as the reason for his determination to institute the layoff was the wage increase, 1 The only reference made by Moritz to such economic considerations was advanced as a factor in selecting the employees to be laid off. In this respect he indicated without specification that his selection was influenced by the anticipated business in the several departments. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which employees had demanded by their concerted activities, and which Moritz concurrently decided to grant, in part. In support of this defense, Respondent offered in evidence the letter of September 22, 1961, from Respondent's president to Manager Moritz, set forth in the Intermediate Report. Moritz, who alone made the simultaneous decisions to grant wage increases and to institute the layoff, claims to have made his decision based upon this letter.' While there are some ambiguities in the letter,' it is clear that when the various phrases used are read in their context, the letter expressed the objective of maintaining the required profit ratio at the operation involved and cautioned as to possible steps to be considered in order to maintain that ratio in the event the maximum raise demanded by the employees was granted. It is obvious that Moritz had no clear directive to cut back on personnel, nor did he have to grant the 15 cents maximum authorized. Moreover, the letter does not establish as an economic fact that the granting of the full 15 cents demanded or any part thereof would necessarily result in an unfavorable profit ratio for the operation. Furthermore, Moritz testified that he had previously requested and received authority to grant a general overall 5-cent per hour increase and had held the authorization for this wage increase "in his pocket," making no disclosure thereof, since September 14, 1961, well before the walkout. He did not indicate that there was any economic reason for his withholding of this authorized increase of pay; that there was none is suggested by the fact that it was not authorized pursuant to any particular employee demand, but was the result of a management appraisal after Moritz' representation to Respondent's officers that his crew was cooperating and merited the raise. However, the fact that Moritz has this authorization "in his pocket" at the time of the employees' demand and when he received his president's letter relating to those demands has a specific bearing upon the economic facts before him when he decided upon the layoff. For, even had he granted the full 15 cents demanded, 10 cents thereof would be all that could have 2 The letter itself vests final decision on these matters in Moritz On the Monday following its receipt , Moritz advised his assistant , Tawney, of his decision to grant raises and to cut back on manpower. Tawney testified that he was not consulted on whether to grant the wage increases and was not advised of the amount of increase Moritz had de- cided to give . Nor was he consulted as to whether or not a layoff was necessary and, if so, how many employees would have to go . He was merely instructed to make a list of six possibilities for the anticipated layoff. 8 While this letter left the determination as to whether circumstances made it necessary to meet the full demand of the employees to Moritz ' "discretion in regard to the matter," It went on to point out that "under such circumstances [i.e., "a general increase of 15¢ per hour for all drivers"], your operation will not be subject to making the necessary profit, and as a result, it will probably be necessary that you give consideration to cutting down manpower " Whether "manpower" refers to man-hours worked or number of em- ployees on the payroll and whether "not be subject to" conveys the meaning of an exemp- tion or failure to meet a requirement, are ambiguities in the letter , the resolution of which are irrelevant to the issue of whether a clear economic necessity for a layoff was stated thereby. BURNUP AND SIMS, INC. 769 been considered as having a new economic impact under the authoriza- tion letter. But Moritz did not grant the requested 15 cents per hour to all truckdrivers. He testified that he decided to and did grant a general increase ranging between 5 cents and 15 cents to all employees at the operation, approximating 50 in number, and that of the 19 truck- drivers, 9 received 15 cents; 4 received 10 cents, and 6 received 5 cents. Thus, much of the actual increase granted was chargeable directly to the previously authorized raises, and only a small part could be prop- erly included in any calculation of the effect of any raises upon the profit ratio. Although Respondent purports to rely upon the lower profits for the operation, resulting from the raises, it has presented no figures whatsoever relating the cost of the raises to the profit ratio required or establishing the alleged economic necessity to cut costs, and no attempt was made to show why a layoff was considered as preferable to other economic measures 4 This lends weight to the conclusion that Re- spondent had no such concrete economic considerations upon which it based its determination to layoff precisely three employees-the very ones, who by stepping forward, or by other prominent action, identified themselves before both Respondent and other employees as the leaders in the concerted activity. It is therefore clear from the testimony of Respondent's own wit- nesses that the only consideration involved in instituting the layoff was the fact rather than the effect of the wage increases resulting from the employees' concerted demands. This was dramatized by Respondent's timing of the layoff on the eve of the effective date of the raise. Further Respondent's resentment and disapproval of employ- ees' concerted activity is clearly demonstrated by Moritz' conduct in calling the drivers, who received the October 1 raises, individually into his office in the presence of Respondent's president. One of these drivers testified without contradiction that Moritz took this occasion to advise him that the employees went about getting the raise in the wrong manner and that he, Moritz, would not stand before the group 'It is interesting and perhaps enlightening to note that such other methods were not foreign to Respondent. Thus, on the morning of September 20, when the assembled em- ployees first presented their demand for a 15-cent per hour wage increase to Tawney, his response was to point out to the employees that economically he could grant them their request and cut them back to 40 hours a week by hiring 10 additional employees and eliminating their overtime. He thus pointed out to the employees the economies for the employer which would result with the same man-hours worked but with overtime elimi- nated At that time the employees indicated their willingness to accept this solution, but expressed a doubt as to whether the elimination of overtime could be maintained. Interestingly, a simple mathematical calculation discloses the economies to which Tawney alluded . For, presuming a curtailment of business commensurate with the man- hours worked by three men, Respondent could have granted the full 15-cent per hour- raise to all drivers, cut their overtime in half, and would have thereby received more man-hours worked on a smaller total payroll than would be the case by maintaining the- same overtime and laying off three men, as it did. 649856-63-vol. 137-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of men in that manner again. The Trial Examiner made no mention of and apparently ignored this evidence bearing upon Respondent's motive. Thus, all events immediately preceding and following the layoff, including the continued overtime, belie a defense of economic necessity. On the contrary, we are persuaded that the handling of the layoff by the Respondent, looked at in totality, shows that its motive was to emphasize to its employees the danger of collective action and to discourage them from engaging in such protected concerted activity in the future. Moreover, even assuming arguendo that economic objective is a proper label for Respondent's conduct, and that without assertion of a necessity therefor, Respondent could claim as a defense an affirma- tive desire to maintain a specific profit ratio from the operation and to bear none of the cost of its employees' economic demands, it is ap- parent from the foregoing that Respondent did not approach the matter with a view to accomplishing the best possible financial results. Rather, Respondent sought to place the burden of the added expense directly upon the shoulders of those whom it identified as the leaders of the walkout, thus making it clear that an equal, if not dominant, motive in determining to institute a layoff was direct retaliation for the employees' concerted activity. We can only conclude, therefore, that the layoff was not motivated, as Respondent contends, by economic exigencies, but that the financial effect of the wage increases was used as a pretext for a retaliatory layoff designed to discourage protected concerted activity.' By thus instituting the layoff, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7, in violation of Section 8 (a) (1) of the Act. Finally, even assuming that economic considerations warranted a layoff, Respondent's selections therefor were in themselves discrimi- natory in nature. The three men who had openly conducted the concerted activity of demanding the raises were told that they were being laid off because of the cost of those impending raises s At the time of their terminations, Respondent failed and refused to give the basis for their selection as the persons to be laid off, but instead gave an equivocal answer to Davis' inquiry as to whether seniority had been followed. The reasons offered at the hearing by Respondent's agents for selecting these three men for layoff lack credulity in view of the inconsistencies in the evidence advanced in support thereof,' 5 See Elks and Watts Products, Inc , 130 NLRB 1216. 9 Respondent's witnesses testified that Davis and McKnight were told that "because of the cost of the pay raise and a drop in business they were being laid off," and that Harmon was told that "a cutback was necessitated by the cost of the raise and slow business " 7 At the hearing, Respondent's witnesses gave various reasons for its selection of the employees involved, in the course of which many contradictions appear. Thus, although in the past it has used seniority as a guide, it was denied that this was a consideration here, but it was then asserted that it was on the basis of relative seniority that six, some- BURNUP AND SIMS, INC. 771 and the speciousness of these various and diverse reasons takes on added significance when viewed in light of the entire record. Accordingly, we find that the selection for layoff of only the leaders of the concerted activity, when considered in connection with the demonstrably false reasons advanced for their selection, leads to the inescapable conclusion that the dismissals were in fact made for rea- sons proscribed by the Acts We find, therefore, that Respondent, in laying off Davis, Harmon, and McKnight, discriminated against them because of their concerted activity in violation of Section 8(a) (1) of the Act.' 2. By identical letters dated November 8, 1961, Respondent served notice upon Davis and Harmon 10 that they were no longer employ- able by the company, thereby converting their layoff into a perma- nent discharge. The reason given in the letter for such action was certain alleged misconduct vaguely referred to therein.tl Respondent claims to have received information from employee Pate that Davis and Harmon committed the alleged misconduct while they were en- gaged in union membership solicitation. It made no effort to investi- gate the matter further, but issued the dismissal letters relying solely upon an affidavit supplied by Pate covering the matters previously reported. Respondent's position is that its reliance upon this informa- tion absolved it of any liability arising from the discharges effectuated by the letters. Evidence presented by Respondent in support of its position con- sisted of testimony by Tawney to the effect that employee Pate re- ported to him the remarks referred to 12 and further reported that they times five, sometimes seven, names were considered . Of these maximum of seven, the three selected were the senior , and admittedly there were three or four other employees with less seniority who were not even considered . Seniority aside, it is asserted that these three were not "hustlers," whereas, presumably , all others were. Yet each of the three had been granted raises within their relatively short tenure of employment, Harmon re- ceiving one on the occasion of his transfer from the block department into ready-mix, allegedly because of his inability to do the work there. In addition it is admitted that, while working in the ready-mix department , Harmon's work was complimented by Moritz on several occasions . We have already noted that the alleged discontinuation of the sand department , in which McKnight worked, was contradicted by Respondent' s own witnesses, and their allusion to a drop in business in the ready-mix department is refuted by the admitted necessity of assigning employees from other departments to operate the ready- mix trucks. s See Ablon Poultry & Egg Company, 134 NLRB 827 ; Layton Oil Company, 128 NLRB 252. Also see Central Freight Lines, Inc., 133 NLRB 393 (IR ) ; Donald L. Trettenero and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co., 129 NLRB 610, 612. 9 See Gibbs Corporation, 131 NLRB 955, footnote 1; Sherry Manufacturing Company, Inc., 128 NLRB 739. Cf. Indiana Gas & Chemical Corporation , 130 NLRB 1488. 30 We find, in agreement with the Trial Examiner , that McKnight was recalled and sub- sequently discharged and that no unlawful conduct in connection therewith has been established. n "It has come to my attention that you made or condoned serious threats to damage property of the Company should the Union fail to win its election. Under such circum- stances, I cannot re-employ you with our company." 12According to Pate's affidavit "if the Union doesn't get in, we're going to use some dynamite to make sure that those who didn't vote for it won't work either ; we'll blow the gravel bin over and make sure that no one works." Tawney's version of what they are reported as having said differs in content but expresses a similar idea. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were made on the occasion when Davis and Harmon, together, visited Pate's home for the purpose of soliciting union membership and au- thorization cards. Respondent also introduced as evidence upon which it based its actions the affidavit of employee Pate. The affidavit spe- cifically was not offered to establish the truth or falsity of the state- ments contained therein. Nor did Respondent have Pate testify with respect thereto or make any attempt otherwise to prove the truth of the allegations in Pate's affidavit and report upon which it relied. On the other hand, record evidence establishes that both Davis and Harmon were actively engaged in efforts to organize Respondent's employees on behalf of the Union after their layoff; that in the course of such activity they did individually call upon employees in their homes; that they did not, however, call upon Pate together. Both Davis and Harmon categorically denied making the same or any similar remark as those attributed to one of them," and denied being in the presence of and hearing any similar remark allegedly uttered by the other. Their testimony in this respect is uncontradicted as Pate did not testify, and, as noted, no effort was made to establish the truth of his affidavit. Therefore, the General Counsel has presented uncon- tradicted evidence establishing that Pate's report of a threat is false and that Davis and Harmon did not engage in the alleged misconduct. On the basis of the evidence presented by the General Counsel, and the entire record before us, we can only conclude, and hereby find, that Davis and Harmon did not engage in the alleged misconduct. - While assuming no misconduct, the Trial Examiner, nevertheless, having held that the layoffs were not unlawful, rejected the General Counsel's argument that the doctrine of Rubin Bros. Footwear, Inc., et al.14 was applicable here. He found that Respondent had an honest belief that Davis and Harmon had engaged in the alleged misconduct and that this was sufficient defense to the discharges in the circum- stances, and therefore its conduct was not unlawful. Moreover, the Trial Examiner concluded that even though Pate's report revealed to Respondent that Davis and Harmon were engaging in protected union activity, the evidence adduced was insufficient to establish that Re- spondent issued the letters of dismissal "because of their concerted or union activities." We do not agree with these conclusions. The Rubin Bros. doctrine establishes that when, in the course of protected activity, employees are accused of misconduct and a respondent takes action affecting their employment tenure based on a belief that the employee has engaged in misconduct, such an honest belief would be an adequate defense to a charge of discrimination for refusing to "The dismissal letters do not disclose which of the two was reported to have made the remark and which condoned it. Respondent's own evidence , as noted by the Trial Examiner, conflicts in this respect wtah Tawney testifying that Pate reported to him that it was Harmon and with Pate's affidavit stating it was Davis. 14 99 NLRB 610 BURNUP AND SIMS, INC. 773 reinstate such employee unless it affirmatively appears that such mis- conduct did not in fact occur. As noted above, such affirmative proof is present here. Accordingly, Respondent's conduct in changing their status from that of layoff to a permanent discharge was not defensible on the basis urged. It is undisputed, and Respondent knew, that the alleged misconduct was asserted to have taken place while Davis and Harmon were en- gaged in protected union activity, the solicitation of union member- ship and authorization cards. In view of this knowledge and the fact that these employees were laid off discriminatorily because of Re- spondent's desire to rid itself of employees who it knew were leaders in the protected concerted activity, we can only conclude that, because of their union activity, Respondent seized up their purported miscon- duct as an excuse to convert the layoffs of Davis and Harmon into discharges. The preponderance of all the relevant evidence amply supports the ultimate conclusion sustaining the complaint. Accord- ingly, we find that Respondent, by the discharge of Davis and Harmon on November 8, 1961, because of their union activity, violated Sec- tion8(a) (3) and (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth herein above and in the attached Intermediate Report, occurring in connection with its opera- tions as described in the Intermediate Report, 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 ob- structing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. We shall also order that Respondent make each of the above-named employees whole for any loss of pay he may have suf- fered, because of Respondent's unlawful and discriminatory actions, by payment to each of them a sum of money he would normally have earned as wages from the date of such discrimination to the date of an offer of reinstatement, less his net earnings during said period.15 The backpay will be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Because McKnight has since been recalled and thereafter discharged for cause, we shall not order his reinstatement but shall direct that backpay be awarded to the date of his recall. 'GA. P. W Products Co., Inc, 137 NLRB 25 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Burnup and Sims, Inc., is engaged in, and during all times material was engaged in , commerce or in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 172, Airlines Supply Technicians, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the mean- ing of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Robert J. Davis, Joseph H. Harmon, and John P. McKnight, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respond- ent 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 affecting commerce within the meaning of Section 2(6) and (7) of the Act. 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 Respondent, Burnup and Sims, Inc., West Palm Beach, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Laying off, discharging, or otherwise discriminating against its employees for engaging in concerted activities for their mutual aid or protection. (b) Discouraging membership in Local Union No. 172, Airlines Supply Technicians, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, by discharging employ- ees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectiveliy through a representative 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 of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : BURNUP AND SIMS, INC. 775 (a) Offer to Robert J. Davis and Joseph H. Harmon immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make whole said employees, and John P. McKnight, for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section above entitled "The Remedy." (b) Post at its offices and plants in Melbourne, Eau Gallie, and Cocoa, Florida, copies of the notice attached hereto marked "Appen- dix." 18 Copies of said notice to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by Respond- ent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) 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 records and reports necessary to determine the amounts of backpay due under the terms of this Order. (d) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 30 In the event that this Order is enforced by a decree of a United States Court of Appals , 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." APPENDIX 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 our employees that : WE WILL NOT lay off, discharge, or otherwise discriminate against our employees for engaging in concerted activities for their mutual aid or protection. WE WILL NOT discourage membership in Local Union No. 172, Airlines Supply Technicians, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America, or in any other labor organization of our em- ployees, by discharging our employees or otherwise discriminat- ing in regard to their hire or tenure of employment or the terms or conditions of employment. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer to Robert J. Davis and Joseph H. Harmon im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and we will make them and John P. McKnight whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, 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. BURNUP AND SIMS, INCORPORATED, 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. Employees may communicate directly with the Board's Regional Office, Ross Building, 112 East Cass Street, Tampa 2, Florida, Tele- phone Number 223-4623, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDATIONS STATEMENT OF THE CASE Upon the basis of a charge filed October 3, 1961, a complaint in this matter issued on November 8, 1961, alleging violations of Section 8(a)(1) and (3) of the Na tional Labor Relations Act, as amended, herein called the Act. The complaint is predicated on the discharge of three individuals (Robert J. Davis, Joseph H. Harmon, and John P. McKnight). On or about November 16, 1961, Burnup and Sims, Inc.,' Respondent herein, filed an answer denying that it had engaged in the unfair labor practices alleged. A hearing on the issues thus framed was held before me, Albert P. Wheatley, the duly designated Trial Examiner, in Cocoa Beach, Florida, on Decem- ber 12, 13, and 14, 1961. At the close of the hearing the parties waived oral argu- ment and announced intentions to file briefs. Thereafter, on January 22, 1962, Re- spondent filed a brief which I have considered in the preparation of this report. No other briefs have been filed. Upon the entire record and observations of witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS INVOLVED Respondent maintains its principal office in West Palm Beach, Florida, and plants in Melbourne, Eau Gallie, and Cocoa, Florida, where it is engaged in the manu- facture, sale, and installation of concrete, concrete blocks, ready-mixed concrete, and other related products. Respondent admits that during the last 12 months it purchased and received goods and materials valued in excess of $50,000 directly from outside the State of Florida, and that during the same period it performed services valued in excess of $50,000 I The name appears as amended at the hearing BURNUP AND SIMS, INC. 777 directly for an employer who is in turn an instrumentality of commerce and engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Upon the basis of the foregoing facts, I find and conclude that Respondent is en- gaged in commerce or in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Local Union No. 172, Airline Supply Technicians, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. FACTS Following the close of work on September 20, 1961, approximately 19 of the employees at Respondent's Melbourne plant (mostly truckdrivers) held a meeting in the vicinity of the plant and discussed wages At this meeting, it was decided that the employees would seek a 15-cent per hour wage increase the next day and that Robert J. Davis would act as spokesman for the employees. The next morning, September 21, X1961, the employees assembled at the Melbourne plant and awaited the arrival of company officials. Doyle Tawney, the plant super- intendent, was the first official to arrive and upon his arrival he inquired as to what was going on. In response to Tawney's request for someone to speak for the group, Robert J. Davis presented a demand for pay increases of 15 cents per hour. After explaining that business at the time would not justify such an increase and indicating that other changes might be necessary to give one, Tawney left the group. Shortly thereafter, Carl Moritz, manager of the Melbourne plant, arrived and, upon being advised of the situation by Tawney, requested that the men be assembled in the warehouse a short distance away. A meeting in the warehouse took place immedi- ately ,thereafter. At the meeting in the warehouse (on September 21, 1961) Davis again acted as spokesman for the employees and again sought a,15-cent per hour increase. There is conflicting evidence as to whether at this time Joseph H. Harmon singled himself out as being aligned with Davis.z On the basis of observations of witnesses and analysis of the entire record, I believe and find that Harmon did conspicuously align himself with Davis. Davis and Moritz discussed this wage increase demand but the meeting ended without the parties coming to an agreement. At the conclusion of the meeting Moritz asked the employees to return to work, but the employees did not do so. Instead they assembled in an area in front of the warehouse and continued to discuss the matter. While the employees were talking among themselves in the area in front of the warehouse, Davis and McKnight left Respondent's premises and attempted to contact a union representative. The attempt was not successful and Davis and McKnight then returned to Respondent's premises. Moritz was addressing the employees who were still assembled in the area in front of the warehouse. In Davis' absence several employees, including Harmon, asked questions concerning wage increases. When Davis and McKnight arrived, Davis again took the leading part in trying to get wage increases. Shortly thereafter the men returned to work after being assured by Moritz that wage increases would be forthcoming within 30 days. That evening Moritz asked McKnight "Johnny would you have gone through with what you started this morning?" McKnight responded by asking Moritz if he (Moritz) meant the walkout and Moritz said "Yes." McKnight then told Moritz, "Yes, my father told me once I made my play to follow it through and I had made my play." 3 The men returned to work about 10 o'clock. By noon that day Moritz had tele- phoned Respondent's office in West Palm Beach and reported to Respondent's presi- dent, Russell J. Burnup, the events outlined above. Russell Burnup told Moritz he 2 Davis, Harmon, and McKnight testified that he did Moritz first testified lie could not recall whether Harmon stepped out of the group to join Davis. Later he testified that Harmon did not "take a step" to join Davis. Sherman Franks testified that Davis was the spokesman for the employee group and Q Was anyone else standing up with him when they talked with Mr. Moritz in the warehouse'? A. All of us were standing there Franks was not asked specifically whether Harmon was conspicuous at this meeting. 8 Moritz did not recall McKnight making reference to his father but did testify that McKnight gave an affirmative answer to his (Moritz') question 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Burnup) would consider the matter and advise him (Moritz ) what he "should do about the situation ." By letter dated September 22, 1961 , Russell Burnup advised Moritz: DEAR CARL: Certainly was surprised and somewhat concerned by the report of the incident this a.m., that your drivers had staged a mass walk-out. It is our understanding that they have requested a general increase of 15¢ per hour for all drivers . We feel this demand is exorbitant , but if necessary, we believe it advisable that you use your own discretion in regard to the matter. May we also call your attention to the fact that under such circumstances your operation will not be subject to making the necessary profit, and as a result it will probably be necessary that you give consideration to cutting down man- power. Please make it clearly understood among the employees that a wage increase merits an improvement in cooperation on their part. Actually, we do not feel that you should authorize a general overall 15¢ per hour wage increase, as all employees do not have the same qualifications and capabilities . However, as you are on the ground floor, and are fully familiar with all the phases of this matter, we will leave it to your discretion. Very truly yours, On September 22, 1961, Davis contacted the president and the vice president of the Union involved herein (Local Union No. 172) and was told to find out whether a substantial number of employees were interested in Local 172. On Monday, September 25, 1961 , Moritz informed Tawney that he (Moritz) was going to grant pay increases (they were made effective October 1 , 1961), and that he "would have to figure a way to cut back " 4 and asked Tawney for a list of employees to be considered for layoff. On Monday and Tuesday (September 25 and 26, 1961 ), Moritz and Tawney considered for layoff seven of Respondent's relatively new employees . (Wills, a block-truck driver ; Yeager, a ready-mix driver ; Richardson, a warehouseman; Hensley, a block-truck driver; Davis, a ready-mix driver ; Harmon, a ready-mix driver; and McKnight, a sand-truck driver ) .5 They attempted to find a basis of comparison among a number of junior employees to determine which to lay off. In considering Wills, Moritz initially favored letting him go, while Tawney recommended keeping him. It was decided to keep him in spite of his junior status because he "could really deliver concrete block, was back and forth in a hurry and did a darn good job delivering them." Yeager was removed from consideration in spite of Tawney's feeling that he should go because Moritz felt "sorry for the guy"-he was known by Moritz to be in serious financial trouble and to be ill with a work-connected infection and to owe Respondent money. Moritz initially favored letting Richardson go but deferred to Tawney's view on him. Richardson was recognized as part of a productive team in the warehouse, a department where no decline in business was anticipated , and Tawney did not want to meddle with it (break up the team ) while they continued to produce. It was decided to keep Hensley in view of the department in which he worked and his good work. Hensley drove one of two block trucks in the warehouse. Wills drove the other. When considering Davis, it was noted by both Moritz and Tawney that he was prone to take advantage of opportunities to loaf. Harmon, an employee who had already been transferred from the block depart- ment because of his inability to do the work there, was noted as having slowed down after having worked in the ready -mix department, one of the departments deter- mined to be overstaffed. In discussing McKnight it was brought out that he (McKnight) was frequently observed "standing around the coke room ." An additional consideration in McKnight's case was that the sand department in which he was working "was not a profitable thing, it was more an accommodation to the customers than anything else," and that turning sand orders over to a sand company would eliminate expenses involved in handling sand. In fact, this "particular chore" was turned "over to a sand company." In their consideration of the above -named individuals for layoff Moritz and Tawney did not discuss the employees' concerted or union activity or the walkout. 'As noted above the letter authorizing pay increases also instructed Moritz to give consideration to cutting down of manpower In addition, Respondent at this time was "at the point of operating with excess personnel due to a slowup in business " 5 Other relatively new employees , employed as laborers, were not considered. BURNUP AND SIMS, INC. 779 Late on Wednesday, September 27, 1961, Moritz decided to lay off Davis, Harmon, and McKnight. However, the layoffs were not actually made until September 29, because Moritz did not get an opportunity to have their final paychecks made up prior to that date. The first meeting between union officials and a group of Respondent's employees took place during the evening of September 28, 1961, at the union hall in Eau Gallic, Florida. Approximately 15 of Respondent's employees, including Davis and McKnight, attended this meeting. At the meeting the Union for the first time obtained signatures to union authorization cards. The first layoffs took place at the close of the workday on Friday, September 29, 1961. At that time, Moritz summoned Davis and McKnight to his warehouse office. Tawney, their immediate supervisor, was at this meeting, as was Yvonne Burney, Respondent's bookkeeper, who works in the warehouse office. After Davis' and McKnight's arrival, Moritz advised them that because of the cost of the pay raise and a drop in business he was laying them off. He further stated that if business picked up, they would be considered for reemployment. At this time, Moritz gave both employees an extra check to carry them for several days.6 Superintendent Tawney testified that around the middle of October 1961, Lyle Pate, one of Respondent's mechanics, told him (Tawney) that on the preceding night Davis and Harmon had come to his (Pate's) house to try to get him to join the Union and that during the course of the conversation he (Pate) was told "that if they didn't get their jobs back, if the Union didn't get in, it would be fixed so no one could work" by dynamiting Respondent's sand silos. Tawney immediately reported this conversation (the conversation between Tawney and Pate) to Moritz. After commenting, "well, now we have really got trouble," Moritz contacted Re- spondent's counsel. On October 25, 1961, following the arrival of Respondent's counsel at the plant, Pate was interrogated about this matter and gave Respondent a notarized document stating inter alza- Towards the end of the talk [on or about October 13, 1961], Davis said: "If the Union doesn't get in, we're going to use some dynamite to make sure that those who didn't vote for it won't work either; we'll blow the gravel bin over and make sure that no one works." Harmon was right there at that time, but didn't add anything to Davis' statement. It is noted that Tawney testified that Pate (at the conference where his notarized statement was drawn) attributed the remarks about dynamiting to Harmon, whereas the written statement attributes these remarks to Davis. Pate was not called as a witness in this proceeding. By letter dated November 8, 1961, Respondent advised Davis and Harmon that: When you were laid-off on September 29, 1961, it was with the understanding that business in your particular job was slow and that you would have "first call" on any job that came available once business picked up. Business is now picking up, but I regret to advise you that I can not re-employ you. It has come to my attention that you made or condoned serious threats to damage property of the Company should the Union fail to win its election. Under such circumstances, I can not re-employ you with our company. Very truly yours, Neither Davis nor Harmon made any attempt to contact Respondent concerning the allegations contained in the letter quoted above. At the hearing, herein, Harmon testified that on October 11, 1961, he called upon Pate at his (Pate's) house and ob- tained his (Pate's) signature upon a union card. He testified further that this was the only time he called upon Pate at his home and that at this time he (Harmon) was alone. Harmon denied that he ever threatened to damage company property or that he was ever in the presence of anyone who did. Davis denied that he had ever been to Pate's house, that he threatened "to dynamite some sand silos," and that Harmon made such a threat in his presence. As noted above, Pate did not testify herein. Davis testified that on or about November 17, 1961, he met Walter Burnup, son of Respondent's president who was in training at the Melbourne plant for a man- The testimony of the various witnesses concerning this meeting varies with respect to details, but is in accord concerning substance except that Davis and McKnight deny that they were told that one of the reasons for the layoff was a drop in business and deny that they were told that they would be considered for reemployment if things picked up. In the light of the entire record here and on the basis of observations of witnesses, I do not credit their denials. I find the facts to be as set forth above 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agement position and whose interests are more identifiable with Respondent than with Respondent's employees, in a bar and they discussed the pros and cons of unionism. After considerable prompting by the General Counsel, Davis testified that Burnup indicated he (Davis) had been laid off for leading the walkout. Burnup testified that he recalled the conversation, that he and Davis argued the relative merits of unionism, and that during the discussion Davis indicated he (Davis) thought he had been laid off for leading the walkout and he (Burnup) told Davis he (Burnup) "didn't think they would let him go for that reason," although he (Burnup) thought Davis was wrong in leading the walkout. On the basis of obser- vations of witnesses and analysis of the record herein, I believe Burnup's version of this conversation more reliable than that given by Davis and credit Burnup's version. Upon his return from a delivery at the close of business on September 29, 1961. Harmon was laid off by Moritz. Moritz told Harmon that a cutback was necessitated by the cost of the raise and slow business, and that he was being laid off. There is sharp conflict as to whether Harmon was told he would be considered for reemploy- ment if business picked up. Harmon testified he inquired about this matter and was told he would not be considered. Moritz and Tawney, who was present during the conversation, testified that Harmon was assured that he would be one of the first to be considered. In the light of the entire record and on the basis of observa- tions of witnesses, I credit the testimony of Moritz and Tawney concerning this matter. Harmon also was given an extra check to carry him for several days. Tawney testified, without contradiction, that approximately 1 month after the layoffs of September 29 business started to pick up and that he reported this matter to Moritz and asked for more help. Moritz stated "Well, let's get McKnight." Tawney thereupon contacted McKnight and made arrangements for him to return to work for Respondent. Upon his return (on or about November 6, 1961), Mc- Knight was assigned to drive the sand truck as he had done prior to his layoff. At the same time he was given a wage increase. The day after his return to work, Tawney asked McKnight how he and "Jimmy Hoffa" were getting along and said "I hear you was talking up Union yesterday on your first day back." McKnight told Tawney he was not talking about the Union on company time and Tawney replied "Well, I heard you was and I also heard that you thought you were getting [a bad deal] around here." McKnight admitted that he anticipated a "bad deal," but that such had not occurred and Tawney then said "If you do, if anybody tries to pull anything on you, you let me know about it and I'll try to straighten the matter out." McKnight later acknowledged that "no one picked on" him until he broke the axle leading to his discharge on November 29, 1961. On either his first or second day back at work, McKnight broke an axle on the truck he was driving. No action was taken against him, however, as Dick Burney, the garage foreman, advised Tawney that the broken axle was probably not McKnight's fault and that it was probably an unavoidable accident. On November 29, 1961, McKnight again broke an axle on the truck he was driving. On this occasion the mechanic, Gregory Lehman, who had gone to the site of the damaged truck, observed the truck was "bogged down" and buried to the axle hous- ing and that the tracks in the sand indicated that the truck had been rocked back and forth in an effort to free it-a direct violation of Respondent's instructions to its truckdrivers. Lehman conveyed this information to Garage Foreman Burney, who in turn conveyed it to Superintendent Tawney, who in turn related it to Moritz. That evening McKnight was summoned to Moritz' office and discharged. He was told he was being discharged for abuse of equipment. According to McKnight, at the time of his discharge he claimed the breaking of the axle was not his fault. Moritz and Tawney testified McKnight did not offer any explanation for the broken axle Otherwise the various versions of the discharge conversation are substantially the same. A resolution of this conflict does not appear necessary, and is not made herein because under all versions McKnight was told he was being discharged for abuse of equipment. Conclusions The General Counsel contends that the terminations of employment of Davis, Harmon, and McKnight on September 29, 1961, were discriminatory discharges, that the entire record herein reveals that they were not temporary layoffs-as con- tended by Respondent-and that the congeries of the evidence reveals that these terminations were not for the reasons asserted by Respondent-on account of eco- nomic conditions-but because of the concerted or union activities of Davis, Harmon, and McKnight. Apparently, it is the General Counsel's theory that a substantial number of Re- spondent's employees engaged in a walkout and attempted to organize a union and that the leaders of this movement were discharged because of this activity. BURNUP AND SIMS, INC. 781 There is no doubt herein that the walkout did, in fact, take place and that Re- spondent had knowledge of it. Also, the facts found above reveal that Davis, Har- mon, and McKnight were "leaders" during this movement and that Respondent was aware of this fact. Respondent concedes that it was aware of Davis' leadership, but denies knowledge of the leadership by Harmon and McKnight. The facts found above belie this position. With regard to union activities as opposed to the con- certed activity of the walkout, there is no evidence that Respondent was aware of any such activity prior to September 29, 1961. The record does reveal that through a report by employee Pate, Respondent was aware of union activity by Davis and Harmon during October 1961. The record further reveals that after McKnight's return to work Respondent was aware of his union activity but the same evidence reveals that Respondent was not disturbed about his union activity so long as it was not on company time, and that Respondent was anxious that McKnight not suffer any retaliation because of his participation in the walkout or in union activities. The only evidence indicating that Respondent bore any animosity toward Davis, Harmon, and McKnight is the fact that the services of these individuals were ter- minated while persons with less seniority were retained and the fact that only the services of these three were terminated. I believe, find, and conclude that this is not enough to warrant rejection of Respondent's contention that the terminations on September 29, 1961, were temporary layoffs made on account of economic rea- sons and that the persons selected for layoff were picked because they had exhibited a tendency to be noncooperative and Respondent could more readily do without their services than without the services of those retained.? The lack of discriminatory motivation in making the layoffs is further substan- tiated by Respondent's subsequent recall of McKnight on or about November 6, 1961. See Mississippi Products, Inc., 103 NLRB 1388, 1405. The General Counsel con- tends, however, that McKnight was reinstated in bad faith. The facts found above belie this contention. Not only was McKnight given the exact same job which he had had before the layoff and given the raise which had been instituted in his absence, but Tawney advised him that in the event of any trouble, he would "try to straighten the matter out." Had Respondent been out to "get" McKnight, as the General Counsel contends, by seizing upon the first mistake which he made, Respondent would not have had to wait the month out. McKnight gave Respondent an opportunity on his first or second day back when he broke an axle. Respondent gave him the benefit of the doubt and took no action. The General Counsel con- tends further that McKnight's subsequent discharge was discriminatorily motivated but here again the facts found belie this contention. The record reveals that con- trary to instructions McKnight "bulldozed" his truck rather than call for help and in doing so broke an axle and that he was discharged for this abuse of equipment. As noted above, Respondent, relying upon a report from employee Pate that Davis and Harmon had engaged in postlayoff conduct of a disloyal nature-a report that Davis and/or Harmon had threatened to damage company property-in- formed Davis and Harmon that because of such conduct they thereby forfeited their right to reinstatement. The General Counsel relying upon the doctrine of Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, and the evidence that such mis- conduct did not in fact occur, contends that Respondent seized upon Pate's report to get rid of Davis and Harmon and that this is a pretext situation indicating that the September 29, 1961, terminations were not for the reasons assigned by the Respondent. There is no contention herein that, assuming that the September 29, 1961, layoffs were not unlawful, the letter to Davis and Harmon dated November 8, 1961 (quoted above), converted the layoffs to unlawful discharges as of Novem- ber 8, 1961. Leaving aside for the moment the question of whether Davis and Harmon actually made the statements or engaged in the conduct attributed to them, the record reveals that Respondent had an honest belief that they had engaged in misconduct Assum- ing that Davis and Harmon did not in fact engage in misconduct, the evidence ad- duced is nevertheless insufficient to establish, by inference or otherwise, that Respond- ent was out to get them because of their concerted or union activities. Of course, Pate's report to Respondent revealed, in addition to the alleged misconduct, that at the time Davis and Harmon were engaging in activity protected by the Act-were seeking Pate's signature to a union card-but there is no evidence that Respondent resented this activity. As previously noted, the only indication that Respondent bore any animosity toward the individuals involved herein is the fact that they and only 4 The evidence adduced is not sufficient to warrant a finding that in considering specific individuals for layoff Respondent deliberately attempted to find reasons to terminate Davis, Harmon, and McKnight 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were terminated. Also, as previously noted, when McKnight was reinstated Respondent indicated a lack of resentment against union activity so long as it was carried on properly. Under these circumstances, it is believed that the Rubin Bros. doctrine is not applicable. Accordingly, I reject the General Counsel's contention. CONCLUSIONS OF LAW 1. Burnup and Sims, Inc., is engaged in, and during all times material was engaged in, commerce or in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 172, Airline Supply Technicians, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not discriminate against Robert J. Davis, Joseph H. Harmon, and John P. McKnight in violation of Section 8(a)(1) and (3) of the Act, as alleged in the complaint herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the complaint in this matter be dismissed in its entirety. Portland Stereotypers' and Electrotypers' Union No. 48 and International Stereotypers' and Electrotypers' Union of North America, AFL-CIO and Journal Publishing Co. and Oregonian Publishing Co. Case No. 36-CB-244. June 05, 1962 DECISION AND ORDER On October 18, 1960, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Inter- mediate Report attached hereto. Thereafter, the Respondents, the Charging Parties, and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. On April 17, 1961, the Supreme Court of the United States issued its decisions in N.L.R.B. v. News Syndicate Company, Inc., and other cases involving matters possibly relevant to this case,' and thereafter the Respondents and the Charging Parties filed supplemental briefs in the light of those decisions 2 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 Inter- 1 N L R.B. v. News Syndicate Company, Inc. and New York Mailers' Union No. 6, Inter- national Typographical Union, AFL-CIO, 365 U.S. 695; Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical Handling Systems) v. NL.R.B., 365 U.S. 651; Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U S. 667; International Typographical Union, AFL-CIO (Haverhill Gazette) v. N.L.R.B., 365 U S. 705. 2 The Respondents' request for oral argument is denied as, in the opinion of the Board, the record, Including the exceptions and briefs, adequately presents the contentions and the positions of the parties. 137 NLRB No. 97.