Howard Quarries, Inc.

HOWARD QUARRIES, INC. 873 the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and, if an agreement is reached, embody it in a signed contract. The bargaining unit is: All production and maintenance employees at our plant in Salinas, Puerto Rico, excluding professional employees , office clerical employees , guards, and all supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Boot & Shoe Workers' Union , AFL-CIO, 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 and 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. All our employees are free to become , remain, or refrain from becoming or remain- ing members of the above-named labor organization , or any .other labor organization. DIXON FORD SHOE CO., INC., Employee. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce , Puerto Rico, Telephone No. 724-7171, if they have any question concerning this notice or compliance with its provisions. Howard Quarries, Inc. and Engineers Local 101, Laborers Local 663, and Teamsters Local 534. Case No. 17-CA-2448. Janu- ary 11, 1965 DECISION AND ORDER On October 12, 1964, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, as to which he recommended that the complaint be dismissed. Thereafter, Respond- ent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to Section 3(b) of the Act, the Board has delegated its powers-in connection with this case to a three-member panel [Chair- man McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 150 NLRB No. 83. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. , The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modification. - The Trial Examiner has ordered Respondent to offer reinstatement to seven of the employees found to be discriminatorily laid off. How- ever, the record reveals that the parties stipulated that Respondent made an offer of reinstatement in a registered letter, dated June 26, 1964, to all employees laid off on May 16. Except for Mullins, none of the discriminatees accepted the offer. This offer was uncondi- tional, and thus fulfills and terminates Respondent's obligation to reemploy the employees discriminatorily laid off. We therefore modify the Trial Examiner's Decision and do not order Respondent to make an additional offer of reinstatement to the discriminatees.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board adopts,'as its Order, the Order recommended by the Trial Examiner, with the following modifications, and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as modified below : . 1. Omit from paragraph 1(a) of the Recommended Order the words "or refusing to reinstate" and insert the word "discrimina- torily" before the words "laying off." - 2. Substitute the following for paragraph 2(a) of the Recom- mended Order: "Make employees Charles L. Williams, Raymond C. Johnston, Lloyd H. Goodwin, Bernard Abbott, Merrill Allison, Virgil Smith, Alvin O. Staten, and James A. Mullins whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and to the extent set forth in the section hereof en- titled "The Remedy." 3. Omit from paragraph 2(c) of the Recommended Order the words, "and the right of reinstatement." ' We do not place reliance upon any implication in footnote 22 and the related text of the Trial Examiner's Decision-that the layoff was not economic in nature we do agree, however, with the Trial Examiner that the selection of employees to be laid off was discriminatory. 2 We note that the parties agree that Mullins was reinstated on July 3, 1964 In footnote 25 of the Trial Examiner 's Decision , the word "June" was changed to read "July" by stipulation of the parties We make the same change in the first paragraph of section III, C, of the Trial Examiner 's Decision HOWARD QUARRIES, INC. 875 IT IS FURTI-IER ORDERED that the Appendix to the Trial Examiner's Decision be modified as set forth below : 1. Omit from the first indented paragraph the words "refusing to reinstate" and insert the word "discriminatorily" before the words "laying' off." 2. Substitute the following for the third indented paragraph : WE WILL make employees Charles L. Williams, Raymond C. Johrlston, Lloyd H. Goodwin, Bernard Abbott, Merrill Allison, Virgil Smith, Alvin O. Staten, and James A. Mullins whole for any loss of pay they may have suffered by reason of. the dis- crimination against them. 3. Omit the note to the Appendix to the Trial Examiner's Decision TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issues in this case are whether Respondent Howard Quarries , Inc., coerced its employees by interrogation and various threats for their adherence to Engineers Local 101, Laborers Local 663, and Teamsters Local 534 (herein called collectively the Union), in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151 , et seq. (herein called the Act ), and laid off a group of employees because of such activites , in violation of Section 8 (a) (3) of said Act. The issues arise on a complaint issued July 8, 1964, by the General Counsel of the Board through the Regional Director for Region 17 ,1 and the answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices. • Upon due notice, a hearing on the issues was held before Trial Examiner Eugene F. Frey at Sedalia, Missouri , on August 4 and 5, 1964, in which all parties participated fully through counsel. At the close of the case I reserved decision on Respondent's motion to dismiss the complaint for lack of proof ; that motion is disposed of by the findings and conclusions in this Decision . Written briefs submitted by Respondent and General Counsel have been carefully considered by me in preparation of this Decision. Upon the entire record in the case, and from my observation of witnesses on the stand, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Respondent is a Missouri corporation with its principal place of business in Sedalia, Missouri, where it is engaged in the business of processing rock for sale. At the times mentioned herein, it operated various rock quarries in Missouri , but its quarry at Sweet Springs, Missouri, is the only plant involved in this case . In the course of its business Respondent in the past year has bought equipment , goods, and materials valued in excess of $50,000, from other concerns in Missouri who procured said equipment, goods, and materials directly from points outside Missouri . In the same period Respondent processed, sold, and distributed products valued in excess of $500,000, about $ 100,000 of value thereof having been furnished directly to a con- tractor who used them on national defense projects . I find that Respondent is and has been at all material times herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The above-named Union (consisting of the three separate organizations named in the caption ) is a labor organization within the meaning of Section 2(5) of the Act. i The complaint issued after Board investigation of various charges filed by the Union on May 18 and 26 and June 8, 1964. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The union activity Teamsters Local 534 solicited quarry employees at Sweet Springs to sign union authorization cards on May 11, 12, 13, and 15, 1964, and by the latter date had pro- cured 15 signed cards out of 29 workers on the payroll in that week. Teamsters agents openly talked to workers and procured signed cards from them at various points on a county road near the entrance to the quarry but a quarter-mile or more from the main quarry buildings and operation . From casual observation of these activities and remarks of employees, Respondent's supervisors were generally aware from May 11 onward of the presence and activity of these agents and their contacts with employees, but there is no substantial proof that they deliberately spied on those activities or by such observation alone learned which employees signed cards. Respondent also knew that the Teamsters local had picketed the plant along this road on and off over a long period in the past, but there is no proof that it had ever previously taken any counter- acting measures or otherwise shown union animus 2 . B. Respondent's reaction to the union activity Night-shift workers Charles L. Williams, Lloyd Goodwin, and Clyde Morney signed cards on May 11, 1964, as they came to work. They then drove into the quarry parking lot in their car, where Superintendent McCollom asked each if he had signed a union card or "voted for the Union." Williams and Goodwin said that they had; Morney's reply was that he had not signed a union card, but had signed a little card "about a strike, and I marked it NO." McCollom then told Morney, "You have been around here a long time." The same day dayworker James A. Mullins was asked the same question by McCollom and replied that he had not signed and did not think he would.- However, he signed a card on the 12th at the same time as dayworkers Raymond C. Johnston and Bernard Abbott, as they were leaving the quarry at the end of their shift. A day or so later, Mullins told his foreman, Lloyd Davis, that he had signed a card. On the 13th, McCollom asked Johnston if he had signed, and Johnston admitted he had McCollom asked if Abbott had signed, too. Johnston replied, "You will have to ask him." McCollom said, "I asked you," and Johnston then said Abbott had signed. McCollom commented, "I am surprised at you, I did not think that of you, you being one of the oldest men here." The next day, as Johnston was at work, McCollom made the same comment to him, and added, "If you wanted to quit, why didn't you?" to which Johnston replied, "I might do that, if you are not satisfied with what I did." McCollom then said, "What do you think the people will think of you, sitting there talking to the union men?" He also added, "I did not ask you to quit, I don't want you to." On the 13th McCollom asked Abbott if he "got signed up yesterday after- noon." Abbott said he did. McCollom asked what he expected to gain by it. Abbott said he did not know. McCollom asked, "What did they promise you?" Abbott replied, "Nothing." McCollom then commented, "I cannot understand you older men signing up, I can understand the younger ones doing it, but not you older men." 3 Dayworkers Virgil Smith and Alvin O. Staten signed cards together as they left work on May 12. The next day McCollom asked both together while at work if they had signed. They replied they did not have to, because they already belonged to the Union (apparently Teamster Local 534), and Staten pulled his union card from his pocket and gave it to McCollom who read it and handed it back Nightworker Merrill Allison signed a card as he came to work on May 11. The next day, Night Foreman Vern Garrison asked him at work if "all the boys had signed up." Allison replied he thought "the biggest part of them have." Garrison shook his head and walked off. The same day Day Foreman Lloyd Davis asked Allison the same question, and got the same reply. Davis replied that he did not think "it will do a nickel's worth of good." 4 Dayworker Robert A. Martin signed a card on May 12 at'the usual place. The next day Foreman Davis asked him if he had signed , saying some workers had signed cards, and he wanted to know what was going on. Martin said that he had not signed 2 These findings are based on credited testimony of various witnesses of General Coun- sel, and admissions of Respondent's Plant Superintendent J. A McCollom. 3 These facts are found on credited and mutually corroborative testimony of the six workers involved, as corroborated in substantial part by admissions of McCollom Testi- mony of the latter at variance therewith is not credited for reasons noted below. * These facts are based on credited testimony of the workers involved, as corroborated In part by admissions of Garrison. Testimony of Davis and Garrison in conflict with the findings is not credited, in view of the admitted and repeated interrogation of other workers by McCollom, their superior HOWARD QUARRIES, INC. 877 a card. Later that day McCollom asked Martin the same question and Martin gave the same answer, to which McCollom commented , "That's a good boy." The same day McCollom asked dayworker Doris H. Tincher if he knew anyone who had signed cards. Tincher replied he had heard a few workers signed , but he was not sure who they were. McCollom asked if Abbott had signed, and Tincher said he could not say. McCollom asked, "What are they signing at the quarry entrance with the union men?" Tincher replied, "Some kind of negotiation card ." McCollom commented that the Union was no good , and would "get you in trouble ." Tmcher signed a union card on May 15 at the same time as dayworker Walter H. Day, but was not questioned about it then or later. Nightworker James A. Halphin signed a card on May 12, but was never questioned about this. Respondent's only defense to the supervisors ' widespread interrogation of employees is McCollom's statement that he asked the questions "out of curiosity," but I cannot credit this tenuous excuse , because other comments by him and Davis about the Union, as well as his plainly expressed chagrin or disappointment that the older workers would sign up with the Union,-as found above , reasonably show union animus, and warrant the inference that the interrogations were far from casual or isolated incidents, but rather were deliberate and of the broad nature and extent which the Board has often found to be inherently coercive. I therefore conclude and find that the supervisors' repeated interrogation of employees found above violated Section 8(a) (1) of the Act.6 I also find that McCollom's statements to Tincher on May 12, after learning from him that other employees had signed union cards, that the Union "would get you in trouble," was an implied threat of reprisal if employees signed cards, and violated Section 8(a) (1) of the Act.7 C. The May 16 layoff After conferences of company officers with McCollom on May 10 and 14, which will be considered below, Respondent discontinued the second shift, and McCollom laid off nightmen Williams, Goodwin , Allison, and Wesley Wolfe, and dayworkers Mullins, Abbott, Staten, Johnston, and Smith as of Saturday , May 16. Foreman Davis informed Williams and Goodwin that day of their layoff, saying Respondent was closing down the night shift for a while because of the shortage of stripped rock to crush and because Respondent was not ready to move to Cameron. When Davis noti- fied Mullins of his layoff on the 17th, he told Mullins he was "sorry you are the one laid off." When Mullins asked why the layoff, Davis said "one of the shifts was cost- ing too much." The next day, Davis repeated to him the reason for the layoff, and suggested Mullins apply for work at Howard Construction Company at Sedalia,8 but Mullins said he was not interested . Mullins was recalled to work for Respondent on June 3, 1964, and was employed there at the time of the hearing. Johnston learned of his layoff on Sunday, May 17, from nightworker Morney. He at once called McCollom on the telephone and asked , "Dutch, am I canned ?" McCollom replied, "No, just laid off." Johnston asked, "It is on account of the Union ?" and McCollom replied, "No, this is a cutback to one shift , because we have no place to go at this time, and there is no use in getting done ahead of time," and that Johnston was being laid off for a while because his pay was too high a price to pay for driving a "Euclid." 9 5 These facts are found from credited testimony of the workers involved . Conflicting testimony of Davis and McCollom on these incidents were at most general denials , and are not credited in view of Respondent ' s other widespread interrogation , of workers, Which indicated its unusual interest in the union activities of its workers - 61 have carefully considered numerous cases cited in Respondent 's brief on this point, but find them inapposite on the facts. 7 General Counsel also claims McCollom made another coercive threat of reprisal on the basis of Williams' testimony on direct examination that McColloin told him that the signing of the card meant "probably I will have to lay you off " However , I do not credit this testimony in view of McColloni's specific denial of that remark, the failure of either Goodwin or 111orney, who heard the talk, to corroborate Williams on this, and Williams' vacillation on cross -examination on this and other points , including his admis- sion that a statement he gave Respondent 's counsel at a later date was the truth, but this statement indicated that McCollom 's only remark to him was the query about the card. In these circumstances , the apparently gratuitous threat of layoff by McColiom to Williams, but not to the others who also admitted signing cards , plus Williams' rather voluble reply , does not ring true, but appears to be a palpable attempt to put words in McCollom's mouth which would indicate an instant determination to lay off Williams for union activity. 8 Howard Construction Company is another Missouri concern affiliated in business with Respondent, as explained hereafter 6 Respondent's usual pay for Euclid drivers was $1.45 an hour , Johnston was getting $1.75 an hour at layoff. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 15 minutes later Davis called Johnston to ask if he had been told-he was laid off. Johnston replied that he had just talked to "Dutch," and asked Davis if it was because of the Union. Davis replied, "No, the Union hasn't a thing to do with. it, we are going down to one shift, and will not need you," explaining that one of the reasons for his layoff was a complaint from Respondent' s insurance carrier that Johnston had had too many accidents. On May 17 Foreman Garrison told dayworker Abbott at his home that he would not be working Monday, as he was laying off one shift. Abbott asked why he was chosen for layoff, and Garrison replied that Respondent had not found any rock at Cameron, and did not know when it would, and it did not want to have to work 18 hours a day and then lay off all the workers later. Dayworkers Staten and Smith learned of their layoff on the 18th from McCollom who said it was because he was cutting down to one shift. Smith asked if his layoff was because of the Union, and McCollom said, no, that he would call the men back in about 3 weeks. Nightworker Allison was told on May 16 by Davis that he was being laid off for a while because Respondent was "caught up on the rock." There is no proof as to what night-shift worker Wesley Wolfe was told on his layoff.'° The record shows that five other employees who signed union cards in the-same period, and Morney, were treated somewhat differently. Nightworker James F. Chitwood signed up May 11 but was never interrogated by Respondent. Dayworker Robert A. Martin signed up May 12. The next day Martin lied to Foreman Davis and McCollom when they asked if he had signed a card, and McCollom commented, "That's a good boy." After Tincher had been interrogated by McCollom about other workers' signing, as found above, and warned against signing up himself, he signed a card on May 15, but was not interrogated or threatened by any supervisor thereafter. Dayworkers Walter H. Day openly signed a card at the same time as Tincher, and nightworker James A. Halphin signed his card on May 12, but neither was interrogated or threatened about it. As found above, Morney admitted signing something for the Union, regarding a strike, and that he had voted "no." All of these workers were retained at work." To prove the discriminatory nature of the layoff, General Counsel relies on the cir- cumstances that (1) eight of the nine workers chosen for layoff had revealed their union affiliation under unlawful questioning,12 and one had been warned of "trouble" as a result of it, while (2) of six men retained, four had signed up but were never questioned (hence General Counsel infers Respondent knew nothing about their activities), Morney had falsely indicated he had voted against a strike, thereby indi- cating antiunion feelings to Respondent, and Martin had likewise lied about affiliation, which drew an approving comment from McCollom. In the light of the widespread and deliberate interrogation of workers by Respondent, and the implied threat of reprisal made to one, all of which shows that Respondent was well aware of the Union's organizing campaign and the employees' contacts with union agents, before the layoff, these circumstances present a prima facie case of discrimination which required Respondent to go forward with proof adequate to rebut it. In reaching this conclusion, I have taken into consideration Davis' testimony that he believed Halpin was in the Union, on the basis of remarks of unidentified workers he says he overheard, and McCollom's testimony of his belief that Morney was in the Union, and the fact that the supervisors were daily in position to observe, and often did observe, the workers' contacts with the union agents outside the plant.13 However, the testimony adduced by General Counsel on this point goes no further than to show that the supervisors were unusually interested in these contacts, and that where they actually interrogated employees about their own or other employees' activities, they actually knew or had good reason to believe that such employees had joined the Union, but where they did not query workers on their own acts ( as in the cases of Tincher, Day, Halpin, and Chitwood), or questioned them and got answers indicative of antiunion sentiment (as in the case of Martin and Morney), they had no reason to know or believe such workers were prounion, but only to suspect that fact from mere general "These findings are based on credited testimony of all the employees involved in the layoff, except Wolfe who did not testify, and admissions of Davis and Garrison. 11 These facts are found on credited testimony of the workers involved, and Davis. 13 There is no substantial proof that, in supervisors' interrogation of Allison, they learned that he had signed with the Union, but McCollom admitted that before the layoff he believed that Allison signed a card, and he had the same belief about Morney, although the latter's answer to McCollom also indicated he voted against a strike 13 These facts appear from admissions of McCollom, and the nature of his and Davis' remarks to Johnston, Abbott, Tincher, and Martin found above. HOWARD QUARRIES, INC. 879 observation from afar of their contacts with the union agents. The difference in the two situations does not, in my opinion, weaken the prima facie case sufficiently to relieve Respondent of the burden of going forward with proof in rebuttal.14 Respondent's main defense is twofold: First, the layoff was a purely economic decision made necessary by unexpected postponement of its 1964 production schedules due to bad weather and other conditions; and, second, the employees laid off were chosen solely on the basis of their qualifications and ability to do the work, which had always been company policy on layoffs, as opposed to layoff on seniority. The com- pany layoff policy was clearly established by the record.15 With regard to the first contention, the record clearly shows, and I find, that: In normal operations, Respond- ent runs only a day shift (4 a.m. to 2 p.m.); a second, or night shift (2 to 11:30 p.m.) is put on only as and when needed to increase production for a particular contract or project, or series of contracts, because operation of a night shift is always more expensive, to the extent of 4 or 5 cents a ton. In the fall of 1963, Respondent had begun operations at Sweet Springs, with one shift and a small crusher, to produce second-grade crushed stone and lime for routine road maintenance requirements of the State, and for stockpile for open market sales. In October 1963, Respondent procured a contract for prime crushed rock fill for a portion of Interstate Highway No. 35, which was being built by Howard Construction Company, an affiliated concern, near Kansas City. This contract called for completion of the job in 190 working days after its start, and under the original schedule Respondent had been planning to spread crushed rock beginning about August 1, 1964, after the construction company had completed its grading and other earth-removal work,16 with preliminary rock crushing at its Cameron, Missouri, quarry to start about-July 15, 1964. In the spring of 1964, Respondent also got a contract to furnish rock to Manefree Construction Co., with delivery to be completed about August 1. Production on both jobs could not be met on schedule with the single shift and one small rock crusher then operating at Sweet Springs, so Respondent in March moved a large crusher to that quarry, expanded the day shift, and about April 20 put on a second shift of 12 men, with the idea of getting the Manefree rock out quickly and then moving the large crusher to Cameron for the start of the highway stone crushing. Several things occurred to upset these plans. Grading on the highway job was delayed by spring rains, which set back completion of the project until the fall; at the time of the hearing, grading was still in progress, and Respondent had revised its work schedule to start rock crushing at Cameron in Septem- ber, lay the stone starting October 1, and continue crushing and laying up to Octo- ber 15, so that final paving could begin about October 15. In addition, Respondent dis- covered that it could extract from Sweet Springs only about half the tonnage of prime paving stone needed for the Manefree job; the remainder was only second -grade rock which could not be sold at once but could only be stockpiled for future local or non- contract sale. In this posture, Respondent found its only immediate need was to handle the Manefree job, and determined that it could get out the available prime rock at Sweet Springs for that project with only one shift in time to finish it before it had to move to Cameron to start stripping and crushing for the highway job. In addition, early in May, the night shift at Sweet Springs, which had been crushing and stockpiling rock uncovered by the day shift's stripping operations, had caught up with stripping, and had no rock on hand to process. Hence, on May 6, Respondent laid off the whole night shift for the rest of that week (3 days), to let the day crew get ahead with their stripping. At that time, some of the night crew were transferred to day shift to help with stripping. 14 There is no proof from Wesley Wolfe personally, or other witnesses, about his work, other than that he was on the night shift and laid off on May 16, nor is there proof that he was questioned by Respondent. However the timing of his layoff with eight others during the union campaign, with employer knowledge of that campaign, in which he openly signed a card near the plant, is enough to make a prima facie case as to him. 15 On this point I credit uncontradicted testimony of Marvin Howard, president of Respondent, Garrison, and McCollom, as corroborated by admissions of Tincher and Williams 10 On highway jobs, Respondent always works with Howard Construction Company and Howard Redi-Mix, of which concerns Marvin Howard is also the chief executive officer The construction company does the grading, the redi-mix concern furnishes cement, Respondent puts on the crushed rock to form the roadbed, and the construction company does the final paving and surfacing. On these jobs, Respondent usually plans its quarry operations so as to begin crushing rock about 10 days before the grading is completed, and continues crushing during the placement of crushed stone. 775-692-65-vol. 150-57 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Sunday, May 10, the officers of Respondent had a business meeting with Super- intendent McCollom, in which they reviewed the whole situation. They concluded that they could finish the Manefree job on time with only one shift, so they decided to cut off the night shift temporarily, because that shift was always more expensive to operate, and they felt they could do all the stockpiling necessary, both for open market and the Manefree job, with an expanded day shift for which they would retain their best men from both shifts. It was decided to lay off the night shift within a week or 10 days, retaining therefrom the best men who would be added to the day shift. This was considered more efficient than retention of both shifts until production was totally caught up, for a larger layoff thereafter would involve some of the best workers who might go elsewhere and not be available to Respondent in the future. President Marvin Howard, who attended the meeting, left town on business on the 11th and returned on the 14th, at which time he learned that Respondent was overdrawn at the bank about $6,000. Since it was then only producing rock for stockpile and future sale, which would not produce cash until actually delivered, Respondent's short cash position was the factor which crystallized Respondent's decision to make the layoff on the 16th (the end of the workweek), and McCollom was ordered on the 15th to do so. The choice of men for-layoff was left to McCollom and his two foremen, Davis and Garrison, in accordance with Respondent's usual practice. The three testified that, in accordance with company policy, they kept the men with the best ability to do the work, regardless of length of service or their union affiliation or lack of it. When notifying the men of their layoff, they told most of them it was a temporary layoff, and explained one or more of the above factors as the reason for cutting off the night shift, as found above. It is also noteworthy that, when Johnston and Smith asked if their layoff was because of union activity, McCollom specifically denied it and went into detail on the economic reasons. The changing economic situation outlined above, which clearly prompted the 3-day layoff of the night shift on May 6 (which General Counsel does not claim to be unlaw- ful), is given as the reason for the longer layoff of May 16, plus the fact that all the men laid off were told the economic reason in one form or another is cogent proof supporting Respondent's defense. Being consistent with its practice of laying off men solely on the basis of qualifications, without regard to seniority, there is no discrimi- natory significance in the bare fact that Respondent retained three employees of com- paratively short service, while temporarily terminating six men of longer tenure.17 And if Respondent were truly keeping its best men, the layoff of five day-shift men with four night-shift men is understandable, provided they were all in fact of lesser qualifications than those retained. This brings up the crucial question, whether Respondent followed its usual policy in selections for this layoff. Respondent adduced no evidence on the specific qualifications of any of the men laid off or retained (except as to Johnston) to support the conclusionary testimony of the three supervisors that they made selections on the basis of qualifications only. As comparative qualifications are the basis of its defense, and the facts on that subject were obviously within its special knowledge, Respondent's failure to adduce potent evidence thereon weakens its defense, for the inference is warranted that, if such proof were adduced, it would not support the defense.18 Lacking such proof from Respondent, the record proof of the work done by the 15 employees, and Respondent's treatment of them during their respective periods of service, affords the only clue as to their ability. Examination of their work records indicates clearly that the termi- nated men were apparently far better qualified than those retained, with the possible exception of Allison, Smith, and Morney. Thus, during Williams' 3 years of steady employment, he had been transferred by Respondent three times as it shifted opera- tions, and worked at four different locations, both as truckdriver and general laborer; in the year before layoff, he had worked at the Sedalia and Sweet Springs quarries on day shift, and was transferred to the night shift at Sweet Springs when it was started in 1964. Goodwin only operated a Euclid truck during his year of service. During Mullins' 16 months of service, he had for a while driven a Euclid at $1.45 an hour, then was transferred to the job of feeding a large crusher at $1.75 an hour; he worked at this until March 1964, when he helped to set up a large crusher at Sweet Springs; he then drove a' Euclid there for about a week at the $1.45 rate, but when he was given the added job of lubrication and maintenance of the large crusher, he asked for more pay and was raised to $1.75 an hour, which he received until laid off. During Abbott's 15 months' service, he had worked at various quarries both as feeder on the rock 17 It retained Halphin ( 3 weeks' service ), Martin ( 5 weeks ), and Day (9 months), while terminating Williams, Goodwin , Mullins , Johnston , Abbott, and Staten , with service ranging from 9 months to 4 years. 19 Borg-Warner Controls, Borg-Warner Corporation, 128 NLRB 1035 , 1044, 1045. HOWARD QUARRIES, INC. 881 crusher and as a Euclid driver; he was transferred to feeder on the crusher at $1.65 an hour when Sweet Springs opened in 1964, and performed that work, as well as lubrication and maintenance of the machine, until layoff. Staten had worked 9 months steady, during which he had driven a stockpile truck at two quarries. Respondent has produced no substantial evidence that any of the above men were unsatisfactory in their work, to counteract the facts showing their versatility or general competency. To the contrary, other circumstances support the conclusion that Mullins, for one, was satisfactory. Thus. Respondent's regard for his ability is demon- strated by Davis' disappointment at the necessity of his layoff, his offer to get Mullins work during the layoff with an affiliated company, and Mullins' recall in early June. Davis' explanation to him that he was laid off because one shift (obviously the night shift) cost too much is not rational or credible, for Respondent does not explain how it would save money on the night shift by layoff of a day-shift worker, hence it is inferrable that the reason stated to him was a pretext. Johnston had the longest and most versatile service of those laid off, 4 years starting May 1960, during which he had driven a pit-truck, also a Euclid, operated a crusher, and performed maintenance on machinery at four different quarry locations. When Sweet Springs opened, McCollom gave him a 10-cent raise to $1.75 an hour to induce him to transfer there, where he operated the large crusher and did general maintenance work on machines,10 as well as driving a Euclid at times, until layoff. Prior to 1960, he had worked several years for Howaid Redi-Mix Company, a company affiliated with Respondent, and in early 1960 transferred to Respondent at the request of Olin Howard, an officer of both companies. Respondent tried to downgrade his qualifica- tions and establish his lack of general work ability on the basis of his own admissions that he had often been absent from work during his long service, partly for personal reasons and partly due to a series of occupational accidents in 1962, 1963, and as late as March 1964, and at least two similar accidents while working for Howard Redi-Mix Co. It appears that several of these accidents while in Respondent's employ could have been avoided by proper caution in moving around the heavy machinery he operated, or using safety equipment provided for workers; the redi-mix accidents were also caused in part by lack of caution: as a result, Johnston had acquired the reputation among the employees as a rather reckless worker. Although he appeared to be some- what accident-prone, Respondent nevertheless hired him from Howard Redi-Mix Co. in 1960, has used him in various capacities for 4 years, and at the last was paying him at a high rate for doing three jobs at Sweet Springs, including plant operation and maintenance, the very work in which he had had repeated accidents; he had always preferred driving a Euclid (in which job he had never had an accident), and had often objected to plant work, but Respondent nevertheless induced him by higher pay to work on and maintain the crusher at Sweet Springs, as well as drive a Euclid. These facts clearly show that Respondent considered him a valuable and qualified employee, despite his accident record. The extent to which Respondent plays up the accident record in attempt to minimize his fitness for work further emphasizes the outstanding nature of his basic qualifications. In addition, McCollom's statement to him that Respondent could not afford to pay him the high rate ($1.75 an hour) for driving a Euclid truck appears to be a shallow excuse, for it ignores the fact that at layoff Johnston's high pay rate also included the important obligation of maintaining machinery. These circumstances warrant the inference that the alleged economic reasons for layoff stated to him, as well as the Davis' reference to an insurance carrier complaint about his accidents as the season for his choice,20 were mere pretexts advanced to hide the true motive for it. Another circumstance which weakens the general defense in the cases of Johnston and Abbott is McCollom's specific mention of the fact that they were older men, in terms indicating either chagrin or disappointment at union activity of such older employees, in contrast with such activity by employees of short service. This warrants the inference that length of service, as a partial measure of qualifications, was in his mind and would have a bearing on their selection for layoff, absent any union affiliation. Tincher had been with Respondent over 3 years, in which period he had driven a Euclid and other trucks. I have found that he, Martin, Halphin, and Chitwood were not questioned specifically about their union affiliation; the record warrants the infer- ence only that Respondent may have suspected that fact. Tincher was one of the older men, like Morney and Johnston, about whose length of, service McCollom had -At the layoff, Johnston, Mullins, and Abbott were the only men lubricating and main- taining machinery, for which work they were required to report an hour early on the day shift. 20 This reference was the first time his accident record had ever been mentioned to him by Respondent. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commented, yet both he and Morney were retained. As both had far more qualifica- tions than some laid off, like Abbott, Staten, Allison, Smith, and Goodwin, their reten- tion appears at first blush to be consistent with the layoff policy; yet their handling is distinguishable from that of the other five by the lack of substantial proof that Respondent knew or had good season to believe that they were union adherents; Morney's answers to McCollom would reasonably have tended to leave Respondent in doubt on his sympathies. On qualifications, it appears that Martin (5 weeks as truckdriver) and Halphin (3 weeks as stockpile truckdriver) cannot match any of those laid off, except Smith (3 weeks as truckdriver); however, the record shows that Smith was recently recalled from a roster of former employees, as he had worked about 2 months for Respondent in 1961, until he laid off or quit following a truck accident, but this did not prevent Respondent from rehiring him in 1964. The signifi- cant difference between the cases of Martin and Halphin on the one hand, and Smith on the other, is that they were not interrogated, and one can only infer from other facts employer suspicion of their union affiliation, while Smith openly announced his to McCollom. Day had 9 months' service, but his exact job or other qualifications is not shown by Respondent; his length of service is more than that of Allison (21/2 months as truckdriver) and about the same as that of Staten (9 months), but Staten's service at two quarries is more indicative of basic qualifications than Day's unspecified work, and Allison was apparently considered well qualified despite his short service, for the record shows he had been complimented by Garrison on' his handling of his trucks about 2 weeks before layoff.21 While I make no finding that Respondent's initial decision on May 10 to make the layoff in the near future was motivated by antiunion considerations (as the union campaign did not start until the 11th), 2 other circumstances further weaken the claim that the layoff on the 16th was purely economic in character: (1) the actual decision was issued on the 15th, the day the Union finally had 15 out of 29 employees, and was carried out the next day, and (2) although Respondent claims its cash shortage was a factor, the record shows that, while Sweet Springs in the week before the layoff had 29 workers on 2 shifts, with each man working 91h hours per week overtime, in the week following the layoff (which had reduced the work force to 20 men) Respondent hired another worker (besides a night watchman), and the resulting day shift of 21 men worked 66 hours apiece, or 26 hours per man overtime, for that week, and in the next week each still worked 21 hours overtime. Respondent does not show to what extent, if any, the long day shift, with heavy overtime, reduced its labor cost, or improved its financial position, over that existing before May 16; simple arithmetical calculations indicate that the post-layoff weeks involved substantially greater labor cost.22 See Square Binding and Ruling Co., Inc., 146 NLRB 201. After careful consideration of all the pertinent evidence, and arguments of counsel, pro and con, I have concluded that Respondent has failed to sustain the burden of adducing proof adequate to rebut the prima facie case of discriminatory layoff of Williams, Johnston, Mullins, Goodwin, Abbot, Allison, Staten, and Smith, but that General Counsel has failed to sustain the ultimate burden of showing on the record as a whole that Wesley Wolfe was discriminatorily chosen for layoff.23 I therefore find that, by its layoff of Williams, Mullins, Johnston, Goodwin, Abbott, Allison, Staten, and Smith on May 16, 1964, and its later failure and refusal to reinstate all but Mullins, because of their affiliation with the Union; thereby discouraging membership in a labor organization, Respondent violated Section 8(a) (1) and (3) of the Act. I further find that the layoff of Wesley Wolfe on the same date was not in violation of the Act, and hereby grant Respondent's motion to dismiss the complaint as to Wolfe. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and aL I credit testimony of Allison and Staten on this point, as against bare denials of Garrison. za Respondent's payrolls for the weeks in question are not in evidence, but if one assumes an average wage rate of $1.50 per hour straight time, the total labor cost for the week before the layoff would be about $2,150, while the figures for the 2 following weeks would be about $2,500 for the first, and a little less for the second. 21 General Counsel adduced no proof showing Wolfe's length of service, the job that he did, or other facts which would justify a definitive comparison of his qualifications with those of retained workers. In his case, General Counsel in effect admits that the record, at best, would warrant a finding only that Respondent "suspected" that Wolfe had signed a card, as It had never questioned him. HOWARD QUARRIES, INC. 883 substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obsrtucting commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent has unlawfully discriminated in regard to the hire and tenure of employment of Charles L. Williams, Raymond C. Johnston, Lloyd H. Goodwin, James A. Mullins, Bernard Abbott, Merrill Allison, Virgil Smith, and Alvin 0. Staten by laying them off and by failing and refusing to recall all of them except Mullins. I shall recommend that Respondent offer to each of them except Mullins immediate and full reinstatement to his former or a substantially equivalent position at its Sweet Springs, Missouri, quarry if it is still operating, or any other quarry or work location at which it may now be operating,24 without prejudice to his seniority and other rights and privileges previously enjoyed, and that Respondent make all of said employees whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which he would have earned as wages from the date of such discriminatory layoff to June 26, 1964, the date on which Respondent offered reinstatement to seven of said employees for the purpose of tolling backpay,25 less net earnings during said period, the backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and with interest at the rate of 6 percent per annum to be added to the backpay due, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that Respondent preserve and, upon request, make available to the Board or its agents, all records which may be necessary and pertinent for computing the back pay due and the right of reinstatement recommended herein. In view of the nature and variety of unfair labor practices committed which indicate Respondent's fundamental disregard of rights of employees protected by the Act, I shall recommend issuance of a broad cease-and-desist order. I shall also recommend that the complaint be dismissed insofar as it alleges discrim- inatory layoff and refusal of reinstatement of Wesley Wolfe. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By laying off the employees named above, and refusing to reinstate all of them except James A. Mullins, because of their affiliation with the Union, thereby discourag- ing membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the above conduct, and by interrogation of employees about their union affiliation, activities, and sentiments, and threatening them with reprisals because of such activities, which tended to interfere with, restrain, and coerce them in the exercise of rights guaranteed to them by 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. 4. Respondent has not violated the Act as charged in the complaint by its layoff and refusal of reinstatement of Wesley Wolfe. RECOMMENDED ORDER On the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, I recommend that the Respondent, Howard Quarries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the above-named Union, or any other labor organ- ization of its employees, by laying off or refusing to reinstate its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8 (a) (3) of the Act, as amended. (b) Interrogating employees about their union activities, affiliations, or sentiments in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act, threatening them with discharge or other reprisal because u The record shows that in the normal course Respondent closes down existing quarries and moves operations to new ones near construction projects, as its business warrants This appears from a stipulation of the parties. For Mullins, the period ends on June 3, 1964, the date of actual reinstatement. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of such activities, affiliation, or sentiments, or in any other manner interfering with, restraining, or coercing them in the exercise of any of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Charles L. Williams, Raymond C. Johnston, Lloyd H. Goodwin, Bernard Abbott, Merrill Allison, Virgil Smith, and Alvin O. Staten immediate and full reinstatement to their former or substantially equivalent positions at its Sweet Springs, Missouri, quarry, if it is still operating, or any other quarry or work location at which it may now be operating, without prejudice to their seniority and other rights and privileges previously enjoyed, and make said employees and James A. Mullins whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and to the extent set forth in the section hereof entitled "The Remedy." (b) Post at its Sweet Springs, Missouri, quarry, and any other quarries or work locations at which it may now be working, copies of the attached notice marked "Appendix." 26 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its 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 security payments records, time- cards, personnel records and reports, and all other records necessary to compute the amount of backpay due and the right of reinstatement under the terms of this Recom- mended Order. (d) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.27 It is further recommended that the complaint be dismissed insofar as it alleges a discriminatory discharge and refusal of reinstatement of Wesley Wolfe. 21 If this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " zr If this Recommended Order is adopted by the Board, this provision shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Engineers Local 101, Laborers Local 663, or Teamsters Local 534, or any other labor organization of our employees, by laying off, refusing to reinstate, or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act, as amended. WE WILL NOT interrogate our employees about their union activities, affilia- tions, or sentiments , in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a) (1) of the Act, threaten them with discharge or other reprisal because of their union affiliation, activities, or sentiments, or in any other manner interfere with, restrain, or coerce them in the exercise of any of the rights guaranteed to them by Section 7 of the Act. WE WILL offer to Charles L. Williams, Raymond C. Johnston, Lloyd H. Good- win, Bernard Abbott, Merrill Allison, Virgil Smith, and Alvin O. Staten immediate and full reinstatement to their former or substantially equivalent positions at our Sweet Spring, Missouri, quarry, if we are still operating it, or any other quarry or work location at which we may now be operating, without prejudice to their GEORGIA-PACIFIC CORPORATION 885 seniority and other rights and privileges previously enjoyed, and will make whole the above-named employees and James A. Mullins for any loss of pay suffered by reason of our discrimination against them. All of our employees have the right to form, join, or assist the above-named labor organization or any other labor organization, as well as the right not to do so. HOWARD QUARRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above- named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, Extension 731, if they have any questions concerning this notice or compliance with its provisions. Georgia-Pacific Corporation and International Woodworkers of America, Local Union 3-116, AFL-CIO. Case No. 36-CA-1278. January 11, 1965 DECISION AND ORDER On July 27, 1964, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in his attached Decision. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Exam- iner's Decision. 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 [Chairman McCulloch and Mem- bers Brown 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding with all parties represented was heard before Trial Examiner Louis S. Penfield in Coos Bay, Oregon, on March 11, 1964, upon a complaint of the 150 NLRB No. 88.