Equitable Equipment Co., Inc.

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Equitable Equipment Company, Inc. and New Or- leans Metal Trades Council. Case 15-CA-3595 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On February 25, 1970, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed cross-excep- tions to the Decision and a brief in answer to the General Counsel's exceptions and in support of the cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Tnal Examiner's Decision, the exceptions and cross-excep- tions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B STONE, Trial Examiner-This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on November 4, 1969, at New Orleans, Louisiana The charge was filed on July 22, 1969. The complaint was issued on September 22, 1969 The issues are whether the Respondent has engaged in acts violative of Section 8(a)(3) and (1) of the Act. More specifically the issues concern questions of interroga- tion, threats, and the discharge of Clifton Stone on July 10, 1969. All parties were afforded full opportunity to participate in the proceeding. The General Counsel and the Respondent filed briefs and they have been considered Upon the entire record in the case and from my observa- tion of witnesses I hereby make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER' Respondent, a Louisiana corporation with its principal office and place of business in New Orleans, Louisiana, is now, and has been at all times material herein, engaged in the manufacture of marine products at its New Orleans and Madisonville, Louisiana, facilities During the 12 months ending September 22, 1969, which period is representative of all times material herein, Respond- ent, in the course and conduct of its business operations as described above, purchased and received goods valued in excess of $50,000 directly from points located outside the State of Louisiana. During the same representative period, Respondent sold and shipped goods valued in excess of $50,000 from its Louisiana facilities directly to points located outside the State of Louisiana Based upon the foregoing and as conceded by the Respondent, it is found that the Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed in its entirety. Ii. THE LABOR ORGANIZATION INVOLVED' New Orleans Metal Trades Council, the Union , is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ' The General Counsel excepted, among other things, to the Trial Examiner's failure to make any findings, conclusions, or recommendations with respect to the Respondent's alleged violation of Sec 8(a)(4) of the Act by the termination of Clifton R Stone For the same reasons that led the Trial Examiner to find a lack of discriminatory motivation in the layoff of Stone on July 10, 1969, and, accordingly, no violation of Section 8(a)(1) and (3) of the Act, we also conclude that the evidence is insufficient to establish that the Respondent violated Sec 8(a)(4) of the Act by the layoff of Stone on July 10, 1969 Consequently, the complaint allegation relating to Sec 8(a)(4) is also dismissed Preliminary Facts' The following named individuals are now, and have been at all times material herein, supervisors of Respondent within the meaning of Section 2(11) of the Act: The facts are based upon the pleadings and admissions therein ' The facts are based upon the pleadings and admissions therein ' The facts are based upon the pleadings and admissions therein 185 NLRB No. 42 EQUITABLE EQUIPMENT CO 575 H M Bourgeois Harold Hebert Frank Thrasher A The Alleged Violations of Section 8(a)(1) 1. The General Counsel's complaint alleged, in paragraph 7, that Respondent's Supervisor Harold Hebert, on or about June 16, 1969, orally interrogated an employee about his union activities, sympathies, and desires The evidence concerning this issue consists of the credited aspects of the testimony of Stone which was to the effect that the event involved occurred approximately a couple of weeks before his layoff on July 10, 1969. What occurred is revealed by the following credited excerpts of Stone's testimony- A In the back yard, near the No. 2 Gantry I went and asked him for a raise, and he flatly refused me for a raise. I told him I couldn't make it for the money I was making, everything was going so high, and I even asked for the raise for myself and Mr. Thrasher. And he said no. He said I would have to find some other way to get the raise, to get work or get money He said, "I guess you are going back with the Union, it seems every time you need a raise or money, you join up with the Union " Considering the foregoing, and in connection with the clear facts revealed by the background evidence that Stone in the past had gone to the Union about various complaints, it is concluded and found that the evidence is insufficient to reveal that the Respondent engaged in coercive interroga- tion as alleged. Rather, the reasonable interpretation of the event would be that Stone himself would realize that it was not an inquiry but a comment by Hebert. Accordingly, it is recommended that complaint paragraph 7, insofar as alleging a violation of Section 8(a)(1), be dismissed 2. The General Counsel's complaint alleged, in paragraph 8, that Supervisor H M. Bourgeois, on or about July 10, 1969, orally advised an employee that his termination was based upon his union activities Stone testified with reference to a conversation with Bourgeois on the occasion of July 10, 1969, that Bourgeois notified him of his layoff. Stone testified to this effect as is revealed by the following excerpts from his testimony- A Oh, I had a card I wanted to put on the board My baby passed away and they sent cards and I handed it to him and asked him if he would put it on the bulletin board He took my hand and shook my hand and said he wished me good luck on my union job. And then he went up the steps and he said, "Stone, you would have still been here if you hadn't took sides." The General Counsel's brief, although setting forth certain of the facts, including testimony relating to the foregoing allegation, does not specifically address itself to the 8 (a)(1) allegations, excepting to move to withdraw complaint paragraph 8 Because of the stage of litigation and the nature of the testimony concerning this issue , I find it more proper to dispose of this issue upon the merits Bourgeois testified to the effect that, after the trial of an unfair labor practice case (Cases 15-CA-3345 and 15-RC-3888) in January 1969,5 Respondent's attorneys had advised him to be careful of whatever he said to Stone, that he had a conversation concerning the death of Stone's baby shortly after the baby's death and before July 10, 1969, and that he did not tell him on July 10, 1969, at the time of Stone's layoff, that he would still be here if he had not taken sides. Considering the foregoing, the demeanor of the witnesses 6 and the logical consistency of the facts, I discredit Stone's testimony to the effect that Bourgeois stated to him on July 10, 1969, at the time of his layoff notification, that he would still have been there if he had not taken sides. It follows that the evidence is insufficient to support a finding of violation, insofar as alleged, as to complaint paragraph 8 Accordingly, it is recommended that complaint paragraph 8 be dismissed. 3. The General counsel's complaint paragraph 9 alleges that the Respondent, by Frank Thrasher, on or about July 10, 1969, orally advised an employee that his termina- tion was based upon his union activities. The facts concerning the event in contention are revealed by the following credited aspects of Stone's testimony. Q. What happened on July 10 that caused you to leave Equitable Equipment? A. That evening, about 3 15, Frank Thrasher, the supervisor, came aroung with some layoff slips and called me to the side and told me he hated to do this, that it wasn't up to him. It was Mr Hudson Bourgeois, Harold Hebert and Johnny Koepp all had a Board meeting and decided to let me go. It was out of his hands. Considering all of the foregoing, it is concluded and found that the evidence does not support a finding of violative conduct, insofar as alleged in complaint paragraph 9 Accordingly, it will be recommended that complaint paragraph 9 be dismissed. B The Alleged Discriminatory Layoff of Clifton Stone on July 10, 1969 The relevant facts for consideration as to whether or not Respondent laid off Clifton R. Stone on July 10, 1969, for discriminatory reasons may be summarized as follows: 1. Stone had worked in the same shipyard location for different employers for most of the years from 1951 to July 10, 1969. 2. Stone had worked for the Respondent from the date of its acquisition of the shipyard involved, December 10, 1965, to July 10, 1969. 3 From early 1966 until about July 1968 Stone had worked under a job classification of pipefitter leadman. On or about July 1968, said classification, in title, was changed to that of "Foreman Grade 1." Stone continued ' See Equitable Equipment Co, etc 178 NLRB No 50 I found Bourgeois to appear to be a more frank, forthright, and truthful witness while testifying than I found Stone to be while testifying 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter under such classification until the date of his layoff on July 10, 1969 It is undisputed that either "pipe- fitter leadman" or "Foreman Grade 1" refers to a "leadman" type classification and that such classification is not a classification of a supervisor within the meaning of the Act. 4. During the time 1966 to July 10, 1969, the Respondent had had two or three occasions of general layoffs. 5. On none of the occasions of layoffs prior to July 10, 1965, did the pipefitting work need decrease to such an extent that there existed no need for pipefitting leadmen. This, however, does not establish that a need existed on such occasions for the services of Stone as a "pipefitting leadman." 6. Stone was never laid off on any of the prior occasions referred to nor was Stone ever reduced at any time from a "pipefitter leadman" or "Foreman Grade 1" classification with respect to rates of pay. 7. In 1967 at the time of a layoff Stone was assigned work as a shipfitter for about 4 or 5 weeks on a Kerr- McGee project. After 4 or 5 weeks Stone was assigned to pipefitting work The facts reveal that at such time there was a "lot" of pipefitting work to be done on such project. It would appear therefore that Stone at such time resumed his duties consistent with his "leadman" classifica- tion. I t would also appear that at the time of utilization of Stone as a pipefitter that there was knowledge of an anticipated future need for many employees for pipefitting work 8. On several other occasions prior to July 10, 1969, Stone was not reduced in classification at the time of layoff of others but was assigned ordinary pipefitting work, working with tools, not consistent with the classification of leadman r Apparently, the type of work was of mainte- nance or repair nature 9. 8 Stone, as an employee, engaged actively in 1968 (apparently from circa July 1 to September 12, 1968, and thereafter) in union organizational activity among Respond- ent's employees in behalf'of New Orleans Metal Trades Council 10.9 Respondent's supervisors and Stone engaged in vari- ous conversations during the period of July 1 through September 12, 1968. In such conversations Stone made it clearly known to the Respondent that his interests and sympathies were with the New Orleans Metal Trades Coun- cil 11. Prior to an election in Case 15-RC-3888, held on July 10, 1968, the Respondent engaged in conduct which interfered with Stone's rights under Section 7 of the Act, as is revealed by the following excerpts of the Trial Examin- er's Decision in Cases 15-CA-3345 and 15-RC-3888 (adopted by the Board as its decision on August 29, 1969):10 The only specific job referred to was that concerning work on a Houston contractor's barge The facts are based upon a composite of the credited testimony of Stone and official notice of the Board's decision in Equitable Equipment Co, 178 NLRB No 50 The facts are based upon official notice of findings in the Board's decision in Equitable Equipment Co, 178 NLRB No 50 10 EquitableEquipment Co, 178 NLRB No 50 I credit the testimony of Stone, Pruett, and Kersh. I find that, on the dates set forth in Stone's testimony Hebert interrogated the former as to his union sympa- thies and desires; instructed Stone to interrogate other employees concerning their voting preference in the upcoming election; warned Stone that if the Union were successful Respondent would not only refuse to grant a wage increase but would instead reduce the employees' wage scale, solicited from Stone the names of employees who had attended a union meeting, direct- ed Stone to vote against the Union on pain of losing his job, ordered Stone to inform his fellow employees that they must reject the Union in the forthcoming balloting if they wished to retain their employment with Respondent, threatened Stone with unspecified reprisals if he failed to wear Respondent's campaign buttons, promised Stone and his cohorts wage increases after the election if the Union were defeated; threatened Stone that Respondent would terminate its operations if the men voted for the Union and directed him to convey this information to his fellow employees; and told Stone that he had forfeited a promotion to foreman because he sided with the Union. Griffith and Stone impressed me as candid witnesses who earnestly sought to speak the truth. By contrast, Thresher was an evasive witness who was in frequent need of testimonial rehabilitation Although Thresher at the outset of his testimony denied that, in his discussion with Stone on July 16, he "cut back" Stone because of his union sympathies, he acknowledged that Stone's visit to the Board on that date "would have" had something to do with the Union. I credit the testimony of Griffith and Stone and find that, on or about July 3, and again on or about August 15, Thresher interrogated Griffith as to whether the latter intended to vote for the Union I also find that, on approximately July 1, Thresher interrogated Stone as to the latter's inclinations toward the Union and his desires regarding collective representation. I further find that, on July 16, Thresher threatened to demote Stone from his position as a leaderman because Stone had sided with the Union. Finally, I find that Thresher threatened Stone on or about July 1 that Captain Levy would curtail operations at the shipyard in the event the Union won the election conducted on July 10. By the foregoing conduct, when taken in conjunction with the findings hereinafter made, I conclude that Respondent interfered with, restrained, and coerced its employees within the meaning of Section 8(a)(1) of the Act 12. Prior to the second election in Case 15-RC-3888, held on September 12, 1968, the Respondent also engaged in conduct that interfered with Stone's Section 7 rights, as is revealed by the following excerpts of the Trial Examin- er's Decision (in Cases 15-CA-3345 and 15-RC-3888) adopted by the Board as its decision on August 29, 1969." Based on Stone's credited testimony, I find that, prior to the first election, Bourgeois questioned Stone " Equitable Equipment Co , 178 NLRB No 50 EQUITABLE EQUIPMENT CO. 577 as to his reasons for making common cause with the Union and suggested that Stone should seek employ- ment elsewhere if he desired collective representation. I further find that, during this episode, Bourgeois promised to promote Stone to a supervisory position at some future date if he abandoned his interest in and support of the Union Moreover, I find that, before the second election, Bourgeois threatened Stone that when the balloting was concluded he and his fellow union adherents would be severed from Respond- ent's employment rolls. I conclude that, by Bourgeois' statements , Respondent violated Section 8 (a)(1) of the Act Neither Chauffe's demeanor nor candor on the stand was impressive I therefore credit the testimony of Stone and find that, shortly before the second election, Chauffe threatened that Respondent would close its shipyard facilities in the event the employees voted for the Union I conclude that , by Chauffe's threat, Respondent violated Section 8(a)(1) 13. Stone testified at the unfair labor practice hearing in Cases 15-CA-3345 and 15-RC-3888,12 held on January 14 and 15, 1969, in support of contentions adverse to the Respondent. 14 On May 13, 1969, Trial Examiner Rosenberg issued his Decision in Cases 15-CA-3345 and 15-RC-3888, basing a substantial number of findings in whole or in part upon the credited testimony of Stone Some of such findings were based upon credibility resolutions wherein Stone's testimony was credited over the testimony of Respondent ' s supervisors and officials Among such Respondent 's officials whose testimony was involved was H M. Bourgeois. 15. Around May, June, and July 1969, the Respondent was involved in production for Government contracts on a mattress barge, on an aluminum boat line, and on a lash barge program Because of the stages of completion , certain disputes as to acceptability of quality of finished products, repair costs at shipyard as a result of a hurricane , cost of certain equipment in preceding months, enlargement of shipyard, and new type of production lines, the Respondent 's financing for its operations was adversely affected to such an extent that management economies in its operations were warranted 13 16 Around the first of June 1969 Executive Vice President Koepp spoke to Hudson Bourgeois, assistant vice president and general superintendent of production What Koepp said is revealed by the following credited excerpts from Bourgeois ' testimony " Equitable Equipment Co, 178 NLRB No 50 " The problem was not a long range problem related to ultimate profit and loss but was one related to having the necessary current funds for operations A Yes, sir, in the early part of June Mr. Koepp called me and said he would be down at my office, and he wanted to have a meeting with me and a few minutes later he came into my office and said to me, "Hudson," he said, "I want you to listen to what I have to say to you very carefully We are experiencing a heavy financial loss on the mattress barge and the other jobs in the yard. I want you to take action just as fast as you possibly can. I want to cut down all the people I possibly can that we are unable to utilize to the best advantage and cut our supervision down to the bare minimum " He said, "I realize the target that you have to meet is pretty rough, but as soon as possible, I want you to evaluate this and cut this down to a bare minimum." 17. In the latter part of June 1969, Bourgeois again spoke to Koepp as is revealed by the following credited excerpts from Bourgeois' testimony A. Yes, sir I called Mr Koepp on the telephone and I told him in regard to our telephone conversation the early part of June, we were now approaching the period where we would have to do some laying off I said to him, "Now, in this layoff, it's going to be the Pipefitting Department first because all the major piping systems are now installed in the barge and they have been hydrostatically tested In this layoff, Mr. Clifton will be laid off. I thought I would bring this to your attention since we have had many claims by Mr. Stone and you may want to seek legal advice " Q. What did he say? A He said, "I will be back in touch with you in a few minutes." Q Did he get in touch with you? A. Yes. He came up to my office in person and sat down alongside my desk and he said, "Hudson, I have evaluated everything you told me and I want you to proceed with your plans " Q. Who actually made the decision to include Stone in the layoff? A I did. Q. Why did you check with Mr Koepp9 A Because of the past experience we had with Mr Stone, he had taken different interpretations of what people said and preferred charges against the Company. 18. A June, July, and August, 1969, picture of the Respondent's employment and termination of employees on the "mattress barge," where Stone worked, is revealed in Respondent's Exhibit 1, as follows 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EMPLOYEES ON MATTRESS BARGE Rate Classification Date Hired Date Terminated 0 Painters and Laborers Anthony, C. 2.00 5/30/69 Kelley, E. L. 3 34 5/30/69 Brown, F. L. 2 25 6/2/69 Hall B. G. 2 00 6/2/69 , Hewitt, M. E. 2 00 6/2/69 Holden, F. L. 2.00 6/2/69 Leon, P. 2 00 6/2/69 Morris, L 2.25 6/2/69 Stewart, W. 2.00 6/2/69 Johnson, J. O. 2.00 6/5/69 Washington, E. 2 00 6/5/69 Lafitte J. F. 3 22 6/18/69 , Lenaris S 2.25 6/18/69 , Smith, J. L. 2.25 6/18/69 Douse, V S. 2.00 6/20/69 Jacobs, T. J. 2.05 6/23/69 Wade, E. R. 2 05 6/23/69 Bordere, I. J. 2 00 6/25/69 Edwards, G. D. 6/26/69 Clark R. 2.05 7/16/69 , Beasley, J. L. 3 46 7/23/69 Lindley, J. W. 3.46 7/23/69 Holtzclaw, B. R. 3.22 7/24/69 Freche, E. J. 3.58 7/31/69 Hill, J. J. 2.81 7/31/69 Patterson, W. P. 3 22 7/31/69 F. J. Bello 2.86 8/1/69 , Douser, M. W. 3.51 8/1/69 J. P Grant 3.46 8/1/69 , Hamann , F. L 3.39 8/1/69 Hollis, B. 3.39 8/1/69 Thomas, R. 3.51 8/1/69 C. M. Wallace 3.51 8/1/69 , Williams, E. 2.81 8/1/69 LoCicero, J. D. 2 25 8/4/69 BaiaYnonte, T J. 3.46 8/5/69 Farrar R. E. 3.58 8/5/69 , R. Gorofalo 3.27 8/5/69 , Green, J. 2.00 8/5/69 Hairston, M. E. 3.58 8/5/69 Murphy, W. J 2.25 8/5/69 Nelson, R 2.25 8/5/69 Phelps, A. J. 2.37 8/5/69 Schmolke, J. R. 2.81 8/5/69 Thibodeaux, L. 3.58 8/5/69 Thompson, J. D. 3.05 8/5/69 Arena, E. V 3.91 Foreman 7/21/69 Triana, J. G. 3.91 Foreman 8/4/69 Machinists Kindel, W. C. 3 75 6/2/69 Sherlock, G 2 93 6/6/69 M Springer 2.81 6/18/69 , DeWailly O. E 3.34 6/25/69 , Williams, J. C. 3.58 6/27/69 Ahern J. J. 3.58 7/25/69 , Marshall, C. E. 3.58 7/25/69 Praet G. 3.58 8/1/69 , Leer, A. E. 3.21 8/5/69 EQUITABLE EQUIPMENT CO 579 Rate Classification Date Hired Date Terminated Rupp, L. C. 3.58 8/5/69 Olivier, C. 3.91 9/4/69 General Hull Foreman (coordinator of all crafts) Robert Jackson 4.01 8/15/69 Pipefitters Armstrong, A. 3.75 Pipefitter 1st Class 5/29/69 6/13/69 Carroll, R 3.75 Pipefitter 1st Class 5/12/69 8/11/69 Carlisle, C. 3.75 Pipefitter 1st Class 5/29/69 6/3/69 Carter, B 3.75 Pipefitter Ist Class 7/15/68 7/10/69 Dietzway, J. 3.05 Pipefitter 2nd Class 5/28/69 7/10/69 Eitman, J. 3.75 Pipefitter 1st Class 2/17/69 Gray, A. 3.05 Pipefitter 2nd Class 5/22/69 7/10/69 Healy, C. 3.75 Pipefitter 1st Class 5/23/69 8/11/69 Heckler, J. 2.51 Pipefitter 3rd Class 5/28/69 7/10/69 Loup, Jr., P. 3 75 Pipefitter 1st Class 12/12/66 7/25/69 Reeves, B. 3.22 Pipefitter 1st Class 5/19/69 6/24/69 Rome, F. 3 22 Pipefitter 1st Class 3/11/69 7/10/69 Stone, C. 3.91 Foreman 7/10/69 Trasher, F. 4.01 Pipefitter Dept. Head Verrett, C. 3.05 Pipefitter 2nd Class 5/27/69 6/4/69 Other employees on Mattress Barge who have been retained: Anthony, M. Anthony, S. Knight, W. H. Blackwell, J Bardwell, P. L. Blackwell, W. L. Hebert, M. Mervin, E. Aalestad, W. Jarrell, R. Knight, A D. Larpenter, G L. Desmond, G. Easley, B. R. Gordon, D. Hamann, V. A. Head, O. R. Engle, H Pendarvis, 1. Stringer, L. D. Kennedy, H. Begnaud, F F. Biggers, C H. Larpenter, E. Shipfitter Shipfitter Shipfitter Shipfitter Shipfitter Rigger Tacker Crane Operator Welder Welder Crane Operator Shipfitter Shipfitter Shipfitter Shipfitter Shipfitter Welder Welder Welder Welder Welder Shipfitter Shipfitter Foreman Respondent also, however, had a crew of men, supervised by Foreman Norman Bourgeois, working on the mattress barge prior to completion of the same on August 8, 1969 The testimony did not reveal the exact type of work per- formed by Bourgeois' crew It appears clear, however, that Bourgeois' crew was not engaged in pipefitting It appears likely that the type of work engaged in by Bourgeois' crew was that of shipfitting Around the time of completion of the mattress barge job, Bourgeois and his crew were returned to Repondent's Madisonville facility where Nor- man Bourgeois and such crew normally worked Bourgeois' credited testimony was to the effect that approximately 40 employees were laid off from the mattress barge during the time involved. Considering this testimony in relationship to his credited testimony that pipefitters Carroll and Laup resigned on August 11, 1969, and July 25, 1969, respectively, and that pipefitter Healy was dis- charged for absenteeism on August 11, 1969, and in connec- tion with the statistical picture set forth above, it appears that terminations before July 10, 1969, were for reasons unrelated to the specific layoffs involved herein. Around the time of completion of the mattress barge, on August 8, 1969, the Respondent transferred a number of employees engaged in shipfitting on the mattress barge to shipfitting on the lash barge program. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emory Larpenter, the foreman for the shipfitters who had been working on the mattress barge, took a 2-week vacation after the completion of the shipfitting work on the mattress barge. After Larpenters' 2-week vacation he was transferred as foreman to the lash barge program replacing Foreman Armand Price who was then laid off. The transfer of Larpenter and the layoff of Price was an effectuation of Respondent's plan to reduce supervision costs and a desire to utilize Larpenter's 25 years of supervisory experience in shipfitting. 19. Bourgeois credibly testified to the effect that the layoff of July 10, 1969, was determined as follows: There were nine pipefitters working at the time. Carter, one of the pipefitters, was not considered for retention because he had indicated that he was going to resign It was therefore decided that he would be laid off on July 10, 1969 Of the eight other pipefitters, it was decided that Carroll, Eitman, Healy, and Laup were best qualified to do the type of work required (testing and pipe work) because their special knowledge of the systems they had worked on would be useful in the testing of such systems. The statistical data submitted is corroborative of the fact that the four employees retained were the best qualified of the eight remaining pipefitters. 2014 The facts are clear that Respondent's need for pipefitters as of July 10, 1969, was limited . Essentially, the Respondent had a need for four pipefitters to complete the testing and contract work on the mattress barge, and a need for several pipefitters for maintenance work. As to the maintenance work it appears that the Respondent had in its employ two pipefitters doing maintenance work. The facts reveal that the Respondent did not consider Stone for retention as a regular pipefitter because it did not consider its need for supervision to warrant his retention. The Respondent did not consider Carter for retention because he had indicated he was going to quit Of the eight pipefitters remaining , the Respondent considered Eit- man, Carroll , Healy, and Laup to be the best qualified for the testing and controlling work because of their specific work on the systems involved." 21 On July 10, 1969, the Respondent laid off pipefitters Dietzway, Gray, Carter, Heckler, and Rome. At the time Respondent laid off Foreman First Class16 Stone. Each was given a layoff slip indicating that their layoff was "reduction due to the fact of large government contract completion." " The facts are based upon Bourgeois ' credited testimony, the exhibits in the record, and the logical consistency of all the facts " The General Counsel contends and Stone testified to the effect that others of the pipefitters had done some of the installations and testing and that the pipefitters retained were new with the Respondent Since the Respondent retained all first-class plumbers, excepting Rome who had a lower pay scale, it appears that the Respondent's selection of first-class pipefitters for the reasons indicated indicates nondiscriminato- ry selection 16 A company designation indicating use in a supervisory category but not within the statutory meaning of supervisor Contentions and Conclusions The General Counsel essentially contends that the facts reveal a basis for discriminatory motivation and that this coupled with the failure to retain Stone as in the past reveals that Stone was discriminatorily laid off. The Respondent contends that its layoff of Stone was based upon nondiscriminatory considerations. The facts do reveal a background basis for discriminatory motivation, but I am not persuaded that the facts surround- ing the layoff of July 10, 1969, reveal that Respondent was discriminatorily motivated in its layoff of Stone on July 10, 1969. Ignoring the background facts related to the prior unfair labor practice case, the selection of employees and supervi- sors for layoff appears to have been on a nondiscriminatory basis. Thus the issue essentially boils down to a consideration of why Stone had been retained in the past and was not retained as an employee on July 10, 1969. Considering all of the facts, I am persuaded that the Respondent with regard to the current layoff was more concerned with cost cutting than it had been in the past Thus, although Respondent laid off employees in the past and retained Stone, at supervisory wages, there is no indication that extreme cost economy problems were present at such time as they were at the July 10, 1969, occasion Further, the evidence as to past layoffs indicated an anticipated near future need for the pipefitting services of Stone as a supervi- sor. There is no such indication with respect to the July 10, 1969, layoff. Thus I am not persuaded that Respondent's past temporary usage of Stone, at supervisory wages, as a, regular pipefitter or shipfitter, reveals discriminatory moti- vation in the failure to so use him after July 10, 1969. Similarly, I find no evidence to warrant his retention after July 10, 1969, over other supervisors retained. Nor do I find the evidence to persuade of improper motivation because the Respondent failed to retain Stone for nonsupervi- sory work. In the past the economic picture was not of the same tight retrenchment program. Therefore, retention for temporary nonsupervisory work at supervisory wages was not a problem On July 10, 1969, this economic problem of a severe type did exist. Furthermore, the evidence does not persuade that the failure to retain Stone for nonsupervi- sory work at reduced wage rates reveals discriminatory motivation. Stone's past conduct had revealed that he would have been unhappy with a wage cut I have considered the background evidence of Respondent's antiunion animus, the threats related to Stone, the existence of reason for possible discrimination against Stone, and all of the forego- ing. In my opinion the totality of the facts reveals that Stone was laid off on July 10, 1969, for nondiscriminatory reasons." I-, I have considered the fact that Healey, a plumber first class, retained on July 10, 1969, was discharged on August H, 1969, for chronic absenteeism The evidence does not reveal when such absenteeism occurred Assuming an absenteeism problem prior to July 10, 1969 with respect to Healey, it very well may not have been severe it is understandable as the need for pipefitters decreased that the standard of conduct imposed in selectivity would increase, In this regard the question of the effect of a pay cut on Stone and of comparison of Healey's abilities with other regular pipefitters would indicate a reasonable basis for the July 10, 1969, retention of Healey EQUITABLE EQUIPMENT CO 581 Accordingly, it is concluded that the evidence is insuffi- RECOMMENDED ORDER cient to establish that Respondent violated Section 8(a)(1) and (3) of the Act by the layoff of Clifton R Stone Based upon all of the foregoing, it is recommended on July 10, 1969 that the complaint in this matter be dismissed in its entirety