Eastman Kodak Co.

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eastman Kodak Company; 1 Caddo Construction Company; 2 Hychem Constructors, Inc.; and Hud- son Engineering Corporation3 and Plumbers and Steamfitters Local Union No. 301 , United Associa- tion of Steamfitters, Pipefitters, Plumbers and Apprentices, AFL-C10.4 Case 16-CA-2799 November 17, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 20, 1970, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding finding that Respondent Hudson-Hy- chem had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Exam- iner also found that Respondent Hudson-Hychem had not engaged in certain other alleged unfair labor practices and recommended dismissal of those allega- tions of the complaint. The Trial Examiner further found that Respondent Eastman-Caddo, as successor of Hudson-Hychem, was responsible for remedying certain unfair labor practice violations of the Act engaged in by Hudson-Hychem, as set forth in the Trial Examiner's Decision. Thereafter, the Respon- dents and the Charging Union, Local Union No. 301, filed exceptions to the Trial Examiner's Decision together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. 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 only to the extent consistent herewith. 1. The Trial Examiner found, and we agree, that Respondent Hudson-Hychem violated Section 8(a)(1) of the Act by interrogating employees about their union activities and threatening reprisals for such activities. 2. We agree with the Trial Examiner's finding that the layoff of September 16 was prompted by econom- 1 The name of this Respondent has been amended by deleting the prefatory descriptive reference to its division , Texas Eastman Company, which is not a legal entity. is considerations. We do not agree, however, with his further finding that there is sufficient circumstantial evidence in the record to establish that the attendance of the five alleged discriminatees at the union meeting held the night of September 15 was a factor in their selection for the layoff. The record shows that throughout the existence of Hudson-Hychem's contract with Eastman layoffs occurred numerous times depending on the level of work orders Hudson-Hychem received from East- man. As for the layoff at issue, the Trial Examiner found with record support that they were "merely an integral part of a retrenchment program initiated on September 9, when 30 men, including 20 pipefitting employees, were separated" and that but for physical limitations which precluded the processing of more than 30 at one time, an additional 9 men would have been laid off at that time. It is against this background of record facts that we disagree with the Trial Examiner's conclusion that those laid off on Septem- ber 16 were discriminatorily selected in violation of Section 8(a)(3) of the Act. The record is devoid of any evidence which would indicate that the Employer at the time it prepared the list of employees to be laid off on September 16 had any knowledge of the identity of the employees who had attended the union meeting the night prior to the day of the layoff. The Trial Examiner's statistical analysis of the layoff based on the signed attendance record showing that there were 20 employees at the union meeting, 7 of whom were included in the layoff, is certainly circumstantial evidence which if not explained by other record facts would create suspi- cion that the employees' union activity may have been a factor in their selection for layoff. But as we have found, in agreement with the Trial Examiner, the layoff was prompted by economic consideration, we cannot conclude that on the record before us the circumstantial evidence is sufficient to support the conclusion that there was discrimination in the selection of the employees for layoff. Moreover, the General Counsel stipulated at the hearing that the attendance record on which the Trial Examiner relied does not actually reflect the true attendance at the meeting because of the known fact that employees were reluctant to sign union attendance records. Thus, the basis for the Trial Examiner's conclusion is further weakened. Nor can we accept his conclusion that the selection for layoff was a last minute change by the Employer to include the employees who had attended the union meeting of September 15. The record facts do not support this conclusion. Since a preponderance of the probative evidence on 2 Hereinafter collectively referred to as Eastman-Caddo. 3 Hereinafter collectively referred to as Hudson-Hychem. 4 Hereinafter referred to as Local 301. 194 NLRB No. 27 EASTMAN KODAK COMPANY 221 the record as a whole does not establish that the layoffs were in violation of Section 8(a)(3) of the Act, we shall dismiss that allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Hychem Constructors, Inc., and Hudson Engineering Corporation, Houston, Texas, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating their employees about their union activities or those of their fellow employees. (b) Threatening employees with loss of jobs or other reprisals if they become members of, or assist, Plumbers and Steamfitters Local Union No. 301, United Association of Steamfitters, Pipefitters, Plumbers and Apprentices, AFL-CIO, or any other union. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights guaranteed in Section 7 of the Act, 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Mail forthwith to each of their former employees copies of the attached notice marked "Appendix." Copies of said notice, on forms to be provided by the Regional Director for Region 16, shall be duly signed by the said Respondents' representatives. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our former employees at Longview, Texas, that: The law gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT ask our employees whether they favor Plumbers and Steamfitters Local Union No. 301, United Association of Steamfitters, Pipefit- ters, Plumbers and Apprentices, AFL-CIO, or any other union. WE WILL NOT threaten our employees with loss of jobs or any other reprisals if they become a member of that Union or any other union. All our employees are free to join or not to join Plumbers and Steamfitters Local Union No. 301, United Association of Steamfitters, Pipefitters, Plumbers and Apprentices, AFL-CIO. HUDSON ENGINEERING CORPORATION HYCHEM CONSTRUCTORS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The original charge herein was served on Hudson Engineering Corporation and Hychem Constructors, Inc., herein called Hudson-Hychem, on September 19, 1966,1 and a copy of the first amended charge was served on Eastman Kodak Company on December 12, as well as on Hudson-Hychem.2 The instant complaint issued on July 3, 1969, and the case was heard thereafter on September 30 and October 1 and 2. After the hearing briefs were received from all Respondents and from the General Counsel. The issues litigated related to alleged interrogation, threats of reprisals, and discriminato- ry layoffs. Upon the entire record,3 including observation of the witnesses' demeanor, the following findings and conclu- sions are adopted. 1. THE RESPONDENTS Hudson Engineering Corporation, hereinafter sometimes referred to as Hudson, is a corporation organized under 1 All dates are in 1966, unless otherwise indicated. 2 A second amended charge and a third amended charge were admittedly served upon Hudson-Hychem on February 12 and April 4, 1968, respectively. Texas-Eastman denied receiving the second amended charge but admitted receipt of the third amended charge There is no need to resolve the issue thus raised as to service of the second amended charge. 3 For corrections of the record and certain rulings on evidence , see the order of December 5, 1969. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texas law, with a principal office in Houston, Texas, and is engaged in engineering and construction work. It annually secures from out-of-state sources supplies valued in excess of $50,000 and annually performs services for out-of-state clients in the value of more than $50,000. Hychem Constructors, Inc., hereinafter sometimes referred to as Hychem, is a Texas corporation and a wholly owned subsidiary of Hudson, and, in accordance with the finding of the Board in a related representation case,4 and the admission in their answer herein, it is found that both firms constitute a single employer for the purposes of this case. Between 1960 and May 1, 1967, Hychem engaged in construction and maintenance work under a subcontract with Hudson at the plant of Eastman Kodak Company in Longview, Texas. During the 12 months preceding May 1, 1967, Hychem performed services valued in excess of $50,000 pursuant to the foregoing subcontract. Eastman Kodak Company herein sometimes referred to as Eastman, is a New Jersey corporation. At its plant in Longview, Texas, referred to above, it is engaged in the manufacture and sale of petrochemical products. It has annually shipped to out-of-state points from its Longview plant products valued in excess of $50,000. Caddo Construction Company, hereinafter sometimes referred to as Caddo, is a Texas corporation and a wholly owned subsidiary of Eastman. Caddo has a principal office at Longview, where it has since May 1, 1967, been engaged in construction work at the foregoing Eastman plant, and it annually performs services for Eastman in the value of more than $50,000. In accordance with the Board's finding in the aforecited representation case and the admission in their answer in the case at bar, it is found that Eastman and Caddo constitute a single employer for the purpose of this case. Such employer is herein referred to as Eastman- Caddo. It is concluded that Respondents Hudson-Hychem and Eastman-Caddo are employers engaged in commerce within the meaning of the Act. and maintenance work there under contract with Eastman until 1960, when the work was assigned by Hudson to its wholly owned subsidiary, Hychem. This arrangement continued until May 1, 1967, when it was terminated by Eastman and the same work was thereafter performed by Caddo, a wholly owned subsidiary of Eastman. During the period of Hychem's activity at the jobsite, Hychem and Hudson were the joint employers of the instant employees, and of the various supervisors referred to below. In August 1966, while Hudson-Hychem was still performing the construction and maintenance work at the plant, the Union began to organize the welders, pipefitters, and pipefitter helpers employed in such work. In August and September, several meetings were held by the Union, at which cards were signed. On September 9, Hudson- Hychem laid off 30 individuals, including a number of pipefitters and pipefitter helpers. On September 16, the day after a union meeting, nine more men were laid off, of whom eight had attended that meeting. None of the eight has been rehired or replaced. All of them, except for Hester, who was a supervisor, are the subject of the instant proceeding and are hereinafter referred to as the "claimants." Charges filed on their behalf on September 19, and December 12,1966, were held in abeyance pending the outcome of a representation proceeding instituted by the Union on October 20, 1966.5 That proceeding was prolonged by the need for resolving problems as to the appropriateness of the unit and as to the identity of the employer both before and after the termination of Hudson- Hychem's contract on May 1, 1967. It was not until April 28, 1969, that the Board entered its final decision in the representation case,6 in which it affirmed a prior finding as to the appropriateness of the unit sought by the Union, and in which it determined that Eastman and Caddo had since May 1, 1967, been joint employers of the employees in such unit, displacing in that role Hudson-Hychem. An election was held on May 21, 1969.7 B. Discussion if. THE UNION Plumbers and Steamfitters Local Union No . 301, United Association of Steamfitters, Pipefitters, Plumbers and Apprentices, AFL-CIO, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondents violated Section 8(a)(1) of the Act by interrogation and threats? 2. Whether Respondents violated Section 8(a)(3) and (1) by laying off seven union adherents? A. Sequence of Events The plant here involved, at Longview, Texas, is owned and operated by Eastman. Its construction was begun in 1951 by Hudson, which continued to perform construction 4 Case 16-RC-4475. 5 Case 16-RC-4475 6 Texas Eastman Company, 175 NLRB No. 105. 1. Threats and interrogation Pate testified that early in the afternoon of September 9, while working at the instant plant with Murray, he overheard a conversation between Murray and his father- in-law, Brown, a supervisor,8 in which Brown stated he had heard that Murray had gone to a union meeting, and asked if that was true. Pate added that, when Murray admitted that he had gone to the meeting, Brown declared that Hychem "was not going to stand for any Union guys out here, they'll give us trouble . . . if it goes Union Hychem won't be in here any more." Murray substantially corroborated the foregoing testimony. Brown's version was that he remarked to his son-in-law that he heard he had a union card, that the latter answered that he had applied for one, and that, while Brown then attempted to portray the disadvantages of unions in terms of their affinity for strikes and the employer's right to replace strikers, he did not utter the warning ascribed to 7 The Union was rejected by a substantial margin. 8 He was general pipe foreman for Hudson-Hychem. EASTMAN KODAK COMPANY him by Pate and Murray. However, I credit them on the basis of demeanor as well as the mutually corroborative nature of their testimony.9 It is found that by the foregoing interrogation of Murray, in the presence of Pate, and by the warning that Hychem would not put up with union adherents Hudson-Hychem violated Section 8(a)(1) of the Act.10 Porter, one of the claimants herein, testified that early in September Brown asked him if he had heard anyone say they would "buy them a Union book,"" that the witness answered that several had indicated they intended to do so, that Brown then inquired who had "started all this," and that, when Porter demurred at answering, Brown asserted, "Well, we're going to get to the bottom of it one way or the other, and anyone that is affiliated with the Union any way at all will be immediately terminated." Brown's version was that he merely asked Porter what he knew about the Union and that Porter rejoined that the men were going to try to organize. The warning here imputed to Brown that all union adherents would be discharged was not far different from that which, as found above, was delivered by Brown about the same time to his son-in-law. The circumstances of that incident establish that Brown had no qualms about giving currency to such a warning nor about entering a false disclaimer at the hearing. That he would do so on the one occasion makes it easier to believe that he would do so again. In view of these considerations, as well as demeanor, I credit Porter as to such warning, 12 as well as the related interrogation, which was partially admitted by Brown, and it is found that, after attempting to ascertain from Porter who the union adherents were and who had instigated the union movement, Brown threatened that there would be a thorough investigation of the employees' union activities 9 Respondents stress (1) the close personal relationship between Brown and Murray as negating any intimidation of Murray , (2) and the fact that the conversation was not intended for Pate 's ears. However, as to the latter point, one cannot escape responsibility for the effect of his words on another, who, although not directly addressed, is standing, as here, only several feet away. As to the former point, the fact that it was his father-m- law rather than a stranger who warned him that Hychem would not "stand for" any "Union guys" could hardly have given Murray any reason to discount such warning. On the contrary, coming from a friendly source, the warning would presumably have carried even more weight than otherwise. On the issue of credibility, it is true that neither Pate nor Murray was likely to be favorably disposed to the Respondents. Pate had been laid off on September 9, and Murray had quit because of some pique over a job assignment However, in order to discredit them it would be necessary to assume that Murray was willing to fabricate testimony adverse to that of his father-in-law, with whom he was still on friendly terms , even though, so far as the record shows, Murray could derive no material benefit therefrom. Under all the circumstances, I do not regard the matters cited by Respondents as sufficiently cogent to overcome the considerations favoring the credibility of Pate and Murray. 10 Respondents contend that such warning was neutralized, in any event, by Brown's alleged remark to Murray in the same conversation that there was no objection to employees having union cards but only to their interfering with work by talking Union. Brown so testified, and neither Pate nor Murray was specifically asked about this. However, even if such a remark was made, it was clearly inconsistent with Brown 's warning, as related by Pate and Murray, to the effect that Hychem would not be favorably disposed to union adherents, and the situation would be one where an employer takes conflicting positions with respect to union activity, leaving it to the employees to guess at their peril what his true sentiments are. Since the employees in such a situation would be likely to conclude that they would be safe from reprisals only if they abstained from 223 and those involved would be discharged. By such threat, as well as the related interrogation , Hudson-Hychem violated Section 8(a)(1). Porter added that on September 16, Brown came to him at the end of the workday and asked if he had attended the union meeting the night before, and that, when Porter answered that he had, Brown notified him that he was being laid off. According to Brown, all that occurred on that occasion was that, when told of his layoff, Porter charged that it was because of the Union, which Brown denied. As I have found him more credible than Brown elsewhere, I credit Porter here. By such interrogation, Hudson-Hychem further violated Section 8(a)(1).13 T. Barrett, who was among those laid off on September 16 and a claimant herein, testified that a few days before such layoff he was asked by Ables, an area supervisor, whether he had a "book," that Barrett replied that he had asked for one, that Ables inquired how strong the Union was, and that Barrett answered that quite a few had applied for books. Ables denied that there was any such conversation, and Barrett admitted that he had omitted any reference thereto in an affidavit given by him to a Board agent about a month after the event, and failed to offer any satisfactory explanation for such omission. Accordingly, I do not credit Barrett and find no violation here. 2. The layoffs On September 16, nine men were ostensibly laid off. All worked in the pipefitting department. One of them was Jody Hester, a supervisor. As to another, C. M. Robins, the record shows that his inclusion in the layoff list was merely union activity, it follows that the net effect of the employer's remarks in such a case would be to inhibit any union activity. I so find here. 11 This expression, which recurred throughout the record, evidently had reference to joining the Union. 12 Respondent cites testimony by Brown that he did not ordinarily use such terms as "affiliated" and "terminated," although he admittedly knew what the terms meant. Brown held an intermediate supervisory position and appeared to be far from illiterate. Moreover, even if the language ascribed by Porter to Brown was not typical of him, that would not preclude crediting Porter. Brown could have lapsed into more formal phraseology in order to add solemnity to his warning or Porter's rendering of that warning at the hearing might have reflected Porter's recollection of the sense of the warning rather than its exact wording. 13 Porter testified that on the morning of the 16th he overheard a remark by Millwright Foreman James, an admitted supervisor, to several of the millwrights, which attributed to Construction Superintendent Wilson a threat that all union adherents would be laid off and not recalled . James' denial was corroborated by the millwrights. Wilson denied that he made such a threat. While Porter appeared to be sincere, so did at least some of the millwrights. The burden of proof was on the General Counsel Under the circumstances, it is found that he has not discharged that burden with regard to the foregoing incident. At the hearing there was struck an allegation of the complaint that Respondents solicited a promise from prospective employees that they would refrain from union activity. The only evidence in support thereof was certain testimony by Doonan that about September 1, 1966, he applied to Supervisor Bortzfield for assistance in obtaining reemployment as a pipefitter and that, after questioning him about his union affiliation, Bortzfield advised him to tell Construction Superintendent Wilson that he was not a union member. Bortzfield denied that there was any such conversation. The incident was not alleged as an instance of interrogation, and as no useful purpose would be served in any event by resolving the foregoing conflict, I do not pass on the matter. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a matter of form, as he had already given notice that he was quitting on the 16th.14 The remaining seven employees (the instant claimants) are alleged by the General Counsel to have been selected for layoff because of their attendance at the union meeting held on September 15. All seven (as well as Foreman Hester) had in fact attended that meeting. It thus becomes relevant to determine whether the layoff reached a disproportionate number of the employees who were at the meeting. In making this determination it seems appropriate to compare the total number of such employees with the total number of pipefitting employees.15 So far as appears from the record, on September 15, there were 142 such employees 16 of whom only 20 had attended the meeting. On this basis, it was to be expected that, all other things being equal, the layoff would reach no more than one or two of the employees attending that meeting, and not, as was actually the case, that all seven employees adversely affected by the layoff 17 would have been among those attending the meeting. Moreover, it seems strange that, of the 11 pipefitter foremen still employed on the 15th, the one selected for layoff was Hester, who was the only 1 of the 11 who had attended the meeting on the 15th. By way of contrast, it may be noted that of the 11 pipefitting employees shown to have attended the union meeting on September 7, only 1 (Lacey) 18 was included in the September 9 layoff, although it affected 20 pipefitting employees. In addition, the General Counsel points to such union animus as Brown's warnings to Murray and Porter of reprisals against union adherents and to certain utterances by Wilson, who was Hudson-Hychem's construction superintendent, and who at the hearing assumed the ultimate responsibility for the layoff action on September 16. Thus, although asserting that he had in his employ a number of men, including Porter, who had long been known by him to be members of various unions, Wilson admitted at the hearing that he preferred not to have to deal with unions; and, Cobb, a supervisor, who was, himself, laid off on September 9, testified that on September 2, when, in response to a query by Wilson about the progress of the union campaign, Cobb disclosed that many of the men, including the witness, were "buying books," Wilson flushed and declared that somebody was going to "get hurt bad" and there was nothing that Wilson could do about it. 14 Although initially denying that Robins had given such notice, Wilson later confessed that he did not know why Robins was selected for layoff and that he might in fact have quit, and Brown acknowledged that he understood that Robins had been planning to quit on the 16th. Is Although all those laid off were in the pipefitting department, which was the sole target of the Union's campaign, I do not give any weight to this coincidence, there being no effective contradiction of Wilson's testimony that the September 16 layoff was confined to the pipefitting employees because at that time there was a surplus of such employees. Accordingly, comparison is made in the text only between the number at the meeting on the 15th and the total number of pipefitting employees rather than the total number of all employees. 16 The record shows that about a month after the September 16 layoff there were 134 such employees, and that there had been no change in the size of the pipefittmg complement during that month. In arriving at 142, I have added 8 of the 9 men who were separated on the 16th, omitting Hester, since he was not an employee but a supervisor. 17 Although there was no evidence that Robins attended the union meeting on the 15th, it has already been found that he was not in fact laid Wilson admitted his interrogation of Cobb on that occasion, but denied that he uttered the foregoing warning. On the basis of demeanor, as well as the circumstantiality of his testimony, I credit Cobb.19 Accordingly, it is found that, while he had in the past employed members of the various construction trades unions, Wilson was averse to dealing with unions, and, when the instant Union launched a campaign for recognition, he became concerned about the success of that campaign and, as Cobb testified, warned of reprisals against those who were supporting the Union. As for Respondent's defense, the following explanation for the layoffs emerges from a synthesis of the testimony of Wilson, Brown, the general pipefitter foreman, C. Harris, an area supervisor, and Soap, a pipefitter foreman: The layoffs on the 16th were merely an integral part of a retrenchment program initiated on September 9, when 30 men, including 20 pipefitting employees, were separated. An additional 9 men would have been laid off at that time but for physical limitations, which precluded the processing of more than 30 layoffs at one time. As in the case of all prior layoffs, selections were made without regard to seniority, the only consideration being ability, and on this score Wilson relied entirely on the recommendations of his supervisors and did not, himself, put forward any names. The selection process began on the 13th, and "quite a few" names other than those of the claimants were discussed by Wilson with his supervisors.20 Wilson made tentative selections before the 16th, but did not reach a final decision until that date. On the morning of the 16th, Brown for the first time proposed the names of J. Fountain, F. Wimberly, P. Burks, and M. Malone. The layoff of the last two had been previously suggested to Brown by Soap. On that occasion, Brown also discussed with Wilson for the first time the selection of Porter. The names of the two remaining claimants, R. Harris and T. Barrett, were proposed by C. Harris. It thus appears from the testimony of Respondent's own witnesses that, while a tentative selection was made before the 16th from a list of names submitted to Wilson by his supervisors, which list included employees other than the claimants, the names of five of the claimants were not submitted to Wilson until the morning of the 16th.21 It follows that the inclusion of those five claimants in the layoff list represented a last-minute change. That such a change should have been made only the morning after the off but left voluntarily. 18 Although his name is not listed on the September 9 layoff notice in evidence, it is clear from Resp. Exh. 8 that he was laid off on that date. Is Although his testimony seemed at some points to be colored by partisan interest, it was not uniformly favorable to the General Counsel. See discussion below regarding T. Barrett. 20 Wilson so testified. Elsewhere, he asserted that the names of those actually laid off on the 16th were the only ones proposed to him. I do not credit such testimony, as it was more obviously self-serving than the version given above in the text. 21 Brown insisted that he first recommended the layoffs of Burks, Malone, Fountain, and Wimberly on the morning of the 16th. As to Porter, Brown testified only that his name was first "discussed" by him with Wilson that morning, and since Wilson's own testimony fails to show any discussion of Porter's name with any supervisor other than Brown, and Wilson denied that he, himself, proposed any names, it is inferred that Porter's name was submitted to Wilson by Brown, and that this happened in the morning of the 16th, when, as Brown insisted, he was first consulted about the layoffs. EASTMAN KODAK COMPANY 225 five had attended a union meeting is a striking coincidence. It is also coincidental that the change was suggested by Brown, who had warned Porter that Hudson-Hychem would "get to the bottom" of the employees' union activity and discharge those involved therein. As to the reasons for the selection of particular individuals, Wilson and Brown agreed that, although he was one of the most senior welders, Porter had become one of the least productive, refusing to do any work that involved climbing, and that Fountain was less productive than any of the welders that were retained. As to Wimberly, while conceding that he was a good welder, Wilson ascribed his selection to the fact that, having worked on pipelines in the oil fields where wages were higher, he could not be relied on to stay on the job, if and when such other work became available. However, Brown, upon whose advice Wilson based the selection of Wimberly, explained that selection solely on the ground that Wimberly was not as productive as those who were retained. It thus appears that the selection of Porter, Fountain and Wimberly was justified either on the basis of subjective appraisals of their relative capabilities or, in the case of Wimberly, on conflicting grounds. With respect to Burks and Malone, Foreman L. C. Soap testified that about 3 weeks before the September 9 layoff he recommended to Brown that he avail himself of the first opportunity to dispense with the services of Burks, Malone, and H. L. Davis, the last because of his incompetence and the others because of their excessive absenteeism. Corrobo- rating Soap, Brown added that he regarded Burks as "least productive." While Wilson also ascribed the selection of Burks and Malone to absenteeism, he did not seem to share Brown's opinion of Burks' productivity, and expressly conceded that Malone was a good worker. Burks did not dispute that he had been guilty of absenteeism,22 and acknowledged that he was reprimanded therefor 3 to 5 months before his layoff, but opined that his attendance improved thereafter. Malone, too, acknowl- edged that he had been guilty of absenteeism, but insisted that the last instance of this occurred early in 1966; that he last worked under Soap in April 1966 when he was laid off; that he did not return to the instant job until August 8; that between that date and September 16 he worked under Pipefitter Foreman Robins and not under Soap; and that he did not miss any time under Robins. Respondent's records confirm that Malone's last period of employment began on August 8, and Robins was not called to contradict Malone's testimony that during that period Robins, and not Soap, was Malone's supervisor and that his attendance was regular during that period. In any event, even if Soap be credited that he recommended to Brown that Burks and Malone, as well as Davis, be included in the next layoff, it is clear that such recommendation was followed only as to 22 Burks' own testimony was that he "probably" had the worst record of absenteeism among the pipefitters. The General Counsel after the hearing submitted a proposed stipulation purportedly based on Respondent's records, which showed that during Ins last 3 months of employment five other pipefitters had been absent as often as, or more often than, Burks (and that Malone had not been absent at all during his last period of employment). The General Counsel requested that such document be received in evidence or that, in the alternative, the record be reopened to take testimony regarding the matter Eastman-Caddo objected to the foregoing tender on the ground, inter alga, that it was entitled to show Davis, who was in fact laid off on September 9, and that, so far as the record shows, no consideration was given to laying off Burks and Malone until Brown submitted their names to Wilson in the morning of the 16th. Thus, it appears that Brown, contrary to Soap, did not regard their absenteeism as sufficient reason to dispense with their services until after the Union meeting on the 15th. Respondents point to the absence of any direct evidence that Brown or Wilson knew who attended that meeting. Both, in fact, denied that they had any information on that score. Wilson added that about September 1, when he first learned that the Union was conducting organizing meetings, he instructed his supervisors not to discuss the Union with the employees and to report to him "if they heard anything." When asked what he meant by this instruction, Wilson explained that he intended only that the supervisors relay to him information about "what kind of activity was going on," and, when asked (by the Examiner) whether he thereby had reference to union activity on the job, he agreed that this was the only thing he had in mind. However, he did not claim that he made this clear to his supervisors, denying only that they did report to him about union meetings. Soap admitted that about noon on September 16, Burks (voluntarily) disclosed that he had attended the union meeting the night before. While Soap denied that he reported this to anyone, such report would seem to have been required by Wilson's foregoing unqualified instruction to his supervisors. In the case of Porter, it has been found above that Brown notified him of his layoff immediately after eliciting from him an admission that he had attended the union meeting the night before. This suggests either that Brown was seeking verification of Porter's attendance at the meeting before deciding whether to lay him off or that Brown asked the question only as a means of notifying Porter by indirection that he was being laid off because of such attendance. In any event, even absent any direct evidence of knowledge of the claimants' attendance at the meeting on the 15th, there is sufficient circumstantial evidence that such attendance was a factor in their selection for layoff, namely, the coincidence in timing; the fact that of the 142 employees and 11 foremen then in the pipefittmg department the only ones laid off were 7 of the 20 employees and the 1 foreman who had attended the meeting on the 15th; Brown's avowed determination to get to the bottom of the matter and terminate all union adherents; and Wilson's veiled warning to Cobb of reprisals against union adherents, as well as the efforts of Brown and Wilson to ascertain through interrogation of Porter and Cobb, respectively, the identity of such adherents and the progress made by the Union.23 It is found, therefore, that, by laying off Porter, Burks, Malone, Fountain, and Wimberly because of their various matters in rebuttal. In view of such objection, I rejected the stipulation. I also denied the General Counsel's alternative motion to reopen, since, in view of the ultimate disposition herem of the cases of Burks and Malone, no useful purpose would be served by litigating the issue of their comparative absenteeism at this time. 23 As to the propriety of inferring from circumstantial evidence employer knowledge of an employee's Union activity, see Sunshine Food Markets, Inc., 174 NLRB No. 76, and N.L.R.B. v. Lawson Printers, Inc., 408 F 2d 1004 (C.A. 6) 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attendance at a union meeting, Hudson-Hychem violated Section 8(a)(3) and (1) of the Act. There remain to be considered the cases of R. Harris and T. Barrett. Both had attended the union meeting on the 15th, and it is inferrable from the circumstances related above that Wilson was aware of that fact. However, in their cases, unlike those of the other claimants, there is no evidence that their selection represented a last-minute change in the layoff hst.24 As already noted, their names were proposed by Area Supervisor C. Harris. Both he and Wilson agreed that R. Harris, a pipefitter, was selected because he had lost considerable time from work due to illness, and could not climb but could work only on the ground, and that Barrett, also a pipefitter, was less versatile than those who were retained. R. Harris admitted that he had been absent from work early in 1966 due to surgery and that he preferred to work on the ground. Cobb, who had been Barrett's supervisor, and whose testimony was otherwise generally favorable to the General Counsel, vacillated somewhat in his appraisal of Barrett's ability, his final position being that he was only as good as the average pipefitter. Under the circumstances, there is no preponder- ance of evidence that the reasons assigned for the selection of Barrett and R. Harris were meretricious. Accordingly, while the matter is not free from doubt, it will be recommended that the allegations of discrimination against R. Harris and T. Barrett be dismissed.25 IV. THE REMEDY The fashioning of a remedial order herein is complicated by recent changes in Board policy with respect to the liability of successors for remedying the unfair labor practices of their predecessors. In Symns Grocer Co., 109 24 In fact, C. Hams' testimony seems to imply that he proposed the names of R. Harris and Barrett before the 16th, and, hence, before either C. Hams or Wilson could have known who attended the union meeting the night of the 15th. 25 The instant complaint did not allege that the decision to effect a layoff on September 16 was discriminatorily motivated but only that the selection of the claimants for layoff on that date was discriminatory (and that Respondents had failed and refused to reinstate them because of their union activity). In view of this, I construed the complaint as attacking not the decision to effect a layoff but only the basis on which the claimants were selected. However, at the hearing the General Counsel sought to introduce evidence not only of improper selection, but also that there was no economic justification for the layoff and that the only purpose thereof was to discourage union activity. It was pointed out to him that the latter evidence seemed to go beyond the scope of the complaint and he was placed on notice that it would not be entertained unless he amended the complaint. When he failed to amend, further evidence along that line was excluded. In his brief, the General Counsel seems to renew the contention that there was no economic justification for the September 16 layoff. However, upon the present record, the matter not having been sufficiently litigated, it would be inappropriate to pass on such contention. Also, in his brief, the General Counsel for the first time expounded still another ground for rehef-namely, that, even if the September 16 layoff was in all respects lawful, it was converted into a discriminatory lockout by reason of the fact that after the layoff Eastman assigned to another contractor (Brown & Root) work that otherwise would have been given to Hudson-Hychem, the sole reason therefor being to prevent the rehiring of the claimants. While the complaint alleges a discriminatory refusal by Respondents to rehire, such allegation was readily construable as related to the immediately preceding allegation of a discriminatory selection for layoff, and not as an independent, alternative allegation, and nothing was said at the hearing to cause Respondents to think otherwise. In fact, the Examiner repeatedly indicated at the hearing that he regarded Eastman NLRB 346, the Board had held that a bona fide successor-that is, one who was not merely an alter ego or disguised continuance of the predecessor-was not respon- sible for remedying the violations of his predecessor. However, this rule was modified in Perma Vinyl Corporation.26 From analysis of that Decision and related cases, principally Thomas Engine Corporation,27 the follow-' ing principles emerge: 1. A bona fide successor will be required to remedy its predecessor's unfair labor practices to the extent indicated below, but only if, (a) at the time of taking over its predecessor's operations, the successor had notice of the unfair labor practice charges against its predecessor and (b) the successor continued the business in "basically un- changed form." 2. In lieu of posting, the predecessor will be required to mail a notice to its former employees containing the usual pledges (a) not to repeat its past violations and (b) to take the affirmative action-required by the Board's Order. The successor will be required to post a notice setting forth only such affirmative action as it is required by the Board to take. 3. The predecessor's liability for backpay to a discrimi- natorily discharged employee will be limited to earnings lost from the date of discharge to the date he obtains any substantially equivalent employment or an offer thereof from the successor or any other employer. The successor will be jointly and severally liable with the predecessor for the discharge of the latter's backpay obligation as defined above, at least with respect to the period after the takeover, provided that it sufficiently appears that the successor would have hired the discriminatee had he been in the predecessor's employ at the time of the takeover.28 (and Caddo) as involved in the proceeding only because of the possibility that, as a successor of Hudson-Hychem, it might be required, under Perma Vinyl Corp, 164 NLRB No. 119, to remedy any violations of the Act found to have been committed by the predecessor. The General Counsel did not take issue with this view, and the foregoing statement in his brief is the first clear indication that he intended to prove a substantive violation by Eastman. Under these circumstances, it is found here, too, that the matter was not adequately litigated. Moreover, while the record shows that after the layoff work was assigned by Eastman to another contractor that might have been done by Hudson-Hychem, the General Counsel cites no evidence in support of his claim of discriminatory motivation for such assignment other than the fact that Hudson-Hychem worked on a cost-plus basis whereas the other contractor received a fixed contract price. The General Counsel would have the inference drawn from this, that it would have been cheaper for Eastman to use Hudson-Hychem and that the only reason for not doing so was to obviate any need for rehiring the claimants. I do not believe that the foregoing difference in the mode of compensation, without more, would warrant such an inference. 26 164 NLRB No. 119, affd. 398 F.2d 544 (C.A. 5) 27 179 NLRB No. 165. See also Gustin Bacon Manufacturing Co., 173 NLRB No. 56, and Emerson Electric Co., 176 NLRB No. 98. 28 Absent an adequate showing to that effect, the Board will apparently treat the case, from the standpoint of the successor's backpay habihty, like one where backpay is tolled by the happening of an event which would have required the discharge of the discriminatee for lawful reasons. That seems to be the effect of the treatment of this matter in Thomas Engine, suprq where the Board exonerated the successor from any backpay liability because of a substantial reduction in force at the time of the takeover, which rendered it doubtful that the discriminatees would have been employed by the successor, even if they had not previously been unlawfully terminated. However, for reasons not explained in that decision, the Board did not there terminate the predecessor's backpay liability as of the date of EASTMAN KODAK COMPANY However, such liability will not in any case be imposed on the successor with respect to any period before May 24, 1967, when the decision in Perma Vinyl issued. 4. The successor alone will be required to offer reinstatement, and it alone will be liable for any wages lost as a result of its failure to comply with that requirement. The applicability of the foregoing principles to the instant case will now be considered seriatim. 1. As to 1(a), it is here conceded that Eastman-Caddo was fully aware on May 1, 1967, of the pendency of the instant proceeding; 29 and, as to 1(b), it was found by the Board in the representation case, and the instant record amply shows, that on and after May 1, 1967, Eastman- Caddo continued to perform the same work as had formerly been done by Hudson-Hychem at the plant site, with the same supervisors and employees. Thus, in that respect, the situation was comparable to that which obtained in Perma Vinyl. 2. Application of the rule stated above would require that Hudson-Hychem mail to its former employees at Longview the usual form of notice, and that Eastman- Caddo post at the Longview plant a notice setting forth only such obligation as may be imposed on it by the Board with respect to backpay and reinstatement. It will accordingly be so recommended. 3. (a) Hudson-Hychem contends that any liability imposed on it for backpay should end as of May 1, 1967, when its operations at Longview ceased. However, under the rule stated above, such liability continues to the date that the discriminatees obtain from another employer substantially equivalent employment or an offer thereof. As explained by the Board, the reason for this is that it will be presumed that, absent their prior unlawful discharge, the discriminatees would have been retained by the successor. This presumption will be indulged in not only where, as here, the successor took over virtually intact the predeces- sor's entire work force,30 but even where there was substantially less than a total transfer of the work force 31 Accordingly, it will be recommended that Hudson-Hychem be required to pay backpay to the discriminatees from the date of their layoff to the date that they obtain, or are offered, substantially equivalent employment elsewhere.32 (b) Eastman-Caddo opposes the imposition upon it of any liability for accrued backpay on various grounds. Initially, it contends that, unlike the situation in Perma Vinyl (and Thomas Engine), Eastman-Caddo did not buy the transfer of ownership, but presumably left it to compliance proceedings to determine whether the discriminatees would have lost their jobs, in any event, at the time of the takeover, because of the reduction in force that occurred at that time. Moreover, while the possibility of a nondiscnmmato- ry elimination of the discriminatees' jobs at the time of the takeover was deemed to relieve the successor of any obligation for accrued backpay, that possibility was not thought to affect the successor's obligation to offer the discnminatees reinstatement or placement on a preferential hiring list. 29 Eastman had in fact been named as one of the Respondents in the first amended charge, which was served on it on December 12, 1966, and was named in the first amended complaint, which issued on March 14, 1967. 30 American Auto-Felt Corp, 158 NLRB 1628; Emerson Electric Co., 176 NLRB No. 98; Perma Vinyl Corp., supra. 31 Thomas Engine, supra 32 To the extent indicated below, such backpay liability shall be joint and several with that of Eastman-Caddo. 33 This consideration was stressed also in Thomas Engine, supra 227 anything from Hudson-Hychem but merely replaced it as a contractor upon the expiration of its contract. According to Eastman-Caddo, the significance of this distinction is highlighted by the weight given by the Board in Perma Vinyl to the fact that a successor's "potential liability for remedying the unfair labor practices [of his predecessor] is a matter which can be reflected in the price he pays for the business or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices." Eastman-Caddo urges that the foregoing justification is not available here, since there was no price paid and no sales contract. However, the foregoing were not the only considerations cited by the Board. In addition, the Board observed that the successor becomes the "beneficiary of the unremedied unfair practices" of the predecessor.33 In this connection, it may be noted that Eastman-Caddo shared Hudson-Hychem's aversion to dealing with unions and used Wilson, the chief architect of Hudson-Hychem's unfair labor practices, as the vehicle for conveying its antiunion sentiments to the employees.34 Eastman-Caddo contends, further, and prop- erly so, that it is entitled to the amnesty granted by the Board in Perma Vinyl, to successors with respect to backpay liability for the period antedating the Board's Decision in that case, which issued on May 24, 1967. As to the period after that date, Eastman-Caddo argues as follows: Following the Perma Vinyl decision on May 24, 1967, what was Texas Eastman expected to do, liquidate Caddo after substantial expenditures of time and money incident to its formation and search for an alternative way to continue scheduled construction or else face the new liability created by Perma Vinyl? It would seem that the obvious answer to the foregoing question is that all that Eastman-Caddo had to do to forestall any backpay liability was to offer reinstatement to those claimants who had been laid off for discriminatory reasons 35 Accordingly, with respect to backpay for the period after May 24, 1967, it will be recommended that Eastman-Caddo be held jointly and severally liable with Hudson-Hychem. 4. With regard to reinstatement, it is clear that for reasons of geography, if for no other reason, Eastman- Caddo is in a better position than Hudson-Hychem to offer the discriminatees, upon their application, reinstatement to their former or substantially equivalent jobs.36 It will, accordingly, be recommended that Eastman-Caddo be 34 See G. C. Exh. 8. Wilson occupied essentially the same position with Eastman-Caddo as he had held with Hudson-Hychem. 3s There seems to be implicit in Eastman-Caddo's position the contention that, since it did not, itself, make the layoff selections, it had no way of knowing whether the instant 8(a)(3) charges were meritorious, and should not be "penalized" for inaction under the circumstances. However, in view of the close working relationship between Eastman and Hudson- Hychem, as shown by the record, it is proper to infer that Eastman-Caddo was either aware of Hudson-Hychem's motives for selecting the claimants for layoff or could readily have ascertained the facts through investigation. While they do not suffice to render Eastman or Caddo responsible for the instant discrimination, these considerations militate against accepting any plea of ignorance as a basis for excusing either of them from liability for accrued backpay. 36 The record shows that, here, unlike the situation in Perma Vinyl and Thomas Engine, the principal predecessor (Hudson) is not defunct but is still carrying on extensive operations at various points in Texas and neighboring States. However, at the time of the hearing none of these (Continued) 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required to make such an offer, and' that it be held solely liable for any backpay accruing with respect to the period beginning 5 days after the date on which any of the discriminatees applies for reinstatement to the date of a proper job offer by Eastman-Caddo 37 As in - all other cases, backpay will be measured by earnings lost as a result of the discrimination found herein, after deductmg net interim earnings, and will be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest will be added at 6 percent annually as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Hudson Engineering Corporation and Hychem Constructors, Inc., herein called Hudson-Hychem, consti- tuted a single employer, which was the employer of the instant employees at all material tunes before May 1, 1967. 2. Since May 1, 1967, Eastman Kodak Company and operations appeared to be within reasonable commuting distance from Longview If, due to a change in circumstances, or for any other reason, it believes it can show that Hudson-Hychem is in a position to offer substantially equivalent employment to any of the discrunmatees, Eastman-Caddo may apply to the Board for leave to make such a showing and for appropriate modification of the Board's remedial order in the light thereof 37 Nothing herein should be construed as precluding Eastman-Caddo from making, in advance of any application, such job offers as it deems necessary to toll its joint and several backpay liability, as defined above, nor as precluding Hudson-Hychem from making such offers as it believes Caddo Construction Company, herein called Eastman- Caddo, have operated as a single employer, performing work of the same nature as that formerly done by Hudson- Hychem, and using the same work force at the same location. 3. Both Hudson-Hychem and Eastman-Caddo are employers under the Act. 4. By interrogating employees about their union activity and threatening reprisals for such activity, Hudson-Hy- chem has violated Section 8(a)(1) of the Act. 5. By laying off Jack Porter, Pete Burks, Malcolm Malone, James Fountain, and Fredrick Wimberly because of their attendance at a union meeting, Hudson-Hychem has violated Section 8(a)(3) and (1) of the Act. 6. Eastman-Caddo was not responsible for any of the foregoing violations, but, as successor of Hudson-Hychem, is responsible for remedying them to the extent indicated above. [Recommended Order omitted from publication.] necessary and appropriate to toll its own responsibility for backpay. (The record shows that, when laid off, the claimants were encouraged by Hudson-Hychem to apply for employment at other projects of Hudson, and that in most, if not all, cases no such application was made. It is not contended, and there is no evidence, that such encouragement constituted a firm offer of employment, nor that the other jobs were substantially equivalent to those at Longview. At any rate, the effect, if any, to be given to the failure of the claimants to seek work at such other projects as mitigating liability for backpay is a matter to be determined in compliance proceedings.)