Robertson Glass and Glazing Contractor, Inc.

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robertson Glass and Glazing Contractor, Inc. and Del- bert K. Sylvester. Case 28-CA-2145 February 22, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 15, 1971, Trial Examiner Herman Marx issued the attached Decision in this proceeding. There- after, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Robertson Glass and Glazing Contractor, Inc., Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN MARX, Trial Examiner: The material issues in this proceeding are whether Robertson Glass and Glazing Contractor, Inc. (herein the Company or Respondent), laid off, and has refused to reinstate, seven employees because of their union or other protected concerted activities, thus vi- olating Section 8(a)(1) and (3) of the National Labor Rela- tions Act' (herein the Act), and whether, in violation of said Section 8(a)(1), it interrogated employees concerning their union activities, threatened them with discharge and other reprisals because of such activities, and warned employees to refrain from engaging in them.' The Respondent has filed an answer which, inter alia, admits that the named employees were laid off but denies the commission of the unfair labor practices imputed to it. Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (herein the Board) on the Charging Party, Delbert K. Sylvester, and the Respond- ent, a hearing on the issues has been held before me, as duly designated Trial Examiner. The Board's General Counsel 29 U S C 158(a)(1) and (3) The complaint was issued on October 12, 1970, and is based on a charge filed on July 27, 1970 Copies of the complaint and the charge have been duly served upon the Respondent The case was heard at Phoenix, Arizona, on April 20, 21, and 22, 1971 Briefs were filed on July 12, 1971 and the Respondent appeared through respective counsel and were afforded a full opportunity to adduce evidence, examine and cross-examine witnesses, submit oral argument, and file briefs. The Charging Party did not enter an appearance as a party but testified. Upon the entire record, from my observation of the de- meanor of the witnesses, and having read and considered the respective briefs of the General Counsel and Respondent, I make the following findings of fact: I NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD The Company is an Arizona corporation, maintains its principal office and place of business in Phoenix, Arizona, where it is engaged in business as a "glazing contractor" in the building, and construction industry, and is and has been at all material times an employer within the meaning of Sec- tion 2(2) of the Act. During the calendar year 1969, in the course and conduct of its business operations, the Company performed services valued in excess of $50,000 for Superlite Builders Supply, Inc. (herein Superlite), an enterprise engaged in Phoenix, Arizona, in the manufacture and wholesale sale of building products. That enterprise annually purshases goods and materials valued in excess of $50,000 directly from suppliers located in States other than Arizona. By reason of the services rendered to Superlite, the Company is, and has been at all material times, engaged in interstate commerce, and opera- tions affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdic- tion over the subject matter of this proceeding. II THE LABOR ORGANIZATION INVOLVED Glaziers and Glassworkers Union , AFL-CIO, Local No. 1610 (herein the Union), is, and has been at all material times, a labor organization within the meaning of section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company's business consists almost entirely of the installation of windows and doors in residences, and substan- tially all of its work is performed under contract for Superlite. The Company's labor force normally includes window and door installers, "service men" who make repairs such as re- placing broken glass, and truck loaders. The force works under the supervision of Orville Brown, who has the title of "Superintendent" and is subject, in turn, to supervision by the Company's president, Brodye J. Robertson, Sr., who man- ages and directs its operations. Both Brown and Robertson are, have been at all times material here, supervisors within the meaning of Section 2(11) of the Act. The record does not, however, establish such a supervisory status for Robertson's son, Brodye, Jr (also called "Skip" and occasionally so designated here) His duties consist, in the main , of work as an apprentice in the installation opera- tions, office work, requisitioning windows and doors from Superlite for filling its installation orders, and the preparation of a daily work schedule which is posted on the Company's premises and sets forth information as to the location of jobs to be performed on the following day, the materials and trucks to be used for the given job, and the name of the individual assigned to perform it.3 According to both Skip ' According to the younger Robertson , sometimes the names listed are fictitious because the identity of the installer who is to be assigned to the (Cont) 195 NLRB No. 93 ROBERTSON GLASS AND GLAZING CONTRACTOR and Brown, it is the latter who determines the assignments, and there is no evidence to the contrary. Skip was designated a vice president of the Company about a month before the layoffs involved here, but the designation appears to be only nominal, and there is no indication that any other employee was aware of it at any material time. The Company's place of business, including an office and truck loading yard, is located on premises owned by Superlite which maintains a warehouse adjacent to the Company's facilities. Each business day, about noon, Superlite delivers to the Company invoices or work orders for installation jobs to be performed on the following day. An employee of the Com- pany (Skip Robertson in the period material here) then groups them by location routes and prepares the daily instal- lation work schedule previously mentioned. The windows and doors required for the work are then requisitioned from the Superlite warehouse, and later that day one or more loading employees, who report for work between about 3:30 p.m. and 7 p in. and continue into the night as required, load the trucks on the basis of the schedule, which at one point or another during the course of the day is posted on the Com- pany's premises. The Union is, and has been at all material times, the collec- tive-bargianing representative of the Company's employees, and the labor organization and the Company have been par- ties to two successive collective-bargaining agreements, the first of which went into effect in 1965 and expired on May 31, 1970. The second became effective June 1, 1970, and has been in effect since then. The first provided for step increases for the classification of "journeyman glazier", terminating in an hourly rate of $5 19, but made no reference to a separate classification or scale for residential window and door install- ers. The second contract provides for a first step hourly rate of $5.49 for journeymen, but like its predecessor it makes no reference to a separate classification or rate for residential window and door installers. Some 4 or 5 years ago, during the term of the first contract, the elder Robertson and a representative of the Union entered into an arrangement providing for the payment to installers of a lower hourly rate than the scale for journeymen glaziers set forth in the contract. As of the date of termination of that agreement, of some 13 employees engaged in window and door installation work, all but 3 were employed at varying rates lower than the contract scale for journeymen. Two of the three exceptions, Odie and Arthur Skaggs, were classified as journeymen, but the third, Delbert K. Sylvester, was not thus classified although paid at the same rate as the two journeymen For some 5 weeks after the new contract went into effect, installers continued to work at the rates previously applicable to them, and, during that period, the Company, contrary to its previous practice, omitted entries from stubs of their weekly paychecks showing their respective hourly rates and the amounts deducted for withheld taxes and union checkoff and health and welfare payments.' given route is not yet known ' According to the elder Robertson's wife, Katherine, who works in the Company's office and prepares the payroll, she discontinued the stub entries because she did not know what wage rates and deductions were required by the new contract, but the employees were paid after June 1, 1970, on the basis of the rates previously applicable to them, and the same deductions continued to be made Thus no reason appears why the entries could not be made after that date, as they had previously In any case, the reason for the omission is beside the point of the General Counsel's claim that seven installation employees were discriminatorily laid off because they turned to the Union for assistance with their grievances, including a complaint regard- ing the omission to make the entries 497 On July 15, 1970,5 seven of the Company's employees, H. Allen Scrignuoli, Daniel H. Eastham, Robert D. Arthur, Arlis M. Guinn, Van B. Brewer, Howard Harper and Delbert K. Sylvester, all employed as installers (although Scrignuoli and Eastham are listed in the Company's records as appren- tices), went to the Union's headquarters in Phoenix and, with Sylvester acting as spokesman for the group, submitted griev- ances to two business representatives of the Union, Melton F. Baker and Harry Green, to the effect that they were not receiving the scale for journeymen prescribed by the new contract; that they were no longer receiving paycheck stubs reflecting their pay rates and deductions; that the Company had failed to pay time and one-half for time worked over 8 hours a day; and that some of its employees were not mem- bers of the Union. The Union's representatives told the seven employees to return on the following Friday, July 17, with the paychecks they were scheduled to receive that day The seven did so in circumstances to be described later B. The Alleged Interrogation, Threats, and Warnings On the day following the submission of the grievances, Baker and Green visited a construction project where the Company had work to perform, spoke to some of its install- ers, including Harper and Brewer, telling them that they intended to discuss the discontinuance of the check stub en- tries with Robertson later in the day, and ascertained that the company had no nonunion help at the project at the time.' There is no dispute that Superintendent Brown talked to Harper at the project later that day, but there is conflict as to what was said. Harper testified that Brown asked him whether the Union's representatives had been there, whether he had spoken to them, and whether they had asked him whether he was receiving "scale" (the journeyman's rate). According to Harper, he replied that the representatives had been there but had not asked him about his scale, and that he had not talked to them very long. Brown's version is that he asked Harper "if there was anything new", and the latter replied that Baker and Green had been at the project site; and that he asked Harper "if there was a problem or anything wrong", and Harper replied that he had not spoken to Baker and Green. Brown's account would lead one to believe that it was Harper who first referred to the visit of Baker and Green, but the plausibility of Harper's claim that it was Brown who broached the subject, and then made the inquiries imputed to him, is enhanced by clear indications that the management was opposed to the application of the new contractual jour- neymen's rate to the installers who were not classified as journeymen, and sensitive to group activity by them.' This sensitivity appears in the evidence of a telephone call the elder Robertson made to Brewer at the Union's office on the evening of July 17, while the seven installers were there in conformity with the suggestion by the Union's agents 2 days earlier. The content of the conversation is disputed, Brewer claiming that Robertson asked him to identify the installers who were there while Robertson claims that he asked Brewer "what was going on", but the important point at this juncture is that either version evidences a dispostion by Robertson to pry into dealings between the installers and their union repre- Unless otherwise indicated all dates mentioned below occurred in 1970 Baker talked to the elder Robertson later that day, but the content of the conversation does not appear ' For example, the elder Robertson testified that he told Harpei on July 24 that the latter had been hired for window and door installation work, and that "I am not going to pay those seven men [a reference to the seven who had complained to the Union ] unqualified men the scale to do it" 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives. It is thus wholly plausible that Robertson's super- visory subordinate, Brown, would interrogate Harper in the vein the latter describes. In contrast , Brown's testimony reflects substantial im- plausbilities. He testified that he was unaware until the hear- ing ("meeting," as he terms it) in this proceeding that the installers had complained to the Union about the failure to make paycheck stub entries . But in circumstances that will presently appear, Skip Robertson quotes Brewer as telling him on July 16 that Baker and Green had been looking into "some complaints [from employees] about receipts of pay- checks that had not been given to them for a long period," and according to the elder Robertson his son reported Brew- er's remarks to him, and this led him to telephone Brewer at the Union's headquarters on July 17. Against that back- ground, it seems unlikely that Brown , the second in com- mand of the force of some 13 installers , would be unaware until the hearing, held some 9 months after the complaints to the Union , that about half of the force had complained to the organization about the repeated check stub omissions. And the implausibility of Brown's claim is heightened by the fact that on the evening of July 17, following the senior Robert- son's telephone conversation with Brewer (and one with Baker on that occasion, to be described later), the elder Rob- ertson told Brown, by telephone, that the seven installers had visited the Union's headquarters . In that regard, I find it difficult to believe a claim by Brown that Robertson told him "no more" than "just that they [the employees] had gone" (to the Union). In addition, the record suggests a probability that Baker was in touch with Brown about the installers ' complaints on July 15 or 16. Neither Baker nor Brown describes such a contact, but the elder Robertson testified that he is "almost sure" that he first learned that the installers had complained to the Union from Brown ; that "I believe it was Mr. Baker called Orville Brown and said I had some unhappy people"; that the call was made prior to July 17; and that "I believe Baker called Brown-I'm not sure of this-and told him that the men was [sic] going to have to show this cards [sic] or show their stubs or something at the [union] hall on Friday night". Perhaps Robertson is mistaken, but what he says of itself warrants at least a substantial doubt of the credibility of Brown's claim that he was unaware prior to the evening of July 17 that the installers had complained to the Union, and that he knew nothing of the complaint about the check stub entries until the hearing in this case. The weight of the evidence, in sum, supports Harper, and I credit his account of his conversation with Brown.' Brewer, too, describes a conversation with Brown on July 16 at the project site after the departure of the Union's agents, also testifying to a discussion later that day, after work, with Skip Robertson, while the latter was giving him a lift home. Regarding the first conversation , Brewer testified that the superintendent approached him at the project and asked him what Baker and Green wanted ; that he replied that they "wanted us to go to the union hall on Friday with our checks and what stubs we had"; that Brown then asked him if he knew who had been to the Union ; and that he replied in the Harper and Brown are in substantial accord that the latter asked Harper on July 17 at the Company's place of business "what was going on" Harper prefaces his reference to the inquiry with testimony that Brown "knew that somebody had made a phone call to the union", but is is not clear whether this purports to quote Brown In any case , I see no need to determine whether the inquiry was aimed at eliciting information about union activi- ties, since such a determination would neither add to nor detract from the remedy to be recommended below negative. Then, according to Brewer, Brown "advised [him] not to go to the union." With respect to the episode with the younger Robertson, Brewer testified that Skip offered him a lift home and en route asked him whether he knew that Baker and Green had called at the project; that he replied in the affirmative and said that the Union's agents "want us to bring our checks in after we received them Friday"; that Skip said that "other companies were, in effect, cheating [not elaborated] and ... trying to get even with Robertson Glass"; and that Skip "advised [him] not to go down there to the meeting [with the Union's agents on Friday], that some people had tried things before and they are no longer employed." Brown denies that he had any conversation with Brewer on July 16, but there is no dispute that Brewer had a discussion with the younger Robertson on that date on the way to Brew- er's home . Stating that Brewer had requested the lift and denying that he asked Brewer whether Baker and Green had come to the job site or advised Brewer not to go to the Union, Skip gave a substantially more extensive and detailed account of the conversation than Brewer . Some highlights will suffice for consideration of the credibility issues presented. Skip testified that it was Brewer who raised the subject of the visit of the Union's agents, asking him if he had any knowledge that they had come to the jobsite and had asked questions of some of the employees. According to Skip, he replied in the negative and asked Brewer to whom Baker and Green had spoken, whether they had talked to Brewer, and what they wanted; and Brewer replied that he was not at liberty to say whether the Union' s agents had spoken to him, or to name any others to whom they had talked, but that they had come to the project site "to see about complaints about receipts of paychecks that had not been given to them [em- ployees] for a long period and also they [employees] weren't receiving the correct pay scales." There followed a discussion, according to Skip's account, during which Brewer asked whether the Company "would [not] go out of business," in the event about six of its employees were discharged, quit, refused to work, or slowed down, and Skip replied to the effect that the Company would continue with replacements. Then, Skip testified, Brewer said that the employees wanted the journeyman glazier's scale and "were going to go to the union to get it," and Skip asked if Brewer intended to do that, and whether he sought the scale, to which Brewer replied in the affirmative . According to Skip, Brewer told him that the Company would "find out" on the coming Friday what the installers intended to do regarding their wage complaint. The implausibilities in Brown's testimony and other rea- sons set out above for crediting Harper make for acceptance of Brewer's claim of interrogation by Brown. Moreover, there are substantial blemishes in Skip Robertson 's testimony on a number of material issues, and at times he appeared to me to be reckless with the truth. Indeed, this attitude was mani- fested in connection with the very conversation he had with Brewer, as the following excerpt from the younger Robert- son's cross-examination attests: Q. (By Mr. Ziprin) Now you stated you had a conver- sation with Mr. Van Brewer-on what date? A I said I might have had a conversation. Q. You are not certain? A. No The fact is that, far from being uncertain about the matter on his direct examination, Skip had given a detailed and lengthy version of his conversation with Brewer. Nevertheless, I am persuaded that Skip's account is closer to the facts than Brewer's. It is not that Brewer appeared to me to be a dishonest witness. On the contrary , he seemed to me to be a sincere one who strove to give his best recollection, ROBERTSON GLASS AND GLAZING CONTRACTOR 499 but one whose power to recall and articulate his recollection of a long and detailed conversation-especially a substantial period after the event-would be relatively modest. Skip, on the other hand, impressed me as having substantially better powers of recall and articulation, and these capacities are reflected, in my judgment, in his account, in which he por- trays himself as interrogating Brewer at much greater length than the single question-whether Brewer knew that Baker and Green had been to the job site-that Brewer attributes to Skip. From Brewer's account, it would appear that Skip, having received an affirmative reply to that query, made no inquiry about the activities or business of the Union's agents at the project, but, upon my observation of Skip, in the light of the train of events that followed the submission of griev- ances by the seven installers to the Union on July 15 I think it unlikely that Skip's interrogation and the rest of the conver- sation about union matters , during a ride of some 20 miles, were as limited as Brewer's account would lead me to believe. It is of some significance, on that score, that under cross- examination, Brewer testified that he "may have said, `Well Skip, what if everybody quits? How are you going to maintain your business?' or something to that effect." This concession is noteworthy, for Brewer in effect imputes to young Robert- son a threat that those attending the Union meeting on the following day would be discharged ("some people had tried things before and they are no longer employed"), while, con- versely, Skip denies advising Brewer not to attend the meet- ing, and the thrust of Skip's version of what was said on the question of termination of employees is that Brewer raised the subject with an inquiry as to the impact on the Company's business if a number of employees quit, were discharged, or slowed down, and that Skip replied that the Company would replace them. Brewer's admission , it seems to me, contributes support to an important aspect of Skip's version-that deal- ing with the termination of employees. There is no reason, however, to doubt the credibility of one aspect of Brewer's testimony, and that is that he told Skip, in substance, that Baker and Green had requested Brewer and other installers to bring in their paychecks after receiving them (in other words, after work) on the following day, Fri- day. The elder Robertson claims that his son told him of the conversation, and that this led him to call Brewer at the Union's headquarters after work on Friday; and it is thus fairly inferable that the senior Robertson knew that Brewer and other installers were at the Union's headquarters because Brewer had indicated to Skip that they would be there on Friday evening, and Skip had relayed the information to his father. Summarizing the material results I reach regarding the conversation, although Skip's version appears to me to be exaggerated and embroidered at points (as where he imputes a threat to Brewer to "cause you all sorts of trouble"- behavior not in harmony with Brewer's apparently mild per- sonality and mode of expression), I accept Skip's claim to the effect that Brewer opened the subject of the visit of Baker and Green by asking Skip whether he knew about the matter; I credit Skip's version of his interrogation of Brewer; I find that what Skip said regarding the termination of employees came in response to an inquiry by Brewer as to the impact on the Company's business if a number of employees ceased work as a group and amounted, in substance, to a position that the Company would continue to operate with replacements; I credit Brewer's testimony to the effect that he told Skip that Baker and Green had requested Brewer and other installers to bring in their paychecks on the following day, Friday; and I hold that in view of the indications that Brewer's recollec- tion of the episode is substantially short, his claim to the effect that Skip advised him not to attend the union meeting does not qualitatively outweight Skip's denial in the premises. As for Brewer's claimed conversation with Brown, the total truth, I am convinced, does not rest with either side, as is so often the case with disputed credibility issues. There is much that is amiss with Brown 's testimony on a number of material issues. Some of the shortcomings have already been mentioned, and others will appear later. In the light of these, and of my impression of Brewer's sincerity, nothwithstanding flaws in his testimony, I do not accept Brown's claim that he had no conversation with Brewer on the day in question. On the other hand, there is a substantial blemish in Brew- er's relevant testimony . Having testified on his direct exami- nation that Brown "advised" him not to go to the Union on Friday, Brewer added to this under cross-examination, stat- ing that Brown "just advised me not to go down there [the Union], that it might cost me my job". (This similarly differs from a pretrial affidavit Brewer gave the General Counsel.) And this claim is additionally flawed by testimony by Brewer that what Brown said was to the "effect" of the terms Brewer uses to quote the claimed advice. If Brown did interrogate him as to the business of Baker and Green at the project and, following Brewer's reply that they "wanted us to go to the union hall on Friday with our checks", inquired as to the identity of employees who had been to the Union, it may be that the advice not to attend the meeting and the prediction of possible job loss that Brewer attributes to Brown are mean- ings or an "effect" that Brewer is reading into Brown's ques- tions. The possibility of such a gloss, and the disparity be- tween Brewer's initial version of alleged advice and the account he gave later, preclude a finding that Brown gave such advice or said that Brewer might lose his job. That does not, however, warrant disregard of Brewer's testimony concerning interrogation. The questioning he de- scribes is much of a piece with the interrogation Harper attributes to Brown , and much the same considerations- notably the elder Robertson's telephone call to Brewer during the union meeting on July 17, as to which findings will be made later-lead me to conclude that the management was much concerned with the business of the Union' s agents at the project and with the identity of employees who had been to the Union. In short, I credit Brewer's testimony regarding the interrogation and his reply to Brown's query as to the business of Baker and Green at the jobsite. The seven installers who had complained to the Union received their paychecks about the end of the workday on Friday, July 17. The checks of four (Guinn, Sylvester, Ar- thur, and Harper) for the relevant pay period (the workweek ending July 14) reflected an increase to the current journey- man glazier's hourly scale of $5.49.' None was informed prior to departure from the premises that afternoon of any impend- ing layoff or told not to report on the next regular workday, Monday, July 20. Following receipt of their checks, the seven proceeded to the Union's office with them, arriving there about 5 p.m., and met with Baker and Green. There was a discussion of the grievances at the meeting, and while it was in progress the elder Robertson called the Union's office, asked for Brewer, and then spoke in turn to Brewer and Baker. Here, too, as in so much else in this case, there is conflict over what was said. According to Brewer, when he took the phone, Robertson said that he was going to read off a list of names and wanted Brewer "to say yes or no whether they were there," and ' Resp Exh 28b However, for the following workweek (in which the layoffs occurred) Harper and Guinn were paid at their respective rates, $4 50 and $4 00, in effect prior to the week ending July 14 See Resp Exh 28c 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brewer replied that he "couldn't do that," whereupon Rob- ertson asked to speak to Baker. There is no dispute that Brewer turned the phone over to Baker, whose version of what followed is brief. According to him, Robertson asked him for the names of the employees present, and he furnished them . One of the employees, Ar- thur, gave testimony to the effect that while Baker was on the phone, he turned to the employees and told them that Robert- son had asked for the names of the employees present, where- upon Sylvester, their spokesman , told Baker to supply them, and Baker did so. Robertson's version of his conversation with Brewer is that he "asked [Brewer] what was going on", and that Brewer replied that he "didn't have to say", and would put Baker on the telephone "to talk for them [the employees]." Describing what followed with Baker, Robertson testified: I asked Pete [Baker] what was the problem and they [sic] said they [the employees] wanted their back pay that they had coming to June 1st , the difference in the scale, and that they had decided to give me until the next Wednesday to get that up, and I said, "They who", and he [Baker] said-"who's there", and he called out the names of who was there, and when [sic] he told me that they had asked him to talk for them , and I told him to talk for me and that there wasn 't any work for them, not to come in until Wednesday morning. Baker, called as a rebuttal witness, denied that Robertson told him that the employees were not to report until Wednes- day. Actually, the gap between the versions is not materially great, for especially in the light of the layoffs that followed on the next regular workday, the most important feature of the telephone espisode is that Robertson , as his own version es- tablishes, asked Baker , at least, for the names of the com- plaining employees, and received them from Baker. But, in addition, I am convinced that the testimony of Brewer and Baker is substantially closer to the facts than Robertson's, noting in connection with Brewer's capacity for recall that his conversation with the elder Robertson , unlike that with Skip, was brief, and that Brewer's recollection of his conversation with the senior Robertson appeared to me to be clear. I find Robertson's version unconvincing for a number of reasons. To begin with , his professed excuse for calling Brewer is thin . He claims that he did so because his son had related his conversation with Brewer the day before, and he "didn't know whether the union was the ones that was having the men down there, or whether the men were going there themselves"; or, in other words , that the purpose of his call to Brewer was to find out if the installers had gone to the Union of their own volition or on the organization 's initiative But, according to Skip, Brewer had told him that the Union had received "complaints" about the paychecks and the scale paid the installers; and that the latter wished to be paid the journeyman's scale, "are going to go to the union to get it," and "will go to the highest man we can in the union ." More- over, Brewer had told Skip that Baker and Green had re- quested the employees to bring their paychecks to the Union's office on Friday. With these considerations in mind, it does not seem plausible that the elder Robertson would call Brewer at the Union's headquarters merely to ascertain whether the men had gone to the Union on their own initia- tive And one would think, too, that if the purpose of Robert- son's call was really to ascertain the Union's role in the affair, rather than to learn from Brewer in covert fashion (by the device of naming employees to Brewer and having him reply "yes or no" as to the presence of the persons named), Robert- son would have asked in the first instance to talk to a repre- sentative of the Union, such as Baker, who could speak au- thoritatively not only for the employees but for the Union as their bargaining representative. Moreover, there is good reason to doubt Robertson's claim that he told Baker that the installers were not to report for work until the following Wednesday, or, in other words, that they were laid off for July 20 and 21.10 The fact is that on the morning of July 20 Robertson laid off the seven installers without specifying any date for their return , and, signifi- cantly, directed them to turn in Company tools and yard keys in their possession. It may be, as Robertson claims, that the surrender of the keys was required because Superlite intended to change the locks on the premises (although it does not appear that this had to be done prior to Wednesday), but the demand for the tools does not quite jibe with Robertson's claim that he planned a resumption of work by the seven men on July 22, for no greater reason appears for the surrender of the tools during a 2-day layoff period than for 2-day weekend periods when the men customarily retained the tools assigned to them Nor does Robertson plausibly explain why, in his conversa- tion with Baker, he specified Wednesday as the day for re- sumption of work . According to Robertson, he did so because he "expected to have enough work for them maybe," but it is apparent from Robertson's testimony that he had no means of knowing on Friday what work would be available from Superlite on the following Wednesday . According to him, he decided on the 2-day layoff after notification by Superlite, about 1 or 1:30 p.m. on Friday, of cancellation of some orders previously scheduled for performance on the following Mon- day or Tuesday. He testified that shortly after receipt of the cancellation information he proceeded to another Phoenix location of Superlite for a discussion of work prospects with its sales manager who, according to Robertson, said that he could "just see two days ahead" for work requirements; and that he did not return to the Company's premises until about 4:45 p in. If Robertson is telling the truth about his conversa- tion with the sales manager, it is evident that the latter could not, or did not, say on Friday what work would be required beyong the next "two days" or, in other words, on the follow- ing Wednesday; and clearly, too, what the sales manager allegedly told Robertson provides no rational basis for Ro- bertson's alleged expectation that there would be "enough work for them [on Wednesday] maybe". In fact, Robertson admittedly "didn't know how much [work] because I didn't have Wednesday's work". The absence of any plausible explanation for the alleged specification of Wednesday as the day for resumption of work, and the objective fact that no layoff period was spe- cified when the men were laid off, militate against acceptance of Robertson's claim that he told Baker that the men were to report for work next on Wednesday. Furthermore, as regards Robertson's credibility in general, it appeared to me at a number of points that he was loose with the facts, if nothing worse. For example , in a context of explaining why he retained an employee named Sparkes while laying off the seven window and door installers, Robertson, having said that Sparkes "was a trainee on windows and doors" (meaning, plainly, a trainee in window and door in- stallation] shifted to a claim that Sparkes was "learning the proper way to load a truck" and was "a trainee" in that work. There is convincing evidence, to be described later, that Sparkes was engaged, in the main, in installation work over 10 I disagree with a position in the Respondent 's brief that the issue whether Robertson informed Baker of the 2-day layoff is the "most crucial element of this case" Whether or not Robertson did so, the issue whether the layoffs put into effect by Robertson on July 20 were discriminatory still remains ROBERTSON GLASS AND GLAZING CONTRACTOR 501 a period of months after the layoffs. Another example of Robertson's loose treatment of facts may be found in tes- timony he gave regarding a certified mail receipt for delivery of a letter (Resp. Exh. 16) offering Arlis Guinn reinstatement. Asked whether the signature "Arlis Guinn" on the receipt was that of Guinn, Robertson testified, "As far as I know, it is, yes. Looks like it," although the receipt on its face shows that the name "Arlis Guinn" was put there by Guinn's pur- ported "agent", who signed the name "Sarah Guinn" beneath the name "Arlis Guinn". I am, in sum, unable to accept Robertson's version of his telephone conversations with Brewer and Baker, and instead, crediting the testimony of Brewer, Baker, and Arthur, I find that Robertson proposed in his conversation with Brewer to read a list of names and asked Brewer "to say yes or no" as to the presence of each individual named; that Brewer de- clined; that Robertson then spoke to Baker and asked him for the names of those present; and that Baker, with the consent of Sylvester as spokesman for the employees there, gave Rob- ertson the names of the installers at the meeting C. The Layoffs On the morning of July 20, as six of the seven installers who had been at the union meeting on Friday, all except Eastham, arrived at the Company's yard gate to report for work, the elder Robertson told them in substance that they were laid off for lack of work and were not being discharged but would be recalled when work picked up, and he directed them to turn in Company tools and keys to the premises." They complied and then proceeded to a neighboring coffee shop. Eastham arrived in the vicinity 5 or 10 minutes late for work but did not enter the Company's premises, joining those in the coffee shop when he noticed their cars nearby and learned that they were in the restaurant. He asked what had happened, and Sylvester told him that "we've all been laid off." Although Eastham was not physically present at the time of the layoff, there is no dispute that he was included in it. The Respondent in effect admits in its answer that he was thus included, and it is evident that Robertson intended that his layoff remarks should apply to Eastham, for he testified that "all the seven men" arrived at the premises together that morning, and that he addressed his remarks to them. The circumstance that he is mistaken about Eastham's presence does not alter the fact that he intended the layoff to apply to Eastham. I find that it did. On or about November 6, during the pendency of this proceeding, the Company, by letter bearing that date, made an offer of reinstatement to Scrignuoli, Eastham, Arthur, and Guinn, effective as of November 16, and, through Brown, orally offered to reinstate Sylvester as of November 9.'i Guinn " I do not credit Robertson's testimony that he asked the employees "what they were doing there," and whether Baker had told them "not to come in on Wednesday", and that "somebody" (unidentified) answered "Yes " None of the other witnesses who described the layoff episode, includ- ing Superintendent Brown, support this testimony Moreover, for reasons previously stated, I do not credit Robertson's account of his conversation with Baker Although varying in emphasis and details, there is substantial accord among Brown, Scrignuoli, Brewer, Sylvester, Harper, and Arthur as to the layoff episode, and the relevant findings made reflect a composite of material features of their testimony " Sylvester broadly approximates the offer as made about 2 weeks before November 10, the date he received a letter from the Company referring to the offer. The General Counsel treats the date of the letter as the date of the reinstatement offer I have inferred the approximate date of the offer, and the proposed reinstatement date, from the contents of the letter I note, also, that I do not credit a claim by Brown that on July 22, following a discussion at the Union's office of the rate to pay the laid off installers for the workweek returned to work on November 12, several days before his proposed starting date. Sylvester, Eastham, Arthur, and Scrignuoli have not returned, and the General Counsel con- cedes in his brief that each of these has "rejected" the offer made him. Putting aside, for later discussion, a claim by the Respondent that it made a reinstatement offer, through the Union, to all seven installers, the Company has not made such an offer directly to either Harper or Brewer." D. Concluding Findings The major issue here is whether, as the General Counsel claims, the seven installers were laid off because they turned to the Union for resolution of their grievances or whether the Respondent, as it contends, laid the men off solely because of a reduced business volume. As support for the Respondent's position, the senior Rob- ertson gave testimony to the effect that as a result of strikes in the construction industry in the Phoenix area there was a substantial falling off of orders from Superlite during a period starting in June and extending into August; that he consid- ered making a reduction in the force of installers in the latter part of June but did not lay off the installers prior to July 20, although "two men were doing the work of one," because he wished to retain the installation staff; that in the "week of July 17th work slowed down real slow"; that on that date Superlite cancelled some orders scheduled for performance on the following Monday or Tuesday; and that the cancella- tions precipitated his decision on July 17 to lay the seven men off for July 20 and 21.'° There is no doubt that the Company had a substantial falling off in business from Superlite in July and August from what it had been in earlier months. After grossing approxi- mately $32,000 in May, and about $28,000 in June, its gross revenue in July fell to a little over $18,000 and in August to about $15,000, rising to approximately $28,000 in September. As the Respondent's records reflect the employment of from 9 to 11 men (including journeymen, apprentices, and Brown who is listed as a journeyman) in window and door installa- tion work during almost all of June (Resp. Exhs. 27a-27c), one may fairly infer that the reduced business volume in July and August warranted a force reduction in those months, even though the Respondent does not explain why its records contain entries to the effect that it employed 5 installers throughout both August and September (Resp. Exhs. 29a-c and 30a-d), although its gross revenue in September was almost double that of August (and substantially above the ending July 21, while Brown and the seven men "walked outside together," Sylvester told the superintendent "I am quitting anyway, and I am going to take Howard Harper with me " The Respondent does not spell out the purpose of this testimony in its brief Perhaps it was offered as the basis for a claim that Sylvester quit on July 22 In any case, Sylvester denies making the remark and is supported by Harper and Arthur Brown's image of Syl- vester as saying he was quitting is not quite in harmony with the fact that only a few days later Sylvester filed the charge alleging the illegality of the layoffs Moreover, the fact that Brown offered Sylvester reinstatement in November weighs in some measure against Brown's claim I credit Sylves- ter's denial " Apparently as evidence of an offer of reinstatement to Harper, the Respondent offered in evidence a letter addressed to him at one address and sent in an envelope bearing another The envelope, with the letter enclosed, was returned undelivered by the Post Office with a stamp "No such ad- dress " After this appeared, the Respondent withdrew its proffer of the envelope and letter There is thus no evidence of the letter's contents, and, in any case, it was never delivered to Harper '° Although Robertson does not in so many words say that the order cancellations precipitated his layoff decision, that is his evident implication Moreover, the Respondent's brief takes that position, contending, for exam- ple (at p 16), that Robertson "decide[d] on the layoff on Friday afternoon when learning of the Superlite order pull back 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD monthly average of about $24 ,000). But such an inference is not decisive of the question whether the timing of the layoffs, and the choice of the seven , were motivated by a discrimina- tory purpose. On that issue, the record as a whole impels a conclusion that resort by the seven men to the Union to secure the journeyman's scale and adjustment of other griev- ances they felt they had was at least a material factor in the layoffs. Reasons that lead me to that result follow. It is an important fact that the senior Robertson laid off the seven men on the very next regular workday after the union meeting of July 17, during which he sought and acquired information as to the identity of the employees in attendance. The timing of the layoffs in relation to the union meeting, particularly in view of his successful effort to identify the participating employees, is compelling evidence that a dis- criminatory purpose entered into the layoff decision , and, in contrast, Robertson's claim to the effect that business consid- erations were the sole reason is unconvincing. He does not explain what, if anything, led him during the intervening weekend to shift from his claimed 2-day layoff decision on Friday to a layoff of indefinite duration on the following Monday, and, in the light of what occurred during the union meeting on Friday evening , the absence of such an explanation points to a lack of candor in the Respondent's justification of the layoffs. That view is fortified by the fact that although Robertson claims that he received the order cancellations about 1 or 1:30 p.m. on the Friday in question , the employees were given no notice before they left the premises about 4:30 p.m., their usual quitting time, that they were not to report on Monday, the next regular workday. Robertson 's testimony to the effect that he left the premises shortly after receipt of the cancella- tions for a business discussion with Superlite 's manager and did not return until about 4:45 p .m. will hardly suffice as a convincing explanation , for no reason appears why he could not have issued the requisite instruction for a 2-day layoff before his departure or telephoned them during his absence, to management personnel such as his wife , Katherine, who is an officer of the Company and looks after its time and payroll records, or Superintendent Brown, or to Skip Robertson, whose function it was to prepare and post the schedule of work and route assignments that day for the following Mon- day. Nor do I find a reliable explanation in testimony by Brown that after the employees left for the day on Friday , at "about quarter to 5 or 5 :30," he and the senior Robertson had a discussion of the impending layoff and chose those to be laid off, discussing the considerations that entered into the choice. Robertson's testimony runs in another direction , as the fol- lowing excerpt (with emphasis added) indicates: Q. (By Mr. Gruender) Directing your attention to around July 17th or 16th of 1970, at that time had you had any conversations with anyone relative to a layoff of your employees? A. We had discussed it, that work was slowing down. Q When you say "we", who do you mean? A. Orville Brown. Q. Would you identify Mr. Brown? A. He's the Superintendent for Robertson Glass. Q. And approximately when had you discussed this with him? A. The 1st ofJune when the work was slowing down. At a subsequent point, Robertson had another opportunity to corroborate Brown , yet fell short, as the following attests: Q. (By Mr. Gruender) With respect to events leading up to your decision to lay off, why did you decide to lay off these people on July 17th? [Objection by counsel and related colloquy between Trial Examiner and counsel omitted.] Q. (By Mr. Gruender, continuing) Describe for us the lack of work, what was the problem? [Objection by counsel and related colloquy between Trial Examiner and counsel omitted.] The Witness: We had-Orville Brown, the superin- tendent at Robertson Glass, and myself, had discussed what to do, and who to lay off Thursday (sic) at Robert- son Glass. Trial Examiner: When was this? The Witness: The last part of June, and he felt the strike wouldn't last long and we should hold out as many men as we could, so as the work picked back up and the strike was over with, we'd have the men to do the work. [Emphasis added.] At a later point, Robertson was, in substance, asked again why he decided on the layoff on July 17, and he replied that "there wasn't any work for anybody to do, and I had talked to my superintendent about trading times, swapping times, going off a day, another off a day, but we discussed these, and we thought we would lose ... two journeymen glaziers " [Emphasis added.] Robertson does not specify when this discussion occurred, and, although his testimony describ- ing it follows an account of his alleged conversation with Superlite's sales manager and a reference to his return to the shop about 4.45 p.m. on July 17, one may fairly infer that he is still referring to a discussion with Brown in June in view of his reference to the claimed conversation with Brown as one he had had, and of his prior testimony describing a discussion with Brown in June (a discussion he says at one point took place early in that month, and, at another, toward the end of the month). At the very least, Robertson's tes- timony on the subject of discussion of a layoff with Brown raises a large doubt that he had the conversation with Brown on July 17 that the latter describes Moreover, some testimony by Skip Robertson relating to the schedule he posted on Friday for the Monday installation work jeopardizes the credibility of the elder Robertson's claim that the order cancellations precipitated his claimed 2-day layoff decision. Such a schedule, as previously stated, is based on the work orders received from Superlite, usually about noon of the given day, for performance on the following day, and is used as a basis for the truckloading operations that begin in the late afternoon or evening. The work orders for Monday arrived from Superlite by noon on Friday. Skip tes- tified that these came to his attention at noon, and he was precise about the matter, stating that he knew the time "be- cause I looked at my watch". According to him, he made up the schedule for the Monday work before 12:30 p.m. on Friday and posted it at about 5:30 p.m., immediately prior to his departure, with Brown, for the day. The contents of the schedule as posted, according to Skip, were the same as when it was prepared about noon. There is an apparent disparity between this testimony and the senior Robertson's claim that order cancellations were received from Superlite about 1 or 1:30 p.m. on Friday, for it would seem that if the cancella- tions in fact came in, the schedule would have been appropri- ately modified, and this is especially so as it was used as a loading guide for the Monday work. The Respondent does not explain the disparity, and the absence of an explanation operates against acceptance of the senior Robertson's claim that order cancellations on Friday afternoon were the precipi- tating cause of the layoff decision." " Sylvester, Harper, Arthur, Scrignuoli , and Brewer testified that they saw their respective names listed for assignment in the posted work schedule for July 20 before they left for the day on July 17 In refutation, Skip denies ROBERTSON GLASS AND GLAZING CONTRACTOR 503 The Respondent produced five work orders from Superlite, each reflecting an entry signifying that it was performed on Monday, July 20, and Skip Robertson testified that he had canvassed the Company's work order records for all of 1970, and the five were the only ones he could find that were per- formed on July 20. Accepting this evidence as I do, and granting that there was less than enough work to go around on Monday, that hardly meets the point that the seven install- ers were laid off not for the one day, but for an indeterminate period, if not, indeed, discharged;` and that those thus laid off were the very employees who had enlisted the aid of the Union with problems they had, as Robertson was well aware by the time he finished his telephone conversation during the union meeting on the preceding Friday evening." The timing of the layoffs, and the common identity of those who attended the meeting and those chosen for layoff, are of themselves compelling evidence of a discriminatory motive, but the existence of such a purpose is made even more visible by the Respondent's explanation of its reasons for preferring others for retention. According to Brown, as previously noted, he and the elder Robertson, in consultation, made the layoff and retention selections about 5 p.m. on July 17. Robertson, also as previ- ously stated, does not support Brown's account of such a conversation, but, in any case, Brown claims that they de- cided to retain "the loaders" because of their "lower rate of pay." He does not identify them but his reference appears to be to Chad Kurtzman who is identified repeatedly in the payroll records as a loader (for example, Resp. Exhs. 28a- 28b), and, judging by Robertson's testimony, Richard Honaker (Hadacker in the record on occasion) and Mike Sparkes (also Sparks at some points). Describing Honaker and Sparkes as "trainees", Robertson testified that Honaker loaded trucks," and that Sparkes "was such a listing, stating that he used "fictitious" names because it was not his province to make the assignments, that he discussed the schedule with Brown at "5 18 [p in ] approximately" on July 17, and that he posted the schedule about 5 30 p in (about an hour after the installers left for the day) and then left the premises with Brown It does not plausibly appear why Skip would resort to fictitious assignment entries instead of omitting names al- together until given the requisite information by Brown, and it is noteworthy that Brown does not support Skip, stating that he does not "remember [a schedule] being posted" on July 17 Moreover, Skip contradicted himself as to the source of his recollection of the episode, stating first that he had not seen the time cards since July 22 or 23 (some 9 months before his tes- timony), but later conceding that he had looked at the cards "two weeks at the most" before he testified The Respondent claims in its brief that what the five installers saw was the schedule posted the previous day, but there is no evidence that that schedule was still posted as of quitting time on July 17 In any case, I see no need to choose between the claims of the five installers and Skip's testimony to the contrary, since in either case my conclusion regarding the issue of discrimination is the same 1B Against the background of Robertson's telephone conversations with Brewer and Baker on Friday, of his requirement, in the process of laying off the men, that they turn in their tools and keys, and of the fact that the November offers of reinstatement followed the insuance of the complaint (on October 12), it may fairly be argued that it was Robertson's purpose to discharge the seven men rather than to lay them off temporarily The issues, however, require no determination whether the layoff action amounted to a discharge, for the end result is the same if an unlawful discriminatory purpose was a causative factor in the action taken " A claim by Robertson that he also laid off two other employees, Rich- ard Honaker (called Hadacker by Robertson) and Mike Sparkes, on July 20 is contrary to the Company's time records for both employees, which show that both worked on July 20 and 21, and thereafter with fair regularity over a period of some 5 months, frequently working daily or weekly overtime 1° Robertson does not make clear when it was that Honaker loaded trucks prior to the layoffs, at one point stating that Honaker loaded on July 17, and subsequently intimating, at least, that that had been Honaker's customary work Actually, his time card reflects no work on July 17 but shows that he worked on July 20, the day of the layoffs a trainee on windows and doors, and ... was also a me- chanic." This, however, underwent some change shortly thereafter when Robertson testified that Sparkes was a "trainee" in loading, "learning ... the proper way to load a truck." Not wholly in harmony with Brown's portrayal of a deliberate decision to retain "the loaders," Robertson testified that in addition to the seven installers he also laid off Honaker and Sparkes on July 20. The purpose of this claim, which is disproved by the Company's payroll records showing that both worked on that date and continued to work with sub- stantial regularity over a period of some 5 months thereafter, was, I am convinced, to obscure the important fact that those laid off were precisely those who had filed grievances with the Union and had attended the meeting with its representatives on July 17. It is worth noting, too, that neither Brown nor Robertson spells out, with any clarity at least, what work Honaker and Sparkes did after the layoffs, and one would be led to believe from Brown's reference to the retention of "the loaders" and Robertson's description of the functions of Honaker and Sparkes that they were primarily engaged in loading work following the layoffs. That was not the case, as is evident from some testimony by Mrs. Robertson and the time cards for Honaker and Sparkes for the period between the layoffs on July 20 and the workweek ending November 24 (the last week for which time cards are in evidence). Mrs. Robertson tes- tified that "the loaders work at night" (starting in midafter- noon, according to Skip Robertson), that "if they are working days, they are doing installation," and that time clock pun- ches prior to noon signify daytime work. The point of the matter is that the time cards in evidence for the period be- tween the layoffs and November 24 show no night work for Sparkes and reflect work at night for Honaker on only a few days (July 20, 21, 22, 23, and 24); and in the light of Mrs. Robertson's testimony, it is evident that substantially all of Sparkes' working time after the layoffs was spent in installa- tion work, and, with the exception of a few days, the same is true for Honaker. Significantly, too, as the Company's time cards attest, during the period, both employees worked a substantial amount of either daily or weekly overtime (that is, over 8 hours per day or 40 per week), for which they were paid time and one-half. Weighed against the evidence pointing to a discriminatory motive for the layoffs, the fact that Honaker and Sparkes were paid at smaller hourly rates than each of the seven laid off does little for the Respondent's case. A majority of the seven, at $4 an hour, were paid not a great deal more than Honaker's rate of $3.50, and although it is true that one of the seven, Sylvester, had been paid at the journeyman's rate, and another, Arthur, close to it, it is also true that both had worked for the Company for about 3 years, and that Sylves- ter, as the senior Robertson admitted, was "a valuable em- ployee." I find it implausible that for a genuine economic reduction in force in its window and door installation work -practically the whole substance of its business-the Re- spondent would retain for that work two "trainees,"" one of them, at least, according to Robertson, hired and employed to train as a loader, in preference to seven men of varying degrees of experience in installation work, including an ad- mittedly "valuable" employee such as Sylvester, and that it was mere economic coincidence that the seven chosen for layoff were precisely those who had turned to the Union for aid in seeking a resolution of their grievances. " Both Honaker and Sparkes are listed, for the first time, as "on trial" in an occupational classification column in the payroll records for the week ending July 21 (see Resp Exh 28c) The Respondent offered no explanation for the entry 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is noteworthy, too, that Odie and Arthur Skaggs, both employed at the highest wage rate paid by the Company, worked overtime in a considerable number of weeks during the period of some 5 months between the layoff of the seven men and the November reinstatement offers, and that the Respondent's explanation of its retention preference for the Skaggses bears earmarks of unreliability , granting that as journeymen glaziers they possessed qualifications beyond those of even so valued an employee as Sylvester, who had received the same wage rate although not a journeyman As in the case of Honaker and Sparkes , Brown says that he and Robertson discussed and decided upon the retention of the Skaggses after quitting time on July 17, but , as previ- ously pointed out, Robertson does not support the claim that such a conversation occurred . Moreover, Brown and Robert- son are in some measure at odds as to the reasons for not including either Odie or Arthur Skaggs in the force reduc- tion. According to Brown , they were retained because they "are old men [sic] had been in the Union a long time and they can perform any work on custom houses or store fronts or anything that we might have, particularly custom houses." But Robertson says nothing about their seniority , whether in age or job tenure, or their union membership as factors in their retention , stating, on the contrary , that in deciding whether to retain a man he is not governed by seniority but makes his determination on the basis of the quality and quan- tity of an employee's work . According to him, he retained Odie and Arthur Skaggs "because they are all-around gla- ziers and the seven [laid off] are not" This professed reason is, to be sure, in the vein of Brown's to the effect that the Skaggses "can perform any work on custom houses or store fronts," but the stress put on such capability has an aura of puffing . Substantially all ("about 99 percent") of the Company's business consists of "residential" window and door installation , and, as Robertson admits, the Company has not had a "commercial " or "nonresidential" job for "quite a few years" (7 years, he estimated at one point). That being the case, it is quite unlikely that Brown or Robertson gave any thought to the capability of the Skaggses with regard to "store fronts." As for "custom" jobs (such as those, according to Brown , that require special metal fittings) Brown generalized that two construction firms, one of them identified as "RPR Construction" had built "some custom houses," but there is no indication when "custom" window and door installation work was performed on thses projects, nor is it even clear that it was the Company that did it In fact, whatever there is of concrete evidence of work by the Company on a project of either construction firm points in an opposite direction, consisting of testimony by Brown himself that as of July 16, the Company had in prospect the installa- tion work on 19 or 20 homes under construction by RPR, and that the installers who worked at the project on that date were Harper, Guinn , Arthur, Brewer, and another who Brown thinks was Eastham Actually, there is no evidence that the Company had any "custom" jobs in prospect at the time of the layoffs or at any time thereafter, except a claim by Brown and Robertson that it performed "custom " work on week- ends on a house belonging to a man named Sipes, who is Superlite's president However, the evidence bearing on the Sipes project does little for the Respondent's disclaimer of any discriminatory aim in the layoffs According to Robertson's testimony, the work was begun at least by Saturday , July 18, and he stated that it was performed only on Weekends over a period of a month and a half, and he offered none of the work to any of the seven laid off employees because "they could not do it." I am unable to accord any weight to this self -serving generali- zation and a similar one by Brown because, beyond blanket descriptives that the project was "custom work ," there is no concrete demonstration of any special factors that made it such or placed it beyond the capacity of a valued employee such as Sylvester or, for that matter , any of the other six who were laid off. In that regard, it is of some moment that Sparkes, as Robertson testified , worked at the Sipes project, and that the record does not plausibly explain why one or another of the seven , especially a trainee or apprentice such as Scrignuoli or Eastham, "could not do" the work that Sparkes did, whether making deliveries to the job , as Brown claims, or performing other work there . It is evident, too, that as of the time of the layoffs there was no imminent need for any work on the Sipes house, whether "custom" or otherwise, for the time records of the Skaggses following the July 20 layoffs show no weekend work by either until Saturday, Au- gust 1 , when both worked . In fact, the records show that they worked but 2 weekend days, August 1 and 8, during a period of a month and a half following some work by Arthur Skaggs on Saturday, July 18 (at the Sipes house , according to Robert- son)." The sum of the matter is that in the face of the evidence pointing to an unlawful discriminatory motive in the timing of the layoffs and the choice of the seven men laid off, the reasons given for the retention preference accorded Odie and Arthur Skaggs over the seven are so weighted with puffed claims and other earmarkks of unreliability as to preclude a finding that the preference given the Skaggses was in no way attributable to the fact that they were not among those who had turned to the Union for help with their grievances. On the whole record , I find, for the reasons stated, that the precipitating cause of the layoffs was the action of the seven men in seeking the aid of the Union for a resolution of griev- ances they felt they had;" and that by laying off each, the Company violated Section 8(a)(3) of the Act and interfered with, restrained and coerced employees in the exercise of nghts guaranteed them by Section 7 of the Act, thereby vi- olating Section 8(a)(1) of the Act.22 It may be that at some point after the union meeting of July 17 the Respondent would have had an economic force reduc- tion, including one, or some, or perhaps all, of the seven who " ° The timecards for both Odle and Arthur Skaggs reflect no Saturday work after August 8 until September 18, but that date, and a number of subsequent Saturdays on which they worked, as reflected in their time cards, are well beyond the period of a month and a half over which, according to Robertson , the Sipes work was performed As the job was in progresss by July 18 and took a month and a half to complete , according to Robertson's testimony, there is no warrant for a finding that Saturday work by either Odle or Arthur Skaggs during the second half of September and in October was on the Sipes houses " Contrary to the Respondent, I find no operative weight in the fact that various of the laid off employees made statements in their applications to the Arizona Employment Security Commission for unemployment compen- sation that they were unemployed because of "lack of work" or words to that effect That was what Robertson, in substance , told them in laying them off, and it would be only natural that they should repeat that reason in applying for unemployment compensation The record as a whole , and not their conclusion or their repetition of what Robertson told them, is the proper basis for evaluating Robertson 's motive " The record contains somewhat extensive testimony bearing on the background and content of a telephone conversation between the elder Robertson and Eastham 's wife about an hour after Robertson spoke to Brewer and Baker during the union meeting on July 17 According to Mrs Eastham, Robertson , among other things, told her that Eastham had "be- trayed" him by going to the Union , and that that "is costing Danny [East- ham] his job " Robertson denies making the quoted remarks and gives a version of the conversation differing at a substantial number of points from that of Mrs Eastham I see no need to pass upon the evidentiary conflict nor go into the background and other details of either version , for whichever account be credited , I reach the same result regarding the legality of the layoffs ROBERTSON GLASS AND GLAZING CONTRACTOR 505 had filed grievances with the Union, but the timing and scope of the layoffs are so interlocked with an unlawful discrimina- tory motive as to preclude a determination on this record which employees, but for the discrimination , would have worked, and to what extent, on and after July 20, in window and door installation projects. To paraphrase Judge Learned Hand, it rests with the Respondent "to disentangle the conse- quences for which it [is] chargeable from those from which it [is] immune,"" and, in order to effectuate the policies of the Act, such disentanglement now requires an order that in- cludes provisions, as set forth in the remedy recommended below, that the Respondent make each discriminatee whole for his wage losses, together with appropriate interest, be- tween the date of the layoffs and a proper offer of reinstate- ment to such discriminatee. As previously stated, Sylvester, Eastham, Arthur, Scrig- nuoli, and Guinn received reinstatment offers in November, all these, except Guinn who returned to work on November 12, have, as the General Counsel concedes, rejected the offers. The General Counsel in his brief admits the sufficiency of the five offers of reinstatement, and this implies a correlative claim by him that the backpay periods for Sylvester, East- ham, Arthur, and Scrignuoli were tolled by the effective dates of reinstatement offered them in November, and for Quinn by the date he retuned to work, and that the Respondent should be required to offer reinstatement to Harper and Brewer. The Respondent, however, notwithstanding the November offers, maintains that a prior reinstatement offer was made to all seven laid off employees through the Union and rejected by them. The principal basis for this claim is testimony by Arthur that all seven attended a meeting of the Union's Ex- ecutive Board, where the Union's president "said that Brodye Robertson had given us an offer for all seven of us to come back to work." Arthur could not remember when the meeting occurred, stating, too, that he could not recall "the exact offer .. because it was all hashed up," although he subsequently testified that the offer expressed by the Union's president was that "the seven individuals would be reinstated with two weeks back pay" (consisting, as Arthur explained, of the difference for a 2-week period between the wages received and what would have been paid at the journeyman's rate of $5 - 49). According to Arthur "all seven agreed [at the meeting, apparently] not to take the offer." The difficulty with the Respondent's thesis is that Arthur's testimony quoting the Union's president purportedly quoting Robertson is hearsay, and that the record not only fails to establish that an operative reinstatement offer was, in fact, made to the Union but warrants a contrary conclusion. The subject came up twice in Robertson's testimony but yielded no evidence of an offer. On the first occasion, he was asked on his direct examination whether he had had "an opportunity to discuss the basis [sic] or to make a proposal" to the Union "concerning the terms" on which the seven men would return to work, and he replied that he had had such a discussion with Baker about July 30, but then, asked what he proposed, Robertson testified, "I asked what I can do about a scale for these men and I was told that I couldn't do anything but pay the men the scale " Subsequently, again on his direct examination , Robertson was asked whether he had ever discussed reemployment of the seven men with a repre- sentative of the Union, and he replied that he had done so with Baker in August, but when asked "what did you say to him and what did he say to you," the whole of Robertson's reply was, "He [Baker] told me again I have to pay the scale". 11 NLRB v Remington Rand, Inc, 94 F 2d 862, 872 (CA 2) Brown, contrary to a claim by the Respondent in its brief, also fails to spell out a reinstatement offer to the Union. The sum of that testimony is that about the end of September, in a telephone conversation with Green, he told Green "that work looked like it was going to pick up, and we would like to have these men back"; and that Green replied that he knew the whereabouts only of Harper and Arthur, that they had "signed the book" (in other words, had registered at the union's hiring hall), but that "he would try to get in touch with them" (whether with all seven or the two registrants does not appear). Putting aside the question-unnecesary to decide here- whether Green (or the Union, for that matter) had a sufficient agency status to receive an offer of reinstatment on behalf of the discnminatees,24 what Brown said amounted at best to a prediction that "work was going to pick up," harnessed to an expressed wish "to have the men back" when that occurred. This hardly constitutes a definite offer of reinstate- ment, and one may add to that that the terms in which Brown expressed himself to Green differ materially from the terms in which Arthur quotes the Union's president. That being the case, one can only speculate whether Arthur is quoting him accurately, or, if he is, what prompted the organization's president to say anything to the effect that the Company had offered to reinstate the seven men with some backpay The controlling fact is that the record does not establish that a sufficient reinstatement offer was, in fact, made to the Union. I find that offers of reinstatement were made to Scrignuoli, Eastham, Arthur, and Guinn effective November 16, and to Sylvester effective November 9; that no offer of reinstatement was made to any of the discriminatees prior to those made in November, previously described; that Sylvester, Eastham, Arthur, and Scrignuoli rejected the respective offers made them; that the backpay periods for Scrignuolf, Eastham, and Arthur should be tolled as of November 16, for Sylvester as of November 9, and for Guinn as of November 12, the date he returned to work; and that no offer of reinstatement has been made to Harper and Brewer 25 Finally, I find that the Company interfered with the exer- cise by its employees of Section 7 rights, thereby violating Section 8(a)(1) of the Act, as a result of (1) Browns's queries of Harper on July 16 whether the Union's representatives had '' I note, in passing , that the hiring hall provisions in the collective- bargaining contract, to which the Respondent alludes in its brief, do not alter its obligation to terminate the discrimination against the seven men with a suitable offer of reinstatement to each " The reinstatement offer to Sylvester , and its rejection , render moot a claim by the Respondent that he should be denied reinstatement because of misconduct No claim is made that he should be denied backpay, but an expression of my view of the matter is appropriate The Respondent pre- sented evidence to the effect that shortly after the layoffs, Sylvester voiced threats to the Robertsons that he would cause them "trouble " unless he were paid accrued wages due him Conceivably, what Sylvester meant, in the context of circumstances, was that he would sue for the money or file a charge concerning the layoffs with the Board , as he did a few days later The evidence of the remarks in question will not support a finding that he was responsible for damage to "a couple of generators" and some "broken glass" that Brown says he saw on some unspecified occasion after the layoffs There is, however , no dispute that on July 22, on an occasion when Baker and Robertson and others met to discuss wage problems relating to the seven installers , and the latter were on the Company's premises, Sylvester, as Guinn testified , "twisted (a tank gasket) a couple of times and broke it " (This may be "a damaged valve on our gas machine" that Brown says he saw after the meeting If that is not the case , there is no evidence that Sylvester damaged the valve ) Without condoning such conduct , it would not effectuate the policies of the Act to deny Sylvester backpay because of it, since to withhold the remedy would enable the Respondent to profit from its misconduct in discriminatorily laying off Sylvester This, of course, does not preclude the Respondent from invoking any remedy it may have at law for the damage to the gasket caused by Sylvester 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been to the project where Harper was then working, whether he had spoken to them, and whether they had asked if he was receiving the journeyman's scale; (2) Brown's interrogation of Brewer on the same date as to what Baker and Green had "wanted" at the project, and whether he knew who had been to the Union; and (3) the elder Robertson's proposal to Brewer, by telephone, during the union meeting of July 17, that he read a list of names to Brewer, and that the latter "say yes or no whether they [meaning employees, plainly] were there."26 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow of commerce. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following conclusions of law: 1. The Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily laying off seven employees, as found above, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2(6) and 2(7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and desist from its unfair labor practices and take certain affirmative actions designed to effectuate the policies of the Act. In view of the naure and extent of the unfair labor practices committed, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order below which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by the said Section 7.$7 Having found that the Company discriminatorily laid off Howard Harper, Daniel H. Eastham, Robert D. Arthur, Del- bert K. Sylvester, Van B. Brewer, H. Allen Scrignuoli, and Arlis M. Guinn on July 20, 1970, in violation of Section " As it would neither increase nor diminish the remedy in this proceed- ing, I dispense with a determination whether any of the interrogation of Brewer by Skip Robertson on July 16, as found above, is imputable to the Company or violated the Act " " a discriminatory discharge of an employee because of his union affiliation goes to the very heart of the Act " N.L.R.B. v Entwistle Manufac- turing Co, 120 F 2d 532, 536 (C A. 4) See, also, May Department Stores v. NL.R.B, 326 U S 376, Bethlehem Steel Company v N.L R B, 120 F 2d 641 (C.A D C) 8(a)(1) and (3) of the Act, reinstated Guinn on November 12, 1970, offered Sylvester reinstatement effective November 9, 1970, and Scrignuoli, Eastham and Arthur reinstatement effective November 16, 1970, and has not offered reinstate- ment to Harper and Brewer, I shall recommend below that the Company offer Harper and Brewer immediate and full reinstatement to their respective former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their respective seniority and other rights and privileges; that the Company make Harper and Brewer whole for any losses of pay they respectively have suffered, by reason of the discrimination against them between the date of their layoff and the respective dates on which they are offered reinstatement, as aforesaid, together with interest thereon as provided below; that Guinn be made whole for any loss of pay he suffered by reason of the discrimination against him be- tween the date of his layoff and the date of his reinstatement, together with such interest as provided below; that Sylvester he made whole for any loss of pay he suffered by reason of the discrimination against him between the date of his layoff and November 9, 1970, together with interest as provided below; that Scrignuoli, Eastham, and Arthur be made whole for any losses of pay they respectively suffered by reason of the discrimination against them between the date of their layoff and November 16, 1970, together with interest as pro- vided below; and that the loss of pay for each of the seven employees discriminatorily laid off, as found above, be com- puted in accordance with the formula and method prescribed by the Board in F W. Woolworth Company, 90 NLRB 289, and include interest at the rate of six percent per annum, as provided in Isis Plumbing and Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclu- sions of law and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended:28 ORDER Robertson Glass and Glazing Contractor, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Glaziers & Glassworkers Union, AFL-CIO, Local No. 1610, on any other labor organization, by laying off or discharging any employee, or in any other manner discriminating against any employee with respect to such employee's hire, tenure of employment, or any term or condition of employment. (b) By discharging or laying off any employee, interrogat- ing any employee concerning his interest or participation in any activity by or with any labor organization or any activity of such organization in representing him, or in any other manner interfering with or restraining or coercing any em- ployee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action, which, I find, will effectuate the policies of the Act: (a) Offer Van B. Brewer and Howard Harper immediate and full reinstatement to their respective former jobs, or if those no longer exist to substantially equivalent positions, without prejudice to their respective seniority and other rights and privileges, and make each of them, and Delbert K. Sylvester, Daniel H. Eastham, Robert D. Arthur, H. Allen " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the said Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes ROBERTSON GLASS AND GLAZING CONTRACTOR 507 Scrignuoli, and Arlis M. Guinn whole as provided in section VI, above, entitled "The Remedy". (b) Preserve until compliance with any order for backpay made by the National Labor Relations Board in this proceed- ing is effectuated, and make available to the said Board and its agents, for examination and copying, all payroll records, social security records, time cards, and any other records that are relevant to a determination of the amount of backpay due. (c) Post in conspicuous places at the Company's place of business in Phoenix, Arizona, including all places there where notices to employees are customarily posted, copies of the notice attached hereto and marked "Appendix." Copies of the said notice, to be furnished by the Regional Director for Region 28 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced by any other material." (d) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this decision what steps the Respondent has taken to comply therewith.70 It is also recommended the complaint be dismissed to the extent that it alleges that the Company engaged in any unfair labor practices not expressly found above. 1' In the event that the Board's order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD" '0 In the event that this recommended order is adopted by the Board after exceptions have been filed, Section 2(d) thereof shall be modified to read. "Notify the Regional Director for Region 28, in writing, within 20 days from the date of this order, what steps the Respondent has taken to comply herewith" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board had found that we have violated the Na- tional Labor Relations Act, and had ordered us to post this notice. The Act gives the employees the following rights: To engage in self-organization; To form, join, or assist any union; To bargain collectively through representatives of their own choosing; To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion; To refrain from the exercise of any such activities. WE WILL NOT discharge, lay off, or otherwise dis- criminate against any employee because such employee exercised any of such rights. WE WILL NOT, by laying off or discharging any em- ployee, interrogating any employee about his interest or participation in any acitivity in or with any union or about any activity of a union in representing him, or in any other manner, interfere with, restrain, or coerce employees in the exercise of any of the said rights given them by the National Labor Relations Act. The National Labor Relations Board has found that we discriminated against Howard Harper, Daniel H. Eastham, Robert D. Arthur, Delbert K. Sylvester, Van B. Brewer, H. Allen Scrignuoli, and Arlis M. Guinn by laying them off, and that we have reinstated Arlis M. Guinn and have offered reinstatement to Delbert K. Sylvester, Daniel H. Eastham, Robert D. Arthur, and H. Allen Scrignuoli, but have not made an offer to Van B. Brewer and Howard Harper; and has ordered us to offer immediate reinstatement to Van B. Brewer and Howard Harper and to reimburse each of them and Delbert K. Sylvester, Daniel H. Eastham, Robert D. Arthur, H. Allen Scrignuoli, and Arlis M. Guinn for the losses of pay that they respectively may have suffered because of such discrimination together with interest as provided in the Board's order. WE WILL comply with the Board's order. ROBERTSON GLASS AND GLAZING CONTRACTOR, INC. (Employer) Dated By (Representative) (Title) WE WILL notify immediately Van B. Brewer and Howard Harper, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon applica- tion after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by any- one. 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. 7011 Federal Building & US Courthouse, 500 Gold Ave SW, Albuquerque, New Mexico 87101, Tele- phone 843-2555.