Logan Equipment Corp.

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Logan Equipment Corp. and Local 4, International Un- ion of Operating Engineers, AFL-CIO. Case 1- CA-7767 September 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 5, 1972, Trial Examiner Ramey Dono- van issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, the Charging Party filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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, as modified herein .2 i The Charging Party has filed an exception to the Trial Examiner's recom- mended Remedy and Order insofar as it conditions the reinstatement of Pisco, Murphy, and Gallivan and tolls the Respondent's backpay obligation. We find merit in this exception and in accordance with our usual practice we shall leave this matter to the compliance stage of this proceeding. The Respondent Employer has excepted to certain credibility findings made by the Trial Examiner . It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings. Contrary to our dissenting colleague, the Trial Examiner found and the record supports his findings that: (1) no order or directive was made at the June 21 meeting to lay off Pisco, Murphy, or Gallivan. Confirmation for this finding is provided by Juszkiewicz, Respondent's vice president in charge of sales and purchasing, who was present throughout the June 21 meeting and whose testimony was credited by the Trial Examiner; and (2) when Pisco approached Rich about the Union on June 21 , Rich, Baron, and Fulgmiti all actively sought information from Pisco about who was involved in the union activities with Pisco. Similarly, Murphy testified that Baron sought informa- tion from him about "this union stuff," and Juszkiewicz approached employ- ee Siraco about the matter, both inquiries coming on the day of, and after, the Pisco-Rich conversation . Finally, while it is true these three employees were not replaced by new hires, three part-time and student employees did have their hours appreciably increased during the months immediately fol- lowing the layoffs. 2 Delete from the section of the Trial Examiner's Decision entitled "The Remedy" the following: In the event that no former or substantially equivalent jobs currently exist for the aforementioned employees, they shall be placed on a prefer- ential hiring list for employment in the event such Jobs become available within 12 months from the date of this Decision . If the employees are placed on the preferential hiring list in the foregoing circumstances, the backpay obligation shall be tolled from such date. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Logan Equipment Corp., Boston, Massachusetts, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Joseph A. Pisco, Jr., Paul Murphy, and Paul Gallivan immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of pay in the man- ner described in The Remedy section of the Trial Examiner's Decision, as modified herein. 2. Insert the following as paragraph 2(b) and re- letter the succeeding paragraphs as 2(c), (d), and (e): "(b) Notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 3. Substitute the attached notice for the Trial Examiner's notice. CHAIRMAN MILLER, dissenting in part: The Trial Examiner found that Respondent vio- lated Section 8(a)(3) through the layoffs of Pisco, Murphy, and Gallivan. It is clear, however, that, on the Trial Examiner's own findings, the possibility of a layoff existed prior to any union activity and that these employees were most vulnerable to termination in the event of the layoff. Thus, the Trial Examiner accepted Respondent's testimony that Pisco, Murphy, and Gallivan had the lowest point standing under Respondent's evaluation system and hence would be the first to be terminated in the event of layoff. The Trial Examiner also concluded that on June 21, 1971, at an executive board meeting, some 4 days prior to the advent of the Union, Respondent's officials dis- cussed "a potential layoff and ... employees and their point standing." Finally, it is noted that the Trial Examiner found, and the record shows, that following the layoff these three employees were not replaced by new hires. In the face of these findings, it is apparent that the 8(a)(3) allegations in the complaint may only be sustained on the theory that Respondent, in reprisal for union activities, discriminatorily accelerated the 199 NLRB No. 33 LOGAN EQUIPMENT CORP. date of the proposed layoff. I would agree with the majority that, as to Pisco, the General Counsel has met his burden of proof, through (1) the showing that Respondent possessed direct knowledge of Pisco's un- ion activities, (2) Respondent's specific threats direct- ed at Pisco, and (3) Respondent's precipitate action in terminating him on the very day that it acquired such knowledge and unlawfully voiced its animus toward his union activities. I therefore would agree with my colleagues that Respondent violated Section, 8(a)(3) in laying off Pisco. On the other hand I would not find that the General Counsel has established that the layoffs of Murphy and Gallivan several days later were in re- prisal for their known or suspected union activities. As heretofore indicated, Respondent had discussed the layoff prior to any organizational activity, and, on the date of their layoffs, Murphy and Gallivan had the lowest priority for retention under Respondent's "rat- ing system." Unlike Pisco, there is no evidence that Respondent was aware of their union activites nor was there any expression of hostility directed to them. Almost the only evidence from which the Trial Examin- er inferred that Respondent had knowledge of their un- ion activity was that they sometimes had lunch with Pisco. This is far too slim and speculative a shred of evidence to support a reasonably based inference. For these reasons I would dismiss the 8(a)(3) allegations in the complaint based on the layoffs of Murphy and Gal- livan. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties participated and were represented by attorneys, it has been found that we have violated the National Labor Relations Act in certain respects. To remedy these violations, we ad- vise you that: WE WILL NOT discriminate against Joseph A. Pisco, Jr., Paul Murphy, and Paul Gallivan or any other employee because of their union or concerted activities protected by the National Labor Relations Act. WE WILL offer reinstatement to the three em- ployees aforementioned to their former or sub- stantially equivalent jobs and will pay them any wages they may have lost by reason of our dis- crimination against them. WE WILL NOT unlawfully interrogate or threaten employees contrary to the rights guaran- teed to them in the National Labor Relations Act. LOGAN EQUIPMENT CORP (Employer) Dated By 385 (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Trailing and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Bulfinch Building, Seventh Floor, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3330. TRIAL EXAMINER'S DECISION RAMEY DoNOVAN, Trial Examiner: The charge in this case was filed on July 20, 1971, by Local 4, International Union of Operating Engineers, herein the Union, against Logan Equipment Corp. herein Respondent or the Compa- ny. A complaint issued on November 24, 1971, alleging unlawful interrogation and threats in violation of Section 8(a)(1) of the Act, and that on June 25, 1971, and June 28, 1971, Respondent discharged three named employees be- cause of their union or concerted activity, all in violation of Section 8(a)(3) and (1) of the Act. Respondent's answer denies the commission of the alleged unfair labor practices. The case was tried in Boston, Massachusetts, on January 12 and 14, 1972. Briefs were thereafter filed with the Trial Examiner by the General Counsel and Respondent. FINDINGS AND CONCLUSIONS I JURISDICTION Respondent maintains its principal office and place of business in Boston, Massachusetts, herein the Boston opera- tion, as well as facilities or operations in Connecticut, and in Londonderry, New Hampshire. At Boston, Respondent is engaged in the retail sale, rental, and servicing of con- struction machinery and equipment and related items. In the course of its business, Respondent receives mate- rials annually of a value in excess of $50,000 at its Boston operation and these materials are received annually from points outside Massachusetts. Respondent sells, rents, and services items in its business that have a gross value in excess of $500,000. Respondent is an employer engaged in commerce with- in the meaning of the Act. The Union is a labor orgainzation within the meaning of the Act. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES Respondent has been in business 8 or 9 years. Rich is the president and principal stockholder; Fulginiti is the treasurer and the sole minority stockholder; Mucci is the comptroller; Juszkiewicz is vice president in charge of service and service manager; Baron is vice president in charge of sales and purchasing. The board of directors con- sists of Rich, Fulginitti and Mucci. An executive committee or board is composed of the foregoing, plus Juszkiewicz and Baron. All the aforementioned persons are located at the Bos- ton facility. Around May 1971 there were also 17 truckdrivers, helpers, and mechanics employed in Boston plus some sales- men and office clericals. In addition to evidence in the record as to what they did and said at various times, all the members of the execu- tive board except Mucci testified at the hearing. Rich testi- fied twice and he impressed us as intelligent and articulate. Aside from title, there is no doubt in our mind that he is the chief officer and principal owner of the Company and that he is the key decision and policy maker. Since March 1971, or earlier, the Union has been pick- eting Respondent's Boston facility. What the cause or the objective of the Union was does not appear in this record but there is no evidence that the Union had claimed to represent Respondent's employees. Among Respondent's employees in Boston were Pisco, Murphy, and Gallivan. Pisco has been a high school class- mate of Frank Rich, Jr., a son of Respondent's president. Pisco and Rich, Jr., had been best friends in high school and after graduation had continued their friendship and social relationship. Rich, Jr., had been best man at Pisco's wed- ding and Pisco had been an usher at his friend's wedding. On a number of occasions Pisco had been at the Rich family home for dinner and otherwise and had met Rich, Sr., Respondent's president, on such occasions . Pisco, while em- ployed elsewhere, had spoken to Rich, Jr., about employ- ment with Respondent. In March 1971 Rich, Jr., told his friend, Pisco, to contact his father about a job. Pisco did so and was hired as a truckdriver and helper around the end of March 1971. He delivered machinery and other equip- ment to various jobsites as assigned. He received his assign- ments to drive to a particular job and the necessary papers from Murphy, the dispatcher. Pisco testified, however, that he considered Baron, who was in charge of sales and pur- chases, to be his supervisor. He cited an occasion when he desired to leave work early in order to keep a medical ap- pointment. He mentioned the matter to Murphy, who ad- vised him to speak to Baron or Rich. Pisco received the necessary permission from Baron. In addition to working on weekdays Pisco also worked regularly on Saturday mom- ings. He was scheduled to work Saturday, June 26, 1971, but, beforehand, he had requested and secured from Baron permission to be off that particular Saturday. No criticism, discipline, or warning had been received by Pisco regarding his work during his period of employment. He received a 25-cent-an-hour raise in the latter part of April 1971. Murphy started working for Respondent in September 1970 as a dispatcher. He worked in the office where there was a desk, counter, and related equipment. Murphy would take orders from customers over the telephone or, on occa- sion, in the office, if a customer came in. He would check on the availability of the item ordered and then would write up the necessary papers. He would give the order to a driver for delivery to the customer. Murphy would assign a driver according to the latter's availability at the time and his familiarity with the geographical area and the type of equip- ment to be delivered. Upon his return the driver would give the papers involved to Murphy. Sometimes Murphy would wait on a customer at the sales counter in the office in the event the customer had come in to pick up some item. As far as appears there was no sales clerk as such in the office other than Murphy. If some item was needed, e.g. Juskiew- icz or Baron might say that spark plugs were needed for a forklift and send someone over to Hauseman,I Murphy would write up a purchase order for the spark plugs and would send a driver to pick them up. If no driver was available, Murphy would himself go for the item. Murphy was a college graduate and Rich had spoken to him about possible training for future or potential branch manager jobs. In January 1971 Murphy had received a job offer from an insurance company. He mentioned this fact and the salary to Respondent's treasurer, Fulginiti. The latter depre- cated the outside opportunity, telling Murphy that he was being trained for a possible branch managership that would pay a substantial salary. Murphy had received no repri- mands or warnings while working for Respondent. He, like Pisco, customarily worked 53 or 54 hours a week. Around March 1971 he received a wage increase from $2.75 to $3.00 per hour. This was pursuant to Baron's recommendation. Baron was his immediate supervisor. Murphy, who, as dis- patcher, was in a position to have some observation of the business or slack in the trips of the drivers and the paper work of purchases and rentals of Respondent's machinery and equipment, testified that, in May and June 1971, the business appeared to be average. He states that the drivers were kept busy and that various items, such as forklifts and compressors, were all rented out during that period. Mur- phy did also state that in April or May 1971, comptroller Mucci had remarked to him that he, Mucci, did not think that the Company was "doing the business we should." Although, at the hearing, some of Respondent's witnesses testified that Murphy was a supervisor,2 this contention is not referred to in Respondent's brief. In any event, we find that Murphy is an employee and not a supervisor as defined in the Act. Gallivan was a truckdnver and helper who also did some reconditioning work on equipment. He was first hired by Respondent in September 1970. He worked until Decem- ber of that year when he went back to school. Later, he asked Rich for his job back and he was hired again in February 1971. While in Respondent's employ no one had told Gallivan that his work or conduct were deficient or were not what they should be. Pisco, Murphy, and Gallivan are all relatively young men and appeared to be contemporaries who had a number 1 One of Respondent's regular suppliers 2 Rich stated that Murphy was assistant sales manager . Murphy testified credibly that he had never been so informed. Baron testified that Murphy was a supervisor because he told drivers to deliver items to various sites and would take orders from customers over the telephone, write up the order, check on the availability of the item, and then assign the delivery of the item to a driver. LOGAN EQUIPMENT CORP. 387 of things in common. Confirmatory of this observation is the testimony of Pisco that, while he was friendly with all the employees, he Murphy, and Gallivan usually had lunch together. Murphy, whose work was in close contact with the drivers, testified that whenever possible he arranged deliver- ies so that some of the drivers would be back at the plant around lunchtime so that he and the others could eat togeth- er. He stated that normally, when at all possible, he had lunch with Pisco and Gallivan. Siraco is an employee who principally preformed me- chanical-type work and related tasks at Respondent's fa- cility in Boston. He was an older man than either of the three men previously mentioned. He worked in a shop where he evidently had tools and related equipment. This shop or paint shop, as it was designated, was some distance away from the office and was in an area at the side of Respondent's yard. Murphy stated that in the period prior to June 25, 1971, he and other employees would frequently discuss the bene- fits and drawbacks of getting into a union. They customarily did this in Siraco's shop in order to minimize the chance of being overheard. At the beginning, Pisco was not a part of these discussions, because, although Murphy and the others were good friends of Murphy, they realized that Pisco was close to the Rich family and was on a "best friends" basis with Rich, Jr. This situation, however, changed on Thurs- day, June 24, 1971, when Pisco came into the office after a delivery. Murphy was at the counter talking to employee Francis. Apparently no one else was in the office at the time. Pisco came over and said that he thought the men should get themselves into the Union because there were too many benefits to be gained and that they would be crazy to over- look them. Neither Murphy nor Francis made any com- ment, because, according to Murphy, he still was not sure about Pisco's reliability in this area, owing to Pisco's friend- liness with the Riches. That same day, June 24, Murphy, Pisco and Gallivan had lunch together at a place called Barney's in East Boston. They discussed the Union and medical and insurance bene- fits connected therewith. It was decided that they would contact the union representative that Friday or Saturday night. Pisco said, however, that they should talk to Rich and tell him of their intention. The others were strongly against this idea of informing Rich and said they would all be fired if this was done.3 After lunch, Pisco and the others returned to work for the balance of the day. On Friday, June 25, 1971, Pisco came to work and made deliveries by truck.4 He returned around 10 a.m. and, seeing Rich in the area outside of the office, he approached Rich, telling him that he, Pisco, had a problem and would like to discuss it with Rich. Rich agreed to hear what Pisco had to say. According to Pisco, the ensuing conversation 3 Pisco mentions another meeting about June 24 . He states that he, Mur- phy, Gallivan, Francis, Siraco, and Diaz met in Siraco's shop Diaz, an employee, was present only momentarily. The others talked about the Union. Pisco said he wanted the Union but thought that they should talk to Rich about it. The indication is that this meeting may have preceded the luncheon meeting of Pisco, Murphy and Gallivan at noon on June 24. Thus, Pisco, in describing the latter session states that "we again discussed the Unionl I said we should tell Mr. Rich about it " 4 His hours were 7 a.m. to 5 p.m., and to 12 noon on Saturdays began outside Siraco's paint shop and continued with the participants walking and being then in the door area and hall leading to the office and counter areas of the office building. Pisco told Rich that he trusted Rich and that he had a problem that he felt he should discuss with Rich. Pisco continued and said that the general attitude of the men in the plant is that they would like to join the Union. Rich asked, why, who was involved, and what had been done regarding joining the Umon. Pisco said, "I can't tell you who is involved. I put myself in the middle of it and I can't give you any names." During the conversation Rich was walking toward the door leading to the hallway and office area. Pisco was with him. At the door area, on the room side, Fulginiti joined Rich and Pisco, having been called by Rich. Rich said to Pisco, "Tell him what you said." Pisco then turned to Fulginiti and said, "The general attitude is that the men would like to join the Union." Fulginiti asked if Pisco had spoken to the union business agent and Pisco said, no. Fulginiti then asked who started it and who was involved. Pisco replied that he was in the middle, that he did not want to get anyone else involved and that he himself was already involved. During the foregoing conversations with Rich, Pisco states that Rich became agitated and angry and said in loud tones, "I don't care what you do. If you want to join the Union, go ahead and join the Union. If you join the Union, you'll be out that front door within a year." Baron joined the group at some point after Fulginiti. He asked Pisco, who started it, who is involved, who talked with the business agent. According to Pisco, Rich, Fulginiti, and Baron all asked about the same questions and all spoke in more than a normal tone of voice. Pisco states that the episode was one of considerable confusion since all three members of management began asking him questions and speaking at the same time. Several names of employees were mentioned during the episode by the management people including Francis, Murphy, and Gallivan but Pisco replied, "I don't know, I can't tell you.... "Pisco states that he mentioned no names of employees as being involved. He states that the incident occupied 15 or 20 minutes. Pisco testified that the reason he had told Rich about the union movement among the men and his own involvement was because he trusted Rich and because Rich's son was his best friend. Pisco states that he felt close to the Rich family and he was "obliged" to Rich and did not want to do anything behind his back or, on the other hand, to hurt the chances of getting a union in the shop. Thereafter, Baron gave Pisco a delivery assignment and the necessary papers. Pisco left and made the delivery. After lunch on the same day, June 25, Pisco saw Baron talking to Frank Siraco in the latter's paint shop. Pisco was about 10 feet away and he testified that he heard Baron "plainly" say to Siraco, "Do you know who started it, Frankie, who's involved?" Siraco replied, "I know who's involved, I don't know anything about it." Baron then went toward the office. Murphy testified that on the morning of June 25 he saw Pisco and Rich enter the doorway of the building where Murphy worked. They were about 25 feet away from Mur- phy. The latter states that he heard Pisco tell Rich that the men wanted to join the Umon and he felt that it was only fair that he should tell Rich because he did not want to do 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anything secretly or behind his back and wished to play square with Rich. Murphy heard Rich call Fulginiti and Rich told the latter that Pisco had just told him that the men were serious about the Union and wanted to join it. Fulgini- ti then, according to Murphy, asked Pisco who wanted the Union and why did they want it. He heard Rich ask why did he want the Union. At some point Murphy saw Baron join the group. Murphy states that he did not hear ev- erything that was said because at some points the conversa- tion was in loud tones but at times the voices receded. Shortly afterwards, around 11 a.m., Baron came to where Murphy was and asked, "What do you know about this union stuff?" Murphy said, "Well, yeah, I know they have been walking outside for 2 or 3 months [a reference to the pickets]" Baron said, "no, no, no, this union thing who started it? Have you been approached by anybody?" Mur- phy replied that nobody had approached him, "it's just general talk." Baron again asked, "who approached you." Murphy once more said, "It was just general talk among the guys. They were just curious about the union." Baron quer- ied, "what's to be curious about?" Murphy said "well, you know, the difference in wages that the union people get, sick leave, benefits, etc." Baron paused for a minute, said noth- ing, and stood there. He then said, "I think I know who's at the bottom of this." Later, around 11 a.m., when Baron and Murphy were in the office,5 Baron said, "It's not that busy that we couldn't just lay Joe Pisco off." Prior to this, Murphy had not heard Baron mention anything about a possible layoff of employees. About 15 minutes after the above conversation, Mur- phy heard Baron speak to comptroller Mucci on the tele- phone. Baron told Mucci that he wanted to draw a check. Mucci came to the office shortly thereafter and spoke with Baron. Then they went to the timecard rack, took out Pisco's card, and put it back. That same afternoon, Friday, June 25, Murphy heard Baron tell Pisco that the latter was being laid off. Pisco was laid off that day at the end of his shift. Baron told him that it was because of "lack of work."6 Murphy and Gallivan both came to work at their usual time on Monday, June 28, 1971, and went to work. Around noon, Baron told Murphy that he was being laid off because things were slow and there was a lack of work. When Galli- van, who had been out on a delivery trip, returned around 2:30 p.m., Baron told him that he was going to be laid off for lack of work. Gallivan and Murphy were both terminat- ed on June 28.7- Rich testified that it was not until January 12, 1972, the date of the instant hearing, when Pisco and the others testi- fied, that he became aware that they had been interested in the Union. Rich admits that on the morning of June 25, 1972, he had a conversation with Pisco but he denies that either Pisco or he mentioned the Union. According to Rich, Pisco had told him in the office on June 25 that he, Pisco, had a problem that he wished to discuss with Rich. Rich agreed to hear him and they stopped out in the yard near s The office was the customary place where both of these men worked 6 Respondent's workweek ends on Wednesday evening and begins on Thursday morning. Thursday is the normal payday. 7 Baron told Murphy that if he needed a recommendation or a reference that he should not hesitate to use Respondent as a reference . Murphy subse- quently did so the paint shop. What ensued, as described by Rich, was that Pisco said, "I wanna-I'd like to get back to the RW-10 situation."8 Rich told him to go ahead and explain the mat- ter. Pisco then described how the RW-10 had slipped off the truck. Rich expressed doubt that the equipment could have slipped off. He states that he, Rich, "got pretty hot" about the matter and called to Fulginiti to come and listen to Pisco's account of the RW-10. Fulginiti came over and then Baron, as Pisco repeated what he had told Rich about the RW- 10. Rich then left for an appointment, and that was the extent of the incident. Fulginiti testified that he had heard Rich's testimony regarding the conversation with Pisco on June 25 and Ful- giniti asserted that Rich's testimony was accurate. Fulginiti states that after Rich left, Fulginiti said to Pisco that "I [Fulginiti] didn't like the sound of the goings on and I was going to talk to him later about it." On cross-examination, when Fulgmiti was asked about his last quoted remark, he said, "what I meant by it is that I didn't like the idea of ruining equipment ... or damaging equipment." Baron, a witness for Respondent, testified generally that he had nev- er questioned employees about their union sentiments or about the union sentiments of other employees. Baron did not refer to the June 25 incident involving Pisco, Rich, Fulginiti, and himself or what took place when Baron was present. Based on our observation of the witnesses and for other reasons in the record, the Trial Examiner credits Pisco's account of the June 25 incident with Rich as previously set forth above. Additionally, Pisco expressly stated that he did not discuss the RW-10 matter with Rich on that date. We credit this testimony. It is uncontroverted that the RW-10 incident occurred 3 weeks before June 25. Thr RW-10 weighed over a ton. It had metal wheels. The base of the hydraulic lift on the tailgate of the truck in which Pisco delivered the RW- 10 was metal. At the delivery site the RW-10 slipped and was dam- aged. According to Pisco, a small pipeline on the RW-10 was damaged and he fixed it. Following the accident, Re- spondent altered the lift area of the truck by having holes drilled thereon and bolting a large timber to the surface and this, according to Pisco, would prevent any future slipping off of equipment. Respondent does not controvert the fore- going description of the incident and its aftermath. Follow- ing the accident, Rich had asked Pisco how it had happened. Pisco told him, as described above, and appar- ently this had led to the installation of the bolted timber on the lift to prevent future slippage. Rich states that after the accident he did not discipline Pisco or "confront" him about the accident. Rich said that he does recall having talked to Pisco about the matter some time prior to June 25 but that Pisco told him he did not know how the incident occurred. Rich testified that the RW-10 had been damaged but he did not controvert Pisco's testimony that the damage was slight nor did Respondent offer evidence on this point in the form of repair bills, parts, or labor regarding repair of the machine. Rich was also asked: 8 The RW-10 is a piece of equipment like a small or baby steamroller. Three weeks previously Pisco had delivered an RW-10 by truck to a custom- er. At the delivery site the RW-10 had fallen or had slipped off the truck and sustained some damage. LOGAN EQUIPMENT CORP. 389 Q. Did you hear Mr. Pisco say the machine was able to be used on a rental basis that day? A. Mr. Pisco said that. Q. That is untrue? A. I don't know if it was used or not, sir. In our opinion, it is unlikely that an employee like Pisco, 3 weeks after a minor accident, for which he was neither disciplined nor warned, and after his employer had installed a safety device on the truck to prevent future sim- ilar occurrences (thus indicating to some degree that the equipment rather than the employee had been the critical factor in the accident), would suddenly, for no apparent reason, on June 25, tell President Rich that he had a prob- lem, the accident of 3 weeks before, and proceed to discuss it with Rich. Moreover, if this unlikely event occurred, why would either party "get pretty hot" about it and speak loud- ly? From Pisco's standpoint no one had disciplined or warned him or made any threat to him. No one had said that the Company was considering docking his pay for the dam- age or taking other action. Why would Pisco exhume this matter, already about a month old, with Rich on June 25, and get into a back and forth hassle with President Rich? Why would Rich "get pretty hot" about the matter on June 25 when neither he nor anyone else had even mildly rebuked Pisco immediately after the accident or for 3 weeks thereaf t- er? Why would it be necessary for Rich to summon Fulginiti and Baron to hear Pisco tell how the RW-10 had slipped off the truck when Pisco had told the same story after the accident? 9 In crediting Pisco regarding the June 25 conversation with Rich, we have also considered Siraco's testimony. Un- like Pisco, Murphy, and Gallivan, who had been discharged by Respondent, employee Siraco was still employed at the time of the hearing. As a witness, he impressed us as a man who would have preferred to have been almost any other place or in any other role than a witness in this hearing. His attitude was of a man in the middle and he did his best to stay that way in his testimony. Although subpoenaed and called by the GC as a witness, Siraco did not impress us as a witness who testified with any embellishment or bias and he was not, in our opinion, hostile toward Respondent or overly eager to help the GC. His testimony impressed us as truthful as far as it went. Siraco testified that three or four employees had asked his opinion about the Union. The witness said he could not remember who the people were or exactly when this oc- cuned.10 Siraco states that he told the men they were crazy to get involved in a union because no private business want- ed to have a union. His comment may have been particular- ly directed to Pisco's idea that Rich should be told of the employees' desire for a union. On June 25, Siraco stated that he did not hear what Rich and Pisco were saying to each other but he states: "I heard yelling; and when I hear trouble, I go the other way." As we have previously indicated, if, as there surely was, 9If we prescmd from Plsco's testimony that he had told Rich how the accident occurred well before June 25, the alleged great interest in the story on the part of Rich, Fulgmrti, and Baron on June 25 can be explained only if no supervisor, for 3 weeks, had asked Pisco how the accident happened or if Pisco had never before given any explanation about the accident . Both of these possibilities seem highly unlikely. 10 In our opinion, the occurrence was probably on June 24 and the group included Pisco, Murphy, Gallivan and one or two others. there was "yelling" and "trouble" between Rich and Pisco on June 25, these facts are much more consistent with Pisco's version of his conversation with Rich than the latter's version. In our opinion, although it is not essential to so find, Siraco knew and sensed what the yelling and trouble was all about and that is why he regarded it as real "trouble" and went the other way. He knew on June 24 that Pisco was in the union group and since Siraco had been present at that June 24 employee gathering he had heard Pisco advocating that Rich should be told that the men had decided to join the Union. The "fireworks" on June 25, between Rich and Pisco, therefore, were not hard to diagnose, particularly for someone like Siraco, who had previously told his fellow employees that no private employer wanted to have his employees union- ized. This is so, even assuming, that Siraco had heard none of the words being "yelled" about on June 25 between Rich and Pisco. A minor accident, 3 weeks before, for which Pisco, the employee involved had not even been criticized or reprimanded, would surely not give rise to such "yelling" and "trouble" on June 25 that an employee like Siraco would seek to avoid it and go the way. The Pisco-Rich conversation on June 25 had begun at about 10 a.m. and lasted about 20 minutes. In the afternoon of that same day, June 25, Juszkiewicz, who was Respondent's service manager and vice president in charge of service, called Siraco over to the side of the yard. He said to Siraco: "What's going on over there? [Siraco] I don't know. [Juszkiewicz] Are you sure you don't know? [Siraco] Yes, what do I know. Nobody talks to me, only once in a while. [Juszkiewicz] Well, you don't know and no one talks to you, but I may have the right one. Juszkiewicz admits asking Siraco what was going on and that when Siraco said "nothing," Juszkiewicz said "there's got to be something going on." According to Juszkiewicz, Siraco then told him that "the bosses" and Pisco had been yelling at each other. Juszkiewicz was asked: Q. What prompted you to go to Siraco in the first place and ask him what was going on? A. I don't know. I got a feeling there was something going on and the place is close enough that you can get a feeling. Juszkiewicz testified that he himself had heard no yelling. The Examiner credits Siraco's testimony of the inci- dent. We are satisfied that it was sometime in the afternoon of June 25, after the morning incident between Pisco and Rich, that Juszkiewicz approached Siraco. Although Jusz- kiewicz had not been a participant in the morning's incident between Pisco and Rich, we find it difficult to believe that he had not been advised thereafter by either Rich, Fulginiti, or Baron, or by all of them, of what Pisco had told Rich about the employees' interest in having a union. Pisco had plainly revealed to Rich that he, Pisco, was involved in the Union but he had refused to give the names of the other employees involved. That afternoon, then, Juszkiewicz came to Siraco and asked him what was going on. Juszkiewicz testified that he went in the yard, called Siraco over to the side, because Juszkiewicz had "a feeling there was something going on...." About what kind of "something" did Juszkiewicz have a feeling? If it was some- 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing concerning management policy or about the operation of the business or the sale, servicing, or rental of equipment, Juszkiewicz, vice president and service manager, surely did not have to go out in the plant yard and ask a service mechanic like Siraco, "what's going on." He could secure such information from his fellow officers, Rich, Fulginiti, and Baron. It is rather striking that it was after Pisco, on June 25, had told Rich of Pisco's involvement in the Union and that other unnamed employees were also involved, that Juszkiewicz sought out Siraco to ask him what was going on. This was a rather transparent effort to elicit from Siraco information regarding the union movement. Siraco's an- swers and their evasive nature confirm that both he and Juszkiewicz knew what the latter meant when he asked what is going on. Juszkiewicz did not preface his question to Siraco by targeting the subject area. He did not say what is going on about getting new compressor parts; or what is going on about the delay in repairing the truck engine; or similar specifications. Juszkiewicz simply asked what's going on and pressed Siraco for an answer. Siraco never asked what do you mean, or, what's going on where, or about what. Both parties knew that Juszkiewicz was talking about the Pisco-Rich occurrence that morning when it was revealed to management that some employees were in- volved in a union movement. Siraco pleaded ignorance to Juszkiewicz, being convinced that the whole subject spelled trouble and having warned his fellow employees previously that no employer wanted a union and that they were "cra- zy" to become involved in a union." Rich testified that the decision to terminate Pisco, Mur- phy and Gallivan on June 25 has been made at a meeting of Respondent's executive board on Monday, June 21, 1971. The background of the meeting, as described by Rich, is that Respondent, at the beginning of 1971, had projected a 65-percent increase in business for 1971 over 1970. On the basis of this projection, Rich stated that in January 1971 Respondent, at an industry convention, made commitments to manufacturers for various items of equipment and, usual- ly, the commitments were for "tentative quantities" of such equipment. During 1971, however, Respondent's business, while above that of 1970, was substantially below the 65-percent increase that had been projected.12 As a result of this failure to achieve as great an increase in business as had been projected and because commitments had been made for equipment in January 1971 based on the projected increase ii As we have previously seen, Pisco, on the morning of June 25, had told Rich that he and the other employees wanted to join the Union. However, despite efforts by Rich, Fulginiti, and Baron , Pisco had refused to give the names of employees, other than himself, who were involved. Quite evidently in an effort to get more information on the union activity, and those involved, Baron, later that morning, asked Murphy, "what do you know about this union stuff ; and, "who started it," and "who approached you." Baron also spoke to Siraco and asked him, who started "it" and who is involved. That afternoon Juszkiewicz queued Siraco as to what was going on, as above described. 12 At Boston, the month-by-month increase in total business in 1971 as compared with the same months in 1970 was as follows Jan + 79 6 percent, i e January 1971 was 79 6 percent above January 1970 and more than 14 percent above the 65-percent projection for 1971 Feb + 13 percent, i e January 1971 was 13 percent above January 1970 but 42 percent below the 65-percent projection for 1971 March + 22 percent; April + 22 7 percent, May + 14 9 percent; June + 14 2 percent, July + 26 6 percent, Aug + 4 7 percent, Sept + 5 2 percent, Oct + 9 5 percent, Nov + 4 9 percent, and Dec. + 8 4 percent in business, Rich stated that early in the year, and thereaft- er, Respondent's cash flow was squeezed and was adversely affected. Although comptroller Mucci did not testify, Rich stated that for several months prior to June 1971 and in the following months Mucci had spoken to him and to other directors about the Company's poor cash flow and that something should be done about it. Finally, as a result of all this, a meeting of the Company's executive board was con- vened on Monday, June 21, Present were Rich, Mucci, Fulginiti, Juszkiewicz, and Baron. In preparation for this meeting, Rich stated that he came to the office the morning of June 21 around 6 or 7 a.m. and worked on reports. He apparently worked on these reports for some time since he stated that he had the com- pleted reports at the executive board meeting that was held late that same afternoon in the same office. The meeting lasted about 30 minutes or more. The reports referred to were multitudinous personnel report forms on each employee that Rich had devised and maintained. No employee had been aware of such reports or the ratings or comments made thereon by Rich. Some of the officers were aware that Rich did maintain these reports on employees but the reports were filled in and maintained exclusively by Rich. The reports included numerical ratings of each employee based on various listed factors. Mucci customarily made the necessary mathematical computa- tions based on the various ratings that Rich had placed in the respective reports. At the meeting of the executive board on June 21, 1971, after consideration of the point ratings of the employees and the personnel reports prepared by Rich, and after some discussion, Rich stated that it was decided to lay off four employees for lack of work and to transfer one employee. Rich testified that he thereupon ordered Baron to lay off the four men and transfer the one "by the end of the week" and when asked, at the hearing, if "by the end of the week" he meant "Friday," he said, "yes, sir." Baron also testified that this was what he understood. According to Rich, the four men named for layoff at the June 21 meeting were Pisco, Murphy,, Gallivan, and Pascucci, with Francis to be trans- ferred.13 Some observations are in order regarding Respondent's evidence with respect to its business position in 1971. The evidence that Respondent, in December-Janu- 13 We know little about Pascucci except that Rich states that Pascucci had not shown up for work In an affidavit by Rich which is in evidence there are a few more facts about Pascucci Since these facts are not in dispute, we note them. Rich states in the affidavit that Pascucci was a helper and appren- tice welder. He worked for Respondent in August and September 1970; he returned on April 20, 1971; he worked 2 full weeks in May 1971 and was out 2 weeks in May 1971, he worked in June 1971 but "had been out on June 21, 22, 23, 24, 25, 1971 . Pascucci was sent a letter on June 25 , 1971, notifying him of his lay off." In the Examiner's opmon, Pascucci's attendance record alone would appear to have made him a fit subject for a layoff and regardless of whether there was or was not a lack of work. Pascucci's layoff appears to .ie limited to its own facts and to be in a different category from the other layoffs. Rich's affidavit also furnishes some details about Francis who was trans- ferred No one disputed anything about Francis so we note Rich's statements on this score. Thus, During the week ending July 15, 1971 Peter Francis was transferred to our branch in Londonderry , N H. He was made an assistant branch manager there. In East Boston he worked as part time driver and helper. Our manager at our Berlin, Conn. branch left and we shifted our Lon- donderry manager to Berlin and Francis to Londonderry as assistant manager there. LOGAN EQUIPMENT CORP. ary (1970-1971) had projected a 65-percent increase in busi- ness for the year 1971, consists of Rich's testimony that that was the projection. This might be sufficient if we had found Rich to be a reliable witness as, for instance, regarding events of June 25, 1971, in which he, Pisco, and others were involved. It is apparent that a 65-percent projected increase in business is substantial, and, relative to such a projection, even a 50-percent increase in business over the prior year can be claimed to equate with a decrease in business justify- mg a layoff, since a 50-percent increase is 15 percent below the claimed projection. If the projection had been asserted to be an 80-percent increase then, of course, even a 65- percent increase in actual business could be equated with a decrease. Respondent will no doubt assert that the authenticity of the 65-percent projection is demonstrated by the fact that, in January 1971, Respondent made "commitments" to purchase equipment based on its 65-percent projection. Again, the evidence regarding commitments is Rich's testi- mony. It is not clear how firm or definitive these commit- ments made in January were. Rich testified that the com- mitments he was describing were usually commitments for "tentative quantities" of the equipment for which commit- ment was made. It would be our opinion, that a commit- ment, for a tentative quantity of an item, would be quite different insofar as imposing an ironclad contractual pur- chase obligation on the purchaser than would be a commit- ment for a fixed and definite quantity of an item. A firm contract in January to purchase 5 compressors is different from a commitment to purchase 2 or 20 compressors during the year; and different from a commitment or firm contract to purchase 2 compressors with an option to purchase up to 18 more compressors within the next 6 months. Presumably, since Respondent asserts that in January it made commit- ments for equipment on the basis of its projection of a 65-percent increase of business, there would be some kind of a ratio between certain items of equipment to be pur- chased and a 65-percent increase of business. If, for in- stance, a 65-percent business increase equated to 20 new compressors, concrete evidence that a firm purchase con- tract had been signed in January for 20 compressors would fully support Respondent's position. The position would also find support if the compressors committed for were in an amount geared to only, for instance, a 40-percent in- crease in business, since the actual increase in 1971 was less than 40 percent. In either instance, there would be concrete evidence supporting the contention that Respondent had overcomnutted itself and had thus impaired its cash flow. And, of course, actual figures of cash flow in 1971 as com- pared with 1970, would be direct evidence of Respondent's contention that its cash flow position in 1971 was critical. The record, however, does not contain evidence of the fore- going types.14 14 In our opinion, the matter of the 65-percent projection , the commitments for equipment, and the cash flow position were part of Respondent's princi- pal affirmative defense to the General Counsel's position that three men were discharged because of what happened on June 25 when Pisco told Rich that Pisco and other employees wanted a union. While the General Counsel has not proved that Respondent did not have a projection of a 65-percent in- crease or did not have commitments or did not have a poor cash flow, these matters were particularly within Respondent 's control Respondent's intro- duction of evidence to support these economic contentions which constituted 391 Another aspect of the economic picture that merits some attention is that this is not the case of an employer who had hired additional employees in 1971 on the basis of its projection of a 65-percent increase in business for that year and then laid them off when the increase in business was less than 65 percent. Murphy was hired in September 1970. This apparently had nothing to do with 1971 projec- tions since the latter had not been made when Murphy was hired. He was discharged on June 28, 1971. Respondent's total business for May 1971 was 17.3 percent greater than May 1970 and since May 1970 had been 56 percent higher than May 1969, business in May 1971 was 73.3 percent higher than May 1969. June 1971 was 17.2 percent higher in business volume than June 1970.15 While it is true that Pisco, unlike Murphy, had been hired in 1971, Pisco's hiring near the end of March 1971 was at a time when Respondent was already aware that it was operating well below its projection of a 65-percent increase in business. Thus, business in Boston in February 1971 was 52 percent below the projection and in March and April it was approximately 43 percent below. Respondent, there- fore, apparently did not hire Pisco at a time when it knew that it was doing 65 percent greater business than in 1970 or that it was operating at the level it had projected for 1971. Gallivan had origninally been hired in September 1970. He later returned to school and was hired once more by Re- spondent in February 1971, a month when the Boston busi- ness was 52 percent below the projected increase. Despite the questions in our mind about Respondent's explanation of its economic position in 1971, as discussed above, we accept the testimony of Rich that by June 21, 1971, Respondent was concerned with its failure to increase its business in 1971 to a degree at least approximating its 65-percent projection. We also accept the testimony that by that time Respondent was concerned with its cash flow. We do not credit the testimony of Rich, Fulginiti, and Baron that on June 21, 1971, the executive board decided that Pisco, Murphy, and Gallivan should be laid off. Nor do we credit the additional testimony of Rich and Baron that at the June 21 meeting, implementing the board decision, Rich told Baron to lay off the three men aforementioned at the end of the week, i.e. Friday, June 25.16 an affirmative defense was principally limited to the testimony of Rich. As we have pointed out above, Rich's testimony leaves many questions unan- swered in the economic areas in which he testified and places the major burden upon Rich's credibility as a witness 15 We do not have the percentage increase of June 1970 over June 1969. Percentages on increases in business in 1971 at the Boston facility alone have been previously set forth 16 The transfer of Francis to New Hampshire and Pascucci 's termination are not in issue. What was or was not done concerning them relates to their particular facts Rich testified that there was a vacancy in one. of Respondent's other offices The other office had requested Francis a month previously and as Rich said, "we just had not let him go and finally, we let him go up there." Evidently the decision was made on June 21. Since the transfer involved a promotion for Francis and an increase in wages, and since the office to which he was transferred had been operating with a vacancy for some time, we do not know how this move improved Respondent's cash flow position But we make no issue of Francis and his transfer since it is not an issue before us Pascucci's termination, in our opinion, is also confined to its own particular facts He had a very poor attendance record which we have described previously. He did not report for work at all on June 21 , 1971, or for the balance of the week and had not communicated with Respondent on this absence Rich's comments on Pascucci in a personnel report refer to a "Problem" that Pascucci had and his recovery therefrom. Rich, in the same Continued 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is our opinion that on June 21, Rich and the others did discuss the Pascucci and Francis matters and did dis- pose of each of these cases on its own facts as afordescribed. We believe that there was discussion of a potential layoff and of employees and their point standing. Under Rich's report and point system, Pisco, Murphy, and Gallivan had the lowest standings. In the reports on Pisco, Murphy, and Gallivan which Rich wrote on June 21, 1971, he made com- ments and recommendations . This was part of the material he read and presented at the meeting. None of his com- ments or recommendations, although they were not particu- larly laudatory, say anything about laying off the particular employee or terminating him despite the fact that Rich, the dominant officer in the Company, not only wrote and main- tained the personnel reports but was, in our opinion, the man who made the basic decisions. Our basic finding regarding the June 25 meeting is, of course, that no decision was made at that time to discharge Pisco, Murphy, or Gallivan either on June 21 or at any definite future date. We do not credit the testimony that it was decided on June 21 to lay off the three men and that Rich told Baron at that time to make the layoffs at the end of the week, Fnday, June 25. Among the reasons for our finding are these: As previ- ously indicated, we are convinced that Rich was not only president and majority stockholder (he was), but that he was the chief executive officer and dominant person in Respon- dent. Our observations of Rich and Baron, their personali- ties, and how they acted and responded as witnesses, also convinces us that, on any company matter, if Rich told Baron to do something, the latter would do it and that he would not take it upon himself to ignore a directive from Rich. Rich and Baron both state that on June 21 Rich told Baron to lay off Murphy, Pisco, and Gallivan at the end of the week, Friday, June 25.'7 The only one of the three who was laid off on June 25 either by Baron or by anyone else was Pisco. Both Murphy and Gallivan worked on June 25 and on June 28. Murphy worked in the office with Baron; Murphy was present when Baron told Pisco he was being laid off. Not a word was said to Murphy or Gallivan on June 25 about their layoff. When asked at the hearing why he had not laid off Murphy and Gallivan on June 25, Baron stated that "they had things to do." He was then asked what each of them had to do that necessitated their remaining on the payroll until June 28. Baron replied, "I can't recall." It is the Examiner's opinion that if it had been decided on June 21 to lay off Pisco, Murphy, and Gallivan, and if, on June 21, Rich had instructed Baron to lay off the three men by the end of the week, Friday, June 25, Baron would have made the three layoffs, as ordered, on June 25. With- out even discussing the matter with Rich, Baron ignored the alleged order and did not lay off Murphy and Gallivan until June 28. In view of the subordinate relationship of Baron to Rich, which we have previously discussed, we are con- vinced that the fact that Baron made no layoff of Murphy and Gallivan on June 25 and took no steps in that direction report on Pascucci wrote "handle with kid gloves." What all this means we do not know but Pascucci and his termination, in our view, is sui generis and has no relevancy to the issue of Pisco, Murphy, and Gallivan. 17 Baron stated that when Rich gave him this order at the meeting , he said, "Yes, sir... . is persuasive evidence that on June 21 Respondent had made no decision to lay off Pisco, Murphy, or Gallivan on June 25 or at any other definite date and that on June 21 no order had been given to Baron to lay off the three men on June 25. We find confirmation for this conclusion in the testimony of Vice President Juszkiewicz, one of Respondent's witnesses, who testified that he was present during the entire executive board meeting on June 21. He said that he remembered no orders or directives being given at the meeting and as far as he was aware Rich had not ordered "anyone to do anything."18 The question then arises, if no decision or order was arrived at or issued on June 21 to lay off Pisco, Murphy, or Gallivan on June 25, how is the layoff of Pisco on the afternoon of June 25 explained? In our opinion, Pisco was laid off on June 25 because on the morning of that day, as previously described, he told Rich, Fulginiti, and Baron that he and other employees, whom he refused to name, had decided that they wanted to have a union. A heated discus- sion with raised voices ensued. After this incident, Baron came back to the office and asked Murphy what he knew about "the union stuff, and who had started it." Murphy gave evasive answers but said nothing to show that he was opposed to the idea of a union. He did in fact admit that "the guys," a phrase which obviously included himself, were curious about the Union because of the difference in wages and sick benefits that union people received. Following a pause, Baron said, "I think I knew who's at the bottom of this." 19 Somewhat later that morning, Baron remarked, "It's not that busy that we couldn't just lay Joe Pisco off." Later, around 11:15 a.m., uncontroverted testimony by Murphy shows that Baron called Mucci, the comptroller, on the telephone and said that he wanted to draw a check. Quite evidently in response to this call, Mucci came to the office a few minutes later. He and Baron then took Pisco's time- card out of the rack, looked at it, replaced it, and left. In our opinion it is a reasonable inference that thereafter Mucci prepared Pisco's final check which the latter received at the end of that day when he was laid off.20 18 Consistent with our view that a potential future layoff was discussed on June 21 but that no decision or directive occurred that Pisco, Murphy, or Gallivan were to be laid off at that time or any other definite time, Juszkiew- icz stated that as a result of the meeting he expected that there would be a layoff but he did not know how many . He was asked. Q. You had no idea who was going to be laid off? A. No, sir. 19 We submit that the obvious candidate for being at the bottom of this union move among the employees was Pisco , who had Just told Rich, Baron, and Fulginiti that he and the other employees wanted a union . A spokesman is a likely suspect as being the instigator or leader in the activity for which he speaks. 20 Since Respondent's workweek ended on Wednesday night and its pay- day was Thursday, Pisco's layoff on Fnday and the preparation of his check obviously required Mucci's attention on that day. Mucci was a member of Respondent's executive board and had not only been present at the June 21 meeting, but had played a prominent role therein, explaining the critical cash flow situation and so forth. If a decision had been made and an order issued on June 21 to lay off Pisco , Murphy, and Gallivan on June 25, Mucci would have known it. As comptroller, he probably would have had the three pay- checks ready on June 25. Instead of this, however, we find that on June 25, Mucci apparently acted only after Baron called him on the telephone, told him he wanted to draw a check, and then Mucci came to the office, inspected Pisco's timecard , and presumably later that day prepared Pisco's terminal check. This is consistent with our opinion that the decision to lay off Pisco on June 25 was made on June 25 after the Pisco-Rich session that morning. Also, since neither Baron, Mucci, nor anyone else said or did anything about LOGAN EQUIPMENT CORP. The next aspect to consider is the layoff of Murphy and Gallivan in the early afternoon of June 28. Baron testified that on June 28 Rich asked him why he had not laid off Murphy and Gallivan; Rich replied, "I told him I had some- thing to do." Baron also stated that he told Rich he would lay the men off that day. Q. Was he [Rich] upset? A. I don't recall. We do not find this asserted casual and almost cavalier ignoring of an alleged executive board decision and of Rich's alleged order of June 21 to lay off all three men on June 25 to be credible. It is, after all, Respondent's conten- tion that the cash flow was critical and that the June 21 meeting met the problem by deciding on a prompt layoff and, specifically, the layoff of Pisco, Murphy, and Gallivan on June 25. Baron assertedly ignored this order as to Mur- phy and Gallivan. We are not convinced. As we have previously stated, we believe that there was no decision or order on June 21 to lay off Pisco, Murphy, or Gallivan on June 25 or at any other specific date. Pisco was laid off on June 25 because on that day he revealed that he and other unnamed employees wanted a union. On June 25, in our opinion, Respondent was still uncertain as to what employees besides Pisco were actively associated with him in the decision to have a union. There is, however, no doubt of Respondent's interest and effort to obtain such informa- tion. When, on June 25, he had made his union revelation to Rich, Fulginiti, and Baron, they repeatedly asked him who else was involved. Thereafter, in pursuit of this infor- mation, Baron asked Murphy what he knew about "this union stuff." On the same day, Baron asked Siraco who started it and who is involved. Juszkiewicz endeavored to draw Siraco out by asking him, "What's going on." As far as any specific evidence is concerned, we do not know if anyone told Respondent that Murphy and Gallivan were involved in the Union with Pisco. But, in our opinion, the normal and likely suspects, to people of normal intelligence such as Rich, Baron, Fulginiti, and the other officers, would be the fellow workers and employees who were friends of Pisco and who regularly associated with him. Murphy and Gallivan fitted this description. Pisco, Murphy and Gallivan were three young men whose work brought them in daily contact. They customarily went out to lunch together. They quite evidently had a good deal in common. In the absence of more definitive information as to who were the employ- ees involved with Pisco in the union idea (and, as we have seen, Respondent had certainly been trying to secure such information) Respondent, in our opinion, had concluded, by June 28, that Pisco's two- friends, Murphy and Gallivan, were the most likely candidates." As a result of this belief, Respondent, in our opinion, laid off Murphy and Gallivan on June 28, 1971. laying off Murphy and Gallivan on June 25, we are satisfied that the decision to lay these two men off had not been made on June 21 or June 25. 21 If A, an employee, tells an airline official that he and other employees are going to destroy an airport within the next few days and the police and others then sought to ascertain the identity of others besides A who were involved, they would, in our opinion, first focus their attention on A's fellow employees and particularly those who worked in daily contact with A. If it was known in the shop that B and C as employees were close friends of A and regularly had lunch with him, B and C would certainly be sub ject to suspicion and investigation. 393 We find that the terminations of Pisco on June 25, 1971, and the termination of Murphy and Gallivan on June 28, 1971, to have been due to Pisco's admitted union activity and to the suspected union activity of Murphy and Gallivan as being employees involved with Pisco in the espousal of a union. Such terminations constitute violations of Section 8(a)(3) and (1) of the Act. We also find as alleged in the complaint that on June 25, 1971, Respondent through its agents, Rich, Fulginiti, Baron, and Juszkiewicz, interrogated employees concerning union activity and that on the same date Respondent threat- ened that employees would be out the door for their union activity. All the foregoing conduct is found to be in viola- tion of Section 8(a)(1) of the Act. We do not find, as alleged, that Respondent threatened to close its Boston plant if the employees joined or assisted the Union. CONCLUSIONS OF LAw Respondent has violated Section 8(a)(3) and (1) of the Act by terminating employee Pisco on June 25, 1971, and by terminating employees Murphy and Gallivan on June 28, 1971. Respondent has violated Section 8(a)(1) of the Act by illegally interrogating and threatening employees on June 25, 1971. Respondent has not otherwise violated the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affiramtive action. Prior to the layoffs of Pisco, Murphy, and Gallivan in June 1971 Respondent had 17 truckdrivers, helpers, and mechanics in Boston. In June 1971 it terminated the three men aforementioned and Pascucci. About the same time it transferred employee Francis to New Hampshire. This left a complement of 12 in Boston. Rich testified that at the time of this hearing Respondent had seven employees in Boston. He stated that one employee had been hired since Pisco, Murphy, and Gallivan had been terminated and that man was a specialist in electric pumps, work for which Pisco, Murphy, and Gallivan had no qualifications. It would therefore appear that, between the termination of Pisco, Murphy and Gallivan Respondent's employment comple- ment had been reduced by approximately five employees. In the area of what might have happened, if Pisco, Murphy, and Gallivan had not been illegally terminated on June 25 and 28, 1971, the Trial Examiner would tend to believe that they would have been laid off thereafter, at some unknown date during the period when Respondent's complement was reduced from 12 to 7, the latter being the complement at the time of the hearing. Our belief would be based on the low personnel point standing of these three men on June 21, 1971, under Respondent's rating system, which took into account length of service, versatility, and so forth. We admit, however, that our foregoing opinion as to what would have occurred and that these three men would have been laid off is necessarily speculative and is not a 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sound basis on which to frame a remedy for the unfair labor practices.22 Accordingly, it is recommended that Respondent be ordered to offer reinstatement to their former or substan- tially equivalent jobs to Pisco, Murphy, and Gallivan, with- out prejudice to their seniority and other rights and privil- eges, and make them whole for any loss of pay suffered from the date of termination, June 25 and 28, 1971, respectively, to the date of the offer of reinstatement, less net interme- diate earnings. Any backpay is to be computed in accord- ance with the formula in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In the event that no former or substantially equivalent jobs currently exist for the aforementioned employees, they shall be placed on a preferential hiring list for employment in the event such jobs become available within 12 months from the date of this Decision. If the employees are placed on the preferential hiring list in the foregoing circumstances, the backpay obligation shall be tolled from such date. RECOMMENDED ORDER 23 Logan Equipment Corp., its officers, agents, succes- sors, and assigns, shall: 22 In the Lima Lumber Company case, 176 NLRB No. 90, aff 437 F.2d 455 (C.A. 6, 1971), a truckdriver loaded lumber on his truck carelessly , the load subsequently shifted and the truck became stuck in the mud at the delivery site ; the driver's employer was obliged to send another truck to haul out the mired truck. The Employer warned the driver that if anything like that happened again, he would be discharged. It also appears that this employee's past record with this same employer was a poor one. The Employer then questioned the driver about his prominent role in starting the Union and discharged him A few hours later the customer to whom the lumber had been delivered that morning came to the Employer and complained strongly that the driver had dumped the lumber at the customer's site in a very scattered and careless manner and that much of the lumber had been broken and otherwise damaged. The Employer told the customer that he had already discharged the driver a few hours before . The Trial Examiner found that the driver had been discharged for his union activities and not because of the customer's complaint to the Employer, as claimed by the Employer, since the complaint was a few hours subsequent to the discharge The Trial Examiner awarded backpay, however, only for the 2 or 3 hours from the time of discharge to the time when the Employer received the customer's complaint and learned the extent of the driver's carelessness. The reasoning was that in view of the Employer's prior warning to the driver of discharge for careless work, the driver would have been discharged when the Employer learned from the customer of this latest and serious dereliction The Board, however, rejected this approach as conjectural and said that the question whether the driver would have been discharged for lawful reasons was "conjectural and there is no way to establish that this would clearly have occurred " The Board stated that on the conjectural aspect, "the Respondent, rather than the em- ployee, must assume the risk of uncertainty" since the lawful motivation and discharge had been established and it was a matter of conjecture what would have been lawfully done regarding the employee . Reinstatement was ordered with backpay from the date of discharge to the date of the offer of rein- statement. 1. Cease and desist from: (a) Illegally interrogating or threatening employees with regard to union or concerted activities. (b) Discouraging union or concerted activities of its employees by discriminatorily terminating employees be- cause of their union or concerted activities or because Re- spondent believed that they were engaged in such activities. (c) In any like or related manner interfering with, re- straining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Joseph A. Pisco, Jr., Paul Murphy, and Paul Gallivan immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay, all of the foregoing in the manner described more fully in the Remedy section of this Decision. (b) Post at its office at its Boston facility copies of the attached notice marked "Appendix." 24 Copies of said no- tice, on forms provided by the Regional Director for Region 1, after being signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places. Reasonable steps shall be taken to ensure that such notices are not altered , defaced or covered by other material. (c)Preserve and, upon request, make available to the Board or its agents , for examination and copying, all rec- ords necessary to analyze the amount of backpay that may be due Pisco, Murphy and Gallivan, including payroll rec- ords, timecards, social security records, and other personnel records. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith 25 23 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, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 24 In the event that the Board's Order is enforced by a Judgment of a 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 Order of the National Labor Relations Board " 25 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read . "Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."