Seminole Asphalt Refining, Inc.

SEMINOLE ASPHALT REFINING 167 Seminole Asphalt Refining, Inc. and United Steel- workers of America, AFL-CIO. Case 12-CA-5550 November 9, 1973 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On March 16, 1973, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, and the Charging Party each filed excep- tions to certain portions of the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered - the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified below. 1. We find merit in the exceptions of the General Counsel and the Charging Party to the Administra- tive Law Judge's finding that Paul Giddens, an unfair labor practice striker, was disqualified from reinstatement because of alleged misconduct during the strike. A little after midnight on March 22, 1972, nonstriker O. H. Evans left Respondent's plant with a tractor-trailer to make a delivery. While traveling at the rate of about 55 miles an hour, he noticed a car approaching from the opposite direction at the rate of from 20 to 25 miles an hour with something outside the driver's window. He testified that he saw an arm make a sidearm motion and throw what appeared to be a half brickbat toward his truck. The object struck the cab of the truck below the windshield. Both vehicles continued on. According to Evans, he recognized the driver of the oncoming car as Giddens. About a week after the incident, Evans swore out a warrant against Giddens, who was thereafter tried and acquitted. Giddens denied any role in the foregoing incident. The Administrative Law Judge expressed doubt that Evans could identify Giddens as the driver of the oncoming car in view of the speed of the vehicles in relation to each other and the transitory nature of the incident. Moreover, in view of a physical disability in Giddens' left arm, he credited Giddens' testimony that he did not throw the missile at the truck. Nevertheless, the Judge disqualified Giddens from reinstatement because Respondent in good faith believed that Giddens was involved in the incident and the General Counsel allegedly had not estab- lished that he was not involved. We do not agree with the Administrative Law Judge's reasoning in disqualifying Giddens. Respon- dent contended that Giddens should be denied reinstatement because he had thrown a missile at Evans' truck. The Administrative Law Judge found that he had not done so. The General Counsel had thus rebutted the basis for Respondent's claim of disqualification. Respondent did not contend that, although Giddens might not have thrown the missile, he was otherwise present in the car. Evans' testimony was that Giddens was the driver of the oncoming car and had thrown the brickbat. He did not claim that there was more than one person in the car from which the missile was thrown. Inasmuch as the Administrative Law Judge credited Giddens' testi- mony that he had not thrown the, missile, the only reasonable inference is that he was not present in the car and therefore was not involved in the incident. Accordingly, there is no basis for disqualifying Giddens from reinstatement. We so find. We shall, therefore, direct that Giddens be offered reinstate- ment and backpay together with the other employees listed in Appendix B of the Administrative Law Judge's Decision. 2. We also do not agree with the Administrative Law Judge's finding that striking employees Samuel Cooksey and Gene Rentz engaged in misconduct sufficiently serious to disqualify them from reinstate- ment. The Administrative Law Judge found that the principal incident attributed to Cooksey and Rentz concerned the throwing of cherry bombs onto the plant premises during the evening of March 8, 1972, the day the plant reopened in the midst of an unfair labor practice strike. No damage was done to company property or to any person on or about the premises. Nor does the Administrative, Law Judge find that the alleged misconduct prevented employ- ees or other persons from entering or leaving the plant or surrounding premises. Where an employer who has committed unfair labor practices discharges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employer's unlawful acts and the seriousness of the employees' misconduct in deter- 1 The Respondent has excepted to certain credibility findings made by convinces us that the resolutions are incorrect. Standard Dry Wall Products, the Administrative Law Judge. It is the Boards established policy not to Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully overrule an Administrative Law Judge's resolutions with respect to examined the record and find no basis for reversing his findings. credibility unless the clear preponderance of all of the relevant evidence 207 NLRB No. 40 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mining whether reinstatement would effectuate the policies of the Act.2 The cherry bomb thrown by Cooksey and Rentz did no damage to person or property, nor did it interfere with the reopening and manning of the plant. Although this conduct is not to be condoned, it was not so flagrant in our opinion as to disqualify these two unfair labor practice strikers for reinstatement when considered against Respon- dent's unfair labor practices, particularly the discrim- inatory layoff of several employees which provoked the unfair labor practice strike.3 Accordingly, we shall order the reinstatement of Cooksey and Rentz. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, Seminole Asphalt Refining, Inc., Tallahassee, Flori- da, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the names of Paul Giddens, Samuel Cooksey, and Gene Rentz to the list of employees in Appendix B. 2. Substitute the attached notice for that of the Administrative Law Judge. WE WILL offer the following employees reins- tatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges: Pat Bentley Paul Giddens Samuel Cooksey Tim Gray James Faircloth, Jr. H. C. McCarthy George Fulgham Hugh Mullins James Gerrell Gene Rentz WE WILL offer the following employees, upon application, reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without loss of seniority or other rights or privileges: Waymond Berry A. J. Crummedy Sylvester Dawson R. W. Dunn James Faircloth, Sr. Charles Fulgham Willie Gavin Rodney Gray Richard Harris John Heard T. B. Hudson, Jr. William Hudson 2 Local 833, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America [Kohler Co.J v. N.LRB., 300 F.2d 699 (C.A D.C.), cert. denied 365 US 869; N.LR.B v. Thayer Company, 213 F 2d 748 (C A 1). 3 Lewis Business Forms, Inc, 180 NLRB 386, 398; American Beauty Baking Co., 171 NLRB 700, 719. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees in order to discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL make the following employees whole for any loss of earnings they may have suffered D. R. McClendon Daniel McFall Robert McFall Dennis Metcalf Larry Randolph W. J. Smith Percy Stewart Albert Lee Still Abraham Washington Jimmie Washington Adell Williams WE WILL make all of the above-named employ- ees whole for any pay they lost, with interest, because of discrimination against them. WE WILL NOT coercively interrogate our em- ployees about their union activities or those of other employees. WE WILL NOT threaten our employees with discharge or closing of our plant because of their union activities. WE WILL NOT create the impression that we have engaged in surveillance of our employees' union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all the activities specified in Section 7 of the Act. by payment to them of the amounts they normally would have earned as wages from March 29, 1972, until the dates on which they were reinstated, which are set forth beside their names. SEMINOLE ASPHALT REFINING, INC. (Employer) Dated By James Gregg May 1 1972 (Representative) (Title) Curtis Langston , April 12, 1972 This is an official notice and must not be defaced E. W. Nelms April 17, 1972 by anyone. SEMINOLE ASPHALT REFINING 169 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 compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 706, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813-228-7210. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: Pur- suant to a charge filed on March 9, 1972, by United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union, the complaint issued on October 13, 1972, alleging that between February 7 and 17, 1972, Respon- dent interrogated employees about union activities, created the impression that employees' union activities were under surveillance, and threatened employees with discharge and a plant shutdown because of their union activities, all in violation of Section 8(a)(1) of the Act. The complaint also alleged that on February 14, 1972, Respondent discharged or laid off Dennis Metcalf, Daniel McFall, and Larry Randolph because of their union activity in violation of Section 8(a)(3) and (1) of the Act, and that a strike of Respondent's employees which commenced on February 20, 1972, was an unfair labor practice strike. Respondent in its answer denied the commission of any unfair labor practices. A hearing was held before me at Tallahassee, Florida, on November 28 and 29, 1972, and January 3 and 4, 1973. During the hearing the complaint was amended to allege that all striking employees requested reinstatement on March 24, 1972, and that reinstatement was denied on March 29, 1972, in violation of Section 8(aX3) of the Act. Respondent denied this additional allegation. At the conclusion of the hearing the General Counsel argued orally. Briefs have been received from the General Counsel, Charging Party, and Respondent. Upon the entire record in this case and from my observation of the witnesses and their demeanor I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Florida corporation, maintains its princi- pal office and place of business in St. Marks, Florida, where it is engaged in the production and sale of asphalt products. During the year preceding issuance of the complaint Respondent's direct sales and purchases to and from points outside the State of Florida each exceeded $50,000. I find that Respondent is an employer within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. I Respondent also produces a small amount of tractor fuel as a byproduct of its operations 2 Fuel oil is produced regularly throughout the year as a byproduct in the Respondent operates an independent refinery. Its prod- ucts are asphalt, asphalt roofing material, jet fuel, and fuel oil.' During the fall of 1971, Respondent was also trying to establish a market for the sale of emulsion, which is a mixture of asphalt, jet fuel, and water, and is used as a base in road building. Respondent's business is seasonal to some extent. Asphalt and emulsion sales are usually highest in the summer, and fuel oil sales are usually highest in the winter.2 Respondent's operations are broken down into six departments: operating, maintenance, repair shop, drivers, roofing dock, and emulsion plant. In late January and early February 1972, the time of the events here at issue, Respondent had a total of 54 employees on its payroll. Included among them were 3 loaders and a relief loader, 10 laborers, an emulsion man, an emulsion helper, and 19 drivers. B. The Union Activities at Respondent's Plant Prior to February 14 On January 29, 1972,3 Daniel McFall, who was one of the loaders, telephoned Union Representative Joseph Connors and requested assistance in organizing Respon- dent's employees . As a result of their conversation Connors got clearance from the Union to proceed with an organizing campaign among Respondent's employees and gave McFall blank authorization cards for Respondent's employees to sign. McFall solicited most of the employees to sign cards over a period of 2-1/2 weeks , obtained signatures on a number of the cards, and returned them to Connors. Waymon Berry also obtained some signatures on cards. There is also evidence, which Responders, chal- lenges, that relief loader, Dennis Metcalf, and laborer, Larry Randolph, assisted McFall in getting cards signed. On the evening of Sunday, February 13, there was a union meeting. Connors and McFall ran the meeting. Metcalf, Randolph, and a number of other employees attended. C. The Alleged Violations of Section 8(a)(1) Around February 7, Respondent's Dispatcher Clarence Wrenn gave James Patrick Bentley4 a ride in his truck within the plant premises. While Bentley was in the truck, Wrenn asked him how the union organizing was going. Bentley said that he did not know what Wrenn was talking process of manufacturing asphalt and jet fuel. 3 Unless otherwise indicated all dates which follow occurred in 1972. 4 He is also referred to as Pat Bentley in the record. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about. Wrenn said that he, Wrenn, knew, all about it, and Bentley repeated that he did not.5 Wrenn's question to Bentley was clearly intended to elicit information about the organizing campaign from Bentley. When Bentley denied any knowledge, Wrenn sought to convey that he already knew all about it so that Bentley was free to speak. I find that Wrenn's question in the context of other violations found below, constituted coercive interrogation in violation of Section 8(a)(1) of the Act. I find further that Wrenn's statement that he knew all about it created an impression of surveillance in violation of Section 8(a)(1) of the Act. On February 10 or 11 Plant Superintendent Laster called Bentley out of the control room where he was working and asked him if he had heard about what was going on around the plant. Bentley said he had not. Laster said "they" had tried to get in there a couple of years ago. Bentley said he had only been working there a year or so and wasn't around at the time Laster was talking about. Laster said "Well, just don't let any of those young fuckers talk you into anything that'll cost you your job." Bentley did not answers I find that Laster's reference was clearly to the union activity at the plant7 and that Laster unlawfully interrogated Bentley and threatened him with discharge if he engaged in union activity in violation of Section 8(a)(1) of the Act. During the week beginning February 7 Laster on several occasions asked William Hudson to ride with him from the plant to a dock at a nearby river where barges were loaded and unloaded for Respondent. On some occasions they went to hook up barges, and on others they merely rode to the dock, talked, and then returned to the plant. During each of these rides there was conversation about the Union. Hudson had been opposed to organization of the plant -in the past, and his opposition was known to Laster whom Hudson considered a friend. Hudson remained opposed to a union in the plant until February 17, when he changed his mind and signed a union authorization card. During their first conversation that week Laster asked Hudson if he knew any of the employees who were passing out union authorization cards and if he knew anything 5 These findings are based on the credited testimony of Bentley, who went on strike with the other employees on February 20 but returned to work and was employed by Respondent at the time of the hearing herein. Wrenn testified that he knew of no occasion when he discussed union activity with Bentley in late January or early February. As indicated below, I have not credited Wrenn in other controverted portions of his testimony. 6 These findings are based on the credited testimony of Bentley. I have not credited Laster, who denied that he had any occasion to talk to Bentley about the Union, in this and other contested portions of his testimony considered below. 7 There had been earlier attempts to organize the employees at the plant, and no other explanation appears for Laster 's reference. 8 McFall first worked for Respondent for several weeks in September and October 1971. He quit and was rehired on December 6, 1971. McFall had been a member of the Union while working for a steel company in Indiana before moving to Florida. His past employment was known to Respondent. 9 These findings are based on the credited testimony of Hudson . Hudson was not certain who initiated their conversations about the Union after the initial conversation, and left open the possibility that he volunteered information to Laster in subsequent conversations. However, it is clear from his testimony that Laster initiated the first conversation about the Union and asked Hudson about the identity of those soliciting for the Union. Laster denied that he knew of McFall's union activity or that he asked about it. Hudson told Laster nothing on that occasion, but in later conversations told Laster that Daniel McFall and Berry were passing out the union authorization cards. Laster told Hudson that he should have fired McFall, that he should not have rehired him,8 and that he knew McFall was not any good. Laster told Hudson that there had been a union at the place where Laster had previously worked in Mississippi and that they shut the plant down because of the union. Laster told him that it was best to have nothing to do with unions and asked him to talk to other employees to persuade them not to have anything to do with the Union. Hudson said he would, and talked to some employees about it .9 I find that Laster's interrogation of Hudson during their initial conversation, in the light of his comments about McFall and his statements about his own prior employ- ment, constituted coercive interrogation about the union activity of other employees and violated Section 8(a)(1) of the Act. The coercive impact of such interrogation is not lessened by Laster's prior knowledge of Hudson's senti- ments in opposition to a union, for Hudson was as free to engage in union activity free of coercion as any employee whose prior sentiments were unknown. Laster's statements to Hudson about the rehiring of McFall and his own past employment experience were barely veiled threats of reprisal against employees and also violated Section 8(a)(1) of the Act. On either February 10 or 11 as Samuel Cooksey was about to leave work in his pickup truck, Wrenn stopped him. Daniel McFall was loading a truck nearby, Wrenn pointed at McFall, who was loading a truck nearby and asked Cooksey how "our union man Dan" was doing. Cooksey replied that McFall was doing just fine.10 While this incident establishes Wrenn's knowledge. of McFall's union activities, I do not find that Wrenn's question to Cooksey constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. There is some evidence that threats were made by Wrenn to driver Percy Stewart on February 14. While Wrenn's denial was less than convincing,11 there was sufficient confusion and inconsistency with his prehearing affidavit Hudson anything about the Union dung the week before February 14. He testified "I didn't ask Mr Hudson or nobody else because I wasn't interested in who was handing them out, it didn't make any difference to me. I wasn't interested in it" Although Laster conceded that his previous employer some years before had shut down because of a union and that he had told employees about that at some time , he testified he had no curiosity about the union activity at Respondent's plant in view of his past experience, stating, "It didn't-no curiosity-didn't affect my job, and it-it didn't affect my job when they went out on strike. I still drawed my money; why should it affect me? Why should I have any curiosity?" Laster, however, did not deny or otherwise explain Hudson's testimony as to Laster's invitations to ride with him to the dock during the week before February 14. In the light of Laster's past experience, his position as superintendent of Respondent's ' plant, and my observation of him while he testified, I am convinced that Laster protested too much in denying any curiosity about the Union, was not candid, and is not to be credited. 10 Cooksey and McFall so testified and are credited . Wrenn testified he made no remark that he knew of to Cooksey about McFall or his union activity. Wrenn testified that he learned of the union activity from Berry a few days before the strike, which started on February 20. Laster testified that Wrenn told him of the union activity around February 10. 1 find that Wrenn knew of the union activity on February 10 and do not credit his less than firm denial of this incident. ii Wrenn first testified that he told Stewart about a year before that he SEMINOLE ASPHALT REFINING 171 in Stewart's testimony to cause me to doubt the accuracy of Stewart's recollection. I do not rely on Stewart's testimony in this regard as a basis for any findings. D. The February 14 Layoff 1. The layoff On Monday, February 14, around 8 or 9 a.m., Laster came to Daniel McFall's home. He gave McFall a copy of a memo to read. The memo, signed by Respondent's President Lewis, stated: MEMO OF MEETING 2/11/72 10:A.M.: Due to the decline in shipping we are to make the following changes in personnel as soon as possible: 1. , Permanent lay off of men with least seniority -Dennis Metcalf, Larry Randolph, and Daniel McFall. 2. One of the drivers who have asked to be considered for loading rack to be put on loading. 3. Jim Gregg to be put on loading. 4. Prepare checks to be ready Monday morning including four hours pay for Monday and layoff to be effective Monday. After McFall read it Laster took it back, thanked McFall, gave him his check, and left. On that same morning Randolph and Metcalf reported for work and punched in. As Randolph was preparing to start work, Laster called him over and handed him the memo to read and his check. Laster told him that because of the decline in shipping he had to lay them off. While Randolph was reading the memo, Laster called Metcalf over.12 After Randolph finished reading the memo, Laster handed it to Metcalf to read. Laster gave him his check, and Metcalf left. Around noon, McFall went to the plant and asked Laster if he could see the memo again. Laster permitted McFall to copy the memo, and McFall left. On the same day, as Cooksey was returning from lunch, Laster told him he had a feeling that it was the wrong time to-lay these men off. Cooksey agreed with him. McFall, who was ' hired on December' 6, 1971, and Metcalf who was hired on January 12, 1972, had the least seniority among the loaders then employed by Respon- dent. McFall and Metcalf were also the two least senior employees in the plant. Randolph, who was hired on August 8, 1971, was least senior among the laborers. Randolph's plant seniority was greater than that of loader Robert McFall, a brother of Daniel; welder-maintenance man Denzil Gray, and drivers Crum, Fulgham, and Scott. did not see why Respondent's President Lewis stayed in business in the light of his physical condition. He then testified that he would be afraid to say whether or not he mentioned this to Stewart in February, 1972. He was asked whether this was said in connection with any discussion of the Union, and replied "No sir, not as l knows of." 12 Metcalf testified that he had worked about an hour when Laster called him. 13 Respondent's counsel testified to corroborate Hoffman in this regard. 2. Respondent's explanation for the layoff Respondent's Vice, President Hoffman testified that the layoff had nothing to -do with the union activity at the plant, but was caused entirely by economic considerations. Hoffman testified that, business was slow in January and February 1972, and that as a consequence of mild temperatures and a lot of rain both asphalt and fuel oil sales were down and prices were off. According to Hoffman, when he, Lewis, and Laster reviewed payroll figures around February 1, they noted that the number of men on the payroll was greater than it should be and decided that in view of business conditions there should be a cutback.--They made no decision at that time, but discussed several things, including finding something for the two emulsion plant employees to do, who were then under employed. Hoffman testified that he, Laster, and Lewis again met on the morning of Friday, February 11, when Laster proposed the layoff of McFall, Metcalf, and Randolph. Hoffman conceded that management had just become aware in general terms of union activity in the plant, but he denied that any management personnel knew the identity of the active employees or knew the identity of the union involved. However, because he knew of some activity, he testified, he telephoned Respondent's counsel that morning to gain assurance that it was permissible to proceed with the layoffs.13 Hoffman testified that they decided that they did not need a relief loader, and Laster reported that two drivers wanted to move to loading. As a result, according to Hoffman, they decided to layoff Metcalf and to revert to a former practice of using drivers as needed to perform loading in the" event of illness or absence of the loaders. Hoffman testified that there was insufficient work for Gregg at the emulsion plant, that he had been tried out in the lab but was not needed there, and that they decided to transfer Gregg to loading where he had some prior experience. This resulted in the decision to layoff McFall. Laster testified that Randolph was selected as the third employee to be laid off because they had two more laborers on the payroll than Lewis wanted to ' employ. t4 Hoffman testified that on the advice of counsel, they prepared `the February I I memo, quoted above, to record the action taken. According to Hoffman and Laster the employees were to have been notified of the layoff that afternoon, but Laster was unable to find Metcalf, and they decided to give them an extra 4 hours pay and notify them Monday morning. 3. The evidence as to the decline in Respondent's business Respondent presented evidence to show that just before He testified that Hoffman told him that Respondent had been considering a layoff for economic reasons but learned of union activity and questioned whether it could proceed with the layoff. He testified that he told Hoffman if the layoff was purely for economic reasons and followed past procedures they could proceed and did not have to keep unneeded employees. Hoffman did not tell him who was to be laid off or how it was to be handled. 14 Laster also testified to the same reasons as Hoffman for the selection of McFall and Metcalf for layoff. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the layoff, Respondent had 54 employees on its payroll. A year earlier it had 52 employees on the payroll .15 The two additional employees were classified as laborers . Laster testified that Respondent's President Lewis had been "on" him to hold the maintenance department down to 8 men and that he had 10 men in the department just prior to the layoff. Several sets of figures were offered relating to Respon- dent's level of business during the period preceding the layoff. Respondent introduced the following figures which represented net amounts posted to accounts receivable through sales for the months indicated: Oct. 1971 $561,539.03 Nov. 1971 600,776.32 Dec. 1971 530,112.96 Jan. 1972 458,678.88 Feb. 1-14, 1972 181,669.05 No similar figures were introduced for the corresponding months of the prior year. Respondent also introduced the following figures repre- senting gallons shipped for the periods indicated: Tractor & Jet Fuel Nov. 1970 503,930 Dec. 1970 633,290 Jan. 1971 556,549 Feb. 19'71 496 , 288 Total 2,190,057 Nov. 1971 488,427 Dec. 1971 735,053 Jan. 1972 936,468 Feb. 1--7, 1972 8,110 Feb. 8--14, 1972 163,842 Total 2,321,900 Drivers pay figures were also introduced to reflect the volume of business during the period in question. They showed: 11/70 $14,341.22 12/70 13,945.63 1/71 12,566.94 2/1-15/71 7,379.44 11/71 $16,523.3G 12/71 15,256.87 1/72 13,351.28 2/1-15/72 6,867.93 Respondent also presented evidence to show that its fuel oil inventory on February 12, 1971 , was 434,268 gallons while on February 15, 1972 , its inventory was 1,551,759 gallons. Hoffman and Laster testified that they did not have these figures before them when they decided upon the layoff but they relied on their knowledge of the day-to-day level of shipments. Hoffman testified that the jet fuel shipment figures were misleading because there was a period of time during late December when the Air Force Base to which the jet fuel is shipped had closed 'down operations. It then became necessary during January to ship jet fuel as quickly as possible to empty Respondent's tanks so that the next batch could be run. Respondent normally produces 15 There was also evidence that as of November 15, 1972, Respondent had 48 employees on its payroll The record does not show in which Fuel Asphalt & Oil Emulsion Total 1,357,166 1,876,505 3,737,601 1,287,459 1,842,414 3,763,153 1,421,047 1,105,338 3,082,934 1,251,828 1,735 ,255 3,483,371 5,317,500 _ 6,559,512 14,067,069 1,248,970 2,765,178 4,502,575 1,323,389 2,074,400 4,132,842 1,274,394 1,462,124 3,672,986 583,239 160,757 752,106 373,443 277,742 815,035 4,803,435 6,740,201 13,875,544 batches of 420,000 gallons of jet fuel at 20-day intervals and ships it out over about an 8-day period. Respondent sells about 6 million gallons of jet fuel a year. With respect to fuel oil, Hoffman testified that in the winter of 1970-71, Respondent did not produce enough to meet its needs and had to purchase 100,000 gallons from an outside supplier. However, in 1971 72, Hoffman testified, Respondent was more than able to meet its needs, its tanks were full, and it became necessary to dispose of it on unfavorable terms.16 Laster testified that Respondent normally sold a lot of its No. 2 fuel oil to Colonial Oil in Jacksonville during the months of December, January, and February, but during the winter of 1971-72 Colonial did not buy any. Hoffman and Laster also explained that while much of Respondent's fuel oil was not used for residential heating purposes, it was used industrially as a substitute for natural gas during periods when natural gas was in short supply. The mild weather increased the available supply of natural gas for nonheating purposes, and adversely effected oil sales. Hoffman and Laster also testified that they were not successful in establishing a market for emulsion sales and that those sales amounted to very little. They also testified that asphalt sales were down because of rainy weather. Laster also testified that while he did not keep track of sales figures, he would estimate from the shipments of material that sales were off at least 10 percent in comparison to prior years during the winter season. Laster classification the reductions occured, but as set forth below it appears that at that time Respondent had again employed a relief loader. 16 Hoffman testified that this mle was made around March 15. SEMINOLE ASPHALT REFINING 173 also testified that in his view the winter season did not end until April, and that an increase in business could not be relied upon until then- The General Counsel's witnesses testified in more conclusionary terms, and with some variation, that they had noticed no decline in the level of business prior to the layoff. McFall testified that he noticed no decline in loading before he was laid off. Randolph testified that there was as much work as ever for the laborers. Cooksey testified that business was off some, but no more than was usual for the season. Stewart testified that he had driven more during the last 2 weeks of January than ever before.17 4. The use of a relief loader For several years prior to the layoff Respondent employed three loaders and a relief loader to load its trucks. Prior to that it operated with three loaders and no relief loader.ts Respondent's plant operated on a three-shift round-the- clock basis from 10:30 p.m. Sunday, until 2:30 p.m. Saturday, each week. One loader was assigned to each shift on a rotating basis. The relief loader relieved the first shift loader on Mondays and the third shift loader on Fridays. On Tuesday through Thursday he worked on the first shift along with the regular first-shift loader.19 The result was that each of the loaders and the relief loader normally worked 5 days each week. Following the layoff Respondent did not employ a relief loader until sometime in October 1972, when a relief loader was again hired.20 Laster and Hoffman both testified that at the time of the layoff, they believed that there was no need for a relief loader and they intended to eliminate that position. According to Laster, the regular loaders were glad to get overtime work by working a sixth day, and there was not enough work to keep two loaders busy during the day shift. Laster testified that around the first of January 1972, two drivers, Barron and Gerrell, separately approached him and asked for permanent transfers to loading when an opening came up because they felt that they were not making as much money as they should driving. Laster did nothing about transferring them at the time, but he testified that when the layoff was being considered, he concluded that he could do without a relief loader and could call upon one of the two drivers to perform loading as needed in the event of illness or absence of a regular loader while otherwise continuing to drive. He testified that 1 or 2 days after the layoff he asked Barron and Gerrell if they were still interested in the job, but they both then told him that they decided to stay on as drivers for a 17 Respondent disputed Stewart's testimony that his pay was higher during that period than ever before. However, it conceded that the amount Stewart testified he was paid was substantially correct. Based on testimony that drivers were paid 8-1/2 cents a mile it would appear that Stewart drove apparently 5,000 miles in the 2-week period and spent about 100 hours on the road apart from loading and unloading time. is Cooksey testified that a relief loader was employed when he returned from the service in 1967. Laster testified that the relief loader had been used for 2 or 3 years. Hoffman testified that relief loaders had been employed over a period of 4 or 5 years. Although Hoffman also testified that relief loaders had been employed intermittently during that period for purposes of training, Laster's testimony as to the utilization of relief loaders and as to while and see if business picked up. According to Laster it was not his intention to transfer either of them to loading at that time because they were not needed, but he wanted to know if they were still interested in case they were needed at some later date . When asked if he talked to them about whether they would continue to drive trucks in the event they were needed, Laster replied, "Oh, yeah, uh-huh. Well, that was understood-see-that they would. The first time that I talked to them-when they come to me about the job, I told them that ifno, it wasn't, either; it was the last time; that's right. Yeah I told them when they-when I went to them to check with-that's when I told them." Laster then testified that he told them that if they needed to drive and Respondent didn't need them on the relief loadingjob, they could go ahead and drive also. Barron corroborated Laster that he had asked for a transfer to loading before the layoff because it was during the slack season and he felt he would make more money loading than driving. However, he testified that when Laster spoke to him later about becoming a loader , he told Laster that things had picked up a little and that he would stay where he was 21 According to Barron , Laster did not say whether the loading work would be on a regular or occasional basis and they did not discuss whether Barron would continue to drive some as well. Although the evidence establishes that no relief loader was employed from February 14 until October 1972, there is disputed testimony as to the extent to which Respon- dent's dispatcher, Wrenn, helped with loading after February 14: With some variation, the General Counsel's witnesses testified that during the week between the layoffs and the strike, they saw Wrenn regularly loading whereas previously he had only infrequently helped the loaders with a portion of their work during their busiest periods. These witnesses testified that when they had seen Wrenn on the loading dock before the layoff he never wore coveralls, but during the week between the layoff and the strike he regularly wore them there. Each of these witnesses did not work in the loading area during the week in question,22 and cross-examination established that their opportunity to observe Wrenn in the loading area was limited. Laster testified that Wrenn had always helped out with the loading when needed, a few minutes at a time, but that he never saw Wrenn spend as much as 4 to 6 hours a day loading. Laster testified that he never sent Wrenn to help with the loading, and that Wrenn always kept coveralls at the plant which he wore on rainy days , when he had to go into tankers, or when he was around dirty work. Wrenn testified that he spent most of his time in the office and shop areas about 100 to 150 yards away from the loading area. He testified that he always had helped the hiring of Metcalf to fill a vacancy created when Laster let another loader go leads me to conclude that the job of relief loader had been considered a regular position since it was instituted. I 19 There is evidence that during the first several weeks of employment while learning the job, newly hired relief loaders worked only on the first shift with the first shift loader and did not relieve the loaders on Monday and Friday. 20 At the time of the hearing, he was still being trained. 2 1 Barron testified that he had had a couple of good weeks before that. 22 However, Cooksey worked in the lab adjacent to the loading area and had more occasion than the others to go into the loading area. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the loading during the busiest time of the day, between 10 a.m. and 1 p.m., as needed. He also testified that he kept coveralls at the plant to wear in bad weather or when he went inside tankers. He did not recall whether he wore,coveralls during the week after the layoff. Wrenn testified that he would be afraid to say whether he did any loading work on the day of the layoff, that he did some loading work during that week, and that he would not say how much. However, Wrenn denied that he took up the slack which was left when the relief loader was eliminated. 5. The basis for selection of the employees to be laid off The evidence shows only one prior layoff at Respon- dent's plant several years earlier. That layoff affected employees at the asphalt roofing dock and resulted from the purchase of a forklift to do some of the work previously done manually. The employees were chosen for layoff by the then plant superintendent without regard to seniority.23 As set forth above, the February 11 memo stated that the men with least seniority were to be, laid off. Hoffman testified that ,in selecting men for layoff they took the seniority list, started at the bottom, and laid them off by departmental"seniority, but not strictly. Hoffman testified that except for the transfer of Gregg to loading, the layoff was by departmental seniority and that as Hoffman viewed the emulsion plant as part of the operating department for accounting purposes, he considered Gregg and the loaders as all operating employees. However, in an affidavit given during the investigation of this case, Hoffman stated "We have six departments: Operating, maintenance, repair shop, drivers, roofing dock, and emulsion plant. When we lay people off we do it by departmental seniority." Laster testified variously that the layoff was made by departmental seniority and classification seniority.24 How- ever, he also testified that Gregg was not laid off because he had more seniority in his classification and in the plant and had loading rack experience as Well. Laster- then testified that plant seniority was not a consideration in the layoff, but classification seniority was. Laster testified that McFall and Metcalf as the least senior loaders were unneeded after the transfer of Gregg, and that Randolph was laid off as the least senior laborer. However, in an affidavit given during the investigation of this case, Laster stated: "The only explanation I can offer as to why Larry Randolph was laid off on February 14th, even though he had three months' more seniority than Robert McFall, who was retained, is that I didn't realize at the time I made the layoff list that Randolph had more seniority than Robert McFall and Randolph was the man with least seniority in his classification." In explanation Laster testified that the Board agent kept insisting that it had to be either plant seniority or departmental seniority, and "we got sort of mixed up in that thing; we had `department seniority' down there, and he marked through it and put `plant seniority' above it. I believe you'll see it in the copy where he marked it through." Respondent introduced no evidence as to the extent of Gregg's prior experience as a loader. However, his seniority date was June 1, 1971, and Wrenn testified that when Gregg was moved to loading on February 14, he needed advice from Wrenn as to how to do his work and was not as familiar with loading as some of the men who had been there for 2 or 3 years. Cooksey testified that before February 14 Gregg had worked on the loading dock only half a dozen times to help out on loading and did not know the complete job. Cooksey also testified that for the 2 weeks prior to his transfer to loading, Gregg worked in the lab with him. 6. Concluding findings as to the layoffs The General Counsel and the Charging Party contend that the reasons advanced for the layoff were pretexts and that the true reason was the union activity of the employees. Respondent contends that the General Counsel failed to establish antiunion motivation for the layoff and that it was caused by the reasons stated by Laster and Hoffman. For the following reasons I reject the explana- tion for the layoff advanced by Respondent and find merit in the contentions of the General Counsel and Charging Party. a. The evidence set forth above leaves little room to doubt that McFall was the instigator of the union activity at the plant and Laster was aware of that fact at the time of the layoff. I have not credited Laster's denials and have found that he interrogated Hudson and learned of McFall's role from Hudson, if not indeed from Wrenn as well. In these circumstances and as the union activity was admittedly discussed in conjunction with the layoff, I find it impossible to believe that Laster did not pass on to Hoffman his knowledge of McFall's activities before the decision to lay McFall off was made. I do not credit the testimony of Laster and Hoffman that they knew only generally of the union activity at the time they decided upon the layoff. b. While the evidence as to Randolph and Metcalf is less compelling, there is also basis to infer knowledge of their union activity. Randolph and Metcalf concededly obtained no signatures on authorization cards themselves. Rather the testimony of McFall, Randolph, and Metcalf was that Randolph and Metcalf assisted McFall by urging Respondent's black employees to talk to McFall and sign cards. From McFall's failure to mention Randolph's union activity in an affidavit given during the investigation of this case, there is some reason to believe that `the testimony as to the extent of Randolph's solicitation may have been exaggerated. However, there is evidence that nine of the black employees eventually signed cards and attended the February 13 union meeting at which Randolph and Metcalf were also present. There is also evidence that Randolph and Metcalf talked to employees on plant premises during lunch hours and that one employee signed a card in Randolph's presence' at the timeclock in the plant. In the light of the interrogation by Wrenn and Laster z3 Hoffman testified that jobs were abolished and the unneeded men tion seniority and ultimately testified `classifications would be the same were laid off. Neither Hoffman nor Laster remembered whether the laid-off thing as departments for seniority-actually- departments-classifications employees were given notice at that time. in that department " 24 Laster displayed some confusion in distinguishing between classifica- SEMINOLE ASPHALT REFINING 175 directed at learning the identity of those active for the Union, Wrenn's statement to Bentley that he knew all about the union activity, and Laster's warning to Bentley not to letyoung employees get him in trouble, there is basis to infer that Respondent became aware that Metcalf and Randolph, both young employees, were active on the Union's behalf. c. Laster's threats to Bentley and Hudson establish Respondent's hostility toward the Union and specifically its animus against McFall because of his union activity. Apart from the denial of threats, rejected above, Respon- dent contends that there is affirmative evidence of its receptivity to union representation for its employees in the record of a similar corporation in which its president, Lewis, held a substantial interest and in Hoffman's statements and instructions to its attorney after learning of the union activity. Respondent presented testimony that Lewis and Respondent's other owner each own 20 percent of the stock of Vulcan Asphalt and Refining Co. at Cordova, Alabama, that Vulcan's operations are similar to those of Respondent, and that Vulcan's employees have been represented for,about 18 years by District 50.75 There is also testimony that in conversations between Hoffman and Respondent's attorney immediately before and after the layoff, Hoffman stated that if the employees wanted a union they should have one and instructed Respondent's attorney to consent to an election at the earliest possible date. However, this evidence does not negate the inference to be drawn from the conduct of Laster, and the circum- stances make it clear that Respondent was not indifferent to the Union. Thus, in conjunction with his testimony relating to Vulcan, Hoffman testified that with one or two exceptions Respondent's pay rates were higher than those at Vulcan and had been for a couple of years. He, added, "[T]hey have the union and we don't, but we've been -we've felt that the threat of a union has raised our wages a lot more than the union itself would." With respect to the conversation on February 11, Respondent's attorney testified that either Lewis or Hoffman told him that they had done everything they could to satisfy the employees, that they had had a belly full, and if the employees wanted a union that "by god, let them have a union." He testified that he was also told that in the event a petition was filed, he was to consent to an election at the earliest possible date. He explained further that he did not take these comments and instructions as indicating that Respondent wanted to do nothing to resist union organization but "I just think that to me that indicated disgust, as much as anything else, because they had made through yearly increases, reviews and so forth, an effort to be fair, and they just had said, `we've had it.' " Following a second conversation with Hoffman on February 16 Respondent's attorney dictated a notice which Respondent posted in response to a union demand for recognition in which Respondent stated that it had no intention of recognizing the Union voluntarily, that it believed that the question should be resolved by secret ballot election after the employees had heard both sides, and that it intended to fight the Union with each and every means allowed by law. While the testimony of Hoffman and Respondent's attorney would not of itself establish union animus, it demonstrates opposition rather than receptivity and is not inconsistent with the hostility voiced by Laster. d. The evidence warrants the conclusion that Hoffman and Laster more precipitously decided upon and effectuat- ed the layoff than they testified. Although business was allegedly off in January and the first 2 weeks of February, no action was taken around the first of February to reduce the payroll. Despite the fact that Respondent then had no need for Gregg at the emulsion plant , Respondent at the time sought to make work for Gregg by sending him to work in the lab with Cooksey who had previously worked there without assistance, and only a few weeks earlier on January 12, Respondent added to the payroll by hiring Metcalf as relief loader. Although Respondent allegedly decided upon the layoff at a meeting on the morning of Friday, February 11, analysis of the memo of that meeting and the testimony explaining the delay in effectuating the layoff until Monday morning gives reason to conclude that the decision came "later and possibly after the February 13 union meeting. The memo bears a notation purporting to show the time of the meeting as 10 a .m. Hoffman also testified that the meeting was held in the morning, and Respondent's attorney testified' that he was called by Hoffman early that morning. Laster testified, however, that he believed the decision was made in the afternoon. Hoffman testified that the employees were supposed to have been notified of the layoff on Friday afternoon, but that they were not notified until Monday because Laster could not contact all of them. Laster also testified that the layoff was supposed to have been ' made that day but Metcalf had gone home or somewhere off the property and Laster could not find him. Yet the memo purporting to reflect what happened at the 10 a.m. meeting states that checks were to be prepared to be ready Monday morning including 4 hours' pay for Monday and layoff to be effective Monday. This testimony offers no explanation for the failure to notify McFall and Randolph of the layoff on Friday. More significantly, the testimony is, in conflict with the content of the memo. For the memo which purports to reflect what was decided at the 10 a.m. meeting states that checks were to be prepared to be ready Monday morning including 4 hours' pay for Monday and that the, layoff was to be effective on Monday. If this were the decisionat that time, then there never was any intent to effectuate the layoff on Friday. Finally, the events of Monday morning give additional reason to believe that the decision was more abruptly made. On Monday, despite the alleged prior decision, both Randolph and Metcalf were permitted to clock in, and Metcalf worked for an hour before they were notified they were laid off. At the same time, despite the provision of 4 hours' pay for Monday, Laster took the time 25 District 50 is now affiliated with the Charging Party in this case. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to go to McFall's home to notify him of his layoff rather than wait for McFall to report for work that night. In these circumstances, I conclude that the layoff was not decided upon on Friday morning, as the memo purports to indicate, and find cause not to credit the explanations of Laster and Hoffman for their actions.26 e. The February 11 memo and the evidence as to the use of a relief loader are persuasive that Respondent did not intend to abolish the job of relief loader permanently. The memo states, "One of the drivers who have asked to be considered for loading rack to be put on loading." This wording, parallel to that used to describe the transfer of Gregg, gives no indication that the transfer was to take place only if necessary at some future time or on a temporary basis, and nothing in the memo indicates that one of the jobs being vacated by McFall and Metcalf was to be abolished. The testimony of Laster and Barron shows that the requests by Barron and Gerrell in January were for transfers to regular loading duties. Although Laster did not check back with drivers before the memo was written, within a day or two after the layoff Laster spoke to them. Although Laster testified that he then asked them if they ,were interested in working as relief loaders in case they were needed, Laster's testimony that he told them they would also continue to drive was halting, and Barron testified that Laster did not discuss with him whether the loading work would be occasional or regular or whether he would continue to drive. Both testified that the drivers then turned him down, albeit for varying reasons. If Laster's inquiry was directed toward temporary work at some unspecified future time and did not entail relinquishment of driving, it is difficult to understand the flat rejection he received in response to his inquiry. Rather it would appear that Laster received a negative response because he wanted one of them, as the memo and Barron's testimony indicated, to transfer permanently at that time to loading. The evidence otherwise also indicates that the job of relief loader was not viewed as expendably as Laster and Hoffman testified. The function of the relief loader was not merely to assist the first-shift loader, but also to replace the first- and third-shift loaders 1 day a week and eliminate an overtime day for each of them. Respondent had utilized a relief loader for several years. Only in January, when Laster terminated a loader, he routinely moved McFall from relief loader to loader and hired Metcalf to fill the vacancy. In October 1972, as Respondent was again entering the winter season, it reinstituted the position. While the testimony of the General Counsel's witnesses as to loading done by Wrenn was largely conclusionary and based on limited opportunity to observe, Wrenn's own testimony was notably uncertain as to the amount of loading work performed 'by him immediately after the layoff. His professed inability to recall how much loading he did that week or who worked as first-shift loader, while at the same time testifying that Gregg was inexperienced and needed advice, indicates that his lack of recollection 26 Assuming that Hoffman spoke to Respondent's attorney on Friday morning about Respondent's right to layoff employees, nothing in the attorney's testimony as to that conversation establishes that the decision was made at that time. was more convenient than real and that however limited their observation of Wrenn, the General Counsel's witness- es had some basis for their testimony that Wrenn's work on the loading dock increased immediately after the layoff. In all of these circumstances, I do not credit the testimony of Hoffman and Laster that Respondent decided to eliminate the job of relief loader and that Metcalf was laid off for that reason. I find that the evidence in this regard gives further reason to discredit the explanation of Hoffman and Laster for the layoff. f. The evidence shows that the principle of departmen- tal seniority, allegedly followed in the layoff, was not followed when it would have protected McFall and Metcalf but was followed to their detriment. Thus, despite the fact that it was Gregg for whom Respondent lacked work, he was not laid off by departmental seniority but was transferred. Although Respondent conceded that it did not need or want to lay off drivers,27 it contemplated transferring a driver to create the additional surplus loader. For these moves departmental .seniority was ignored. Hoffman testified that departmental seniority was not strictly followed. Then he testified that he considered the emulsion plant and loading both as part of the operating department, seemingly to show that the transfer of Gregg was not inconsistent with departmental seniority. Yet in an affidavit given before the hearing, he identified operating and the emulsion plant as separate departments, while stating that the layoff was by departmental seniority. Laster's testimony in this regard also reflected inability to explain the selection in a consistent manner. To Laster department seniority ultimately became the same as classification seniority within a department. When he explained the transfer and retention of Gregg, he ultimate- ly testified that Gregg's classification seniority and not his plant seniority prevailed. Yet, there is no evidence that Gregg had superior classification seniority as a loader. Indeed Cooksey's testimony that Gregg had worked on the loading dock only half a dozen times and was not familiar with the complete job was not refuted but was partially corroborated by Wrenn. Laster's inability to explain the basis of the selections is further indicated by the confusion in his affidavit, which he attributed to a Board agent, when he crossed out departmental seniority, inserted plant seniority, and attributed Randolph's layoff to oversight as well as Randolph's bottom seniority among the laborers. While it is true that Respondent was not obligated by any existing practice or contract to follow any particular system in selecting employees for layoff, the explanations put forth by Hoffman and Laster were internally inconsis- tent and inconsistent with one another, and add further reason to conclude that their explanations for the layoff cannot be accepted. g. Despite the seasonal nature of Respondent's busi- ness and the high turnover which its seniority list shows it experienced, Respondent made the layoff permanent and so stated in the February I I memo. Laster's explanation for telling the employees they were permanently laid off is 27 Laster testified that drivers made their weekly guarantee and that Respondent wanted them to be available when business picked up The guarantee was $85 a week, far less than the average drivers' pay for the first 2 weeks of February. SEMINOLE ASPHALT REFINING 177 singularly unconvincing. He testified that he did not tell McFall they might recall him in a few weeks because he was in a hurry, had work to do, and did not think it necessary. But it took no more time to tell McFall he was temporarily laid off and might be recalled than to tell him he was laid off permanently. Laster also testified that time after time Respondent laid off men permanently but hired them back if an opening came up. The evidence otherwise shows, however, that there was only one previous layoff which was due to the purchase of a forklift and a change in method of operation on the roofing dock several years before and was not attributable to a seasonal decline in business. It. The figures offered as to the level of Respondent's business show some seasonal decline in Respondent's level of business but also show that its shipments during the winter of 1971-72 exceeded those in the comparable period of the previous year. Respondent's dollar volume fell from a November high of $600,000 at a rate of about $70,000 a month over the next 2 months, and were low during the first 2 weeks of February.28 No comparable figures were offered for the previous year, but there was testimony that dollar sales roughly correspond to quantities shipped with some variation due to price differentials among Respon- dent's products. Figures as to Respondent's shipments show that during November, December, and January total shipments in gallons ran from 10 to 20 percent above shipments for the corresponding months in previous years. While shipments for the first 2 weeks of February were less than half of the shipments for the full month of February in the previous year,29 total shipments from November 1, 1971, through February 14, 1972, were within 200,000 gallons of the total amount shipped from November 1970 through February 28, 1971, and that difference was more than made up during the third week of February 1972, by completing the shipment of a batch of jet fuel as noted above. Clearly in these circumstances, Laster's testimony that he estimated from shipments that sales were off at least 10 percent in comparison to the previous year cannot be accepted. Moreover, except for the figures as to the first 2 weeks of February, the evidence shows that in Novem- ber, December, and January, asphalt shipments were greater than for comparable months of the previous year and more than offset any decline in shipments of fuel oil.30 Despite Hoffman's testimony that the January jet fuel shipments were misleading because they included a shipment deferred, from December, the figures show that during the entire period from November until the begin- ning of the strike, Respondent shipped almost 400,000 28 The gallonage figures and Laster's testimony indicate that Respondent was in the process of delivering a batch of yet fuel on February 14 and completed delivery during the following week There is no evidence as to other sales or deliveries during the third week of February up to the beginning of the strike on February 20. 29 Evidence as to drivers' pay for the first 2 weeks of February 1971 and 1972, which was offered as further indication of change in Respondent's level of business, tends to show that shipments during the first 2 weeks of February 1972, were below the level for that period of the previous year. The figures as to drivers' pay otherwise are roughly parallel to the figures for gallons shipped 30 In fact fuel oil sales were less in November and January, but were greater in December, than for the corresponding months of the previous gallons more than during the comparable period a year before. While the total number of employees on Respondent's payroll was increased by two as of February 14, 1972, over the previous year, both additional employees were labor- ers, and as of February 1, when Respondent alleged it first decided that its work force had over-expanded, it had been handling an increased volume of shipments with the same number of operating and loading employees that it had during the previous year when there was no layoff. Even accepting that the figures as to the first 2 weeks in February reflect a greater than normal decline in business for those 2 weeks, the experience of the previous months gave tittle support for concern over a business decline on February 1, when the layoffs were allegedly first discussed, and by February 14, when they occurred, the winter season was drawing to a close.31 Although Hoffman and Laster testified that they had no figures before them when they decided upon the layoff but relied only on their observation of daily shipments, of which no log was kept, the figures substantially undermine their claims as to what they observed. I conclude that the evidence as to the volume of shipments during the winter months gives further cause to discredit the testimony of Hoffman and Laster that they first discussed a layoff around February 1 and then decided upon it on February 11 for the reasons they stated. i. For all of the above reasons, I have not credited the explanation of Hoffman and Laster for the layoff and find that it was caused by the union activity of the employees. The inference is particularly strong that McFall was the principal target of the layoff. He was the principal instigator of the union activity and had been identified as one of two employees soliciting cards among Respondent's employees. The decision to transfer a driver to loading, made even before checking to determine whether either driver still wanted the transfer, reflects a design to insure that McFall would be reached under color of following seniority in the layoff. Although Barron and Gerrell requested transfers, according to Laster, around January 1, they were not then transferred, and Metcalf was hired on January 12 as a relief loader. Yet 6 weeks later, as the slack season neared its end, the decision was made to transfer one of them and Gregg to loading and to lay off McFall and Metcalf as superfluous junior loaders. I find that the true reason for this decision and the layoff was to remedy Laster's regret for having rehired McFall which he expressed to Hudson after Laster learned of McFal1's union activity. Although less compelling, there is also evidence Respon- year, and in the first 2 weeks of February 1972, amounted to approximately 75 percent of the total shipped in February 1971. Less than half of the approximately 1,100,000 gallon increase in fuel oil inventory stored as of February 15, 1972, was attributable to decreased fuel oil shipments during the winter months. At least some of the remainder was apparently attributable to increased production of asphalt andlet fuel. 31 Although Laster testified that winter did not end until April in the area if there was a real hard winter, he also testified that the winter of 1971-72 was unusually mild. That an increase in deliveries was soon anticipated is also indicated by the change of heart of Barron and Gerrell with respect to a transfer from driving to loading when Laster spoke to them on February 15 or 16. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent was aware that Randolph and Metcalf were actively supporting the Union. Moreover, it is clear that Metcalf, as the junior loader with only 5 weeks' seniority had to be reached by the layoff if McFall was to go, and a layoff of only McFall and Metcalf at a time when the only increase in complement was among laborers would have been immediately suspect. Even if Randolph and Metcalf were not selected for layoff because of their own union activity, I find that there-would have been no layoff at all but for the union activity, and that the layoff of all three employees therefore violated Section 8(a)(1) and (3) of the Act.32 E. Issues Arising Out of the Strike 1. The purpose of the strike On February 15 Union Representative Connors sent Respondent a letter demanding recognition as representa- tive of Respondent's production and maintenance employ- ees including truckdrivers. On the following day Respon- dent posted the notice to its employees, described above, expressing its belief that the matter should be decided by a secret ballot election only after the employees had heard both sides of the question and that Respondent intended to fight the Union "with each and every means allowed by law." On the same day, the Union filed a representation petition seeking an election among Respondent's employ- ees. On February 17 the Union held another meeting attended by 38 employees. There was discussion of the pending election, of the layoff, and of the possibility of getting the employees reinstated. Stewart moved to authorize the Union to call a strike to obtain the reinstatement of the three laid-off employees. The motion alleged that they had been discharged because of their union activities. The motion passed by a vote of 33 to 5. Connors was instructed to do what he could to avoid a strike but it was left to him to decide whether it should be called.33 Another meeting was scheduled for Sunday night, February 20. Between February 16 and the night of February 20 Connors spoke with Respondent's attorney and Hoffman on several occasions. On February 17 or 18 Connors learned that Respondent was willing to consent to an election to be held on March 16. Connors called Hoffman and asked him to sit down with him to resolve the issue of the three discharged employees and get them reinstated. Connors told Hoffman that the employees had taken a strike vote and were ready to strike. He told Hoffman that 32 Arnoldware, Inc, 129 NLRB 228; Northwestern Publishing Company, 146 NLRB 457, enfd. 343 F.2d 521 (C.A. 7, 1965). 33 Connors and McFall testified to the strike vote at this meeting. Although Respondent later called two nonstrikers who attended this meeting to testify as to strike misconduct, it presented no contrary evidence as to the motion on which the employees voted. 34 Connors testified that he mentioned only the reinstatement of the three employees as a necessary condition to avoid a strike. In view of McFall's testimony as to Connors' February 20 conversation with Hoffman, I do not credit Connors in this regard and find that he added recognition and bargaining to his stated objectives. However, I do not credit Hoffman that in this conversation Connors expressly disclaimed that the strike, if called, would be an unfair labor practice strike As the notes below show, to avoid the strike it would be necessary to reinstate the laid-off employees immediately and negotiate a contract 34 In this conversation Hoffman told Connors that he preferred not to discuss the matter further with Connors and referred him to Respondent's attorney. Connors next spoke with Respondent's attorney and repeated essentially what he had told Hoffman. Respon- dent's attorney stated that he was informed that the employees were laid off for economic reasons and that he would not recommend their reinstatement if they were not needed. He asked Connors, however, to wait until Respondent's President Lewis returned to town on the following Sunday as he might have a different view. On Sunday evening, February 20, Connors again spoke with Hoffman and asked for a meeting with Lewis or his representative that night to avert a strike. He told Hoffman that unless the three employees were reinstated the employees were going to shut the plant down at I 1 p.m. and would strike because of unfair labor practices and for recognition.tm Later that night, Connors spoke with Respondent's attorney and again requested a meeting with Lewis in the hope of averting a strike. In that conversation or a second later conversation between them, Respondent's attorney proposed that the layoff be changed from permanent to temporary, that he would try to get them back to work as soon as possible, that the Union could file unfair labor practice charges if it wanted to, and that they go ahead with the election and negotiate, a contract if the Union was certified.36 Connors rejected this proposal and said that unless Respondent's representatives appeared to meet with Connors and employee representatives before 11 p.m., the strike would start. At 10 p.m. that night there was another union meeting, and at 11 p.m. the strike started. Picket signs were carried which bore the legend, "Steelworkers Protest Unfair Labor Practices by Seminole." The evidence shows that the vote originally taken was to strike to obtain reinstatement of those whom the employ- ees believed had been discriminatorily laid off. Connors in his conversations with Hoffman and Respondent's attor- ney thereafter added recognition and bargaining to his demands. While Respondent offered to change the layoff from permanent to temporary before the strike started, it did not guarantee reinstatement of the laid-off employees, and the issue over their reinstatement clearly remained at the time the strike was called. I find that the strike had as its objectives both the reinstatement of the laid-off employees and recognition of the Union by Respondent and that it was the layoff which initially triggered the there is reason to conclude that with the exception of McFall, the witnesses as to the prestrike conversations all shaped their testimony to some extent to favor the position of their principals. 35 Although Connors denied that he stated recognition as an objective 'of the strike, McFall testified that he heard Connors state both objectives while Connors spoke to Hoffman. I have credited McFall. 36 According to Respondent's attorney, he told Connors he would guarantee that the laid-off employees would be recalled within 2 to 3 weeks Although Hoffman initially so testified, he conceded that statements in his affidavit accurately described the offer as an offer to try to get them back to work as soon as possible. I find that no guarantee of reinstatement was offered. SEMINOLE ASPHALT REFINING 179 decision to strike. As at least one of the causes of the strike was the layoff found above to have violated the Act, the strike was an unfair labor practice strike.37 2. The alleged denial of reinstatement From February 20 until March 8 the plant did not operate. On March 5 Respondent's president sent a letter to all employees notifying them that Respondent intended to start operating the plant on Wednesday, March 8, and that it would hire replacements for those employees who did not report for work at that time. On March 8 and the next few days 17 employees returned to work. After March 8 Respondent started to hire replacements and in the next 2 weeks replaced a number of the strikers. On March 8, Respondent sent letters to McFall, Randolph, and Metcalf, the three laid-off employees, informing them that as a result of the failure of some strikers to return to work that day there were vacancies in their classifications. Respondent offered them reinstate- ment with full seniority if they reported to work on March 10.38 They did not return to work or respond to the letters. As a consequence, they became unfair labor practice strikers on March 10.39 On March 24, the Union's district director sent Respon- dent's President Lewis the following letter: On behalf of all striking employees we demand that they be reinstated to their former job or to equivalent employment in accordance with their rights as unfair labor strikers. In the event you refuse to recognize the strikers status as unfair labor practice strikers we hereby uncondition- ally offer, on behalf of all striking employees, to return to work immediately and we request their reinstate- ment. This offer is made on behalf of all employees who went on strike and have not returned to work to date. In the event there are no openings as of the date you receive this offer, you are further advised that said employees will be available for employment to full openings when they develop or vacancies created by the departure of employees now working. We would appreciate a prompt reply stating you (sic) position and the action you intend to take. On March 29, Respondent's Vice President Hoffman replied: This letter will acknowledge your letter of March 24. We do not agree that the strikers are unfair labor practice strikers. On March 15, 1972, we sent you telegrams notifying you that certain permanent replace- ments had been hired. As of the present date nine strikers have not been permanently replaced. 34 Sea-Land Service, Inc., 146 NLRB 931, enfd. 356 F.2d 955 (C.A. 1, 1966), cert. denied 385 U.S. 900; Louisville Chair Company, Inc., 161 NLRB 358, enfd. 385 F.2d 922 (CA 6, 1967), cert. denied 390 U.S. 1013. 38 Although the time allowed for reporting in these and later letters to strikers was relatively short, no contention has been made that the offers of reinstatement made to the laid-off employees on March 8 or to strikers on later dates were not made in good faith or were invalid. We still insist that Dennis Metcalf, Larry Randolph, and Daniel McFall were permanently laid off on a non- discriminatory basis. As further evidence of our good faith, we again offer to show them on temporary layoff, and offer them reemployment on a seniority basis. These men will be offered work as we need them by order of seniority in their classification. In addition, if we lose any of our other permanent employees, job offers on the same basis will be made to the remaining strikers, provided they keep us informed of their whereabouts and their availability. This information must be kept reasonably current. We will not offer reemployment to any strikers guilty of misconduct while on strike or any striker who has abandoned interest in his employment with us. In the- event any of the strikers are interested in reemployment it a lower classification when available, please have them make their wishes known to us. Respondent contends that the March 24 letter was not a valid request for reinstatement because the picket line was never removed and the strike was not terminated. Howev- er, the fact that the strike continued does not invalidate the request. The continuation of the strike after receipt of Respondent's reply and the small number of affirmative responses to Respondent's later individual offers of reinstatement indicate that few employees were interested in abandoning the strike for individual reinstatement. However, there is no reason to believe that the request for reinstatement of all the unfair labor practice strikers was not made in good faith or that an affirmative response to that request would not have ended the strike.40 I find that the March 25 request made by the Union on behalf of the strikers was a valid request for immediate reinstatement, which Respondent denied by its March 29 response in violation of Section 8(a)(3) and (1) of the Act. There remains for consideration evidence of individual offers of reinstatement after March 29, alleged strike misconduct which Respondent contends disqualified cer- tain strikers from reinstatement, and alleged abandonment of reinstatement rights by certain other strikers. 3. Individual offers of reinstatement after March 29 On April 6 and 7, Respondent sent letters to Adell Williams, Jimmie Washington, Rodney Gray, and James Faircloth, Sr., offering them reinstatement to their former jobs on April 10, or such later dates as they might arrange by contacting the plant. None of these employees replied to the letters. However, on April 10, pursuant to a decision at a union meeting the night before, the pickets were removed and a group of striking employees went to the plant premises as 39 American Art Industries, Inc., 166 NLRB 943, enfd. in part 415 F.2d 1223 (C-A- 5, 1969), cert. denied 397 U.S. 990. 40 Sea-Way Distributing, Inc.,. 143 NLRB 460, and the cases cited therein on which Respondent relies do not stand for the proposition that an unconditional request for reinstatement must be accompanied by an immediate cessation of the strike. See Hawaii Meat Company, Ltd., 139 NLRB 966, 970-971, enfd. denied 321 F.2d 397 (C.A. 9, 1963). 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Personnel Manager Lee and President Lewis arrived. Those in the group were Daniel McFall, Way- mond Berry, William Hudson, Thomas Hudson, Albert Lee Still, Jimmie Washington, Abraham Washington, Sylvester Dawson, Gene Nelms, Curtis Langston, Sonny Gerrell, A.J. Crummedy, and Robert McFall.41 According to Daniel McFall he told Lee that they were all there to go back to work, Lee then had a short conference with Lewis, and Lewis told them to "get the hell" off his property. According to Lee, McFall said they were offering to return to work as a group, and Lewis told them they had made their point and to get off the property. Only Lee and McFall testified to this incident, despite the fact that a number of others were present, including William Hudson and Waymond Berry who testified to other matters during this proceeding. Because of the inclusion in this group of Jimmie Washington, who had just been offered individual reinstatement, it makes some difference as to how this request was stated and intended. Insofar as appears, Washington made no effort at that time or at any other to assert his individual right to reinstatement pursuant to the letter he received, and his failure to do so is underscored by the lack of any response by him to a letter sent by Respondent to Union Representative Connors on the same date, quoted below, informing Connors that there were openings for two laborers and an emulsion man.42 If there was any doubt as to Respondent's willingness to reinstate Washington or the others who went to the plant as individuals, this letter coupled with Respondent's earlier March 29 letter should at the very least have provoked an inquiry by Connors, who had witnessed the April 10 group visit to the plant from across the road. I find that the April 10 request for reinstatement was a request for reinstatement as a group which Respondent rejected for the same reason that it rejected the request in first paragraph of the Union's March 24 letter. The April 10 request thus neither added to nor subtracted from the rights of the strikers to reinstatement following the Union's March 24 letter. However, Washing- ton's failure to respond to Respondent's offer of individual reinstatement was not nullified by Respondent's rejection of the group request, and backpay as to Jimmie Washing- ton was tolled on April 10 when he failed to respond to Respondent's offer of individual reinstatement43 Because Adell Williams, Rodney Gray, and James Faircloth, Sr., also failed to return in response to Respondent's individual offers, their backpay was also tolled on that date. On April 10 and 12, Respondent sent Union Representa- tive Connors the following letters. The April 10 letter read: We currently have open the positions of two laborers and one emulsion man. There are no strikers who have not been replaced who are presently qualified to fill these positions. We are, however, offering these positions to the replaced strikers in order of seniority. In the event we do not hear from you or have 3 strikers report for work at 8 A.M., Wednesday , April 12, 1972 41 Connors identified the group from a list he made at the time. 42 Two of those to whom the April 6 and 7 letters were sent were laborers and another was an emulsion man. we will assume that all of the replaced strikers have declined these 3 positions. The April 12 letter read: We currently have open the position of one truck driver. We are offering this position to the replaced striking drivers in order of seniority. In the event we do not hear from you or have a striking driver report for work at 8 A.M., Friday April 14, 1972 we will assume that all of the replaced striking drivers have declined this position. Respondent's Personnel Manager Lee testified that he received no response to either of these letters, and Connors did not testify about them. Among the strikers who had not returned to work on April 10 were emulsion man, Rodney Gray, and laborers Adell Williams, Jimmie Washington, Abraham Washington, A.J. Crummedy, Albert Lee Still, Willie Gavin, and Richard Harris. There is no evidence that any of them returned to work after this letter was sent. A number of drivers also had not returned to work by April 14. However, driver E.W. Nelms returned to work on April 17, and Lee testified that Nelms returned as a result of a letter although there is no evidence that a letter was sent to Nelms individually. Respondent contends that these letters constituted offers of employment to all employees who had not been previously offered reinstatement or returned to work. Bearing in mind that it was Respondent's obligation to offer reinstatement to their former or substantially equiva- lent jobs to all strikers, I find that these letters were not valid offers of reinstatement to employees who had previously worked in classifications other than those referred to in the letters. As for the drivers, Lee's testimony as to the return to work of Nelms leaves in substantial doubt his earlier testimony that there was no response to the April 12 letter. Although the letter set Friday, April 14, as the reporting date, Nelms reported on the following Monday, and Respondent's letter clearly anticipated the possibility of arrangements for returning on a different date. In these circumstances, I do not find that the April 12 letter and the response thereto establish that all drivers who had not returned to work by April 14 declined reinstatement on that date. As for the April 10 letter, although the second sentence at first blush might have created some confusion in referring to the absence of qualified unreplaced strikers, the Union had been notified earlier of those whom Respondent considered replaced, and it seems clear that the offer extended to laborers who had been replaced as well as to other replaced strikers. The letter was sufficient at the very least to call for a response from Connors if he was in doubt as to its intent. Although the offer was not directed to individual strikers, the March 24 request for reinstatement had come from the Union on behalf of all the strikers, and absent some response from Connors to the contrary, it was not unreasonable for Respondent to view Connors as an appropriate agent to receive such an offer. I find that the failure to respond to the April 10 letter was 43 National Business Forms, 189 NLRB 964, enfd. 457 F.2d 737 (C.A. 6, 1972); Southwestern Pipe, Inc., 179 NLRB 364, enfd. as modified 444 F.2d 340 (C.A. 5, 1971). SEMINOLE ASPHALT REFINING 181 properly viewed as a rejection of Respondent's offer by the laborers and served to indicate their determination to remain on strike. Accordingly, I find that backpay was tolled on April 12 for laborers Abraham Washington, A.J. Crummedy, Albert Lee Still, Willie Gavin, and Richard Harris.44 From April 10 through May 4, Respondent sent letters offering individual reinstatement to 17 other employees, including the five laborers named above. Driver Curtis Langston returned to work on April 12, and James Gregg returned to work on May I pursuant to such offers. W.J. Smith and T.B. Hudson, Jr., declined offers of reinstate- ment on April 12 and May 1, respectively. William Hudson and Percy Stewart were offered reinstatement effective May 3 and 8, respectively. Each arranged a later reporting date; but Hudson did not report, and Stewart informed Lee he had decided against returning to work at that time. Those whose names follow, made no response to Respon- dent's letters which offered reinstatement on the date following each name: Charles Fulgham-April 24; John Heard-April 27; Waymond Berry-May 3; Robert McFall May 3; Sylvester Dawson-May 3; D.R. McClendon-May 8; Percy Stewart May 8; R.W. Dunn- -May 8. I find that backpay as to each of these strikers was tolled as of the effective dates of the offers of reinstatement to them. The rest of the strikers who had not returned to work before March 24 were never made offers of individual reinstatement 45 4. The alleged strike misconduct Respondent contends that certain employees were not entitled to reinstatement in any event because they engaged in strike misconduct. Initially, at the outset of the presentation of its case, Respondent identified Paul Giddens, Gene Rentz, Samuel Cooksey, and Harold Scott as the offending strikers. Upon resumption of the hearing after Respondent was, given a continuance to prepare its defense to the amendment to the complaint, Respondent added the names of James Faircloth, Sr., Waymond Berry, Percy Stewart, and John Heard to this group. The, general principles governing the disqualification of employees from reinstatement because of misconduct have been set forth by the Board and reviewing courts on numerous occasions and need not be restated at any length here. The burden is on the employer denying a striker reinstatement to show that it acted in the good-faith belief that he engaged in misconduct. Once that burden is met, the burden shifts to the General Counsel to establish innocence.46 Even where misconduct is established, not all misconduct serves to disqualify a striker from reinstate- ment. Where, as here, the strike is to protest unfair labor practices, the severity of the unfair labor practices which provoked the strike must be balanced against the employee 44 As' found above, backpay for Adell Williams, Jimmie Washington, and emulsion man, Rodney Gray, had already been tolled. 45 H.C. McCarthy, Samuel Cooksey, Hugh Mullins, Tim Gray, Pat Bentley, Paul Giddens, Gene Rentz, James Gerrell, James Faircloth, Jr., George Fulgham, Jr., and Harold D. Scott. 46 Capital Rubber & Specialty Co, Inc., 201 NLRB 715, Administrative misconduct in determining whether reinstatement will effectuate the policies of the Act 47 a. Paul Giddens On the night of March 22, about 2 weeks after the plant reopened, driver O.H. Evans, left the plant at about 12:30 a.m. with a tractor-trailer to make a delivery. Evans drove toward Perry. About 25 miles from Perry, while traveling at the rate of 55 miles an hour, Evans noticed a car approaching from the opposite direction at a rate of from 20 to 25 miles an hour with something outside the driver's window. Evans testified that he turned on his bright lights and saw an arm make a sidearm motion and throw what appeared to be a half brickbat toward Evans' oncoming truck. The object struck the cab of the truck below the windshield. Both vehicles continued on. According to Evans, when he turned up his lights, he recognized the car as a blue Camaro and the driver as Paul Giddens. He also testified that after the car passed by him, he noticed in his rear view mirror that the left tail light on the car was out. In support of Evans' testimony that Giddens was the driver of the car, Evans also testified that 5 or 10 minutes before he left to make the delivery, he noticed Giddens outside union headquarters across the road from the plant and saw Giddens get in his car, a blue Camaro, and leave. He testified that a security guard was standing nearby and he commented to him that Giddens was leaving. He also testified that after reaching Perry, he stopped, saw dents in the tractor cab, called the plant, and told operator Holcomb to see if Giddens returned in his car.' Tommy Lovett testified that he also noticed Giddens drive off that night in his blue Camaro and that later he was told by Holcomb to watch to see when Giddens came back and whether one of his tail lights was out. He testified that he ran to the front of the plant and arrived there just in time to see Giddens pull in near the union hall, leave his car, and join two others who were sitting near a fire in front of the hall.48 He testified that the left tail light was out. About a week after the incident, Evans swore out a warrant against Giddens, and Giddens was thereafter tried and acquitted. Respondent also instructed its attorney to petition for a contempt order alleging this incident as a violation of a State court injunction. A petition dated March 29 was prepared, but the record does not show whether it was filed. On April 7, 1972, Respondent wrote Giddens that it would hold his job open "until the charges against you have been determined." There is no evidence of any further communication to Giddens by Respondent con- cerning his reinstatement rights. Giddens denied any role in the March 22 incident. He testified that he was on picket duty that night from 10 p.m. until 2 a.m. and did not leave the area of the picketing at any time until 4 a.m. He testified that he owned a blue Camaro, that he drove it to the union hall that night, and Law Judge's Decision, and cases cited therein. 47 N. L. R. B. v. Thayer Company and H. N. Thayer Company, 213 F.2d 748 (CA. 1), cert denied 348 U.S. 883. 48 Security Guard Don Thode testified' that Evans and Lovett made comments to him about a man leaving and returning to the union hail, but that he could not remember the man's name. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it remained parked there for the entire time he was there that night. Giddens identified Bill Hudson, Sonny Gerrell, and James Faircloth as also on duty that night, and testified that others also came and went during the evening. Although Hudson testified at an earlier stage in the proceeding, none of those identified by Giddens testified to corroborate his testimony as to his activities on the night in question. Giddens also testified that his left arm was disabled and weak, that he had no left elbow, that he could move his left arm up and down, and that he could not make the motion attributed to him by Evans or throw anything with his left arm.49 While I do not question Evans' belief that he recognized Giddens as the driver of the car on the night of March 22, there is substantial reason to doubt his ability to do so in the circumstances he described. The speed of the two vehicles relative to one another was from 75 to 80 miles an hour, and the entire incident was over in a matter of seconds. Even accepting Evans' testimony that he put his lights on high beam and that those of the oncoming car were on low beam, visibility conditions could hardly have been good. I conclude that Evans' association of the make of the car with Giddens and with what he had observed earlier that night led him to conclude that he had also recognized Giddens in the car. In view of Giddens' testimony as to the nature of his disability I credit Giddens that he did not throw the missile at the truck. At the same time, however, I credit the rest of Evans' testimony as to his observation of Giddens' earlier departure from the union hall and the make of the car involved, and I credit Lovett's testimony as to his observation of Giddens' return. Whatever grudge Evans may have had against the strikers as a consequence of this incident, there is no showing that he had any reason to personalize it against Giddens in the absence of such observations. I do not credit Giddens' uncorroborated testimony that he never left the union hall during the period in question. The incident cannot be dismissed as minor misconduct. Whatever Respondent's provocation, this incident in the dead of night away from the plant posed a threat of serious harm to Evans and was clearly designed to intimidate both Evans and Respondent in the crudest fashion. While acts of violence may not be generally imputed to persons other than those who commit them, responsibility may be shown through agency, ratification, incitement, or other forms of participation in them.50 Here, the evidence as to Giddens' absence from the union hall during the period in question and the identification of the car involved were sufficient to establish Respondent's good-faith belief that Giddens was at least a participant in the incident if not its perpetrator. It become the General Counsel's burden to establish that Giddens was not involved. As I have not credited Giddens' testimony that he did not leave the union hall, I find that the General Counsel failed to sustain that burden, that 49 Evans testified that he was aware of Giddens' disability, but that he had seen Giddens use his left arm many times in changing tires and doing other kinds of things. as See N.L.R.B. v. Sea-Land Service, Inc., 356 F 2d 955, 967 (C.A. 1, 1966), cert. denied 385 U.S. 900. 51 Thode also testified that a rock was thrown at him by a striker whom he first testified was identified for him by Wrenn as Harold Scott and then Giddens was disqualified from reinstatement, and that no backpay accrued to him before his disqualification. b. Samuel Cooksey and Gene Rentz The principal incident attributed to Cooksey and Rentz concerns the throwing of cherry bombs into the plant premises on March 8, the day the plant reopened. James Lee testified that during the evening he saw Cooksey and Rentz leave a group of men congregated around a fire in front of the union hall-and move into a darker area south of the union hall and across the road from the plant. He saw a flicker of light, and then saw a burning object projected over him near some asphalt tanks where it exploded. Lee testified that it sounded like a cherry bomb and that he heard at least a dozen of them go off in the plant premises that evening. No damage was done to company property. Lee could not say whether there might have been other persons also standing in the darkened area to which he saw Cooksey and Rentz move. Lee testified that the next morning an unexploded cherry bomb, 1/2 to 3/4 of an inch in diameter was found on the plant premises taped to an oyster shell. Security Guard Don Thode also saw men throwing cherry bombs toward the plant from near the union hall, but could not identify those who threw them. He also found unexploded cherry bombs on company property. Thode testified that most of the explosions he heard occurred near the union hall, and that those he saw drop fell near or inside the fence surrounding the plant.51 Floyd De Montmollin, an employee of another company with premises near Respondent's testified that on the same night he saw Cooksey and another unidentified person south of the union hall. Cooksey had a slingshot on the hood of his truck aimed toward the plant and was pulling it back. He did not see Cooksey release it. Neither Cooksey nor Rentz testified,52 but Union Representative Connors testified that he was unaware that they threw firecrackers. It is clear from the record before me that on the night of March 8 cherry bombs were thrown toward and into the plant premises. In the absence of any denial by Cooksey or Rentz, I credit Lee that on one occasion he saw Cooksey and Rentz at the place from which a cherry bomb was thrown, and despite Lee's inability to state with certainty that no one else was present, the inference is strong that Cooksey and Rentz moved into the darkened area south of the hall at that time to throw it. I also credit De Montmollin's testimony that he observed Cooksey with a slingshot pulled and aimed at the plant. The question remains whether this misconduct was sufficiently serious to disqualify Cooksey and Rentz from reinstatement. As noted above, the cherry-bomb throwing occurred on the first day that the plant reopened when feelings of the strikers were likely to be high. Nonetheless, the cherry-bomb throwing can hardly be discounted as a as Cooksey. His testimony as to the identity of the thrower was considerably confused, and he failed to identify Cooksey or Scott who were present in the courtroom in an earlier state court proceeding. I do not rely on Thode's testimony as to the identity of the rock thrower. 52 Cooksey testified earlier in the proceedmg, but was not questioned about the strike misconduct attributed to him. SEMINOLE ASPHALT REFINING 183 spontaneous reaction by strikers upon seeing the plant in operation. More than epithets or fists were thrown. Cherry bombs and a slingshot were brought to the plant for the occasion and the cherry bombs were thrown at night under cover of darkness.. Moreover, cherry bombs are dangerous to persons near them when they explode and are outlawed in the State of Florida and in many other jurisdictions. While it has not been demonstrated that they posed any real threat to Respondent's property, there were persons on the premises to whom they represented a threat of injury. The fact that more of the cherry bombs may have been exploded near the union hall than near the plant makes their throwing no less serious. I find that the cherry-bomb throwing on the night of March 8 was serious misconduct and that Respondent is entitled to deny reinstatement to the two strikers whom it identified as participants in it. As this incident occurred before March 24, neither Cooksey nor Rentz is entitled to backpay. c. Harold Scott Lee testified that on the night of March 8 he saw Harold Scott coming from the parking area south of the union hall carrying an object that looked like an air rifle. He saw Scott squat near the fire in front of the hall where it looked as if he were pumping the gun. At that time Lee told Security Guard Thode to watch Scott. Lee continued to watch Scott and saw him go behind a parked Toyota truck at the north edge of the hall where he squatted down. Then he heard a "zing" and saw glass fall from a mercury vapor lamp at a company parking lot about 15 yards north of Scott's location. There were tankers parked in the lot. Lee then saw Scott stand up and walk into some bushes north of the union hall. Two others whom Lee could not identify joined Scott in the bushes, and Lee heard more "zings" from the bushes and saw more glass fall. Lee did not actually see Scott fire the gun. Later that night as Lee walked between some trucks parked on the plant premises about 40 yards from the road, he noticed that all the inside and outside lights at the union hall went out. He heard two objects strike the trucks. He searched with a flashlight and found a flattened lead pellet. At some point the lights at the union hall went back on.53 Also during that evening De Montmollin's truck was hit twice by objects as he drove near the union hall. He described the first as sounding like a pellet from a pellet gun. He did not see the objects or where they came from. Scott did not appear as a witness, but Connors, who was identified by Lee was present at the time, testified that he never recalled seeing Scott with an air rifle. I find Connors' limited denial far from sufficient to refute Lee's testimony, and I credit Lee.54 Lee's testimony is sufficient to establish that Scott had an air rifle at the union hall and was a participant in the shooting at the mercury vapor lamp. Although it also establishes that there were shots at trucks near which Lee was standing, it does not establish who then had the gun or shot it. Much of what was said above with respect to the cherry bombs also applies to the use of the air rifle. While there is no evidence that Scott shot it in the direction of the plant or where any company personnel were located, it is clear that he participated in the attempt, apparently unsuccessful, to darken the area where tankers were parked. While I am mindful that an air rifle is not a firearm and that Scott was not identified as a participant in the shooting of De Montmollin's truck or of the trucks in the plant premises, I find that the misconduct with which he was identified was sufficiently serious to justify Respon- dent in denying him reinstatement rights and that no backpay accrued to him. d. Waymond Berry On the morning of February 23, a few days after the strike started, roofing tacks were scattered at the entrance to the parking area used by Respondent's employees. At that time the plant was not in operation. Lee first became aware, of the tacks when he left the plant briefly to go to a store and noticed a tack in one of his tires. He returned to the plant and went to the picket line where he observed them on the ground. Lee testified that they covered an area 6-feet wide and 15-feet long in the entrance to the driveway just off the roadway and that the pickets were walking right in the middle of them. He did not recall who was then on picket duty. The office employees' cars were then checked, and 21 tires were found with tacks in them. Lee did not see who put the tacks in the entranceway. Verdie Padgett, who was employed in the office during the strike, arrived at the plant between 8:30 and 8:45 that morning. Waymond Berry was standing at the side of the road when she started to turn into the driveway. Berry stepped in front of her, forcing her to drive around his right side and onto a grassy area. After she parked, Berry asked her if she knew she almost ran over him. She said that she did. Berry said, "Well, I was trying to keep you from running over the tacks-" She did not get any tacks in her tires that morning. Berry testified that he had just come on the picket line when Mrs. Padgett arrived. He testified that he stepped in front of one other car in addition to Mrs. Padgett's, but that it was too dangerous to step in front of others, because they were going too fast. He testified that all the tacks were on company property and not where the pickets were walking. At the time he picketed, one other picket was with him, and others had been picketing before he went on the line at 9 a.m. There is no evidence that Berry placed the tacks on the ground that morning. Berry's testimony that the tacks were on company property is more plausible than- Lee's testimony that they extended to the shoulder of the road and that the pickets walked through them. Berry was not the only picket who patroled at the entrance that morning. No one else was denied reinstatement because of this incident. While Berry could conceivably have done more to alert Respondent to the presence of the tacks, the evidence that he sought to prevent Mrs. Padgett from running over them hardly serves to identify him as a participant in placing them and indicates that he did not 53 Thode testified generally to corroborate Lee, although with some 54 To the extent that Thode's testimony differed from Lee's, I have difference in some details, and his only identification of Scott was based on credited Lee who impressed me as having the better recollection of the two. what Lee told him. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire that the employees run over them. Although this incident took place on February 23, on May 1 Respondent sent Berry a letter offering him reinstatement.55 As late as November 29, the second day of the hearing in this case, Respondent did not include Berry on the list of those whom it claimed were disqualified from reinstatement. In these circumstances, I cannot conclude that Berry was a participant in serious misconduct or that Respondent's contention that he should be denied reinstatement rights because of this incident was more than an afterthought. Nor do I find that the contention that Berry should be disqualified is strengthened by evidence of statements made by him to Evans concerning the March 22 incident described above. Evans testified that after that incident Berry tried to tell him quite a few times that Giddens was not the guilty party and that he would never be convicted in the criminal proceeding because Evans did not have enough evidence and there were too many who could swear that Giddens was on the picket line. After Giddens was acquitted Berry also told him that he was wrong in his description of the object thrown at his truck and that it was a chunk of lead. At that time Berry told him that he still had the wrong man and told him that the tail light was out on the car to confuse him as to the identity of the car. Berry was not asked about these conversations,56 and I credit Evans. However, I do not find that these statements establish Berry's complicity in the March 22 incident or that Berry had any direct knowledge of what happened that night. I conclude that Berry did not engage in misconduct which disqualified him from reinstatement or backpay. e. Percy Stewart and John Heard On a Saturday night sometime after driver Bill Crump- ton returned to work during the strike, the door of Crumpton's car was shot at while the car was parked outside Crumpton's house, and Crumpton's household gas and telephone lines were cut.57 Thereafter, in July, Crumpton met Percy Stewart, John Heard, and Gene Rentz-58 at a gas station. Crumpton asserted that Stewart knew who had shot at his car and messed it up, and Stewart replied that he knew who shot it. Crumpton then stated that the others knew also, and they said "yeah," but they would not say who did it. Crumpton said that he had an idea who did it but could not prove it. Crumpton then left 59 Respondent contends that Stewart and Heard admitted 55 Lee testified in general terms that not all the evidence of misconduct had come to Respondent's attention when the letters offering reinstatement were sent. However, this incident occurred at the plant when Lee was present and I cannot believe that Lee did not become aware of it immediately Ss At the hearing in response to an objection to Evans' testimony in this regard, Respondent contended that this evidence was admissible to establish the truth of Evans' testimony describing the incident because Berry would not have tried to persuade Evans to change his testimony if he had no fear of the outcome of the criminal proceeding- Respondent's counsel then suggested that Evans' testimony concerning Berry's statements might be reserved for rebuttal in the event that Berry testified to statements made by Evans about the March 22 incident. It was far from clear that this testimony of Evans was offered as evidence of misconduct by Berry or that it was necessary that Berry rebut it. 57 The date of this incident is not established in the record. knowledge and complicity in the damage to Crumpton's property and that they therefore were culpable for it. I do not find anything in their statements which admitted complicity in the damage to Crumpton's house, nor do I find that such admissions of knowledge are evidence of misconduct which would warrant a refusal of reinstate- ment or backpay. f. James Faircloth, Jr. J.O. Pope was the first employee to return to work after the strike began. Early in March, before the plant reopened for general operations, Pope returned to work briefly to perform one specific task, pumping out a barge. Shortly thereafter and before the plant reopened, Pope was in a bar drinking beer when James Faircloth, Sr., entered. Pope asked Faircloth if he wanted a beer. Faircloth said that he did not want one with Pope, and sat down across the bar from him. He told Pope that he was a "chickenshit, yellow son of a bitch" because he had gone back to work. Faircloth asked him why he went back to work, and Pope replied that he did not think the employees had treated the company right by striking because an election date had been set and the employees would not wait for it. Faircloth said that if Pope had not gone back to work, there would not be any trouble. A number of other things were also said, apparently in heated fashion. Faircloth invited Pope outside to fight, but Pope did not go. When Pope left the bar, Faircloth did not follow him or assault him.60 Respondent contends that Faircloth is disqualified from reinstatement because he cursed Pope and threatened him with physical harm. While Faircloth's statements to Pope are not to be condoned, I find that they did not constitute misconduct sufficient to disqualify Faircloth from reins- tatement. There is nothing to indicate that Faircloth sought Pope out or that their meeting was more than accidental. It is clear that Faircloth viewed Pope as the first to breach the solidarity of the employees and cause trouble.61 The language used to express disapproval in such circum- stances seldom comports with the standards of ordinary civil discourse. Faircloth's invitation to go outside and fight was more an outgrowth of their verbal exchanges than a rank threat to punish Pope because he had worked, and it required Pope to acquiesce by going outside with Faircloth before it could ripen into a fight. When Pope declined, no fight ensued. I find that Faircloth is not disqualified from reinstatement or backpay.62 5s As set forth above, I have found Rentz disqualified from reinstate- ment independent of this incident. 59 These findings are based on the uncontradicted testimony of Crompton 60 Pope testified to this encounter without contradiction. 61 Pope's testimony did not establish the exact date of their encounter, but places it at some time after March I and before March 8. Respondent's letter advising employees that operations would resume on March 8 was sent on March 5. It is not clear whether Faircloth knew of the intention to reopen the plant when he met Pope. 62 On April 7, Faircloth was sent a letter offering hun reinstatement. Faircloth was not named as one of those in the group Respondent considered as disqualified from reinstatement until January 3, 1973, at the hearing. The record does not establish when Respondent learned of this encounter. SEMINOLE ASPHALT REFINING 185 5. Alleged abandonment of employment Respondent contends that W.J. Smith and Tim Gray abandoned all interest in further employment and there- fore were not entitled to reinstatement. With respect to Smith, as set forth above, Smith declined employment after receiving Respondent's April 10 letter. At that time Smith told Lee that his eyes were bad, that he felt it best that he not return, that he was filing for total disability, and that he was going to try to draw Social Security benefits. Lee had spoken to Smith since then, but they did not talk about further employment. Crumpton also testified that one afternoon during the strike, Smith told him that he had applied for disability payments and that if he could get 100 percent disability, he was not going back to work. I have found above that Smith's backpay was tolled on April 12. While there is a strong suggestion that Smith thereafter was not interested in reinstatement, it is not clear whether Smith's disability claim was ultimately granted63 or that his reluctance to return to work was totally unrelated to the continuation of the strike. In these circumstances, I find it appropriate for Respondent to offer reinstatement to Smith, subject to any showing in the compliance stage of this proceeding that Smith's application for Social Security benefits and its, grant were inconsistent with any intent to work for Respondent in the future. With respect to Gray, Respondent sought to establish through an affidavit of Denzil Gray that before March 8 Tim Gray told Denzil Gray that he was going to get a job with the State and was not interested in returning to work for Respondent, that Tim Gray later repeated these remarks to Denzil Gray, and that Denzil Gray communi- cated them to Respondent between March 8 and 15. 1 rejected Respondent's proffer of the affidavit on the grounds that this evidence would not establish Tim Gray's abandonment of his job even if proved. I adhere to that ruling. Tim Gray had no direct, communication with Respondent, these statements were made to Denzil Gray before the Union's March 24 letter was sent, and Tim Gray was never offered reinstatement. 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 described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8(a)(I) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily laid off Daniel McFall, Larry Randolph, and Dennis Metcalf on February 14, 1972, 1 shall recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered by payment to them of the amounts they normally would have earned as wages from that date until March 10, 1972, when they became unfair labor practice strikers, to which shall be added interest at the rate of 6 percent per annum in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent be ordered to offer them reinstatement, upon application, to their former jobs, or if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges, and to make them whole for any loss of pay they may have suffered or may suffer by reason of any further refusal to reinstate them, upon application, by payment to each of them of a sum of money equal to that which he would have earned as wages during the period from 5 days after the date of application to the date of Respondent's offer of reinstatement, with interest to be computed as set forth above. I have also found that Respondent refused to reinstate unfair labor practice strikers upon request in violation of Section 8(a)(3) of the Act. The strikers fall in three groups. Those listed in Appendix A were offered individual reinstatement but declined and thereby indicated their intention to continue as unfair labor practice strikers. Those listed in Appendix B were not offered individual reinstatement. Those listed in Appendix C accepted individual offers of reinstatement. As for those listed in Appendix A, I shall recommend that Respondent be ordered to offer them reinstatement, upon application, to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of the amounts they normally would have earned as wages from March 29, 1972, when Respondent rejected the Union's request for reinstatement, until the dates they refused individual offers of reinstatement, which are set forth opposite their names in Appendix A, with interest, to be computed as set forth above. Respondent shall also make them whole for any loss of pay they may have suffered or may suffer by reason of any further refusal to reinstate them, upon application, by payment to each of them a sum of money equal to that which he would have earned as wages during the period from 5 days after the date of any further application for reinstatement, to the date of Respondent's offer of reinstatement, with interest, to be computed as set forth above. As for those listed in Appendix B,64 I shall recommend that Respondent be ordered to reinstate them, without further application, to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may 63 Lee testified only that Smith's wife told him he was drawing social and September they returned to jobs different from those they held before security benefits. the strike. However, they are nonetheless entitled to reinstatement to their 64 Included in this group are Pat Bentley and H C. McCarthy In August former positions and backpay. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have suffered by payment to them of the amounts they normally would have earned as wages from March 29, 1972, to the dates of Respondent's offers of reinstatement, with interest, to be computed as set forth above. Those listed in Appendix C were reinstated, but not on or before March 29, 1972. Accordingly, I shall recommend that Respondent make them whole for any loss of earnings they may have suffered by payment to them of the amounts they normally would have earned as wages from March 29, 1972, until the' dates on which they were reinstated, which are set forth beside their names in Appendix C, with interest to be computed as set forth above. Conclusions of Law 1. Seminole Asphalt Refining, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activi- ties and those of other employees, by threatening employ- ees with discharge and plant closure because of their union activities, by creating the impression of surveillance of union activities, by discriminatorily laying off. Daniel McFall, Dennis Metcalf, and Larry Randolph, and by refusing to reinstate unfair labor practice strikers upon request, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1),and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER65 Respondent Seminole Asphalt Refining, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discrimination against their employees in regard to their hire or tenure of employment or any term or condition of their employment. (b) Coercively interrogating its employees concerning their union activities or those of other employees. (c) Threatening employees with discharge or plant closure because of their union activities. (d) Creating the impression of surveillance of employee union activities. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer those employees whose names appear in Appendix B and, upon application, offer Daniel McFall, Dennis Metcalf, Larry Randolph, and those employees whose names appear in Appendix A, 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 or other rights or privileges. (b) Make whole Daniel McFall, Dennis Metcalf, Larry Randolph, and those employees whose names appear in Appendices A, B, and C for any losses of pay they may have suffered as a result of the discrimination against them for the periods and in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its St. Marks, Florida, place of business, copies of the attached notice marked "Appendix D."66 Copies of said notice, on forms provided by the Regional Director for Region 12, 'after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps-shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ss In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 66 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." APPENDIX A Waymond Berry May 3 A.J. Crummedy Apr. 12 Sylvester Dawson May 3 R.W. Dunn May 8 James Faircloth, Sr. Apr. 12 Charles Fulgham Apr. 24 Willie Gavin Apr.- 12 Rodney Gray Apr. 10 Richard Harris Apr. 12 John Heard Apr. 27 T.B. Hudson, Jr. May 1 William Hudson May 3 D.R. McClendon May 8 Robert McFall May 3 W.J. Smith Apr. 12 Percy Stewart May 8 Albert Lee Still Apr. 12 Abraham Washington Apr. 12 Jimmie Washington Apr. 10 Adell Williams Apr. 10 SEMINOLE ASPHALT REFINING 187 APPENDIX B APPENDIX C Pat Bentley James 1"aircloth, Jr. George Fulgham, Jr. James Gregg Curtis Langston May I Apr. 12 James Gerrell E.W. Nelms Apr. 17 Tim Gray H.C. McCarthy Hugh Mullins