Current Construction Corp.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Current Construction Corp. and Samuel M. Wagner and Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 29-CA-2917 and 29-CA-2918 March 15, 1974 DECISION AND ORDER On June 28, 1973, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, counsel for General Counsel and counsel for Respondent filed exceptions and supporting briefs. The Board has considered the record and the attached Decision in light of the exceptions and briefs and finds merit in certain of Respondent's exceptions relating to the jurisdiction of the Board. The Board has decided not to assert jurisdiction in this case. It therefore adopts only those findings of the Administrative Law Judge that are consistent with this Decision and does not adopt his conclu- sions and recommendations. Respondent is a joint venture engaged in pruning, cutting, and removing trees in New York City under contracts let by the Parks Department of New York City, an entity exempt from the Board's jurisdiction under Section 2(2) of the Act. Admittedly Respon- dent renders to the city services which constitute sufficient indirect outflow for the assertion of the Board's jurisdiction . Respondent argued to the Administrative Law Judge, however, that the Board should not assert jurisdiction here because the services Respondent performed for the Parks Depart- ment are intimately connected with the department's exempt operation and because the department by contract and in practice retained a pervasive degree of control over Respondent with respect to the manner of its performance of work and with respect to its labor relations.' The Administrative Law Judge, in asserting jurisdiction, found, however, that Respondent exercised sufficient effective control over the working conditions of its employees so as to be able to bargain with the Union in accord with the provisions of the Act. We disagree. A reading of the contracts in evidence which Respondent has with the Parks Department clearly indicates the pervasive degree of control that the Parks Department maintains over Respondent and its operations . For example, Respondent's tree i The Board has frequently declined to assert jurisdiction over contractors performing services for organizations which , like the Parks Department of the City of New York, are exempt from the processes of the Act. See, e.g, The Prophet Co, 150 NLRB 1559, Slater Corporation, 197 NLRB 1282; The Wackenhut Corp, 203 NLRB No. 3 Cf. Herbert Harvey, Inc, 171 NLRB 238, enfd. 424 F 2d 770 (C A.D C.. 1969) pruning contract with the city contains detailed specifications and special provisions, requiring trees to be pruned in accord with accepted horticultural practice, in accord with the specifications for work and materials, and as directed by the horticultural officer, by experienced pruners and with the proper tools in a good workmanlike manner. A job cannot proceed without a resident engineer'2 i.e., city inspector, present and this individual has, by contract, the power in the first instance to inspect, supervise, and control the performance of the work. The contract states generally that all of the work shall be subject to the city engineer's, i.e., architect's, determination unless the approval of someone else is expressly called for. To that end, the contract gives the engineer the authority to determine the amount, kind, quality, and location of the work; the authority to reject any means and method of work which in his judgment would constitute a hazard to persons or property or would not produce finished work in accord with the contract; the right to have submitted to him by the contractor a "proposed progress schedule" showing a proposed sequence of work schedule which may be revised until satisfactory to the engineer; 3 and the authority to determine when the work is finally completed. The contract further states generally that all work is to be performed to the satisfaction of the commissioner of the Parks Department and that the commissioner has the authority to direct the contrac- tor to discharge any employee who, in the opinion of the commissioner, is "incompetent, unfaithful or disobedient." The contract further covers such diverse areas as a requirement that the contractor is to remove all trash and debris; that the work is to be performed in a 5- day, 40-hour week, except for legal holidays; and that the contractor is to obtain manufacturers' warranties on equipment and materials used in repairing, rebuilding, and restoring work. The con- tract also covers such areas as the minimum prevailing wages and benefits that Respondent must pay, on job training for minority groups, nondiscri- minatory hiring practices, and insurance require- ments. In actual practice, also, the city has a substantial degree of control over Respondent's operations. As noted above, Respondent's operation cannot proceed unless an inspector is present and often times there is more than one inspector on the job at any one time. The inspectors determine which trees to prune, which 2 The resident engineer is the delegated representative of the city's engineer or architect. 3 By contract, the date on which work is to begin is set by the commissioner of the Parks Department and the contractor must inform the city of any delays and apply to it for any needed extensions of time 209 NLRB No. 86 CURRENT CONSTRUCTION CORP. branches should be cut, and how the cutting should be done. The scope of the inspectors' day-to-day authority is shown in the daily report which he submits. On this report, the inspector separately lists and identifies by species, size, and street address each of the several hundred trees which have been pruned (or cut) that day. Any defects in performance (such as low tips or inadequate sweepings) are noted on a tree-by-tree basis and must be corrected to the inspector's satisfaction. As noted by the Administra- tive Law Judge, it is the inspector who makes the final decision on which limbs to cut, and he may stop the job if the cleanup crew is too far behind the trimmers. From all of the above, it is clear to us that the degree of control the city exerts over Respondent's operation is such that Respondent cannot effectively bargain with any union. We note that Respondent's contract with the city prescribes virtually all of the basic working conditions customarily found in collective-bargaining agreements. On the jobsite, Respondent's operations are further controlled by the city inspectors who fill out status sheets on every tree Respondent's men work on and who have the authority to order rework on a tree until it meets with their approval.4 This degree of control is further emphasized by the power given the Parks Department commissioner to order a contractor, like Respondent, to discharge any employee who in the commissioner's estimate is incompetent, unfaithful, or disobedient. And al- though Respondent initially hires its own work force even that authority is limited by the contractual requirement that Respondent first hire New York State residents if they are available. We note also that the services Respondent per- forms of trimming and cutting trees are ones intimately connected with the exempt operation of the Parks Department and are the same kind of governmental-type services as employees of the Parks Department perform.5 4 In reaching this conclusion, we do not overrule the Administrative Law Judge's fording that certain inspectors on Respondent's Job may have gone beyond the bounds of their authority and directly supervised and given orders to Respondent's men we accept as true the Administrative Law Judge's conclusion that inspectors ordinarily work through the contractor's own supervisors when specific problems arise This agreement with the Administrative Law Judge does not alter, however, the strong degree of control that the inspectors possess by contract and in practice as set out in our decision and does not alter our conclusions on the degree of control Nor does our decision condone the "less than arms-length relationship" which existed between Respondent and certain of the inspectors as noted by the Administrative Law Judge This short-lived illicit relationship, however, does not affect our final conclusions here Chairman Miller is not persuaded that the similarity of the services performed here to those performed by Parks Department employees is truly relevant to the issue before us, but concurs in all other respects with the decision and the opinion herein a Slater Corporation, 197 NLRB 1282, Servomation Mathias Pa, Inc. 200 NLRB No 136; The Wackenhut Corp.. 203 NLRB No 3. 719 Therefore, for all the above reasons, we decline to assert jurisdiction herein.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: The Administrative Law Judge found that Respon- dent was an employer engaged in commerce within the meaning of Section 2(2) of the Act and that it would therefore effectuate the policies of the Act for the Board to assert jurisdiction here. He further found that Respondent had committed numerous violations of Section 8(a)(1) and (2) of the Act; had discharged 11 employees of its cleanup crew in violation of Section 8(a)(3); but had not violated Section 8(a)(5) of the Act as alleged. I would affirm these findings of the Administrative Law Judge? and I dissent from the majority's refusal to assert jurisdiction here. Respondent works with its own equipment and has the first right to choose the means and method whereby it is to do its work. Respondent hires its own employees and trains, transfers, and promotes them as it sees fit. It directly supervises its employees' work and discharges its employees as it deems necessary. Respondent can set its own wages subject only to the qualification that the wages be not less than the prescribed prevailing wages set out in the contract. It can also provide whatever production bonuses it may find advantageous. It is clear therefore that whatever the degree of control over Respondent's operation possessed by the Parks Department, Respondent is still capable of engaging in meaningful collective bargaining with any labor organization its employees may designate as their representative. The majority appears to misconceive the test in this area by emphasizing r 1 would also find merit in General Counsel's exception to the failure of the Administrative Law Judge to find certain additional actions of Respondent to be violations of Sec. 8(a)(l) and (2) of the Act Though related to the other acts of unlawful assistance he had found, the Administrative Law Judge refused to find these additional acts of Respondent violative of the Act since the complaint contained no specific allegation -, concerning the additional conduct However, since these additional acts were related to the other acts of assistance alleged and found by the Administrative Law Judge, and since they were fully litigated at the hearing with no objections being raised, I would find them to be violations Jones Plastic and Engineering Corp., 186 NLRB 947. fn. 3. Thus I would find that Respondent violated Sec. 8(a)(1) and (2) of the Act when it paid initiation fees for two of its employees to Laborers Local 731 on June 23. 1972: when it directed checkoffs to be signed by its employees to Loca! 731 on June 23, 1972. in the absence of a contract with that union; when it remitted welfare and pension fund payments to Local 731 for certain of its employees, and when it required its employees to sign application and checkoff cards for Sanitation Local 813 on February 25, 1972. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those factors demonstrating the control the Parks Department may possess over Respondent's opera- tion. But they nowhere come to grips with the standard as noted in our decision in Herbert Harvey, Inc.,8 of whether, regardless of the exempt organiza- tion's control, the employer over whom jurisdiction is sought is still capable of bargaining effectively with a labor organization over conditions of employment. In Herbert Harvey, where the Board found the exempt organization a joint employer, jurisdiction was still asserted over the employer performing services for the exempt organization where it was shown that the employer performing those services still possessed the ability to exercise effective control over the working conditions of its employees. And in a case whose facts are strikingly similar to those here, the Board asserted jurisdiction over a group of employers who provided aircraft and personnel to agencies of the Federal Government and the State of California to fight forest fires in that State .9 There, the employers, pursuant to contracts, sent pilots and material to various bases operated by both agencies where the pilots waited to be dis- patched to fires. When the employers bid on the contracts they had to supply the names and qualifi- cations of the various personnel they were going to use and both agencies reserved the right to reject a proposed pilot on grounds ranging from safety to attitude to personal appearance. The agencies also approved the work assignments, transfers, and occasional promotions of the various personnel and provided annual training and evaluation for the airmen. When the personnel were dispatched to fight fires their orders came from agency personnel and, in the air, they were supervised by agency personnel. Hours of duty, maximum flight time, and various safety precautions were all established by contract. Notwithstanding all of the above, however, the Board asserted jurisdiction since it noted the con- tracts clearly stated the airmen were employees of the employers and not the agencies; the airmen received no benefits of governmental employment; the em- ployees actually hired the airmen; the employers assigned the airmen to the bases and the assignments were rarely disapproved; and the employers paid the airmen and all deductions were made by the employers. The Board characterized the powers of the agencies as only "review and approval rights" over the employers' labor-related decisions, and concluded that a considerable degree of authority was left to the employers and therefore jurisdiction was asserted over them. The Board did note the "close connection" of the employers' activities with that of the agencies but this did not alter its decision to assert jurisdiction. I can fathom no appreciable difference between the instant case and Sis-Q. Thus, here, where Respondent can hire its own employees and fire them,10 has the ability to give them wages higher than the prescribed minimum, and, as the majority acknowledges, directly supervis- es them, I think it has been clearly shown that Respondent can effectively bargain concerning its employees' working conditions.u1 Therefore, al- though Respondent's conditions of employment may be in some respects subject to review and approval of the Parks Department, I would assert jurisdiction here and I dissent from the majority's failure to do so. 8 171 NLRB 238, enfd. 424 F 2d 770 (C.A.D.C., 1969). 9 See Sis-Q Flying Service, Inc., 197 NLRB 195. 10 Although I note that, by contract, the Parks Department commission- er has the authority to direct the discharge of any employee he may deem incompetent, unfaithful, or disobedient, I also note that there has been no showing that this reserved right has played any significant role in the composition of Respondent's work force and therefore I weigh this factor lightly. See Ja-Ce Company, Inc., 205 NLRB No. 92. Nor do I consider of note the possibility that a city inspector may have directly discharged an employee since this is a power nowhere given to the inspectors in the contract 11 Richmond of New Jersey, Inc, 168 NLRB 820, Barry Industries, incorporated, 181 NLRB 1003, 1004; Ja-Ce Company, Inc, 205 NLRB No 92. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was tried at Brooklyn, New York, on January 15, 17-19, and 23-26, 1973. Charges were filed on June 16, 1972,1 and amended July 10, by Teamsters Local 282 separately against Current Construction Corp., and Samuel M. Wagner, a joint venture herein called the Company2 or Respondent. The complaint, with a consolidation order, was issued on November 9 and amended at the trial. The primary issues are whether the Company (a) interrogated and threatened employees concerning their joining Teamsters Local 282; (b) discriminatorily dis- charged its cleanup employees, among whom Local 282 had most of its support; (c) unlawfully refused to bargain with that union; and (d) illegally supported another union, in violation of Section 8(a)(l), (2), (3 ), and (5) of the National Labor Relations Act. The Company questions the Board's assertion of jurisdiction. Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I. JURISDICTION The Company (a New York corporation and an individual) is a joint venture engaged in pruning and removing trees in New York City, where in the past year it performed services valued in excess of $50,000 for the 1 All dates are in 1972 unless otherwise stated. 2 The name of the Company was corrected at the trial CURRENT CONSTRUCTION CORP. city's Department of Parks, which annually purchases goods valued in excess of $50,000 directly from outside the State. Although the city is exempt from the Board's jurisdiction under Section 2(2) of the Act, its operations are of a magnitude which would justify the Board in asserting jurisdiction over it if it were nonexempt. The services which the Company renders to it constitute sufficient indirect outflow for the assertion of the Board's jurisdic- tion. Carroll-Naslund Disposal, 152 NLRB 861, 863 (1965). The Company contends that the Board should not assert its jurisdiction, however, because the trimming and removal of trees "are the same kind of government services ... as the Parks Department itself performs," and therefore "intimately connected with" the department's exempt operation. The Company cites no authonty in support of such a basis for dechning jurisdiction over countless contractors performing this or similar types of work for governmental bodies. I find the contention to be clearly without merit. The Company also contends that the Board should decline jurisdiction because the Parks Department retams by contract "a pervasive degree of control ... both with respect to the manner of performing the job and with respect to labor relations." In this connection, the tree trimming (or pruning) contracts, for a fixed fee, contain detailed specifications and special provisions, requiring trees "to be pruned in accordance with accepted horticul- tural practice . . . in accordance with the specifications for work and materials and as directed by the Horticultural Officer . . . by experienced pruners and with the proper tools in a good workmanlike manner." A park inspector is required to be "with each of the contractor's crews and a certified record by house and street number will be made of each tree pruned"; the contractor is required to remove all trash and debris; and the work is to be performed in a 5-day, 40-hour week, except for legal holidays. In addition, the contract contains over 100 pages of language which is standard in a wide variety of city and/or Parks Depart- ment contracts, covering such things as minimum prevail- ing wage rates and benefits, on job training for minority groups, nondiscriminatory hiring practices, insurance, and delays, as well as such provisions as those designating the "resident engineer" as the representative of the engineer or architect, and requiring the obtaining of manufacturers' warranties on equipment and materials used in repairing, rebuilding, and restoration work. (Under the heading, "Powers of the Resident Engineer, the Engineer or Architect, and the Commissioner," this general part of the contract provides that, the resident engineer shall have the power "to inspect, supervise and control the performance of the work." Under general "Labor Provisions," the "Contractor and his Subcontractors" are prohibited from employing "Anyone who is not competent, faithful and skilled," and the parks commissioner is authorized to inform the contractor, in writing, that any employee is, in his opinion, "incompetent, unfaithful or disobedient," whereupon the employee shall be discharged forthwith.) Under such Parks Department contracts, as well as under the prevailing practice in the industry as credibly testified to by landscape contractor Henry Cercone (assistant secretary of Philip Lagana & Son), the responsi- 721 bihties of the inspectors on these tree jobs is to watch and inspect the work, and to be concerned with its proper completion under the contractual specifications. The inspector makes the final decision on which limbs to cut, and may stop the job if the cleanup crew is too far behind the trimmers. The inspectors do not specifically supervise the employees on the job, but ordinarily approach the contractor's foreman or supervisor on the job with specific problems. The contractor works with its own equipment; it hires, trains, transfers, promotes, supervises, and discharges the employees on both the trimming and cleanup crews; it sets its own wages (not less than the prescribed prevailing wages) and provides whatever production bonuses it may find advantageous. Within the limitations of the few restrictions in the contracts concerning minimum wages, hours of work, nondiscrimination, etc., the contractor -"exercises effective control over the working conditions of its employees and is fully competent to bargain with the Union in accordance with the provisions of the Act." Herbert Harvey, Inc. v. N.LR.B., 424 F.2d 770, 778 (C.A.D.C., 1969); cf. Servomation Mathias Pa., Inc., 200 NLRB No. 136 (1972). I do not overlook the fact that at this particular Company there was, between it and certain city inspectors, a less than arm's-length relationship-about which Arnold Esbin (president of Current Construction Corp.) admittedly gave false testimony. After testifying that he was new in the tree-trimming business when the Company started working on the first contract in November 1971, and after testifying that "the last thing in the world I was looking for was trouble with these inspectors," he repeatedly denied having any of the inspectors employed by the Company while serving as a city inspector. Finally, upon realizing from the General Counsel's cross-examining that the General Counsel had information to the contrary, Esbin admitted, "Okay, my other answer was an out and out lie. The man did work for me while he was on my payroll [repairing my saws], while he was an inspector on the job." (Emphasis supplied.) Thereafter, other witnesses gave credited, undis- puted testimony that not only did the Company have this city inspector on the payroll, sharpening and maintaining the chain saws in the evenings after work, but that during the day this inspector would do the paperwork while two other inspectors were seen soliciting privatejobs (trimming and removing trees in backyards), and that the Company would permit them to use company saws and a company truck for this private work. In turn, inspectors were observed going beyond their customary role of inspecting the work and reporting deficiencies to the Company's supervision : some of them were giving instructions directly to the employees and supervising the work. I find that this is a situation which should be called to the attention of the proper authorities in the city's Parks Department, instead of being grounds for treating this contractor differently from other city contractors and declining jurisdiction over the Company's alleged unfair labor practices. Accordingly, I find that the Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also find that Teamsters Local 282 and also Building, Concrete, Excavating & Laborers' Union, Local 731 of Greater New York, Long Island & Vicinity , International Hod Carriers', Building and Common Laborers' Umon of America, AFL-CIO, herein called Laborers Local 731, are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction This is an unusual case. Admittedly without benefit of counsel , and thinking "we were smarter than we actually were," the Company engaged in a complicated set of maneuvers , with three separate unions, originally to delay (or avoid) unionization while it was failing to pay the prevailing wage rates and benefits as required by its Parks Department contracts, and subsequently to avoid "doubling up" (having a separate driver and bucket operator) on its tree-trimming bucket trucks. The Company admittedly "stalled" for months in bargaining with one union (Laborers Local 731), while operating nonumon, yet making fringe benefit payments to another union (Sanitation Local 813, a Teamster local) for two employees who drove trucks to the dump . Later, during a strike by a third union (Teamsters Local 282, the charging party), the Company determined Local 282's limited support among the tree-trimming employees, and filed a petition (later withdrawn) for an election in that group. Then it required all the remaining cleanup employ- ees to sign application and checkoff cards for Sanitation Local 813 . The next week, following repeated damage to its equipment, the Company signed a recognition agreement, recognizing Teamsters Local 282 and Sanitation Local 813 as joint bargaining representative of all its trimming and cleanup employees. The strike ended, but there was no joint bargaining for a collective-bargaining agreement. Meanwhile, despite its efforts to conceal its underpay- ment of employees-by paying employees in cash and requiring them to sign (endorse) blank paychecks, and by requiring employees to sign affidavits that they were receiving the prevailing wages and benefits-the Company was advised by the city comptroller to pay the prevailing rates to cleanup as well as trimming employees, and later was required to give them backpay. After the signing of the recognition agreement, Team- sters Local 282 got into a dispute with Laborers Local 731 over their respective jurisdictions. While this dispute was being discussed between the unions, the Company bar- gained separately with Teamsters Local 282 for an agreement covering only drivers (excluding "sanitation" truckdrivers, members of Sanitation Local 813). Also, after the recognition agreement was signed , the Company met with Laborers Local 731 , which was urging the Company to go ahead and sign its agreement covering all the employees. The Company and Teamsters Local 282 reached an impasse in their negotiations over the issue of "doubling up" of drivers and operators on the bucket trucks. Local 282 then requested the Company to bargain for "all employees covered by the recognition agreement. " Howev- er, by this time, the Company had discharged all except two of its experienced cleanup employees (among whom Teamsters Local 282 had most of its employee support), and replaced them with mostly inexperienced members of Laborers Local 731. The Company also offered special benefits to the three former organizers for Teamsters Local 282 if they would join Laborers Local 731, and agreed to pay their Local 731 initiation fees-explaining that the Company preferred Local 731 , which did not require "doubling up" on the bucket trucks. In addition, the Company instructed the remaining employees to leave work and go with a company official to the Local 731 union hall, where the Company advanced the money for their initiation fees to join Local 731. The Company refused to bargain further with Teamsters Local 282. The General Counsel contends that a number of the above and other acts were unlawful. The Company states in its brief, "We would be less than candid were we to contend that the Employer was not guilty of any violations" of the Act, after arguing that the "Employer was unaware both of its obligations under the NLRA and of the restrictions which the Act imposed on it." However, the Company contends that it did not discriminatorily discharge the cleanup employees, coercively interrogate its employees, nor violate Section 8(a)(5) of the Act. I note that resolution of the alleged discriminatory discharge issue is complicated by the Company's actions in keeping inaccurate payroll records, or "two sets of books," omitting employees from the payroll records apparently for purposes of deception. B. Background On November 1, 1971, the Company (the joint venture of Samuel Wagner and Current Construction) began work on its first tree-trimming contracts with the Parks Depart- ment. Although the government contract required the payment of not less than the prevailing rate of $6.95 an hour in wages and $1.87 in fringe benefits (totaling $8.82 an hour) to "common laborers," the Company was paying the hourly wage rates-without the fringe benefits-of $7 to the trimming (pruning) employees and to the two cleanup leadmen, and $4 .375 and $4.20 (less than half the total prevailing rate) to cleanup employees . (I discredit President Esbin's testimony that "we thought we had" paid the prevailing wage.) The Company admittedly "stalled" for months in its negotiations with Laborers Local 731 . That union sought the Company to sign the multiemployer agreement covering this tree work and to pay, to both the trimming and cleanup employees , the Local 731 negotiated wage scale ($6.95 and $1 .87), which the city had adopted as the prevailing rate for the work and which competing government contractors were paying. (Local 731 had not at that time organized the Company's employees, and had only one member working there . The complaint does not allege this bargaining to be unlawful ; no charges were filed against Local 731.) The hourly rates of $4.375 and $4.20, which the Company was paying cleanup employees, were the rates CURRENT CONSTRUCTION CORP. which Wagner had previously paid to employees clearing alleys and vacant lots under the city's rat control program. These wages, plus fringe benefits, were the union scale for "chauffeurs" and helpers on "Rubbish and Garbage Route Trucks" in an agreement which Wagner Carting (owned by Wagner) had signed on July 1, 1971, with Private Sanitation Union Local 813 (a Teamsters local). Wagner had completed that earlier city contract the last week in October 1971. The Company employed former Wagner Carting em- ployees, including "sanitation" truckdrivers Edward Carter and Marion Smith, to work on the cleanup crews. Carter and Smith were members of Sanitation Local 813. Although Manager Frank Stumer (secretary-treasurer of Current Construction) gave much fabricated testimony concerning the later discharge of cleanup employees (as discussed later), he did admit that between November and February the Company was operating a nonunion shop. He also admitted that the Company did not recognize the Wagner Carting agreement with Sanitation Local 813 as being binding on the Company until after Teamsters Local 282 went on strike in February. (I discredit the testimony of Office Manager Warren Wagner, on cross-examination, that "I can't say I didn't consider [certain former Wagner Carting employees then working as cleanup employees for the Company ] to be under [the] 813 contract. Let's say that I was negligent in requiring them to join the union even though I knew about the 30 day [union-shop ] provision.") Meanwhile, however, a Local 813 representative observed cleanup man Carter and/or Smith at the dump, driving a sanitation truck there. Evidently believing that these two employees were still driving sanitation trucks for Wagner Carting, Sanitation Local 813 sent Wagner Carting a statement for the fringe benefits (to the insurance, pension, and severance funds under its July 1971 agreement with Wagner Carting) for Carter, Smith, and a supervisor. Wagner paid for these benefits for the 3-month period, December-February. The remaining cleanup employees continued to receive none of these fringe benefits. (Office Manager Wagner admitted that "maybe" the Company was "looking to save some money.") Finally, in February, Cleanup Leadman Arthur Lacker sought representation from Teamsters Local 282, telling General Organizer Anthony Bai that they had no union, employees were being underpaid, and "when we get paid, we sign [endorse] blank checks and he pays us in cash." (Previously, Bai had met with representatives of Laborers Local 731 and the Company, and had asked the Company who was driving the Company's trucks. Bai left the meeting after Samuel Wagner said he already had a contract with Sanitation Local 813 and said that he refused to meet with Local 731 in Bai's presence.) Having been advised by Sanitation Local 813 that it did not have a collective-bargaining agreement with the Company, Bai began organizing the trimming and cleanup employees, with the assistance of Cleanup Leadmen Lacker and Robert Smiarowski, and later, trimmer Merle Warner. Bai also intervened in the Laborers Local 731's complaint at the city comptroller's office that the employees were not being paid the prevailing wages and benefits. 723 C. Initial Discharges and Threats About the second or third week of February, Teamsters Local 282 Organizer Bai gave Cleanup Leadmen Lacker and Smiarowski authorisation cards to get the employees to sign. Lacker and Smiarowski spoke to a number of the employees, and obtained several signatures. Although Manager Stumer denied knowledge that the two leadmen had been signing up employees, he did testify that "All that day," Friday, February 18, "anytime I passed Artie's [Lacker's ] crew ... the men were standing around talking about something," and that he had mentioned to Lacker, "How about getting back to work?" Later that day, when Stumer "asked him to sign this paper" concerning receiving the prevailing wage, "I don't know what was on his mind, he refused. I said, `All right, if you are not going to sign, you might as well leave the job, you are fired.' " Thereafter, according to Stumer, Smiarowski quit upon learning about Lacker's discharge. (Both leadmen were paid for the full day's work.) Stumer testified he discharged Lacker because "I was quite annoyed" at him for not signing the affidavit, but that Lacker and Smiarowski were good employees and he did not consider that to be the end of their relationship. He added, "I thought that we would probably talk it over the next week," and admitted that he needed them and wanted them back on the payroll. (At the trial, the Company's trial counsel admitted that the two leadmen were still employees, stating that "we are not contending that they were not employees during this period.") Nevertheless on the following Tuesday morning, Febru- ary 22 (Monday being a holiday), Teamsters Local 282 Organizer Bai requested recognition, speaking first to Manager Stumer and President Esbin, and then to Samuel Wagner a few minutes later, and Wagner specifically referred to Lacker and Smiarowski when stating that employees signing cards for Local 282 were fired. (This was at the garage where the trucks and equipment were kept and where the employees reported for work.) As recalled by Bar, Wagner stated, "F-you, you don't represent anybody . . . anybody signed a card for 282 is fired. Anybody signing a card for 282 from now on is fired" and, pointing to Lacker and Smiarowski, stated they did not work there any more. Lacker credibly testified that when Wagner made the discharge threat he pointed to Lacker and Smiarowski, stating "those fellows don't work for me any more." Trimmer Warner (who testified first for the General Counsel and later for the Company) testified that Wagner stated, "I know if anybody signed pledge cards for 282, he is not going to be working for me any more, and especially those two," pointing to the two leadmen, "These two guys aren't working for me." (Samuel Wagner did not testify, and the Company conceded in its brief that his statement, "Anybody signing a card for 282 is fired," was undenied by the Company at the trial. Both Manager Stumer and President Esbin admitted that Wagner mentioned Lacker and Smiarowski in connection with the Local 282 cards. Stumer testified that Wagner stated, "F- those cards," and referring to the two leadmen, "Those two are not working for me any more." According to Esbin, Wagner stated, "I don't care what kind of cards you have from Artie and Bobby, they don't work for me." I note that 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bai had not named any of the card signers.) The Company's payroll records state that these two employees "quit." Admittedly, Cleanup Leadmen Lacker and Smiarowski were valued employees, and Manager Stumer (who had told Lacker he was fired the Friday before) did not consider their employment ended. However, when Team- sters Local 282 demanded recognition the following workday, Samuel Wagner not only effectually discharged the two employees, but revealed his knowledge of their support of this truckdrivers local. I therefore find that the Company then discharged the two leadmen, in reprisal for their supporting the local which the Company feared would demand separate truckdrivers, thereby violating Section 8(a)(3) and (1) of the Act. (Lacker and Smiarowski were permitted to return to work with the other employees upon settlement of the ensuing strike.) I also find that the undisputed and unretracted threat by Samuel Wagner on the morning of February 22, in the presence of a number of employees, to discharge anybody signing authorization cards for Teamsters Local 282, was clearly coercive and violated Section 8(a)(1) of the Act. D. Interrogation and Further Warning As Samuel Wagner was leaving the garage, after threatening employees with discharge for signing Team- sters Local 282 cards on Tuesday morning, February 22, Manager Stumer approached messenger James Sweeney. As Sweeney credibly testified, Stumer "asked me if I joined the Union," and Sweeney answered, "Not yet." Then Stumer warned, "If you join the Union, you won't be working for me." (Stumer did not deny this conversation.) I find that this interrogation and the warning were clearly coercive, in violation of Section 8(a)(1) of the Act. On another occasion, after cleanup man Richmand Pierre saw Teamsters Local 282 Organizer Bai and Leadman Lacker talking with President Esbin at the garage, Manager Stumer approached Pierre and asked him if Bai had spoken to him. Pierre denied it and Stumer instructed, "Don't have nothing to do with this gentleman and his union because that union is no good." I find that this interrogation, in the context of the instruction and the threats being made to the employees concerning Local 282, was coercive and violated Section 8(a)(1) of the Act. On Thursday evening, February 24, Manager Stumer held a special meeting at a diner with trimming employees and asked them (in his words), "What do you people want to do? Do you want to sign with 282, do you want to stay nonunion, do you want to sign with 731?" Stumer testified that he got "all different answers." Although the General Counsel failed to establish that the trimmers were coerced in this meeting, I find that the interrogation afforded the Company an opportunity to determine the union prefer- ence of this group of employees and Local 282's limited support among them. (Only 5 of the 14 trimmers had at that time signed Local 282 cards.) The following morning, the Company filed a petition (later withdrawn) for an election for this group of employees, indicating that Locals 282 and 731 were claiming recognition. Also that Friday morning, February 25, the Company filed a charge (later withdrawn), alleging that Sanitation Local 813 was refusing to bargain with the Company by not honoring the Wagner Carting-Local 813 agreement (which, until that date, the Company had not recognized as being binding upon itself). That afternoon, while the strike was still in progress, the Company called the cleanup employees individually into the office and required them to sign application and checkoff cards for Local 813. (The General Counsel did not include in the complaint, nor offer as an amendment at the trial, any allegation that this conduct violated Section 8(a)(2) of the Act. No charge was filed against Local 813.) Between this date and March 31, when the Company summarily discharged these cleanup employees, it did not check off their dues, and did not pay the fringe benefits for these employees under the Wagner Carting agreement. Meanwhile, representatives of the Company were asking cleanup employees if they had signed Teamsters Local 282 cards. When Raymond Hall was called in the office to sign the Sanitation Local 813 application and checkoff cards, Office Manager Warren Wagner (in the presence of Manager Stumer and President Esbin) asked Hall "did I sign a card in the past for 282." Hall said yes, and Wagner said, "Well, that doesn't mean anything . . . that is bull s- ... once we get this matter of cards signed for 813, we get back to work." (Wagner did not deny this. Stumer testified that when the employees were called in individually, he told them that "if they signed with Local 813 they would be able to go back to work.") On another occasion, sometime after Herbert Sanders signed a Local 282 card (on February 17), Sturner asked him at the garage "if I signed the card," and Sanders admitted that he had. Between the conclusion of the strike (on February 28) and the date the cleanup employees were discharged (March 31), Cleanup Leadman Lacker observed Stumer approach cleanup man Edward August at work and ask him if he had signed a Local 282 card. August answered yes. (Although August admitted that this was a friendly, casual question, August testified that "it just seemed odd that he asked me about the Union.") Lacker also recalled Stumer asking Floyd Jones, another cleanup employee, if he had signed a Local 282 card, but Lacker did not recall Jones' response. (Jones did not testify.) In addition, Manager Stumer interrogated messenger Sweeney a second time. As testified by Sweeney (who impressed me as an honest, trustworthy employee), Stumer in early March called Sweeney over to his car and asked him again "if I joined the Union," Local 282. When Sweeney answered, "I don't know yet," Stumer said, "Well, we have a list of all the people that joined the Union." (Emphasis supplied.) Stumer added that Sweeney would have to join Laborers Local 731, and said that he would bring a Local 731 card for Sweeney to sign, but he failed to do so. (As discussed later, Sweeney thereafter was replaced as messenger and assigned to work full time as a cleanup employee. Then on March 31, without being required, or offered the opportunity, to sign cards for Local 731, Sweeney and other cleanup employees were summarily discharged and later replaced with Local 731 members.) Stumer admitted interrogating employees about signing Teamsters Local 282 cards but claimed, "I don't believe I did" after the strike. I discredit this denial, and find that the foregoing individual interrogation of Hall, Sanders, CURRENT CONSTRUCTION CORP. 725 August, Jones, and Sweeney-in the context of the threats of discharge for supporting Teamsters Local 282 and the later summary discharge of this group of employees among whom Local 282 had a majority of its support-was coercive and violated Section 8(a)(1) of the Act. E. Alleged Refusal To Bargain With Local 282 and Illegal Support of Local 731 1. Majority status When Teamsters Local 282 Organizer Bai requested recognition and went on strike, on Tuesday morning, February 22, he had valid authorization cards from a majority of the cleanup employees and the messenger, but not from a majority of the trimmers. In the first group, he had cards from 9 of the 15 (having cards from August, Frazier, Hall, Jones, Lacker, Peterson, Pierre, H. Sanders, and Smiarowski, but not from Blacknall, Carr, Carter, M. Smith, Sweeney, and Wiley), but only 2 cards from the 14 trimmers (having cards from Traynor and Warner, but none from Bush, Cain, Carney, DeSanto, DeTillio, Fusco, Graue, McHugh, Nedwick, Siderious, Thompson, and Verkilos). By Wednesday, February 23, he had valid cards from 15 of the 29 employees (having received additional cards from messenger Sweeney and trimmers Cain, Fusco, and McHugh). On Monday, February 28, when the recognition agreement was signed and the strike ended, Bai had two additional cards (from cleanup man Wiley and trimmer Graue), giving Teamsters Local 282 a majority of 17 of the 29 employees. In making these findings, I exclude the card signed on February 19 by cleanup man Helback who, like Peterson, was not shown on the payroll. Whereas the parties stipulated that Peterson was an employee at that time, there is no stipulation, nor proof, that Helback was still an employee when he signed the card. I also exclude the card signed by Stiers, because his job was counting trees (not working either as a trimming or cleanup employee), and he was on the payroll of Wagner Moving & Storage, working only temporarily for the Company while recovering from a heart attack. I include the cards signed by trimmer McHugh on February 23 and Graue on February 28, discrediting as fabrications the vigorously denied testimo- ny by Thompson and Graue that Bai made threats to obtain the cards. (Neither Thompson nor Graue impressed me as being a trustworthy witness.) I also find that trimmer Nedwick (who did not sign a card) was still an employee at the time of the strike. Although he last worked on February 16, he was paid for the February 21 holiday, indicating his continued employment immediately before the strike. He quit after the strike. 2. Recognition requests and letter of recognition When Teamsters Local 282 Organizer Bai requested, and was refused, recognition for all the employees (including both trimming and cleanup employees) on Tuesday, February 22, Local 282 had valid authorization cards from only 11 of the 29 employees. By Wednesday, the next day, when Bai again requested (and was refused) recognition, he had a majority of 15 of the 29 employees; however he was no longer requesting recognition, for Local 282, of such an appropriate unit. He had relinquished, to Sanitation Local 813, jurisdiction over two sanitation (garbage) truckdrivers (Carter and Smith), who were members of Local 813. These were not the only two cleanup men driving sanitation trucks, and both Carter and Smith spent much of their time working with the other cleanup employees in nondriving duties. The strike was settled on Monday, February 28, when the Company went to a card check at the Sanitation Local 813 office . By this time, Local 813 was claiming jurisdic- tion not only over its two members, Carter and Smith, but also over all "Sanitation Chauffeurs & Helpers removing all the refuse"-covering an undetermined number of cleanup employees. Teamsters Local 282 agreed, and the Company signed a letter of recognition, recognizing Locals 282 and 813 jointly as representative of all the employees, but specifying their respective jurisdiction, granting Local 813 the above-quoted jurisdiction, and Local 282 jurisdic- tion over "Drivers-Helpers, Laborers, Sky Climbers, Trimmers and all others engaged in Park Department Contracts." (The words "Drivers-Helpers, Laborers" also covered an undetermined number of cleanup employees.) Although the Company had filed a petition for an election on February 25 for a unit of trimming employees, and had required the cleanup employees to sign applica- tions for Sanitation Local 813 later that day, the Company signed this letter of recognition on February 28 in order to end the strike and because it apparently believed that the repeated damage to its equipment (broken radiators and windows, and flat tires) during the strike would continue unless the strike was settled. The Company did not have proof that Teamsters Local 282 was responsible for the damage. Manager Stumer did testify that Organizer Bai made some ambiguous statements , implying that Bai had knowledge of the damage before Stumer did (this testimo- ny was undenied, the General Counsel ignoring the matter). However, even if Bai actually made the purported statements as claimed by Stumer (much of whose testimo- ny I find was fabricated), the statements do not establish that either Bai or Local 282 was responsible for the damage. 3. Company's bargaining and other activity a. Pattern of bargaining The February 28 recognition agreement (naming Team- sters Local 282 and Sanitation Local 813 as the joint bargaining representative of all the employees) settled the strike, but did not produce joint bargaining. Local 813 did not join with Local 282 in any bargaining with the Company for a collective-bargaining agreement, and Local 282 (following instructions from its International) began bargaining with the Company for an agreement covering only the drivers (excluding sanitation truckdrivers). The Company and Local 282 deferred bargaining for other employees, pending Local 282's discussions on jurisdiction with Laborers Local 731. Local 282 (which represented truckdrivers in the area) was offering to agree in writing with Local 731 that Local 731 (which represented employ- 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees performing such tree work in the area) would have jurisdiction over all nondrivmg trimmers and cleanup employees, including the "operators of the buckets" on the bucket trucks, provided Local 282 would have jurisdiction over the drivers (including the bucket-truck drivers). Thus, notwithstanding the joint recognition agreement, the Company was bargaining with Teamsters Local 282 for an agreement covering only the three Local 282 employee organizers, Cleanup Leadmen Lacker and Smiarowski and trimmer Warner, covering them as truckdnvers ( as well as the suburban operator, or messenger, formerly called the coffee boy). Local 282 was proposing to cede to Laborers Local 731 jurisdiction not only over the remaining trimmers (among whom Local 282 had little employee support) but also over cleanup employees (among whom it had received most of its support). In the meantime, as admitted by President Esbin, the Company met-after the recognition agreement was signed-with Laborers Local 731, which urged the Compa- ny to sign Local 731's multiemployer agreement (under which the drivers of the bucket trucks would be permitted to operate the buckets, avoiding "doubling up"). b. Undercutting Local 282s support While Teamsters Local 282 was bargaining for three or four drivers, and deferring bargaining for the remaining employees pending the mterunion jurisdiction discussions, the Company was taking actions which decimated Local 282's support among the employees. In early March, as found above, Manager Stumer told messenger Sweeney that he would have to join Laborers Local 731, and told him that Stumer would bring a Local 731 card for him to sign. (Stumer failed to do so after Sweeney was reassigned. Earlier, on February 22, when Organizer Bai requested Samuel Wagner for recognition, as credibly testified by Cleanup Leadman Lacker, "Wag- ner said he had the pledge cards from 731 on him," and Bai commented that "it was illegal for him to have the pledge cards." As recalled by Bai, Wagner asked Bai how he could have a majority "when I have the majority for Local 731 in my pocket?" The evidence does not reveal how many, if any, of these Local 731 cards were obtained in the manner Stumer sought Sweeney's signature.) Thereafter, Sweeney became a full-time cleanup employee and was summarily discharged on March 31, along with other cleanup employees. A week later, the Company began replacing the largely pro-Local 282 cleanup employees with members of Local 731. (The legality of this mass discharge of employees is discussed later.) Following the discharge of the cleanup employees, Laborers Local 731 declined Teamsters Local 282's proposal that the work be divided, with Local 282 retaining jurisdiction over certain drivers (including trimmer War- ner, who drove a bucket truck). Thereafter, in May, the Company and Local 282 reached an impasse over the "doubling up" issue. Local 282 would not give the Company a satisfactory guarantee concerning the bucket- truck driver continuing to operate the bucket. On May 24, Local 282 requested bargaining for "all employees covered by the recognition agreement." About this same time, as former Local 282 employee organizers Lacker and Warner credibly testified, three company officials (Stumer, Esbin, and Samuel Wagner) met at a restaurant with Lacker, Warner, and the other former employee organizer, Smia- rowski. While talking about a new tree removal contract, "Stumer said that there was no room for Local 282"; that "he couldn't afford the rate of Local 282" (Local 282's welfare and pension fund payments were higher than Local 731's); "that he never had any ideas of signing a contract with Local 282" and "couldn't stall Bai any longer"; that he did not want two unions because he "would have to have a driver in one union and ... a pruner in another union," whereas his competition employed Local 731 members who did both driving and pruning; that he would make it worthwhile to these three employees in money, and make them key men on the new tree removal contract, if they would drop their Local 282 union books and sign up with Local 731; and that he would pay their Local 731 initiation fees. They agreed to join Local 731. (Stumer admitted telling the three employees in the meeting that he preferred that they go over to Local 731, and that he agreed to pay their initiation fees.) I note that the Company's payroll records reveal another inducement for these three former Teamsters Local 282 organizers to join Laborers Local 731. For the two payroll periods, from May II through May 24, the Company discontinued making the $1.87 an hour welfare and pension benefit fund payments for Lacker, Smiarowski, and Warner, but on May 31 (presumably after they agreed to join Local 731) the Company began making the payments for them again, and made back payments for the 2 weeks previously withheld. Even apart from this temporary withholding of the welfare and pension payments, I find, as alleged in the complaint, that the Company in this meeting unlawfully offered and promised employees wage increases and other benefits to induce them to abandon their membership in and support of Teamsters Local 282 and to induce them to join Laborers Local 731, in violation of Section 8(a)(1) of the Act. I also find, as further alleged, that the Company promised employees that it would pay their initiation fees if they would join Local 731 and cease their membership in Local 282. thereby interfering with their Section 7 rights in violation of Section 8(a)(1), and rendering unlawful assistance and support to Local 731, in violation of Section 8(a)(2) of the Act. (Although Local 731 met with the Company and assisted in preparing the company defenses before the trial, and although representatives of Local 731 were present during part of the trial, no charges were filed against Local 731 and it was not served with copies of the formal papers before the trial began.) By June, the Company had either discharged, or offered the above-described inducements to, all the remaining supporters of Teamsters Local 282, with the exception of some of the trimmers. About June 23, as Leadman Lacker credibly testified, Stumer instructed the nonmembers of Laborers Local 731 to report back at the garage at noon, to go to the Local 731 union hall to sign up. Stumer went with the employees, including Lacker and Warner (Smiarowski did not go), paid the initiation fees for Lacker and Warner. and advanced the money for the others. According to Stumer, "at one time the men were all in agreement that they would prefer signing up with 731, and it was also my CURRENT CONSTRUCTION CORP. 727 preference at that time . . . but they seemed to be always broke . . . each man at different times would say . . . 'I ... don't have the money this week.' " One day (according to him), because of the threat of rain in the afternoon, he suggested that they go that day to the union hall. When the money situation came up (that "I don't have the $160 to go down there"), he agreed to advance the money. "So we went down there," and a number of employees signed a slip authorizing him to deduct $40 a week from their pay-except for Lacker and Warner, "whom I had previously made arrangements to pay for." (I credit Lacker's testimony that the employees were instruct- ed to go.) Accordingly, I find, as alleged in the complaint, that the Company directed employees to leave work, to go to the offices of Local 731, and to sign cards designating Local 731 as their representative, in violation of Section 8(a)(1) and (2) of the Act. I also find that Manager Stumer, in effect, admitted soliciting the employees to loin Local 731, and that this further violated Section 8(a)(1) and (2) of the Act. (The complaint did not allege that the Company's payment of initiation fees for Lacker and Smiarowski, or the Company's directing or permitting checkoffs to be signed by other employees in the absence of a contract with Local 731, also violated Section 8(a)(1) and (2). Although the evidence shows that Local 731 did appoint a steward on the job , that the Company did seek referrals from the Local 731 hall and discussed one grievance with Local 731 , and that the Company remitted welfare and pension fund payments to Local 731 for the cleanup leadmen and tnmmers-excluding trimmer Ben Lukowski through error-the General Counsel failed to prove the allegation in the complaint that the Company agreed in June to recognize Laborers Local 731 as the representative of all the employees, exclusive of sanitation chauffeurs and helpers. The complaint did not allege that the making of welfare and pension contributions to Local 731 without a contract violated the Act.) The Company refused to negotiate further with Team- sters Local 282, stating that an impasse had been reached. rest of the ground crew, the climbers and everybody, we weren't discussing here." Thus, Local 282 was negotiating for trimmer Warner (the driver of one of three bucket trucks), for Cleanup Leadmen Lacker and Smiarowski (whose driving duties were limited), and for none of the other truckdrivers (of dump and sanitation trucks ), but for only one other driver, the messenger. Warner had no community of interest separate from other trimmers, and Lacker and Smiarowski had no community of interest separate from other cleanup employees . It was a mere fragmentation of an appropriate unit, based on union membership (except for the messenger). Therefore, in April and May when the Company was bargaining with Local 282, the proposed bargaining unit was inappropriate and the Company had no obligation to bargain with Local 282 for those employees. In May, when the Company and Local 282 reached an impasse over the "doubling up" issue, the Union sought to represent another inappropriate unit : the trimming and cleanup employees, excluding the sanitation chauffeurs and helpers . The Company had never agreed to recognize Local 282 separately for this fragment of the overall unit. Not only was this requested unit ambiguous-including the classifications, "Drivers-Helpers, Laborers," which could overlap the excluded classifications, "Sanitation Chauffeurs & Helpers"-but the unit would be a fluctuat- ing one at best, including cleanup employees when they were driving or loading dump trucks but excluding them, perhaps several times daily , when they were driving or loading sanitation or garbage trucks. I therefore find that whether or not the Company was engaged in a deliberate attempt to undermine Teamsters Local 282's strength and was bargaining in bad faith with the intention of reaching an impasse, the Company, in the absence of any duty to bargain, did not violate Section 8(a)(5) of the Act. However, I do take into consideration the foregoing evidence in determining the Company's motivation for the mass discharge of the cleanup employ- ees. 4. Concluding findings F. Discriminatory Discharges The complaint alleges that the Company violated Section 8(a)(5) of the Act by engaging in bad-faith bargaining in April and May, and by refusing in May and June to meet and continue bargaining-as well as by other conduct alleged to violate Section 8(a)(l), (2), and (3). However, I find that there was no 8(a)(5) violation because the Company had no duty to bargain with Teamsters Local 282, either in April or May, or thereafter. After the Company signed the February 28 recognition agreement, recognizing Teamsters Local 282 and Sanita- tion Local 813 as joint bargaining representative of all the trimming and cleanup employees, Local 282 abandoned the joint representation and bargained with the Company for an inappropriate unit (pending discussions with Laborers Local 731 concerning their respective jurisdic- tions). Teamsters Local 282 Organizer Bai admitted that "we were negotiating . . . not specifically [for] drivers as such but those people who would be 282 members, regardless of the duties they performed because of Warner's dual capacity as a driver and a bucket man. The 1. Preface As seen above, the Company eliminated virtually all of Teamsters Local 282's employee support. First, on March 31, the Company discharged all (except leadmen) of the cleanup employees (among whom Local 282 had a majority of its employee support) and hired members of Laborers Local 731 in their place. Thereafter, as found, the Company unlawfully induced other employees to join Local 731. We now consider whether the sudden mass discharge on March 31, without any prior notice to any of the employees, was discriminatorily motivated. The Company asserts an economic defense (in addition to denying knowledge that a majority of the employees supported Teamsters Local 282). Although conceding that treating the cleanup employees "as a group may not have been good labor relations" and "may not even have been `fair,' " the Company contends, that it believed that "as a group, they were not competent and efficient" enough to justify the higher wage scale. (The city comptroller's office 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised early in March that the Company-like its competitors-would have to pay the contractual "common laborers" prevailing rate to cleanup employees as well as to trimmers.) If the Company's arguments in its brief are to be believed, the Company "laid off" its ground crew (cleanup employees), and that by hiring "a new crew of experienced groundcrew," it "was able to literally double the productivi- ty" of the crew, and that "After the lay-off, while working on the same contract, Respondent had actually cut the groundcrew in half." The evidence, when analyzed, paints a far different picture. As discussed below, the evidence shows that the Company falsified payroll records to conceal the actual number of cleanup employees working after March 31. Production on the tree-trimming jobs was so curtailed that the startup of the tree removal job was delayed. Production was drastically cut the week after the mass discharge by rotating the trimmers on cleanup work, depriving the trimmers of most or all of their production bonus. About a week after the experienced cleanup employees were discharged, the Company began hiring a smaller number of mostly inexperienced cleanup employees (Two of the new employees proved unsatisfactory, and either quit or were terminated.) Thereafter, the Company further cur- tailed the production of the trimmers by requiring, for the first time, that they cut and stack their own tnmmmngs before proceeding to the next tree, and by requiring them to stop cutting early and help with the cleanup when the cleanup employees lagged behind. Despite these and other changes made to enable the smaller cleanup crews to keep up with the trimmers (within a half block to a block), the efforts failed. The cleanup employees often fell hours behind the trimmers, working 10 to 14 hours a day, resulting in excessive overtime and higher costs to the Company. 2. Company knowledge The Company interrogated many of the employees before and some after the February 28 recognition agreement was signed. As found above, the Company interrogated trimmers in a group on February 24 (during the strike), before filing a petition for an election for that group. All six of the General Counsel's witnesses who had been discharged on March 31 (Edward August, Grady Frazier, Raymond "John" Hall, Richmand Pierre, Herbert Sanders, and James Sweeney) credibly testified about conversations with the Company concerning Teamsters Local 282. Three of them (August, Hall, and Sanders), when interrogated about signing a Local 282 card, admitted it. Two of them (Pierre and Sweeney), when so interrogated, did not. The sixth of these witnesses, Frazier, advised the Company that he had signed a Local 282 card when the Company required him on February 25 (as it did other cleanup employees) to sign application and checkoff cards for Sanitation Local 813. Thus there is direct evidence that four cleanup employees (August, Frazier, Hall, and Sanders) informed the Company that they had signed Local 282 cards, and the Company admits knowl- edge that cleanup man Floyd Jones was also supporting Local 282-making a total of five-plus the two Local 282 organizers, Lacker and Smiarowski, the two cleanup leadmen whom the Company, of course, could not discharge for purported incompetence. (In its brief, the Company admits knowledge of the Local 282 support of only three cleanup employees, August, Jones, and Sanders -apparently overlooking Manager Stumer's admitted knowledge, denied by President Esbin, that Hall had signed a Local 282 card-in addition to leadmen Lacker and Smiarowski.) Furthermore, as found above, the Company revealed to messenger Sweeney, in early March before he became a full-time cleanup employee, that "we have a list of all the people that joined the Union," Teamsters Local 282. The Company does not admit compiling such a list, and the evidence does not disclose how accurate the list was. However, by admittedly interrogating the trimmers in a group on February 24, the Company had evidently determined the limited support which Local 282 had in that group of employees. Then, when the Company went to a card check at the Sanitation Local 813 office on February 28, and the Local 813 representative announced that Local 282 represented a majority, it was obvious from Local 282's limited support among the trimmers that most of its support was among the cleanup employees. More- over, although Local 282 Organizer Bai had refused to show the authorization cards to the Company before the Local 813 representative examined the cards and announced Local 282's majority, it is undenied that Samuel Wagner (who did not testify) thereafter "flipped through" the cards and confirmed Locals 282's majority. It is probable that Wagner at least noticed that most of the card signers were cleanup men, even if he could not remember the names of all who signed. Even apart from the interrogation, the admission to the messenger, and the credited testimony that Samuel Wagner "flipped through" Teamsters Local 282's authorization cards at the card check, I find that some of the statements made by company officials at the time of and following the mass discharge indicate that the Company was aware that it was discharging Local 282 supporters. As credibly testified by cleanup man August, Manager Stumer told August on the date of the "layoff" that he was a good worker, and that August should call Stumer back in about a week and "he would probably reinstate me." However, when August telephoned Stumer, "he said he had union problems and he couldn't hire me." (Emphasis supplied.) A few days later, August saw an ad (which ran in the "Long Island Press" from April 8-14) for tree work, answered it by telephone, and was told to "Forget about it" when his voice was recognized. (Stumer admitted getting the call.) About 2 weeks later, August went in person to the office, talked to Stumer, and again Stumer "said he had union problems and he couldn't rehire me." (Emphasis supplied.) When cleanup man Hall was "laid off," as he credibly testified, Manager Stumer told Hall that "at the time there was union difficulties and that he didn't have that much work. He said he had to lay us off, but . . . to keep in touch with him." (Emphasis supplied.) Hall repeatedly returned in person, and telephoned, but was not rehired. Some of the most revealing credited testimony came CURRENT CONSTRUCTION CORP. from cleanup man Frazier, who was absent (with sickness in the family) at the time of the March 31 mass discharges. He did not learn about his termination until Friday, April 7, when cleanup man Smith (who lived upstairs from him) came to his home, brought him his "few days pay coming," and reported that "They laid off a lot of the guys." Frazier then went in to work that Friday or the following Monday. Foreman Bruno Cupicha (a member of Sanitation Local 813) asked who were the drivers that day, and President Esbm answered that they were Marion Smith and Edward Carter (both members of Local 813). Frazier, who had spent much of his time driving to the dump, asked, "What about me?" Esbin said he did not have anything, but to come back the next day. Frazier returned home and, later that day, saw Smith driving a company truck to his home, "to get a sandwich or something," on the way to the dump. The next workday, Frazier returned for work and saw "a bunch of new guys' (from Laborers Local 713). It was then that Frazier met a representative from Smith's union, Sanitation Local 813. (Frazier, like other cleanup employ- ees, had been required on February 25, dung the Teamsters Local 282 strike, to sign application and checkoff cards for Local 813. However, the strike had been settled on the next workday, February 28, and Frazier and the others had not become members of Local 813. The Company had not checked off either their initiation fees or dues.) The Local 813 representative spoke to Manager Stumer on nonmember Frazier's behalf, and asked if there was some way Stumer could put Frazier to work. Stumer's response (as recalled by Frazier and not denied) was, "No, there is nothing, because the way it is tied up, we have to take so much men out of this union, and so many men out of this union" -referring to Sanitation Local 813 and Laborers Local 734. (Emphasis supplied.) Stumer then told Frazier to "come to my office tomorrow afternoon," but added, "I will let Smitty know." Frazier heard nothing further from Smith or Stumer. Thus, when the Sanitation Local 813 representative inquired early in April if Manager Stumer could return Frazier to work, Stumer at least implied that the Company -having laid off or discharged all of the cleanup employees except the leadmen-had decided (or agreed) to recall only the Local 813 members, and to employ only members of Laborers Local 713 as replacements. (I note that Office Manager Wagner claimed that in late April or early May Local 731 and Teamsters Local 282 agreed that Local 813 would have three chauffeurs and helpers on the job for the duration of the contracts. I discredit this testimony because it is inconsistent with the proposed collective-bargaining agreement which was then being discussed in negotiation between the Company and Local 282, excluding only "present sanitation truck drivers." But, even if Wagner's testimony were true, it would not explain Stumer's statement to Frazier, early in April, about a decision or agreement to recall or hire only members of Locals 813 and 731.) The payment of additional dues and supplemental benefits to Local 813 is mentioned below. Accordingly, I find that when the Company discharged and refused to rehire the cleanup employees, it had knowledge of, or at least suspected, that they constituted the majority of Teamsters Local 282's support. 729 In passing, I note that the Company has made some erroneous assertions in its brief. It contends that "immedi- ately after" the February 28 recognition agreement, the Company "began withholding" Sanitation Local 813 initiation fees and dues on behalf of five discharged cleanup employees, Carter, Smith, Sanders, Blacknall, and Hall. It also contends that, even if it believed that some or all of these were Teamsters Local 282 supporters on February 28, it is clear that, "as Stumer and Esbin and Warren Wagner testified," the Company, "at the time of the discharge-some five weeks later-believed that these men were now Local 813 men." To the contrary, the evidence shows that the Company did not begin withhold- ing their initiation fees and dues "immediately after" February 28, or at any time before the March 31 mass discharge . Furthermore, Manager Stumer, President Esbin, and Office Manager Wagner did not testify that they believed Sanders, Blacknall, and Hall were Local 813 members at the time of their discharge . Both Stumer and Esbin named only Carter and Smith as being Local 813 members. Wagner explained how it happened that the Company deducted from their backpay, weeks after March 31, the $36 in dues for Local 813 members Carter and Smith (for 3 months, April-June), and $250 in initiation fees and $94 in dues (for 8 months, November 1971 through June) for nonmembers Sanders, Blacknall, and Hall. Wagner testified that after the cleanup employees were required to sign the Local 813 checkoff cards on February 25 (during the strike) he never saw the cards after that, and no request was made for payment of any dues for them until late April or early May, when the city comptroller's office was requiring the Company to give the employees backpay for the unpaid prevailing wages and benefits. Wagner testified that at that time Local 813 claimed that it was entitled to the initiation fees, dues, and $1.87 an hour welfare and pension payments from November 1971 for three "helpers," whom the Company then chose "at random" (Sanders, Blacknall, and Hall) from the cleanup employees who signed checkoff cards on February 25 . I therefore reject the Company's contention that on March 31 it believed these three cleanup employees were members of Local 813. I note that Sanitation Local 813 continued to bill the Company for supplemental benefits for its three members (Carter, Smith, and Supervisor Cupicha), and for three other unidentified helpers among the new cleanup employ- ees who were members of Laborers Local 731. The payroll records in evidence through June 14 show that the Company made no weekly welfare and pension payments for any of the seven new cleanup employees (nor for trimmer Lukowski, evidently because the office manager erroneously believed that Lukowski was a cleanup employ- ee). I also note that one of the Company's exhibits reveals that Local 813 billed the Company for $216 in dues for July and August : that is, dues at $12 a month for nine employees, even though Local 813's only members on the job were Carter, Smith, and Cupicha. (The evidence does not disclose what, if any, understanding or agreement there was concerning employees being hired from one union and dues being paid to another union .) I consider this evidence, not only in connection with the evidence of company 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge (including Frazier's credited testimony that Manager Stumer refused to rehire him, stating that "we have to take so much men out of this union, and so many men out of this union"), but also in connection with the evidence of company motivation for the mass discharge. The evidence indicates that the Company=by eliminating supporters of Teamsters Local 282, hiring members of Laborers Local 731, and paying dues and supplemental benefits to Sanitation Local 813 for nonmembers-was thereby able to pay the supplemental benefits for only a portion of the cleanup employees, at a saving of $1.87 an hour on the others, despite the ruling by the comptroller's office. (Stumer may have had this in mind when he made the above-mentioned statement to the Local 282 employee organizers in late May that "there was no room for Local 282" and that he "couldn't afford the rate of Local 282." Not only were Local 282's welfare and pension benefit payments higher than $1.87 an hour, but any agreement with Local 282-which was then seeking to represent "all employees covered by the recognition agreement"-un- doubtedly would require the payment of welfare and pension benefits for all the employees in the bargaining unit, omitting none.) 3. Fear of "doubling up" and shortage of trimmers In early March, when the city comptroller's office ruled informally that the Company must pay the prevailing rate of its cleanup employees, the Company was faced not only with the requirement to raise wages, but also with a dispute between Teamsters Local 282 and Laborers Local 731 over their respective jurisdictions (despite the joint recognition of Local 282 and Sanitation Local 813 in the February 28 recognition agreement). The Company's major concern over the dispute was that there be no "doubling up" on the bucket truck. As expressed in the Company's brief, "Since the bucket truck would be driven from one tree to another, and then remain motionless while the cutting was being done, the industry practice was for the driver to get out of the truck and do pruning. If Locals 282 and 731 both insisted on representing this man, the result would be two men instead of one-a 282 driver who would spend most of the day sitting and waiting to move the truck-and a 731 pruner." Upon the intervention of the Teamsters and Laborers Internationals, the fears of the Company were magnified. Upon instructions from its International, Teamsters Local 282 proposed to agree with Laborers Local 731 in writing that Local 731 would have jurisdiction over all nondriving trimming and cleanup employees, provided that Local 282 would have jurisdiction over certain drivers (including the bucket-truck drivers). There was a danger that such a division of the work could lead to "doubling up." Meanwhile, the Company was having difficulty finding qualified trimmers (pruners). Before the February strike, Laborers Local 731 had refused to refer trimmers unless the Company signed the Local 731 multiemployer agree- ment. The Company was placing newspaper ads for trimmers, and the latest ad (running from March 22-27) got no response from qualified applicants. In the meantime, as admitted by President Esbin, Local 731 was "constantly requesting me to sign a contract." When asked by company counsel if he had "meetings with Local 731" after the recognition agreement was signed, Esbin answered, "Yes." He then testified what happened "at that meeting": Local 731 telling him that "if I signed this contract, any problems I have got . . . with [Teamsters Local 282 Organizer] Bai, will be straightened out, and that will be the end of it." (Upon being asked. when this particular meeting was held, Esbin testified, "I can't honestly say.") I infer that at least some of the Company- Local 731 meetings occurred soon after the signing of the recognition agreement, which made no reference to Local 731's jurisdiction. It was in these circumstances that the Company, without any prior notice to any of the cleanup employees, suddenly discharged all of them (except the two leadmen). Then after the cleanup employees were off the payroll for about a week, Laborers Local 731 began referring both trimming and cleanup employees to the job. Within a week, the Company had reinstated the two members of Sanitation Local 813. However, the Company refused to recall or rehire any of the other cleanup employees, a majority of whom had supported Teamsters Local 282. Furthermore, as already found, the Company took unlawful actions to undercut the remainder of Local 282's support. Irrespective of the motivation, the results of the Compa- ny's actions were to put the Company in a better position to get referrals of experienced trimmers from Laborers Local 731 (the union which represented such employees in the area), while at the same time, eliminating the jurisdictional problem (and the danger of "doubling up"). I now consider the evidence of the Company's illegal motivation. 4. Evidence of discriminatory motivation a. Rotating crews President Esbin and Manager Stumer gave conflicting "explanations" of why the Company laid off or discharged the cleanup employees on March 31, and assigned the trimmers on a rotating basis for a week to clean up their own trimmings, before getting referrals from Laborers Local 731. At one point, Esbin indicated that the employees were laid off to determine if new employees would be more productive, testifying "we were previously prepared to call them back if the new men did not prove out to be as far as our expectations." To the contrary, Manager Stumer testified that the cleanup employees were laid off in order to try the rotating system as an experiment for a week and, if the experiment did not work, "I would call these people back." According to him, the experiment did work, but he then discovered that additional trimmers were not availa- ble to continue the rotating system. He testified that he had placed an ad for trimmers about a week earlier in the "Long Island Press," looking for trimmers to work as ground men, but "when I saw that we had an ad in the paper . . . over a week, and we had no response to it," he called Local 731 "near the end of the week" (about April 6 or 7) "and asked them for some men for the following Monday or Tuesday." (Esbin testified that the Company CURRENT CONSTRUCTION CORP. 731 did not advertise for ground men because "We had tried the week after the layoff an experiment which Mr . Simmer had come up with as a suggestion . . . it was like a work of art. And this is why we tried to get more climbers" for "a rotating ground crew.") I find that these explanations are fabrications . It is clear that the Company had no intention of recalling any of the cleanup employees "if the new men did not prove out," because it did not do so when some of the new employees proved to be unsatisfactory and when the cleanup crews were working shorthanded , necessitating much overtime. It is also clear that the rotating system was not successful . As the Company's own witness (trimmer Warner) testified, he refused to do any of the cleanup work, "I didn't want nothing to do with cleaning up... . The men . . . were hired to trim trees , not to clean up .. . they didn't like it, because . . . they weren't making any money . . . any bonus money. They were getting their regular pay, but . . . you could get a hundred dollars a week bonus . . . if you have a good week." (The bonus records were not produced .) Moreover, the Company was aware, before the so-called experiment began , that trim- mers were not available. Contrary to Manager Stumer's testimony, there was no ad in the newspaper at the time, and the last ad (which ran from March 22-27) produced no results. (The next ad ran from April 8-14, when Local 731 referred only one trimmer.) I find that the rotating system was clearly a subterfuge to justify the discharge of the cleanup employees as a group, and that the loss of production that week contributed toward the delay which later resulted in the postponement of the startup of the tree removal work. b. Falsified payroll records Although Sanitation Local 813 members Carter and Smith were reinstated as cleanup employees within a week after their March 31 discharge with other cleanup employees, the Company failed to show them on the payroll until May 25. This was clearly a distortion of the records to enable the Company to argue that the new cleanup employees were more productive. As already found, discharged employee Frazier saw Smith driving a company truck about a week after the March 31 mass discharge, and was told by President Esbin soon thereafter that Smith and Carter were the drivers. When Cleanup Leadman Lacker was shown at the trial the payroll records, indicating that Carter and Smith did not work for nearly 8 weeks between March 31 and May 25, his response was: "If they were not working, who was taking the trucks to the dump? I know I certainly wasn't. . . . And for what the book states, that they were off, and if they were off, how would trucks get to the dump? It don't make sense." Undoubtedly this leadman (who impressed me as being an honest witness ) would have known if these two cleanup employees had been absent nearly 2 months. A company exhibit, introduced on the fourth day of the trial, states that "Yes," Carter and Smith were "Discharged," with the notation that they were "Recalled at later [unspecified ] date." When Manager Stumer was asked by company counsel, "Which employees did the Company discharge on that Friday," he named Carter and Smith first. Later when asked about the purported 2-month absence, Stumer testified. "To my recollection, it wasn 't that long, but if that is what the records show, then it must be right. . . . As I say, I didn't remember it to be that long a period, but obviously it was." (Emphasis supplied.) Moreover, Office Manager Warren Wagner confirmed that Carter and Smith were working in April and early May, when the Company was negotiating with Teamsters Local 282 for an agreement covering Lacker, Smiarowski, Warner, and Laws. Upon being asked about the meaning of the provision , "This Agreement shall not apply to present sanitation truck drivers," in a May 12 draft of the proposed agreement, Wagner named Carter and Smith as being `present sanitation truck drivers." (Emphasis supplied.) The significance of this attempted deception becomes apparent when the payroll hours of work are examined. On May 25 (the beginning of a new pay period when the names of Carter and Smith were returned to the payroll record), and for the next 3 pay periods (the last payroll records in evidence), Carter and Smith were working longer hours than any other employee (inasmuch as they were usually going to the dump after the other cleanup employees finished for the day). On May 25 and the next 6 workdays, both of them worked from 11 to 15 hours daily, averaging 5.6 hours of daily overtime. (I also note that the name of the new messenger, Nathan Laws, is omitted from the first payroll period following the mass discharge, even though the above-mentioned company exhibit states that "No," Laws was not "Discharged," and Manager Stumer explained that Laws was not discharged because "he was not actually part of the ground crew.") In still other respects, the Company apparently kept "two sets of books ." Although the payroll records show the daily hours worked, the overtime pay, the welfare and pension payments, and other facts , they do not show the production bonus given the trimmers. (It was revealed on the eighth day of the trial that the trimmers were paid a bonus of $1 for every tree trimmed each day after the first 10 trees. The bonus is paid weekly.) As already mentioned, the Company did not include cleanup employees Helback and Peterson on the payroll records before the strike, nor show temporary employee Stiers on the payroll records. The omission of Peterson's name is discussed later. c. Concealment of changes When giving the Company's defense in the case, Manager Stumer claimed that the new cleanup men did ,.the job two and a half times as fast" as the discharged employees had done the work, and President Esbin claimed that the difference in efficiency was "Like night and day," and although "we did have some overtime .. . we made more money on the job." But when testifying about the purported greater efficien- cy after the mass discharge, the company witnesses did not candidly reveal the various changes which the Company made in a vain effort to assist the new employees to keep up with the cleanup work. It was not until near the end of the 8-day trial, on rebuttal, that it was revealed that after the March 31 mass discharge the Company began requiring the trimmers to do 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of the cleanup employees' work. Cleanup Leadman Lacker, when recalled, credibly testified that after March 31, for the first time, the trimmers "would stack their brush and it was a lot easier for us to chip it up." This was confirmed by trimmer Warner, when recalled as a company witness. He testified that after the layoff the Company "had this big meeting" with the trimmers, and "it was understood" that the trimmers, before proceeding to the next tree, would "cut the big limbs up" a few times, "push them into the street," and "stack their brush." He estimated that this would take 4 or 5 minutes for each tree. (It is undisputed that trimmers were paid a bonus of $1 a tree for each tree exceeding 10 a day, and "you could get a hundred dollars a week bonus [that is, for an average of 30 trees a day], or more, if you have a good week." At 4 or 5 minutes each tree, that would amount to 40 to 50 minutes a day when trimming 10 trees, or 2 or 2 1 /2 hours a day when trimming 30 trees.) Warner first testified that this would result in a saving of maybe a "couple of hours" a day for the cleanup employees, and then changed his answer to between 1 and 1-1/2 hours. (His credibility, when first called as a General Counsel witness and later as a company witness, is discussed later.) Warner testified that the trimmers had never stacked their brush before, although the inspectors had made them clean the sidewalks and driveways. When recalled as a witness, Manager Stumer admitted that "after the layoff" or "about the time of the layoff," he did instruct the trimmers to "use their chain saws . . . and make a couple of cuts in these big pieces of brush . . . prior to piling it up in the front of the tree," but testified, "I don't personally think it had anything to do with the layoff." (I discredit the denial.) Cleanup Leadman Lacker also credibly revealed on rebuttal that after March 31 "Whenever we were behind" the Company would knock the trimmers off an hour early and send them back to help the cleanup employees for an hour. This had happened only once or twice before March 31, and that was in December 1971; they "used to just cut and cut and didn't really want to come back . . . they just wanted to go and get their bonus." Other changes were made at the time of the mass discharge to improve the efficiency. The Company fur- nished an extra chain saw for each of the two cleanup crews. (Manager Stumer gave much false testimony about permitting only the two cleanup leadmen, and none of the discharged employees, to use chain saws in their work. Cleanup man August's regular job for 3 weeks before March 31 was to use a chain saw to cut up logs and load them on a dump truck he was driving. Supervisor Cupicha-who did not testify-issued the saw to him to use, and Stumer observed him using it. Cleanup Leadman Lacker credibly testified that all of the cleanup men had used the chain saws, that some of them did so regularly, that he never heard anyone from management tell any of them not to operate the saws, and that some of the cleanup employees did part of the sharpening and maintaining of the saws. Finally, when the Company called trimmer Warner as a rebuttal witness, Warner readily admitted that "the men on the ground crew" used chain saws, stating that "They had to . . . every day, during the day.") Also to speed up the work, the Company began providing, when available, a "follow-up" truck for one of the crews to use. (This enabled the four-man crew to be divided, with two employees putting the larger trash in the chipper, and the other two employees sweeping up the smaller trash and putting it in a dump truck-lessening the chances of putting pebbles in the chipper, dulling the blades.) In addition, one of the sanitation (garbage) trucks was converted into a regular trash truck by removing the compression unit, boxing in the rear, and making more loading space. (Sanitation trucks were not used by other tree contractors for this type of work. Wagner Carting had used these old sanitation trucks in the rat control program.) As cleanup man August credibly testified, they had had a lot of trouble with the hydraulic lift on one of the sanitation trucks, "You couldn't pull the thing, you had to get inside the truck . . . and hit it up, or it wouldn't come down right. I wasted a lot of time doing that" (before being assigned to cut and load logs on a dump truck). Explaining the improvement in the loading procedure after one of the sanitation trucks was converted "right after" March 31, Leadman Lacker credibly testified that "the chips would come out of the chipper and right . . . into the truck. The chips wouldn't go into a hopper where a man had to be there to pull levers to put it inside the truck, it automatical- ly would just shoot in there and this would save a lot of time, at least an hour or two of the man not to stay and pull levers and get jammed in the packer.... You also save the time of not having to sweep up . . . because with the hopper, the chips blow against the hopper and they splatter, go all over the place." (Although the Company converted only one of the sanitation trucks at that time, it stopped using sanitation trucks in October or November -whereupon Sanitation Local 813 disclaimed jurisdiction over any of the employees.) When recalled, Manager Stumer first admitted that the conversion of the sanitation truck speeded up the loading process "a little," then denied it, and next admitted it, but denied that the overall efficiency was improved by the change. (I discredit his denials.) Also after the mass discharge, the Company began keeping the equipment in better repair. Before March 31, as Leadman Lacker credibly testified, the blades on the chippers would not be sharpened at regular intervals: "they used to bring chippers out on the job" and the blades on both machines "would be dull." Manager Stumer would say to try and work with one, while one was taken back to the garage or the blades would be changed there on the job-losing time during working hours. When using a chipper with dull blades, "You would fight it. It would not take the branches and you wound up falling so far behind it was unreal." (As credibly described by cleanup-man August, "when you pull a piece of wood in, it normally pulled it in," but "if the blades are dull, you have to force it. Eventually they get so bad it takes a long time, and that is when they changed them.") But after March 31, the Company had the blades changed every Saturday, as it originally did when the job began. Manager Stumer testified that earlier President Esbin had personally gone to the gas station every Saturday morning and changed the blades and serviced the chipping machines. (The blades were always sent out for sharpening.) But after they started CURRENT CONSTRUCTION CORP. working in Brooklyn, trimmer Graue would "change the blades at his convenience," or the Company's convenience. Stumer testified that "Normally," when dull blades were mentioned to him by Graue, Supervisor Cupicha, or Lacker, "if they were dull enough they couldn't work with the rest of the day, we would send the truck back to the gas station and pick up a fresh chipper with sharp blades. If it could last out the day, they would use it for the rest of the day. . . . On a rare occasion we might have Donald Graue service a vehicle on the jobsite." Thus, when so testifying, Stumer admitted some of Lacker's credited testimony about dull blades (although elsewhere, when asked if the Company would delay the installation of sharp blades and allow the jobs to continue with dull blades, he answered, "No, that's not profitable doing things that way. No, definitely not.") Stumer denied that the chipper blades were changed on a regular basis, every Saturday, after March 31, or more often than before. Graue, who testified earlier as a company witness, was not recalled to testify about this. I discredit Stumer's denials. I note that when recalled to testify Stumer produced invoices from one supplier, claiming that they showed every time the chipper blades were bought or sharpened, and "That's the only man we did business with." However, a tabulation of these invoices indicates that the Company must have been dealing also with another supplier before or after March 31. It shows that invoices received for about the first 3 months of operation, through January 29 (approximately the time President Esbin was changing the blades every Saturday), there was a total of 26 blades purchased or sharpened, over 8 a month. Thereafter, the tabulation shows only 4 in February, 5 in March, 5 in April, 3 in May, 7 in June, 3 in July, none in August, 3 in September, and 2 in October-an average of less than 4 a month in a 9-month period. (Concerning the reliability of the Company's documentary evidence, I have found above that the Company kept inaccurate payroll records, falsifying them for purposes of deception.) Furthermore, after March 31, the Company placed Cleanup Supervisor Cupicha on a commission basis, as a means of speeding up the work. As explained by Office Manager Wagner, this change would give Cupicha an incentive to "push the men a little bit harder." Upon presenting its defense at the trial, the Company gave full credit to the replacement of employees for increased efficiency-without giving even a hint about most of these changes. d. Discharged as a group (1) Sudden action During the 3 or 4 weeks, between early March when the Company learned it would have to increase the cleanup employees' wages and March 31 when it discharged them, the Company said nothing to the two leadmen or the other cleanup employees about production problems or increas- ing production. Although the Company instituted the above-mentioned changes after the mass discharge to speed up the work, it neither mentioned nor introduced any of these changes before March 31. On Friday, March 31, Manager Stumer called all the 733 cleanup employees (except the leadmen) to his office, and assigned different reasons for laying them off. (At the trial, the Company introduced an exhibit which it had prepared, stating that the employees were "Discharged." In its brief, the Company refers to it as a layoff.) Stumer variously explained, to different employees, that he was having union difficulties, that the work was slow, certain men were not working, that the Company was losing money, etc. He told August that he was a good worker, and to call him back in about a week and he would probably reinstate him. (When August called back, Stumer said he could not rehire him because of "union problems.") Stumer told others that he would call them, or they should keep in touch. About a week later, Frazier (who was absent on March 31) learned about the mass discharge, and twice tried to return to work. The first time, as discussed before, President Esbin said that Carter and Smith (Sanitation Local 813 members who had already been reinstated) were the drivers that day, and the second time, Stumer said there was nothing for Frazier because "we have to take so much men" from "this union" (referring to Local 813) and "this union" (referring to Laborers Local 731, whose members the Company was hiring as replacements). As already mentioned, President Esbin testified that the Company was prepared to recall the cleanup men "if the new men" (referring to Laborers Local 731 members) "did not prove out," whereas Manager Stumer testified, "I would call these people back" if the 1-week, rotating crew experiment (involving already employed trimmers, not new employees) did not work. Manager Stumer was asked at the trial why he had laid off cleanup man Carter (a Sanitation Local 813 member who regularly drove to the dump). Stumer answered that "when we made this decision, we just put everybody in the category of a group, and when we had to lay off, we just laid them all off. We didn't start digging into that person or this person or the other person, really." When asked if he did need someone to drive to the dump, Stumer answered: "I don't remember the reason, quite honestly . . . that we didn't keep him on at the time.... I personally had no complaints against him at the time.... He was out for a while and we did hire him back . . . he worked for us until only three weeks ago when the pruning job broke up." (Emphasis supplied.) When later asked why he laid off Carter and Smith, he answered: "Personally, I can't think of any reason at this time, no." In an effort to justify the mass discharge, the Company in its brief argues: "one fact that emerges inescapably from the record is that Respondent had a very low opinion of the groundcrew, with the exception of [leadmen] Lacker and Smiarowski." (2) Number discharged The General Counsel and the Company agree that the March 31 layoff or discharge included 11 cleanup employees: Edward August, Benjamin Blacknall, James Carr, Edward Carter, Grady Frazier, Raymond Hall, Floyd Jones, Richmand Pierre, Herbert Sanders, Marion Smith, and James Sweeney. The complaint alleges that the Company discriminatorily laid off a 12th employee, Melvin Peterson, who (as credibly 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified by Leadman Lacker) was a slow-working, old person with heart trouble. Peterson's name never appeared on the Company's payroll. Office Manager Wagner testified that Peterson's name was omitted at his request to permit him to continue receiving welfare or unemployment benefits while working. The evidence does not reveal his wage scale, and the Company contends that it could find no records of how much he worked or even how much he was paid (despite the tax and other implications). Although the parties stipulated that he was employed at the time of the strike, the General Counsel failed to prove how many days he worked after the strike, whether he worked full- time, or whether he was employed on March 31. He did not testify. Manager Stumer did not name him when listing those "discharged," and denied being aware if Peterson was working at that time. In view of the failure of the General Counsel to prove that Peterson was discharged, and in view of the clear economic justification the Company had for discharging him (if still employed) rather than paying him the prevailing rate, I dismiss the allegation in the complaint that Peterson was discriminated against. Thus, 11 cleanup employees were laid off or discharged on March 31, and one person is in doubt. e. Inexperienced replacements By the time they were discharged on March 31, all of the cleanup employees had much experience on the job. (The work involved stacking the trimmings from the trees, cutting the larger limbs in shorter lengths with a chain saw, loading logs in a truck, placing trimmings in the chippers, operating the levers on the sanitation trucks-to operate the compression mechanism, sweeping up and loading the remaining trash, moving up the trucks, and driving to the dump.) Carter, Frazier, Pierre, Smith, and Sweeney had been working on the job since November. (While a messenger, Sweeney spent an estimated 20 to 40 percent of his time doing cleanup work.) Blacknall, Hall, Jones, and H. Sanders had worked since December. Carr was hired on February 1 and August on February 7. Contending that the Company was seeking employees with former tree experience (which none of these 11 employees had), Manager Stumer and President Esbin endeavored to leave the impression that the replacement employees were "experienced" tree men. Stumer, when asked if the replacements had "prior experience" in that kind of work, answered, "To the best of my knowledge, yes, it was represented to us that they did." He testified that although he did not interview the cleanup men referred by Laborers Local 731 on April 10, "They were sent down as experienced help." At another point, he testified, "We tried the rotating system with the climbers going on the ground, which proved to be very effective. We subsequently hired new ground men with experience, and it proved out to work very well." (Emphasis supplied.) When the company counsel asked Esbin what kind of employees Local 731 supplied them, he answered, "They supplied us with men that were experienced ground men." (Emphasis supplied.) The facts are far different. There were seven new employees shown on the payroll as cleanup employees between April 10 and June 14. (An eighth, not shown on the payroll, quit or was discharged after 2 hours.) The only one of these new employees who had any prior experience in tree work was Donlon, who applied on April 10 in answer to the company newspaper ad. (He was absent with an injury from April 18 until May 16.) Two of those referred by Local 731 were Belinsky and Morrongello . As revealed by trimmer Warner upon being recalled as a company witness, either Manager Stumer or President Esbin instructed Belinsky and the "old fellow" with a "bad back" (Morrongello), when hired on April 10, to go with Cleanup Leadman Smiarowski and Warner, who taught them how to use a chain saw "and the proper way to do the job." Stumer belatedly admitted that Morrongello was not satisfactory and was terminated (on April 21). Soon after Morrongello left, Stumer hired (or said he would try out "for a couple of days") two Mazzanno brothers, who went to the garage looking for work and who admitted having no experience. One of them, as described by Stumer, "was a joke. I went over to talk to him about two hours after he started . . . he said this is not my bag, and that was the end of that." He was terminated (and never placed on the payroll). Later, in the latter part of June, Stumer admittedly hired as a ground man (upon Warner's recommendation) an inexperienced person who was "working for Ideal Toy in Jamaica, but I said I would give him a try." The new employees were either members of Local 731, or they joined after being hired. Thus, rather than rehiring any of the experienced employees discharged on March 31, the Company was hiring inexperienced persons "off the street," referred by Laborers Local 731, or from whatever available source. I. Comparative ability of old and new crews With the exception of three, all the cleanup employees hired between November 1, 1971, and the following June 14 were inexperienced in tree work. The three exceptions were the two leadmen , Lacker and Smiarowski, who were hired about the second week in December, and Donlon, who was hired on April 10. Admittedly, Manager Stumer paid little attention to the cleanup employees. In his words, "I was more interested in the topping crew . . . than the cleanup crew. I didn't really pay that much attention." When the Company began the job, neither he nor the other company officials had any experience in such tree work. He spent most of his time with the trimming employees (who were experienced), while learning the operation with the assistance of an outside consultant . There was some criticism from one or more of the trimmers that the cleanup employees were not experienced, and that the Company would do better with experienced men. (Even the cleanup supervisor, Cupicha, had no prior experience, and was being paid only $4.20 an hour.) Finally, after operating about 6 weeks, the Company hired two qualified, experienced leadmen (Lacker and Smiarowski), who led the cleanup work. Still, the Company paid little attention to improving the efficiency of the operation-while paying all the cleanup employees (except the leadmen) less than half the prevailing rate. The Company placed at least one limited-service employee on the job. (Peterson had suffered a heart attack. He-and also Helback for an undisclosed reason-were not shown CURRENT CONSTRUCTION CORP. on the payroll records.) Although many of the cleanup employees regularly used a chain saw in their work (after Lacker and Smiarowski were hired to lead the work), the Company furnished only one saw for each of the two cleanup crews, until after the strike when first Lacker began using an extra saw, and later cleanup man August was assigned one to cut up logs. (Each of the two cleanup crews was given another chain saw after March 31.) After moving the operation to Brooklyn in early February, the Company discontinued its practice of changing the chipper blades every Saturday, and the cleanup employees were repeatedly slowed down by having to use a chipper with dull blades. (After the March 31 mass discharge, the Company began changing the blades every Saturday again.) The Company, unlike its competitors, was using mostly sanitation trucks to haul away the trimmings. The compression mechanism on one of them particularly slowed down the work. (After March 31, the Company converted one of the sanitation trucks into a regular trash truck. In October or November, it discontinued using sanitation trucks.) Although the Company used a separate dump truck to haul away the logs, it required the employees to place all the remaining trimmings in the chipper. (After March 31, the Company provided, when available, a separate follow-up truck in order that one of the crews could be divided, with two employees staying behind to sweep up and load the smaller trash.) Further- more, the cleanup supervisor, being paid only $4.20 an hour, had little incentive to have the work speeded up. (After March 31, he was placed on a commission, to "push the men a little bit harder.") It was under these circumstances that the Company, when informed in early March that it must pay the cleanup employees the prevailing rate, protested that they were not "experienced" and were not productive enough to justify the higher rate. Manager Stumer twice attempted to get some "relief" from Teamsters Local 282 Organizer Bai-the second time, offering him a special inducement for a lower rate, according to Bai (as discussed later). Failing in these efforts, the Company discharged 11 or 12 of the employees, instituted the foregoing changes to improve the efficiency of the cleanup operation, hired a smaller crew after rotating the trimmers for a week, and transferred a substantial part of the cleanup work to the trimmers (while eliminating virtually all of Local 282's employee support). Then at the trial, the Company praised the new cleanup employees as "experienced" and "motivated," and gave a low appraisal of most of the employees who had been discharged. At one point, Manager Stumer testified that during the 1-week rotating experiment, and since then with the new crew, there was no question that "an experienced man is going to give me . . . two and a half times the amount of work of the inexperienced men that I had working on the ground crew prior to that." (The compara- tive production of the old and new crews is discussed later.) In addition to giving the false testimony that he did not allow any of the cleanup employees, except the leadmen, to use a chain saw, Manager Stumer impressed me as being less than candid in describing the qualifications of the 735 discharged employees. He testified that employee Jones was "about the only one I can honestly say, in my opinion, would have developed into a good worker" if he had put a lot of effort into developing them. (President Esbin testified that Jones, and "possibly" August, "could have made it.") Both Jones and August were discharged and not rehired. (I note here that for an undisclosed reason trimmer Warner became a much less candid witness between the time he testified for the General Counsel and the time he was recalled as a company witness. The first time on the stand he testified that about a couple of months before the February 22-28 strike he talked to Stumer and "I didn't come right out and say they were no good. I says . . . he can get better men" than the cleanup employees working at that time-without wanting to criticize them. When recalled as a company witness, he appeared to be forthright in some respects, but he evidently gave some fabricated testimony concerning the discharged employees. He testified that he mentioned to Stumer "a few times" that Stumer should get some men that "know what they are doing," that although he only occasionally observed the ground crew, he knew "they were not adequate men for the job," they were "slow," they had "no initiative," they were "no good" for this type of work (but later changing his testimony, to apply to "most of them"), and particularly named Jones as not being qualified "in this type of work," claiming that he saw Jones run the chain saw into the ground at least six times . Thus, he singled out as being unqualified the employees whom both Stumer and Esbin named as having the most potential . I find this belated appraisal of the discharged employees to be fabricated.) Concerning the three employees who did most of the driving, Stumer claimed that one of them (Frazier) was a heavy drinker, and another (Smith) was "a considerably heavy drinker at that time." He did not explain why, if this were true, he allowed Frazier to drive, or why he not only allowed Smith to drive, but reinstated him with the other Sanitation Local 813 member, Carter. (Leadman Lacker testified that there was some dunking on the job, but it was beer, which a few of the men bought with their lunch. Stumer had no objection, because Stumer himself sent some beer around for them to drink on hot days.) When Stumer was asked why he laid off Carter (who he admitted was a good employee), Stumer asserted that "we just put everybody in the category of a group and . . . laid them all off. We didn't start digging into that person . . . or the other person, really." He also testified, "I am not accusing anybody of standing around, they did make an effort to give us a day's work, but the day's work that they did give us, compared to an experienced man, in reality, was less than an experienced man. . . . it was decided . . . if we are going to make the change, let's make the entire change." He admitted that he did not warn any of them about being laid off if they did not work faster or better, and testified that he did not recall about the work of several of them. Of all the witnesses, Cleanup Leadman Lacker was in the best position to compare the qualifications of the members of the old and new crews. He worked daily with the employees, both before and after March 31. Furthermore, I closely observed him on the stand, and he appeared at all 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times to be a forthright and honest witness. (I note that when he was asked whether the new cleanup employees were "less far behind" the trimmers than before, he answered that they were the same or closer-apparently giving his honest recollection at the time. When later asked about the many hours of overtime worked by the new employees, he testified that this meant that they were that far behind the trimmers-who were not working overtime. As discussed later, the payroll records show that in March, before the mass discharge, there was comparatively little overtime worked.) Leadman Lacker described the work of each of the discharged employees, and positively stated that, with the exception of Peterson, all of them were very good employees, and were as good as the new employees. (He was not asked whether Peterson was working on the week of the mass discharge, or how regularly Peterson worked.) He estimated that cleanup man Sweeney, before being replaced by Laws as the messenger (on March 14), had worked about 40 percent of his time with the ground crews, feeding the chipper, using the chain saw to cut up the wood, stacking the trimmings, and sweeping. Stating that Sweeney was a "little wild driving that station wagon," Lacker testified that he thought Sweeney was a better cleanup man than Laws (who also worked at cleanup about 40 percent of the time), and was clearly as good as the new employees hired after March 31. (1 discredit Stumer's claim that neither Sweeney nor Laws did cleanup work while serving as a messenger, and that Sweeney was discharged because of his unsatisfactory service as a driver. Sweeney had not been discharged when he was replaced as messenger ; he was reassigned and was working full time as a cleanup employee.) Lacker demed that before the layoff, in February or March, he had any complaints from management concerning any of the cleanup employees working with him. I credit this testimony. g. Comparative production (1) Number of employees working In order to get as accurate a comparison as possible of the number of employees working before and after March 31, I have taken into consideration the number of employees performing any work on full workdays (when five or more employees worked as long as 8 hours), for the 2 weeks preceding March 31 (when the decision to discharge the employees was apparently being made), and for the approximately 10 weeks from April 10 (when members of Laborers Local 731 were first employed as cleanup men, along with the two leadmen, and the two Sanitation Local 813 members, Carter and Smith-who were omitted from the payroll) until June 14 (the end of the last pay period in evidence). Calendar weeks are used, in view of the change in the payroll period during this time. The cleanup employees were August, Belinsky, Blacknall, Carr, Carter, Donlon, Frazier, Hall, Jones, Lacker, Mazzarino, Morrongello, Peterson, Pierre, Russo, A. Sanders, H. Sanders, Smiarowski, M. Smith, Sweeney, and Vega. Giving the Company the benefit of any doubt about how many were working before March 31, 1 have included Peterson, even though the General Counsel failed to prove how much he was working, or whether he was still working at the time of the discharge. I include Sweeney after he became a full-time cleanup employee on March 27. (He and Laws, who was hired on March 14, worked 8 hours on the preceding Friday, March 24, whereas the cleanup employees worked 9 hours that day. Manager Stumer testified that Sweeney and Laws drove together for a week or two. I assume that Sweeney was still "showing around" the new messenger on March 24.) 1 do not include trimmer Graue, whom the Company admittedly assigned to work as a cleanup employee when "the situation required," although he undoubtedly worked more as a cleanup employee after April 10, when the Company was working shorthanded, with much overtime, in the cleanup opera- tion. The trimmers were Bradley, Bush, Cain, Carmen, DeSanto, DeTillio, Fusco, Gilligan, Lombardo, Lukowski, McHugh, S. O'Seay, W. O'Seay, Siderious, R. Smith, Thompson, Traynor, and Warner. For the 2 weeks preceding the discharges, there was an average of 10.9 cleanup employees working, and 10.66 trimmers working. For the 10 weeks after the new employees began to work (April 10 to June 14), there was an average of 8.375 cleanup employees working, to 10.675 trimmers working. Thus, for the 2 weeks before the mass discharge, slightly more cleanup employees were working on the average than trimmers (10.9 to 10.66), whereas after the discharge, there were 2.3 cleanup employees fewer (8.375 to 10.675) for the full period of about 10 weeks, than the trimmers. (2) Hours worked The number of hours worked cannot be computed that precisely, because of the Company's falsification of the records-never listing Peterson on the payroll records, and omitting Carter and Smith for about 7 weeks after they were reinstated. Furthermore, the Company did not keep a record of when trimmer Graue was assigned to cleanup as "the situation required," or how many hours the messenger worked on cleanup. Giving the Company the benefit of any doubt, I have estimated Peterson's hours as being 8 or 9 hours each day, as worked by full-time cleanup employees, during the 2 weeks preceding the discharge. Although the payroll records show that Carter and Smith worked longer hours than any other cleanup employee after their names were again listed on May 25 (because they usually went to the dump after the other employees finished for the day), I have estimated their hours from April 10 through May 24 as being the same as those of one of the new cleanup employees, Belinsky. Also, in order to seek a comparative cost to the Company, I have included at time and a half the overtime hours worked before and after the discharge. Figured on this basis, the estimated number of hours worked by the cleanup employees for the weeks of March 20 and 27 was 772.5 hours, to 648.5 hours worked by the trimmers. That amounts to 1.192 cleanup hours for each trimmer hour. For the 10 weeks from April 10 to June 14, the estimated cleanup hours were 3,733.62, to 3,117.5 hours worked by the trimmers. That amounts to 1.1976 cleanup hours for each trimmer hour-just slightly more than the CURRENT CONSTRUCTION CORP. 1.192 the discharged employees were working. (The comparative ratio of cleanup to trimmer hours , for the first 4 weeks after April 10, are respectively: .899, .927, 1.248, and 1.541 . This indicates that a large amount of the cleanup employees work was being done by the trimmers for the first 2 weeks, in accordance with Leadman Lackey's testimony, and contrary to the testimony of trimmer Warner when called as a company witness. Only four replacements were hired on June 10.) Thus, when taking into account the overtime hours as time and a half, I find that the new cleanup crews were working a slightly larger ratio of hours than the old cleanup crews . At the same time, the Company was slowing down the job by assigning the trimmers to do a substantial part of the cleanup work (cutting up the logs and stacking the trimmings for the first time, and-particu- larly at first-quitting early and working with the cleanup employees when they were far behind). The resulting delay, when added to the delay caused by the trimmers being assigned to do the cleanup on a rotating basis during the week of April 3, undoubtedly was a contributing factor for the later postponement of the startup of the tree removal job. (I draw the inference that the Company's trimmer bonus records were not produced because they revealed this drop in the trimmers' production.) (3) Extent of overtime In March, before they were discharged, the cleanup employees were working little overtime. On 2 days, March 22 and 24, they worked 1 hour of overtime , and on I day, March 14, most of them worked 2 hours of overtime. (On March 22, both leadmen worked only 1 hour ; on March 24, one of them worked about a half day ; and on March 14, both of them worked about a half day .) The only other overtime worked in March was on March 29 and 30, when employee August worked a single hour of overtime, and March 6 and 7, when dnvers Carter and Smith worked an hour overtime, and three or four other employees worked a half hour overtime . (On March 7 and 30, the leadmen worked only 5 hours .) Thus in March, cleanup employees worked as much as 2 hours of overtime a day only once; more than one nondriver worked as much as 1 hour of overtime only twice ; and most of this overtime was worked when both of the leadmen were absent a large part of the day (apparently taking 'part in negotiations). Thus, despite the fact that the discharged employees were confronted with various obstacles (dull chipper blades , shortage of chain saws , and having to use only sanitation trucks with the chippers, with no follow-up truck), the payroll records show that little overtime was required. The extent of the overtime worked by the cleanup employees between April 10 and May 24 is concealed, inasmuch as the Company omitted from the payroll the two cleanup employees and drivers, Carter and Smith, who worked the most overtime after their names were again shown on the payroll on May 25. However, excluding their overtime for nearly 7 weeks , the payroll records show much overtime worked . Some of the new cleanup employ- ees were working 3 to 4 hours of overtime on April 11, 12, and 17, during the first 2 weeks of their employment. Beginning on April 25, cleanup employees were working 737 from 2 1/2 tc 6 hours of overtime every full workday through June 14. On May 25, when the names of Carter and Smith were restored to the payroll records, they worked 15 hours (7 hours of overtime), and on May 31 and June 1, they worked 14-1/2 hours (6-1/2 hours of overtime). Thus the Company's own payroll records show that the cleanup employees were usually hours behind each day when the trimmers stopped cutting. (The only overtime worked by trimmers from March through June 14 was 1 1 /2 hours of overtime by trimmer Lukowski on May 26.) This documentary evidence disproves much of the testimony given by company witnesses . I specifically discredit the claim, made by trimmer Warner when called by the Company, that the new cleanup employees "stayed up pretty close behind . Maybe a half a block, a block at the most." (He later testified, "Occasionally there was a lot of times where we got up and went, a lot of say, small trees you could get up and go, and we were spread out quite far." Elsewhere he testified, "Occasionally they fell behind, but like I said before, that was understandable, on certain occasions.") When asked by company counsel near the close of the trial whether there were times when the ground crew fell far behind the cutting crews , and had long hours of overtime 2, 3, 4 days in a row, Manager Stumer claimed that it could be the size of the trees or the traffic and parking situation, adding : "I am sure that that did not happen on a steady basis, did it? I don't believe." (I discredit this explanation for the excessive overtime.) When President Esbin was asked why additional cleanup employees were not hired on "occasions" when there was considerable overtime, he testified that "considerable overtime was definitely not on a regular basis"; that "we really didn't know how much overtime would be required, if any, until" 3 or 4 p.m.; and that the Company was using two 3-man crews , and a 4-man crew would not be as efficient. To the contrary, the evidence shows that there was overtime on a regular basis ; the extent of the overtime shows that the cleanup employees were hours behind, long before 3 or 4 p.m.; and that the Company was often using 4- and 5-man crews. Including Leadmen Lacker and Smiarowski, cleanup men-drivers Carter and Smith (who worked at cleanup about 60 or 70 percent of the time, according to Esbin), there were 8 to 10 cleanup employees (for the 2 crews) on 32 of the 40 full workdays between April 10 and June 14. (There were only 5 cleanup employees on I day, 6 on I day, and 7 on 6 days. Undoubtedly on these occasions , trimmer Graue and/or messenger Laws, for a few hours , helped fill up the crews.) Thus, by cutting the number of cleanup employees by an average of about 2 -1/2 employees a day (from 10.9 before the discharge to 8.375 after the discharge)-apparently in an effort to prove that the new employees were more productive-the Company increased its costs for the cleanup work, by paying for extensive overtime and paying trimmers to do a substantial part of the cleanup employees' work, while slowing down production. (Of course, if the Company had retained its experienced cleanup employees, except for the disabled Peterson, and had instituted a number of the changes, the productivity of the old cleanup crews would have increased. The average number of trimmers remained virtually the same.) I note that the 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company in its bnef, citing only the number of employees and the hours worked in the first three pay periods after the rotating crew "experiment ," contends that the Compa- ny "was able to literally double the productivity of the groundcrew," and contends that if the discharged employ- ees "are reinstated and receive the prevailing laborer's wages," the Company "will be once again in a hopelessly uncompetitive position." In so contending, the Company ignores the evidence that Carter and Smith were reinstated within a week (and therefore omits them from its calculations), and also completely ignores the excessive overtime worked regularly, on every full workday from April 25 through June 14 (after the trimmers undoubtedly rebelled against doing so much of the cleanup work, cutting down on their production bonus ). Inasmuch as President Esbin testified that the Company made more money on the job after March 31 , and inasmuch as the smaller number of replacements (because of the overtime and the transfer of a substantial part of the work to the trimmers) resulted in the Company paying for more hours of cleanup work, I reject the Company's contentions. h. Asserted union acquiescence or consent The Company contends in its brief that Teamsters Local 282 virtually consented to the March 31 layoffs, and delayed filing charges because it believed that the layoffs were economically motivated. Local 282 did delay in filing the charges . However, at the time of the mass discharge, it was offering to cede jurisdiction over "all other workmen," excluding drivers, "doing tree pruning, tree removing , other landscaping and similar work" to Laborers Local 731, which represented such tree-trimming and cleanup employees in the area. Although most of its employee strength was among the cleanup employees, Local 282-upon instructions from its International-was then bargaining for only three or four drivers (excluding sanitation truckdnvers). When it filed its first charges against the Company on June 16, it limited the charges to an alleged refusal to bargain , apparently in the hope of reaching a collective -bargaining agreement with the Company. But in the succeeding 3 weeks, the Company continued its refusal to negotiate further, and Local 282 was informed that the Company had required employees to report to the Laborers Local 731 hall to sign checkoff cards and join that union . On July 10, Local 282 filed amended charges, alleging discrimination. Not knowing at that time exactly how many had been discharged , it alleged that "several employees were fired and one was permanently laid-off" within a month of their signing Local 282 authorization cards . Under these circumstances, I reject the Company's contention that because of the delay Local 282 "obviously did not believe that the Employer was acting discriminatorily." Local 282 was not seeking to represent the discharged employees at the time , and did not know their qualifications. The testimony concerning conversations between the Company and Teamsters Local 282 Organizer Bai before the mass discharge is in great conflict. Manager Stumer and President Esbin gave conflicting accounts. According to Stumer, he and Bai "had a little conversation out in the hallway" when the Company was advised at the comptroller's office, early in March , that the cleanup crew (being paid $4.375 and $4 .20 an hour) would have to be paid a minimum of $6.95 , plus $1.87 in supplemental benefits. Stumer testified that he complained to Bai, "there is no way we can stay in business if we have to pay this rate to these particular people . . . I got to do something," to which Bai suggested, "We just signed a recognition agreement only a couple of days ago . . . try to hold out for a couple of weeks, because it is just not right to do anything right now." Then about a week before the "layoffs," according to Stumer, he (and he claims Esbin also) met Bai at a diner, said "we wanted to try a different type of system on the ground," and Bai responded, "if things are really that bad . . . go ahead and do it." (Emphasis supplied.) Thus, according to Stumer, Bai suggested early in March to wait a couple of weeks, and 2 or 3 weeks later, Bai said the Company could "go ahead." On the other hand, President Esbin, who also claimed that he was present with Stumer and Bai at the diner, contradicted Stumer's testimony that Bai said the Compa- ny could go ahead . According to Esbin , Bai said to hold off for a while. In sharp contrast, Organizer Bai testified that Esbin was not present at the diner meeting . According to Bai , Stumer insisted on relief from paying the higher rates for inexperienced people, or he would have to "get rid of these black bastards because they don't produce"; that Stumer "got very perturbed ... that I would not make any sort of deal or offer"; and that Stumer then said, "Well, Tony .. . It would be worth your while . . . Mickie [Samuel] Wagner would like you to do something to give us relief and it would be worth your while, we'll take care of it and regardless of what the numbers are"-suggesting a bribe. (In weighing this conflicting testimony, I take into consideration the undisputed, credited testimony by Leadman Lacker-who impressed me as being a forthright and honest witness-that in the May meeting with him, Smiarowski, and Warner, in the presence of Stumer and Esbin, Samuel Wagner made the three employees an offer "of $10,000 for putting [a competitor ] out of business." Wagner furnished most of the capital when he and Current Construction formed the joint venture for the tree work.) I discredit Manager Stumer's claim, contradicted by President Esbin , that Organizer Bai said they could "go ahead" in trying a "different type of system on the ground." (Both Stumer and Esbin impressed me as being willing to testify whatever might seem plausible in their defense.) Although I do not doubt that Stumer made or implied a bribe, as testified by Bai, and although Bai impressed me as being a more trustworthy witness than either Stumer or Esbin, some of Bai's testimony was not persuasive. In particular, I refer to a statement which Bai added, after giving his version of the hallway meeting with Stumer in early March. Bai first testified that during the brief recess, Stumer was quite excited about the assistant comptroller's ruling and commented to Bai, "F- him . . . I will go out of business before I pay this kind of rate," and then asked Bai what he could do to change the rate. Bai testified that he said this was a subject for proper negotiations. However, Bai added that Stumer "told me he is going to get rid of all these black bastards who he has got CURRENT CONSTRUCTION CORP. in the ground crew or anybody that had anything to do with organizing." I do not believe that this statement was made, and discredit it. (I note that two of the discharged employees, August and Sweeney, were white, and that the Company employed after the mass discharge a number of black employees, including Sanitation Local 813 members Carter and Smith, messenger Laws, and trimmer Thomp- son. I accept as true the Company's vigorous denial "that racial considerations had anything whatsoever to do with its actions.") Not being able to credit all the testimony of either Stumer or Bai concerning the brief hallway meeting in early March, I must decide which is more plausible: Stumer's testimony that Bat merely suggested that the Company wait a couple of weeks before doing something, or Bai's testimony that an appropriate rate was a subject for proper negotiation. In view of Bai's unfamiliarity with the qualifications of the recently organized cleanup employees, and the discussion with the assistant comptrol- ler about an apprenticeship training program if the employees were not "experienced." I find that Bai did not state any agreement or acquiescence in the discharge of the cleanup employees, and discredit Stumer's testimony to the contrary. Accordingly, I find that the credited testimony, and the delay in the filing of the charges, do not support the Company's argument that Teamsters Local 282 realized the March 31 "layoffs" were economically motivated and not discriminatory. 5. Concluding findings In a continuing effort to avoid paying the prevailing rate, the Company argued at the comptroller's office, and to Teamsters Local 282, that the cleanup employees were not "experienced" and qualified. By the time Local 282 failed a second time to promise the Company any relief, Local 282 had magnified the Company' s fear of "doubling up" on the bucket truck, by offering to cede jurisdiction over the bucket-truck operator to Laborers Local 731, while proposing to retain jurisdiction over the bucket-truck driver. It was in these circumstances that the Company suddenly discharged most of Local 282's supporters (the cleanup employees), hired members of Local 731 as replacements, and later, upon reaching an impasse with Local 282 over the doubling up issue, illegally induced other Local 282 supporters to join Local 731. The Company denies that union considerations played any part in the March 31 layoff or discharge of the cleanup employees. The General Counsel contends: "The Compa- ny's intention was to operate as long as they could without any union, but if they had to have a union, the one thing they wanted to make absolutely sure of was this union would not be Local 282." Having found that the Company had knowledge of, or at least suspected, that the cleanup employees constituted the majority of Teamsters Local 282's support, and having considered all the evidence and the contentions of the parties, I find that the Company's controlling motivation for the sudden, mass discharge was its determination to eliminate Local 282's employee support. In making this finding, I particularly rely on the following: (a) Manager 739 Stumer advised messenger Sweeney, in early March before reassigning him, that he would have to join Laborers Local 731; (b) on March 31, the Company suddenly discharged 11 or 12 cleanup employees (all of them except two leadmen), reinstated only two members of Sanitation Local 813, and hired as replacements only members of Laborers Local 731; (c) at the time of the discharge, Stumer told employee Hall that the Company had "union difficulties"; (d) about a week after the discharge, Stumer said he could not rehire employee August because of "union problems," and revealed to employee Frazier that the Company had decided (or agreed) to recall or rehire only members of Locals 813 and Local 731; (e) the Company has suggested no justification for discharging an admittedly "good" employee, driver Carter, when truckdrivers were necessary on the job; (f) the Company falsified the payroll records when reinstating Local 813 members Carter and Smith within a week, omitting their names for nearly 7 weeks, for the evident purpose of deception; (g) the Company failed to rehire any nonmembers of Local 813, despite the fact that it was operating shorthanded, with excessive daily overtime; (h) Stumer revealed the Company's motivation for eliminating Local 282's support by informing the three Local 282 employee organizers (Lacker, Smiarowski, and Warner) in May that there was no room for Local 282 and that Stumer preferred Local 731. to avoid doubling up on the bucket trucks; (i) Stumer illegally offered inducements to these three employees if they would abandon Local 282 and Join Local 731; (j) Stumer illegally supported Local 731 by ordering remaining employees, including some Local 282 supporters, to leave work and go to the Local 731 hall to sign up; and (k) by discharging most of the Local 282 supporters on March 31, hiring only Local 731 members as replacements, and paying to Local 813 extra dues and supplemental benefits for only a portion of the cleanup employees, the Company was able to avoid paying the $1.87 welfare and pension benefits (although required by the city) for some of the employees. In addition, it is clear that the Company was not interested merely in increasing production and lowering the cost of the cleanup work. The Company admittedly did not consider the employees on an individual basis, did not consult with the leadmen about how to improve the operation, did not say anything to any of the employees about their work, and waited until after their discharge to institute the various changes to increase production. The company officials at the trial gave conflicting explanations for the sudden discharge and the 1-week trimmer rotating system, which I find (in view of the shortage of qualified trimmers) to have been obviously a subterfuge for eliminating the cleanup employees as a group , in order to replace them with members of another union. The Company's discriminatory motivation is also indi- cated by its efforts, both at the time and at the trial, to distort the facts. It not only falsified the payroll records, omitting the names of the two reinstated drivers who were working the most overtime-for the obvious purpose of arguing that the work was being done with fewer employees-but it attempted at the trial (in part at least by misrepresentation) to conceal the fact that the replace- ments (except for one) were inexperienced, that it trans- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferred a substantial amount of the cleanup work to the trimmers, and that it instituted various changes which increased production. Now, in its brief, the Company contends that there was a dramatic improvement in production, in that the work was being done by half the number of employees. To make such an argument, the Company cited the payroll records for only the first three pay periods after it began hiring replacements (when, as found, much of the cleanup work was being done by the trimmers), and completely ignores the falsification of the payroll records, and the excessive daily overtime which began on April 25. As found, the Company did reduce the number of cleanup employees by an average of 2.5 employees a day, but when the excessive overtime is considered, along with the transfer of some of the cleanup work to the trimmers, the Company was actually paying for more hours of cleanup work than before the number of employees was reduced. Accordingly, I find that the sudden mass discharge of 11 experienced cleanup employees on March 31 was for the purpose of discouraging membership in Local 282, and violated Section 8(a)(3) and (I) of the Act. CONCLUSIONS OF LAW 1. By discharging cleanup employees Edward Carter and Marion Smith on March 31, 1972, and by discharging and failing to rehire cleanup employees Edward August, Benjamin Blacknall, James Carr, Grady Frazier, Raymond Hall, Floyd Jones, Richmand Pierre, Herbert Sanders, and James Sweeney on and since that date, because it knew or suspected that a majority of the cleanup employees supported Teamsters Local 282, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By discharging employees Arthur Lacker and Robert Smiarowski on February 22 because of their support of Local 282, the Company violated Section 8(a)(3) and (1) of the Act. 3. By threatening to discharge employees for signing Local 282 cards, and by coercively interrogating employees about their support of Local 282, the Company violated Section 8(a)(1) of the Act. 4. By offering and promising employees wage increases and other benefits to induce them to abandon their membership in and support of Local 282 and to induce them to join Laborers Local 731, the Company violated Section 8(a)(1) of the Act. 5. By promising employees that it would pay their initiation fees if they would cease their membership in Local 282 and Join Local 731, the Company violated Section 8(a)(1) and (2) of the Act. 6. By soliciting employees to join Local 731, and by directing employees to leave work, to go to the Local 731 hall, and to sign with Local 731, the Company violated Section 8(a)(1) and (2) of the Act. 7. The Company did not violate Section 8(aX5) of the Act as alleged in the complaint. 8. The General Counsel failed to prove that the Company discriminatorily discharged employee Melvin Peterson, and unlawfully agreed to recognize Local 731. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged 11 employees on March 31, 1972, I find it necessary to order the Respondent to offer them full reinstatement (except Carter and Smith who were reinstated within a week), and give them backpay computed on a quarterly basis plus interest at 6 percent per annum as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of reinstatement offer. Although the Company discriminatorily discharged employees Lacker and Smiarowski on February 22, they were reinstated upon settlement of the February 22-28 recognition strike, without loss of wages as a result of the discharge, and therefore no reinstatement or backpay remedy is necessary for them. As a remedy for directing employees on or about June 23, 1972, to leave work to go to the Laborers Local 731 hall and sign checkoff authorizations for the payroll deduction of initiation fees, I find it necessary that the Company be ordered to refund any money deducted for such initiation fees, plus interest at 6 percent per annum. Because of the failure of the General Counsel to serve Local 731 with copies of the formal papers before trial, no separate remedy of the Section 8(aX2) violations is being ordered. However, in view of the Respondent's flouting of the employees' Section 7 rights, I am convinced that there exists a substantial danger that the Respondent will in the future commit other violations of the Act. I therefore find it necessary to order the Respondent to cease and desist from infringing in any manner upon the employees' Section 7 rights. [Recommended Order omitted from publication.]