Addy Mechanical Fabricators

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Addy Mechanical Fabricators and Constructors, Inc. and Local No. 242, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacks- miths, Forgers and Helpers, AFL-CIO. Cases 19-CA-11087, 19-CA-11088, 19-CA-11158, 19-CA-11235, 19-CA-11236, and 19-CA- 11256 August 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND ZIMMERMAN On February 11, 1981, Administrative Law Judge Maurice M. Miller issued the attached Deci- sion in this proceeding. Thereafter, counsel for the Respondent filed exceptions and a supporting brief, and counsel for the General Counsel filed a brief in support of the Administrative Law Judge's Deci- sion. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Addy Mechanical Fabricators and Constructors, Inc., Addy, Washington, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: The Respondent asserts that the Administrative Law Judge manifest- ed bias and hostility towards it by crediting only the General Counsel's witnesses and by ignoring relevant and credible testimonial and documen- tary evidence. It is the Board's established policy not to overrule an ad- ministrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We also find total- ly without merit the Respondent's allegation of bias and prejudice on the part of the Administrative Law Judge. Upon our full consideration of the record, we perceive no evidence that the Administrative Law Judge pre- judged the case, made prejudicial rulings. ignored any evidence, or dem- onstrated a bias against the Respondent in his analysis or discussion of the evidence. 2 In accordance with his dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. 1. Delete paragraph I(b) of the recommended Order and insert the following as paragraphs (b), (c), and (d): "(b) Questioning employees with regard to their union sympathies, their personal participation in some union campaign for designation or selection as their representative for collective-bargaining purposes, or their knowledge of union sympathies demonstrated, or prounion statements or conduct manifested, by their fellow employees. "(c) Threatening to shut down its shop facility, or discharge its employees, because Local No. 242, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, may have been designated or selected as their repre- sentative for collective-bargaining purposes. "(d) In any like or related manner interfering with, restraining, or coercing employees in their exercise of the rights guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge employees or dis- criminate in any other manner with regard to their hire or tenure of employment, or any term or condition of their employment, be- cause of their known or suspected participa- tion in campaigns for representative status by Local No. 242, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, or because of their partici- pation in concerted activities for the purposes of collective bargaining or other mutual aid or protection. WE WILL NOT question employees with regard to their union sympathies, their person- al participation in some union campaign for designation or selection as their representative for collective-bargaining purposes, or their knowledge of union sympathies demonstrated or prounion statements or conduct manifested by their fellow employees. 257 NLRB No. 111 738 ADDY MECHANICAL FABRICATORS WE WILL NOT threaten to shut down our shop facility, or discharge our workmen, be- cause Local No. 242, International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, may have been designated or selected as their representa- tive for collective-bargaining purposes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in their exercise of the rights guaranteed by Section 7 of the Act. WE WILL offer Jose Fierro and Duane Decker immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority rights or other rights and privileges. WE WILL make whole Jose Fierro and Duane Decker for any pay losses, plus interest, which they may have suffered, or may suffer, because of their discriminatory discharges. ADDY MECHANICAL FABRICATORS AND CONSTRUCTORS, INC. DECISION STATEMENT OF THE CASE MAURICE M. MILLER, Administrative Law Judge: Upon successive charges filed on various dates between February 5 and April 2, 1979, and duly served, the Gen- eral Counsel of the National Labor Relations Board caused a consolidated amended complaint and notice of hearing dated May 9, 1979, to be issued and served on Addy Mechanical Fabricators and Constructors, Inc., designated as Respondent within this Decision. Therein, Respondent was charged with the commission of unfair labor practices within the meaning of Section 8(a)(3) and (I) of the National Labor Relations Act. 61 Stat. 136, 73 Stat. 519, 88 Stat. 395. Within Respondent's answer, duly filed, the firm's counsel conceded the correctness of cer- tain factual matters set forth in the General Counsel's consolidated amended complaint, denied the commission of charged unfair labor practices, and set forth certain af- firmative defenses. Pursuant to notice, a hearing with respect to this matter was held on October 16 and 17, 1979, in Spokane, Washington, before me. The General Counsel and Re- spondent were represented by counsel. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence with respect to pertinent matters. Since the hearing's close, briefs have been received from the General Counsel's representative and Respondent's counsel; these briefs have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evi- dence received, and observation of the witnesses, I make the following: FINDING OF FACT I. JURISDICTION Respondent raises no question herein with respect to the General Counsel's present jurisdictional claims. Upon the consolidated amended complaint's relevant factual declarations-more particularly, those set forth in detail within the second paragraph thereof-which Respond- ent's counsel concedes to be correct, and on which I rely, I conclude that Respondent herein was, throughout the period with which this case is concerned, and re- mains, an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in business activities affecting commerce within the meaning of Section 2(6) and (7) of the statute. Further, with due regard for pres- ently applicable jurisdictional standards, I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE UNION Local No. 242, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, designated as the Union within this Decision, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits cer- tain of Respondent's employees to membership. III. UNFAIR LABOR PRACTICES A. Issues This case presents several positions with respect to Re- spondent's course of conduct when confronted with the labor organization's campaign for representation rights. Those questions, for present purposes, may be summa- rized as follows: 1. Whether the firm, through its general manager, questioned employees, threatened them, and created an impression of surveillance, with respect to their participation in the Union's representation cam- paign, or with respect to their participation in con- certed activities statutorily protected. 2. Whether Jose Fierro and Duane Decker, des- ignated as Respondent's working foremen, were ter- minated because of their union activities, or protect- ed concerted activities. 3. Whether Fierro and Decker were supervisors, within the meaning of Section 2(11) of the statute, when Respondent terminated their services. 4. Whether, subsequently, Respondent laid off Dean Fairall, John Galvin, Marcus Ross, and Gary Yardley, because of their union activities, or be- cause of their participation in concerted activities statutorily protected. Respondent denies any managerial responsibility for statutorily proscribed interrogation, threats, or sugges- 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of surveillance. The firm contends, further, that Fierro and Decker were statutory supervisors, whose terminations, therefore, would not warrant Board consid- eration. With respect to Fairall's termination, plus the layoffs and subsequent terminations of Galvin, Ross, and Yardley, Respondent pleads differentiated business justifi- cations. B. Facts 1. Background a. Respondent's business Respondent, functioning as a State of Washington cor- poration, engages in the fabrication, refabrication, repair, and maintenance of moveable or fixed industrial equip- ment and plant components. It maintains its principal office and shop facilities in Addy, Washington, about 50 miles from Spokane, northwesterly.' Throughout the period with which this case is con- cerned, Robert J. LeCount has served as Respondent's president. Prior to December 1979, the firm's day-to-day operations have been maintained subject to the direction of Don Robbins, Respondent's general manager. Some- time during the month designated, however, Bernard "Skip" Hillyer was designated as Robbins' replacement. During a mid-year 7-month period, within calendar year 1978 specifically, most of Respondent's gross rev- enues had been derived from services provided for Chewelah Contractors, Inc., a construction firm head- quartered nearby, wholly owned by Respondent's presi- dent. Throughout the period with which this case is con- cerned, however, the firm's second largest customer was Northwest Alloys, Incorporated; that firm operated a magnesium reduction plant, likewise located within Addy, Washington's vicinity. During calendar year 1978-79's winter months, Re- spondent's crew complement encompassed some 13 to 17 welders, mechanics, helpers, fabricators, cleaners, and janitors. Whenever current business projects might war- rant, Respondent would maintain both shop crew and field crew. The necessity for a field crew, however, would depend on field work's availability and weather conditions. 2 Both crews, when required, were led by so-called working foremen. Whenever the field crew's services were not required, however, the crewmembers, normally three in number-together with their working field fore- man-would be recalled for shop work; they would serve as regular shop crewmembers, led by the firm's working shop foreman. b. Respondent's contract projects Between August 1978 and December of that year, Re- spondent completed field work on two contract projects. 'The following factual determinations with regard to Respondent's business derives, partially, from the Regional Director's findings-within a Decision and Direction of Election, with respect to Case 19-CA-9168. discussed hereinafter-which I have officially noticed. Other determina- tions derive from the record herein. 2 Contracts which required field work would normally decline or run out during the winter months. At Sara May Lumber Company, Respondent's field crew rebuilt a sawmill conveyor system and mounted some sawmill equipment. The work had been started during August 1978. While it was in progress, presum- ably, Respondent started a second project on September 10 providing fabrication and erection work in connection with a water tank's installation at Inchelium, Washing- ton; that project was completed during October 1978 so far as the record shows. The firm's Sara May Lumber Company project was completed during December, hereafter. 3 Concurrently, Respondent's shop crew worked, so far as the record shows, on four fabrication projects. During November 1978, the firm had commenced work on three projects for Northwest Alloys, more or less simultaneously. Some "tapping" carts-their number never specified for the record-were fabricated; this pro- ject was ultimately completed during April 1979. Con- currently, Respondent likewise fabricated a duct system, within a 2-month period, for NWA; that system-though completed and delivered-was, however, subsequently rejected. Finally, Northwest Alloys granted Respondent a presumptively temporary November contract to clean metal "traps" and related equipment which were current- ly being utilized, within the designated firm's plant, and to catch slag, principally magnesium oxide, produced in connection with its magnesium reduction process. Re- spondent's final trap cleaning services were provided sometime during April 1979; the circumstances surround- ing that particular project's termination will be discussed further within this Decision. Late in December 1978, Respondent contracted to fab- ricate a "Barker In Feed Roll Case" for Boise Cascade Corporation. Work on this project was completed by January 10, 1979, according to Respondent's record. The firm contends, herein, that these several proj- ects-save for the previously mentioned "trap cleaning" services for Northwest Alloys, which were provided pursuant to a cost-plus contract-suffered cost overruns and lost money. This contention, so far as it may bear upon Respondent's claimed business justification for con- duct which the General Counsel challenges, herein, will be considered subsequently, within this Decision. c. Union's representation petition During late December 1978 and early January 1979 the Union conducted a campaign to organize Respond- ent's employees. Inter alia, Shop Foreman Jose Fierro signed a union designation card on January 8; previously January 2 Duane Decker, who prior to his December 1978 shop assignment had served as Respondent's work- ing field foreman, had signed such a designation card. 4 ' Respondent's services with respect to the Inchelium project had been provided pursuant to a subcontract with Chewalah Contractors, Inc., which had done the foundational work. 4 Decker, together with his field crew fellows, had been transferred into Respondent's shop, following the December 1978 completion of the firm's Sara May Lumber Company project. When he signed the Union's card, Decker was serving on Respondent's regular shop crew without recognized "foreman" status. 740 AI)I)Y MICIIANICAI. AIIRICAI()RS lDecker had, thereafter, spoken with fellow workers concerni ng the Union, had advised them of their right to pursue self-organizalion, and had conducted some union organizatiol meetings at his residence. ()n F:riday, January 12, 1979, the Union filed a repre- sentatioll petition (Case 19-RC-9157) seeking certifica- lion within a unit of Respondent's production and main- tenance employees, save for conventionally excluded cat- egories. Shortly after January 12, however, the Union's peti- tion was withdrawn. The record suggests that the Union's secretary may have withdrawn it because of comments proffered by a Board representative, that the organization's card showing might conceivably be con- sidered tainted because putative "supervisors" had par- ticipated in the Union's organizational campaign. On Wednesday, January 24, the Union filed a second peti- lion (Case 9-RC-916X) seeking certification within the bargaining unit previously designated. 2. Respondent's reaction to the Union's campaign and representation petition a. Interrogation and hrears Meanwhile, o Monday morning, January 15, directly following Hillyer's personal receipt of the Union's first recognition demand-previously noted-the firm's gener- al manager had questioned Fierro with respect to wheth- er he "knew anything" regarding the Union's represenla- lion claim. Fierro had denied any such knowledge.6 Respondent's general manager-whom Fierro credibly characterized as visibly "upset and angry" during their conversation-had proceeded to declare, then, that he would find out who had distributed the Union's designa- lion cards. When Hillyer had shortly thereafter shown Fierro the Union's recognition demand, the latter had queried him with regard to what his reaction would be. Respondent's general manager had, so I find, declared that he would ' revilusly. within a letter dald 'l'ueslay, Jatuary 9. te . lion' sec- retary. I yin Rawlils. hall undertakeii to noltify Respiondei thlial a major- ily of tile firnl's producliIo aid llraiitenlallce workers h;lld slected the liltion as their colleclive-hargaining reprenallative. Rawlirs had request- ed recogllitir l ;all sutggestled tIle conliliencerlclit f colntract egoti;la- lions. I:ulrthllr, li ha;ld suggested theI Union's willingncess to sulbmit signed "'aulth irizaliou iaeld Ilrllemiership'' cards for a ilnt tra party's card check. should Respridelnt doubt thie rgani;atiotn's injorily representaive cl;lirls i:or reasollrs evcr Ill;lde clear, withil tilhe prsenlt record, tile ttio1's letter htis tllot appear it have cone it (ellneral Mailnlager lil- lyer's llotice ulil Mltd;ly, Jaiary 15 lillyer's reacliol will he lotled hlereialter. ' While a wiluess, hlerein, Fie:rrto s) estified. When sunlllnllied iln Rc- spordeltI' 's behalf. illyer concedled t il'e c orrectness of I:ierro's leslimolli- ;lt recital. Witli respect it i:icrrol'% frther testlllltoy regarding his reac- ltiolls Respo.ldelRt'ls geellral llaulager has likewise proe'lred several cotr- roihbrative collCLcssiolls; cncullrrelltly, hwever, his tesrtilonty reflects solire denials. With tdie regard or tIhe recordl conisidlered inl tIotality - but- tressedt by Illy tobservatiorls with respect to 1lillyer's wiltless chlir dlerica- nor, a;rd conisideraltilons tfr logical pr;bahility I hlave firlund I:ierro's tesli- turlial recapilulltiols generally woy rhy f cretece. Whilte a wiltltess. Ilillyer cilcelded hitll his iflliatUliin wilhi regard to tIhe LIniou's tclaitt whicthi had cunic "like a bolt oitut of the blue" so fr as hie was conucerncdl haul let him "tip i te air" witlh rspect theretl I concllde. Ci llSnisteltly willth thi (e'Cnr;a ('OiIll.']'s enitcntill that, lireCot- ly fIllowiig his receipt o te ,ln1io's ller. Ihe genieral tllalnlager' reai- lionns hald. iulde'd. rt-flecled hill ten io ; ln tsioinlbobill;rillin just "closec the gates" for 30 days until everything cooled off, and that, should it prove necessary, Respondent's workers would "all" be discharged. Hillyer had finally reiterated his determination to discover who had distrib- uted union authorization cards, and who had signed them.' While a witness, Hillyer further conceded-substantial- ly in conformity with Fierro's testimony-that he had, indeed, questioned two shop workers with regard to their knowledge of the Union's campaign and their per- sonal participation therein. Specifically, Respondent's general manager testified, during direct examination, that he had queried employee Bryan Byrd with regard to the Union's campaign. Hil- lyer conceded that Byrd had been asked how long it had been going on; that the worker had, responsively, report- ed the campaign had been "going on" for about 3 weeks; and that Byrd, when questioned further, had reported Fierro's knowledge specifically with regard to the Union's bid for representative status.9 With due regard for testimonial recollections credibly proffered by Fierro and Ronald Gates, who had been a welder-fitter in Respondent's hire-which Hillyer, while a witness herein, did not categorically contradict-I find further that Respondent's general manager, during their January 15 conversation, had questioned Byrd specifical- ly with regard to whether he had signed a union designa- tion card; Byrd, as the record persuasively shows, had replied affirmatively. I so find. Hillyer testified, cumulatively, that he had "checked" the situation, further, by questioning another shop worker-never designated, for the present record, by name-whom he considered a very "religious" man who would not lie. The general manager testimonially con- ceded that he had asked the second worker whether he had signed a card; that the worker had responded affir- matively, declaring, further, that "everybody" had signed; and that he had, like Byrd, reported-when ques- " When crioss-examiled herein. !illyer tstimonially denied that he had specifically threatened to "close Resrpondent'sl gales" flr 30) days. low- ever, h could onily approlimate his rsponsive comments, "give r take a word Iere ird there." Responldelt's gIeral manager declared that he haid Illercly referred to whalt employers confrolnted with a union cam- paign would have doec 5() or ti) years previously; more particularly, lil- lyer haid colnlentdl so he testified-that such employers would have. then. shult down hcir facilities for "alhout" 30 days arid fired everybody The general manager, however. conccll-ded-tcstimoniially-thal he had further declaired that Respondenlt would not have to worry alut its re- action, sitice "tle waly it stands now, if fRespondent does go union. I'll only he openl thirty days ayway." Withint its con(ltX, I find, Ilillycr's purporlted coniilt, had it hbeen made, would h:lave been reasonahly cal- culated o clivey his belicf not based n objet-lin data. , far au Ihc re'ord hoews" tha;lt, should Respondenl's workers cholose union reprcsen- altiolln te firm's cllslomers would leari alut that developmenl. with- draw their paIlronage, aid thereby dictate Respondent's closure Whilat- ever the general nlanager's purported renmark, taken ait ace valu. could he considered a slalutorily prosacribed threat, without rard fi)r I'ierr' ,ai,,led diferirtial rn,,ollthitn-- hieh I h:ave hn'ri. 'rdild-thual R- sptuit' man,,age'rial r'prurtulifutirn had. ralhtr pro'uiled his firm'n prs- pertiv rtioun Ioimi(lhall iorn jfirthrirhtlv. will he considered. subscluetll- ly. wilt lil this I)cisiou . " Whei questioed by Ilillycr. Ilyrd had been ai ranik-anld-file welder in Rcspondetil' shllop. Wil hin a week after :icrro' ltermnlaltion which will he discussed sulbsquentlc y within tlhis )cecision- lyrd had been dsignal- ed shop lforenli. a, I: erro' replacelmInt. WhIe il his case was h lrd. hiowevser. lyrl was fulio u ning i;r Rcpoulndet's eid Foreman 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned-that Fierro had known about the Union's cam- paign from the start. The record herein-within my view-warrants deter- minations, further, that Hillyer had similarly questioned welder-fitter Gates, welder Dean Fairall, and trap clean- ers John Galvin, Gary Yardley, and Marcus Ross with respect to whether they had signed union designation cards; that Fairall and Galvin had been queried, prelimi- narily, with respect to whether they knew "anything" with regard to the Union's bid for representative status; and that Fairall had further been asked whether he knew who had started the "union" talk. '10 The workers questioned, I find, disclaimed any knowl- edge with respect to the subject matter of Hillyer's inter- rogation; inter alia, they denied signing union designation cards. b. The discharge of Fierro and Decker 1. Jose Fierro Shortly following his January 15 round of interroga- tion, noted, Hillyer summoned Fierro to his office. The shop foreman was told that he was through; he was di- rected to collect his tools. When queried regarding his reason, the general manager replied-as Fierro testi- fied-that a good "reliable" source had told him that the shop foreman had been distributing union designation cards. Fierro denied the charge; his disclaimer was re- jected. Shortly thereafter, Hillyer handed Fierro his final pay- check, together with a termination slip. The slip pro- vided no statement, however, with respect to Respond- ent's rationale for the shop foreman's discharge. When the shop foreman requested a statement of Respondent's reasons, so that he would have no trouble with his state unemployment compensation claim, the general manager declared-so I find-that Respondent was not required to provide one. Fierro then left. The shop foreman then drove to Duane Decker's home-located in Colville, Washington, some 14 miles distant-where he requested information regarding the location of the State of Washington Employment Secu- '° These determinations derive from testimony proffered by Gates, Fairall, Galvin, and Yardley, which I credit. While a witness, Hillyer could not "really" recall whether he had questioned Gates; he thought that he had done so, but could not testify positively. The general man- ager denied questioning Galvin, Yardley, and Ross, but was never asked, specifically, whether he had queried Fairall as charged. Upon this record, with due regard for Hillyer's testimonial concessions previously noted, his denials with respect to challenged interrogation-within my view- merit no credence. " Summoned as Respondent's witness, Hillyer claimed that he had not mentioned union cards, but that Fierro had, rather, asked whether he was being dismissed for supposedly passing out that organization's designation cards. The general manager's direct testimony further reflects two diver- gent narratives with respect to their further conversation. Initially, he tes- tified that Fierro had been told his discharge was "partly" due to his union involvement; Hillyer claimed, testimonially, that his comment had been intended to suggest that Fierro's termination had been "partly" bot- tomed upon his presumptively "lying" disclaimer, regarding his nonparti- cipation in the Union's card distribution. Subsequently, the general man- ager testified that-when confronted with Fierro's purportedly challeng- ing query-he had merely declared his desire that the subject be dropped. With matters in this posture, I have found Fierro's proffered recollections more worthy of credence. rity Department's local facility. Decker volunteered- though he may have been requested-to go there with Fierro; they left for the state office together-so I find- with Fierro driving his pickup truck. 12 Fierro had told Decker, upon reaching his fellow worker's residence, that he had been discharged for pass- ing out union cards. When filing his claim for unemploy- ment compensation, thereafter, the shop foreman had consistently reported-while personally filling out the state form which would be sent to Respondent, notifying the firm with regard to his claim-that he had been ter- minated for that stated reason. Later that morning, January 15, directly following their departure from the employment security depart- ment's Colville facility, Fierro and Decker, while riding in Fierro's truck, had been seen by Hillyer, who was then fortuitously driving a vehicle down the same street, headed in the opposite direction. According to Fierro, whose testimony Decker generally corroborated, Re- spondent's general manager had given them a noticeably resentful stare. 2. Duane Decker On Tuesday morning, January 16, Decker reported for work. He had been transported to Respondent's facility, from his Colville, Washington, residence, by Phil Holla- bough, a fellow worker. " General Manager Hillyer, whom they encountered when they reached Respondent's shop door, told Decker-so I find-to pick up his tools and leave. Decker testified that when queried with respect to his reason. Hillyer replied, "I told you, no damn Union." When the general manager, then, proceeded up the shop stairs to his office, Decker followed. 4 t: Decker had not, earlier, reported for work that day. Early that morning, he had started his trip to work, using his personal truck-which he "usually" employed for that purpose-but had discovered that the truck's brakes were inoperative. By that time-so Decker's credible, un- challenged testimony shows-it was too late for him to request transpor- tation to work, alternatively, from any fellow worker. He had, therefore, telephoned Respondent's shop and reported his situation to Respondent's secretary, following which he had driven his truck-"very carefully"-to a local Colville, Washington, service station, for required repairs. Upon returning home, ferried by his wife, Decker had reported his situation di- rectly to Respondent's general manager, who had signified his acquies- cence. Hillyer had then queried him-so Decker testified-with respect to whether he had signed a union card; he had responded negatively. Shortly following their conversation's conclusion, Fierro had arrived and reported his discharge. "' While a witness, Decker testified that he had "picked up" his truck, from the service station repair shop to which he had previously taken it, at 5:30 p.m. the previous day. His reliance on Hollabough, nevertheless, for transportation to work on January 16, particularly, has not been ex- plained for the present record, though his credible testimony reveals that he had "sometimes" ridden to work, with Hollabough, previously. " Summoned as the General Counsel's witness, Hollabough recalled this conversation somewhat differently. He testified that Hillyer had first declared he wanted to see Decker upstairs; that, while both men were going up the stairs, the general manager had said "something" which he [Hollaboughl could not hear; and that Decker had, then, asked, "Is this because of the Union?" Hillyer, according to Hollabough, had responded affirmatively. With due regard for the record herein, considered in its to- tality, I find the divergences between Decker's and Hollabough's witness chair recollections insufficient to warrant this Board's rejection of their testimony's purport, generally. I remain satisfied-and I find-that Hil- lyer had greeted Decker with word that he was being discharged, and Continued 742 ADDY MECHANICAL FABRICATORS Following some comments, calculated to suggest that he considered himself "stabbed in the back" by Decker's conduct, Hillyer, so I find, gave the latter his termination notice. It indicated that Decker was being discharged for "excessive absenteeism" and because he was considered unreliable. When Decker left the general manager's office-so his testimony, which I credit, shows-he was followed by Hillyer, who watched him gather his tools and walked with him to Respondent's shop door. Several of Re- spondent's shop employees, who had reported for work were standing nearby. As he passed them, with Hillyer close behind him, Decker-so I find-declared: "Look out guys, Hillyer is going to fire everybody in the place until he gets the right man." Hollabough, who had driven Decker to work, was one of those standing nearby. His corroborated testimony with respect to what happened then, which I credit, warrants a determination-which I make-that Hillyer responsively nodded his head, glanced around, and fa- vored those present with "nasty" looks. With matters in this posture, Decker left Respondent's premises. My determinations, herein, regarding the circum- stances which led to Decker's discharge, derive primar- ily from his credible testimony-previously noted- which both Fierro and Hollabaugh have tangentially or directly corroborated. Confronted with the General Counsel's testimonial and documentary presentation, Hillyer did proffer a signifi- cantly divergent recital. He testified: that, early on Monday, January 15, Respondent's secretary had given him a message regarding Decker's prior telephone report: that he was having trouble with his pickup truck and would not be in; that, following Fierro's discharge, he had telephoned Decker's residence to determine his availability for service as Fierro's replacement; that Decker's minor daughter had reported her father's earli- er departure for downtown Colville, driving his truck; that, later that morning, while Hillyer was driving in Colville on Respondent's business, he had seen a truck, which he believed to be Decker's, parked before a tavern which Decker was known to frequent; and that, shortly after noon, he had seen Fierro and Decker, heading south, riding in Fierro's pickup truck. With respect to the January 16 development, then Re- spondent's general manager declared that, when Decker reported, he, Hillyer, was "ready to go to war" with him. His testimony, with regard to their conversation, reads, in relevant part, as follows: I asked him, "How come you couldn't get in yester- day, but you could ride around with Joe [Fierro]?" He said, "I had some things I had to do." One thing led to another and I told him, "I told you before," you know, "I'm dissatisfied with your work," and a few things, and "I'm just going to let you go, and get a shop foreman or someone I can depend on." And he said something, "Is it over this union?" And I told him, "Don't blame it on the union, Duke," that, when queried with respect to his reasons, Respondeni's general manager had cited he Union's hid for representalive status you know, "Don't blame all your faults on some- thing else. We don't even have a damn union here." And he got all huffy and he stopped at the door and said, "I suppose you're going to fire everybody until you get the union people." I said, "Duke, I'm just trying to run a business. I don't give a damn about what's going on. I'm not interested in a union thing. I don't even know if its real or somebody's idea of a joke or what the hell it is yet." And he said, "Well, I suppose you'll fire everybody till you get the right people," and he stomped on down- stairs and got his toolbox and left. Respondent's general manager denied that he had fol- lowed Decker downstairs, and denied-further-that he had heard, or reacted to, any comments which Decker might have directed to his fellow workers, while making his departure. When queried with regard to Decker's tes- timony that, during their office conversation, he had- tangentially-declared he would not suffer being "stabbed in the back" more than once, Hillyer contend- ed: First, that his comment had been made during a con- versation, several days later, when Decker visited Re- spondent's facility; and, secondly, that he, Hillyer, had, then, characterized Decker's record of poor workman- ship, and excessive time spent on projects, as "stabbing [him] in the back" which would not be tolerated. Hillyer's proffered recollections, with respect to Deck- er's termination, merit no credence-within my view- for several reasons. First: The general manager's present claim-purported- ly communicated to Decker when he was terminated, and subsequently reiterated, when he Hillyer, testified herein-that Respondent's former field foreman had, pre- viously, been criticized for unsatisfactory work perform- ance and/or excessive absenteeism, lacks persuasive record support. While witness, herein, Hillyer discussed Decker's absence record; his testimony with respect to the former field foreman's termination, however, reflects no recollection that these subjects had been conversa- tionally canvassed then or previously. Respondent's gen- eral manager recalled December 1978 discussions with Decker, regarding two field projects; he testified, how- ever, that-with respect to Respondent's previously completed Inchelium tank job-no "criticism" had been involved. Though he recalled conversational references to customer complaints-from Sara May Lumber Com- pany's spokesmen-regarding the purported failure of Respondent's crew, there, to work full time or provide efficient performance, he conceded, testimonially, that he had spoken to Decker when that project was close to completion; Hillyer's testimony with respect thereto war- rants determination, which I make, that his comments had merely been cautionary. When questioned by a State of Washington Employment Security Department repre- sentative, subsequently, with regard to Decker's postdis- charge unemployment compensation claim, Respondent's spokesman "indicated" that he, Decker, had not been 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned, previously, about absenteeism or that he had not been considered a reliable employee. 15 With matters in this posture, I am satisfied that Re- spondent's references to "excessive absenteeism" and Decker's purported "unreliability" set forth within his termination notice were calculated, merely, to provide some pretextual justifications for his termination. Second: President LeCount's testimony reveals that Hillyer told him-subsequent to Decker's termination- that Respondent's former field foreman had been dis- charged, specifically, because he had "lied" about his truck's brake problem, because of his subsequent January 15 conduct, and because he could not be reached, on that date, when he was "really" needed. Upon this record, determinations have been made, however, that Decker did fail to report for work, on January 15, for a valid reason, because he lacked transportation; Hillyer's purported conclusion that Decker's excuse had been pre- textual and merited rejection as factitious could only have been derived from speculation, without sufficient "objective" warrant. t6 With due regard for the record, considered in its total- ity, determinations would seem warranted, therefore, that Hillyer considered Decker's conduct disturbing, pri- marily because he was seen in Fierro's company-shortly following the shop foreman's discharge purportedly for distributing union designation cards-and that it was this facet of their January 15 eye-to-eye contact which gener- ated the general manager's termination decision. Third: Hillyer's testimony, that he charged Decker with "stabbing [him] in the back" merely because of his purportedly poor work performance, struck me as con- trived; within my view, such strongly worded charges would not normally be made when workers have alleg- edly been terminated for some purportedly perceived lack of competence, solely. Fourth: Credible testimony, proffered for the record, warrants determinations, which I make, that Hillyer was still exercised and disturbed, because of the Union's rep- resentation claims, both on January 16 and thereafter, subsequent to Decker's discharge. Employee Fairall re- called, credibly, that Respondent's general manager had, again, queried him on January 16 with regard to who had started the union campaign; that he had, again, de- clared he would discharge those workers who had ' This finding rests on a factual summary report, with regard to Re- spondent's position relative to Decker's claim, prepared by the employ- ment security department representative, and set forth within that depart- ment's formal "Determination Notice" regarding that claim. That docu- ment was proffered and received for the record without objection. Within my view, it constitutes a trustworthy public "report" with regard to Respondent's concession, despite its nominal hearsay character. See Fed. R. of Evid., Rule 803(8Xc) in this connection. Is The statement by Decker's daughter, that he had "driven" his truck downtown-which had, allegedly, persuaded Hillyer that Respondent's former field foreman had "lied" to Respondent's secretary, and would fail to report for work for some nonjustifiable reason-was not inconsist- ent with Decker's claim that he had "very carefully" driven his truck to a Colville service station. And Hillyer's testimonial contention, that he had subsequently seen Decker's truck, midmorning, parked near a tavern, has been-within my view-persuasively undercut within the present record. His presumptive post hoc contention-further-that Decker's truck could have been repaired and released within a short period of time, set forth first by Respondent's counsel, within his brief, reflects speculation merely. signed union authorization cards; and that he would "probably" have to shut down Respondent's facility for 30 days and hire a completely new crew. Employee Yardley testified-credibly and without persuasive con- tradiction-that, some "one or two" days subsequent to Fierro's and Decker's discharges, Hillyer told him they had been "relieved" for organizing the Union; Hillyer's putative denial that he had made such a statement merely compassed a general negation, proffered in response to a leading question, broadly phrased. Finally, Decker testi- fied, credibly, that some 2 weeks subsequent to his dis- charge, during a visit to Respondent's shop, he had asked Hillyer why the latter was taking "this Union thing" per- sonally; and that Respondent's manager had protested he was not taking it personally, but was merely trying to shield himself from possible criticism. With matters in this posture, Hillyer's proffered ver- sion, with regard to the circumstances which had preci- pitated Decker's termination-within my view-merits Board rejection. c. Fairall's layoff Dean Fairall, who had been hired for work as a com- bination welder and fabricator some 7 months previous- ly, was laid off on Friday, February 2, 1979, Respond- ent's payday, purportedly for lack of work. He was given a termination notice which stated that he had been laid off, pursuant to a reduction in force, for the reason noted above. Hillyer told him-so he testified-that he was being released because Respondent needed to retain its welders. When queried further, regarding the circumstances of his layoff, Fairall testified that, while in Respondent's toolroom some 2 or 3 days previously, before work start- ed, he had-while Wendy Conover, Respondent's secre- tary, was present, but some 15 feet distant-removed a business card, bearing the name of the Union's repre- sentative from his wallet which he had verbally de- scribed and concurrently "flashed" while commenting: that it would be a good joke to play on Skip [Hil- lyer] to leave it where he could find it, and then not tell him where it came from ... He had then, so he testified, put the card back in his wallet; he, however, had done nothing with it. Fairall declared that subsequently-but before his layoff-he had been told by Bryan Byrd, then Respondent's shop foreman, that Hillyer had learned about the business card joke, and was very "upset" about the matter. When cross-examined, the welder-fabricator testified that Respondent's secretary had voluntarily told him- when he was subsequently laid off-that she had never reported his prior "business card" comments to Respond- ent's manager; when queried further, however, Fairall claimed that she conceded she had recounted the inci- dent to Mack Lamb, President LeCount's brother-in-law, who was then a Chewelah Contractors, Inc., employee. With respect to Fairall's layoff, the General Counsel's representative has, further, proffered testimony that, sev- eral days after the welder fabricator's departure, when queried with regard to Fairall's layoff, Bryan Byrd told 744 ADDY MECHANICAL FABRICATORS several of Respondent's workers that he "thought" Fair- all had "waved" his union card before the wrong people; while commenting, further, that-because of the Union's campaign in progress-the firm's workers should be careful about what they said, and to whom, since, if they were not careful they might be sent "down the road" also. While a witness, Decker testified further that, during his subsequent visit to Respondent's shop, previ- ously noted, Byrd had reported Fairall's layoff, while commenting that the welder-fabricator had flashed the Union's card in Conover's office, that "someone" had seen it, and that he had, therefore, been laid off so that his "attitude" could be checked. Upon this record, the General Counsel's representative seeks a determination that Fairall was laid off "primar- ily" because he had flashed the Union's business card while at work. Confronted with the General Counsel's presentation, summarized herein, Respondent has proffered Hillyer's countervailing testimony, buttressed by Byrd's testimony and some documentary evidence, calculated to warrant determinations that, by February 2, Respondent's shop work was running low; that there was little work for fabricators, though some welding work was available; that Fairall, though qualified for welding work, had been doing fabrication work primarily; that he was not consid- ered a good welder; that Byrd had submitted a list of qualified welders whom Respondent should retain; that Fairall, though considered a promising fabricator, had not been listed for retention; and that he-together with "two or three other people"-had, therefore, been given February 2 layoffs. Respondent proffers no contention that the card flashing incident relied on by the General Counsel's representative did not occur. ? The firm seeks a determination, nevertheless, that Fair- all's layoff should not be considered motivated by his presumptive display of union sympathies. Within its con- text, Respondent contends that the welder-fabricator's layoff was consummated for purely business reasons. With matters in this posture, two questions are pre- sented. First: Has the General Counsel's representative demonstrated, prima facie, that Fairall's presumptively protected conduct was a cognizable "motivating factor" which should be considered "causally related" to Re- spondent's February 2 layoff decision, so far as he was concerned? Second: If so, has Respondent, nevertheless, shown persuasively that the welder-fabricator's layoff would have been consummated, and was in fact consum- mated, without regard for his protected conduct? See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), in this connection. These questions will be considered, subsequently, within this Decision. 3. The representation election Within a letter dispatched to Respondent's production and maintenance workers on March 12, President Le- Count and Respondent's manager discussed the possible consequences, should the Union win designation as the '7 Respondent's secretary, though presumably available, was never summoned to testify; Fairall's testimony, regarding the incident, together with her subsequent comments with respect thereto, may, therefore, be taken as datum, within my view. employee collective-bargaining representative. Inter alia, Respondent's workers were told, so the General Coun- sel's representative notes, that "only about one fourth" of the firm's work was normal Boilermakers Union work, and that, should the firm become contractually bound with that organization, other unions, on big jobs, would insist on doing most of the work. Thereafter, during a company meeting held in Re- spondent's shop, with President LeCount, Hillyer, Shop Foreman Byrd, and Respondent's counsel present, "rep- resenting" management, the firm's workers were told, inter alia, that, with respect to secret-ballot elections held in small shops like Respondent's shop, there was a chance that some few challenged ballots would be cast, which would not be secret, and that a concerned em- ployer might derive a "fairly good idea" with respect to how people had voted. Respondent's manager repeated Respondent's prior letters' comments that should the Union win representative status, the firm might lose 70 percent of its work, since it was doing work which was not Boilermakers Union work, which other unions would not permit. Hillyer declared, further, that Respondent's welders would have to be tested by an independent test- ing agency to become certified journeymen welders; that he, Hillyer, felt several of the firm's welders would not be able to pass such a test; and that Respondent had a limited number of positions for apprentice welders. Presi- dent LeCount finally reported, as the record shows, that Respondent had been "working on an insurance plan" for some time but could not offer it then and there be- cause such an offer would be considered coercive. The General Counsel's representative proffers no con- tention, presently, that Respondent's comments-within its March 12 letter and/or during the shop presentation noted-transgressed statutorily permitted limits; he sug- gests, however, that they merit consideration and should be given some persuasive weight, when Respondent's purportedly suspect motivation, for conduct specifically challenged herein, requires determination. On Wednesday, March 21, this Board's Regional Office conducted a scheduled representation election, before work started, based on the Union's second peti- tion for certification, previously noted. Fifteen votes were cast. "8 By a vote of eight to four, the Union won designation as the collective-bargaining representative of Respond- ent's production and maintenance workers. Three chal- lenged ballots were cast; they were not sufficient in number to affect the vote's result. The record herein warrants no determination regarding the identity of the challenged voters; it reveals, namely, that-despite Re- " The election was conducted pursuant to the Acting Regional Direc- tor's Decision and Direction of Election, which had been issued on Feb- ruary 21, following a hearing on the Union's petition. Inter alia the Acting Regional Director had therein determined that Working Shop Foreman Bryan Byrd, though clearly in charge of Respondent's shop crew, did not possess "authority" sufficient under the statute to warrant his designation as a supervisor not eligible to vote. Respondent, through counsel, had filed a timely request for review, questioning-concurrently with several other determinations-the Acting Regional Director's deter- mination with respect to Byrd's voting eligibility. The firm's request for review had been denied. 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's previously proffered contention with regard to Byrd's purported supervisory status-he was permit- ted to vote, and did vote, without challenge. 4. Respondent's reaction to the representation election a. The layoffs of Galvin, Ross, and Yardley Late on the afternoon of Wednesday, March 21, Byrd summoned Galvin, Ross, and Yardley, the firm's trap cleaning crew, to Respondent's office; the men were no- tified that they were being laid off. They were given ter- mination notices, signed by Respondent's general man- ager, which characterized their separation as a reduction in force, because their "occupational function" had been "absorbed" by another company. The record-specifically, the composite testimony of Ross, Galvin, and Yardley which stands herein without challenge or contradiction-warrants determinations, which I make, that Byrd told them that he had not known their layoffs were coming; that he was sorry they were being laid off; but that traps were no longer being received from Northwest Alloys for cleaning. When Yardley, who had, during his service, driven the truck which had been used to bring traps from Northwest Alloys, asked who would drive the truck, Byrd reported that the truck had been "transferred" to Chewelah Con- tractors, Inc., which would handle all materials requiring transportation thereafter. Galvin, who had done nontrap work while in Respondent's service, was told that the firm was laying him off because the volume of such non- trap work was, likewise, reduced. When queried by Ross with respect to whether those laid off would be consid- ered for rehire, Byrd replied affirmatively; he declared that the law required Respondent to contact them first before hiring replacements, but that it looked as if their layoffs were the first of many, which might "possibly" reduce Respondent's shop complement to five men. b. Subsequent developments On Thursday, March 22, Northwest Alloys sent Re- spondent three pieces of equipment-whether traps or related pieces the record does not clearly show-which would have to be cleaned. With matters in this posture, Respondent's general manager communicated with Yard- ley and Ross, notifying them that trap cleaning work, which they could perform, was available; while a wit- ness, Hillyer contended that he had not then been able to communicate with Galvin directly, though he did so sub- sequently by letter.'s Respondent's general manager, I find, encountered Yardley hitchhiking on the highway during the March 22 late afternoon hours. He declared that Respondent had received some traps and queried Yardley with re- " The record, relative to Hillyer's subsequent contacts with Yardley, Ross, and, finally, with Galvin by letter, reflects some confusion or lack of certainty, both displayed by General Counsel's witnesses and Respond- ent's manager, with respect to dates and relevant developments. My fac- tual determinations with respect thereto-set forth herein-derive, there- fore, from the composite testimony provided by Ross, Yardley, Galvin, and Respondent's general manager, which I have reviewed with particu- lar regard for logical probabilities. spect to whether he would come back to work the next morning. 20 Yardley declared he would report as requested. When he reached home that night, however, he discovered that he had received three responses to prior inquiries, re- garding possible employment, which he desired to pursue. Early on Friday, March 23, therefore, Yardley notified Respondent's secretary that he would be unable to report that day because of prior commitments. Later, likewise on March 23, Hillyer telephoned Ross; when the latter subsequently returned his call, Respond- ent's manager solicited his Monday, March 26, return to work, since the firm had received a trap, from North- west Alloys, for cleaning. Ross promised to report. On March 26, Yardley reported to Respondent's shop before work started. When Hillyer arrived, Yardley asked whether Respondent's recall offer represented a mere "one shot deal" or whether he was being recalled for full-time work. Respondent's general manager replied that he could not guarantee full-time work, since Re- spondent had been given just three "traps" for clean- ing. 2 1 With matters in this posture, Yardley left Respondent's shop. According to Hillyer, Respondent's management has had no further direct contacts with him. I so find. Shortly thereafter, Ross reported for work, pursuant to Hillyer's prior request. He asked what the length of the job would be; this time-so Ross' testimony shows- the general manager declared that it would be "part- time, sporadic" work. Respondent's laid-off employee de- clared that he needed "full-time" work, but that-should he be given part-time, sporadic work-he would require more than $5 per hour. Ross testified at this point Hillyer and he had com- menced a somewhat discursive conversation, during which Hillyer had allegedly declared that his hands were tied; that Ross had been told "this" would happen, should Respondent's workers opt for union representa- tion; that he, Hillyer, was trying to build up Respond- ent's shop; that his retention of workers who were not "loyal" could not be expected; that Ross had stabbed 20 While a witness, Yardley reported that, during their conversation, Hillyer had questioned him about his "political" activities. Yardley had, so he testified, construed the general manager's query as his calculated solicitation of some comment regarding Yardley's presumptive "union" involvement; he recalled his response that he was not a boilermaker or steelworker, and had never been a union member before, but would sup- port the firm's "tradesmen" in whichever direction they wished to go. Subsequently when questioned, Hillyer conceded that, "every time" he saw Yardley, he had raised the subject of his, Yardley's, politics. Re- spondent's general manager protested, however, that no references to "union" sympathies or support had been intended; he characterized his comments, rather, as "joking" references to Yardley's penchant for pur- suing self-promotional schemes, concerned with "very little work and lots of money" which had never materialized. With matters in this pos- ture, the significance of their conversational exchange will be considered, subsequently, within this Decision. 11 On Friday, March 23, Yardley had been told that full-time position, with Respondent's Spokane competitor, was available; he had, however, been compelled to decline that "offer" since no reliable transportation facilities between his residence and the jobsite existed. The record herein suggests that Yardley's job opportunity, and his reaction to it, became a subject of discussion when he visited Respondent's shop. No determina- tions with respect thereto would seem to be required, however, for pres- ent purposes. 746 ADDY MECHANICAL FABRICATORS him in the back; and that he knew how Ross had voted during the representation election, since Respondent had a small shop, the firm's observer had carefully noted the sequence in which everyone had voted, and the ballots had been removed and counted in precisely reverse order. When Ross protested that his vote had not really mattered, Hillyer had declared, so the worker testified, that it had, since, if he had cast a "no" vote, the result would have been seven to five, some determinations with respect to the challenged ballots would then have been required, and the Union's representation bid would have been "tied up" for months. Inter alia, Ross recalled, Re- spondent's manager had "mentioned" that he knew how every one of the firm's workers felt about the Union, since he had a recording, provided by a "plant" who had carried a tape recorder to a union meeting at Decker's house. Respondent's general manager, according to Ross' tes- timonial recollections, had continued their discussion. Ross had been asked whether he knew how "this whole union mess" had gotten started. When the worker prof- fered his theory, Hillyer had declared, allegedly, that Fierro was a Boilermakers Union member who had worked for Welk Brothers; and that he had been "sent" to Respondent to start the Union's campaign and drive the firm out of business. Ross testified that the general manager had shown him a Board charge form, contain- ing Ross' name, which he, Hillyer, had called a "griev- ance slip" while declaring that it meant nothing, but that he expected to receive such "slips" whenever he laid off workers thereafter. Allegedly, he had likewise displayed a "shipping invoice" from Welk Brothers to Northwest Alloys for some repair work while implying that Re- spondent had "purchased" such information. Further, ac- cording to Ross, Hillyer had declared that Respondent's employees could strike; that, should they do so, they could be permanently replaced; and that their replace- ments might be physically powerful people, who might "beat the hell" out of strike pickets. The general man- ager had allegedly said that Respondent had no contract; and that, following a representation vote at his previous place of employment, the employer had "negotiated in good faith" for 7 years with no contractual consensus reached. Finally, when asked whether Hillyer had mentioned "good things" happening, Ross reported that Respond- ent's manager had cited the insurance plan which Presi- dent LeCount had previously quoted, plus a good "profit" sharing program which Respondent had planned. Ross testified that with matters in this posture he de- clared that he would clean Northwest Alloy's traps, but that Respondent should continue its search for trap cleaners, since he needed full-time work. Respondent's general manager allegedly declared that he, Ross, should be able to find construction work, that Respondent would give him a good recommendation, but that pro- spective employers who called would be told he, Ross, was union affiliated. Ross, as his testimony shows, then began work, with the help of some "new" workman who, presumably, had not handled traps previously. When, pursuant to mis- chance, he narrowly escaped injury, the worker, Ross, decided that he could not do the work with inexperi- enced help. Hillyer was allegedly so notified; when Ross volunteered to locate Galvin and return shortly, Re- spondent's general manager, as the worker testified, re- jected the suggestion, declaring that he would clean the trap himself. Thereupon Ross left. Confronted with Ross' detailed recital, summarized herein, Hillyer reported that Ross had been recalled; he conceded that, during their subsequent discussion, the March 21 representation vote had been discussed, but de- clared that he did not "really" remember "everything" which had been said. However, Respondent's general manager, thereupon, solicited suggestive questions, bottomed on counsel's notes. When presented, then, with purported recapitula- tions or quotations from Ross' testimony, Hillyer prof- fered comprehensive denials; he provided significantly different recollections, regarding most of their conversa- tion, while conceding that, with respect to some matters, he could not recall his "exact" words.22 Hillyer contended that his reference to a previous em- ployer, whose contract negotiations had dragged on without resolution for 7 years, had been prompted by a question Ross had presented. Further, he testified that, when queried by Ross with respect to whether Respond- ent's workers could get insurance coverage, he had re- ported that could not be done "right now" pursuant to advice received from the firm's counsel. When queried, further, with regard to Ross' March 26 visit, Hillyer testified that the worker had said he did not want to resume trap cleaning work unless Yardley and Galvin were likewise recalled; that he feared they would think he was "working against them" should he accept recall without them; and that, when told they were un- willing to return for part-time work or could not be reached, Ross had rejected recall and departed. Clearly, the testimonial record, summarized herein, re- flects pervasive conflicts between Ross and Hillyer, with respect to their March 26 conversation, the purported comments of Respondent's general manager, and the re- called worker's reaction to Respondent's proffered short- term work assignment. Determinations with respect thereto will be found, subsequently, within this Decision. c. Layoffs converted to discharges On Wednesday, March 28, Respondent's general man- ager notified Galvin, by letter, that Respondent had some "limited" work for him. Hillyer suggested that- should he be interested in "part-time" work, sporadic in 22 Inter alia, Respondent's general manager denied that he had attribut- ed Respondent's loss of business to the Union's victory; that he had char- acterized Ross as disloyal; that he had mentioned the company election observer's purported opportunities to determine how "everyone" had voted; that he had described Ross' vote as significant, citing the lost pos- sibility of some delay, with respect to the Union's certification, had the latter voted differently; that he had queried Ross with regard to how the "union mess" had gotten started; that he had shown Ross a Board charge form; that he had discussed or suggested possible consequences, should Respondent's workers strike thereafter; that he had proclaimed his pos- session of some tape recording made during a union meeting at Decker's home; or that he had threatened to mention Ross' presumptive "union ap- plication" when contacted for references by other firms. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volume, with respect to which Respondent could proffer no guarantees, pending some workload revival-he should provide a telephone number through which he could be reached or call the firm daily. Likewise, on the date designated, Respondent's general manager sent letters to the State of Washington Depart- ment of Employment, regarding his postlayoff contacts with Respondent's former trap cleaners. With respect to Yardley, he reported a prior March 22 proffer of some "limited amount of work . . . on a part-time basis" which the worker had refused on March 26, because he desired full-time employment. 23 With respect to Ross, Hillyer reported a prior "March 26th, [sic]" proffer of some "limited amount of work" which could provide "part-time" employment. He de- clared that Ross, specifically on "March 27th [sic]" had, however, reported that he was not interested in "part- time" work, and "did not know how to do the work" proffered. Respondent's manager, I find, noted his "agreement" with Ross' decision to find work elsewhere. With respect to Galvin, Hillyer reported merely that he had theretofore been unable to communicate by tele- phone; he forwarded a copy of his letter, as previously noted, which he had dispatched that very day.24 That day, March 28, Galvin, Ross, and Yardley met to consider their situation. They decided that-since their termination notices, received from Respondent, had re- ported their layoff because "another" firm had "ab- sorbed" their trap cleaning function-they would seek to determine who, other than Respondent, was cleaning NWA's traps and would solicit such work. A conference with Dennis Boyce, NWA's purchasing agent-not the firm's personnel director-was arranged, set for 9 o'clock the following day. When Galvin, Ross, and Yardley met with Boyce, their discussion seemingly produced some crosstalk and confusion. Respondent's laid-off workers-so their testi- mony, considered in totality, persuasively shows-were requesting information with regard to NWA's working arrangements with Respondent; whether "anybody else" beside Respondent was then cleaning Northwest Alloys' traps; how long, thereafter, such trap cleaning work would continue to be available before NWA would eventually take over that function; and whether they could do the firm's current cleaning work either for Northwest Alloys directly or for whatever "other" firm might be performing such work. Northwest Alloys' pur- chasing agent, however, concluded-as his testimony, fairly construed, reveals-that Galvin, Ross, and Yardley had represented themselves as Respondent's laid-off trap cleaning crew, prepared to "do business" with his firm, functioning under some proposed "North Star Mineral and Metal" company name. Proceeding upon this belief, 23 Within his letter, Hillyer delared that, since he could not guarantee full-time work, Yardley's decision to spend his time looking for such work might be "advantageous" for him; Respondent's manager solicited help for Yardley, whom he characterized as a hard worker, who learns quickly. 2 In the meantime however, specifically on Friday, March 23, the Union's business representative had drafted Board charges, bottomed on Respondent's March 21 layoffs, with reference to Galvin and Ross par- ticularly. These charges had been received and docketed in this Board's Regional Office on Tuesday, March 27. Boyce declared, I find, that Northwest Alloys was still doing business with Respondent, pursuant to their "pur- chase agreement" reached in November 1978 with a prospective June 1979 termination date; that his firm planned to phase out Respondent's trap cleaning work, shortly, and "would be taking [such work] on" them- selves; that, for safety reasons, Galvin, Ross, and Yardley could not, then, clean traps within NWA's plant; that, before Northwest Alloys could "do business" with "North Star Mineral and Metal" relative to trap cleaning work which NWA was not yet ready to perform itself, those concerned would have to procure a state business license; that, when licensed, Galvin, Ross, and Yardley could call him to discuss possible "trap cleaning" work further; but that their charges would have to be competi- tive with Respondent's for whatever contract work Northwest Alloys might still require. Thereupon, I find, Galvin, Ross, and Yardley left; Pur- chasing Agent Boyce, later that day, notified Respond- ent's president regarding their visit. Likewise, on March 29, Respondent received formal Regional Office notices regarding the March 27 Board charges, previously filed by the Union, wherein the firm's March 21 layoffs-with reference to Galvin and Ross particularly-had been challenged as discriminatori- ly motivated.2 5 On Friday, March 30, with matters in this posture, Galvin telephoned Hillyer, responding to his March 28 recall letter. Respondent's general manager, however, told him to disregard the firm's work offer, since Hillyer had learned that Galvin and his fellow trap cleaners were going into business for themselves and would func- tion as Respondent's direct competitor. Likewise, I find that on the date designated Hillyer drafted and subsequently dispatched letters, with termi- nation notices enclosed, to Galvin, Ross, and Yardley, notifying them that, since they were reportedly forming some "new company" which would function in direct competition with his firm, their "employment" was being formally terminated. These letters were presumably re- ceived by Respondent's former trap cleaners on Monday, April 2, or shortly thereafter. Subsequently, in separate letters dispatched to Respondent's general manager, Galvin, Ross, and Yardley denied their involvement with any business venture calculated to put them into direct competition with Respondent; Hillyer, in separate re- plies, rejected their contentions, however, declaring that he had received "information from a reliable source" with regard to their attempted solicitation of Northwest Alloys, relative to Respondent's trap cleaning business. d. Fairall's recall Concurrently, I find that Respondent's general man- ager drafted a letter to Fairall, whose February 2 layoff has previously been herein noted. Fairall was notified that: ' The Union's parallel charge, with regard to Yardley's layoff, drafted by Business Representative Rawlins on the date now under consideration, March 29, was not docketed until April 2, thereafter. Respondent's notice, with regard to their final charge was received April 4. 748 ADDY MECHANICAL FABRICATORS On February 8, 1979, we instructed people to con- tact you to return to work and they were unable to reach you. As of this time our fabrication work has picked up and we are able to offer you employ- ment. The worker was requested to communicate with Re- spondent, since his current whereabouts were unknown to the firm. Hillyer's letter, though dated April 2, was dispatched by certified mail on April 9 and directed to a Colville, Washington, rural route address with a request that it be forwarded. Fairall had, however, left the Col- ville area; the letter, therefore, was ultimately forwarded to his Bellingham, Washington, place of residence. I find that he received it some time subsequent to April 10; the present record, however, warrants no determination with respect to his response. C. Discussion and Conclusions 1. The discharges of Fierro and Decker a. The questions presented As previously noted, the General Counsel charges that Respondent's general manager reacted to the Union's demand for recognition by questioning the firm's shop foreman, Fierro, with regard to his knowledge of the union campaign; by declaring his, Hillyer's, determina- tion to discover which of Respondent's workers were re- sponsible; by threatening a temporary plant closure with concomitant mass discharges; and, finally, by terminating both Fierro and Duane Decker, because of their pre- sumptive union sympathies or purported participation in the Union's designation card distribution. Respondent contends, however, that General Manager Hillyer cannot legitimately be charged, on this record, with statutorily proscribed threats or interrogation, di- rected to Fierro particularly, because the latter held a su- pervisory position. Further, the firm contends that, since both Fierro and Decker were vested with supervisory powers throughout the period with which this case is concerned, their terminations, challenged herein, should not be considered subject to Board proscription. With matters in this posture, questions regarding the putative supervisory status of Fierro and Decker, when they were terminated, must necessarily be preliminarily resolved. b. Applicable principles The mere possession of some conventional supervisory title does not establish its holder's supervisory status, under the statute; rather, the confirmed functions, duties, and authority conferred upon the persons concerned will be considered determinative. Capital Transit Company, 114 NLRB 617, 618-619 (1955), cf. Highland Telephone Cooperative Inc., 192 NLRB 1057, 1058 (1971), in this connection. Section 2(11) of the statute defines supervisors de- barred from exercising particular organizationl rights which rank-and-file workers may properly claim. The term, defined through references to particular powers which holders of supervisory positions may presumptive- ly possess, compasses: [Alny individual having authority, in the interest of the employer, to [perform some 12 designated func- tions] or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment. Though workers will be considered supervisors when- ever this Board's record demonstrates, preponderantly, that they possess any one of Section 2(11)'s designated powers, considered disjunctively, regardless of the fre- quency with which such powers may be exercised, the statute clearly requires, further, that their exercise of some designated power, or powers, must be nonroutine, and require the use of independent judgment. Maine Yankee Atomic Power Company v. N.LR.B., 624 F.2d 347, 360 (lst Cir. 1980); N.L.R.B. v. Security Guard Serv- ice, Inc., 384 F.2d 143, 146-147 (5th Cir. 1967); see, like- wise, N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), in this connection. Thus, workers who may perform some listed 2(11) function merely occasionally, or perfunctorily, will not be considered supervisors; they must be required, consist- ently, to display true independence of judgment, while discharging such functions. Dubin Haskell Lining Corp. v. N.L.R.B., 375 F.2d 568, 570 (4th Cir. 1967); Golden West Broadcasters-KTLA, 215 NLRB 760 (1974). More- over, "[i]t is a question of fact in every case as to wheth- er the individual is merely a superior workman . . . who exercises the control of a skilled worker over less capa- ble employees, or a supervisor who shares the power of management." N.L.R.B. v. Southern Bleachery & Print Works, supra; see Haynie Electric Company, Inc., et at, 225 NLRB 353, 360 (1976), and cases therein cited. Ac- cordingly, "(t]he Board has a duty to employees to be alert not to construe supervisory status too broadly, be- cause the employee who is deemed a supervisor is denied employee rights which the Act intended to protect." Westinghouse Corp. v. N.LR.B., 424 F.2d 1151, 1158 (7th Cir. 1977). Mindful of these considerations, we must now review the present record. c. Putative supervisory status In July 1978, when Don Robbins-then Respondent's general manager-hired Fierro, he was designated "shop lead [man]" specifically. The record herein warrants a determination that he was conventionally considered Re- spondent's working shop foreman throughout his period of service. Nevertheless, as previously noted, the fact that Fierro may have been generally considered a foreman "in charge" so far as Respondent's shop was concerned cannot be deemed determinative, with regard to his su- pervisory status. His actual powers, duties, and responsi- bilities, rather than his title and control. Cf. Berry Schools v. N.L.R.B., 627 F.2d 692 (5th Cir. 1980). To put the matter differently, rank-and-file employees cannot be transformed into supervisors merely by investing them 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a title, coupled with a purely "theoretical" power to perform one or more of the statutorily enumerated su- pervisory functions. The record herein, considered in totality, warrants de- terminations, within my view, that Fierro merely exer- cised the routine control of a skilled worker over less ca- pable or less experienced employees, rather than the con- trol of a supervisor sharing management's powers. True, Respondent's shop "foreman" received certain perquisites or fringe emoluments, by virtue of his nomi- nal position, which the firm's regular shop workers did not enjoy. He was permitted to use a shop office next to General Manager Hillyer's where blueprints and draw- ings were regularly kept. 26 Though hourly paid, like the rest of Respondent's shop workers, he received $8.60 per hour; three of Respond- ent's shop workers, at least, were then being paid $7 per hour. Fierro participated in management's medical and dental benefit program, but was required to contribute part of the program's premium cost. He was, further, eli- gible for life insurance coverage, for which he was re- quired to pay. Finally, he, together with Decker, re- ceived holiday pay, which Respondent's shop workers did not receive. These presumptive "indicia" with re- spect to Fierro's special status, however, merely suggest, but do not prove, that he was considered a management representative. Fierro had no direct authority to hire workers. Job seekers were required to prepare their applications in Re- spondent's office; these general managers, Robbins or Hillyer, would initially review. Fierro would, then, be requested to give such applicants, preliminarily consid- ered qualified, welding tests to determine their technical competence. 27 The shop "foreman" would then report his tests re- sults; he might recommend action, based on some given applicant's test. If that applicant had passed his test, and if work were was available, Respondent's manager would direct him to commence work. While a witness, Hillyer declared that, when Fierro had recommended a job seeker's hire, after his welding test had been passed, he, Hillyer, had taken Fierro's word "almost" every time; he conceded, however, that Fierro had "hired" no workers whom he, Hillyer, had not talked with before- hand. 25 Though Fierro had routinely prepared and signed "Employee Information" forms memorializing new hires and various other personnel actions, his testimony, which I credit, warrants determinations that the workers con- cerned had been hired beforehand; that his function had essentially been clerical; and that his "authorization" had not really been required. Though Hillyer contended, generally, that Fierro was authorized to recall laid-off workers no specific examples were cited. Fierro's testi- mony that he was neither empowered to recall such 26 Fierro kept his toolbox there. The record provides no clear indica- tion with regard to how much time he spent there, and how much time he spent on Respondent's shop floor. :" Fierro testified, without contradiction, that he had been chosen to give welding tests merely because of his prior work experience. 2* Once, when the shop "foreman" had reported a job seeker's failure to pass a welding test, then General Manager Robbins had, nevertheless, hired the applicant for service as a welder's helper. workers nor requested to provide "effective" recommen- dations with respect to their recall merits credence. Throughout his period of service, Respondent's shop "foreman" had never been required to suspend or disci- pline shop workers; while a witness, Hillyer conceded that the subject had never "come up" prior to Fierro's termination. The general manager's purely conclusionary testimony that his shop "foreman" had been "author- ized" to send workers home, when they reported for work drunk, merits rejection, within my view. Save for Hillyer's categorical witness chair declara- tion, proffered without any citation of exemplars which might have "lent verisimilitude to an otherwise bold and unconvincing narrative," the present record provides no warrant for a determination that Fierro had been consid- ered empowered to lay off shop workers or direct their discharge. He testified, without contradiction, that he had never even recommended layoffs or terminations. I so find. With respect to Fierro's power to determine or control conditions of work, within Respondent's shop, the record herein does reveal testimonial conflict. The shop "foreman's" credibly proffered recollections, however, will within my view finally support determinations that Fierro merely "assigned" work to particular shop crew- members after General Manager Robbins or Hillyer had given him work orders for those jobs which would have to be done, specified time targets within which they would have to be completed, and told him how many men to designate for each shop project; that he then chose men for particular tasks, based on his craftsman's knowledge with respect to their background, experience, and welding capacities; and that-when workers had to be designated for transfers to field crews-the firm's gen- eral manager, rather than Fierro, selected them, usually choosing men who had done field work previously. Fierro, for some 10 percent of his worktime, concededly did shop job layout work; when necessary, he "showed" newly hired workers jobs which they would be required to handle, showed them how required work should be done, and worked with the tools of his trade. 29 Overtime work when required would be authorized by Respondent's general manager; Fierra would merely be required to designate who would be requested to work. Since overtime work assignments were not considered mandatory, workers could refuse them; when this hap- pened, Fierro would have to work overtime in the desig- nated worker's place. When not preoccupied with layout work, selecting workers for particular tasks, and working with his tools, Fierro would "check out" whatever progress was being 2g While a witness herein, Fierro testified that some 40 percent of his working time was spent working with his tools. When the Regional Of- fice's hearing on the Union's representation petition, previously noted, was held, Fierro had testified that he worked with tools some 25 percent of the time. This discrepancy, within my view, poses no significant prob- lem with respect to Fierro's credibility. The record warrants a determina- tion that the time he spent on Respondent's shop floor varied from day to day; both figures cited, during his two witness chair sessions, represent "approximations" merely calculated to reflect his best guess with regard to his work record and averaged for some indeterminate period. His suc- cessor, Bryan Byrd, conceded, while a witness, that, when Respondent's shop is busy, he spends "most of his time" on the shop floor, working. 750 ADDY MECHANICAL FABRICATORS made on Respondent's current shop jobs-usually three, four, or five in number-to determine whether work on them was being performed in conformity with Respond- ent's quality standards. Like this Board's Regional Direc- tor, I am satisfied that Fierro's duties and responsibilities, in this respect, did not amount to responsible direction requiring the use of independent judgment. Rather, I find that Fierro, concededly a qualified and experienced workman, directed his fellow workers on the basis of his technical expertise. When workers reported their absence due to illness, they customarily communicated with Respondent's sec- retary; their messages might be relayed to Respondent's general manager or Fierro directly. On the single occa- sion, recalled by various witnesses, when a worker on Decker's field crew had requested time off, the latter had relayed his request to Fierro; the shop "foreman" had then relayed the worker's request to Respondent's gener- al manager without a recommendation. 0 Shop workers were required to report their total time spent at work, the shop projects they were working on, and their time spent devoted to each designated shop project. Fierro, who, like his fellow workers, was re- quired to submit time reports, would thereafter "initial" their cards, following his determinations, merely, that they had correctly recorded the projects they had worked on and their daily time spent with respect to each sepa- rate project listed. When workers requested raises, Fierro had relayed their requests to Respondent's general managers. With respect to some 10 requests, he had recommended favor- able action; his recommendations had been followed, however, merely on three occasions. When requested to proffer his "opinion" with respect to how particular workers were performing, Fierro would comply. While a witness, he recalled that General Manager Robbins had once solicited his view with respect to whether Yardley had been doing a proper job; Fierro testified credibly, however, that Robbins had already decided to terminate Yardley, and that he had merely concurred with the gen- eral manager's decision.31 When workers presented Fierro with complaints or grievances, Respondent's shop "foreman" merely brought them to Robbins' or Hillyer's notice. His testi- mony warrants determinations, which I make, that he never recommended dispositions or adjustments; that General Manager Robbins or Hillyer would, themselves, investigate such situations; and that he, Fierro, would not participate. With matters in this posture, I find, consistently with the Regional Director's conclusions previously noted, that, with respect to those matters wherein Fierro's rec- ommendations were proffered or solicited, they were not "effective" recommendations, but were merely consid- ered suggestions. With respect to those matters wherein :3 Fierro testified that Respondent's general manager had never re- solved the matter, and the worker concerned had taken his time off with- out permission. 3" Yardley had been terminated, but had subsequently been recalled, and had worked until his March 21 layoff, challenged herein. So far as the record shows, Fierro had not heen consulted with regard to his recall. the shop "foreman" was required to provide leadership or direction, I am satisfied further that Fierro's duties and functions did not compass "responsible" direction, calling for independent judgment, but merely compassed routine direction, bottomed upon his prior experience and technical expertise. In this connection, I note finally that Bryan Byrd, Fierro's successor-though presumably vested with com- parable duties and responsibilities-voted without chal- lenge, from either Respondent or the Union, when this Board's March 21 representation vote was conducted. Upon this record, I conclude that Fierro, when termi- nated, did not hold a position which would warrant his present debarment from remedial Board directives, should his termination be found discriminatory. With respect to Duane Decker, determinations compa- rable with those previously set forth herein-sufficiently persuasive to warrant a similar conclusion that he could not legitimately be considered a statutory supervisor- would, within my view, be warranted. Decker had been hired by General Manager Robbins in April 1978; he had been hired as a journeyman welder. Within 2 months, however, Robbins had "pro- moted" him to Respondent's designated "leadman-shop" and then assigned him a working field foreman's post. In that capacity, his pay had been raised to $8.50 per hour. Respondent's highest paid field workers, then, were being paid $6.50 per hour. Decker had been granted Blue Cross medical insur- ance coverage; Respondent paid most of the premium cost, but the field foreman contributed. He had been no- tified, further, regarding his eligibility to procure dental benefits, but had rejected such coverage. While a field foreman, serving under Robbins, Decker had not re- ceived holiday pay; his first holiday pay had covered Christmas Day 1978, following his December transfer to Respondent's shop crew, previously noted; Hillyer had authorized the payment in question, following Decker's request. While doing field work, Decker had been compensat- ed for his travel time to and from Respondent's field pro- ject sites, under circumstances noted hereinafter; Re- spondent had, further, provided him with a gasoline al- lowance, and had compensated him for maintenance and repair costs related to his personal truck's operation, since his truck had been used for company business pur- poses. Throughout his period of field service, Decker had re- ported to Respondent's shop daily, before 8 o'clock; he had been required to pick up needed materials and tools for transportation to Respondent's field projects. When such projects were scheduled, Robbins would transport him to jobsites, describe generally what was to be done, tell him how Respondent's site work was to be done, and define when it was to be done; Respondent's general manager would further designate the workers who would constitute Decker's field crew. (According to Decker, field crew complements would vary between two and six men. Three workers would constitute the firm's average crew.) 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The field foreman then would "line out" their day's work, and designate the workers who were to handle specific portions. He would likewise work on the project himself with his tools; according to Decker, such work required 90 to 95 percent of his time. If Respondent had two field projects going, Decker would work on one, and then visit the other to check its progress. 32 When his workday ended, Decker was required to re- visit Respondent's shop, where he reported each field project's progress directly to Respondent's general man- ager; sometimes, during these daily "report" sessions, Robbins would give Decker instructions for the follow- ing day's work. When workers were hired, Decker did not participate. He conceded that he had "recommended" some eight workers for hire; his testimony-proffered without con- tradiction-nevertheless warrants determinations that Robbins had first spoken with the workers concerned; that no more than three of those workmen, subsequently recommended by Decker, had been finally hired; and that Robbins had made these decisions.3 3 On the few occasions when Respondent's working foreman had recommended certain workmen for transfer to his field crew complement, Robbins-as Decker's tes- timony shows-had rejected his suggestions. While a witness, Hillyer conceded that Decker had merely been authorized to request men. Overtime, when required, would be authorized by Robbins; Decker would merely convey his authorization. Respondent's entire field crew would work, with Decker designating their overtime work assignments. Like Fierro, Respondent's field foreman would merely relay field workers' raise requests to his superior without a reoommendation. (Decker testified that, when Robbins would ask how well workers were performing, he would proffer perfunctory favorable comments.)3 4 When Respondent's field workers came to Decker with complaints or grievances, he, like Fierro, had merely passed them along to Robbins, without sugges- tions for their disposition. Questioned in his connection, General Manager Hillyer testified consistently with Decker's proffered recollection that Respondent's field foreman would merely "come in the shop and say some- thing" whereupon the matter would be straightened out. Upon this record, I am satisfied that Respondent's field foreman-like his shop counterpart-could not reason- " During the Regional Office's representation case hearing, previously noted, Decker testified that he had spent 75 percent of his field time working, and 25 percent directing the work being performed by fellow field workers. As with Fierro, however, I find the presumptive math- ematical discrepancy, between the field "foreman's" two proffered "ap- proximations" regarding his time distribution, less than sufficient to raise significant doubts with regard to his credibility. ": Decker conceded that he had notified Fairall, when the latter was hired. The record, considered in totality, warrants a factual determina- tion, however, that Robbins' decision to hire Fairall had already been made, and that Respondent's general manager had directed Decker to complete the clerical "paper work" formalities required to conclude the matter. " While a witness herein, the foreman could not recall any raise re- quests, passed along by him, which had been granted. During the repre- sentation case hearing previously held he had recalled one raise request which Robbins had granted, based on his own knowledge regarding the worker concerned. ably have been considered a statutory supervisor during his period of field service. Likewise, I note further that Decker had been trans- ferred into Respondent's shop, following the completion of his last field assignment, some 3 or 4 weeks prior to his termination. When discharged, therefore, he was per- forming welding and layout work, functioning as a member of Respondent's shop crew. (Though his hourly rate of pay had not been reduced, Respondent's former field "foreman" was providing services under Fierro's nominal oversight.) With matters in this posture, Respondent's contention that Decker, when terminated, held a supervisory posi- tion, within the meaning of the statute, clearly merits re- jection. d. The challenged discharges Though Fierro's January 15 termination notice con- tained no statement suggestive of Respondent's rationale or his discharge, the record herein, within my view, will fully warrant a determination that he was told his separa- tion had been motivated by General Manager Hillyer's belief that he had been distributing the Union's authori- zation cards. That Hillyer's statement fairly reflected Re- spondent's motivation cannot be doubted. When hired, Fierro had told Respondent's president and general manager that he was then working for Welks Brothers, Respondent's Spokane, Washington, competitor, and that he was then a Boilermakers member. Thereafter, when Hillyer received the Union's demand for recognition, and purportedly discovered- through his questions directed to Respondent's shop workers-that Fierro had, so far as they knew, been cog- nizant with respect to the Union's organizational cam- paign, he could reasonably have concluded that Fierro was responsible for that labor organization's presence. Clearly, he drew that inference; Fierro was, thereupon, promptly discharged. Shortly following the shop "foreman's" termination, Hillyer told Yardley, so I have found, that Fierro, to- gether with Decker, had been "relieved" because they had organized the Union's campaign. Whether his belief in that regard-so far as Fierro was concerned-was, or was not, well founded, matters nought; the fact that he proceeded upon that belief, when the shop "foreman" was terminated, stands clearly revealed within the pres- ent record. In this connection, I note that when Respondent's shop "foreman" filed his state unemployment compensa- tion claim, wherein he reported the reason for separation which Hillyer had finally vouchsafed him, Respondent's management responded, consistently with Fierro's state- ment, that he had been discharged because "Employee was management and partaking in union organizing." Within the State of Washington Employment Security Department's determination notice, with respect to Fier- ro's claim, Respondent's concession was-credibly, I find-reported. (See Fed. R. of Evid., Rule 803(8)(c), previously noted, in this connection.) The fact that Respondent's management may have considered its proffered justification for Fierro's termina- 752 ADDY MECHANICAL FABRICATORS tion exculpatory-because Hillyer deemed him part of the firm's supervisory hierarchy, properly subject to dis- charge for suspected participation in Complainant Union's campaign-cannot detract from the probative worth of the firm's declaration, which clearly sets forth its motivation. True, Respondent's president and general manager, subsequently, proffered different reasons for Fierro's dis- charge. When Respondent filed a formal appeal, from the employment security department's determination that the firm's former shop "foreman" had been terminated for a nondisqualifying reason, these management repre- sentatives contended: First, that he had "lacked the abili- ty" to discharge the duties and responsibilities required by his position; and, second, that his "integrity and loyal- ty" to their firm had been questionable. In support of these contentions, Respondent's representatives had re- ported that Fierro had not been getting "proper perform- ance" from the firm's shop workers functioning subject to his purported direction; and that his failures, in this connection, had contributed to Respondent's monetary "losses" chargeable to certain bid projects. Further, they reported that, sometime previously Fierro had failed to use proper purchase order procedures, when his personal vehicle had been "overhauled" by a Colville firm, which had billed Respondent for its services; and that, when queried with regard to his "knowledge" relative to the Union's organizational campaign, he had mendaciously denied such knowledge. Herein, Respondent's management representatives have substantially recapitulated these purported justifica- tions for Fierro's termination. The testimonial record, however, reveals that Hillyer's three purported discus- sions with Respondent's shop "foreman" relative to par- ticular project cost overruns had shortly followed his December 1978 designation as the firm's general man- ager, and that Fierro's failure to follow proper purchase order procedures had not ever come to Hillyer's notice until sometime after the shop foreman's termination. Within my view, these belatedly proffered justifications for Fierro's termination-never mentioned during his final conversation with Respondent's general manager- reflect afterthoughts merely. Upon this record, they could hardly be considered motivational factors; rather, clearly merit dismissal as pretextual. Respondent's final contention, that the shop foreman's discharge should be considered justified because he had lied with respect to his lack of knowledge regarding the Union's campaign, derives obviously from General Man- ager Hillyer's belief that, since Fierro had properly been considered a member of the firm's management team, his lack of candor, when questioned in that regard, could le- gitimately be deemed disloyal. Previously within this De- cision, however, Fierro's statutory "employee" position and tenure have been confirmed. With his nonsupervi- sory status taken as datum, Respondent's conceded inter- rogation necessarily transgressed permissible limits; Fier- ro's refusal to concede knowledge with respect to the Union's campaign plainly reflected his privileged reliance on statutorily protected rights; and Respondent's conces- sion that he was dismissed, inter alia, because he had "lied" with respect to his lack of knowledge constitutes clear, though tacit, confession now that his termination had been bottomed upon statutorily proscribed consider- ations. I so find. With respect to Decker's termination, little more need be said. The record, herein, considered in totality, war- rants a determination-which I make-that Respondent's former field crew leader, like Fierro shortly beforehand, was discharged because of General Manager Hillyer's belief that he had participated in the Union's organiza- tional campaign or manifested union sympathies. On January 15, subsequent to his receipt of the Union's demand for recognition and Fierro's consequent discharge, Hillyer had seen Decker and Fierro, together, in Colville, shortly following the shop foreman's termi- nation. Thereafter, when Decker reported for work the following day, he was greeted with a command to pick up his tools and leave, coupled with a comment that he had been told "no damn union" purportedly on some previous occasion. 3 6 Upon this record, determinations would clearly be warranted that Respondent's general manager had become exercised, specifically, because he had seen Decker in Fierro's company; that he had thereupon con- cluded they were concertedly participating in the Union's organizational campaign; and that his conclusion, noted, had been a prime "motivating factor" with respect to his January 16 discharge decision. I so find These determinations, however, need not rest on de- ductive inferences solely; they stand buttressed with col- lateral record support. Hillyer's comment that he would not permit himself to be "stabbed in the back" twice clearly conveyed an Aesopian reference to his belief that Decker's course of conduct had been not merely thoughtless or irresponsible but disloyal. Several days later, Respondent's general manager, so I have found, specifically conceded that Decker, like Fierro, had been terminated because of his suspected involvement in the Union's campaigns. And during a final conversation with Decker, several weeks later, Hillyer conceded, substan- tially, that his course of conduct, subsequent to Respond- ent's receipt of the Union's recognition demand, had been motivated by his desire to protect himself from pos- sible criticism. With matters in this posture, General Counsel's repre- sentative has, within my view, made a prima facie show- ing sufficient to support the inference, noted herein, that Respondent's opposition to Decker's conduct, herein found protected, was a prime "motivating factor" in General Manager Hillyer's discharge decision. Wright Line, supra. This having been established, our focus of in- quiry must shift to determine whether Respondent has persuasively demonstrated that Decker's termination would have been effectuated, when it was, even in the absence of his statutorily protected conduct. " Significantly, Respondent's general manager-though purportedly "ready to go to war" because of what he had observed the day before- made no references whatsoever to his presently claimed belief that Decker had misrepresented his reason for failing to report for work on January 15; nor did he challenge Decker's previously proffered rationale, with references to his, Hillyer's, purported January 15 sighting of Deck- er's truck, parked near a Colville tavern, or elsewhere. 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon this record, I am satisfied that Respondent has not successfully carried its burden of persuasion. Hillyer claimed, specifically on Decker's termination notice, that he was being discharged for "excessive" absences from work; when responding to Decker's unemployment com- pensation claim, however, Respondent merely contend- ed-so the employment security department's representa- tive reported-that he had been absent without "calling in" several times. Herein, Respondent proffers no persua- sive testimonial or documentary support for either con- tention. 3 7 Further, Decker was never informed, prior to his dis- charge, that his job was in jeopardy because of his ab- sences or purported failures to give timely notice. Re- spondent's contention that his termination was causally related to such purported deficiencies must be considered pretextual. With respect to Respondent's claim that Decker's per- formance had been less than satisfactory, the firm's record presentation likewise carries no persuasive thrust. Hillyer, who became Respondent's general manager early in December 1978, had never given Decker a field assignment, and Respondent's Sara May Lumber Compa- ny field project had been completed prior to Decker's mid- December transfer to Fierro's shop complement, 1 month prior to his discharge. While on Respondent's lumber company project, Decker had not been taxed, so I have found, with performance deficiencies. Hillyer's comments with regard to Sara May Lumber Company's purported "complaints" had been proffered as mild, cau- tionary admonitions; Decker had been given no indica- tion that his job tenure might be jeopardized. With mat- ters in this posture, Respondent's patent "reaching back" when challenged to justify Decker's termination clearly smacks of pretext. Assuming, arguendo, that Respondent's general man- ager was referring to Decker's January 5 conduct when he labeled the former field crew leader "unreliable" within his termination notice, I find Respondent's posi- tion, for reasons previously noted herein, lacking in record support. Hillyer's purported conclusion-that Decker's proffered reason for his failure to report had been mendacious, and that he had absented himself from work while engaged upon some "frolic" connected with personal business concerns-could only have been de- rived from simplistic inferences, bottomed on misunder- standings and/or mistaken premises with respect to which he had neither sought clarification nor verifica- tion. His purpored suspicions were never "spelled out" for Decker's edification, prior to, or concurrently with, the latter's discharge. I conclude, therefore, that Hillyer's purported reliance on his proffered rationale again smacks of pretext, calculated to camouflage his primary, statutorily proscribed, motive for Decker's separation. :" The record with respect to Decker's calendar year 1978 absences must be considered less than clear. Respondent's former field crew leader claims a limited number of absences, with respect to which he had con- sistently reported in a timely fashion. Respondent's purportedly contra- dictory showing rests on generalized testimonial proffers, merely. During January 1979 shortly prior to his discharge, Decker had been absent for 3 days due to an industrial accident, and I day because of his truck's brake problem. No failure to "call in" with respect to these absences has been claimed. 2. Interference, restraint, and coercion Despite Hillyer's proffered denials, determinations have been made herein that, following his January 15 re- ceipt of the Union's recognition demand, the general manager questioned Fierro, together with a number of his fellow shop workers, regarding the Union's cam- paign. Various people were questioned with regard to who had started the union talk, who had distributed the Union's designation cards, and who had signed such cards; several were queried, generally, with regard to what they knew about the union activity." s During conversations with Fierro and Don Fairall, Respondent's general manager further threatened that- for the purpose of foreclosing Respondent's unioniza- tion-the firm might be shut down for 30 days, while its current crew complement might, consequentially, face termination. Such interrogation and threats clearly may reasonably be considered calculated to interfere with, restrain, and coerce workers-both those directly addressed and those who might be affected, should any verbalized threats be consummated-with respect to their exercise of rights statutorily guaranteed. Likewise, I find, Hillyer's statement to Fierro that he was being terminated for distributing union designation cards-together with his subsequent statement to Decker that he, Decker, was being discharged because Respond- ent did not want some "damn union" representing its shop personnel-carried a coercive, statutorily pro- scribed, threat. Within his brief, the General Counsel's representative contends that General Manager Hillyer transgressed per- missible limits when, during a March 22 roadside meet- ing, he queried Respondent's previously laid-off "trap" cleaner, Yardley, regarding his "politics." Yardley, testi- fied that he considered Hillyer's query a disguised at- tempt to probe his feelings with regard to the Union's presence. I have not, however, been persuaded. While a witness, Hillyer contended that his query had been prof- fered jokingly, prompted by Yardley's purported pen- chant for promotional "schemes" which never seemed to pan out; though his reference to politics, supposedly within such a context, may have been somewhat unusual, it can hardly be considered farfetched.9 as While a witness, Hillyer conceded that he had questioned Bryan Byrd, then a rank-and-file shop worker, together with another worker, never named, with regard to these matters. He contended merely that he had chosen to question them because he believed they would respond truthfully; assuming, arguendo, that, by this testimony, Hillyer meant to suggest they were queried because they would not have been likely, within his view, to consider such interrogation threatening or coercive, I find such a suggestion beside the point. Interrogation reasonably calculat- ed to produce responses concerned with the conduct of workers exercis- ing statutorily guaranteed rights transgresses permissible limits, whether the workers questioned do, or do not, subjectively consider themselves interfered with, restrained, or coerced thereby. Further, Respondent's subsequent decision, within the week, to designate Byrd as Fierro's suc- cessor clearly could not nunc pro tune render Hillyer's prior interrogation noncoercive, within the meaning of the statute and relevant Board deci- sions too numerous to cite. as According to Webster's Collegiate Dictionary, the word "politic," when used adjectively, refers to conduct characterized by shrewdness; when compared with "expedient" the word connotes a lack of candor or sincerity in some degree. 754 ADDY MECHANICAL FABRICATORS On its face, Hillyer's query, within my view, merits characterization as equivocal; the likelihood that it was calculated to interfere with, restrain, or coerce Yardley with respect to his prospective exercise of statutorily guaranteed rights can hardly be considered preponder- antly demonstrated within the present record. Finally, the General Counsel's representative contends that Respondent's general manager during a lengthy rather discursive March 26 conversation with Marcus Ross, previously considered herein, had interrogated and threatened the recently laid-off "trap" cleaner. Further, he contends that Hillyer had, concurrently, created the impression, within Ross' mind, that union activities par- ticipated in by Respondent's shop crew complement had been kept under surveillance. With respect to these con- tentions, however, I find myself balanced in doubt. Though I have herein found Ross' testimony generally credible, his detailed recapitulation with respect to Hil- lyer's purported March 26 statements, particularly, sug- gests contrivance. 40 Nevertheless, when confronted with the laid-off trap cleaner's recital, Hillyer testimonially conceded that their March 26 conversation had, indeed, compassed refer- ences to the Union; he professed a failure of recollection regarding its course, and could merely proffer general- ized denials, with respect to Ross' testimonial version, when presented with a congery of leading questions. With matters in this posture, the record presents a trier of fact. on the one hand, with Ross' highly improbable narrative, countered merely with some less than persua- sive denials. On balance, however, the General Counsel's representative, who must, under these circumstances, carry the burden of persuasion, has not, within my view, preponderantly demonstrated, through credible testimo- ny, that Hillyer made the statutorily proscribed state- ments during his March 26 conversation with which Re- spondent has herein been charged. 3. Fairall's layoff for lack of work As previously noted, Dean Fairall was laid off by Re- spondent's general manager on February 2, Respondent's regular payday. Fairall, a welder-fabricator, who had been primarily doing fabrication work, was given a ter- mination notice which reported that he was being laid off "due to lack of work" but would be considered for 40 On March 21, the Union had won representative status. Directly thereafter, Ross had been laid off, together with two fellow workers, pur- portedly for lack of work. His visit to Respondent's facility had been sparked by Hillyer's report that some "trap" cleaning work would be available. Under these circumstances, logic suggests that Hillyer would hardly have been likely to transform their discussion regarding some merely available work into sustained conversation, largely devoted to the Union's ballot box victory, that victory's foreseeably deleterious conse- quences, candid revelations with regard to Hillyer's proclaimed knowl- edge relative to Ross' secret-ballot vote, his disappointment with the trap cleaner's vote, comments with regard to how their "union mess" had gotten started, forecasts relative to what might happen should Respond- ent's workers strike, further candid revelations that a union meeting had been tape recorded by a "planted" company employee, and comments calculated to suggest that prospective contract negotiations might be dragged out interminably. I note, in this connection, that Ross claimed Hillyer had shown him, during their March 26 conversation, the unfair labor practice charge, bottomed on Ross' prior termination, which the Board's Regional Office had not received or docketed until March 27. rehire. When Fairall was given his layoff notice, Hillyer told him that Respondent had to let him go because the firm's "welders" would have to be retained. The General Counsel's representative contends, never- theless, that Respondent's proffered "lack of work" rationale for Fairall's layoff should be considered pretex- tual. He seeks a determination that Fairall was really sep- arated because he had, several days previously, jokingly displayed a union representative's business card in Re- spondent's toolroom, while the firm's secretary was for- tuitously present, and because General Manager Hillyer had thereafter become incensed when he learned about the welder-fabricator's business card display. Within the present record, however, the General Counsel's representative proffers no direct testimony which would persuasively warrant a determination that Respondent's proffered "lack of work" reason for Fair- all's separation should be considered contrived. Rather, he relies on collateral testimony solely. Viz: First, Fairall's proffered recollection that Bryan Byrd had told him, before his layoff, that Hillyer had been notified of the business card joke, and had been angered by it. Second, Ross' testimony that, subsequent to Fair- all's departure, Byrd, when queried with regard to why the welder-fabricator had been laid off, had de- clared his "thought" that Fairall had waved his "union card" before the wrong people. Third, Decker's testimonial report that Byrd had told him Fairall had been laid off "to check out his attitudes," though there had been nothing wrong with his attitude. Byrd had-so Decker testified- declared that Fairall had "flashed" a Boilermakers Union card in Secretary Conover's office, and "somebody" had seen it. Bryan Byrd-subpenaed as the General Counsel's wit- ness and characterized by General Counsel's representa- tive as an "honest" person who would not report things" unless they happened-declared, however, that he could not "recall" making the statements which Fairall, Ross, and Decker have herein severally reported. Considered in totality, the present record, within my view, provides no sufficient warrant, prima facie, for the General Counsel's contention that Fairall's layoff derived from statutorily proscribed considerations. My determi- nations, in this connection, rest upon several grounds. First: I note Fairall's testimony that, when he "flashed" Business Representative Rawlins' business card, he had done so briefly; that Respondent's secretary had then been some 15 feet distant; and that, presumably, she would not have been able to read the card or deter- mine its contents precisely. The welder-fabricator's wit- ness chair report, regarding this matter, warrants a deter- mination, further, that he had merely designated the card displayed as Business Representative Rawlins' business card. The likelihood that Respondent's secretary would have considered the designated "incident" significant, I consider remote. Second: Fairall conceded, while a witness, that, when he was terminated, the firm's secretary had told him she had not reported the business card incident to Respond- 755 DECISIONS OF NATIONAL ent's general manager. Though Fairall purportedly re- called a concurrent concession, on Secretary Conover's part, that she had related the incident to Mack Lamb, President LeCount's brother-in-law who worked nearby for Chewelah Contractors, LeCount's wholly owned firm, nothing within the present record would warrant a factual determination that Lamb had relayed Conover's story to Respondent's president or general manager. Any such conclusion would necessarily have to rest on full credit given Fairall's present hearsay report with regard to Conover's prior declaration that she had told Mack Lamb coupled with a determination that she had, indeed, done so, plus a purely speculative deduction that Lamb had thereafter communicated her recital to his brother- in-law or Respondent's general manager. Upon this record determinations that Respondent's management had somehow been made cognizant of Fairall's presump- tive union sympathies and had consequently determined to dispense with his services would therefore be bot- tomed, finally, merely on supposition. Though the Gen- eral Counsel's suggested chain of communication and causation may be conceivable, speculation that Fairall's layoff was discriminatorily effectuated, merely because it could have been so motivated, will not suffice. Third: While a witness, Bryan Byrd could not "recall" making any statements calculated to suggest that Fairall's layoff had been discriminatorily motivated. Upon this record, his professed failures of recollection-proffered as denials-cannot be, within my view, categorically re- jected; nothing within the record suggests how he might have gleaned the information, with respect to Hillyer's motivation for Fairall's layoff, which he purportedly dis- seminated. Should his presumptive denials be discredited, however, the General Counsel's presentation, with re- spect to Fairall's layoff would, within my view, still lack persuasive thrust. When, arguendo, Byrd made his pur- ported comments with respect to Hillyer's motivation, he was serving as Fierro's shop replacement. His testimony warrants a determination that, while so designated, he had "the same duties [and responsibilities] in dealing with the men in the shop" which Fierro had previously borne. Necessarily, therefore, Byrd could not realistically have been, then, considered management spokesman. His putative comments, with respect to Hillyer's presumptive motivation or Fairall's layoff, when made, could not le- gitimately have been considered vicarious admissions, binding upon Respondent's management. Nor can this Board, within my view, consider them probative "admis- sions" for present purposes. With matters in this posture, the General counsel's representative, I find, has failed to make his prima facie case that Fairall's layoff had been motivated, in any degree, by his casual "business card" display, presump- tively revelatory of his union sympathies. Should this Board, upon review, consider contrary de- termination warranted, I would note further that Re- " Previously, within this decision, I have found Fierro's position non- supervisory. In substance, I have found that Fierro was merely a so- called straw boss who had provided leadership and direction by virtue of his prior experience and superior skills, rather than by virtue of some generally recognized status as management's shop representative. spondent has, within my view, persuasively demonstra- tated, through its testimonial and documentary presenta- tion, that Fairall's layoff was effectuated for business rea- sons which, presumably would have prompted his sepa- ration even absent his presumptive "pro-union" manifes- tation. The record warrants a determination, which I make, that Respondent's volume of work on hand normally falls during the winter months. This pattern was, so I find, manifested during the December 1978-February 1979 period with which the General Counsel and Re- spondent have been concerned. In that connection, Re- spondent's business records-specifically, its payroll data compassing gross payroll figures and total hours worked by shop and field crews-reveal that the firm's manpow- er needs dropped precipitously following the 2-week payroll period which ended on Sunday, January 14, 1979; total compensable hours worked fell from 576 during the single week which ended on January 21, to 433 during the calendar week ending Sunday, February 4, within which Fairall was separated. 42 Though Respondent's manpower needs rose slightly during the week which followed, they reached their winter lows during 2 successive payroll weeks directly thereafter. Total hours worked did not rise to their Janu- ary 21 payroll week preslump level until the week which ended March 11. While a witness, Fairall conceded that another shop worker-specifically Jerry Ringer, an experienced fabri- cator-had likewise been given a February 2 termination. He testified further that he had "heard" four shop- workers would be laid off, or were laid off, on February 13. These layoffs would have taken place within the 2- week period, previously noted, when Respondent's shop "total hours worked" reached their winter low; though Respondent's presentation reflects no direct documenta- tion with respect to such layoffs, Fairall's testimonial concession regarding them stands without challenge or qualification. The welder-fabricator may have had "four hours of work" left on the specific project he was working on when laid off. Further, there may have been specific tasks requiring 2 or 3 hours of work per week for which Fairall had concededly been considered well qualified. Upon the record, however, Respondent's business judg- ment that seasonal reduction in force was warranted, and that Fairall was, for the moment, considered a dispensa- ble man, cannot be gainsaid. With matters in this posture, then, I conclude and find that Respondent's burden of persuasion with respect to its business-related justification for Fairall's layoff has been satisfied. 4. Respondent's March 21 layoffs Within his amended consolidated complaint, the Gen- eral Counsel charges that Respondent, through its gener- al manager, Hillyer, laid off employees Galvin, Ross, and Yardley on March 21; further, the General Counsel 42 Since he was laid off on Friday, February 2, Fairall's separation had not, presumably, been responsible for the drop in total hours worked, re- corded for the payroll period which ended on Sunday, thereafter. 756 LABOR RELATIONS BOARD ADDY MECHANICAL FABRICATORS charges that Respondent has, since their layoffs, failed and refused to recall them to their former or substantial- ly equivalent positions because of their union and/or protected concerted activities. These charges have, however, been set forth in greater detail, within the General Counsel's brief. He contends therein, for the first time, that Respondent violated Sec- tion 8(a)(1) and (3) of the statute: when Hillyer laid off the trap cleaning crew, Galvin, Ross, and Yardley on March 21, and termi- nated them on or about March 28.... [Emphasis supplied.] Consistently therewith, the General Counsel seeks reme- dial directives calling for the trap cleaning crew's pres- ent reinstatement, plus "make whole" reimbursement for their loss of wages and benefits, calculated without regard for their putative terminations, following their conceded search for "interim employment" whereby their losses might have been mitigated. Further, the Gen- eral Counsel seeks a directive requiring Respondent to expunge from its records whatever entries those records might contain purporting to show that Galvin, Ross, and Yardley had been discharged for "forming a company" which would function as Respondent's competitor. The General Counsel's contention that statutorily pro- scribed considerations were "motivating factors" when Galvin, Ross, and Yardley were laid off, however, de- rives-like his contention with respect to Fairall's layoff-solely from deductive inferences bottomed upon the record considered in totality, rather than direct proof. He cites five record bases, from which he would have this Board deduce that the trap cleaning crew's March 21 layoff had been discriminatorily motivated; these bases, within my view, merit critical consideration. First, the General Counsel would have this Board note that Galvin, Ross, and Yardley were laid off directly fol- lowing the Union's successful bid for representative status. Within its situational context, however, their layoffs' timing, so I find, cannot reasonably be considered sus- pect. 43 The reoord, herein, reveals that Galvin, Ross, and Yardley had been concerned primarily with "cleaning" operations confined to Northwest Alloys' traps, lids, and related reduction plant equipment. Respondent's services with respect thereto, however, had since its commence- ment been rendered pursuant to consensual arrangements which both Respondent and Northwest Alloys consid- ered temporary. NWA's documentary commitment to deliver "traps" for cleaning had been written with a June 30, 1979, termination date; Respondent had been notified, however, that Northwest Alloys' trap deliveries might be " Layoffs directly following some concerned employer's receipt of notice regarding a labor organization's representation claim have, most frequent- ly, been considered-absent some persuasive showing in rebuttal which would warrant a contrary conclusion-discriminatorily motivated. Simi- larly, layoffs effectuated during a labor organization's campaign for repre- sentative status-which might conceivably influence forthcoming vote's result-have frequently been found, absent some persuasive showing of justification, violative of the statute's mandate. Layoffs following a labor organization's confirmed ballot box victory, however, can hardly be consid- ered, on their face, calculated to promote some statutorily proscribed ob- jective; some further showing, persuasively revelatory of the concerned employer's forbidden motive, would seem required. "phased out" by the conclusion of that calendar year's first quarter. The firm's records, with respect to such work, reveal-consistently with NWA's prior declarations- that "traps" delivered for cleaning during March 1979 had declined in number significantly. Respondent had re- ceived some on March 6 and 9; the last of these had been returned by Monday, March 19.44 By Wednesday, March 21, Respondent retained no Northwest Alloys traps, previously delivered, which re- quired its trap cleaning crew's services. Under these cir- cumstances, the fact that Galvin, Ross, and Yardley were laid off concurrently with the Union's election victory, though certainly an arresting coincidence, can hardly be considered suggestive of some statutorily proscribed mo- tivation. Second, the General counsel contends that Respond- ent's proclaimed rationale for these challenged layoffs- that the trap "cleaning" crew's "occupational function" had been "absorbed" or "taken over" by another compa- ny-should be considered false, therefore pretextual, and consequently suggestive of the firm's hidden, statutorily forbidden, motive. I have not been persuaded. Northwest Alloys had concededly notified Respondent-some time previously-that it would eventually undertake to clean its slag clogged traps and related plant equipment itself.' Therefore, when trap deliveries declined to the point where they had seemingly been suspended, Respondent's management could reasonably conclude, within my view, that NWA's previously proclaimed "phase out" program was being implemented, and that Respondent's trap cleaning services might no longer be required." Though Galvin, Ross, and Yardley received termina- tion notices which failed to designate them as eligible for rehire, they were concededly told that they were eligible and that, in fact, Respondent would be legally bound to communicate with them, relative to their recall, before hiring replacements. Such commitments, within my view, cannot be reconciled with the General Counsel's contention that Respondent's layoff decision with respect to Galvin, Ross, and Yardley reflected a determination to dispense with their services for statutorily proscribed reasons. Third, the General Counsel suggests that-when Gen- eral Manager Hillyer offered Yardley recall-the fact that he did so after he had queried the trap cleaner re- garding his "political ambitions" generally, and had been told responsively, by Yardley, that he was not a union " The record warrants a determination that Respondent had billed NWA, for March trap "cleaning" work, on the last designated date; the traps, however, may conceivably have been cleaned and physically "re- turned" prior thereto. " Whether it proposed to perform such trap "cleaning" work within its local magnesium reduction plant, or within some facility located else- where, cannot be determined from the present record. " Though Northwest Alloy's representatives, so far as the record shows, had never told Respondent's management, prior to March 21, that the firm would not, thereafter, be given any more traps to clean, General Manager Hillyer could, so I find, reasonably draw that conclusion; his failure to seek verification with respect to such a deduction, though pos- sibly subject to criticism when considered with the benefits of hindsight, can hardly support a determination that he was consciously and deliberate- ly, seeking a pretext which would justify layoffs. 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member and had never been one prior thereto, provides collateral support, retrospectively, for a determination that Yardley's prior March 21 layoff had been motivated by antiunion considerations. This suggestion, within my view, merits rejection; it reflects a possible misconstruc- tion of the record. Despite Yardley's testimony, the record, considered in totality, will not warrant a determi- nation, beyond peradventure of doubt, that he was not invited to resume work until after he had disclaimed cur- rent or prior union memberships Previously, within this Decision, I have found Hil- lyer's possible references to Yardley's "politics" suffi- ciently equivocal to preclude a determination that they constituted statutorily proscribed interrogation. I now find further that Yardley's purported response, based on his presumptive construction of Hillyer's query, did not merely convey disclaimer of union membership; accord- ing to Yardley, he likewise told Hillyer that he would support the tradesmen in which direction they would go hereafter. In short, the trap cleaner's remarks-were I to presume, arguendo, that they have been correctly report- ed-clearly revealed his readiness to endorse the decision of his former fellow workers with respect to union repre- sentation. Recall offers, presented under such circum- stances, can hardly be considered post hoc evidence that prior layoffs had been discriminatorily motivated. Fourth, the General Counsel contends that Hillyer's discursive March 26 litany-purportedly compounded of complaints, confessed statutory violations, declarations of disappointment directed to Ross particularly, and threats to report the former trap cleaner's union sympathies to prospective employers-reveals his persistent antiunion bias and should be considered "evidence" that Respond- ent's March 21 layoffs had been generated by statutorily proscribed considerations. However, previously herein, I have found Ross' testimonial recitals, with respect to what Respondent's general manager purportedly said, unworthy of full faith and credit. I now find further that the former trap cleaner's testimony will not support a de- termination, retrospectively, that his crew's March 21 layoff had been discriminatorily motivated. Fifth, the General Counsel would have this Board note that Respondent's management, during previous slack pe- riods when there were no traps to clean, had assigned other work to the trap cleaning crew. The record, how- ever, provides no testimonial or documentary proof that such practice had been uniformly followed. Yardley had once been laid off for some undeterminate period. Ross had likewise been laid off for at least one February day. Galvin had worked several short weeks. With matters in this posture, the General Counsel's suggestion-that Re- spondent's March 21 crew layoffs reflected a departure from management's past practice, sufficiently significant to support a determination that the layoffs derived from '7 Hillyer testified that, when they met, he had queried Yardley, straightaway, with respect to whether he wanted to come back to work. Though he conceded that he had, theretofore, regularly chivied Yardley about his "politics" every time they met, he proffered a version, distinct- ly different from Yardley's, with respect to their March 22 highway con- versation. Yardley, while a witness, concededly voluntarily that he could not recall Hillyer's precise words. a purpose to discriminate, bottomed on statutorily pro- scribed considerations-carries no persuasion. The March 21 layoffs of Galvin, Ross, and Yardley, I find, cannot be considered, upon this record, discrimina- torily motivated. With respect to the General Counsel's contention that Section 8(a)(1) and (3) was likewise violated when Re- spondent converted the trap cleaning crew's layoffs into terminations, little need be said. Having found that Galvin, Ross, and Yardley were not laid off discrimina- torily, I conclude that their March 28 terminations cannot be considered a continuation or reaffirmation of prior discrimination statutorily proscribed. The General Counsel has not, however, charged Respondent with re- newed discrimination bottomed specifically upon their concerted effort to procure trap cleaning commitments from Northwest Alloys. Their course of conduct was testimonially canvassed; Respondent's reaction was, like- wise, detailed for the record. Respondent was never given timely notice, however, that the General Counsel considered the March 28 terminations of Galvin, Ross, and Yardley independently violative of the statute. This being so, no conclusions with respect thereto, within my view, would be warranted. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's busi- ness operations described in section 1, above, to have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States. Absent cor- rection, such conduct would tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. In view of these findings of fact, and upon the entire record in this case, 48 I make the following: CONCLUSIONS OF LAW 1. Respondent Addy Mechanical Fabricators and Con- structors, Inc., is an employer within the meaning of Sec- tion 2(2) of the Act engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Local No. 242, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain of Respondent's employees to member- ship. 3. Respondent's general manager-when he questioned employees with regard to their union activities and those of their fellow workers; when he threatened some of them with a possible plant closure and mass discharge; and when he notified some of them that two of their fellow workers had been terminated because of their sus- pected union activity or sympathies-interfered with, re- strained, and coerced Respondent's employees with re- spect to their excercise of rights statutorily guaranteed. "4 The corrections in the transcript are hereby noted and corrected. 758 ADDY MECHANICAL FABRICATORS Thereby, Respondent has engaged in, and continues to engage in, unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act, as amended. 4. Respondent's general manager, when he terminated Jose Fierro and Duane Decker and thereafter failed or refused to reinstate them, discriminated against them with respect to their hire and tenure of employment, and further interfered with, restrained, and coerced Respond- ent's employees, generally, with respect to their exercise of rights statuorily guaranteed. Thereby, Respondent has engaged in, and continues to engage in, unfair labor practices affecting commerce, within the meaning of Sec- tion 8(a)(3) and (1), and Section 2(6) and (7) of the Act, as amended. 5. The General Counsel has failed to establish, by a preponderance of reliable, probative evidence, that Re- spondent has otherwise committed cognizable unfair labor practices within the meaning of the statute. REMEDY Since I have found that Respondent Addy Mechanical Fabricators and Constructors, Inc., has committed, and has thus far failed to remedy certain specific unfair labor practices which affect commerce, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action, including the posting of appro- priate notices, designed to effectuate the policies of the Act, as amended. Specifically, I have found that Section 8(a)(3) and (1) of the statute was violated when Respondent's general manager discharged Jose Fierro and Duane Decker for statutorily proscribed reasons. I shall, therefore, recom- mend that Respondent be required to offer Fierro and Decker immediate and full reinstatement to their former positions or, should those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. Respondent should further be required to make Fierro and Decker whole for any pay losses which they may have suffered, or may suffer, by reason of the discrimination practiced against them, by the payment of sums of money equal to the amounts which each of them would normally have earned as wages, from the dates of their successive dis- criminatory terminations, herein found, to the date or dates on which Respondent offers them reinstatement, less their separately computed net earnings during the period designated. Whatever backpay Fierro and Decker may be entitled to claim should be computed by calendar quarters, pursuant to the formula which this Board now uses. F. W. Woolworth Company, 90 NLRB 289, 291-296. Interest thereon should likewise be paid, computed in the manner prescribed in Florida Steel Corporation 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1962), in this connection. Upon the foregoing findings of fact, conclusions of law, and the entire record, I hereby issue pursuant to Section 10(c) of the Act, as amended, the following rec- ommended: ORDER'49 The Respondent, Addy Mechanical Fabricators and Constructors, Inc., Addy, Washington, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging workmen or discriminating in any other manner with regard to their hire or tenure of em- ployment or their terms and conditions of employment, because of their known or suspected participation in some Union's campaign for representative status or be- cause of their participation in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection. (b) Interfering with, restraining, or coercing employ- ees-through questions, statements, or conduct compara- ble with those found violative of law, previously, within this Decision or in any other manner-with respect to their exercise of rights which Section 7 of the statute guarantees. 2. Take the following affirmative action which will ef- fectuate the policies of the Act, as amended: (a) Offer Jose Fierro and Duane Decker reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, and make them whole for any pay losses which they may have suf- fered because of the discrimination practiced against them in the manner and to the extent set forth within the "Remedy" section of this Decision. (b) Preserve, until compliance with any order for backpay made by the Board in this proceeding, and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and re- ports, and all other records relevant and necessary to reach a determination with respect to the amount of backpay due pursuant to this Order. (c) Post at Respondent's shop facility in or near Addy, Washington, copies of the notice marked "Appendix."5 0 Copies of said notice, on forms provided by the Regional Director for Region 19, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consective days thereafter, in conspicuous places, after being duly signed by Respondent's representative, including all places where notices to Respondent's shop and field employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) File with the Regional Director for Region 19, as the Board's agent, within 20 days from the date of this Order, a written statement setting forth the steps which Respondent has taken to comply herewith. '1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall be deemed waived for all purposes. s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 759