231 NLRB 982
Diversified Chemicals Corp.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diversified Chemicals Corp. and Oil, Chemical &
Atomic Workers International Union and its Long
Beach Local 1-128, AFLCIO-CLC. Case 21-
CA- 14755
August 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 30, 1976, Administrative Law Judge
Roger B. Holmes issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings
and conclusions of the Administrative Law Judge to
the extent consistent herewith.
The Administrative Law Judge found Respon-
dent's layoff of employees Thomas Myers, William
Hulburd. and Douglas Lumley justified by economic
considerations and dismissed the 8(a)(3) allegations
of the complaint. The General Counsel excepts,
contending the layoffs were motivated by the
employees' union activity and that the economic
reasons advanced by the Respondent for the layoffs
were pretextual. We find merit in the General
Counsel's exception.
Before work on June 2, 1976,1 employee Simon
Varelas picketed Respondent's plant claiming unfair
wages. Later Varelas met with employee Thomas
Myers and the two arranged to hold a meeting at
Varelas' home after work. During the workday
Myers informed his fellow employees of the meeting,
passing out copies of a map to Varelas' home, which
he had drawn and duplicated on Respondent's
copying machine. Also, during one of his delivery
runs, Myers visited Oil, Chemical & Atomic Workers
Union Local 1-128 and obtained blank authorization
cards.
The meeting was attended by 26 or 27 of
Respondent's employees. At the meeting Myers
discussed the Union and passed out the authoriza-
I Unless otherwise indicated all dates refer to 1976.
This statement was neither alleged nor found violative of Sec. 8(aXl).
:' Our dissenting colleague charges that we have rejected this explanation
found persuasive by the Administrative Law Judge. Although we have in
fact accepted this testimony, we conclude that the existence of a reason,
whether legitimate or not, for denying Myers "bumping" privileges has no
bearing whatsoever on the legality of his layoff itself.
231 NLRB No. 165
tion cards; all but one employee signed, including
the two other alleged discriminatees, Hulburd and
Lumley. The following day Myers returned the
signed cards to the Union, which filed a representa-
tion petition and sent a demand for recognition to
Respondent.
On June 3, Plant Manager Bob Davis questioned
Varelas as to what the meeting the previous night
was about. Later in the day, Davis also questioned
employee David Gates and inquired specifically
about the Union. The Administrative Law Judge
found that these interrogations constituted unlawful
coercion and conveyed the impression that Respon-
dent had engaged in surveillance of its employees'
union activity, thereby violating Section 8(a)(l).
On June 5, 15 or 16 employees attended a meeting
held at the union office, during which Myers
presided with the union officials.
On Monday, June 7, Respondent received a copy
of the petition. On the same day, Davis laid off
Myers, Hulburd, and Lumley. Before Myers' layoff,
he was approached by Supervisor Causland who
stated he would "get" Myers if any of the "trouble"
Myers was causing required Causland to work
overtime.2 When Myers was informed of his layoff,
he requested that Davis transfer him to the mixing
plant by laying off one of the employees there who
had less plant seniority than he. Davis responded
that such a transfer would be too much trouble in
that Myers would have to be retrained for the job.3
Although the Respondent had previously faced
temporary slow periods, Davis, in his 2-1/2 years as
plant manager, had never laid anyone off; 4 and in
fact there had not been a layoff in the chemical
division for at least 7 years. During slow periods,
layoffs were avoided by assigning odd jobs, transfer-
ring employees to other divisions, and granting
requests for days off or short leaves of absence.
On June 8, the Union filed unfair labor practice
charges alleging that Myers, Hulburd, and Lumley
were discharged for union activity. On June 10,
Respondent received the Union's demand for recog-
nition.
Respondent recalled Lumley on July 21; he
declined. On July 22, Myers was offered recall to
work in the mixing plant, the work which Davis had
refused him at his layoff. Myers refused. Hulburd
was offered and accepted recall on July 26, worked
for about 3 days in the mixing plant, and then
4 In this regard, Davis testified that he had "thought" about layoffs
before but had taken no action and that Respondent's management was
basically "soft-hearted" and reluctant to lay off employees. Thus, contrary
to our dissenting colleague's contention, the record evidence clearly shows
that Davis, durng his tenure as plant manager, had faced the question of
conducting a layoff and decided against it.
982
DIVERSIFIED CHEMICALS CORP.
returned to his previous classification of light truck
driver.
The Administrative Law Judge found that the
coercive interrogations conducted by Davis on June
3 evidenced Respondent's union animus. Inexplica-
bly, however, he did not view the threat by Causland
to be of any significance in that the word "trouble"
was ambiguous and also that Causland took no part
in the layoff decision. The Administrative Law Judge
then found that Myers' open support of the Union
within Respondent's small work force warranted a
finding that Respondent was aware of his union
activity. However, in regard to Hulburd and Lumley,
he found no basis for such a finding because they
only attended meetings and signed cards, as had the
other employees. He next summarily found that the
timing did not support an inference of discriminatory
motive. In so finding, the Administrative Law Judge
relied heavily on the testimony of Davis that, 10 days
prior to the layoffs, he met with Vice President
Mitchell to discuss the fact that the work was slow
and a layoff might be in order. In this regard.
however, he also found that Davis did not make the
final decision on the layoffs until the morning of
June 7, after making a tentative decision over the
weekend. Finally, disregarding the figures for Re-
spondent's total sales and for total hours worked by
employees, the Administrative Law Judge credited
the testimony of Davis to the effect that business had
been gradually declining, several contracts had been
lost, and both equipment and employees had been
standing idle in the workyard, and concluded that
Respondent faced a temporary slowdown in business
which justified the layoffs.5
Contrary to the Administrative Law Judge, we
believe the facts as found establish that the layoffs
were discriminatory in nature. In addition, we
believe the Administrative Law Judge erred in failing
to attach significance to the remark of Supervisor
Causland. For, in light of Myers' active and open
effort on behalf of the Union, we find the conclusion
virtually inescapable that Causland was referring to
('ontr;iar
to our dissenting colleague's accusation, we have accepted
rather than rejected this credited testimony. However, contrary to the
Administrative Law Judge, we conclude that such circumstances do not in
and of themselves establish that Respondent's economic situation justified
the layoffs. For there is no evidence that these conditions differed in any
way from those in which, according to Davis' credited testinronv, Respondent
had consistently refused to lay offemployees in the past.
,I M J. Pirohi & Sons, Inc.. 194 NLRB 241, 245 (1972); Angwell Curtain
Contpan., Inc., 94 N RB 675 (1951). enfd. 192 F.2d 899 (C.A. 7, 1951).
7 The credibility resolution upon which our dissenting colleague relies
goes only to and is made in the context of the Administrative Law Judge
crediting Davis' testimony that Davis and Mitchell met and discussed the
possihilits of' a laI)of: Contrary to our colleague's accusation, we have not
stated the Administrative Law Judge's credibility resolution is wrong. for we
have accepted it. We have found onlyv that. even accepting his credibility
resolution and the finding of fact which results therefrom. the Administra-
ikse L.aw Judge's conclusion as to whether the layoff was discriminatory is
wrong. For the fact that Mitchell and Davis discussed and rejected the
Myers' union activity.6 Respondent's knowledge of
union activity and opposition thereto is obviously
established by the coercive interrogations as found
by the Administrative Law Judge.
Hulburd and Lumley attended the initial employee
meeting, along with a substantial majority of Re-
spondent's work force, and signed cards. The
following day Davis conducted coercive interroga-
tions which indicated that Respondent had engaged
in surveillance of the meeting. Hulburd and Lumley
were then laid off along with Myers, the most active
union adherent. These facts establish that Respon-
dent was aware a majority of its employees had
signed cards and knew that Hulburd and Lumley
were part of that majority.
The timing of the layoffs further evidences their
discriminatory nature. They occurred on the third
workday after the employees' initial union activity.
Respondent knew of that activity almost immediate-
ly, as is evidenced by Davis' coercive interrogations
of June 3. Most significantly, the layoffs were
contrary to Respondent's 7-year practice of not
laying off employees during temporary slowdowns.
The Administrative Law Judge's reliance on the
meeting between Davis and Mitchell 10 days prior to
the layoff as proof of an absence of discriminatory
motive is misplaced. The fact this meeting took place
prior to the date when the employees first engaged in
union activity in no way establishes the layoffs were
not motivated by that activity since no decision was
reached at that meeting. Rather, Mitchell and Davis
decided only that a layoff should be thought about
and that Davis should wait to see if business
improved. In fact, the result of that meeting was a
decision not to layoff employees during an ostensible
slow period, a decision in accordance with the
normal practice of Respondent. As the Administra-
tive Law Judge found, Davis came to no decision
regarding the layoff until after he had learned of the
employees' activity.7
Finally, contrary to the Administrative Law Judge,
we find Respondent's asserted economic defense to
possibility of a layoff in no way establishes that the layoff was not
precipitous as concerns a union campaign which began after their discussion
or that such campaign was not the reason for the layoff. To the extent our
dissenting colleague accuses us of rejecting other portions of Davis'
testimony, his analysis is similarly deficient: see fns. 3 and 5. supra., and fn.
8. infra. Our colleague apparently does not understand the difference
between drawing a conclusion from an accepted fact and overturning that
finding of fact itself.
Drawing a conclusion or finding an ultimate fact from the given facts is
the Board's function and responsibility under the statute. If our colleague
means to imply the Administrative Law Judge may make a demeanor
credibility finding on the question of ultimate fact
i.e., crediting a
respondent's statement "I did not discnminatoril) la) off the employees" or
"I laid them off for economic reasons only"
then it is he that needs a
refresher course on both Standard Dr, Wall Products. Inc. 91 NLRB 544
(1950). enfd. 188 F.2d 362 (C.A. 3. 1951), and the statute. As the Ninth
Circuit said in Shattuck Denn Mining Corporation (Iron King Branch) v.
N. L.R.B., 362 F.2d 466. 470 (C.A. 9. 1966):
(Continued)
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be pretextual. Respondent's records reflecting total
sales and total hours worked by employees on a
monthly basis for the period of January 1975 to
August 1976 indicate that both totals fluctuated from
month to month. However, on the whole, the records
show that 1976 sales were up over those of 1975 while
total hours worked remained relatively the same. The
records also reveal that sales for the months of April,
May, and June were neither unusually high nor low.
The Administrative Law Judge found that no
direct relationship existed between total sales and
total hours worked, and that the monthly figures
were therefore unreliable as an indicator of the
amount of work Respondent had available. Yet while
his analysis may undermine the reliability of the sales
figures as an indication of the amount of work, it in
no way detracts from the reliability of the figures for
total hours worked by employees. In this regard,
May, the month preceding the layoffs, was the
busiest of the 2-year period, with April and June
appearing to be average. In fact, Myers and Hulburd,
as well as the other employees in their classification,
accumulated overtime during most of the weeks
preceding their layoffs, and Lumley and all the
employees in his classification accumulated overtime
for the month of May.
Concerning that overtime, Davis testified that the
nature of Respondent's business made it possible for
employees to accumulate large amounts of overtime
even during slow periods, since Respondent must
work employees to fill orders which come in at the
end of the workday or during the weekend.8 Yet,
Respondent introduced virtually no evidence to
show the overtime accumulated by its employees
during the period in question to be the result of that
situation or any other situation which would cause
such overtime to differ from that accumulated during
busy periods. Nor did Respondent show that the
ostensible slow period was more severe than the
other slow period which had occurred in the previous
7 years, when there were no layoffs. Likewise no
evidence was introduced which shows Respondent's
financial position to have weakened. In fact Respon-
dent's total sales were exceeding those of 1975.
Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book.
Here quite simply we have accepted the Administrative Law Judge's
credibility resolution that Davis and Mitchell discussed a possible layoff,
but have reached a different conclusion on the question of ultimate fact
based on the totality of the facts or circumstances as found by the
Administrative Law Judge.
K Although the Administrative Law Judge did not credit this testimony.
In conclusion we reject Respondent's economic
defense as pretextual and find that the layoff of
Myers, Hulburd, and Lumley was for their union
activities. The evidence of knowledge and Respon-
dent's hostility to the Union is clear. That such a
layoff was contrary to Respondent's longstanding
practice of not laying off employees during work
shortages is also clear. The only evidence on the
record which distinguishes the period surrounding
the layoff from other slow or busy periods during the
previous 7 years is the fact that Respondent's
employees engaged in a budding movement to
undertake union representation. Accordingly, we
find the layoffs violated Section 8(a)(3) and (I) of the
Act.
ADDITIONAL CONCLUSION OF LAW
Insert the following as Conclusion of Law 4 and
renumber the remaining paragraph as 5:
"4.
The Respondent violated Section 8(a)(3) and
(1) of the Act by its layoff of David Myers, William
Hulburd, and Douglas Lumley."
REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and
desist from the unfair labor practices found above
and from any other invasion of its employees' rights
under Section 7 of the Act; to take certain affirma-
tive action, including, to the extent not done so,
offering reinstatement to Thomas Myers, William
Hulburd, and Douglas Lumley, to their former
positions or, if such positions no longer exist, to
substantially equivalent positions,9 without loss of
seniority and other rights and privileges, as well as
the payment of backpay for earnings lost by them as
a result of the layoffs. Backpay shall be computed on
a quarterly basis, plus interest at 7 percent per
annum, as prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), Isis Plumbing & Heating Co.,
for it is not mentioned in his opinion, we have clearly not rejected it. As any
fair reading of our Decision shows, we only conclude that the fact it was
possible for employees to work overtime during slow periods does not, in the
absence of evidence that this was in fact the case, render the overtime
records unreliable as an indicator of the amount of work Respondent had
available. Furthermore, even if Respondent had in fact proved such, it still
failed to demonstrate that this slow penod differed from those in which
employees were not laid off. Thus. the General Counsel having established a
prima facie case, the Respondent has failed to establish its affirmative
defense of an economic slowdownjustifying the layoffs.
9 Although there is some evidence that the discrminatees were offered
reinstatement, the question of whether such offer encompassed their former
or substantially equivalent positions may best be determined in the
compliance stage of this proceeding.
984
DIVERSIFIED CHEMICALS CORP.
138
NLRB
716
(1962),
and
Florida Steel
Corporation. 10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Diversified Chemicals Corporation, Stanton, Califor-
nia, its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Laying off or otherwise discriminating against
its employees to discourage their support of Oil,
Chemical, and Atomic Workers International Union
and its Long Beach Local 1-128, AFL-CIO-CLC, or
any other labor organization.
(b) Interrogating its employees regarding their
union activities.
(c) Conveying the impression to its employees that
the Respondent had engaged in the surveillance of
their union activities.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2.
Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Thomas Myers, William Hulburd, and
Douglas Lumley to the extent it has not done so,
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and
privileges, and make them whole in the manner
prescribed in the Remedy section of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Stanton, California, place of business
copies of the attached notice marked "Appendix." '
Copies of the notice on forms provided by the
Regional Director for Region 21 of the Board, after
being duly signed by Respondent's authorized
representative,
shall
be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that the
"' In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977). we shall apply the current 7-percent rate for penods prior
to August 25, 1977, in which the "adjusted pnme interest rate" as used by
the Internal Resenue Service in calculating interest on tax payments swas at
least 7 percent.
notices are not altered, defaced or covered by any
other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER WALTHER, dissenting:
I disagree with my colleagues' reversal of the
Administrative Law Judge's finding that employees
Myers, Hulburd, and Lumley were legitimately laid
off for economic reasons. His conclusion was based
upon credibility resolutions which, in my judgment,
as a matter of policy should not-and as a matter of
evidence cannot-be reversed.
The Administrative Law Judge's conclusion that
the layoffs were motivated by economic rather than
union considerations is predicated primarily upon
the testimony of Plant Manager Davis. In determin-
ing the credibility of Davis as a witness, the
Administrative Law Judge stated:
I found Davis to be a credible witness who gave
clear and convincing testimony. He was knowledge-
able of the day-to-day activity at the plant since
he spent 12 hours a day at the plant and he
personally did the dispatching of work orders. He
had the opportunity to know first-hand about the
amount of the workload and the orders coming in
on a daily basis.
His knowledge of the workload at the time of the
layoff was more reliable than the [company ]
records because the monthly sales do not have a
direct relationship
to the number of hours
worked. [Emphasis supplied.]
On the basis of the credited testimony offered by
Davis-and in spite of other circumstances which
admittedly cast suspicion on the legitimacy of the
layoffs-the Administrative Law Judge concluded
that the layoffs had not been discriminatorily
motivated. As stated by the Administrative Law
Judge, "I conclude that through Davis and [Control-
ler] Hurtado the Respondent has established the
basis for its economic defense .... "
In reversing the Administrative Law Judge and
rejecting Respondent's economic defense as pretex-
tual, my colleagues are-despite their protests to the
1" 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary-effectively reversing his credibility resolu-
tions.12 In so doing, they offer no new evidence in
support thereof--i.e., nothing which the Administra-
tive Law Judge did not specifically consider in
making his initial credibility resolutions. We are not
told, for example, that the Administrative Law Judge
failed to consider certain evidence. Rather, we are
told that considering all of the evidence analyzed by
the Administrative Law Judge, his conclusions are
wrong and a different result is required.13
It is cases such as this one which lead me to
conclude that members of this Board would do well
to take periodic refresher courses in the teaching of
our Decision in Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951).
We noted in that Decision-which the Board so
often cites in denying exceptions to credibility
resolutions-that
the demeanor of witnesses is
frequently a factor of consequence in resolving issues
of credibility and that, since the Administrative Law
Judges, but not the Board, have had the opportunity
to observe the witnesses as they testify, considerable
weight should be afforded to their credibility findings
to the extent that they are based-as they are here-
on demeanor. It is only when a "clear preponderance
of all the relevant evidence" convinces us that the
resolutions are incorrect that reversal is justified.
The instant case provides a perfect vehicle for
application of the sound principles established in
Standard Dry Wall Products, Inc. The result here is
predicated primarily upon a demeanor credibility
12 My colleagues seek to mitigate the effect of their decision by arguing
that: (1) the only relevant credibility resolution involved concerns the
Davis-Mitchell conversation 10 days before the layoff, and (2) in any event,
they have accepted all of the Administrative Law Judge's credibility
resolutions and have merely reached a different legal conclusion. The
Administrative Law Judge relied on Davis' testimony not only with respect
to the conversation mentioned above, but also with respect to the timing of
the layoffs, the reason for denying Myers bumping privileges, and the
economic factors which precipitated the layoff decision. In addition, my
colleagues refuse to accept Davis' testimony regarding the accumulation of
overtime because, in their judgment, such testimony is unreliable in the
absence of corroborating evidence.
t3 In fns. 5 and 8 of their opinion, the majority attempts to buttress their
reasoning by asserting that Respondent's economic circumstances did not
differ in any way from its circumstances in the past where Respondent had
refused to lay off employees. This assertion does not comport with the
evidence in this case. As the Administrative Law Judge found, Respondent
laid off employees in the past, concededly the last such layoff having taken
place 7 years ago. Moreover, Davis testified nothing more than that
Respondent had not had a layoff in the prior 2-1/2 years that he had been
plant manager; there is, however, no indication that the question had ever
before arisen. As the Administrative Law Judge pointed out, because of the
nature of Respondent's business, Respondent's sales volume is not reflective
necessarily of the number of hours worked by its employees.
The most fundamental error in my colleagues' assertion, however, is that
they rely on the lack of evidence that the economic conditions material
herein differ from those of the past; I would remind them that it is for the
General Counsel to establish disparate treatment and not for Respondent to
prove the negative.
14 Compare my dissenting opinion in Buffalo Bituminous, Inc.. 227
NLRB 99 (1976), in which the Administrative Law Judge made no attempt
to "evaluate the respective testimony in terms of the rational probabilities."
resolution. In support thereof the Administrative
Law Judge provides us with a complete and well-
reasoned analysis of the record evidence.' 4 From the
standpoint of Board policy, as well as from the
standpoint of sound evidentiary principles, the
Administrative Law Judge's credibility resolutions
are virtually unassailable.
One final matter. In recent months we have
witnessed this Board's caseload increase at an
alarming rate. In spite of this, my colleagues are quite
willing to substitute their judgment based on the
reading of a cold record for the considered judgment
of an experienced and able Administrative Law
Judge who has had an opportunity to view the
witnesses firsthand. Given this, my colleagues' cries
of alarm about our ever-increasing caseload should
be received with about as much sympathy as pleas
for mercy by an individual who has murdered his
parents on the basis that he is now an orphan.
For the foregoing reasons, I would adopt the
Administrative Law Judge's Decision in its entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Los Angeles, California on
November 2 and 3, 1976, in which we participated
and had a chance to give evidence, resulted in a
decision that we committed certain unfair labor
practices in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act. This notice is posted
pursuant to that decision.
WE WILL NOT layoff or otherwise discriminate
against employees to discourage their support of
Oil, Chemical, and Atomic Workers International
Union and its Long Beach Local 1-128, AFL-
CIO-CLC, or any other labor organization.
WE WILL NOT interrogate employees regarding
their union activity.
WE WILL NOT convey the impression that we
had engaged in surveillance of employees' union
activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in the National Labor
Relations Act, which are:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
986
DIVERSIFIED CHEMICALS CORP.
To refrain from any and all these things.
WE WILL offer to Thomas Myers, William
Hulburd, and Douglas Lumley, to the extent we
have not done so, reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent jobs, without prejudice to their
seniority and other rights and privileges; and will
make them whole for any losses of earnings and
benefits suffered because of our unlawful act in
laying them off as a result of their union activity.
DIVERSIFIED CHEMICALS
CORP.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge: The
charge in this case was filed on June 8, 1976, by Oil,
Chemical & Atomic Workers International Union and its
Long Beach Local 1-128, AFL-CIO-CLC, herein called
the Union. The complaint was issued on July 26, 1976, on
behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional
Director for Region 21 of the Board. The complaint alleges
that Diversified Chemicals Corp., herein called the Re-
spondent, has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, herein called the Act. The Respondent filed
an answer to the complaint in which the Respondent
denied the commission of the alleged unfair labor practices
and raised certain affirmative defenses.
The hearing was held before me on November 2 and 3,
1976, at Los Angeles, California. Counsel for the General
Counsel and the attorney for the Respondent each made
oral argument on the record at the conclusion of the taking
of evidence.
Upon the entire record and based upon my observation
of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent has been at all times material herein a
California corporation engaged in the manufacture of
chemicals at its facility located at 8100 Electric Avenue in
Stanton, California. In the course and conduct of its
business operations, the Respondent annually sells and
ships goods valued in excess of $50,000 directly to
customers located outside the State of California, and the
Respondent annually has a gross volume of sales of a value
in excess of $500,000.
Upon these admitted facts, I find that the Respondent
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A.
The Issues
The principal issues presented by the pleadings in this
case are:
1. Whether the Respondent coercively interrogated its
employees on or about June 3 and 14, 1976, concerning the
union membership, activities, and sympathies of its
employees in violation of Section 8(aX 1) of the Act.
2.
Whether the Respondent made statements to its
employees on or about June 3, 1976, conveying the
impression that the Respondent had engaged in surveil-
lance of the union activities of its employees in violation of
Section 8(aXl1) of the Act.
3.
(a) Whether the Respondent discharged William A.
Hulburd, Douglas C. Lumley, and Thomas R. Myers on
June 7, 1976, and failed to reinstate them because of their
union or other protected concerted activities in violation of
Section 8(aX)(I) and (3) of the Act, as the General Counsel
contends, or (b) whether the Respondent laid off those
three employees temporarily for economic reasons and
offered them recall to work about 6 weeks later, as the
Respondent contends.
B.
The Representation Proceedings
A representation petition was filed on Friday, June 4,
1976, by the Union with Region 21 of the Board. The
petition sought an election in a unit composed of all hourly
paid employees of the Respondent and excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act. On the same date, the
Regional Director for Region 21 sent a copy of the petition
to the Respondent by ordinary mail.
Also on June 4, 1976, the Union sent a letter to the
Respondent by certified mail, return receipt requested. In
that letter, the Union asserted that it represented a majority
of the hourly paid employees of the Respondent and
requested recognition. The return receipt card from the
United States Postal Service was introduced in evidence.
The "date of delivery" space on the card was left blank by
the Postal Service. However, the space marked "clerk's
initials" does have a mark in it and stamped over those
initials and the surrounding area is what appears to be the
Postal Service's cancellation mark, "Stanton, Ca., June 10,
1976." A similar marking is on the other side of the card
which bears the Union's address. In addition, the Union's
date stamp shows that the receipt card was returned to the
Union on June 11, 1976. The Respondent is located in
Stanton, California, and the Union is located in Long
Beach. There is still another very faint Postal Service
cancellation mark on the card which appears, inexplicably,
to be "Whittier, Ca."
After considering the foregoing and the testimony of
Plant Manager Bob Davis, I find that the Respondent
received on June 7, 1976, a copy of the representation
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition mailed by Region 21 of the Board. I also find that
on June 10, 1976, the Respondent received the Union's
request for recognition.
On July 2, 1976, the Union and the Respondent signed a
Stipulation
for Certification Upon Consent Election
together with a Norris-Thermador list. The Board-conduct-
ed election was held on Wednesday, August 11, 1976.
There were 13 votes against the Union and 12 votes for the
Union with I challenged ballot. On August 19, 1976, the
Regional Director for Region 21, on behalf of the Board,
issued a certification of the results of the election.
The findings of fact in this section are based on
documentary evidence, a stipulation by the parties, and the
testimony of Davis.
C.
The Picketing of the Respondent's Plant by
Varelas
Simon Varelas picketed the Respondent's plant on
Wednesday, June 2, 1976. He had three picket signs which
protested what he considered to be low wages for himself.
Following his picketing, he discussed his dissatisfactions
with the Company with Plant Manager Bob Davis and
Vice President Jerry Mitchell. He talked with them
concerning his wages and discovered that he had already
gotten a raise in pay. He had not previously realized that
fact because no one had informed him that he had received
a raise, and he was working so many hours that he had not
recognized the increase in his pay. He acknowledged that
at no time during their conversation did Davis threaten
him.
The findings of fact set forth above in this section are
based on the testimony of Varelas.
D.
The Meeting at Varelas' House
Following Varelas' conversation with Davis and Mitch-
ell, Varelas spoke with Thomas R. Myers, a light truck-
driver, and arranged for a meeting to be held at Varelas'
house that evening. Myers prepared a map showing
directions to Varelas' house and had copies reproduced by
a person in another division of the Respondent's business
located adjacent to the chemical plant. Myers handed out
about 20 such maps to employees that day.
During the same afternoon on June 2, 1976, Myers was
making a delivery and took one of his breaks at a
coffeeshop where he had a conversation with another
employee who suggested that Myers contact the Union.
Myers did so that same afternoon and took another break
to visit the union offices in Long Beach where he obtained
a stack of union applications for membership and authori-
zation cards from William Braughton, secretary-treasurer
of the Union.
That night a meeting was held at Varelas' house. About
26 or 27 employees of the Respondent attended the
meeting. The employees discussed the picketing which had
taken place earlier that day by Varelas, and Varelas related
to them the conversation which he had with the Respon-
dent. Then Myers discussed the Union with the employees
I Varelas had some difficulty in pinning down the date on which this
conversation took place. After being confronted with his pretrial affidavit
during cross-examination, he acknowledged that he had been mistaken as to
and distributed the union cards at the meeting. All but one
of the employees signed a union card and returned the
cards to Myers at the meeting. Myers had signed a card
prior to the meeting. William A. Hulburd and Douglas
Lumley attended the meeting and signed union cards that
night. Myers turned the cards over to Secretary-Treasurer
Braughton the next day. Braughton then filed the represen-
tation petition with Region 21 of the Board on June 4,
1976.
On Saturday, June 5, 1976, a meeting was held at the
Union's offices. About
15 or 16 employees of the
Respondent attended the meeting. Myers sat at the head of
the conference table at the meeting with Secretary-Treasur-
er Braughton and International Representative Dave
Welty. Hulburd was one of the employees present.
The foregoing findings of fact are based on the testimony
of Braughton, David Gates, Hulburd, Myers, and Varelas.
E.
The Conversation Between Varelas and Davis
The next morning, June 3, 1976, Varelas had a conversa-
tion about 6:15 a.m. in Davis' office. Davis and Varelas
were the only persons present. Varelas was called to the
office over the public address system. Varelas said that
Davis asked him what the meeting was about that he had
last night at his house. Varelas replied that he had just
explained to the employees what Mitchell and Varelas had
talked about. Davis told Varelas, "You are a good worker;
go back to work," so Varelas returned to his job. Varelas
said that there was nothing said about the Union in that
conversation.
Varelas had another conversation with Plant Manager
Davis on Friday, June 11, 1976.1 That conversation took
place in Davis' office with just the two persons present. It
occurred just before the 6 a.m. starting time. Varelas
testified:
We were all getting assigned to our job location,
what we were going to do that day, and he asked me if
he could talk to me for a minute, and I said okay.
So I went inside his office while he finished his
dispatching.
Then he came in and asked me what was I going for.
I just explained to him better wages, better equip-
ment, and better supervision.
Then he asked me, he said about the union, he said
some unions are okay and some are not.
He said it just won't work over here, and that is all
that was said, and I went back to work.
The findings of fact in this section are based on the
testimony of Varelas. Davis did not deny the remarks
attributed to him.
F.
The Conversation Between Gates and Davis
On the day following the meeting of the employees at
Simon Varelas' house, employee David Gates had a brief
the timing of the conversation during his direct examination. Based on his
statement in his affidavit which he had given on June 23. 1976. 1 find that
the conversation took place on Friday, June 11, 1976.
988
DIVERSIFIED CHEMICALS CORP.
conversation with Plant Manager Bob Davis concerning
that meeting.
Gates had already punched out at the end of his
workday, and he was in the process of leaving the plant. He
was walking through Davis' office when Davis spoke to
him. Gates explained that it was the usual practice of the
employees to walk through the plant manager's office at
the end of the day on the way to their cars. Gates testified:
Everybody walked through there to go home because
it is right outside of the door, and your car is sitting
right there.
So everybody walks through there.
We were walking through there, or I was walking
through, and Bob stopped me and he said, Dave, do
you have a minute?
And, I said yeah.
He said, "What's this I hear about a union over at
Simon's house, a meeting you guys had at Simon's
house about a union?
And I said, Bob, I tell you the truth, I don't want
nothing to do with it.
I got burnt by a union before and I don't want any
part of it.
I don't know anything.
He said, okay. I'm just the plant manager and if
there is something going on, I'd like to know.
I said, Bob, I don't know nothing. and he said, okay,
thanks a lot. I'll see you tomorrow.
And I said, okay, and I walked out and that was the
only meeting I have ever encountered with any of them,
any plant manager or any type of personnel like that.
Gates and Davis were the only persons present during
that short conversation.
Gates had worked for the Respondent for about 3-1/2
years at the time of the hearing in this case, and he was
then working as a driver-leadman for the Respondent.
Gates served as the election observer for the Employer
during the representation election which was held on
August 11, 1976.
The findings of fact in this section are based on the
testimony of Gates. Davis did not dispute the remarks
attributed to him by Gates.
G.
The Conversation at the Local Tavern
On Monday, June 14, 1976, several employees and Plant
Manager Davis, Vice President Mitchell, and Maintenance
Supervisor Glenn Gross, were at a local tavern. 2 Varelas
stated that the supervisors and employees were pretty close
at the plant and that they had beer together. He described
the plant as having a relaxed, informal atmosphere most of
the time.
At the tavern Gross called Varelas over and asked him
what union they were trying to get in. Varelas could not
recall the full name, but he told Gross that it was the
chemical union. Gross asked him if it was the one in Long
Beach. Varelas said that it was; to which Gross stated:
2 The complaint incorrectly refers to Glenn Gross as Glenn Grover. Both
Varelas and Davis testified that the supersisor's name was Gross.
:' Plant Manager Davis said it was around 2 p.m. rather than 3 p.m. when
"Well, that union isn't worth a f-." Whereupon, one of the
employees said something to the effect that a strike was
going to be called. Plant Manager Davis responded, "Go
ahead and call a strike if you want to," and "they had
enough personnel to handle it." Varelas replied, "that was
a bunch of baloney" and walked away.
Varelas worked as a heavy equipment operator for the
Respondent until July 1976 when he voluntarily quit work
there. Varelas became a self-employed upholsterer. Some-
time afterwards, the Respondent had Varelas do two
upholstery jobs for them on the Respondent's trucks.
The findings of fact in this section are based on Varelas'
testimony. Davis did not contradict the foregoing version.
Gross did not testify.
H.
The Layoff of Myers, Hulburd, and Lumley
1. Thomas R. Myers
Thomas R. Myers worked for the Respondent for about
14 months prior to his layoff from work on June 7, 1976.
He began work on April 7, 1975, as a mixer-operator
trainee and held that job for about 6 months. Then he
worked as a Class C mixer for approximately 4 months for
the Respondent. Next he worked for about 4 months as a
light truckdriver. His duties in his last position involved the
delivery and pickup of chemicals at various locations. His
usual scheduled working hours were 6 a.m. to 2:30 p.m. on
Mondays through Fridays.
About 8 a.m. on June 7, 1976, Myers had a brief
conversation with Plant Foreman Archie Causland. The
conversation took place in the breakroom at the plant. Five
or six persons were playing cards with Myers at a table
when Foreman Causland walked in and spoke to Myers.
According to Myers, Causland said: "Tom, if you cause
any kind of trouble the next three [days] and cause me to
work overtime at night and miss my finals, I'll get you."
Myers told him that he was not going to cause any trouble
and asked what kind of trouble could Myers cause. Myers
said that the conversation ended at that point.
Just before lunch that day, Myers had a short conversa-
tion with Leadman Fred Lund. Just Myers and Lund were
present during the conversation which took place near the
mixing tanks. Lund told him that Doug Lumley was being
laid off due to many absences. Myers asked whether
Lumley had been at the Company longer than 30 days and
Lund replied that he did not know. Myers said, "Okay."
About 3 p.m. on June 7, 1976, Myers said that he
returned to the plant from a run.3 He was paged over the
public address system to report to Plant Manager Davis'
office. Davis and Myers were the only two persons present.
Myers testified:
He says: Tom, we have been kind of slow around
here and I'm going to have to lay you off."
I kind of said, "What? What do you mean you are
going to lay me off?"
He said, "I'm going to have to lay you off."
Myers returned to the plant. I conclude that the time difference is of no
significance.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "Why couldn't you lay off someone in the
plant that had only been working there for six months,
and put me back in the plant?"
His reply was that he didn't want to put me back in
the plant because it was just too much trouble putting
me back in the plant.
And, I was low man on the totem pole at the time,
and they had to lay off two drivers, and I was it.
Then the conversation came to an end, and I left the
office with my pay check in hand, and termination
papers, and vacation pay.
The notice which Myers received from Davis on June 7,
1976, is captioned "Employee Action Form," and provides
for several types of personnel actions, one of which is
subheaded "Termination Notice." Under the termination
notice portion are four blocks. They are designated "lay
off," "discharge," "resigned with notice," and "resigned -
no notice." The block marked "lay off" was checked on
Myers' notice. Under the general remarks space was
indicated "due to lack of work."
Myers stated at the hearing that there were one or two
employees mixing chemicals in the plant who had less
seniority than he had at the time of his layoff. However, he
acknowledged that he was later offered recall to work in
the same type of job and declined it on July 22, 1976.
Although he did not mention it to Davis at the time of
his layoff, Myers said at the hearing that there was one
truckdriver who had less seniority than Myers had. That
truckdriver was Sonny McMannis. Myers acknowledged at
the hearing that McMannis had a class I driver's licensc
and had been driving one of the large rigs for several
months in addition to the light trucks. Myers said that he
did not have a class I license at the time which was a
requirement for driving a large rig.
Prior to his layoff, Myers said that he had been working
from 40 to 50 hours a week and that he had not been
previously warned of the possibility of a layoff. He did not
know of any previous layoffs while he worked for the
Respondent.
The findings of fact in this section are based on the
testimony of Myers.
2.
William A. Hulburd
William A. Hulburd had worked for the Respondent for
only 2 months at the time of his layoff. Hulburd began
work for the Respondent on April 6, 1976. After a brief
orientation period of 5 days in the plant, he was assigned to
light truckdriving.
On June 7, 1976, Hulburd spent the first 3 or 4 hours of
his workday in driving a light truck. When he returned to
the plant about 9 a.m. or 10 a.m. that morning, either Plant
Manager Davis or Foreman Bob Knott told him to go
across the street where some of the Company's trucks were
being painted and paint some of the trucks.4 Sometime
I I conclude that it was Foreman Knott, rather than Davis, who told
Hulburd to paint the trucks because Davis testified that he laid off Hulburd
when he returned to the plant from his run.
' At the hearing on direct examination Hulburd gave a different version
as to the sequence of what was said at the time of his layoff. However, after
after 11:45 that morning, Hulburd was paged over the
intercom system to go to Davis' office.
According to the statement set forth in Hulburd's pretrial
affidavit which he had given to a Board agent on June 23,
1976, Davis asked him to sit down and then said: "We have
a reduction in sales and we are going to a computer for
inventory. So, I am going to have to lay you off."5
Hulburd was recalled to work by the Respondent on July
26, 1976. He worked for about 3 days in the mixing plant
and then returned to his duties as a light truckdriver. His
rate of pay was the same as he had been previously paid
prior to his layoff. There was no change in his benefits or
status with the Company and Hulburd said that he was
told, "the period of time that I was laid off would not be
deducted from my seniority."
Subsequent to his recall to work, Hulburd received a
raise in pay for achieving his class I driver's license and for
completing 6 months' work with the Company.
As a result of obtaining a class I license, Hulburd's
classification at the time of the hearing was heavy truck
driver rather than light truck driver. Hulburd said that
Plant Manager Davis approved his getting the class I
license. Hulburd explained: "Rather than going down and
actually driving for the Department of Motor Vehicles,
Diversified Chemicals has a State License where they can
hire and sign someone off on legal documents saying I am
capable of driving a vehicle on the road."
The findings of fact in this section are based upon the
testimony given by Hulburd.
3.
Douglas C. Lumley
Lumley was not called as a witness in this proceeding.
Counsel for the General Counsel explained on the record
that Lumley was on tour with a musical group at that point
in time.
The parties stipulated that Lumley was hired on March
22, 1976, by the Respondent. Plant Manager Davis said
that Lumley worked as a mixer-operator trainee and was
the low man in seniority in that job classification at the
time of his layoff on June 7, 1976.
The Respondent offered Lumley recall to work on July
21, 1976, and Lumley declined the offer.
The foregoing findings in the section are based on a
stipulation by the parties and the testimony of Davis.
4. The major segments of the Company's
operations
Ernie Hurtado, controller of the Respondent, gave this
descriptive picture of the major segments of the Respon-
dent's operation:
Basically the company is involved in servicing the oil
industry, particularly well treatment.
The major customers are the major oil companies,
Exxon, Standard, Mobil, Shell, and they account for
the bulk of the entire business.
being confronted with his affidavit during his cross-examination, Hulburd
acknowledged the statement which he gave in his affidavit, and I have based
the foregoing finding upon his affidavit which was given within a few weeks
after the event occurred.
990
DIVERSIFIED CHEMICALS CORP.
There are probably three or four major segments of
the business.
One you might classify as acidizing.
One is shot truck treatment.
And a third would be sales of bulk chemicals.
They differ in the following respects:
Acidizing requires the use of big pumps, such as the
one Simon was referring to. Those orders are taken at
any time of the day or night, basically.
They may come in at 8:00 in the morning or 2:00 in
the morning.
When they come in, they come in because they are
needed basically then, and not a week later, or two
weeks later. It is an immediate type of order.
Shot-truck portion of our business is a recurring type
of sale.
That is, we will have bulk tanks mounted on trucks
and these trucks are taken out to leases on which the
wells are located, and the chemical contained in the
bulk tanks are shot down the well.
I guess that is why they call the truck a shot-truck,
and it consists of treating the well with corrosion
inhibibitors [sic] or scale inhibitors and requires,
maybe, two quarts a day or four quarts a day, and we
may treat it once a week, or twice a week, depending on
what the engineer determines what the requirements
are.
Then we have the bulk type of sales where someone
will call in for 500,000 gallons of corrosion inhibitors or
any of the products that we may sell.
Hurtado explained that in the great majority of cases the
Respondent delivers the product or performs the service
requested on the same day that the order is received. This is
due to the nature of operations in the oil field.
One might assume that because of the prompt delivery of
products or performance of services that there would be a
simple and direct correlation between the amount of
Respondent's sales and the number of hours worked by
employees. However, the following figures for the year
1975 and for the period of January 1976 through August
1976 demonstrate that is not so.
Total hre.
195
wvork*d in unit
Jan.
Feb.
mar.
Apr.
Hay
June
July
Aug.
Sept.
Oct.
Yov.
Dec.
6022-3/4
8448-1/2
6136-3/4
6144-1/2
6124-1/4
7147-1/2
5714-1/2
7702-1/4
6532-3/4
5864-1/2
7376-3/4
6169-1/2
Total Sales
$255,687.63
210,991.71
248,664.89
262.240.69
224,495.49
215.771.44
257,528.50
263.253.29
246,054.53
297,150.01
244,.686.65
255.,830.06
Apr.
May
June
July
Aug.
6798
3891-1/2
6163
5950-1/4
7948-1/4
317,206.84
305,987.13
298,708.94
316,438.64
357,333.72
The reason why the relationship between sales and hours
worked is not so simple was explained by Controller
Hurtado. He pointed out that between 50 and 60 percent of
the Respondent's sales involved sales of chemicals other
than acids. The amount of labor involved in such bulk sales
of chemicals is small in comparison to the value of the
chemicals, whereas with the acidizing portion of the
business there is more of a direct relationship between the
amount of the sale and the number of hours required.
Hurtado gave this clear example:
Well, we have certain chemicals that the typical batch
or the typical sale may be 500 gallons, and it may take
us 45 minutes or an hour to mix, load on the truck, and
have it delivered.
On the other hand, the acidizing portion of our business
requires not only the acid being mixed, that you man
the pump truck, that you have people to deliver the
bulk acid, and the acid jobs they vary from a few hours
to 24, 36 hours.
The foregoing findings in this section are based on the
testimony of Hurtado and documentary evidence.
5. The basis for the decision by Davis
Plant Manager Davis made the final decision to lay off
Myers, Hulburd, and Lumley on Monday morning, June 7,
1976. Davis said that he got the representation petition
later on that morning or early that Monday afternoon.
Davis acknowledged that he knew that a meeting had been
held at Varelas' house, but he did not know who had
attended that meeting. He specifically denied knowing that
Myers had distributed maps concerning the meeting at
Varelas' house. Davis stated that he had no knowledge that
Myers, Hulburd, or Lumley had engaged in any activity in
behalf of the Union; that they had signed union cards, or
that they had asked others to do so.
About 10 days prior to June 7, 1976, Davis discussed
with Vice President Jerry Mitchell the possibility of a
layoff. Davis testified:
I went to Jerry and I told him the month before had
been a bad month and things had slowed down, that we
were low on acid, that we had lost two contracts and
things weren't looking much better and there were a lot
of men standing around in the yard.
ql
Total hrl.
1976
worked in unit
Jan.
5559-1/2
Feb.
8374-1/4
Mar.
6826
Toteal Sales
$290,503.90
273.620.00
344.083.17
*
a
He said, "Well, what are you going to do about it?" I
said, "I think we ought to lay some people off." He
said, "Well, let's think about it and see how things are
the next week, if it picks up any better."
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, matters did not improve in Davis' judgment.
Davis personally did the dispatching of the trucks and,
therefore, he had personal knowledge of the daily orders
coming in and how busy the employees were at that time.
He also spoke daily with Controller Hurtado regarding the
status of the Company's business.
Davis spent about 12 hours a day at work and during
that period he observed the amount of equipment in the
yard and some employees standing around.6 He was also
knowledgeable of the acid shortages and contracts which
the Respondent had lost. Accordingly, the weekend
immediately preceding June 7,
1976, Davis made a
tentative decision to have a layoff unless orders came in on
Monday morning.
When not enough orders came in on Monday morning
for the number of employees, Davis finally decided on the
layoff. He first advised Mitchell of his decision that
morning. Then Davis laid off Lumley when he came into
the plant which was probably about 10 that morning. The
other two employees, Myers and Hulburd, were on runs
away from the plant. Thus, Davis explained that he
informed them of their layoff after they returned to the
plant. He advised Hulburd a little after noontime and
Myers around 2 p.m. that day.
Lumley had the lowest seniority in the classification of
mixer-operator trainee, and Myers and Hulburd were the
two lowest in seniority in the light truck driver classifica-
tion.
Howard McMannis had less company seniority than
Myers possessed, but McMannis had not been in the light
truck driver classification for more than 2 months prior to
the time of the layoff.
McMannis was hired by the Respondent on January 12,
1976, as a light truck driver and was promoted on March
28, 1976, to heavy truck driver. He received a wage
increase at that time. On June 7, 1976, McMannis was
again promoted to pump operator and again received
another wage increase. The pump operator's job, like the
heavy truck driver's job, required a class I license which
neither Myers nor Hulburd had at the time of their layoff.
Davis confirmed that Myers had asked him at the time of
the layoff about laying off someone inside the plant with
less seniority. Davis testified:
He did indicate that. He asked me why I did not lay off
anybody that had less seniority than he did and I told
him at the time that I did not want to bother
transferring or knocking somebody out of another job
and then having to retrain him back at the old one.
Also I felt that Mr. Myers at the most was a marginal
employee and had not done a good job at the mixing
plant and he had had a bad attendance record and a
bad safety record.
Davis said that Myers had received "quite a few" written
warnings in the past.
i Myers and Varelas said that they were not standing around at that
time. Both generally worked away from the plant, so Davis had more
opportunity to observe the other employees than they had. I credit Davis'
testimony.
I The Company's records previously referred to show that sales have
Davis acknowledged at the hearing that he had never
laid anyone off from work prior to June 7.7 He had been
plant manager about 2-1/2 years at the time of the hearing,
and he had worked for the Respondent for about 10 years
in the chemical division of the Respondent's business. He
had stated in his pretrial affidavit that he did not recall that
anyone had been laid off at the plant prior to June 7, 1976,
but, after giving his affidavit, he was advised that there had
been a layoff about 7 years ago in the chemical division
and that there had been a layoff in one of the other
divisions.
The findings of fact in this section are based on the
testimony of Davis.
Analysis and Conclusions
In P.B. and S. Chemical Company, 224 NLRB 1, 2 (1976),
the Board stated:
[W]e first note that the basic premise in situations
involving the questioning of employees by their
employer about union activities is that such questions
are inherently coercive by their very nature.
Relying on the P.B. and S. Chemical holding, the Board
found that the questioning of an employee was violative of
Section 8(a)(1) of the Act even though the questioning took
place in the absence of a specific threat or promise of
benefit by the supervisor. Crown Zellerbach Corporation,
225 NLRB 911, fn. 6 (1976).
In its decision in Quemetco, Inc., a subsidiary of RSR
Corporation, 223 NLRB 470 (1976), the Board warned of
the serious error in finding that a "friendly" interrogation
does not interfere with an employee's Section 7 rights. The
Board stated (223 NLRB at 470):
A more serious error lies in the premise that a
"friendly" interrogation does not interfere with an
employee's Section 7 rights. An employee is entitled to
keep from his employer his views concerning unions, so
that the employee may exercise a full and free choice
on the point, uninfluenced by the employer's knowl-
edge or suspicion about those views and the possible
reaction toward the employee that his views may
stimulate in the employer. That the interrogation may
be suave, courteous, and low-keyed instead of boister-
ous, rude, and profane does not alter the case. It is the
effort to ascertain the individual employee's sympathies
by the employer, who wields economic power over that
individual, which necessarily interferes with or inhibits
the expression by the individual of the free choice
guaranteed him by the Act.
A supervisor's questioning of an employee about how the
employee felt about the union was found to have the
tendency to coerce the employee in violation of Section
8(aXI) of the Act in the Board's decision in Florida Steel
Corporation, 224 NLRB 45 (1976). The Board held in that
case (at 45):
fluctuated from month to month. Davis said th t he had thought about
having a layoff in the past, but had not done so. Varelas gave his opinion
that work had been slow in June or July 1975 fir 3 or 4 weeks. He said
employees did painting, cleanup, and maintenance work during that time.
992
DIVERSIFIED CHEMICALS CORP.
It has long been recognized that the test of
interference, restraint, and coercion under Section
8(a)(l) of the Act does not turn on a respondent's
motive, courtesy, or gentleness, or on whether the
coercion succeeded or failed. It also does not turn on
whether the supervisor and employee involved are on
friendly or unfriendly terms. Rather, the test is whether
the supervisor's conduct reasonably tended to interfere
with the free exercise of the employee's rights under the
Act.
Based on the testimony given by Varelas, which was not
contradicted, I find that Varelas was interrogated by Plant
Manager Davis during their conversations on June 3 and
11, 1976, regarding the union activities of the employees of
the Respondent. I further find that Davis made statements
to Varelas on June 3, 1976, which conveyed to Varelas that
the Respondent had engaged in the surveillance of the
union activities of its employees, particularly in view of the
timing of the conversation on the morning after the
meeting of the employees held the night before.
Also based on the testimony given by Varelas, which was
not disputed, I find that Supervisor Gross interrogated
Varelas on June 14, 1976, at the beer tavern regarding the
union activities of the employees of the Respondent.
However, I find no violation in the expression of opinion
by Supervisor Gross with respect to the Union. The
attorney for the Respondent persuasively stated in his
argument: "It might not be in good taste, it might be poor
language, but it is not an illegal statement. You know,
that's the guy's opinion of that particular union. He might
be right or he might be wrong, but irrespective I don't think
there is any coerciveness." In agreement with that argu-
ment, I find that Gross' expression of opinion about the
Union was protected by the provisions of Section 8(c) of
the Act. In the same conversation, I find no violation in
Davis' response to the employee's remark about going on
strike in these circumstances.
Based on the undenied testimony given by Gates, I find
that Gates was interrogated by Davis during their conver-
sation on June 3, 1976, and that Davis conveyed to Gates
that the Respondent had engaged in surveillance of the
employees' union activities -
again especially in view of
the timing of these events.
I am not unmindful of the Board's decision in The
William Carter Company, Inc., 225 NLRB 550 (1976),
where the Board dismissed an allegation that a supervisor
interrogated an employee in violation of Section 8(a)(1) of
the Act during a conversation which was amicable in tone.
However, I find the William Carter case to be distinguish-
able on the facts. In that case the supervisor told the
employee that she knew that the employee was distributing
leaflets. The employee replied, "Yes,
I enjoyed it,"
whereupon the supervisor said, "You're something else."
The Board pointed out that the conversation's tone was
amicable and that the conversation was isolated in a union
organizing drive which had lasted for several years and was
free of any other unfair labor practices by the employer.
I The fact that one of the alleged discriminatees. Lumley, did not appear
at the hearing and did not give testimony in this proceeding would not, by
itself' be a basis for dismissing the complaint allegations with regard to
Unlike the friendly banter between the employee and her
supervisor in the William Carter case, there was question-
ing on three separate occasions about the union activities
of the employees and a conveying of the impression of
surveillance of employees' union activities in two conversa-
tions.
In accordance with the Board precedents cited above, I
conclude that the Respondent interrogated its employees
regarding the union activities of its employees on June 3,
11, and 14. I further conclude that the Respondent
conveyed to employees that it had engaged in surveillance
of the union activities of its employees in the conversations
on June 3, 1976. I find that the Respondent thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
With regard to the allegations of the complaint concern-
ing Myers, Hulburd, and Lumley, I find at the outset that
those three employees were temporarily laid off from work
by the Respondent rather than discharged.8 Support for
this conclusion is found: (1) in the testimony given by
Plant Manager Davis; (2) in the testimony given by Myers
and Hulburd regarding what Davis told them at the time of
the layoff; (3) the written termination notice given to
Myers at the time with the "layoff" box checked on the
form and the notation under remarks that the action was
due to a lack of work; and (4) the fact that the Respondent
offered all three persons recall to work about 6 weeks after
the layoff.
The Board has recently considered allegations regarding
the layoff of certain alleged discriminatees in Publishers'
Offset, Inc., 225 NLRB 1045, 1046-47 (1976), and held as
follows:
In view of the foregoing, it is clear that all the
elements are present for finding that the layoffs of the
six alleged discriminatees were motivated substantially
by their union activities. Thus, there is the precipitous
nature and timing of the layoffs; the selection of
employees for layoff, most of whom were known
adherents of the Union; Respondent's demonstrated
union animus as evidenced by coercive interrogations;
the impression of surveillance, and in particular,
Trousch's unlawful admonition to the three full-time
Press II employees to forego their union activities if
they wanted to be recalled; and lastly, our conclusion,
for the reasons set forth below, that Respondent's
asserted economic defense cannot withstand close
scrutiny. For all these reasons, we find, contrary to the
Administrative Law Judge, that Respondent laid off the
six alleged discriminatees in part, if not entirely, to
thwart the Union's budding organizational drive by
eliminating from its payroll for various periods of time
those employees who it knew were, or were suspected of
being, active participants in the nascent union cam-
paign.
The first element which the Board examined in the
Publishers' Offset case was "the precipitous nature and
timing of the layoffs." In examining that first element it is
Lumley. Riley Stoker Corporation, 223 NLRB 1146 (1976); Bechtel Power
Corporation, 223 NLRB 925 (1976); and Satra Belarus. Inc.. 226 NLRB 744
(1976).
993
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that the Respondent had not had a layoff of
employees in its chemical division for at least 7 years
although Davis had considered doing so in past years. The
layoff was precipitous in the sense that the employees were
not forewarned, but it was not precipitous in the sense that
Davis had discussed the possibility of having a layoff with
Vice President Mitchell about 10 days prior to the layoff on
June 7, 1976. 1 found Davis to be a credible witness who
gave clear and convincing testimony. He was knowledge-
able of the day-to-day activity at the plant since he spent 12
hours a day at the plant and he personally did the
dispatching of work orders. He had the opportunity to
know first hand about the amount of the workload and the
orders coming in on a daily basis. His testimony that he
brought the matter to the attention of Vice President
Mitchell about 10 days prior to the layoff seems logical and
consistent with Davis' observations of the day-to-day work
situation at the facility. Thus, based on Davis' testimony, I
conclude that the layoff was not precipitous since Davis
had discussed it earlier prior to any union activity at the
plant and had delayed making the layoff because of the
hope that matters would improve. When the work orders
did not come in as hoped for, Davis then finally decided to
lay off the three employees.
With regard to the element of "timing," counsel for the
General Counsel stated in his argument that "probably the
strongest single factor supporting the General Counsel's
case is the timing in the context of the whole sequence of
events." I agree. The timing of the layoff on the Monday
following the start of union activity the previous week is
the strongest factor favoring the finding of a violation.
However, the timing for the layoff was explained by Davis
who had discussed the possibility of a layoff some 10 days
earlier, but had delayed doing so based on the anticipation
that business might improve. Davis candidly admitted
knowing that a meeting had been held the previous week at
Varelas' house, but he did not receive the representation
petition until after he had made his final decision to carry
out the layoff. According to Davis, the petition did not
arrive until later that Monday morning or early that
afternoon. As discussed earlier, I have found that the
Union's request for recognition was not delivered by the
Postal Service to the Respondent's plant until June 10,
1976.
Another element set forth in the Publishers' Offset case is
the selection of employees for layoff. Lumley was the
lowest in seniority in his job classification of mixer-
operator trainee. He had worked for the Respondent for
only 2-1/2 months. Myers and Hulburd were also the two
lowest in seniority in their job classification of light truck
driver. Myers had worked for about 4 months as a light
truck driver for the Respondent and Hulburd had worked
only 2 months for the Respondent at the time of the layoff.
McMannis was not in the same classification as Myers and
Hulburd. McMannis had not been a light truck driver for
over 2 months at the time of the layoff. McMannis held a
class I driver's license which neither Myers nor Hulburd
possessed at that point in time. A class I license was
required for the pump operator's position, so I find nothing
suspect in the fact that the Respondent promoted McMan-
nis from heavy truck operator to pump operator on the
same day that the three employees were laid off. McMan-
nis was in a different classification and had the necessary
license enabling him to be promoted.
I find Davis' explanation persuasive as to why he did not
allow Myers to bump someone in the plant out of a job.
Davis pointed to the fact that he would have to retrain
Myers in the mixing plant job and the fact that Myers had
received several written warnings concerning his perfor-
mance. These warnings were given prior to any union
activity by Myers and are not alleged to be discriminatorily
given.
As to the question of company knowledge of the union
activity of the three alleged discriminatees, there is no
evidence of direct company knowledge. The interrogations
by the Respondent, for example, did not reveal any union
activity by Myers, Hulburd, or Lumley. Myers did have an
active role in initiating union activity among the employ-
ees, but there is no particular basis for reaching the same
conclusion with regard to Hulburd and Lumley. They
signed union cards and attended meetings, but so did
about 26 or 27 other employees of the Respondent. Their
limited union activity does not distinguish them from the
other employees. However, in the case of Myers, his
precipitating role in the union activity and the size of the
work force would be a basis for drawing an inference that
the Respondent knew of his participation in the union
activity among its employees.
Another element considered by the Board in the
Publishers' Offset case was that company's "demonstrated
union animus as evidenced by coercive interrogations; the
impression of surveillance," and an unlawful threat. I have
given consideration to the 8(aXl) conduct which has been
previously set forth. I conclude that such conduct is one
element which favors the finding of discrimination as urged
by counsel for the General Counsel. However, with regard
to the Causland conversation with Myers on June 7, 1976, I
find that conversation to be ambiguous as to what the
"troubles" were which Myers might cause so that Causland
would miss his final exams. In any event, I find that
Causland did not play any role in the decision to lay off
Myers. Davis made that decision. Furthermore, I attach no
particular significance to the conversation between Lund
and Myers on June 7, 1976, regarding the absences of
Lumley as being a reason for being laid off, since Davis
made the decision rather than Lund.
Finally, in Publishers' Offset, the Board gave consider-
ation to the fact that the company's "asserted economic
defense cannot withstand close scrutiny." As previously
indicated, I found Davis' testimony to be convincing. His
knowledge of the workload at the time of the layoff was
more reliable than the records because the monthly sales
do not have a direct relationship to the number of hours
worked. Controller Hurtado explained very clearly why
this is so. I conclude that through Davis and Hurtado the
Respondent has established the basis for its economic
defense which shows that this was a temporary layoff and
that the employees were offered recall when the workload
increased about 6 weeks later.
After considering all of the foregoing, the entire record,
and the arguments of counsel, I conclude that a preponder-
ance of the evidence does not establish that Myers,
994
DIVERSIFIED CHEMICALS CORP.
Hulburd, and Lumley were laid off from work in violation
of Section 8(a)(1) and (3) of the Act. Accordingly, I shall
dismiss the allegations of the complaint with regard to
them.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Upon the basis of the foregoing findings of fact and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
I. Diversified Chemicals Corp. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Oil, Chemical & Atomic Workers International
Union and its Long Beach Local 1-128, AFL-CIO-CLC,
is a labor organization within the meaning of Section 2(5)
of the Act.
3.
By interrogating its employees on or about June 3,
II, and 14, 1976, regarding the union activities of its
employees,
and by conveying
the impression to its
employees on or about June 3, 1976, that the Respondent
had engaged in surveillance of the union activities of its
employees, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(aXl) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]
995