Daniel Construction Company, A Division of Daniel International Corporation

DANIEL CONSTRUCTION COMPANY Daniel Construction Company, A Division of Daniel International Corporation and North Carolina State Building & Construction Trades Council, AFL-CIO and Phillip L. Cobb and Charles Vernon Dove, Sr. Cases I I-CA-9019, 11-CA- 9105, 11-CA-9246, 11-CA-9288, 11-CA-9343, I 1-CA-9364, 11-CA-9365, 1 1-CA-9061, and 11-CA-9217 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On July 29, 1981, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions and a supporting brief, as well as an answering brief to the General Counsel's excep- tions. 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 I Respondent has excepted. and the General Counsel has implicity ex- cepted, to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the reso- lutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing his findings. We disavow any reliance on the Administrative Law Judge's discus- sion, in sec I,G, of his Decision, of Texas Department of Communiry Af- fairs v. Burdine, 101 S.Ct. 1089 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), two Supreme Court cases litigated under Title Vll of the Civil Rights Act of 1964, which he examined in conjunc- tion with his analysis of the basic elements of a prima focie case under Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). We disavows as well the Administrative Law Judge's statement in the last paragraph of sec 111.A, of his Decision, that the Board has seemingly adopted a per se or presumptive rule with respect to unlawful interroga- tion of employees. As we stated in SAS Ambulance Service, Inc., d/b/a Florida Ambulance Service, et aL, 255 NLRB 286, fn. 1 (1980), the "test of whether an employer's interrogation of an employee violated section 8(aXl) is whether, under all the circumstances, the interrogation reason- ably tends to restrain or interfere with employees in the exercise of rights guaranteed them by the Act." In sec. IV,A,l,a, fourth paragraph, of his Decision, the Administrative Law Judge noted that Respondent's employee handbook contained a rule that prohibited solicitation of distribution during "working time," and found that the definition the handbook thereafter gave of "working time" afforded the rule presumptive validity. In view of this subsequent clarifi- cation of the rule, we adopt the Administrative Law Judge's findings. See TR. W Bearinrmgs Division. a Division of T.R. W. Inc., 257 NLRB 442 (1981), wherein the Board held that "rules prohibiting solicitation dunng 'work time' or 'working hours,' presumptively invalid." In adopting the Administrative Law Judge's finding, however, Chairman Van de Water and Member Hunter conclude that the rule is valid under Essex Interna- rional, Inc., 211 NLRB 749 (1974), to which they adhere. See their dis- senting opinion in Intermedics, Inc.. et al, 262 NLRB 1407 (1982). 264 NLRB No. 79 Judge and to adopt his recommended Order, 2 as modified herein. We disagree with the Administrative Law Judge's conclusion that Bob Banks, a vice president of Respondent's parent company, answered em- ployees' questions about job security during the course of several meetings in a manner purposeful- ly designed to impart an implicit threat that union representation would mean the loss of jobs, and thereby violated Section 8(a)(1) of the Act. Respondent provided contract maintenance and construction services at the Hercofina Company's chemical manufacturing plant in Wilmington, North Carolina. Some of Respondent's employees who worked at the Hercofina location asked Banks if the Hercofina Company would cancel its con- tracts with Respondent if the Union came in, and Banks replied: I said that the contract does give the client, all of our maintenance clients throughout the United States, the right to cancel the contract within [sic] 30 days notice, and they had the right for any reason, that we had to maintain a competitive posture on this job as we do on other jobs, and if we were no longer competi- tive, why they could cancel the contract. Banks did not elaborate on his use of the word "competitive." His failure to do so led the Admin- istrative Law Judge to conclude that Banks intend- ed to paint a subtle, yet ominous, picture of Re- spondent's inability to remain competitive in the event it became unionized. This, the Administrative Law Judge found, was exactly the type of predic- tion the Supreme Court had proscribed in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In Gissel,3 the Supreme Court stated, in pertinent part, that: [A]n employer is free to communicate to his employees any of his general views about un- In finding that Respondent did not interrogate employee J. D. Carlisle in violation of Sec. 8(aXl), the Administrative Law Judge observed, in fn. 77 of his Decision, that it would be unlikely that an employee would consider circumstances such as those involved in the incident in question to be coercive. While we agree with his ultimate conclusion, we note that the legality or illegality of a statement is not measured by the subjec- tive reaction of the listener, but by the objective character of the state- ment made in the circumstances. SAS Ambulance Service, supra; Norton Concrete Company of Longview, Inc., 249 NLRB 1270 (1980). a In par. 2(g) of his recommended Order, the Administrative Law Judge mistakenly ordered Respondent to notify the Regional Director for Region I 1 within 20 days from the day of receipt, rather than to notify him, in writing, within 20 days of the date of the Order, what steps Re- spondent has taken to comply herewith. We will modify the Administra- tive Law Judge's recommended Order accordingly. Member Jenkins would provide interest on the backpay required herein in accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980) s 395 U.S. at 618 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ionism or any of his specific views about a particular union, so long as the communica- tions do not contain a "threat of reprisal of force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his compa- ny. In such a case, however, the prediction must be carefully phrased on the basis of ob- jective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a manage- ment.decision already arrived at to close the plant in case of unionization. Inasmuch as Banks neither expressly nor implicitly predicted what impact unionization would have on Respondent, nor did he threaten employees with reprisals if the Union won the election, the Admin- istrative Law Judge's citing of Gissel was inappo- site. Banks simply said, "[I]f we were no longer competitive, why they could cancel. the contract." He did not say that unionization would make it im- possible for Respondent to remain competitive, or even that it was likely to have that effect. Never- theless, from Respondent's failure to explain to em- ployees the various ways in which the Company could become noncompetitive, the Administrative Law Judge and our dissenting colleague would have us infer that Respondent directly equated unionization with noncompetitiveness. This we de- cline to do, since the word "noncompetitive," used broadly in a business context, is neither difficult to understand nor readily susceptible to conflicting in- terpretations. Indeed, in such a context the word's economic underpinnings are clear. Consequently, we refuse to accept the notion that Respondent's empiotces were incapable of discerning its ordi- nary meaning, or that they were misled because of Respondent's failure to explain how a company can become noncompetitive. Nothing in the statement itself or the circumstances surrounding its utter- ance, in our view, supports the conclusions that it constituted an implicit threat that Respondent auto- matically would throw its employees out of work if it became unionized. To the contrary, we find that Banks' answer was merely a plain statement of fact, not a prediction, and, therefore, that it was square- ly protected by Section 8(c) of the Act. Member Jenkins is of the view that the line of cases represented by Pasty Bee, Inc.,4 and Blaser Tool & Mold Company, Inc.,5 are controlling. Both cases, however, are readily distinguishable. The presidents of the employers in Patsy Bee and Blaser Tool & Mold threatened employees that important 4 249 NL.RB 976 (1980) 5 196 NL.RB 374 (1972). customers would no longer do business with their respective companies if the employees voted for the Union. In Pasty Bee, the president informed his employees, inter alia, that his customers were not unionized and, if the company became unionized, his customers would "pull their contracts."6 Simi- larly, in Blaser Tool & Mold, the president said that he was apprehensive that the company's major cus- tomer would withdraw its patronage if the employ- ees voted for the Union.7 Economic necessities did not play a role in their assessment of how their customers would react if their companies became unionized. Instead, the presidents of these two em- ployers sought to establish a direct, cause-effect re- lationship between a union victory in the election and the loss of important business. Banks' approach was markedly different. Upon the inquiry of Respondent's employees into the possibility of the Hercofina Company canceling its contract, Banks explained to them that Respond- ent's maintenance clients all had the right to cancel their contracts for any reason by giving 30 days' notice, that Respondent had to remain competitive, and, if it did not, its clients could decide to exercise their option to cancel. Thus, in assessing the legality of Banks' remarks, it is cases such as LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company8 and B. F: Goodrich Footwear Company,9 which are apposite. In LeBoe, the Board dismissed an 8(a)(1) allegation and overruled an objection relating to an alleged threatened plant closing, where the statement in question discussed noncompetitiveness in connec- tion with unionization alone. The Board held: We disagree with the Administrative Law Judge's finding that Respondent violated Sec. 8(a)(1) of the Act through Supervisor Lee's May 5 statement to the effect that Respondent neither would be competitive nor able to remain in business in the event the Union "came in" and made the same demands on Re- spondent as are contained in that Union's con- tracts with others. In our view, that statement is merely an expression of opinion reasonably based on known economic facts which is pro- tected by Sec. 8(c) of the Act. '0 6 249 NLRB at 977. 7 196 NLRB at 374. Member Jenkins also cited Herrzka & Knowles, 206 NLRB 191, 194 (1973). In that case the Board also found an implied threat of job loss in the employer's comment that its "clients would prob- ably not be in favor of giving work to our office because we were union; most businessmen are avidly against unions." 8 208 NLRB 84 (1974). 9 201 NLRB 353 (1973). 'o 208 NLRB at 84, fn. 5. 570 DANIEL CONSTRUCTION COMPANY Similarly, the Board in B. F. Goodrich found that allegedly coercive statements made by a supervisor to a job applicant to the effect that "some of the people in the company were trying to get the union in, and that if the Union were voted into the company, that the company would very likely . . . have to close down because they couldn't afford a union because the first thing that they would want is higher wages," were not violative of the Act. The Board held: On cross-examination, Honeycutt admitted that during the interview Hardy discussed the footwear industry with him, mentioning that the industry was very competitive and that the Respondent had not made a profit in several years. It is thus apparent that the remarks of Hardy set out above were made in the context of a discussion of the economics of the foot- wear industry and Respondent's poor econom- ic performance. It is not contended that Hardy's statement about the competitive nature of the footwear industry or about Re- spondent's financial losses were inaccurate. Nor did Hardy say that if the employees se- lected the Union the plant would inevitably close. The point of his discussions with Hon- eycutt was that, in view of its losses, Respond- ent could not afford to grant large wage in- creases and if forced to do so would, in his opinion, cease operations. This was not a threat but an opinion based on demonstrable facts as to the economic consequences which might reasonably be expected to result from unionization. As such it was protected by Sec- tion 8(c) of the Act. i Accordingly, Banks' remarks, which merely cau- tioned that Respondent's contracts on any of its jobs could be jeopardized if it did not remain com- petitive, are protected as well. We shall, therefore, dismiss that portion of the complaint which alleges that his statement violated Section 8(a)(1) of the Act. 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, Daniel Construction Company, A Division of Daniel International Corporation, Wilmington and Leland, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as so modified: '' 201 NLRB at 534 1. Substitute the following for paragraph 2(d): "(d) Rescind and expunge from our personnel files the written warnings or any references to dis- charges of the above-named employees." 2. Substitute the following for paragraph 2(g): "(g) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I join in all my colleagues' findings except their dismissal of the allegation that Bob Banks, a vice president of Respondent's parent corporation, un- lawfully threatened employees that union represen- tation would result in a loss of jobs. In my view, the Administrative Law Judge properly found that under existing Board precedent Banks' threat was violative of Section 8(a)(1) of the Act. The facts with respect to this allegation are simply stated. Between approximately March 17 and 27, 1980, Banks conducted a series of "16 or so" meetings with small groups of employees. During a least some, and perhaps most, of these meetings, discussions took place concerning what effect unionization would have on Respondent's contracts with its customers, and in particular a major contract at the Hercofina Company's chemi- cal manufacturing plant. While not perfectly clear from the record, it appears that most of these dis- cussions occurred in response to employees' ques- tions, while the others were initiated by Banks. Banks testified that in response to questions about whether "if the Union came in would . . . Herco- fina cancel our contract," he answered as follows: I said that the contract does give the client, all of our maintenance clients throughout the United States, the right to cancel the contract within [sic] 30 days notice, and they had the right for any reason, that we had to maintain a competitive posture on this job as we do on other jobs, and if we were no longer competi- tive, why they could cancel the contract. Banks further stated that there was no discussion at the meetings "about the reason why union work would not be competitive in this area," and that after he made such statements the employees either "understood or let it drop at that." Based on the foregoing facts, the Administrative Law Judge, citing Pasty Bee, Inc., 249 NLRB 976, 977 (1980); Hertzka & Knowles, 206 NLRB 191, 194 (1973), and Blaser Tool & Mold Company, Inc., 196 NLRB 374 (1972), found that Banks' statement was 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violative of Section 8(a)(l), as interpreted by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). My colleagues, how- ever, without reference to the longstanding Board precedent cited by the Administrative Law Judge, hold that Banks' statement was protected by Sec- tion 8(c) of the Act. I cannot agree. In Pasty Bee, supra at 977, a unanimous Board panel reversed an Administrative Law Judge's find- ing that a statement similar to that made by Banks was protected by Section 8(c), stating: . . .Gissel does not sanction predictions re- garding the consequences of unionization which are based solely on subjective consider- ations. Under this test, a determination of le- gality or illegality would be virtually impossi- ble. To come within the aegis of Gissel, such predictions must be based on objective facts from which the employer can convey a rea- sonable belief as to demonstrably probable consequences of unionization. Here, [Respond- ent] had no indication from the Union that it would make demands that would cause eco- nomic hardship, let alone plant closure. Nei- ther did Respondent adduce any probative evi- dence that his customers would, in fact or even might, "pull their contracts." This reasoning is fully applicable in the instant case. Here, Respondent had no indication that the Union would make economic demands which could result in Respondent's no longer being "com- petitive," and had no grounds for believing that any of its customers might cancel their contracts. Accordingly, I would find that Banks' statements were "implied threats of job loss and plant closure made for the purpose of inducing the employees to vote against the Union in the forthcoming Board election. As such, they constituted a violation of Section 8(a)(1) of the Act." Blaser Tool & Mold Company, supra. In contrast, the cases relied on by the majority provide little or no guidance in deciding this case. In both LeBoe Tire and Rubber Company, d/b/a Mission Tire & Rubber Company, 208 NLRB 84 (1974), and B. F. Goodrich Footwear Company, 201 NLRB 353 (1973), the employers conditioned their "predictions" of adverse effects on unit employees upon the unions' making economic demands which the companies could not afford. Thus, in B. F. Goodrich 12 the employer carefully conditioned his prediction on two objective facts: (1) that the em- ployer operated at a loss; and (2) that the union asked for and received substantial increases in pay. 12 Supra, 201 NLRB at 354, fn. 3. Similarly, in LeBoe 3 the employer stated that it would be neither competitive nor able to remain in business if the union made the same demands as contained in the union's contracts with other em- ployers. Obviously, then, neither of the cases relied on by the majority involved situations where an employer predicted that adverse consequences could result from bare unionization. In the instant case, Respondent equated unionization with non- competitiveness-and made no reference to exces- sive economic demands. Under these circum- stances, Banks' statement hardly can be considered a mere "discussion of production economics," par- ticularly when viewed in context with Respond- ent's many contemporaneous unfair labor practices found herein. It is clear that the violation has been established, and I would so find. See Weather Tamer, Inc. v. N.L.R.B., 676 F.2d 483 (11th Cir. 1982), enfg. in relevant part 253 NLRB 293 (1980); C. P. & W. Printing Ink Company, Inc., 238 NLRB 1483, 1500-01 (1978); El Rancho Market, 235 NLRB 468, 471 (1978); Solboro Knitting Mills, Inc., 227 NLRB 738, 758 (1977); Yearbook House, a sub- sidiary of Shaw-Barton, 223 NLRB 1456, 1463 (1976); Ann Lee Sportswear, Inc., 220 NLRB 982, 982-983 (1975); Glasgow Industries, Inc., 204 NLRB 625, 627 (1973). Hence, I dissent from my col- leagues' implicit overruling of well-settled Board precedent. I:3 Supra, 208 NL.RB at 84, fn. 5. 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. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. 572 DANIEL CONSTRUCTION COMPANY WE WILL NOT discharge, refuse to hire, or otherwise discriminate against any employees to discourage membership in North Carolina State Building & Constructon Trades Council, AFL-CIO, or any other labor organization. WE WILL NOT expressly or implicitly threat- en employees with reprisal, loss of jobs, or closing our operations for assisting, supporting, or selecting the Union or any other labor orga- nization. WE WILL NOT coercively interrogate em- ployees about their union sentiments, interests, or activities. WE WILl NOT coercively solicit our em- ployees to rescind union authorization cards. WE Will NOT engage in surveillance of em- ployee protected concerted activities. WE WI.I. NOT impose rules which unlawful- ly restrict employees from talking about unions when they are entitled to legally do so; and WE WILL NOT promise benefits to employees to induce them to refuse to support the Union, or any other labor organization. WE WIL. NOT in any other manner interfere with, restrain, or coerce employees in the rights guaranteed by Section 8(a)(1) of the Act. WE WILL, if we have not already done so, offer to James A. Piner, James Perdue, Ralph M. Wilson, Jacqueline M. Wilson, and Heber A. Norris immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, at the DuPont worksite: WE WILL offer, if we have not already done so, to Larry C. McDowell, Sammy R. Wood, Jerry M. Carter, and Donald H. Rouse immediate and full reinstate- ment to their former jobs, or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed at the Hercofina worksite; WE WILL offer to Charles K. Boyd a position substantially equiv- alent to the one he applied for at the DuPont site; and WE WILl. compensate the foregoing employees (and James W. Stokes), with inter- est, for any loss of pay they may have suffered because of our discrimination against them, as ordered by the Board. WE WILL rescind and expunge from our personnel files the written warnings or any ref- erences to the discharges of the above-named employees, and we will notify them in writing that we have done so and that such references will not be used for future personnel actions against them. DANIEL CONSTRUCTION COMPANY, A DIVISION OF DANIEL INTERNATION- AL CORPORATION DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: This pro- ceeding upon consolidated complaints was heard by me in Wilmington, North Carolina, on 11 days in November and December 1980 and January 1981. The amended complaints charge Daniel Construction Company, A Di- vision of Daniel International Corporation' (herein called Respondent), with the commission of a variety of violations of Section 8(a)(l) of the Act-coercive inter- rogations, threats, surveillance, and the like-and 25 acts of unlawful discrimination-principally arising from lay- offs-against its employees in violation of Section 8(a)(3). 2 Briefs were received from the General Counsel and Respondent on or about March 30, 1981, and the Union Charging Party has filed a "Request for Extraordinary Relief."3 On the basis of the entire record and my recol- lection of the demeanor of the witnesses, I make the fol- lowing findings of fact, conclusions of law, and recom- mendations. 4 I. SOME GENERAL OBSERVATIONS A. Respondent is a major firrp engaged in various en- terprises throughout the United States. We are presently concerned with support services which it provides in and near Wilmington, North Carolina, under contract with four industrial companies. At Wilmington, Respondent performs maintenance and construction work at a plant operated by the Hercofina Company, which produces chemicals; at a location referred to as Cape Fear, in Leland, North Carolina, Respondent contractually pro- vides maintenance and construction work for the DuPont Company, which produces chemicals and fiber at that location; at a General Electric Company project in Wilmington, Respondent supports a nuclear fuel facili- As amended at the hearing. 2 Respondent moved to dismiss the allegation pertaining to employee Stephen Carlton at the conclusion of the General Counsel's case. With the acquiescence of the General Counsel, the motion was granted. 3 Unfortunately, the bnefs filed here are more provoking than helpful. Implying that certain testimony is a witness' last and only word on a sub- ject, when it is not; relying on one piece of testimony as if it is the sole evidence on the topic when there is, in fact, other material contradictory evidence; and stating that the transcript says one thing when, in fact. it says another, are inappropriate briefing techniques. In so noting, I have taken into account the impossibility of reciting all material evidence in a proceeding of this length. The record shows that Respondent is an employer engaged in com- merce within the meaning of the Act, and I find it appropriate for the Board to exercise jurisdiction here. Respondent conceded at the hearing that North Carolina State Building & Construction Trades Council, AFL-CIO (herein called the Union), is a labor organization as contem- plated by the statute. Certain errors in the transcript are hereby noted and corrected. 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ty by doing necessary maintenance and mechanical work; and at a Pfizer Company plant producing chemi- cals in Southport, North Carolina. Respondent's employ- ees engage in similar work. The instant proceedings focus primarily on Respond- ent's work forces at the Hercofina and DuPont complex- es (these work forces are hereafter sometimes called, for purposes of economy, Daniel Hercofina and Daniel DuPont). 5 In the first part of March 1980, some employ- ee unrest at Daniel Hercofina led to a brief strike at that location; the Union became involved; and some interest in these developments was displayed by Daniel DuPont workers. On March 20,6 there was a reduction of force (ROF) at Daniel DuPont, resulting in the layoff of about 30 em- ployees from a work force of about 650. The complaint alleges that eight of the employees so terminated were the victims of unlawful discrimination. At Daniel Herco- fina, which is located about 15 miles from the DuPont site and has a complement of more than 200 employees, there were two group layoffs following the strike, the first on April 18 and the second on June 27. The com- plaint charges that of the 227 employees released in the former reduction, 3 were chosen because of their union activities or sympathies, and of the 28 laid off on the latter occasion, 8 were selected for the same reasons.8 Thus, on the face of the amended complaint, of the 80 employees terminated in the three personnel actions, 19 were let go for reasons proscribed by the statute. At the hearing, however, after first stating that he was "not al- leging the overall layoff as violative," counsel for the General Counsel asserted that he was pursuing "alterna- tive theories"; i.e., "that there was no need for a layoff or that even if there was they selected somebody for im- proper reasons." The complaint was not, however, amended to allege that all 80 employees were wrongfully laid off in order to mask an effort to weed out the 19 expressly named in the complaint. Nonetheless, on brief, the General Coun- sel makes the broad argument that "Respondent had no justifiable reason for implementing the layoffs at DuPont or Hercofina" and requests that a reinstatement and backpay remedy should be extended not only to the 19 named employees but also to "all other employees laid off' at Hercofina and DuPont on the 3 dates in issue. A request on brief for a fourfold increase in the number of alleged discriminatees somehow fails to strike a receptive chord in that area of the mind which enter- tains due process considerations. It has become an ac- cepted procedure in Board cases, however, to permit I In its brief, Respondent renews a motion to sever originally made at the beginning of the case. I denied the motion then on the representation of the General Counsel that the events at the four sites were interrelated. I reaffirm my ruling. Although there does appear to be relative independ- ence in the daily operation of the four projects, the evidence shows that they are also subject to common ultimate managerial control and that, for the most part, the allegations relating to Hercofina and DuPont are asser- tedly based on a single catalytic union organizing effort affecting both lo- cations. No reason presents itself for separate treatment of the separate locations. 6 All dates hereafter refer to 1980, unless otherwise specified. 7 See G.C. Exh. 12. 8 I exclude Carlton, see fn. 2, supra. Other 8(a)(3) allegations are more isolated in character. findings of unalleged violations where it may fairly be said that there was full and conscious litigation of the relevant circumstances.9 In the present case, although he did not move to amend the complaint or otherwise an- nounce an intention to seek such a broad remedy, the General Counsel made known his alternative positions prior to the close of his case-in-chief, and Respondent, evidently reacting to that disclosure, presented some tes- timony and documentary evidence in an effort to demon- strate the legitimate origins of the layoffs. In this posture, then, it would perhaps be appropriate to find the more sweeping violations if the evidence permitted such an in- ference. '0 I do not believe that it does. That is not to say that there is no ground for suspi- cion. Thomas E. Godfrey, Respondent's manager of projects in charge of its 10 DuPont contracts, testified that he consulted with DuPont officials in early 1980 about DuPont's financial situation, which was then af- fected by high interest rates and cash flow problems, and he was instructed by DuPont to reduce the Daniel labor force "wherever they could." In addition to reductions at other projects, Godfrey ordered Charles Garrett, Dan- iel's project manager at the Cape Fear DuPont plant, to lay off 40-50 workers. On March 13, Garrett terminated about 13 employees." During the period March 12-16, the walkout at nearby Hercofina and the first showing of union interest in the situation occurred. On March 20, Garrett laid off 30 more employees. Godfrey testified that when he heard, early in the week of March 13, that Garrett had laid off only a quar- ter of the number which he had been instructed to termi- nate, he called Garrett and told him to comply with the earlier order. He also attributed Garrett's initial reluc- tance to implement the original order to an understand- able desire to keep his work force as intact as possible (a builder wants "to build") and to a blind hope that DuPont might rescind its cutback requirement. God- frey's attitude toward Garrett's resistance seemed to compare to the concealed amusement of a father toward the antics of his mischievous but lovable son. There was something elusive about the testimony of Godfrey and Garrett on this point, and the sequence thus described did not seem very probable; it is not, however, so improbable as to call for rejection. There is also some- thing suspect about a letter dated April I to Godfrey from R. C. Marden, the manager of DuPont's construc- tion division, offered in evidence as documentation of a legitimate business purpose behind the March 20 layoff: it has the ring of a post hoc effort to paper the record following the filing of unfair labor practice charges on March 26.12 The fact, however, that Respondent may Monroe Feed Store, 112 NLRB 1336, 1337 (1955): Lorenz & Sons, Inc., 217 NLRB 471 (1975). '° Although Respondent, made fully cognizant of the relief sought, might well have litigated the issue more thoroughly than it did I' None of the employees laid off on March 13 is named in the com- plaint. Garrett testified that there had been a large layoff in January as well. 12 The letter reads, in part Continued 574 DANIEL CONSTRUCTION COMPANY have made an effort after the fact to obtain evidence in- tended to corroborate its claim of purity in the inception of the layoff does not irrefutably negate the existence of that purity. The final major factor suggesting a retaliatory layoff at Daniel DuPont is the evidence of the considerable amount of hiring done beginning about 1 month after the layoff, on April 21 and thereafter. Between April 21 and June 2, about 145 new employees were put on, in all the classifications of those who had been laid off. Godfrey explained very succinctly, without offering any confirm- ing documentation, that while the March layoff repre- sented a decision to stretch out the completion of certain projects, "[t]here were, in fact, other programs appropri- ated and approved by the DuPont Company that were initiated which resulted in us doing some additional hiring after the study phase." While this new hiring seems inconsistent with the financial circumstances of- fered to explain the layoffs of March 13 and 20, I have no reason to believe that the situation did not change sufficiently to warrant the work undertaken in April. Perhaps the most persuasive argument against the claim of unnecessary layoff is the improbability that Re- spondent, contract-bound to perform various services for DuPont, would have attempted to scrape by for a month with 30 fewer employees than it needed to perform the work, all for the calculated purpose of ridding itself of the 8 employees named in the complaint. The evidence furnishes a response to this argument, but it is only a par- tial one. Payroll records show a marked increase in over- time worked for the week ending March 29: for pipefit- ters, for example, overtime amounted to 1,385 hours as compared to the 629 hours of pipefitter overtime worked during the week ending March 22 and the 636.5 over- time hours put in for the week preceding that. Although Respondent contends, and there is testimony on the point, that overtime on maintenance work is unpredict- able and usually designed to meet emergencies, it may be questioned whether such a remarkable increase can be so explained. Nonetheless, the General Counsel made no effort to trace the nature of the overtime performed (and perhaps understandably so, since the task would have been formidable). It appears to me that the overtime may be attributed to a "shutdown" which, the evidence indicates, began on March 21.13 Moreover, although the General Counsel Recent economic trends have prompted a reassessment of our rate of construction expenditures on a number of authorized projects. some of which are in the early stages of completion. Your recent reduction in field forces at Cape Fear is consistent with the discussions we have been holding with you over the past four weeks relative to these studies. Until a firm decision has been reached regarding the extent of construction curtailment, it is appro- priate that we proceed at a reduced rate of expenditures. Godfrey testified that this was simply routine memorializing corre- spondence, but I rather doubt it. In addition, although the letter speaks only of "construction" expenditures and curtailment, Godfrey denied that he and Marden spoke only of construction work reduction. This is sig- nificant in that the employees laid off were engaged in maintenance, rather than construction, work. The record indicates, however, that there may be some blurring of that distinction in operation. is A "shutdown" of an assembly line is scheduled every so often to permit Daniel employees to repair the line. At such times, DuPont em- ployees are idle while Daniel employees work. To hasten the return to production, the Daniel employees evidently work substantial amounts of had access to Respondent's records, he restricted his proffer to the weeks ending March 22 and 29 and intro- duced no evidence of overtime worked after the latter week. It is reasonable to infer from this decision that the records show no unusual overtime after that payroll period. In sum, while there are circumstances in the March 20 DuPont layoff which give pause for thought about the true reason underlying the action, I am not persuaded that the layoff itself was motivated by other than lawful considerations. With respect to the Hercofina layoffs, an April 11 letter to a Hercofina representative from Allen L. Green, a mid-Atlantic region official of Respondent, recapitu- lates a meeting held on April 10 between five Daniel agents (including one of its attorneys) and four Hercofina representatives. The letter recites, in part, that at the meeting "Hercofina stated that a reduction of force was necessary because of decreased construction and mainte- nance requirements. Daniel was directed to implement a reduction of force consisting of 18 people in the con- struction group and 6 to 7 people in the maintenance group. Daniel was further directed to complete the im- plementation of this ROF no later than April 18, 1980. The letter also recounted an agreement that, there being no further need for ironworkers, "three or four of the ironworkers needed to be laid off on April 11, 1980." The record of terminations (G.C. Exh. 12), however, does not show that any ironworkers were laid off on April 11 or, for that matter, on April 18.' 4 On the latter date, however, 22 employees were terminated, 8 of them from the crews of so-called maintenance supervisors. A June 25 letter from a Hercofina representative to a Daniel official, citing "the current production forecast and the drop off of the number of capital expenditures anticipated during the next few months," similarly man- dates a 28-man ROF effective June 27, and even 'suggest[s]" the categories and numbers of employees in each category to be affected. General Counsel's Exhibit 12 shows that 28 employees were terminated on June 27, in the approximate proportions suggested in the letter. One peculiar aspect of these letters arises from the tes- timony of Daniel International's manager of industrial re- lations, Bob Banks, who said that the normal procedure is that Hercofina merely tells Daniel the scope of the work to be done and Daniel figures out what employees are needed to do it. Even on redirect, he "doubt[ed]" if Hercofina ever got into numbers and classifications, which, according to the letters, they clearly did in April and June. A second suspicious factor, as the General Counsel points out. is that the April 11 Hercofina letter predicts that after April 18, the work force would remain "relatively stable for approximately one year," a prediction which did not survive the June 27 layoff. The General Counsel points to the fact that a petition for election at Hercofina was filed on June 6. I am not in- overtime on nights. Fridays, and weekends during shutdown periods, in addition to their normal 4-day, 10-hour-per-day, workweek. The period of a shutdown appears normally to be about 2 weeks. 14 G C Exh 12 does show that two ironworker apprentices were laid off on April 18 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dined to believe, however, having considered these mat- ters, that these letters were either fabrications or the product of a conspiracy between Respondent and Herco- fina to engage in unnecessary layoffs. It is particularly difficult to conceive that Respondent laid off 22 people on April 18 in order to eliminate the 3 named discrimina- tees of that date. In addition, unlike the DuPont situation, there was very little hiring done at Hercofina after April 18. Gen- eral Counsel's Exhibit 11 shows only 17 new employees between that date and November 5, and most of those were not hired until September and thereafter. Further, the amount of overtime worked at Hercofina was un- doubtedly scant; the General Counsel was satisfied with a stipulation that, between April 5-July 26, "there were overtime hours worked" in six relevant classifications. All things considered, I find the evidence insufficient to support the assertion that the three layoffs were con- trived simply as vehicles for effecting the elimination of employees perceived to be supporters of the Union. This does not mean, of course, that there might not have been some padding here or there of a legitimately conceived layoff for the purpose of folding in an employee for such a reason. As a general approach, however, I shall assume that the layoffs were themselves founded in neutral busi- ness considerations, and that the only real question before me is whether discriminatory selection was prac- ticed. B. As described, the evidence shows that the layoffs resulted from instructions given by the Hercofina and DuPont companies that the Daniel complements at their plants should be reduced. ' These companies presumably had reasons and objectives of their own for doing so, none of which were of particular importance to Daniel or known to most Daniel employees. As an independent supplier of supporting services to these firms, Daniel had no separate long-term production goals or ambitions other than to maintain its contractual obligations pursu- ant to the dictates of its clients. It therefore follows that the several instances in which Daniel supervisors purportedly informed employees that there was much work to be done, such statements being promptly followed by a layoff, are not very material. I have no doubt that there were various construction proj- ects underway which would not, at the times of layoff, be completed for many months. Decision as to whether to proceed with those projects at any given time was, however, determined by the financial needs and positions of the clients, not by Respondent, and the fact that a Daniel foreman may have remarked that a lot of work remained to be done gives rise to no authoritative impli- cation of an intention to continue doing that work until it was finished. C. Proving that an employee was discriminatorily chosen for inclusion in an otherwise unexceptionable layoff presents difficulties not ordinarily found in most 8(a)(3) discharge and discipline cases. In the latter, there is under examination an employer's discrete and volition- 15 Daniel provides its services to these firms under a cost-plus-fixed-fee arrangement, thus passing the cost of labor directly through to the cli- ents. The size of the work force would appear to be of no financial con- sequence to Daniel in view of the fixed-fee contract. al decision to take the extraordinary action of penalizing an employee whose employment history has been, to that point, relatively acceptable; the employer usually ex- plains his action by attempting to demonstrate some in- tolerable departure from the norm by the employee. Where, however, an employer can establish that he was required to remove a certain number of employees from his payroll, not as a disciplinary measure but rather for purposes of economy, and that he did so by choosing the least desirable of a group of adequate employees, it is not so easy for the General Counsel to mount a challenge to his claim. When the employer cites certain deficiencies in the work of an employee selected for layoff, and he is asked why he did not rid himself of such a deficient em- ployee earlier, he can proffer the reasonable response that the deficiency had not been enough to warrant dis- charge of the employee but, given the necessity of laying off someone, was a sufficient basis for deciding that the employee was least among equals. Justification for selec- tion becomes, in this setting, less subject to attack. D. The role of seniority in choosing for layoff presents something of a problem here. Daniel has no official policy favoring more senior employees. A number of management witnesses testified that Daniel never lays off strictly by seniority, although in situations where line foremen are given the power to select, they might well take that factor into account. 6 Two of the General Counsel's employee witnesses testified, based on their prior experience with Respondent, that Daniel does not accord weight to seniority.' 7 While it has been held that the failure to take seniority into account is a factor tend- ing to prove unlawful motive, N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168, 172 (7th Cir. 1966), the evidence here operates to make that assumption less tenable. Added to the problem of assessing the value of senior- ity is the difficulty of determining what an employer such as Daniel might, if it were to weigh the factor at all, consider to constitute seniority. A number of the em- ployees testified to lengthy overall employment with Re- spondent. Further inquiry usually revealed that their cu- mulative years of employment had occurred at several of the many projects operated by Respondent, and had been punctuated by quits, layoffs, and periods of work for other employers. In addition, even employees who had worked at, say, Hercofina for long uninterrupted pe- riods might have been working in the particular crews from which they were laid off for relatively brief spans of time. It seems entirely possible that a foreman who is given authority to select one employee from his crew for layoff might choose to retain an employee who has been 6I See the testimony of Hercofina Foreman Donald Coston, who "sometimes" goes by seniority, and Hercofina Foreman Webb, who said it was only "natural" to lay off his least senior man when he was no better than the others. i7 Alleged discriminatee Dove answered "No" to the question, "[D]oes Daniel lay off by seniority," and alleged dis-riminatee Norns stated in his pretrial affidavit that "[iln the past, the ROF's were not given on a seniority basis. Daniels Isic] laid off who they wanted to lay off" At the hearing, he testified to the contrary, and finally said, "Well, they do and then they don't." Norris, however, appeared not to have had enough experience with Respondent to give an authoritative opinion. 576 DANIEL CONSTRUCTION COMPANY with him for 2 years as opposed to another who has been in the crew for only 1 year, despite the fact that the latter has worked at the site for 3 years. Despite Respondent's protestations about the lack of weight given to seniority per se, however, it is fair to say that when years of employment are viewed not abstract- ly but as an indicator of skill and reliability-the kind of criteria on which Respondent assertedly relies in making layoff decisions-it would be only normal for an employ- er to prefer the craftsman who has been around the long- est time and is, ipso facto, presumably the most skilled and reliable. This need not, of course, be an invariable rule. With age, skills sometimes deteriorate, boredom sometimes sets in, personal problems sometimes multiply, and a fresh employee may appear to be, by comparison, the best bargain. E. Seventy-five witnesses appeared in this proceeding. Most of them made a positive impression on me, or at least presented no visual basis for concluding that they were not telling the truth. Some were, I must say, more personally compelling than other witnesses who contra- dicted them, but that is not to say that the latter would be dismissed out of hand as liars by reasonable observers. Discernible changes in the demeanor of certain witnesses led me to believe some parts of their testimony but not other portions. Finally, I have been guided in reaching credibility resolutions by inexplicable inconsistencies in testimony, variances between testimony and prior state- ments, and serious instances of implausibility. F. Respondent's managerial and supervisory witnesses engaged in a good deal of parrying and feinting on the subject of Respondent's attitude toward unionization. Re- spondent did not exactly oppose the union effort, they said, and really had nothing against unions; the fact was, simply put, that Respondent had decided that, in nonun- ionized North Carolina, it would operate an "open shop"; i.e., a nonunion project.' 8 Despite all of the cir- cumlocutions by these witnesses about the limited extent of their opposition to the organizing drive, I have no doubt that the following excerpt from a June 11 letter to Daniel DuPont employees from Project Superintendent Garrett conveys the true flavor of Daniel's attitude: "I personally will do whatever I can to defeat any union drive." G. In Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1089 (1980), the Board enunciated a "causa- tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer mo- tivation." Under that test, the General Counsel is re- quired to "make a prima facie showing sufficient to sup- port the inference that protected conduct was a 'motivat- ing factor' in the employer's decision." After such a showing, "the burden will shift to the employer to dem- onstrate that the same action would have taken place even in the absence of the protected conduct." Id. at 1089-90. While the Board's discussion in Wright Line fo- cused primarily on so-called dual motive cases, it ap- is Thus, the manager of DuPont projects, Godfrey, testified that "We told [the supervisors) that we were an open shop contractor at the Cape Fear site, and that's what we intended to remain to be, but we've never been against unions." peared to be saying that the test applies as well to so- called pretext cases, see id., fn. 13, 1089.19 The question of what constitutes a "prima facie" case may perhaps best be answered simply with another ques- tion. Professor Wigmore, quoting from Bridges v. R. Co., L. R. 7 H. L. 213, offers his preferred formula: "Are there facts in evidence which if unanswered would justi- fy men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?" 9 Wigmore, Evidence § 2494 (3d ed.). Recently, in Texas Department of Community Affairs v. Joyce Ann Burdine, 101 S.Ct. 1089 (1981), an action laid under Title VII of the Civil Rights Act of 1964, the Supreme Court stated that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous," and it approved ear- lier language that the appropriate standard is whether it can be said that the "acts, if otherwise unexplained, are more likely than not based on the consideration of imper- missible factors." Id. at 1094. In reaffirming, in Burdine, the "appropriate model for a prima facie case" of racial discrimination set out in Mc- Donnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), the Court signified that the test is not an exacting one- the plaintiff must show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job, for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from per- sons of complainant's qualifications. While the Court said in Burdine that such a test "elimi- nates the most common nondiscriminatory reasons for the plaintiff's rejection," the test does not negate a host of possibilities, such as, e.g., the applicant's getting tipsy at lunch or his/her stealing the prospective employer's fountain pen. 2 0 The Board has not, so far as I know, elucidated in any systematic way the characteristics of a prima facie case, but I assume that it entertains a notion something like that espoused in McDonnell Douglas and Burdine.21 In many of the 8(a)(3) issues in the instant case, various in- dicia of the sort often relied upon in this kind of pro- 19 Subsequently, a majority of the Board has taken the position that the Wright Line analysis may, but need not, he expressly applied in "pre- text" cases, while Member Jenkins apparently regards the new analytical approach as inapplicable to such cases. Limestone Apparel Corp., 255 NLRB 722 (1981); Castle Instant Maintenance/Maid. Inc., 256 NLRB 130 (1981); Golden Beverage ofSan Antonia Inc., 256 NLRB 1255 (1981). 20 One must assume that in using the word "qualified," the Court re- ferred only to such criteria as training and ability. Any more comprehen- sive definition of the word, to include such qualities as the ability to re- frain from overtippling at lunch, would put a burden on the plaintiff which the Court plainly did not intend. 21 Burdine seems to take a different path from Wright Line once a prima facie case has been made, out. Under Burdine, when a prima facie showing has been made, and a rebuttable presumption thus raised, if the defendant is able to "articulate some legitimate, nondiscriminatory reason for the employee's rejection," the burden of persuasion requires the plain- tiff to "demonstrate that the proffered reason was not the true reason for the employment decision" Whether the Board will adopt this Title VII approach in its Labor Act cases remains to be seen. 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceeding are not present. Direct evidence of employer knowledge of an employee's activities, for example, is for the most part absent, as is, in a number of instances, the kind of energetic and notable union activity which might mark an employee as especially undesirable. For most of the cases here considered, the named em- ployees (a) participated in a strike, as did practically all of their fellow employees (referring here only to Herco- fina employees); (b) participated in picketing in conjunc- tion with the strike, as did many of their fellow employ- ees (again referring just to Hercofina); and/or (c) attend- ed a union rally in a park, as did a smaller but unknown number of their fellow employees (this activity includes both Daniel Hercofina and Daniel DuPont employees). The latter conduct seems to set these employees off from others more than the first two forms of behavior, but it can be argued that even the attendance of individual em- ployees at the rally was both innocuous and, for the most part, not shown to have been communicated to Respond- ent. It may be true that attendance at a union rally is a rel- atively trivial act, and not necessarily indicative of a par- ticular sympathy. On the other hand, the evidence is quite clear that once the Union reared its head on March 16, Respondent sounded a battle stations alert at both Hercofina and DuPont. Respondent's notably tense re- sponse to the threat of a union campaign leads me to be- lieve that it might well, in selecting employees for layoff later on, have attempted to embrace within the layoffs those employees who had shown enough interest in the Union to attend its rally. Whether Respondent knew the identity of all such em- ployees is not directly proven. What we do know, how- ever, as found below, is that two of Respondent's DuPont foremen were present at the rallyand that Re- spondent drew up a list prior to the March 20 DuPont layoff which included some of the employees in attend- ance there. There is no evidence that any Daniel Herco- fina agents attended the rally. Nonetheless, an inference of knowledge may be drawn both from Respondent's ob- vious interest in the rally and the likely accessibility of information about those who had been present. It seems safe to say that such information was probably available to Respondent. Timing and abruptness, often relied upon as indicia of discriminatory conduct, are not factors here. Nonethe- less, despite the problems faced in the instant case by the General Counsel in putting together prima facie show- ings, it seems to me that such demonstrations can be made here, under the authorities previously discussed, by a combination of factors. When an employee testifies that he has worked successfully at a job for a substantial period of time, that he is a better worker than and senior to other employees in his classification, and that he par- ticipated in a union activity which distinguishes him from many of his colleagues, and he is nonetheless in- cluded in a layoff, a prima facie case may be made out. More certainly, it can be said that when the employer offers an explanation for the choice which does not with- stand scrutiny, the necessary showing has been made. Cf., e.g., Bronco Wine Company, 256 NLRB 53, 54 (1981): "[I]t is clear from [the employer's] testimony that such conduct was a factor in the decision to discharge Locke. Accordingly, we find that the General Counsel has presented a prima facie case to support the allega- tion...." The decision of the Administrative Law Judge in Bronco indicates that this testimony was elicited in the course of the respondent's presentation of its de- fense. See also Wright Line, supra at 1088, fn. 12. In discussing below the 8(a)(3) allegations, I do so with Wright Line in mind, although the manner of devel- opment of the facts which seems most appropriate does not always track the formula set out in that case. II. THE RELEVANT BACKGROUND; THE STRIKE; AND THE MARCH 16 MEETING The following contextual matter is based on the testi- mony of Larry C. McDowell, an alleged discriminatee at the Hercofina project. In March, McDowell began hearing rumors that in- strument men were receiving higher pay than the other "A" mechanics, like himself, and he spoke about this to both his supervisor, Marvin Taylor, and the Hercofina project superintendent, Bill Johnson, who confirmed the accuracy of the rumor. Unhappy about this apparent de- parture from company policy, McDowell and some 150 other Hercofina employees met to discuss the matter around March 6 in front of a local restaurant. The group elected J. P. Stevens (sic), Floyd Wescott, and McDowell as their spokesmen. The three having agreed that McDowell should speak for them, they met with Superintendent Johnson and discussed the problem of the extra pay being given to instrument men. When McDowell said that the employees were unhappy about the differential, Johnson replied that it was "like every- thing else, if you don't like it you don't have to work here." The three employees told Johnson they would meet with the others and report back to him. A meeting was held that afternoon, and the spokesmen thereafter again held discussions with Johnson, and then again with the employees, but the latter received no sat- isfaction of their grievance. Johnson maintained that he had been unable to contact his superiors in Greenville, South Carolina. Eventually, the Hercofina employees agreed to strike on Wednesday, March 12. The strike was almost total, and the strikers picketed on three shifts. The strike began to dissipate on Friday, March 14, and picketing ended on Sunday, after Re- spondent had threatened to hire replacements starting on Monday. During the strike, some management agents from Respondent's Greenville office visited the site and urged the strikers to return to work, and the manage- ment officials met three times during the week with the three spokesmen, with McDowell serving as principal spokesman. During these meetings, wages were discussed and, as well, other matters such as "benefits, vacations, and sick leave" which the employees had "wanted to throw in." The management representatives said, accord- ing to McDowell, that any increased benefits were out of the question. On Sunday, March 16, a meeting sponsored by the North Carolina State Building & Construction Trades Council, AFL-CIO, was held at Hugh McRae Park in 578 DANIEL CONSTRUCTION COMPANY Wilmington. Some 100-20022 people from the local Daniel jobsites heard a union representative advise em- ployees about their picketing rights, the assistance the Union could offer, and his belief that it was pointless to continue the strike. He advised them to go back to work and undertake an organizational effort. He also encour- aged the employees to sign authorization cards, which were passed out at the park. The strikers returned to work on Monday, March 17. Ill. THE MARCH 20 DANIEL DUPONT LAYOFF The strike at Hercofina and the union-sponsored rally at the park received considerable publicity in the local press and television. The park meeting was attended by Daniel employees from, among other locations, both Hercofina and DuPont. There were also two Daniel DuPont supervisors present at the park rally. In attempting to establish motive for the DuPont 8(a)(3) allegations, the General Counsel has relatively little to work with in the way of open and notorious union activity by the eight employees laid off on March 20 who are named in the complaint. Unlike Hercofina, there was no strike at the DuPont site. The only distinc- tive conduct engaged in by the eight DuPont employees which may be said to have noticeably allied them with the Hercofina concerted activities and the entry of the Union into the picture on March 16 was the attendance of most of them at the union meeting in the park on March 16 (and, for two, their efforts in circulating union authorization cards on the DuPont job thereafter). For most of the eight Daniel DuPont employees named in the complaint, it is this fact of their presence at the park on which the General Counsel must rely as a significant determinant of their selection for layoff on March 20. That particular conduct might not ordinarily seem to loom very large; mere attendance at a public meeting in a park on a Sunday might be thought by an employer as denoting simply idle curiosity or a pleasant recreational choice rather than as clearly conveying a commitment to a union cause. On the other hand, the record indicates a rather sharp, urgent reaction by Re- spondent's management to the insinuation of the Union on March 16 into concerted activities which had begun the week before without any special union orientation. Thus, beginning on Monday, March 17, when the Daniel Hercofina employees returned to work, Bob Banks, vice president of industrial relations for Respond- ent's parent corporation, and Ted Johnson, a vice presi- dent of Respondent, both of whom had come from the Greenville home office to Wilmington in the preceding week to attempt to pacify the strikers and monitor the strike, held a ;eries of meetings with groups of Hercofina employees. While Banks testified that he had promised the employee spokesmen that he would conduct such meetings upon termination of the strike "to see what [the employees] had to say," and while it may be that a good deal of the discussion at these meetings which concerned the Union originated with employee questions, it is a fact a2 Different estimates were given by the witnesses While McDowell thought there were 150-200 present. employee Tedder guessed "around i00." that Banks displayed a blank authorization card at some of the meetings and warned employees about the legal effect of signing such a document. 23 It is also true that beginning on March 17, Respondent held supervisory meetings at both Hercofina and DuPont in which the union organizing effort was discussed and supervisors were instructed, inter alia, to keep an eye out for authorization card solicitation. Almost immediately, some Hercofina employees were disciplined for engaging in such activity.2 4 It appears, accordingly, that Respondent was, by March 17, fully cognizant of and sensitive to the sudden appearance of the Union on the scene, and was further troubled by the prospect that the Union might reap a harvest from the swirling discontent which had spilled out at Hercofina. The potential in the situation might well have convinced Respondent that it would not be untoward to choose for layoff at DuPont those who had publicly acted in the most prominent manner in which, as of March 20, possible union supporters might be iden- tified-attendance at the March 16 Hugh McRae Park meeting. As noted above, the record shows that two Daniel DuPont supervisors attended the park convocation. I doubt that Pipe Department Foreman David Pender or Millwright General Foreman Ken Willetts was assigned by Respondent to observe the meeting and those in at- tendance; I imagine that they went out of curiosity. 25 Pender testified that he was acquainted with some of the eight alleged Daniel DuPont discriminatees, did not know others, and saw only two of the former group- Ralph and Jacqueline Wilson-at the park. Since there was no contradiction forthcoming of Pender's assertion that he is unacquainted with James Perdue and Heber Norris, and since such an assertion would seem easy to contradict, I see no reason to disbelieve him on that score. As to Pender's denial that he saw J. B. Carlisle. J. D Carlisle, James Piner, and Charles Dove, that may or may not be so. Pender's concession that he saw the Wil- sons suggests his veracity, but his testimony that he popped into the office of his general foreman, Willie Suggs, on Monday, told him that he had attended the meeting, and left without saying anything more (includ- ing the identification of those in attendance) seenmed quite unreal as Pender described it. "[T]wo or three days" after the March 16 meeting, Project Manager Gar- rett called Pender to his office to say that he should not attend such meetings; 2 6 while Pender denied having in- :2 The allegations regarding statements purportedly madle by Banks a; these meetings will be developed in detail hereafter. 24 DuPont Project Manager Garrett testified that he held a meeting, probably on March 17, at which the supervisors were told hy an Itornrs "what they could and couldn't do in case we were petitioned rith the union petition"; a union card was also displayed to the supervisors, so that they might "be familiar with it." 25 On the projects involved in this case, a foreman occupies the lowest rank of supervisory status (at DuPont, about 60-65 of them), but is con- ceded to be a "supervisor" aL defined in Sec. 2(11) of the Act; the other supervisory grades are general foreman (at DuPont, about 12); depart- ment superintendent (at DuPont, about 7); and a single project superin- terident 26 Garrett testified that he knew of Pender's presence at the park bs seeing him "on TV" 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed Garrett of the identity of those in attendance, he might, of course, have done so.'? General Foreman Willetts testified that he saw none of the asserted DuPont discriminatees at the meeting, saying he did not know Norris or Dove, and that his only conversation about the meeting with members of management was more than a week later when Garrett called him in to caution him against attendance at em- ployee rallies. If Willetts in fact told no other supervisors of his presence at the park, then, of course, the fact that Garrett somehow became aware of it is of considerable interest. Garrett testified that he could not "recall exact- ly how I learned of it"; the fact that he did become so informed indicates either that Willetts spoke of the affair to others or that Garrett had his own sources.2 8 Willetts' appearance did not particularly vouch for the worth of his testimony, and he also said that Garrett did not men- tion to him that he knew that Willetts had attended the park meeting, but only spoke in abstract terms, which seems most unlikely to me. In consequence of the above, and in evidence to be re- lated hereafter with regard to employees Piner and Perdue, there is adequate ground for belief that the man- agement officials responsible for selecting for layoff on March 20 could have been, despite their denials, aware of the identity of some or all of the Daniel DuPont em- ployees in attendance at the Hugh McRae meeting on March 16. In some significant testimony, Daniel manager of DuPont projects, Godfrey, said on cross-examination that he learned "some time later that one or two [Daniel DuPont employees] had been identified as being there . . [i]n various meetings and whatever," hastening then to add that "in terms of the Cape Fear site I've never had a concern and never had any knowledge of any of our boys participating in any of that, other than one that I know of." He later ultimately said that the "one" was a supervisor, who was discharged. It does not seem likely that only a supervisor's participation was noticed. Project Manager Garrett also was aware, as he said, of the connection between the Union and the rally perhaps "the next day or two" after the latter. It was presumably at least that soon, because a meeting of Garrett's supervi- sors was held probably on March 17 at which an attor- ney displayed a union card to those assembled. Whether such knowledge played a role in the selection of the eight employees under consideration is, of course, an- other question. Garrett testified that, after being told by Manager of DuPont Projects Godfrey that he had to reduce the force by 30 or more employees on March 20 (in addition to the 15 or 16 already laid off on March 13), he selected "most" of the employees for layoff himself. When asked if it was unusual for him to personally play such a role, he replied, "Not totally unusual, no." He later agreed that he had not been "as heavily involved" in the March 13 layoff as he was on March 20. This pregnant issue was, unfortunately, not further explored with Garrett, 17 Pender was one of the few witnesses whose demeanor left a strong negative impression. 'I Garrett testified, "Somebody came to me and told me, or some- thing." and he was not asked to explain why he chose to princi- pally make the selections on this particular occasion. Michael McClamore, a former millwright superintend- ent who testified for Respondent, stated that the normal course of selection for layoff prior to March 20 had been that the "front office" would tell him the number of em- ployees to be laid off, and he in turn would tell his gen- eral foremen to consult with the foremen under them to translate that number into names. On March 20, howev- er, at a meeting with Garrett and his assistant, J. C. Wig- gins, just before noon, McClamore was told that mill- wrights Piner and Perdue, specifically, should be termi- nated; as the three men totaled up their manpower re- quirements, it was decided to let another millwright go, and the three picked Ben Register. Asked if he knew why Piner and Perdue had come from Garrett preselect- ed for layoff, contrary to the regular procedure, McCla- more said, "No, sir, not really, but those three spots, I guess that you would actually [sic] that hurts us . . . least as far as the millwright craft was concerned." General Foreman Willetts, General Foreman Stallings, and Foreman Thetford, on the other hand, testified that both procedures have been used in the past: sometimes the foremen are told to pick employees for layoff, and sometimes the superintendent "gives us the names of the men." As later discussed, the subsequent layoffs at Daniel Hercofina, contrary to the March 20 reduction at DuPont, assertedly employed another procedure: there, the foremen were purportedly told to submit names for layoff, and those choices were honored. 29 There is, I think it fair to say, something suspicious about the fact that Garrett, on March 20, decided to lay off by a "not totally unusual" system. Garrett testified that together with J. C. Wiggins, his second-in-command and also the superintendent of the painting, sheet metal, and insulation crafts, he chose the 30 employees terminated on March 20. He said that he was familiar not only with all 30, but, indeed, with all 650 employees on the project, and maintains a board in his office on which is shown each employee in each crew. In selecting the 30, he "in some degree talked to all" of the 7 superintendents at a group meeting on March 20. The selection process took about "3 hours or so." Garrett and Wiggins gave testimony about the reasons for selecting the eight alleged discriminatees. Their ex- planations will be discussed hereafter in connection with the eight cases. Analysis will begin with simultaneous consideration of Piner and Perdue, two millwrights whose fates, according to the testimony, were linked to- gether in March 1980. 29 Daniel Hercofina Project Manager Bill Johnson explained: "I feel like the person who works the man knows more about his capabilities than a man who just walks by and sees them occasionally." To like effect, Bob Banks testified that the "normal" procedure is to have the line foremen recommend for ROF, although he "guess[esJ it could" be done otherwise, and Manager of Employee Relations Emerson Johnson said "the recommendation [for layoff selectionl would always come. probably, from the foreman, the first line supervisor," although he has seen it done "both ways." 580 DANIEL CONSTRUCTION COMPANY A. James A. Piner and James Perdue James Piner began to work for Daniel in the late 1960's, and had been at the DuPont site for 6 or 7 years at the time of his March 20 layoff. He had been laid off from that job on one previous occasion, about 3 years before. At DuPont, he was the only "small tool repair man," and he repaired such tools and other larger equip- ment. His foreman was Billy Johnson and his general foreman was Ken Willetts. Piner attended the Hugh McRae meeting for 5 or 10 minutes, and saw General Foreman Willetts there. On March 19, Michael McClamore, the millwright superin- tendent, came to Piner's workbench and asked if he had attended the meeting in the park.30 Piner said that he had, and asked McClamore if that meant he would be laid off. Piner then recounted: He said, James, I'm going to be fair with you, he said, they've got a list of names in the front office, he says yours and James Perdue's names is on the list. He also said that they had a newspaper from the news media, I guess they are the one who prints it, I reckon, and said they had it blew up to see how many people that they could identify at that meeting. And he said that there were a bunch of people in the picture standing there with their hands up, and I said, well you didn't see my hand up because I didn't raise it. And, he said, well, all they could identify was two electricians . . . I asked him, I said, does that mean I am going to be laid off. He said, James, I'm going to put it to you just like this, he said, it is beyond my control. And that was in the presence of Earl Melvin. Earl Melvin, the millwright expediter, testified that on March 19 he overheard part of a conversation between Piner and McClamore in which the former said, "Mr. Mac, if I'd known it'd done me out of my job I wouldn't have gone to this meeting," and the latter said something like, "James, I don't think you have anything to worry about." When Piner learned on March 20 of his layoff, he went to see Project Manager Garrett, who told him that "there comes a time that every man has to go" and that "there is no need in me lying to you that I don't know what is going on, he said, because I do."31 Piner then asked Willetts to summon McClamore; when the two men subsequently approached, McClamore said, "James, I hated to face you because, he said, I didn't know what to say to you." When Piner asked why he was being re- leased, the following occurred: He said, James, the best I can tell you, he said, I told you that they had a list of names up there. He said, yours and James Perdue['s] names were on that list, and, he said, it is beyond my control. He said, it is coming strictly out of the front office. He said, they told me to let you and James Perdue go 30 This question is alleged separately to constitute a violation of Sec. 8(aXI). sl Garrett agreed that Piner had visited him on March 20, inquiring about "rumors" of a layoff, but said he was noncomittal on the subject. today, and he said, they told me that I could pick one man3 2 .... [H]e said, James, he said, I could tell you more than that if it wouldn't jeopardize my job but it would jeopardize my job .... He said, if you ever need any recommendations for work, he said, you are the best man I have ever had on this job, prior to the other three men, and he told me, he said, I have talked with Billy a number of times on your work and he said it was 100 percent up to par. Piner returned to work for Respondent on May 14; he had promptly filed an application after his layoff in March. The call he received to return to work was from Personnel Manager J. B. Larrimore, who testified gener- ally that employees were hardly ever recalled to work, but did not comment on Piner's testimony. James Perdue was a millwright at the DuPont project; he had worked there for 7 years, without interruption, when he was laid off on March 20. He worked on a crew of 10 or II millwrights and machinists (including Piner) under Foreman Johnson. Perdue operated the 48- inch drill press, and he was the only crewmember who normally did so.3 3 As of March 20, every employee in the shop had less seniority on the job than Perdue except for a foreman and a welder. Perdue went to Hugh McRae Park for "four or five minutes" on March 16; there he saw General Foreman Willetts. When he was told on March 20 that he was being laid off, he saw Piner speaking to Supervisors McClamore and Willetts and, upon approaching, heard McClamore say that he "had no control whatsoever over it," that Piner and Perdue were the best men he had, and that he had no one to replace them. Ben Register was the third millwright laid off along with Piner and Perdue. 34 He testified that on March 20, McClamore told him, Perdue, and Piner "that it was beyond his control that they were laying us off, but he said he didn't have no one else to take our places .... He said that they had a list at the main office with Mr. Piner's and Mr. Perdue's names on it and they had to go." 3 5 McClamore, who left Respondent's employ at DuPont on May 5,36 was called as a witness by Respondent. He a2 The third man selected was Ben Register. 3s Perdue estimated that a worker who already knew how to operate a drill press would take 90 days to skillfully run the large one he had been operating. a4 He returned to work at the site in May. Register's termination is not alleged to be violative of the Act. 1s Register also testified that on the Monday or Tuesday preceding the layoff, his foreman, Keith Huitt, asked him "did I sign one of those cards and pass it around." Register replied that "if he looked real hard he might find my name on it." The complaint was amended at the hearing to allege that Huitt coercively interrogated Register. Huitt answered "no" to the questions whether he had ever asked Reg- ister if he had signed a card or whether he had discussed cards with Reg- ister; asked if Register had told him that if he looked hard, he might find Register's name on a card, Huitt replied, "No, sir, not that I recall." In his bref appearance, Huitt did not inspire much confidence, but Register made an excellent impression. I credit his testimony 36 The record is unclear as to whether McClamore remained on Re- spondent's payroll at another location. 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he did have a conversation with Piner shortly before the layoff, and he "believe[d] that it was the day before," but his version was that Piner had stated that "he heard that there was a reduction in force going to happen and that his name was on the list." Piner then mused that if he was on such a list, "in all probability it is because I attended a meeting at Hugh McRae Park." McClamore, testifying that he knew noth- ing of a layoff at the time, told Piner that he had heard similar rumors about a layoff but nothing "concrete." He further testified that it was Piner who "probably" said something about the newspaper photograph, and that he "probably" replied that he had seen the picture (which had appeared on the front page of a newspaper) but could recognize no one. McClamore denied Piner's in- criminating testimony in all material respects. Garrett testified that, on March 20, he and Wiggins3 7 decided that they could "eliminate" Piner's tool repair job by allocating "this particular type of work to the various crafts to look after their own equipment." While a "very small part on a very limited type of basis" of Piner's function was retained, the job was substantially "dissolved." He further testified that, when Piner re- turned to work in May, he did not resume his former job, but was assigned to "field" (as opposed to "shop") work, and the tool repair is now "sort of shared by sev- eral . . . whoever's available." That Piner's job was es- sentially being dispersed was confirmed by Wiggins: "Mr. Piner was a small tool repair and shop repair man, and we let the shops take care of their own equipment, and called other people in to repair the small hydraulic tools as we needed them, and we could best do without those two [Piner's and Perdue's] positions in the mill- wright shop." Wiggins further testified that "different" people, and "[n]o particular one," repaired small tools after Piner left. As for Perdue, Garrett said that he was chosen be- cause Garrett "had been getting a lot of reports on Mr. Perdue's performance, and he had made quite a few mis- takes and this type of thing"; Perdue could be eliminated because Garrett had "5 or 6 other people that could op- erate that radial press, the drill press he was on." Wiggins' testimony about Perdue seemed to clarify Garrett's in the sense that he indicated that Perdue's po- sition of drill press operator was being eliminated: "[lit was my opinion that that position could be filled easier, and we could do best without that position than some of the others."3 8 He also said that he told Garrett that Gen- eral Foreman Willetts had reported that Perdue had made "several" mistakes in drilling holes and flanges. Millwright Superintendent McClamore, however, testi- fied that he told Piner, Perdue, and Register on March 20 that "they were good workers, that [he] didn't have any pi blems with their work." It seems most unlikely that Willetts and McClamore would have conflicting opinions about Perdue's productivity. 1a Wiggins testified that Garrett first asked him to nominate two mill- wrights for ROF, and later a third. He picked Piner, Perdue, and then Register. 38 Also, speaking of both Piner and Perdue, Wiggins, as noted, said, "[W]e could best do without those 2 positions in the millwright shop." The testimony by Garrett and Wiggins that the jobs of Piner and Perdue were being eliminated was, in my view, blown out of the water by the evidence given on rebuttal by two current Daniel employees. Clarence Li- vengood, a 6-year employee, and George Irving, a 5- year employee, testified that they were working in the baler area on the Monday following the layoff when General Foreman Willetts asked for "volunteers" to work in the shop. Although they said they were not in- terested, Willetts reappeared the next day and ordered them to transfer. Livengood thereupon was put to work operating the big drill press, Perdue's former job, and has been doing that work ever since; he had previously operated the press on only two occasions at night. Irving was assigned to taking care of small tools, Piner's recent job; although Willetts had told Irving that he would do that work only for a couple of weeks, he actually performed it for 7 weeks, at which time Piner returned to work and Irving went back to the field. Irving had not previously done small tool work. While Superintendent McClamore testified that he had four or five millwrights in the shop who could operate the drill press, the fact is that the drill press work was not split up among them. What is more, McClamore tes- tified that while it was his "job to put somebody on that drill press," he did not in fact assign Livengood to the job; the implication is that the assignment came from above McClamore. The testimony of Livengood and Irving, both most ap- pealing witnesses, reduces to a shambles the claim made by Garrett and Wiggins that Piner and Perdue were re- moved as a result of a planned redistribution of their functions. This false testimony, taken together with the other evidence, persuades me that Piner and Perdue were selected because of their presence at the union- sponsored rally. The testimony of Piner that Superintendent McCla- more spoke to him on March 19 about his attendance at the rally, about the blown-up newspaper photograph, and about the list on which his and Perdue's names ap- peared, is obviously of the most critical importance. 3 9 For one thing, it demolishes Garrett's assertion that the selection process did not occur until March 20. For an- other, it establishes that Respondent was attempting to focus on employees, like Piner and Perdue, who had at- tended the park meeting.40 Although McClamore did say to Piner that Respondent had only been able to iden- tify "two electricians" from the enlarged photographs, there clearly were ample alternative sources for identifi- cation of Piner and Perdue as attendees at the rally. The testimony establishing that the positions in which Piner and Perdue had been working were not in fact :'" I would employ the term "terrific" in describing the impression Piner made; he was one of the outstanding witnesses of the entire hear- ing. McClamore was not nearly as convincing. 40 As stated above, Earl Melvin, another credible witness, substantiat- ed the tenor of this March 19 conversation. While he also helieved that McClamore said that he did not think Piner had "anything to worry about," that attempted consolation does not seem necessarily inconsistent with Piner's version. What is important here is the strong indication of concern by a high-ranking supervisor that Piner and Perdue were on a list of nominees by virtue of their attendance at the meeting. 582 DANIEL CONSTRUCTION COMPANY eliminated, as Garrett and Wiggins contended, and that the two long-term employees were immediately replaced by other employees with little or no experience at the work they assumed, 4 1 justifiably warrants invocation of the Shattuck Denn Mining Corporation principle that a false reason may give rise to an inference that an unlaw- ful motive is being concealed.4 2 The circumstances dis- cussed above lead me to believe that the rule is properly invoked here. For the reasons indicated, I conclude that Piner and Perdue were chosen for layoff on March 20 because of their attendance at the union rally on March 16, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.4 3 In the foregoing analysis, I have referred to two en- counters which the complaint charges as violative of Section 8(a)(l): McClamore's March 19 question to Piner as to whether he had attended the March 16 meeting, and Huitt's question to Register, on March 17 or 18, about whether Register had signed a card and passed it around, While the Board has recently reiterated that the "test of whether an employer's interrogation of an employee violates Section 8(a)(1) is whether, under all the circum- stances, the interrogation reasonably tends to restrain or interfere with employees in the exercise of rights guaran- teed them by the Act," SAS Ambulance Service, Inc., et a., 255 NLRB 286, fn. 1 (1981), it has also indicated, seemingly as a per se or presumptive rule, that "an em- ployer's inquiries into the union sentiments of its employ- ees, even in the absence of a threat of reprisal or promise of benefit, or when the employee's union sympathies are well known, results in an unlawful interrogation in viola- tion of Section 8(a)(1) of the Act." Edgcomb Metals Co., One of the Williams Companies, 254 NLRB 1085 (1981); see also PPG Industries, Inc.. Lexington Plant, Fiber Glass Division, 251 NLRB 1146 (1980). I would suppose that this guideline applies to questions about employee activi- ties, as here, as well as sympathies. But even if no per se 4' Garrett testified that, when Piner returned to work in May, he was assigned to field work, and not his former shop job. While Piner was not recalled to deny this assertion, the fact is that, once Piner returned, Irving went back to the field, and Irving's testimony that he performed Piner's old work for 7 weeks is not contradicted and is inconsistent with the stated plan to eliminate Piner's job. 42 That case holds that: If (the trier of fact] "finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the sur- rounding facts tend to reinforce that inference." [Shattuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (9th Cir. 1966).] Accord: American Casting Service, Inc. supra, 365 F.2d at 172: "The fail- ure of respondent to adequately explain its reasons for the selection of certain employees for discharge may also be considered in determining the true motives for the action." 4' Noted above is some testimony that Project Manager Godfrey testi- fied to having been told of the presence of "one or two" DuPont em- ployees at the McRae Park rally. He went on to identify one of those people as "Piner," but, on redirect, said it might have been Prevatte, a supervisor who was discharged for participating in concerted activities. Even at the end of his redirect testimony, however, Godfrey said he "cannot now truthfully say which one it was." There are arguments for and against considering this testimony to be probative of Respondent's knowledge about Piner; the casual way in which Godfrey mentioned Piner suggests that he may truly have been confused. rule applies, the particular contexts here suggest improp- er intrusiveness. Certainly, the whole of the Piner- McClamore conversation made the opening question an ominous one; and Huitt's direct, unexplained, and unjusti- fied query of Register would reasonably have promised to cause him to restrict his activities on behalf of the Union. Consequently, I find both of the 8(a)(1) violations charged. B. Ralph M. and Jacqueline Wilson Ralph M. Wilson was employed as a pipewelder and pipefitter at Daniel DuPont when he was laid off on March 20. He had worked for Daniel, all tolled, 13 or 14 out of the preceding 16 years, and had been steadily em- ployed at Cape Fear for 3-1/2 years at the time of layoff. For 3 years prior to November 1979, at which time he volunteered to return to welding, Wilson had worked as a planner, or "sketcher," designing the piping which had to be installed in consultation with a DuPont engineer, and overseeing its erection. On several occasions in the 3 years preceding 1980, Wilson had been detailed for ex- tended periods to act as a foreman and welding inspec- tor, receiving commensurate wages therefor. The crew on which Wilson worked at the time of layoff consisted of nine employees. There were two other welders on the crew, Jack Self and Ray Carlisle. Carlisle was laid off along with Wilson; Self, a 7-or 8- year employee, remained. Wilson testified that he, al- leged discriminatee J. B. Carlisle, a pipefitter, and the lat- ter's son Ray, had been working for 2 weeks on a special "hot" project for DuPont, and that, as of March 20, there "was three weeks' work for the three of us, and no slowing down." It is also claimed that Wilson's wife Jacqueline was the victim of unlawful discrimination on March 20. Jacque- line Wilson had worked for Respondent for about 6 years, and at the DuPont site for 3-1/2 years, when she was laid off on March 20 from her job as a pipewelder in the fabrication shop. Jacqueline Wilson had been laid off once before from the DuPont job: in January 1977, to save a family man from losing employment, she volun- teered to take the layoff.44 Up to March 20, Jacqueline Wilson said, she had been working on "hot," i.e., urgent- ly needed, items in preparation for the shutdown of an assembly line, and the concomitant repair work, which was immediately forthcoming. The Wilsons attended the Hugh McRae Park meeting on March 16 and, while there, signed authorization cards. Wilson testified that he saw and spoke to Foremen Willetts and Pender at the meeting.45 The following week, reference to the Union surfaced at the DuPont site. At the regular Monday morning safety meeting, abuzz with talk of the Hugh McRae as- sembly, Foreman Charlie Thetford, stating that "We're going to have a safety meeting," also said that he did not "want to hear nothing about no unions." 44 Project Manager Garrett testified that she had been "in and out of there 2 or 3 times." I credit Wilson. 4" As earlier stated, Pender testified that he saw the Wilsons; Willetts denied recognizing any employees. 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next morning, Wilson overheard Foreman Ralph Holland counsel his crew that they "don't need unions" and to "let those dumb sons of bitches bump their gums." On Wednesday morning, Wilson received a call from his wife about a rumor that he was passing out union cards on the job. Concerned, Wilson spoke to Sam Collins, a superintendent apparently not directly above Wilson in the line of authority; he told Collins that he had attended the meeting and signed a card, but he denied that he had brought cards on the job. Collins in- dicated that he knew nothing of the matter and had no control over it. 4 6 On Thursday, March 20, Foreman Thetford told Wilson at 3 p.m. that he had received word from Gener- al Foreman Luke Burns to lay off Wilson and the Car- lisles, J. B. and his son Ray.47 Wilson, with the two Carlisles, went to General Fore- man Burns' office and demanded to know who was re- sponsible for his layoff. Burns "just hung his head" and, when pressed, said he did not know who was responsible for their selection. Angered and still wanting to hear the reason for their selection, Wilson and his wife refused to accept the final paychecks offered them; instead, together with J. B. Car- lisle, they went to see Project Manager Garrett. Wilson asked Garrett who had laid them off, and Garrett said he "assume[d] it came from your work area." Garrett also noted that there were no rules about selecting for layoff, and that the Wilsons could return to work whenever the Company began hiring.4 8 On March 22,49 Wilson called Marshall Smith, the general foreman in the fabrication shop, where his wife had worked. When Wilson asked Smith who was respon- sible for laying off his wife, Smith told him that at the general foremen's meeting on Thursday, Sam Collins had handed him terminations for Jacqueline Wilson and Bobby Albee and instructed Smith to sign them. When Wilson asked Smith if there were other welders he might have preferred to lay off, Smith told Wilson, "Well, I don't know about that, but . . . there's welders there that have been there less time than she's been there .... [S]he was as good a welder as he had in the shop and as hard a worker."5 0 On the following day, March 23, Wilson called Thet- ford, his own foreman, to ask about the reason for his layoff. Thetford said, "I swear I don't know." He also said that Wilson was a "good worker," that there was much work to be done ("all I could handle")51 and that 4s Collins did not testify. Curiously, although Wilson said nothing about having also expressed this concern to his immediate foreman, Char- lie Thetford testified that Wilson had talked to him about the rumors. 47 The layoff of J. B. Carlisle is alleged to have been unlawful; the layoff of Ray is lot so alleged. Another Carlisle son, J. D., is also named in the complaint as a discriminatee 48 Garrett was not questioned about this meeting. 49 A Saturday. Wilson testified that the job was working "around the clock" because a 2-week shutdown had begun the day after the layoff. so On cross-examination, Wilson said that Smith, in answer to the question, stated that "he wouldn't have picked her for layoff" Notes made by Wilson of his conversation with Smith show no such question or answer, but the notes clearly contain only portions of the conversa- tion. 5i Thetford testified that he made no such statement. he had told Collins after the layoff that he had "lost some people he didn't want to lose."5 2 Seeking support for the Board charge concerning the termination of him and his wife, Wilson called Marshall Smith again on April 7 to ask for a written statement pertaining to Jacqueline Wilson's ability. 53 Smith refused to talk on his telephone, fearing it might be "tapped," but a few minutes later called back and arranged to meet the Wilsons at 10 p.m. that night at a parking lot. At the lot, Smith "crawled into the back seat" of the Wilson car and told them to drive around. Smith told Wilson that Wilson's lawyers were "going to have to dig deep," and that Respondent had brought in a "team" of people from Greenville to look into the case. The team had presented Smith with "a prewritten statement to the effect that there was a lack of work situation prior to this layoff," which he had signed "for fear of my job." General Fore- man Burns had also signed, according to Smith, but had added at the bottom "to the best of my knowledge." In describing her termination, Jacqueline testified that, on March 20, Foreman Smith approached her "white as a ghost" and with his "bottom lip . ..quivering," said, "Jackie, I didn't have anything to do with it, but you are being laid off." Smith then told Bobby Albee that he, too, was being let go. Jacqueline Wilson corroborated her husband's testimony about his conversation with Garrett. She also listened to her husband's March 22 phone conversation with Foreman Smith, and recalled him making the statements to which her husband testi- fied. She further confirmed the April 7 automobile con- versation with Smith. Garrett testified, as to the decisional process which led to the removal of Jacqueline Wilson, that he "was a part of it along with Mr. [Harvey] Holland, but I contributed quite a lot to that."5 4 He said that Jacqueline Wilson "did beautiful work, but she was somewhat limited, meaning that I could not send her to the field," where she "performed poorly." 55 He also considered her a "very slow" producer. He said Jacqueline Wilson was the most expendable of the 16 or 18 welders in the shop. While Garrett and Wiggins testified, as later discussed, that a "part" of the reason for choosing sheet metal helper Heber Norris for layoff was to maintain the mi- nority ratio among the sheet metal helpers (thus retaining a female and a black helper), he said that Wilson's gender was not significant because "there was another one, or two" women in her shop, one in quality control, and the other "could have been in the material group." Wilson was, however, the only female welder. "[W]ith the input of Harvey Holland," Garrett also picked Ralph Wilson. He discounted the value of Wil- son's prior work as a pipe sketcher, a job which he had s5 On cross-examination, Wilson conceded that Thetford also said he had been told by a DuPont maintenance man that maintenance costs "were running way too much." 53 This suggests that Smith had indeed praised her work in the first call. 5' Holland is apparently a day-shift pipe superintendent who is in charge of the night shift as well, although he is also referred to as an assistant superintendent to Collins. 6s The "field" refers to work in the industrial complex itself, as op- posed to the fabrication "shop" in which Wilson worked. 584 DANIEL CONSTRUCTION COMPANY voluntarily left in order to work as a welder; he stated that the work function for which Foreman Thetford was responsible had been "deteriorating"; and he judged Wilson as the "least performer" of the welders. I find convincing the General Counsel's argument that the Wilsons were discriminatorily chosen for layoff. While the evidence as to them does not have all of the substance underpinning the Piner-Perdue allegations, it is nonetheless persuasive of an unlawful motivation. The most immediately striking aspect is the decision to lay off both members of a married couple. While that fact, of course, does not in and of itself make a case, there is something inescapably vindictive about Garrett's choice of the Wilsons; this is particularly true in view of their relatively lengthy tenure with Respondent and the evidence showing that they were both good workers whose inferiority to other workers, giving Respondent the very best view of the evidence, would be deemed no more than marginal. The possibility that Garrett would happen to select this married pair, from a complement of more than 600, on an objective basis, cannot be gainsaid; but the coincidence obviously gives rise to an inference to the contrary. 56 The Wilsons attended, and signed authorization cards at, the Hugh McRae gathering, and they were seen there by Foremen Willetts and Pender.57 As indicated, it is not unreasonable to infer that their presence was made known to higher authorities. In addition, the testimony shows that on Thursday, March 13, some Hercofina em- ployees staged a demonstration at the gates of the DuPont site. Participating in the demonstration was one Lonnie Prevatte, a Daniel DuPont foreman, who was promptly discharged for doing so. On Thursday, as the Wilsons were slowly driving away through the demon- strators at the end of the workday, Prevatte, an old ac- quaintance, walked up to the Wilson car and invited them to attend the union rally on Sunday. Since Pre- vatte's participation in the demonstration was observed by Respondent's agents, so too might have been his con- versation with the Wilsons. On the day before the layoff, as stated, Wilson spoke to Superintendent Sam Collins about a rumor that he had been passing out union cards. Although Wilson did not say so, Foreman Thetford volunteered at the hearing that Wilson had also spoken to him about the rumor. If the rumor did not reach Garrett by other routes, Wil- son's expressed concern to the two supervisors may well have had the unwitting effect of directing it to Gar- rett; 58 the record indicates that in those nervous days the connection between employees and authorization cards was of particular interest and concern to Respondent. The testimony by the Wilsons as to their "Deep Throat" evening encounter with Fabrication Shop Gen- I6 I find hereafter no violation arising from Garrett's choice of a father and his two sons for layoff. That decision, hesitantly made, does not de- tract from the present one. Indeed, the extraordinary fact that familial devastation occurred twice, not once, in this single layoff confirms my belief about the Wilson case. 8' While Willetts denied seeing them, Wilson said he spoke to both foremen, and I believe him Both Wilsons were very impressive people; I had no similar reaction to Willetts. s5 Collins did not testify. Thetford said he did not mention the discus- sion to anyone. eral Foreman Marshall Smith has a melodramatic air about it which might warrant a certain amount of skepti- cism-except for the facts that (I) Smith was not called by Respondent to testify, and (2) his absence was not ex- plained in any way. Left undenied, accordingly, is Smith's asserted fear that his telephone might be "tapped"; his admonition that the Wilson lawyers would have to "dig deep"; and his statement that he and Gener- al Foreman Burns had been required by Respondent to sign statements about "lack of work" which they obvi- ously did not believe to be true. These indications of in- tense fear and deliberate subterfuge conveyed by a super- visor of relatively high rank are of weight here. Also left unchallenged is Smith's reported telephone statement that Jacqueline Wilson was "as good a welder as he had in the shop and as hard a worker." The testi- mony in this area is the only portion of Ralph Wilson's account that gave me pause. He at first said that when he asked if there were other welders that Smith would have preferred to lay off, Smith replied, "Well, I don't know about that, but .... " On cross-examination, when asked about this apparent reservation, Wilson said that Smith had flatly stated that "he wouldn't have picked her for layoff." In full context, however, Wilson's first description of this conversation (not fully reproduced here) seems to me to imply the second version. Thus, if Ms. Wilson was "as good a welder as he had in the shop and as hard a worker," and, in addition, as Smith point- edly noted, "there's welders that have been there less time than she's been there," it hardly seems likely that he would have selected her. Wilson's testimony that Garrett told him, when beard- ed by the Wilsons on March 20, that he had nothing to do with the choice of layoff victims ("I assume it came from your work area") was not denied. For Garrett to dissemble about his responsibility for the selection is not attributable to cowardice; I saw nothing of that in Gar- rett. 59 It does seem to bespeak guilt. It is hard to imag- ine Garrett refusing to accept responsibility for an honest decision made by him, even when addressing angry em- ployees. Important to my conclusion here is the fact that the reasons given by Garrett for selecting the Wilsons do not withstand analysis. Garrett, conceding that Jacqueline Wilson's work product was "beautiful," said that she was "limited" because she "performed poorly" in the field, and she was also "very slow." What he meant by per- forming "poorly" in the field was not explained. Earlier, Jacqueline Wilson had testified that she had worked in the field on just one occasion in her 3-1/2 year tenure at DuPont. Garrett did not say, and I cannot imagine, what happened during that single assignment which justified his concern on this point; nor does it seem from this his- tory that field employment was an important facet of the work. I further do not believe that Jacqueline Wilson was "very slow." She testified, and no one denied, that when "hot" items, i.e., work which required expeditious han- 59 Garrett was a relaxed and confident witness Like Bill Johnson, the Hercofina project manager, he indulged in exaggeration to some extent, and exuded partisanship. 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dling, came in, they were assigned to her, and her own estimate of her value shines through her testimony: [M]y foreman would always bring the hot items that come through there to my table, because he knew I was fast and that I would get it through, and that I was proud of my work, and had done my work right. She was, in fact, "working on hot stuff' on March 20. There is no contradiction of Wilson's claim that urgent work was specially channeled to her; this being so, her implicit reputation for good and fast work is totally at odds with Garrett's evaluation of her as "very slow." In addition, given the fact that Jacqueline Wilson was, to put it mildly, no slouch, the failure to accord her the present-day advantages of her gender raises suspicions. The decision as to Heber Norris was said to be principal- ly based on a desire to "keep our minorities up" and thus let Norris go while retaining a female and a black male; but although Wilson was the only female welder "on the job," her sex, on what obviously should have been a close call at best, was evidently given no consideration at all.60 In like vein, I disbelieve Garrett's testimonial explana- tion for laying off Ralph Wilson: his judgment of Wilson to be the "least performer" of the welders. Wilson had worked for Respondent for some 13 or 14 years, the last 3-1/2 years at DuPont. He testified that he had been posted to higher situations at DuPont on several occa- sions. Twice, when the quality control welding inspector had been in the hospital for 6 weeks or more, Wilson had been assigned to assume his function, drawing a gen- eral foreman's wages. During shutdowns, he "always" ran the night shift, again receiving general foreman's pay. As recently as February 1980, he believed, he had been detailed as foreman of his crew to replace the miss- ing Thetford, and had received foreman's wages. 61 The picture is of an employee of worth.62 Wilson's foreman, Thetford testified, that he told Wilson and J. B. Carlisle, in parting, that "they had both done me a good job, which they did," and that Wilson "was as good a worker as I had in my crew, which every man I had in my crew was good people." While Thetford said that, given a free choice, he "probably" would have selected J. B. Carlisle for layoff, he could only say that, put to the task, selection of Wilson from all his "good" people would have been, "at best," a "tossup." 60 While Garrett testified that there was a woman in quality control, and there "could have been" one in the material group, somehow these I or 2 females in a pipe department of 134 employees (according to Ralph Wilson) do not seem likely to have satisfied a minorities-minded employ- er, at least to the extent of dismissing the only female welder on the project. G.C. Exh. 15, the Daniel DuPont payroll for the week ending March 15, shows some 65 individuals employed in Ralph Wilson's classification of "Journeyman Fitter" and 27 in Jacqueline Wilson's "Journeyman- Welder A" category. 61 There was no denial by Respondent on this score. Garrett testified that "I might have detailed" Wilson as an inspector on occasion. The fact that Garrett himself made the appointments of Wilson merits special note. 62 I put aside Wilson's experience as a pipe sketcher; although this sug- gests general ability, Garrett testified that it is not relevant to welding. Given that Wilson was a substantial worker, Garrett's depiction of him as the "least performer" of the welders seems most questionable. Wilson testified, without being controverted, that "perhaps 30 other people down in that area that did the same work I done . . . were kept." Even if it were true that Wilson was the "least perform- er" of the welders on his crew, it is hard to accept that this employee, used to fill supervisory posts, would not have warranted retention in I of the 30 or more other positions. 6 3 In reaching my conclusions here, I acknowledge that Garrett conceivably could have entertained mistaken im- pressions about the capacities of his employees, and inno- cently acted in accordance with those erroneous beliefs. I do not think that possibility applies here. If Jacqueline Wilson's foreman, Marshall Smith, had come in to say that she was slow and could not work in the field, that would have been important. He did not testify, and that also is important. It leads me to believe that Smith would have made neither disparagement, thus leaving it an un- likely proposition that Garrett would have received a mistaken impression of Wilson's value. Similarly, there is nothing in the record to point to a basis for an erroneous belief by Garrett that Ralph Wilson was the "least per- former" of the welders, and thus dispensable. For the reasons given above, and on consideration of all the cir- cumstances, I am satisfied that the General Counsel has made his case as to the Wilsons by a "preponderance of the testimony taken," as required by Section 10(c) of the Act. Except for the implications to be derived from Foreman Smith's nocturnal revelations, there is no direct evidence of unlawful motive, but it is settled that, such proof being scarce in these cases, it is appropriate to draw the inference of wrongful motive from the circum- stances. Shattuck Denn Mining Corporation v. N.L.R.B., supra, 362 F.2d at 470. ("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.") C. Heber A. Norris Until his layoff on March 20, Heber Norris had worked at Daniel DuPont for 2 years as a sheet metal helper. There were 3 other helpers in Norris' crew of 8 or 10 persons. Norris was present at McRae Park, signed a union card, and took some extras which he later distributed in the DuPont parking lot. He saw General Foreman Wil- letts at the park. On March 20, Jim Whitehead, Norris' foreman, told him that he was being let go. Angry at what he took to be a decision by millwright General Foreman Willetts to have him discharged because of his presence at the park, 64 Norris started to enter Willetts' office. Foreman 6s The record shows that there is frequent transfer of craftsmen from one job to another on the site. 64 As earlier stated, Willetts, who is in the millwright craft, testified that he does not even know Norris. 586 DANIEL CONSTRUCTION COMPANY Whitehead grabbed him and told him not to enter, saying that "it wasn't Ken Willetts, it was one of the damned pipefitters." Norris took this to mean that a pipefitter, not Willetts, had reported Norris' presence at the meet- ing. Uncalmed, Norris purportedly went in to see Willetts and asked him what he had been doing at the meeting. Willetts finally told him to leave before he "got into more trouble than I was in." Norris "cussed him out" and left. During this same exit period, Foreman Whitehead told Norris that he had tried to convince Superintendent J. C. Wiggins that Norris was a "good worker" who should be retained, but Wiggins would not be moved. After he picked up his check, the raging Norris demanded to see Wiggins, and, when Wiggins finally appeared, Norris spoke of his ability and his seniority over some other helpers. Wiggins "said something" about Norris' tardi- ness, but when Norris asked him to bring out all the records for comparison, Wiggins refused to do so. Norris was the only member of the crew laid off. He had been there 18 months longer than one of the other helpers (Roger McLamb) and 12 months more than an- other (Louise Gallarneau); helper Joe Young had been employed for 7 years. Norris further testified that, in the single prior layoff from his crew perhaps a year or more earlier, the helper with the least seniority had been ter- minated. 6 5 Norris testified that, about a month after his layoff. Foreman Whitehead called him to say that Respondent would be hiring again, and that Norris should apply. Garrett testified that he left it "more or less up to Mr. Wiggins to make that judgment" concerning which sheet metal employees were to be released. Wiggins ultimately testified that two reasons played a role in his selection of Norris. One (first identified as the "sole" reason) was that Norris was "one of three helpers," the other two being a female and a black male, and "we are trying to keep our minorities up"; and the other was that in 1979, Norris had had "a real bad attendance record" (he was "tardy and absent frequently"), although his performance in this regard had "picked up" in the first part of 1980. I conclude that the evidence supports the allegation as to Norris. Norris played a more prominent role in pro- moting the Union than most of the employees here under consideration. He not only was present at the park meet- ing and signed a card there, but he also subsequently so- licited card signatures from other employees in the park- ing lot. While Norris testified that "no one" saw him dis- tributing the cards, I doubt that he was in a position to be positive on that score, or to say that the sort of "rumor" which circulated in regard to Wilson did not also result from his activity. Norris testified, further, that he saw General Foreman Willetts at the park and was 20-25 feet away from him when he signed his card. Willetts, as indicated, answered st In an affidavit, Norris stated, "In the past the ROF's were not given on a seniority basis." Confronted with this at the hearing, he eventually said, "Well, they do and they don't." In my judgment, Norris, a young man, did not truly understand the import of the affidavit, and certainly was too junior an employee to make such an authoritative statement; there was apparently only one layoff during his tenure. "No" to the question, "(D]o you know a Heber Norris?" He was not asked further about the confrontation which Norris says the two men had on March 20. Although Willetts is in the millwright craft, and Norris a sheet metal man, I do not believe that Norris, who made a very good impression, concocted this encounter out of whole cloth. Norris' undenied testimony that Willetts warned him on March 20 to keep quiet before he "got into more trouble than [he] was in" not only reflects per- sonal acquaintanceship but, as well, a particular and meaningful knowledge by Willetts of Norris' current straits. Also important here is Norris' testimony that White- head, his foreman, had told him that it was "one of the damned pipefitters" who was responsible for his situa- tion, and that Whitehead had further said that he had vainly tried to persuade Wiggins to retain Norris. One might think that Respondent would not have rested its case without producing Whitehead or explaining its fail- ure to do so; one would be wrong."6 There is, accord- ingly, no explanation of the suggestive "damned pipefit- ters" remark; while it is not unambiguous, it also does not seem consistent whith any factor appearing in the record regarding Norris other than his union activity. Whitehead's failure to testify also makes prominent his assertion to Norris that he had attempted to persuade Wiggins to change his mind about laying off Norris. This is particularly important because of the nebulous and un- convincing nature of the reasons given by Wiggins for picking Norris. Wiggins said initially that the "sole" reason was to "keep our minorities up," his other two choices being Louise Gallarneau, a female, and Joe Young, a black. In saying this, Wiggins neglected to mention Roger McLamb, a helper who, as we shall see, had transferred temporarily to Foreman Helms' crew and who returned to Whitehead's crew the Monday after the layoff. As of March 20, McLamb had only worked on the project for 6 months, as compared to Norris' 2 years. 67 Why Wiggins thought that he was restricted to choos- ing a helper for layoff only from Whitehead's crew is, moreover, unexplained. Wiggins was not, after all, a mere foreman who had been asked to name an expend- able helper from his own crew. He was, rather, the su- perintendent in charge of the sheet metal craft, presum- ably familiar with all the employees in that category and presumably firee to pick any helper. General Counsel's Exhibit 15, the payroll for the period ending March 15, shows 11 other persons in Norris' classification of 70A, not including the 3 previously mentioned. While it might be contended that there was some par- ticular reason for initially selecting from Norris' crew, unarticulated by Wiggins, I find it very difficult to be- lieve that, once Whitehead had urged Wiggins to retain Norris, the unnamed reason would have seemed so im- I6 Nor was Wiggins interrogated about Whitehead's appeal to him Whitehead's entreaty to Wiggins might be considered hearsay; technical- ly, it does not appear to be an admission against interest No objection to its admissibility was entered, however. i? While we do not know McLamb's race, I feel confident that if he was a nonwhite, we would have heard about it from Respondent. 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portant as to cause Wiggins, in normal circumstances, to resist Whitehead's importuning. Sheet metal helpers are, with all respect, probably even more fungible than other classifications; and ordinarily, I would think, some ar- rangement could be made to accommodate the special pleading of a foreman that one of them be retained and another of the remaining 14 be laid off. The blind eye turned by Wiggins to Whitehead's request naturally im- plies, in these circumstances, an ulterior imperative. The other reason appended by Wiggins to the first- given "sole" reason of minority balance-Norris' poor tardiness and attendance record in 1979-seems to be a false one. Norris denied during his appearance that he had been more tardy than any other employee. While Wiggins had evidently been recently examining Norris' records,6 8 Respondent chose not to put them in evi- dence. Moreover, Wiggins conceded that Norris' attend- ance had "picked up during the first part" of 1980. Having carefully considered all of the evidence per- taining to Norris, as discussed above, and bearing in mind my finding that, as Piner testified, a "list" of sus- pect employees had been drawn up by Respondent, I be- lieve that the evidence preponderates in favor of the General Counsel in this case.69 D. J. B. and J. D. Carlisle These two alleged discriminatees are coupled here be- cause, although they did not work together, they are father and son, and that fact alone seems to make joint consideration appropriate. J. B. Carlisle has a second son, Ray, who was also laid off on March 20. Ray worked on the same crew as J. B.-Ray is a welder, who was teamed with J. B., a fitter-but the complaint does not allege that Ray's separation was unlawful.70 J. B. Carlisle testified that he had been employed at the DuPont site as a pipefitter for about 6 or 7 years, and for 2 or 3 more years on other Daniel jobs. 71 As noted, his son Ray was his welder, and seven other employees (including Ralph Wilson) completed the crew. J. B. testified that around September 1979, when he brought up the subject of a union in the course of a con- versation with General Foreman Jack Stallings, he was 6s "[Blut checking back in the 1979 year, if you'll check the records, you'll find that he was tardy and absent frequently." " While the existence of the list indicates that Respondent was aware of some of the Daniel DuPont employees who attended the park meeting, it does not necessarily mean that all of the employees who appeared at the rally made the list. Accordingly, while I entertain in each of these individual situations the possibility that the employee's name appeared on the list, I cannot say for sure that the list contained that particular name. 0' On brief, however, and for the first time, the General Counsel now asserts that the record shows the termination of Ray also to have been violative of Sec. 8(aX3), and requests that I so find. I note that while Ray was named in the charge originally filed on March 26, the Region chose not to include him in the complaint thereafter issued. I cannot believe that any material evidence was elicited at the hearing with respect to Ray which was not known or assumed by the Region at the time the com- plaint issued. Furthermore, I cannot conclude that the discharge of Ray was fully and consciously litigated; I am confident that Respondent did not believe that it was engaged in trying the propriety of Ray's termina- tion. Neither Garrett nor Wiggins addressed themselves to the reason for selecting Ray. 71 Garrett said, without supporting documentation, that J. B. Carlisle had begun employment around 1972 or 1973, had left or been terminated, and had returned about 1976. told that if they were caught speaking on that subject, "they're going to fire both of us." The conversation came to an abrupt halt. Stallings was asked at the hear- ing about this conversation, and testified that he could not recall it. Carlisle further said that while in the office of General Foreman Willie Suggs "in the winter of '79" (by which he meant early in 1979), Suggs expressed some unhappi- ness with the job and asked Carlisle if he would vote for a union if it came to that. Carlisle said he would. Suggs could remember no such conversation, although, he said, he "could have" spoken to Carlisle about unions since they had been members of the same union in the past. Carlisle testified that "about a week before" his layoff, a couple of other employees on the jobsite signed union cards at his request. He stated that he had obtained the cards by himself 2 or 3 weeks before March 20, and prior to the Hugh McRae meeting, which he did not attend. Carlisle testified that when Foreman Thetford told him, his son Ray, and Ralph Wilson of their layoff on March 20, Thetford said he had known nothing about it until a few minutes before, and that he did not know "what the hell" he was going to do because "you two are the only two that I've got in my crew right now that can read a drawing."72 After the meeting with General Foreman Burns, discussed above in connection with Wilson, Foreman Ralph Holland, who worked in the area, told Carlisle that he was sorry and "they have messed up terrible . . . because you've put up half the pipe in any crew you've worked in." Ray Carlisle was recalled to work about 5 weeks later. He testified that after he returned, Thetford told him more than once that he had "pitched a fit" to the general foreman about losing his three "best men." During J. B. Carlisle's 6 or 7 years at DuPont, there had been layoffs of employees in his job classification, and he had been spared. Randall Pierce, a Daniel DuPont equipment general foreman, testified that on April 8, subsequent to the layoff, he and work sampler Allen Thrasher 73 were at a grocery store and ran into J. B. and J. D. Carlisle. The former figuratively "jumped on" Thrasher, accusing him of being the "goddamn reason he lost his job out there." Prior to Pierce's testimony, Carlisle had been asked on cross-examination about his relationship with Thrasher and he conceded that after the layoff, he "had some trouble with him"; the specifics were left undisclosed. Garrett testified that, with the "input" of Superintend- ent Holland, he selected J. B. Carlisle because he had come to Garrett's attention as difficult to get along with and a "very hard person to work." Garrett cited an in- stance in which a young black man, in the course of filing a discrimination complaint with a state commission against Respondent based on denial of a wage increase, 72 Carlisle did not make clear which "two" Thetford was referring to. Thetford testified that he told the employees that they were good work- ers, but denied that he made reference to their superior abilities. 73 Thrasher's unhappy lot is to observe people performing work and make notes on their productivity 588 DANIEL CONSTRUCTION COMPANY had claimed harassment by Carlisle.7 4 He further said that he chose employees out of Foreman Thetford's crew because they were doing certain experimental work which he considered expendable. Carlisle's foreman, Thetford, agreed that Carlisle is "high-tempered" and "overbearing," a "hard man to work," but said that he personally "had no problem working him. We had an agreement, me and him under- stood one another." At the time, Carlisle had worked under Thetford for 5-6 months; he had left the night shift "for a reason," unexplained by Thetford. Night-shift General Foreman Jack Stallings, on whose shift Carlisle had worked for 4 or 5 months until he came to Thetford's crew, testified that Carlisle "was a good pipefitter, but he'd always give you an argument . . he's griping about something all the time." He said that Carlisle's transfer from his crew was voluntary, but Stallings "probably would have transferred him anyway." Stallings stated that Carlisle had also previous- ly worked for him on the day shift, and he had been "hard to get along with" then, as well. 75 Prior to his March 20 layoff, James D. Carlisle worked on the night shift as a welder. He had been with Daniel a total of 6 or 7 years, and at DuPont for 4 years. J. D. testified that about 3-4 weeks before his layoff, his foreman, John Miller, 76 joined the crew during a break period as they discussed the benefits given by a unionized employer. Miller asked Carlisle what he thought about "the union"; Carlisle answered that "it's great and I like it." Miller also asked how Carlisle would vote in an election "if something was to happen that they passed out cards on the job"; Carlisle said he would "vote for the union anytime." Miller said that he had once belonged to a union and did not like it. A some- what heated discussion ensued, with Miller labeling unions as "communist." 7 7 74 The complaint, dated April 6, 1979, had labeled Carlisle as an "out- spoken racist" and had charged him with making "derogatory state- ments" to the complainant. '5 1 am nonplussed at the General Counsel's transformation, on brief, of this sow's ear into the silk purse of: "However, Stallings testified that Carlisle was a good pipefitter and never caused him any problems of a significant nature. '6 Miller served as a foreman from September 17, 1979, to March 31, 1980. 77 The General Counsel contends that Miller's denial of a conversation with Carlisle about "unions or union activity" does not effectively refute Carlisle's testimony. Since Miller also said that he recalled "no conversa- tion in which the subject of any union was mentioned." I think the denial is effective. I do not believe that Carlisle fabricated his testimony here. I also do not believe, however, that the incident constituted coercive inter- rogation as alleged in the complaint. While the Board might hold that inquiry about union sentiments could be coercive even when made in the context of an informal employee dis- cussion on the subject, I cannot conceive that a casual inquiry about union leanings is violative at a time when, as here, no union activity is in progress. In the absence of such activity, and in such a relaxed setting, an employee would not reasonably feel intimidated or sense undue employer interest when he is asked wholly hypothetical questions about his abstract sympathies; there is simply no basis for employee discomfort in such cir- cumstances. The situation is, I think, clearly distinguishable from such in- cidents as an employer inquiry of a job applicant about his union sympa- thies; in that case, the question would connote an abiding employer con- cern. But where the question is put during an informal rest period discus- sion about unions, and no particular reason, such as an ongoing organiza- tional campaign, appears to motivate the question, I sincerely doubt that the employee would consider it as restraining or coercive. There is no indication in the record that J. D. attended the Hugh McRae meeting. On the evening of March 19, J. D. came early to work to take a test qualifying him to set up a certain type of machine, as ordered by General Foreman Stallings. The following day, when he reported for work, Stallings said. "Jimmy, I don't know what's going on, but you've been laid off." When Carlisle asked why, Stallings said, "I do not know. I just walked in the gate and they handed it to me." He further told Carlisle that he was "the best welder I've got in my crew." Carlisle had worked 21-1/2 hours of overtime the previous week, and had worked overtime every week since January; he was performing work on two new buildings. As of March 20, Carlisle had more seniority than any employee on the crew in- cluding the other two welders.7 8 General Foreman Stallings testified that when he came to work at 5:30 p.m., he found a layoff slip instructing him to lay off J. D., a choice about which he had not been consulted. It was not unusual, he said, for a layoff to be accomplished that way. He implicitly denied having told Carlisle that he was the best welder in the crew, saying that while Carlisle was as good a welder as the other two, he was not as reliable, in that he often promised to work on weekends and did not honor his promise. Stallings testified that he "had work" for Car- lisle to do, and that, prior to notification of the ROF, there was no "reason in [his] mind which would cause [Carlisle] to be laid off." He subsequently clarified that, if he would have been required to choose between the three welders, he would have selected Carlisle as the most unworthy. Garrett selected J. D. Carlisle, he said, because he "felt like [he) had to get someone off the night shift," and Carlisle was "the least performing one" of the three welders on that shift.7 9 He also referred to Carlisle's "pretty high" absenteeism and tardiness, although no documentation of this assertion was proffered.8 0 The se- lection was discussed with Superintendent Holland, who did not testify. Garrett said that he had personally ob- served the three night-shift welders working "on many occasions." General Foreman Stallings testified that Pipe Superin- tendents Collins and Holland would not be familiar with Carlisle's work because they were present only on day shift. He said that Carlisle was a "good worker," but that ?8 Carlisle's foreman, Miller, testified that the night crew consisted of about 13 employees, and Project Manager Garrett's testimony indicated that this constituted the entire night shift. According to Miller. the crew comprises a mix of crafts, evidently to handle emergencies and to finish off miscellaneous daytime work. Miller said that while he played no role in the selection of Carlisle for layoff, he probably would have chosen him if he had to choose between the three welders. Carlisle was "as good" a welder as the others, but his attendance record was, Miller thought, not up to par. 79 As noted, perhaps a dozen or more employees work on the night shift. sO The record shows that J D. had been on a work-release program from a local prison for a 3-month period, probably ending in February During this span, the evidence indicates, when Carlisle had to spend nights in jail, he was dependable. It was "mostly before" the work re- lease program, according to Stallings, that Carlisle had exhibited his un- reliability. 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he "might have" told his superiors "in the past" that Carlisle was not dependable. Foreman Thetford testified that he told Wilson, J. B. Carlisle, and Ray Carlisle of their layoff, and, in answer to their question if they had been good workers, said they had been. He told J. B. Carlisle, in fact, that he was "one of the best" on the crew, and he added at the hear- ing that he did not pass out compliments in a layoff situ- ation unless "they did a good job." He denied saying, however, that Carlisle and Wilson were the only two good men on his crew. Thetford testified that work had been slack for a month and that, in subsequent phone calls made to him by Ralph Wilson, told him only that there would be a "lot of work in the future," thus deny- ing Wilson's testimony that Thetford had alluded to much work which had to be presently done ("all I could handle"). Thetford testified that he had three other fitters besides the two people (J. B. Carlisle and Ralph Wilson)8 ' he let go. A. H. Smith had been there since 1973, Paul Powell since 1975, and Bill Shaw since 1976 (after an earlier stint). He said that, given his own au- thority, he would definitely have chosen J. B. Carlisle for layoff, he might have chosen Wilson, and he would not have selected Ray Carlisle. Thetford conceded having said to the latter, upon his return to work, that he thought Ray's layoff had been a mistake. Thetford said that out of five group layoffs since he has been a foreman, on three occasions he was told who to terminate and twice he was permitted to make the se- lection. There are aspects of the Carlisle terminations which suggest that careful scrutiny of these cases is in order. The bare fact that a father and two sons were selected seems to blatantly defy the claim of an objective stand- ard. J. B. had worked at the site for perhaps 6 years and J. D. for 4 years, healthy longevity for this work. Gar- rett's reason for dispatching J. B.-that he was a "very hard person to work"-was, I suspect, a generally accu- rate appraisal, but Foreman Thetford, J. B.'s current su- pervisor, testified that he and J. B. had evolved a rap- prochement, so that Garrett's assignment of this reason seems anachronistic by some 5-6 months. The decision to take someone off the night shift cannot be faulted, but there is no predicate laid for Garrett's assessment that J. D. was the "least performing one" of the three welders on that shift. Two foremen testified that J. D. was a good welder, and while Garrett said that he had ob- served the three night-shift welders performing "on many occasions," I suspect that that is an overstate- ment. s 2 Nonetheless, 1 cannot dismiss Garrett's testimony out of hand. The incident in April 1979 in which J. B. alleg- edly addressed racial epithets to another employee was known to Garrett, and he could have made a mental note about J. B. in consequence of that. Apparently (J. B. did not take the stand in rebuttal) J. B. and Foreman Stallings had not gotten along well on J. B.'s previous crew. It is not beyond the realm of possibility that these factors could have branded J. B. in Garrett's mind as s1 Thetford evidently thought of Wilson as a fitter. s2 As is, I believe, Garrett's professed familiarity with a "large major- ity" of the 650 transient employees at the project. somewhat less desirable than other employees. Similarly, despite the absence of documentation, 83 1 am willing to assume the truth of the assertion that J. D.'s attendance and tardiness record was not all that it could be, a factor upon which Garrett also relied. A principal obstacle to a finding of statutory discrimi- nation here is, I think, the absence of proof of any sub- stantial, visible union activity by the Carlisles. Neither at- tended the Hugh McRae rally. J. B. testified that, acting alone, he had, before the Hercofina strike and the rally, gone to a local union hall and secured authorization cards which, "about a week" before his layoff, he had in- duced two employees to sign.8 4 I find this testimony, which the General Counsel made no effort to develop or detail, less than satisfying, although J. B. was a personal- ly impressive witness.85 J. B.'s only other union links are tenuously forged by two mild conversations in 1979 with Supervisors Suggs and Stallings in which Carlisle spoke approvingly of unions. Likewise, J. D.'s only directly personal basis for claiming antiunion motivation, other than his relationship to J. B., is the conversation of 3-4 weeks before the layoff with Foreman Miller in which, in a hypothetical context, he said that he would vote for a union if an election were to be held.8 6 These seem to be fragile predicates for a claim that Respondent apprehended the Carlisles as union support- ers, too fragile, in the end, to support the connection sought to be made. I am, of course, deeply troubled by the evidence and inferences discussed above tending to substantiate the allegation of unlawful intention, but I be- lieve that here the General Counsel has failed to make his case. Cf. Stewart-Warner Corporation, 253 NLRB 136, (1980), and cases cited therein.8 7 E. Charles V. Dove Charles Dove had been employed as a sheet metal me- chanic at the DuPont location for more than 2 uninter- rupted years at the time of his March 20 layoff; previous- ly, he had been there 8 months and then quit. He worked in a crew of eight or nine employees; six of these were sheet metal mechanics. 83 It seems to me that when an employer's agent makes a testimonial claim which could be, but is not, rebutted or challenged, the employer need not proffer documents to support that claim. "4 That would have put the date during the week of the strike at Her- cofina, and before union activity had surfaced there. sI The General Counsel's brief seems to tiptoe around the point: "[Slhortly after the meeting at Hugh McRae Park, he discussed the Union with several employees on the job and solicited their support." The General Counsel does not expressly mention the alleged cards, al- though the only "solicitation of support" referred to by Carlisle was the securing of signatures. He said, not incidentally, that he did so "about a week before" the layoff, and not, as the brief has it, "shortly after" the park meeting. se Since Miller was a short-term supervisor, as noted above, his chan- nel to Garrett seems questionable. It may be conjectured that if Miller mentioned this incident to Stallings, and Stallings then to Garrett, it would seem improbable that, upon notifying J D. of his layoff, Stallings would tell him that he was "the best welder" in the crew, since Stallings would presumably understand and applaud the selection of J. D. 87 The record shows that other Daniel DuPont employees, such as Donald Chase and Rickey Cole, attended the Hugh McRae meeting, were seen by Foreman Willetts, and were not laid off. They would seem to be more likely candidates than the Carlisles, although a clever employ- er would probably refrain from too sweeping a brush. 590 DANIEL CONSTRUCTION COMPANY As discussed, some Daniel Hercofina employees pick- eted the DuPont site on Thursday, March 13, seeking support from the DuPont-based Daniel employees. Ap- parently in response, Dove joined the picket line at Her- cofina for a few hours on Friday, a nonworkday for him.88 He also went to Hugh McRae Park on Sunday and signed a card there, next to the truck from which the speeches were being given. He took cards with him to work on Monday and passed them out. On March 20, Robert Helms, Dove's foreman, told him apologetically that he was being laid off, saying, "It's not me that's doing it, it just came from the front office, I hate like hell to let you go." On the preceding day, Helms had asked Dove and his helper to work overtime on the forthcoming weekend. Dove testified that during the first week of March, Helms had said to him, as they surveyed ice damage to the plant, that they had enough work for the next 5 years. At that time, a sheet metal mechanic named Co- penhaver and a helper, McLamb, were transferred from the fiber side to Helms' crew on the chemical side to help out with the workload. On March 20, the two were still there. Copenhaver had less seniority with the Com- pany than Dove. Garrett testified that the selection of Dove was Wig- gins' decision "more than mine"; Wiggins is "in primary control of the sheet metal craft." Wiggins told him that Dove was a "poor performer." Wiggins testified that he discussed the question of Dove's performance with Fore- man Helms and the latter was "in full agreement with the decision" that Dove was a "very marginal sheet metal mechanic. " s9 Although Wiggins thus indicated that he was the one who had first nominated Dove, he said on cross-examination that he in fact asked Helms to name two people in his crew, and Helms said he "would pick Warren Piggot and Charles Dove." Foreman Helms testified that he was told by Superin- tendent Wiggins on March 20 to make a selection of two employees for layoff, and he chose Dove and Piggott. Dove was picked "because of the work sample" and be- cause "I couldn't keep him in . . . the work area." The former reference was to the fact that Helms, some 6 weeks prior to the layoff, had found the area in which Dove and Piggott were working to be unproductive, and he had asked an inspector to investigate; this led to his catching Dove and Piggot smoking a couple of times in nonworking areas where they should not have been. 9 0 The only other choices Helms had were employees Yopp, who had been with Helms for almost 8 years, and Judson, whose tenure was about 6 years. Helms denied that there was much work to be done as of March 20, that he had ever talked to Dove about the workload, or that he had asked Dove to work overtime on the week- end after his termination. He said that Copenhaver and McLamb, his helper, the two employees who had trans- ferred from the fiber side to the chemical side, were re- turned to their original assignment on the Monday fol- lowing the layoff. No replacements for Dove and Piggot as DuPont employees were on a 4-day schedule, as earlier noted. 89 Warren Piggot, another sheet metal mechanic, also was selected as a result of this process. 90 Dove denied receipt of any warnings for being out of his work area. had been hired as of January 5, 1981, the date upon which Helms testified.9? Dove was generally a good witness, although that im- pression suffered somewhat on cross-examination. Helms, on the other hand, was a winning, convincing, spontane- ous witness throughout. 92 Having no particular reason to conclude that Helms is adept at lying, and despite the uncertainty in Wiggins' account, I conclude that Helms was telling the truth here. On the basis of that determina- tion, I recommend dismissal of the allegation pertaining to Dove.93 IV. THE LAYOFFS AT DANIEL HERCOFINA AND OTHER EVENTS At Hercofina, Respondent laid off 22 employees on April 18 and 28 employees on June 27.9 4 The complaint (putting aside the withdrawn count referring to Stephen Carlton) charges that three of the employees in the first group, and eight of those in the second, were unlawfully chosen. It further alleges that employee Cobb was wrongfully discharged on April 7, and that employee Stokes, who was allegedly discriminatorily laid off on June 27, had also been improperly denied reinstatement upon returning from the March strike. In addition, there is a claim that employee Smith, assertedly an 8(a)(3) victim at Hercofina on June 27, was also unlawfujly laid off at Respondent's General Electric project on August 7, and then again mistreated, by virtue of a refusal to hire, at Respondent's Pfizer Company project on August 18. There are, in addition, two assertedly improper warn- ings for solicitation of union cards, and a number of mis- cellaneous 8(a)(1) allegations. A. The General Framework of the Layoffs The Hercofina layoffs were, according to Project Manager Bill Johnson, accomplished by a method differ- ent from the one employed on March 20 at DuPont. Johnson testified that, in accordance with his normal procedure for layoff, he met with his foremen on the two occasions and told them to submit a specified number of names of their "least productive people." 91 Although Helms did not allude to the matter, Dove testified on cross-examination that he "might have mentioned" to Helms on the Monday prior to the layoff that he was taking the day off to look for other work. That, of course. could have entered into Helms' determina- tion. 92 The only serious attack by the General Counsel on Helms' credibil- ity relates to Dove's testimony that, prior to the layoff. Helms asked him to work overtime the weekend after the layoff Helms said hc did not. since he did not know a&s of March 20 that there was to he osertime The General Counsel points out that the remaining crewmembers all worked overtime the weekend in question, and argues the likelihood that the overtime arrangements had been made by March 20. That seems prob- able, but it is not necessarily so. 1 am not prepared, on such a point. to conclude that the very impressive Helms totally fabricated the story about selecting the two men for layoff. 91 The General Counsel's argument here, and elsewhere, that "Re- spondent contends that the layoffs were because of lack of work" misses the thrust of the testimony given by Godtrey and Garrett-i.e., that there was a lack of DuPont-furnished money, not work. 94 Figures derived from G.C. Exh. 12. I am aware of the possibility that not all of the "terminations" shown for the first date were due to the layoffs 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 17, he told the foremen to each submit the names of two crew members for an April 18 ROF. Re- spondent Exhibit 9 is a list, dated April 17, purportedly drawn up by Johnson after submission to him of "Ist Choice" and "2nd Choice" by his 12 maintenance (as op- posed to "construction") foremen. Lines drawn through the names of five of the foremen and their candidates in- dicate, Johnson said, that after those five foremen sub- mitted the names, they each asked for special treatment because of their manpower needs, and he eliminated their crews from consideration for reduction. According to the exhibit, he then chose for layoff the first choices of the remaining seven supervisors plus the second choice of Foreman Caulder, resulting in a total of eight mainte- nance employees laid off.9 5 Of these eight, there are three "first choices" named in the complaint: Larry McDowell, Sammy Wood, and Carl Tedder. It is the General Counsel's thesis, among others, that Johnson himself put the lists together, without contribu- tion, from the foremen. Apparently refusing to accept the thread of Johnson's account of how the list was con- cocted, the General Counsel seems to want to rewrite that account. Thus, although Johnson said (whether it is true or not) that he first asked the foremen for names, which they submitted, and then acquiesced in their sepa- rate requests for withdrawal from consideration, the General Counsel argues: If the selection process were carried out as Johnson contends it was, logically speaking, the five fore- men's names, as well as those they selected for layoff, would not have appeared on the list. The in- ference to be drawn from all of this is that Johnson made up the list first and informed his foremen who he intended to lay off due to their union activity, and then the protest was registered by the five fore- men. Johnson, therefore, struck through those names. "[Llogically speaking," if the process was carried out the way Johnson contends it was, then the five foremen and their nominees might well have appeared on the list just as they do. The remainder of the argument is also debatable. If Johnson really had drawn up a list com- posed entirely of union activists, and then had re- trenched, why would Johnson have spared employee Gelegonya, Foreman Williamson's purported second choice, who remained on the list and whose subsequent layoff in June is alleged to be violative, and chosen, in his only dip into the list of second choices, employee Gaskins, whose termination is not claimed to have violat- ed the Act? Similarly, if employees Gowdy and Burk- hardt, shown as foreman first choices in April and then purportedly deleted at the behest of the foremen, were thought of by Johnson as union partisans, why was not their June layoff alleged to be unlawful? And if employ- ee Simmons, Foreman West's first choice in April, was 9s A letter previously discussed, describing an April 10 meeting be- tween Hercofina and Daniel officials, called for an April 18 layoff of 18 construction employees and "6 to 7 people in the maintenance group. Johnson testified that the eighth maintenance employee laid off was Gas- kins, a mechanic, a determination caused by his decision to lay off a crane operator. considered a union adherent, why was he spared in both April and June, when he again appeared on the list, only this time as a second choice? The authenticity of the lists is not easy to attack by pure analysis, but there is testimony which raises a sub- stantial question. Some of the supervisors had notions at the hearing contradictory to Johnson's as to whether their submissions were to consist of a certain number of people absolutely to be laid off, or whether they were merely to list priorities; this could have been only a matter of poor communication. More significant is the testimony of Foreman Don Coston, who, although ques- tioned at some length, did not recall submitting two names to Johnson in April and then asking for a re- prieve, as Johnson had testified. Coston seemed sure, most of the time, that this had not happened; the closest he came to an expression of uncertainty was "I don't re- member if Bill come to me or not [in April]." This is a serious problem. The three-stage transaction, with Coston allegedly being asked to submit two names, giving the names of Carlton and Caposto, and then re- questing that his crew be spared, certainly seems to be the kind which Coston, a bright young man, would recall some 9 months later."" It is possible, I suppose, that Coston could have forgotten about the episode. He did recall submitting names on request in June. He testi- fied that his crew "was busy" in April, which fits with Johnson's story that Coston was given relief for that reason. It could be argued that Coston's failure of memory proves too much for the General Counsel's pur- poses-if Johnson put the names of Carlton and Caposto on the April list without consulting Coston, he also took them off without consultation, thus eliminating resort in April to two employees named as June discriminatees and resulting in the termination of perhaps one, and pos- sibly two, employees in April not considered by the General Counsel to be unlawful. There are other bits of evidence on this subject which seem suspicious. One is certain testimony by Johnson; while the sequence is somewhat complex, it may be in- structive. In questioning Johnson, I pointed out that on the April list, Foreman Webb is shown as having nomi- nated Carl Tedder and Harold Smith for possible layoff. After being told by Johnson that Smith was retained,9 7 I further noted that on the June list, Webb is shown as having named Brock, Gelegonya, and Suggs as his three candidates, thus omitting the seemingly obvious candida- cy of Smith as at least one choice by Webb (and logical- ly his first choice) for the June layoff. When I asked if he knew of a possible explanation for Webb's failure to include Smith in the June list, Johnson replied, "No, sir, but just between these two he was not working for him and I at this point felt like that Mr. Smith was a better man than Gelegonya was." I do not know what Johnson meant by his reference to Smith "not working for" Webb "between these two"; Smith testified that he worked under Webb between the 96 I note that when the General Counsel began to question Coston about the April layoff, Respondent objected, since Coston's testimony on direct examination had addressed only the June layoff. a7 Tedder was laid off and is alleged as a discriminatee. 592 DANIEL CONSTRUCTION COMPANY time of his hire and "just before the election" in July. The italicized language above seems rather significant. Johnson gave considerable testimony about deferring to the recommendations of his foremen, accepting their choices in order and without question. The emphasized statement certainly carries a contrary connotation. Smith had assertedly not been submitted at all by Webb in June. Assuming the deference to a foreman's choice upon which Johnson insisted throughout, his assertion that "I at this point felt like that Mr. Smith was a better man than Gelegonya was" would be irrelevant, since it strongly suggests that he was exercising independent ap- praisal authority even over a crewmember not named by the foreman in June. There are other arguments, both pro and con, too complex to be adduced here. A contention which per- haps favors Respondent is the very fact that some dis- parities exist between the lists which, it may be argued, would have been eliminated by an intelligent man sitting in a room by himself and manufacturing two lists. I am unable to conclusively find that Johnson engaged in that very serious malefaction and that so many foremen per- jured themselves in his support at the hearing; on the other hand, I do not discount it as a possibility. Even if I were to find that Johnson concocted the lists himself, I am not certain where such a finding would necessarily lead, other than, of course, to make each case worthy of even more careful analysis, because of the implications which would arise from Johnson's having chosen to maintain control over and manipulate the contents of the lists, not to mention his having lied about the process. In- clusion on the lists clearly does not automatically denote noticeable union support, or many more of those laid off would have been named in the complaint. Johnson could have had valid reasons, as well as bad ones, for including a union partisan on the lists. Further than this, I am on this record unable to go, and I shall indulge the pre- sumption, although not without serious reservation, that the lists were prepared as Johnson said they were. In reference to the June layoff, as earlier noted, a June 25 letter from Hercofina directed a layoff on June 27 of 28 employees, and suggested a certain breakdown by classification. Johnson testified that he prepared a list similar to the one made up in April, after soliciting from his maintenance supervisors the names of three employ- ees from each of their crews. The markings on the list indicate that two foremen asked that their crews be spared, and the list also shows that the employees named as first choice by the remaining 14 foremen (including al- leged discriminatees Caposto, Willetts, Boyd, and Carter) were all laid off, that 9 of the 14 second choices were selected (including alleged discriminatees Gelegonya, Smith, Rouse, and Stokes), and that 5 of the 1398 third choices were laid off (none of them being named in the complaint). Hercofina's letter, as stated above, "suggest[ed]" spe- cific figures for layoff from seven classifications.gg In 98 Foreman Greer did not submit a third choice. e9 These included 16 pipefitters, 4 millwrights/oilers, 3 instrumentation workers, I equipment operator, I electrician, 2 "ironworks." and I labor- er. going through the recommendations from his foreman, Johnson found 15 pipefitters and terminated all of them, finding it thus necessary to go to some third choices. He laid off five millwrights instead of the suggested four in order to compensate for the missing pipefitter. The other categories were chosen in accordance with the numbers given to Johnson. It seems decidedly peculiar that while only 8 of the 22 employees laid off on April 18 came from the list asser- tedly compiled from the nominations by 12 "maintenance supervisors" (presumably the "construction supervisors" furnished the other 14), in June, all 28 laid-off employees came from the list allegedly suggested by 16 "mainte- nance supervisors." Johnson was not asked about his ex- clusive resort to maintenance supervisors for the second layoff or why, indeed, there were only 12 "maintenance supervisors" in April and 16 in June. There are other peculiarities worth noting. Vice Presi- dent of Industrial Relations Banks testified that it would be "unusual" for a client like Hercofina to dictate the number and type of employees to be laid off: "I think he just outlines the work and then we size the crew and work force." He then answered affirmatively a leading question as to whether there are "some jobs where the clients are involved in it." I imagine that is possible. Not as easy to understand is why it would make sense to Johnson in June, having decided to comply with Herco- fina's suggestions as to the categories to be laid off, to simply tell the foremen to nominate three employees, as he testified. That seems a chancy way to arrive at the specific classifications preselected for layoff. i. The April 18 layoff a. Larry C. McDowell As we saw earlier, Larry McDowell served as one of the three employee spokesmen during the strike, and Project Manager Johnson, who had a number of discus- sions with McDowell during the walkout, acknowledged at the hearing that McDowell "told me he was elected spokesman." On March 17, his first day of work after the walkout, McDowell received a written warning for so- liciting union card signatures, and that disciplinary action is separately alleged as violative of the Act. I turn to that allegation now. On March 17, according to McDowell, Johnson called him into his office and gave him a written reprimand stating: "on two occasions was reported attempting to solicitation [sic] of union cards." The reprimand is signed in one space by McDowell's foreman, Marvin Taylor, and in another by Johnson.'"" McDowell denied to Johnson, and denied at the hearing, that he had been trying to get union cards signed on worktime, testifying that he had only obtained signatures "before working hours and after working hours and on my dinner break." l 'o '00 The form also states, in Taylor's handwnting, "This is a final warning and notice of probation. Repitition [sic] of any of these violation [sicJ may result in discharge." s0° As later discussed, Foreman Taylor also gave a similar reprimand to employee Jerry M. Carter on that day, the complaint includes that in- cident as unlawful. 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Wayne Bailey testified that on March 17,102 as he was gathering his tools between 4-4:30 p.m., McDowell asked him (and other employees) "what we thought about the union, if we would sign the union cards." Bailey reported the incident to Foreman Taylor. Similarly, employee Bobby Todd testified that on March 17, at 8:10 a.m. (as he was "getting [his] orders") and again at the time that McDowell approached Bailey, McDowell solicited him to "join the union." Todd did not report these encounters until the next day when, in the lunchroom, Foreman Taylor asked him if "anyone approached [him] concerning joining the union on com- pany time, working time." Respondent's employee handbook contains a rule pro- hibiting "soliciting or distributing literature on Company property during working time"; the definition of "work- ing time" thereafter given affords the rule presumptive validity as a ban on solicitation of signatures to union cards and similar activity. McDowell signed a form in October 1979 acknowledging that he had read the hand- book. 10 3 The forthright testimony of Bailey and Todd and McDowell's equivocation at one point' 04 lead me to be- lieve that the latter did speak to them about signing Union cards on March 17 at the times they indicated. Nonetheless, in my view, the warning given to McDowell constituted a discriminatory application of the rule. The record is relatively barren of evidence relating to the manner in which the rule has been applied. The only direct testimony on the subject came from McDowell himself, in which he in part recited what he had told Johnson on March 17, and in part spoke more generally about solicitation practices: A. I said, well, what do you mean soliciting, I said, you all are selling junk out here all the time. I said you're selling tickets to this, you're selling tick- ets to that, you're selling raffles for that, it looks like everyday it goes on out there, they're selling something. Q. Okay. A. I've bought plenty of stuff even from him himself, I've bought stuff from him.'0 5 102 On cross-examination, however, Bailey could not remember "ex- actly which day" it was after the walkout. 103 Employee Phillip Cobb recalled "seeing signs" at the plant about the rule. '04 On cross-examination, McDowell was asked whether he had talked to employees about signing cards while he was working; he answered, "While I was working? Not really to what you say talked to them about signing the cards, no .... 105 Johnson did not deny this conversation, since he says that he did not speak to McDowell at all about the reprimand. I credit McDowell that he had such a conversation, because I do not believe that lie would have manufactured it. While Johnson's manner was sincere, his testimony occasionally seemed quite defensive, such as the passage regarding his conversation with police detective Manning on the Saturday before the Hugh McRae Park meeting. Johnson also failed to deny McDowell's testimony that the latter had bought "stuff" from Johnson. I note my awareness that McDowell's testimony does not specify that the selling of tickets and rafes occurred on worktime, although the con- text of his statements would seem to so imply. Foreman Donald Coston testified that while it is "against company policy," "huddling in groups has always went on to a certain extent," and employees are "continually talking back and forth, they are working to- gether in the shop and on the line." Given that employees engage in such "continual" talk, the circumstances of McDowell's solicitation seem to make it very small potatoes indeed. Todd testified that McDowell spoke to him the first time on March 17 at or about 8:10 a.m. while he was "getting my orders to go on the line and go to work," and the second time when he was "gathering up my tools" at the end of the work- day (Bailey was present on this occasion). While Todd stated that the second proselytization "probably" cost "a couple of minutes" of time, the record shows that no work is done after tools are gathered and turned in. Bailey, in fact, testified that although tool-gathering time is supposed to start between 4:15 and 4:30, "most every- one starts gathering up between 4:00 and 4:30." Todd did not attribute any loss of worktime to the first occasion. Interestingly, Todd did not, contrary to the testimony of Foreman Taylor, report either incident until Taylor sought him out in the lunchroom the following day, after the reprimand had been issued. Bailey, who was ap- proached in the afternoon of March 17 by McDowell, was the only informant on that day, and his testimony in- dicated that he did nothing more than ask Taylor "did he know that Larry was going around asking people to sign union cards." Since I believe Bailey and Todd (who were, after all, Respondent's witnesses), I reject Taylor's testimony that, on March 17, he "had two different employees come to me to tell me that [McDowell] was harassing them, wanting them to sign a union card during working time," and that Bailey had approached him on March 17 to say that McDowell "had come to him on two occasions during working time harassing him about signing a union card." Instead, I find that as of March 17, when the rep- rimand was issued, only Bailey had spoken to Taylor about only one such approach and that Bailey had, with- out supplying details, simply asked whether Taylor knew that McDowell "was going around asking people to sign union cards."'0 6 It seems clear that Respondent, on the first day after the end of the strike, was determined to nip in the bud any on-the-job organizational effort.' 0 7 In consequence, Taylor took a single incident, which, according to the ambiguity of Bailey's remark to Taylor, may or may not have involved solicitation on working time, and blew it up into a "final warning" notice, which is itself a depar- ture, as Johnson agreed, from the company policy of "three written warnings and you're discharged automati- cally." Against the background of "continual" talking 106 Consistently, I reject Johnson's testimony that on March 17, Taylor told him that "he had two employees who had complained to him about soliciting." o07 See the similar incident involving Jerry M. Carter. discussed here- after. Johnson testified that four or five other warnings for solicitation were issued on Monday, but they were destroyed for lack of substantia- tion. 594 DANIEL CONSTRUCTION COMPANY among the employees'0 8 and the frequent sale of goods, even by Johnson himself, I cannot believe that the repri- mand would have issued had Bailey told Taylor that McDowell had asked him about a baseball score or some other neutral matter as they gathered up tools in prepa- ration for leaving work. The issuance of the warning was, accordingly, discriminatory conduct in violation of Section 8(a)(3). McDowell was a combination welder and pipefitter in the fabrication shop at Hercofina, performing mainte- nance work on the "A" and "B" lines. He was, accord- ing to his testimony, the only fully qualified titanium welder in the shop, a function for which he received extra pay.' 09 He had worked for Respondent a total of 8-10 years at various times, the last period of employ- ment being, according to McDowell, for 6 years at Her- cofina. 110 In his last 6-8 months of employment, he was assigned as a substitute foreman on perhaps 10 or 12 oc- casions. On April 18, McDowell's crew consisted of 18 per- sons; he was the only one laid off. He testified that he was I of the 10 "combination men" on the site, capable of both fitting pipe and welding it. Although his testimo- ny on the subject is confusing, it appears that McDowell had worked at a number of Daniel sites in the past with- out being involuntarily laid off; on various occasions, he had left by quitting or, apparently, by asking to be in- cluded in a ROF. On April 18, McDowell was informed by Superintend- ent Johnson that he was being laid off. Johnson stated, "You brought this on yourself." McDowell began to argue, and Johnson purportedly repeated the foregoing explanation. Later in the day, a meeting was held in which the laid-off employees were advised by Johnson, and a company representative, of jobs available for them some distances away. Bill Johnson testified that he personally informed McDowell of the layoff because Foreman Taylor was absent that day and he did not like to assign such a task to a substitute foreman. He further stated that he did say that McDowell had "brought it upon himself," but that he had added, "the way you have been doing your work, your work productivity." Johnson also testified that McDowell's titanium welding skill was not frequently used, and McDowell's testimony suggests the accuracy of this assertion. Former Foreman TaylorI'I testified that Johnson had called him at home prior to the layoff and asked him to submit two names as layoff material. Taylor chose McDowell and welder Eddie Cribb. He selected McDowell because he "complained and grumbled all the time and kept the rest of the crew upset." McDowell, on the other hand, testified that every foremen he had ever 108 For present purposes, in my view, the distinction between "talk- ing" and "solicitation" is irrelevant. If Respondent permitted employees to spend time "talking," it could not discriminatorily invoke a rule against "solicitation" to bar promotion of the Union which consists simply of talking. 109 Fellow employee J. P. Stephens also performed titanium welding, but not, said McDowell. as expertly as he. ILO However, G.C. Exh. 12, a compilation of Hercofina terminations, shows his length of service as 4 years. i i He had become a journeyman at the time of the heanng. worked for had highly praised his work and dependabil- ity. The reasons given by Johnson and Taylor for the se- lection of McDowell are suspiciously at odds with one another. As indicated, Johnson testified that he told McDowell that he had brought the termination upon himself because of "the way you have been doing your work, your work productivity." Johnson was not asked to described the factual underpinning of this conclusion. Taylor, on the other hand, stated freely that McDowell was a "good worker," and gave as the reason for his rec- ommendation of McDowell for release that McDowell "complained and grumbled all the time and kept the rest of the crew upset." He further said that he had never "talked to Bill Johnson about Larry McDowell's work." This inconsistency is, obviously, disquieting. But even assuming some mistaken perception by Johnson as to Taylor's reasons for choosing McDowell, Taylor's expla- nation, purportedly the source to rely upon, does not withstand scrutiny. McDowell testified that in the 6-8 months preceding his departure, he had been assigned as a detail foreman over Taylor's 18-man crew some 10 or 12 times. This testimony was not denied. I simply do not believe that Respondent would have made such frequent responsible assignments of McDowell if it were true, as Taylor said, that McDowell had been keeping "the rest of the crew upset" for "about a year."' 12 McDowell was the only employee laid off from Tay- lor's 18-man crew on April 18. His length of service was substantial; he had frequently been detailed to foreman status; he was I of only 10 combination fitter-welders on the project; he was I of only 2 titanium welders. -He was fully known to Johnson, as the latter conceded, as a spokesman for the striking employees, and he had re- ceived a precipitous warning on March 17 for soliciting union card signatures. The reasons given for his selection were contradictory, and the evidence indicates that nei- ther of them is factually supportable. In my view, this combination of circumstances suffices to establish, by a preponderance of the testimony taken, that the selection of McDowell on April 18 was discriminatorily motivat- ed, and I so conclude. b. Sammy R. Wood Sammy Wood had worked as a multimachine operator at the Hercofina site for almost 12 continuous years when he was laid off on April 18; he started there only 2 months after Daniel began servicing the plant. Working in a crew of five machine operators, three mechanics, and one helper, Wood ran several different kinds of cranes and machines. At the time of layoff, Wood was the most senior employee in his crew and the third most senior on the entire jobsite; the next most senior operator on his crew had 6 years' tenure, and the most junior op- erator had been hired only a matter of weeks before the l2Z Moreover, in explaining the difference between McDowell and al- leged discriminatee Jerry M. Carter, Taylor said that although McDowell was a complainer, he "could work with most anybody," whereas Carter "couldn't get along with his fellow man too much." This description of McDowell is scarcely reconcilable with the claim that McDowell had kept "the rest of the crew upset" for a year. 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff. Wood was the only operator laid off on April 18. He had never previously been laid off. Wood picketed during the March strike, and was I of the 10 employees who continued to picket on Saturday, March 15. He also attended and signed a card at the Hugh McRae Park Sunday meeting. Wood testified that on March 20, Harry Caulder, his foreman, said to him, in Caulder's office, that "the Union wasn't going to help us and that I was messing up."'13 On April 18, Caulder told Wood that he was being laid off. Wood said that he had been expecting such a message. In picking up his check, Wood asked Superin- tendent Johnson the reason for the layoff. Looking Wood "straight in the eye," Johnson said, "Sam, you've got the worse record of anybody on the job .... You've been late more than anybody else on this job." Wood had never received a written warning about tardi- ness, although he had gotten three or four "verbal warn- ings from [his] foreman" in a 2- or 3-year period prior to the layoff; the warnings were in the nature of admoni- tions such as "you had better quit being late." On the day of layoff, Respondent offered Wood jobs in Bangor, Maine, and Canton, Ohio. Caulder'l4 said that on April 18 Superintendent Bill Johnson told the foremen that each had to submit the names of two men for possible layoff. Caulder chose Wood and mechanic Eddie Gaskins. l S Wood, he testi- fied, had been giving him trouble for about 6 months by disappearing from his work "quite a few times," and he had been warned by Caulder "several times" about this habit. Caulder had also talked to Bill Johnson about Wood's behavior. Caulder testified that he "was sort of looking for an opportunity to lay Sam off. Now, Sam is a friend of mine, and I would hate to do it but that is the truth. Because the rest of the men were doing their job and he wasn't." He said further that he had had foremen call for a rig and "tell me to send somebody besides Sam Wood." Asked if he had made the March 20 statement about "messing up" attributed to him by Wood, Caulder said, "Not to my knowledge, if I said it I don't remem- ber it." He conceded that he did ask some employees, in- cluding Wood, "their feelings" about the Union. Caulder said that he selected long-time employee Wood over operators Worth, who had been on the crew only 3 months;"" Rogers, about 3 years, apparently; Cook, 8 or 9 years; and Rivenbark, who seemed to have worked 4 or 5 years, with intervening layoffs. Johnson's version of his conversation with Wood was that he not only said that Wood had the "worst absentee record . . . of the crane operators," but also that the foremen were "all complaining to Mr. Caulder and me" about Wood's leaving his work and being difficult to find. Respondent's decision to lay off an employee with nearly 12 years' tenure-the third most senior employee a3 The complaint alleges that this statement violated Sec. 8(a)(1) 114 At the time of the hearing, Caulder was no longer a foreman. IlI Gaskins was in fact laid off, but is not named in the complaint. Ie Wood conceded on cross-examination that Worth (who, according to Wood, had been employed only 3 or 4 weeks) was "as good a crane operator" as he himself is. on the project-for the relatively slight reason offered by Caulder obviously provokes the most searchingly skeptical reaction in a neutral observer. After a thorough review of the evidence, I conclude that the layoff was unlawful. Aside from his participation in the walkout and picket- ing, Wood to some extent distinguished himself and stressed his partisanship by continuing to picket on Sat- urday, when the picket line had dwindled to 10 employ- ees. He also attended the park assemblage, where he signed a card. That his union sympathies were known to, and found distasteful by, Foreman Caulder may be in- ferred from Caulder's statement to Wood on March 20 that "the Union wasn't going to help us and that I was messing up." 1 7 There is contradiction between Caulder's professed reason for choosing Wood (that he kept disappearing) and Wood's version of what Johnson said to him (that he had been late more often than anyone on the job). As stated, Johnson testified that he cited both Wood's absen- tee record (among "the crane operators") and his una- vailability in this conversation. Because I was much taken with Wood's demeanor, I do not credit Johnson on this point. But the fact is that Caulder made no mention at all at the hearing of Wood's tardiness as a reason for his selection, and Johnson's reference to it therefore be- comes suspect. Caulder was not candid about his March 20 threat to Wood. and I had the impression that he was exaggerat- ing about Wood's propensity for wandering off. That, after 12 years of work, an employee should suddenly contract such a bad work habit is, of course, not impossi- ble, but it seems quite convenient in this case. Caulder's explanation of the duration of the problem and of his ef- forts to deal with it was also unsatisfactory. He first testi- fied that Wood had been disappearing for the "last 6 months" prior to layoff, and that he had "warned Sam about that thing about 6 months before the layoff, really." In subsequent testimony, Caulder said he had talked to Wood about the problem "several times," al- though he did not indicate when these other admonitions had occurred. Wood was asked whether he was ever told that he was doing a "bad job" and he gave a nega- tive reply. As earlier stated, I found Wood to be a wit- ness worthy of trust. In short, I do not believe that Respondent chose to pe- remptorily lay off a 12-year veteran, in preference to a 3- month rookie, for the reason asserted by Caulder. I be- lieve, rather, that Caulder's warning that Wood was "messing up" by supporting the Union was realized in the April 18 layoff, and, accordingly, I find the termina- tion to be violative of Section 8(a)(3) and (1). II7 I credit Wood's testimony here. Wood was a most impressive wit- ness, and Caulder's testimony on this subject was, as noted, equivocal. Although Respondent denied Caulder's supervisory status, the evidence shows that he was called a "foreman" (he used the term in describing himself) and wore a foreman's color-coded hat, and, on April 18 and June 27, was purportedly vested with the discretion to responsibly rec- ommend employees for layoff. I find, accordingly, that Respondent vio- lated the Act on March 20 by impliedly threatening Wood with reprisal for engaging in union activities. 596 DANIEL CONSTRUCTION COMPANY c. Carl R. Tedder Carl Tedder began work as a millwright at the Herco- fina site on October 15, 1978, and was laid off on April 18, 1980. He had worked for Daniel a total of 6 or 7 years. The crew on which he worked at the time of layoff consisted of eight millwrights. Tedder joined the picket line on March 12 and stayed out of work through Friday. He attended the Hugh McRae rally, where he signed an authorization card and also saw the son-in-law of Superintendent Johnson. In early April, Tedder's foreman, Clifford Webb, came to where Tedder and three other employees were work- ing and brought up the subject of the Union. Webb said that, if the Union came in, "Daniel would be out the gate in 30 days. He said we wouldn't have a job." Tedder's testimony on this point was corroborated by Harold Smith, a subsequently laid-off employee. The complaint alleges that this statement violates Section 8(a)(1). Soon thereafter, Webb called Tedder and his working partner into his office and, after telling them about an as- signment, asked, "By the way, how do you and Ward feel about the Union?" The two men walked out without answering. Again, this question is charged as an unfair labor practice. As of April 18, Tedder was senior in employment to two other members of his crew, Mike Jones and Harold Smith (as to the latter, by about 4 months). Foreman Webb testified that Tedder was chosen by him for layoff after Superintendent Johnson called him on April 18 and told him to pick two employees from his crew for termination. s8 Webb selected Tedder because, while he "worked OK" and was "willing to work," he was not qualified to perform certain work by himself, such as calibrating and lining up a pump. Webb had twice spoken to Tedder about this limitation. Webb had also received complaints from Supervisor Balcombe about Tedder's work being unsatisfactory. On cross-ex- amination, Tedder denied that he had ever been told that he had "problems reading the measurements" or "[c]alibrating." I do not find persuasive the contention that Tedder's selection was linked to his concerted activities. 11 Tedder had worked on Webb's crew for only about 1- 1/2 years as of April 18. Of the eight millwrights, he was senior to only two of them (by only 4 months as to one, Harold Smith, and Smith was nominated as Webb's other choice for layoff). Although Tedder denied having been told that he had "problems," the explanation advanced by Webb for the selection of Tedder is not refuted by the record. All tolled, I find the evidence insufficient to '8 Harold Smith, not alleged to be a discriminatee, was the other em- ployee selected. Webb's somewhat unclear testimony indicated that he was told to nominate two employees, but it developed that only one had to be released As the General Counsel points out, Webb's testimony that he first spoke with Johnson "I think, maybe, it was on the 18th, maybe that Friday around 10:00," conflicts with Johnson's version that he con- sulted the foremen on April 17. However, Webb's entire testimony is plainly uncertain on this point. 119 Unlike McDowell and Wood, those activities were not particularly prominent, although it may well be that at least some of them came to Respondent's attention. warrant a conclusion that Tedder was singled out be- cause of his protected activities. 20 I do, however, believe Tedder's testimony with re- spect to the two allegedly violative conversations with Webb. Although Tedder was not one of the more im- pressive witnesses at the hearing, his description of these conversations sounded real and perhaps beyond Tedder's creative powers; in contrast, I felt that Webb was being noticeably less candid in discussing conversations about, and knowledge of. the Union than in explaining his rea- sons for choosing employees for layoff. Accordingly, I conclude that Respondent violated the Act in early April when Webb told Tedder and other employees that Daniel would close down if the Union came in, and sometime soon thereafter when Webb asked Tedder and his partner how they felt about the Union. 2. The June 27 layoff Of the 28 employees released on June 27, the com- plaint, as amended, asserts that eight of them were chosen on the basis of considerations proscribed by the statute. There are additional 8(a)(3) allegations with re- spect to three of these employees which will also be dis- cussed below. Respondent's account of the process lead- ing to the June 27 selections has been previously set out. a. Jerry M. Carter The complaint alleges that Jerry Carter was discrimi- natorily laid off on June 27. It further alleges that he was involved in three incidents in which remarks of a fore- man violated Section 8(a)(l), and that he received an un- lawful warning for engaging in union solicitation on March 17. The last shall, hereafter, be first. Carter testified that he worked at the Hercofina job for a total of about 8 years until his June 27, 1980, layoff.' 2 ' At that time, he was a pipewelder, working in a crew of 18 on the "A" and "B" lines. Carter was senior to the other two or three welders on the crew; one of them had been employed for only 7 months. During his period of employment, Carter had been fired in 1976 and rehired 3 months later;' 22 he had never been laid off thereafter, although there were layoffs of weld- ers. Carter participated in the walkout and picketing in March, and signed a union card at the Hugh McRae Park rally. While on picket, he had a brief conversation with Superintendent Johnson. On March 17, when Carter returned to work, Fore- man Marvin Taylor told Carter that he was to attend a meeting of employees at 1:30 p.m. Carter, who had no watch, left his work at the second floor of the "B" line around 1:30 for the purpose, he said, of checking the 120 There is testimony by Harold Smith that on the Monday after the April 18 layoff, employee Gelegonya was transferred into Tedder's job. Gelegonya at one point put the transfer at a later time. but subsequently fixed it as closer to the layoff. On bnef, the General Counsel does not allude to this factor, presumably because Gelegonya is also alleged to have been a discnminatee in the June layoff, and it would seem inconsist- ent to say that Respondent robbed Tedder to pay Gelegonya. "' G.C Exh. 12, however, shows a hire date of July 18, 1974. 122 As shown in the preceding footnote, however, Respondent's records do not appear to reflect such a hiatus. 597 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time; finding no one around, he "decided I would go on to A line to see if I could see anybody to find out what time it was because it was on my way" to the "A" line shop meeting room. About 100 yards away, he ran into some friends at the "A" line, who told him what time it was "and so they started commenting on different things," including "the Union." When Foreman Taylor approached and told him that he was out of his area, Carter returned to his place of work and then went to the meeting. At the meeting run by Management Representative Banks, Carter gave voice to several complaints about working conditions. When he returned to work, Superin- tendent Bill Johnson, with Foreman Taylor present, handed him a written reprimand which accused him of leaving his work area without permission, interfering with the work of two "A" line employees, and violating the no-solicitation rule; like McDowell's, the reprimand calls itself a "final warning" and cautions that recidivism "may result in discharge." Johnson accused Carter of being out of his area, inter- fering with the work of others, and soliciting for the Union.' 23 Carter told Johnson that while employee Oliver Clark had been speaking of the Union as Carter asked about the time, he himself had said nothing on the subject. Carter testified that it is often necessary to leave his assigned area, which changes from the "A" line to the "B" line, for work-related purposes, and that his foreman had never previously criticized him for doing so. 12 4 Oliver Clark, a member of Carter's crew, testified for the General Counsel while he was on the "A" line, Carter "had come to his [own] buggy to get some- thing 25 and I'm not sure what brought the subject up but he asked me, no, well, anyhow the Union got brought up and he told me, he said, what do you think about it?" Clark gave a negative reply, pointing to the example of J. P. Stevens & Company. Clark had begun to express his feelings when Foreman Taylor came up to them. Clark could recall no other employees present at the time. He said that the conversation did not last "over two to three minutes." Clark received no warning for en- gaging in the conversation. Bill Johnson could recall no conference with Carter about the reprimand and testified that his practice was to consult about reprimands only when he personally issued them. Then Foreman Taylor' 2 6 said that when he ap- proached Carter talking to "two guys," Carter was the only one talking, and it was "about the union."' 2 7 He also testified, as Clark seemed reasonably sure, that there was a working partner of Carter's in his work area at the 123 "[Y]ou were talking about the Union ... you know, you're not supposed to solicitate [sic]." 124 The warning notice is alleged to be violative of the Act, and the complaint also alleges that Johnson and Taylor "interrogated" Carter during, or perhaps by virtue of, this incident. 122 Elsewhere, Clark said that Carter had come to his "buggy" and that Clark "walked by and [Carter] was getting something, but I'm nearly sure that Charlie Shelby was in the high line and [Carter] come to get a wrench or something for him .... " He could not recall that Carter asked the time. 126 Taylor was no longer a foreman at the time of the hearing. 127 "I don't recall the exact words; all I understood was the union." time, and perhaps other employees of whom the time could have been asked. In testifying about the conversation with Clark, Carter was not very convincing, especially on cross-examina- tion. That fact, together with the tenor of Clark's testi- mony-to the effect that Carter had most likely struck up the conversation about the Union-and the other ob- vious circumstances which require no elaboration lead me to believe that Carter did indeed bring up the subject of the Union. Nonetheless, it appears reasonable to con- clude that a subject of more routine import would not have provoked the reaction that this casual encounter caused, and I am convinced that the written warning was violative. The warning first states that Carter "left his work area around 1:30 p.m. today without permission." But the fact is that he had "permission," in that Taylor had told him to attend a meeting in the "A" line shop at that time, and he was headed in the right direction. Moreover, Carter and Clark testified that they often had to leave the area in which they were working to get parts or information; and Taylor had never before warned Carter about being away from his work area. The assertion in the reprimand that Carter violated the "no solicitation" rule is belied by Taylor's own testimo- ny. He testified that he heard only that Carter was talk- ing about "the union." Taylor's haste to magnify this al- lusion into an industrial offense is in keeping, I think, with the manner in which he also handed out a repri- mand to Larry McDowell on the same day, as previous- ly discussed. This was the day, it will be recalled, that the strikers returned to work, and the foremen obviously had their reprimand forms at the ready for any reference to the Union. Application of this sort of rule is, by definition, dis- criminatory if it is not evenhanded. Carter testified, "We always, on that job, if we see one of our friends we always say a word or two and then we always go back to our job and nobody ever says nothing about it." I refuse to believe that if Taylor had overheard Carter speaking to Clark about "the basketball game" or "the hunting season," he would have issued the reprimand. Finally, the reprimand's reference to "interfer[ing] with the work of two other employees" is clearly a biased judgment, based on circumstances which could as easily have lent themselves to a different construction. Clark said that Carter was standing at his "buggy" get- ting a tool when Clark walked by, and they spoke for a few minutes. Taylor approached only during the end of the conversation. He might as well have surmised that Clark was interfering with Carter's work, by walking by, stopping at Carter's buggy, and striking up a conversa- tion; but no questions were asked and Clark received no reprimand himself, once Taylor had heard Carter's refer- ence to "the union." On this rationale, I find the viola- tion as alleged. Carter testified that around June 1, Foreman Taylor approached his work station and "asked me what I thought about the Union." Carter replied, "Well, ever what [sic] the majority likes." The complaint lists this en- counter as unlawful interrogation. Taylor testified that at 598 DANIEL CONSTRUCTION COMPANY no time did he ask Carter what he thought about the Union. Because I do not find Carter necessarily reliable and because of the seeming improbability that Taylor would put such a question to Carter after the March 17 repri- mand incident, I am not disposed to hold in Carter's favor here. Carter received notice of his layoff on Monday. June 30.125 He was told to go to Bill Johnson's office, where the latter attributed Carter's selection to the facts that "you're not doing production work and you're laying out too much." When Carter angrily challenged these as- sertions, calling Johnson "stupid" and "a liar," Johnson said nothing more. Carter testified that he had only once been verbally cautioned for poor job performance. On that occasion, perhaps a month before the strike, Johnson had called him in and reprimanded him about putting "some wrong gasket in some pipe at night time." He testified that he had never received a warning for absenteeism and had not been unusually absent. He said that Johnson had in fact complimented him many times on his work, and around Christmas 1979, had told him that "if everybody worked like you weld, I wouldn't have no more prob- lems with my job." Carter also said that prior to the strike, he had on "three or four" occasions filled in for Foreman Taylor, the last time being for a 2-day period "[a]round about two months, or one month, something in there," prior to the strike. Before he left the site on June 30, Carter was offered another job in Virginia. Four weeks after his layoff at Hercofina, Carter was employed by Respondent at the General Electric site. Exforeman Taylor testified that when Johnson asked for names for a layoff on June 27, he chose Carter, among others; while Carter, whom Taylor had super- vised for 2 years, was a "good welder," "he couldn't get along too much with all his fellow workers" and he caused "conflicts among the members of the group." Taylor at first testified that he "can't say" that "any of the other employees ever complain[ed] to him about Carter." But on cross-examination, he asserted that "all of [the helpers] has said something to me about it." He further stated that these complaints had been going on for 7 or 8 months, and he specified that the complaints centered on the fact that Carter "would stand back and wait for his fellow worker to do most of the work," an attitude Carter had manifested "the biggest majority of the time" in which he had worked for Taylor. The lists assertedly compiled by Johnson after supervi- sory recommendation show that in April Taylor had sub- mitted the names of welders McDowell and Cribb for layoff, passing over Carter. Cribb was not laid off. In June, according to Johnson's list for that layoff, Taylor chose Carter, Woody, and Clark, in that order. Taylor was asked why he would have neglected Cribb, the ob- vious next choice, in June, and he responded, "I don't recall now." Taylor further did not at first "recall," in reference to the June 27 layoff, giving Johnson any name other than Carter's: "I don't recall at that time about any 1:8 He was included in the June 27 layoff. but he had an excused ab- sence from work on that day. more names, it seems we just cut back one, I'm not posi- tive." A leading question ("Could it have been, would it have been two, three?") later brought the answer, "I be- lieve there was more than one." I conclude that the evidence as to Carter supports a conclusion that his selection for layoff was unlawful. Carter had supported the concerted activity and the Union to the full, including speaking to employees on the job about the Union on March 17, which Taylor obvi- ously presumed to indicate a favorable attitude. Except for a 3-month period in 1976, Carter had been employed at the site for nearly 6 years. 29 The testimony about the reasons for choosing Carter is in conflict. He said, with- out being contradicted, that Johnson told him on June 30 that he was "not doing production work and you're laying out too much." The claim of excessive absentee- ism was denied by Carter; Respondent made no effort to document it; and Foreman Taylor did not advance such a reason. The assertion of "not doing production work" might be said to harmonize with Taylor's eventual expla- nation that Carter's helpers were complaining that he "would stand back and wait for his fellow workers to do most of the work," but I do not believe that claim. For one thing, Taylor did not get this specific until deep into his testimony. For another, he contradicted himself by first stating that he "can't say" that "any of the other employees ever complain(ed] to him about Mr. Carter," and later saying that "all" the helpers had done so. Further implicit contradiction of this testimony is found in Carter's unchallenged testimony that he had substituted for Taylor as foreman of the 18-man crew "three or four" times, the last occasion being only a month or two before the walkout, and that Johnson had said to him around December 1979 that "if everybody worked like you weld, I wouldn't have no more prob- lems with my job." Carter's concession that Johnson had admonished him about a month before the strike about performing a job improperly is, I think, immaterial; it has nothing to do with Taylor's asserted complaint about Carter, and Taylor conceded that Carter is a "good welder." There is, I think, significance in the fact that while Johnson's April 18 ROF list shows welder Eddie Cribb as Taylor's second choice, Cribb is not reflected on the June 27 list at all, although he was still on Taylor's crew at the time. Asked about this curious discrepancy, Taylor could only say that he did not presently recall the reason for Cribb's ascendancy into favor. This seems indeed pe- culiar-why would Cribb, the second choice in April and the obvious first choice for June, not even be shown as a second or third choice on the latter occasion? The answer might lie, of course, in the General Coun- sel's argument that the lists were not compiled as John- son testified. But passing that contention, it may reason- ably be said that Respondent considered it dangerous to document the simultaneous consideration of McDowell and Carter-both of whom had received reprimands from Taylor in March for union solicitation-on April 129 While Carter testified that he had been "fired" for 3 months around 1976, G.C. Exh 12, as noted, nonetheless shows his date of hire as July 18, 1974. 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18. McDowell was chosen and Carter was saved. When the June 27 layoff came, the opportunity presented itself for passing Carter to first position and thus eliminating him. The record shows that a petition for election at Daniel Hercofina had been filed on June 6, and the elec- tion was to be held in July. An employee who was thought, on the basis of the March 17 reprimand, to be a union adherent would be an obvious choice for layoff at the time. I am persuaded, in short, that the General Counsel's case here is a substantial one, and that the claimed dis- crimination against Carter has been sufficiently demon- strated. b. Harold J. Caposto Harold Caposto had been employed at Hercofina for "about a year and six weeks"' 30 when he was laid off on June 27; his instrumentation helper job involved main- taining measuring equipment. He and eight other instru- mentation personnel worked on the "C" and "D" lines. Caposto walked the picket line for the 3 days of the strike and he attended the Hugh McRae meeting, where he signed a card. Around early April, Caposto's foreman, Don Coston, asked Caposto what was "wrong with the people," and Caposto told him they were dissatisfied with their bene- fits. Around the first part of June, Foreman Coston pur- portedly told Caposto that if the Union came in, "it could mean our jobs, we could both be out on the street .... The way he understood it is the way I understood it, about 30 days was all it would take before I would be out." The complaint alleges that Respondent violated the Act by Coston's asserted interrogation in April and threat in June. Coston candidly conceded that he had spoken to all his employees about the Union,' 3 ' and he recalled telling each of them, inter alia, that "however he voted it could affect my job and affect his job."' 3 2 He did not "remember" saying that they would be "in the street" if the Union came in, nor did he "recall" asking Caposto "how other people felt about the Union." It seems to me that Coston's admission that he told his employees that their votes could "affect" his job and theirs itself sufficiently demonstrates a threat made un- lawful by the Act, and I also believe that the threat was phrased in the more graphic terms used by Caposto.'3 3 130 So Caposto testified. G.C. Exh. 12, however, shows a hire date of May 21, 1978. It is hard to believe that Caposto's precisely stated figure could be off by an entire year, and I prefer here Caposto's testimony as against the stipulated date. L31 The record shows that after the Union filed the representation peti- tion covering Hercofina on June 6, an election was held on July 24 which the Union lost by a substantial margin. 132 While Coston later testified that he explained this statement by speaking of an employee's inability to discuss matters with a supervisor once a union representative had been elected, he could not say "what effect it would have had on my job." Further on, he testified that there were "no details given" about the effect of the Union on jobs, but still later said he did mention (or may have mentioned) something about an effect on employee "pay." 133 Both Coston and Caposto were appealing witnesses. As discussed later in connection with Cobb, I sense that Coston was basically impelled Similarly, I find that Coston, who admitted later speak- ing to all of the employees about the Union, probably asked Caposto in April "what was wrong with the people." There is no indication here that Coston was al- luding to the union activity-more likely, Caposto un- derstood him to be referring to the recent strike. The question does not appear to probe into any sensitive areas safeguarded by the Act, and I would not find a violation on these facts. On June 27, Coston called Caposto and fellow em- ployee Carlton outside and told them of their layoff, saying it was "one of the hardest things I've ever had to do." When Caposto pointed out that others had less time on the job, Coston said that he "had to pick two people and I picked you."''34 At the time, Charlie Spencer and Mike Schaub, helpers like Caposto, had worked for, re- spectively, 4 months and 4 weeks.' 3 5 Caposto testified that earlier in June, just after a layoff of a "few people," Caposto had worriedly joked about the possibility of his being laid off soon, and Coston had told him not to worry: "[tjhere is quite a few other guys here with less time than you who will go first." In May, Caposto said, when Coston was notifying him of a pay raise, he told Caposto "you do good work." Caposto is a retired military man and receives a gov- ernment pension. Foreman Coston testified that he sub- mitted the names of Caposto and Carlton for layoff, the former on the ground that he was "going to school" and also had a pension which made him less unsheltered than others who might have been laid off.'3 6 He made it clear that Caposto was otherwise an acceptable worker. While Coston said that he might have stated, in response to a question by Caposto about further layoffs, that he hoped there would be no more, he did not recall saying to him that Caposto would be protected by his seniority. He also said that he "sometimes" looks to seniority in se- lecting for layoff: "it depends on the circumstances." Both Caposto and Carlton appear on Johnson's "hit list" for the April 18 layoff, and as earlier discussed, both were spared. according to Johnson, as a result of Cos- ton's purported intervention based on his manpower needs. Caposto's most distinguishing feature in regard to union activity was his appearance at Hugh McRae Park, where he signed a card. The principal reason given by Coston for selecting Caposto does not smack of fabrica- tion-that Caposto, a pensioner, would not be hurt as much by a layoff as other employees. The fly in Re- spondent's ointment here is Caposto's testimony that in early June, Coston had told him that, in the event of a layoff, he would be safe because of his relative seniority; as noted, Coston did not recall such a remark. '3 The to be honest, but that, in some areas, he moderated and tempered his tes- timony in the Company's favor. is' Caposto's testimony here seems to nmiliate against the argument that the foremen played no role in the choice. ISI See G.C. Exh. 11. s3e According to Johnson's list, Coston's third choice was 4-week em- ployee Schaub. IaS I do not attach much weight to another potential fly pointed to by the General Counsel: that the selection of Caposto, a concededly good Continued 600 DANIEL CONSTRUCTION COMPANY argument would be that Coston's subsequent abandon- ment of the promised seniority preference proves an ulte- rior motive and a contrary order from Johnson. I am inclined to believe that Coston did make the al- leged remark; he could only "not recall" doing so. While this would make the choice of Caposto suspicious indeed, I am not persuaded that it ties up a case of dis- crimination. It could well be that, in making such a pass- ing remark, Coston may simply have been attempting to keep up Caposto's morale and productivity. I am less than comfortable with my recommendation that the allegation as to Caposto should be dismissed, but I would be even more uncomfortable in recommending to the contrary. On the whole, I am not convinced that a case has been made out here. c. Sammy L. Smith The complaint alleges that Respondent unlawfully ter- minated Sammy Smith from the Hercofina site on June 27, wrongfully laid him off again from i!s General Elec- tric job on August 7, and then unlawfully refused to hire him at the Pfizer jobsite on August 18. Smith had worked at Hercofina for about 22 months""8 (and for Daniel about 4 or 5 years) as of June 1980; he had also been employed there around 1974-75. He was classified as a millwright, but he also filled in as a machinist when one of the three machinists Xwere miss- ing. There were two other such millwright-machinists in his crew. Smith had less seniority than the latter, but more seniority than three or four millwrights in the crew. Smith walked the picket line during the strike, and he signed a card at the park meeting on March 16. Apparently after the strike, Williamson, Smith's fore- man, told his crew at a safety meeting that he "felt like it would be in our best interests that we would not get a union, and if we had signed a card, that he felt like it would be to our best interest that we would try to go down and try to get our card back, if they would let us have it back." Counsel for the General Counsel declared at the hearing that this statement constituted an unlawful impression of surveillance and also a threat of loss of jobs, as alleged in subparagraphs 110j) and (m) of the complaint. Paragraph I 1(k), that Williamson coercively "[s]olicited . . . employees to withdraw their support for the Union," was, plainly, also intended to apply to these remarks. Williamson openly conceded at the hearing that he "may have discouraged them from wanting to sign a card," but he doubted that he ever told employees to re- trieve signed cards. Both Smith and Williamson made ex- cellent personal appearances, but, in my view, the posi- tive testimony of the former was confirmed by the con- cession and uncertainty of the latter; I therefore credit Smith. I detect no impression of surveillance here, and no direct threat of loss of jobs. I do believe, however, that the Board would hold that Williamson's statement, refer- employee, simply because he received a pension. ran counter to Johnson's desire to lay off the "least productive people." Among other defects in this argument is the ahsence of proof that Caposto, although "good," was still not relatively the least productive 138 G.C Exh. 12 shows his date of hire as August 30, 1978. ring to the unspecified "best interests" of the employees, would reasonably have had a tendency to cause them to consider the possible perils of not attempting to retrieve cards signed by them, or of signing such cards if they had not already done so I therefore find that the re- marks violated Section 8(a)(I). See C. W.F. Corporation, 188 NLRB 554, 559 (1971). Around June 20, Smith saw Foreman Clifford Webb (not his own supervisor) at a filling station. Webb told him that he "didn't feel like the Union would be to our best interest and if the Union should happen to come in there that we would all lose our job." When Smith pointed out the continuing unmet needs of the employ- ees, Webb walked off. Smith's wife testified similarly. The complaint asserts that Webb thereby threatened an employee with loss of employment, in violation of Section 8(a)(l). Webb denied making any such statement. I considered Smith and his wife much more credible on the subject than Webb, who evidently made other state- ments to this effect. The threat is palpable, and I con- clude that the 8(a)(l) allegation is well-founded. On June 27, Foreman Williamson told Smith that he, helper David Sarvis, and millwright Al Atkins were being laid off, but that Williamson had arranged to have Atkins transferred as a mechanic. At the time, Smith had worked on the Hercofina job longer than Atkins had. A company representative held an interview with Smith re- garding the possibility of placement elsewhere. The rep- resentative offered Smith a position at the nearby Daniel General Electric job starting July 14. Smith reported as instructed, as later discussed. Foreman Williamson testified that he was asked to submit 3 names for ROF out of his 15-man crew and chose Smith, inter alia, "because of his past record of at- tendance," which included both absenteeism and tardi- ness. He had previously spoken to Smith about the sub- ject, Smith "did improve some," and "we about had [the problem] worked out"; but, while Smith was "a very good worker," his record was not as good as others in the final weighing. Williamson further testified that employee Atkins was listed as being on his crew, but had in fact been trans- ferred to another crew some 3-4 weeks prior to the layoff and was actually working as part of that crew. Nonetheless. Williamson had submitted Atkins' name for layoff, thinking, apparently, that losing a defacto nonem- ployee would not be very damaging. Atkins was, howev- er, retained and put to work as a "mobile mechanic," working on "cars, trucks, pettybones and things of that nature," a skill that Smith did not possess.t ' 9 I perceive no basis in this record for concluding that Smith's layoff on June 27 was violative. His latest stint with Respondent had not been lengthy-some 20 months-so that the fact that he may have been chosen out of seniority, as he said without controversion, could not have involved any startling discrepancy; there is no detailed evidence on this point. 140 Smith did not reap- '39 Williamson agreed that Smith had "a little bit" more seniority than Atkins. Atkins, however, had worked as a mechanic before becoming a milluwright. 140 (. C Exh. 12 shows that David Sarvis, the other employee laid off on June 27, had been employed for 23 months 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pear at the hearing to deny Williamson's claim that his attendance record had, while recently improved, been poor in the past, and Williamson's testimony here seemed credible. The retention of Atkins over Smith was ade- quately explained. The fact that Smith, alone among the alleged discriminatees, was immediately hired for work at a nearby jobsite of Respondent's at the time of layoff certainly suggests that Respondent may not have been aware of his signing a card at Hugh McRae Park. 14 Given these circumstances, I am unpersuaded that this allegation has substance. The next claim with respect to Smith is that he was unlawfully laid off from the job he began at Respond- ent's General Electric site on July 14. On July 24, an election was held at Hercofina. Smith testified that he called the General Electric site that morning and told a clerical employee to notify his foreman, Samuel Humph- ries, that he would be late "because I was going over to the Hercofina site"; he cast a ballot in the election. On August 7, he was laid off at General Electric. Ac- cording to Smith, Humphries had said earlier in the day on August 7 that he had turned in a list of his crew names to the front office, and had predicted to Smith that only helpers, three or four of whom worked in the crew, would be laid off; instead the helpers were trans- ferred to the sandblasting department. Foreman Humph- ries, in notifying Smith of his layoff, assertedly told him that he had nothing to do with it, but that Smith "had been selected for layoff." Smith testified that he had been "aware that there was going to be a layoff because of the fact that they had had a two-week shutdown prior to this and that we were ending the two-week shutdown." When Smith first arrived on July 14, there were only 75 employees on the site, but a large number of employees was hired to assist with the shutdown. Humphries testified that Smith told him, the day before the Hercofina election, that he intended to "go to vote at Hercofina," but he said that Smith also added that he intended to vote "no."' 42 Humphries said that Smith was selected as one of the three millwrights to be laid off on August 7 because "he was hired for the shut- down, the shutdown was fading out, and his name was just there with the other two." 43 Smith was an "aver- age worker," and while some weight was given to his absentee record, that was not determinative.' 4 4 The fact that Smith was one of the workers hired to help with the shutdown apparently was a principal factor in Smith's se- lection: four employees had been hired into Humphries' crew for the shutdown; two others were let go with '4 This fact also distinguishes the present situation from Daniel Con- struction Company, 244 NLRB 704 (1979), cited by the General Counsel in the case of Boyd, infra. In that case, as the General Counsel character izes, "it was found that Daniel systematically refused employment to workers who were last employed at one of its jobsites where union activ- ity had taken place." 1412 Smith denied having had such a conversation. 143 Other testimony shows that the shutdown began July 28 and ended August 10; that Respondent hired some 80 additional workers to assist during the shutdown; and that this hiring began about 2 weeks before the shutdow'n started. 144 Humphries testified that Smith failed to report for work, and did not call in, on either of the overtime days of one weekend during a shut- down, and also failed to report, but did call in, on one day of a second such weekend. Smith recalled only one such absence. Smith, and two or three more the next week. Humphries testified that the helpers to whom Smith had referred had originally worked in the sandblasting department and had worked as millwright helpers during the shut- down; at the end of the shutdown, they were returned to sandblasting. Asked whether he told Smith something to the effect that he did not like to lay him off and did not make the selection himself, Humphries testified, "I don't recall tell- ing him that I didn't make the choice. I make the choice of everybody that is laid off in my crew." Humphries' testimony was corroborated by Mike Thomas, maintenance general foreman at General Elec- tric, who said that he told Humphries to select three men for layoff, Thomas candidly testified that he had been told by Humphries, in routinely explaining Smith's ab- sence on July 24, that Smith had gone to the Hercofina election. The General Counsel argues that the conclusion that Smith was discriminated against at General Electric "is supported by two factors." One is that "Humphries was shocked to learn that Smith was connected with the Union at Hercofina." This same claim appears five sen- tences earlier in the brief in the milder form of "Humph- ries was surprised that Smith would be voting in the election." The portion of the record cited for these char- acterizations follows: Q. He asked you the day before? A. Right, could he be off to go vote, and I said "vote where"; and he said "at Hercofina"; I didn't know that he had anything to do with Hercofina. He said, "Yes, I have got to go vote no." Q. You didn't know anything about the union election at Hercofina? A. I didn't know anything about it. I knew by the papers, yes, but I didn't know anything about him having anything to do with Hercofina. I didn't know where he worked before. The effort to transform the foregoing testimony into an expression of "shock" is, to say the least, puzzling. The second factor referred to by the General Counsel is more substantial. That point is Respondent's failure to tell Smith that he was being hired only temporarily, for purposes of the shutdown. Smith said that after he was told by a Daniel representative named Long on June 27 that he had a job at General Electric beginning July 14, he returned later, apparently also on June 27, to see Long and to "reassure myself about the job because I didn't want to not look for a job for two weeks and then wind up not having one." Without mentioning that the job would be temporary, Long reassured Smith that he indeed had work at General Electric. It surely is arguable that one might have expected Long, in the circumstances, to tell Smith that he was being employed only for a few weeks (assuming that Long was aware of that fact). If one were to suppose that Respondent originally intended a more permanent employment, its change of heart might be attributed to a particular intervening fact-Smith's trip to Hercofina on 602 DANIEL CONSTRUCTION COMPANY July 24 to vote in the election.145 That is, however, a fairly innocuous act, made more so if it is true that, as Humphries testified, Smith told him that he intended to "vote no. " 4 Smith was an impressive witness, precise, measured, and calm. His testimony that Humphries had said that he played no role in the selection of employees for layoff ("all he had done was turn in a list of his crew, the names, into the office") was denied by Humphries, who said he made the selections himself and who explained his decisional process. Similarly, Humphries implicitly denied Smith's testimony that there had been some mixup about who was to be laid off, resulting in Humph- ries correcting the error and thus causing the layoff of Smith. If I were to resolve this conflict in Smith's favor, it would raise a serious suspicion, although I am uncer- tain whether, in these circumstances, the suspicion would carry the day for the General Counsel. The implication that Humphries played no decisive part in choosing Smith was denied not only by Humph- ries but also by Maintenance General Foreman Thomas. They agreed that Thomas had told Humphries to choose three millwrights for layoff, and had not dictated that any particular persons be tapped. They both denied any knowledge of Smith's union persuasion. Humphries seemed a most credible witness, and Thomas was par- ticularly open, sincere, and spontaneous. The testimony of neither mail was evasive, inconsistent, or shaken by cross-examination. On this record, there is simply no reason for me to disbelieve the two witnesses on the basis of their testimony. But it could also be said that, even if Smith were telling the truth, that does not re- solve the matter. Humphries may indeed have denied to Smith the fact that he had chosen him for layoff; it may be a course some supervisors opt for. There is left the possibility that a finding of violation might nonetheless be made on the basis of the facts that Personnel Representative Long failed to inform Smith that the General Electric job for which he was being hired was only temporary and that Smith took his inter- im trip to vote at Hercofina. As noted, if the original in- tention had been a temporary assignment, it might well be thought that Long would have told Smith so. I do not think that limb is strong enough to rest on, however. Long may not have known that the work was tempo- rary, or the signals between him and the Daniel General Electric managers simply could have been crossed, or Long might have assumed that Smith was aware that he was being hired for a shutdown. I note, in this regard, that alleged discriminatee William Willetts testified that on June 27, when he was also laid off, he knew "they were going to have a shutdown at GE" and asked for work there. As for the visit to Hercofina, that factor is, in my view, too ambiguous to permit the finding of a '45 I note that no unfair labor practice charge naming Smith was filed until the amendment to the charge in Case II CA-9288 on August 19 :46 1 have a hunch that Humphries did not manufacture this grace note, although, as indicated hereafter, it is quite difficlit to choose be- tween Humphries and Smith in the area of credibility. As noted infra. Smith testified that when he subsequently applied at the Pfizer site, he went out of his way to assure the superintendent that he "wasn't coming down there to gile any problems such as union activities violation here. I therefore recommend the dismissal of this allegation. Smith was not yet sufficiently disenchanted with Re- spondent to cause him to abandon all hope of employ- ment with the Company. He next applied for work at Respondent's Pfizer project in Southport, North Caroli- na, and his failure to secure work there has resulted in a further claimed violation. On Monday, August 16, Smith went to the Pfizer loca- tion, about 35 miles from Wilmington, to interview for a job as a machinist. Maintenance Superintendent Walden Griffin had Smith fill out an application and, with Fore- man Travis Lamb, interviewed him. They discussed Smith's work at Hercofina; according to Smith, in a pre- vious telephone conversation with Griffin, he had told the latter about his employment at Hercofina, and, in the August 16 interview, Griffin advised that he had talked to former Hercofina employees at the Pfizer jobsite and "they had given me good recommendations." Smith then testified: After this interview, he asked me when I would be available for work. I asked him if it was possible would it [sic. make it Wednesday morning, this was on a Monday afternoon ... . He asked his foreman and they both agreed that that would be fine, that Wednesday morning would be fine. 14 ? Smith also "did advise [Griffin] that he was aware of what went on at Hercofina with the Union and the walkout[,] that I was coming to work with him to give him a fair and honest day's work at his site." Griffin said, according to Smith, that he "would touch bases with Hercofina and.also the G.E. plant, and he said, I'll give you a call this afternoon late or the first thing in the morning." Smith testified that he understood the purpose of the base-touching was "to check out to see if [he was] all right." At 11 a.m. the next day, not having heard from Grif- fin, Smith called him. Griffin told Smith that, a few weeks earlier, he had gotten in touch with the Greenville personnel office about filling the post, and that the office had informed him on Monday afternoon, subsequent to Griffin's interview with Smith, that they were sending a man for the job; consequently, Smith's services were not needed. Griffin testified that, toward the end of the August 16 interview, he had asked the "standard" question as to when Smith would be able to report for work, and Smith had said he would be available on Wednesday. Griffin had commented that Wednesday "would be all right." The interview ended with Griffin saying that he "would be back in touch with him and let him know our deci- sion on who we are going to hire," after "checking on his application and that we would be consistent with all of the other applicants, that we would be talking it over together and making a decision on that." t 48 Griffin con- 14; On cross-examination, Smith recalled that Griffin said, "We'll look for you on Wednesday morning." -.n At the time, the vacancy had been open for 3 weeks, and there were three or more applicants for it 603 DECISIONS OF NATIONAL LABOR RELATIONS BOARD firmed Smith's testimony that just as he left, Smith spoke of having taken part in the Hercofina walkout. Griffin testified that about 3 weeks earlier, when the vacancy had opened up, he notified Jesse Simons of Re- spondent's Greenville personnel office, and had heard from Simons two or three times after that. Following his interview with Smith on Monday, Griffin called Simons again, "to see if he had any more applicants," and was told that Clarence Miles, "a very good applicant," had applied for the job and had been instructed to call Grif- fin. Miles called either that afternoon or the next morn- ing, and a 15-20 minute telephone interview was held. Griffin then had Foreman Lamb, who had previously worked on the same job with Miles, but who did not know Miles personally, call and speak with him. There- after, Griffin called Miles, found that he could start on Friday, and told him to come and file an application and that he would be hired on Friday. Griffin testified that it was not unusual for him to hire on the basis of a tele- phone interview ("the best people that I have ever had were hired over the telephone"). Griffin explained that he preferred Miles to Smith be- cause Miles had some formal schooling in engineering and diesels, "which we have on the job,"' 4 9 and had worked in the Charleston Naval Shipyard for several years, where "good schools" are to be found. In addi- tion, Miles intended to move to Southport, "which was better for a call-in," whereas Smith lived 45 miles away. Griffin did not contact Miles' prior places of employ- ment because "[plersonnel does the checking; when they recommend someone, they have already done this." Foreman Lamb corroborated Griffin about the trans- action in all respects to which he was privy, adding that he had known a former supervisor of Miles and thought that "he runs a good shop, and . . . a fellow would have to be real qualified to work for him." According to Lamb, Miles was terminated for exces- sive absenteeism on October 6, 1980. About mid-Novem- ber, "the fellow that was originally there" returned to the job. 1'5 Smith insisted at the hearing that he was in effect hired on Monday, and the General Counsel asserts on brief that Griffin "in fact hired Smith on August 16." Despite the indications that Griffin was favorably im- pressed with Smith, it is obvious from the testimonial concession by the latter-that Griffin had said he would "touch bases" with Daniel Hercofina and Daniel General Electric, "to check out if [he was] all right"--that Smith was still only under consideration as of the end of the interview. That this checking was meant to be more than a formality is suggested by Smith's rather anxious con- cern on Tuesday about the expected call from Griffin. I therefore think that Smith's memory turned somewhat partisan when he recalled, on cross-examination, that Griffin had said, "We'll look for you on Wednesday morning." 149 Miles' application shows such training in the Coast Guard. '10 On further examination by Respondent's counsel, however, Lamb said that the job was only vacant for "a week or so" between the time Miles left and the former occupant, a victim of a heart ailment, was medi- cally cleared for return to the job. It is a suspicious circumstance, to say the least, that when Griffin called Simons in Greenville, after inter- viewing Smith, "to see if he had any more applicants," Simons happened to have such an applicant available. Since Griffin had informed the Greenville office weeks earlier of the need to fill the position, it is not easy to understand why Simons had not himself taken the initia- tive of notifying Griffin about the availability of Miles, rather than have that information first communicated when Griffin called Simons. There could be, of course, reasonable explanations. Simons may have been away from the office or too busy to call Griffin; Miles may have only just applied or been investigated before Griffin called Simons. None of these, or other, explanations were forthcoming, however, be- cause Simons was not called to testify. I find that omission disturbing; Simons was in a posi- tion to clarify what appears to be a rather odd coinci- dence. After careful consideration, however, I have con- cluded that despite Simons' absence, the General Coun- sel's case is simply not strong enough. Griffin seemed to me to be an honest witness, and Lamb made no untoward impression during his brief ap- pearance. More importantly, however, the prima facie case here is less than substantial. There is no getting around the fact that Respondent did hire Smith at Gen- eral Electric after his layoff at Hercofina, thus indicating that it did not consider Smith to be a dangerous contami- nant; indeed, Smith's testimony shows that one of Re- spondent's agents apparently went out of his way to help Smith secure that job.' 5 ' Nothing in the framework of union or concerted activities occurred thereafter except for Smith's voting in the election at Hercofina, and his statement to Griffin on August 16 that he was "sure [Griffin] was aware of what had went on at Hercofina but that I . . . wasn't coming down there to give any problems such as union activities or walk out or anything like that." As of August 17, when Griffin told Smith that Miles had been selected, no unfair labor practice charge naming Smith had yet been filed, as noted earlier. On this record, I cannot conclude that the failure to hire Smith at the Pfizer site resulted from some conspira- torial vindictiveness against him by the Greenville office. To so find, I would have to think that the desire to pe- nalize Smith was based on knowledge within the corpo- rate office that he had voted in the election, and an urge to retaliate against him for doing so. I do not think the evidence permits that inference, and I shall therefore rec- ommend dismissal of this allegation. d. Charles K. Boyd and James Stokes Charles Boyd was employed as an ironworker at the Hercofina site for about 7 months, until June 27, 1980; he had also worked elsewhere for Respondent for 13 months. There were two pairs of ironworkers in Boyd's crew; he and James Stokes comprised one of them. I'l As Smith testified, "I first talked to Ben Erwin, the foreman. He came by and told me to be sure and go in to talk to Mr. Neal Longl.J that he had talked with him earlier and I had been selected to go to the GE Plant site on July 14th." 604 DANIEL CONSTRUCTION COMPANY Boyd picketed during the strike. He also attended the Hugh McRae meeting, where he signed an authorization card. James Stokes began work on January 2, 1980, and was laid off nearly 6 months later, on June 27. He had been a journeyman for 4 or 5 years. Stokes went to the picket line each morning during the walkout, although he did not carry a sign, and was briefly in attendance at the park on March 16 (he arrived after the speeches had ended and stayed for some 30 minutes talking to others). On the second day of the walkout, Foreman Don Ed- wards called Boyd at home and asked him to return to work.' 52 When Boyd said that he would not cross a picket line, Edwards replied, "Well, you walking that picket line for nothing, you know, you are not getting nothing out of this." The complaint alleges that Respondent, by this remark, unlawfully "[i]nformed its employees that it would be futile to select the Union as their collective bargaining representative." The closest that Edwards came to being asked about this allegation was a question as to whether he had told Boyd or Stokes that "the union would be worthless" (which he denied doing). Al- though, accordingly, there is no reason not to credit Boyd, I do not think the remark was violative. Contrary to the allegation, Edwards could not, on March 13, have been thought to be speaking of the futil- ity of "select[ing] the Union as their collective bargain- ing representative"; the Union had not become notice- ably involved at that point. There is no indication that, as of that date, the employees were interested in formal "bargaining" of any sort; accordingly, insofar as Ed- wards' statement might be construed to refer to future possibilities, it would not have led Boyd to believe that Respondent would not "bargain" in good faith, since that was not currently being sought. Moreover, even if the al- legation is sufficient to support a broader theory that Ed- wards was disparaging the effectiveness of concerted ac- tivities in general, the statement seems ambiguous to me. It might well have been understood by Boyd to make the simple and incontrovertible point, in order to urge him to return to work, that he was losing wages by strik- ing. The two employees testified that, about a week before the June 27 layoff, Foreman Edwards called them over to a truck and "asked us what we thought about the union." The employees answered in a somewhat positive vein. Edwards then said, according to Boyd and Stokes, that "if the union come in here then Daniel will be out in 30 days. He said Daniel is too big to go union." The complaint charges that Edwards thereby engaged in un- lawful interrogation and a threat of loss of jobs. Edwards, as indicated above, denied having told the employees that "the union would be worthless," which does not, in my view, constitute a denial of the language charged. He further testified that he had never taken the initiative in discussing unions with Boyd and Stokes, saying that he only answered their questions, which does amount to such a denial. One such question was what 122 Edwards testified that he called all of his employees to see if they were returning would happen if the Union was elected; he replied that it would be "up to Hercofina and Daniel people." I do not believe that Boyd and Stokes fabricated this incident; its detail smacks of reality. While Stokes con- ceded on cross-examination that Edwards had previously been present at informal lunchtime discussions by the ironworkers about the Union, and that he himself had talked about having "signed a card" in the presence of Edwards, that context, according to PPG Industries, Inc., supra, did not make the interrogation less coercive, nor, I think, sufficiently less likely that the incident occurred, since the question was plainly the opening gambit for the threat. It is clear, furthermore, that Edward's threat of plant closure was not vitiated by that background. Ac- cordingly, I find the violations as alleged. On June 27, Edwards told Boyd and Stokes that he "had to get rid of two ironworkers," and that he was laying them off. He also purportedly said that he liked their work and would hire them back as soon as possible. The remaining two ironworkers were M. A. Moore, who substituted for Edwards as foreman when the latter was absent,'t5 and L. G. Powell. Powell had begun employ- ment the day the strike ended, as a replacement for the nonreturning striker Otis Henderson; he was, according to Boyd, a truckdriver by trade, not an ironworker. Boyd testified that he had acted as a foreman on the night shift for 2 days during a shutdown sometime in 1980.'54 Boyd further said that, after the shutdown, Ed- wards had told him, "[Y]ou don't have to worry about nothing . . . you've got a job here[,] as long as we've got work you've got a job." Stokes testified that, probably in June, Edwards had told him that they had "plenty of work" and no worry about a layoff. At the time of the layoff, Edwards told Stokes (and presumably Boyd) that a company representative would interview them about other employment. Stokes spoke to the representative and was offered two opportunities to begin work the following Monday, one in Badin, North Carolina, and the other in Front Royal. Virginia. Foreman Edwards testified that Superintendent John- son told him on June 27 that two "iron workers and an operator" had to be eliminated; he chose Boyd, Stokes, and "Charles McLamb." The first two were picked be- cause they were not "structural steel fabricators"; i.e., they were unable to work well without blueprints and they made measuring mistakes. Edwards had not discov- ered their lack of ability in this area until a few weeks after they were hired, when the nature of the work they had been doing changed from "rigging" to "application." 153 Edwards testified that Moore had Worked for him for about 6 years. The complaint alleges that Moore violated the Act during a 2- week period around May in which he served as a substitute for Edwards. Boyd said that he and Moore "talked several times" about the Union in that period, and that after Boyd asked Moore what he thought about the Union, Moore put the same question to Boyd. I find no violation, not only because of the obvious absence of any coercive aura in the conver- sations as detailed by Boyd, but also because I perceive no basis in the record for concluding that Mot)re enjoyed supervisory status during this period. Even Boyd had previously served as a detail foreman, see infra. ,'S Boyd could not recall when this occurred, and did not say how many employees were serving on the night crew specially set up for the shutdown. 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He testified that he had superior workers in veteran Moore and in L. G. Powell, who was, he said, a "better worker" than Boyd and Stokes. Edwards agreed that he had told Boyd and Stokes prior to the layoff that there was plenty of work availa- ble; at the time, he said, there were good prospects be- cause a shutdown was planned f6r June, but it was subse- quently postponed. He further testified that as a result of the first postponement, in early June, he had been forced to lay off ironworkers Cain, Spencer, and Rogers, pass- ing over Boyd and Stokes. Edwards denied having said anything to Boyd and Stokes about being rehired be- cause they were good workers. Edwards seemed quite sure that Bill Johnson asked him on June 27 to furnish the names of "two iron- workers and an operator," which contradicts Johnson's testimony that he simply asked the foremen to furnish a specified number of names, but which would be consist- ent with the specifications of the June 25 Hercofina letter. Edwards was equally clear that he had nominated Boyd, Stokes, and Charles McLamb; the list made up by Johnson, however, shows Edwards' third nominee as "J. Murphy," identified by Edwards at the hearing as "not an operator." It appears that, on this subject, Edwards had a memory lapse; General Counsel's Exhibit 12 shows that "C. McLamb," an "oper.," was terminated in the April 18 layoff.'5 5 I find questionable Edwards' explanation of the rea- sons for choosing Boyd and Stokes. Nonetheless, I am inclined to conclude that a violation has not been suffi- ciently demonstrated. The June 25 letter from Hercofina to Daniel, earlier discussed, suggested, inter alia, the layoff of "2 Iron- works [sic]." The testimony of Boyd seems to be that as of June 27, there were only four ironworkers on the entire job; clearly, at least, there were only four such tradesmen in Edwards' crew. As of that date, Boyd had worked at the site only 7 months, and Stokes not quite 6 months. There is no reason to believe that in selecting two ironworkers for layoff, Respondent would in any circumstances have chosen M. A. Moore, a 6-year veter- an who served as detail foreman when Edwards was absent. The choice between Boyd, Stokes, and L. G. Powell might be a closer one; the latter had been hired in March to replace a nonreturning striker. While Boyd did not think much of Powell's work, Edwards said he was a "better worker" than Boyd or Stokes, in that he "could connect structural steel, fabricate structural steel, also qualify as an operator up to 35-ton crane." Despite my misgivings about Edwards' testimony, 556 it does not I55 He also erred in stating that he laid off ironworkers Horace Cain, Eddie Spencer, and Robert Rogers in early June. G.C. Exh. 12 shows that ironworker apprentice Cain. ironworker apprentice "R. Robinson," and "P. Welder" Spencer were included in the April 18 layoff. 116 His statement to Boyd that "as long as we've got work )ou've got a job" might have been said before Powell arrived. While Edwards denied having told the two that he would rehire them as soon as possible, he probably did say so. Nonetheless, the significance to be attached to such a statement uttered by a foreman to employees at layoff time is open to question. appear to me that the evidence preponderates in favor of a conclusion that, if it were not for their union senti- ments and activities, Boyd and/or Stokes would have been retained. I shall therefore recommend dismissal of these allegations. In addition to alleging that Stokes' June 27 layoff was unlawful, the complaint also claims that Respondent dis- charged Stokes on March 17 and refused to reinstate him until March 19. The former date, it will be recalled, was the first day upon which strikers returned to work fol- lowing the strike. On March 17, Stokes' wife had just given birth and was still in the hospital. Stokes and Boyd, who drove to work together, both testified that the former called the latter on the morning of March 17 and said he would be late to work, since he was bringing his wife home from the hospital. Boyd said that he relayed this message to Foreman Edwards during a morning safety meeting, and Edwards said "all right." According to Stokes, when he arrived at work about noon, Edwards asked where he had been; upon being told, Edwards asked whether Stokes had a medical excuse.157 When Stokes said he did not, Edwards told him he would have to go home until he secured an excuse. Stokes asked for a reason, and Edwards said "there were some vice presidents or presidents of Daniel down at the time, and he said that it was their doings." Stokes testified that he returned home and did not report again for work until Wednesday, the delay being caused by the fact that he had to "get my wife to get up with her doctor and he had to write an excuse for me." Stokes testified that in the past, when he had been late, it had sufficed that he had sent word to Edwards through Boyd. Stokes testified with conviction that he took his wife from the hospital on Monday and, after appearing at work briefly on that day, did not return to work with the medical excuse until Wednesday. His wife testified, however, that although she was supposed to have left the hospital on Monday, it had been determined by the doctor, when Stokes came to pick her up that morning, that she could not leave until Tuesday. She also said that she herself called the Hercofina site on Monday morning and left a message that Stokes would not be at work be- cause he was coming to take her home. She further stated that Stokes had gone to work on Tuesday, not Wednesday, with a medical excuse she had obtained from the doctor, and that, when she learned that she could be discharged that day, she called him there and had him come to get her. Stokes, presumably in the ex- citement of new paternity, plainly recalled the sequence of events incorrectly. Based on his wife's testimony, I find that he appeared at work on Monday, was sent home to secure a medical excuse, presented it on Tues- day, and then left again on that day to take his wife home. Superintendent Johnson testified that it had been an- nounced on Friday, March 14, that employees who had not returned to work by Monday would be replaced. "' Stokes also said that he asked Edwards whether Boyd had deliv- ered the message, and Edwards said "he had told him " 606 DANIEL CONSTRUCTION COMPANY When Stokes did not appear on Monday, he was re- placed by L. G. Powell, a new hire, at 8:30 or 9 a.m.' 5 8 Foreman Edwards testified that he was not told by Boyd about the reason for Stokes' absence. Although he was aware that Stokes and Boyd drove to work together "from time to time," he stated that he did not ask Boyd at the Monday morning employee meeting the where- abouts of Stokes. He further said that when Stokes did not show up on Monday morning, he told the superin- tendent to secure a replacement for Stokes, as well as Henderson, and he subsequently hired two ironworkers. When Stokes returned, he was allowed to resume work; his replacement worked I day and then did not return. Although Edwards did not identify the ironworker as- sertedly hired to replace Stokes, G.C. Exh. 11, a stipulat- ed list of hires at Hercofina during 1980, shows that, in addition to L. G. Powell, an ironworker named David Carterette was hired on March 17. 1 shall assume, there- fore, the truth of Edwards' testimony that a replacement for Stokes was hired. The law provides that an employer may permanentely replace economic strikers prior to their request for reinstatement to their jobs. N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938). If Respondent had hired Carterette before Stokes had indicated his desire for reinstatement, its failure to accept Stokes back into the fold at noon on Monday would be privileged. But Edwards testified that he called Stokes prior to Monday and asked "[wJould he be back to work Monday," and Stokes told him that he "would be back." Stokes had, moreover, as I find, sent a message to Edwards on Monday morning that he would be re- turning to work as soon as he took his wife home from the hospital. ' 59 Governing case law leads me to conclude that these messages, while not an "artistic request" for reinstate- ment, would be considered sufficient to preserve an em- ployee's right to return to his job. Master Touch Dental Laboratories, Inc., 165 NLRB 585, 589 (1967); Flatiron Paving Company d/b/a, Flatiron Materials Company, 250 NLRB 554 (1980). Accordingly, the hiring of Carterette, with the knowledge of Stokes' desire to return, could not be used to defeat Stokes' right to reinstatement, unless Stokes' intention not to return to work immediately makes a difference. While there could be instances in which a would-be returning striker might impose unac- ceptable conditions on his stated intention to return, Re- spondent has not demonstrated that this brief delay was meaningful. ' o isti Johnson was evidently wrong about this. Powell apparently re- placed the nonreturning Otis Henderson. 15s It seems most likely to me that, contrary to his testimony, Edwards was informed on early Moliday of the reason for Stokes' absence and of his intention to come to work. Stokes and the other strikers had been told that they would be replaced if they did not return on Monday morning. I cannot believe that Stokes would not have taken care to ask Boyd to inform Edwards of his whereabouts. Similarly, with the overhanging re- placement threat, I cannot conceive that Boyd would not have relayed the message to Edwards, as he testified he did and as he had done with similar messages in the past. Moreover, Mrs. Stokes credibly testified that she had telephoned the job and left the same message, and it seems more probable than not that it was transmitted to Edwards. 'Io I recognize that the fact that Carterette was hired tends to indicate that Edwards had in fact received no message about Stokes; the argu- ment would be that it is unlikely that Edwards would go to the personal It therefore follows that Stokes was entitled to rein- statement when he returned at noon on Monday.'"' In- stead of putting Stokes to work, Edwards required him to secure a medical excuse. The testimony shows that Respondent does not ordinarily, in such circumstances, insist on such a precondition to returning to work. Stokes testified, without contradiction, that Edwards ex- plained to him that the unusual requirement was imposed by "some vice presidents or presidents of Daniel [who were] down at the time." It would appear, accordingly, that the imposition of this extraordinary requirement upon a striker who was entitled to reinstatement to em- ployment should be deemed violative of Section 8(a)(1) of the Act. it 2 In effect, Stokes was unlawfully suspend- ed or discharged from about midday on March 17 until he was returned to work at some time in the morning of March 18. The complaint also alleges that Respondent unlawfully refused to hire Boyd at the DuPont site on July 23. Boyd testified that Tim Watson, a DuPont employee, told him in July that DuPont was hiring ironworkers. Boyd went to the site on a Thursday, where he met Watson's brother George, who was also applying for iron work. A personnel man named Larrimore told Boyd to fill out an application and to return on Monday, when the hiring would be done. Boyd did so, listing on the ap- plication his prior employment. Boyd came to the main gate of DuPont at 7 a.m. on Monday; about 100 applicants for work were present. Larrimore called out 20 or 30 names for employment, in two stages, including the name of George Watson, who was not present. Boyd was not called. At one point, ac- cording to Boyd, before Larrimore called out the second group, Boyd asked him "You've got my application?" and Larrimore replied, "Yes, if you filled one out we've got it." effort of employing a replacement for Stokes, and also cause the replace- ment such potential trouble and disappointment, if he had indeed been notified of Stokes' intention to return. This argument has forced, and, if accepted, would not only result in discrediting Boyd on the present issue (as to whether he notified Edwards about Stokes). but would also cast doubt on Boyd's other testimony. After studied deliberation of this diffi- cult issue, I am inclined to think it likely that Boyd did tell Edwards about the reason for Stokes' absence and his intention to return, and that Edwards retained Carterette as a standby in the event that Stokes did not return as promised I should note again that I am working on the assumption. favorable to Respondent, that Carterette was the person to whom Edwards referred as Stokes' replacement. The testimony about the replacement for Stokes is rather peculiar. Edwards testified that the (unnamed) replacement he hired for Stokes worked only I day and then "was out sick." "Three days later," Edwards called the replacement "to find out what was his trouble and he said that he could not work, and he would not be back." Since Stokes had already returned to work by the time of that call, it is difficult to understand why Edwards would have bothered calling Stokes' alleged replacement. The matter is complicated by the fact that G.C Exh. 12 shows that Carterette was not terminated until April 2. It may be that Carterette was not hired to replace Stokes. 'I' An alternative theory might be that, assuming Carterette was hired as a replacement for Stokes, it was only on a temporary basis. That would seem clear from the fact that Edwards told Stokes that he could return to work if he secured a medical excuse Accordingly, since Stokes was not permanently replaced, he was entitled to reinstatement without condition 162 I see no basis for concluding that Sec 8(a)X3 was also violated. 607 DECISIONS OF NATIONAL LABOR RELATIONS BOARD George Watson's brother told Boyd subsequently that Watson was called a week later to go to work, and George himself thereafter confirmed this to Boyd. 63 Boyd testified that George Watson had been an iron- worker for "not over four years I would say," while he himself had been in the trade "[o]ff and on fourteen years." J. B. Larrimore, Jr., is the services manager for Re- spondent at DuPont, in charge of accepting applications for work. He testified that hiring is done by engaging in- dividuals who apply "at the gate" after requisition has been issued; he does not, except in extraordinary cases, examine applications already on file for the purpose of contacting prior applicants. He indicated at the hearing that thousands of applications were received from 1979 to September 1980. Larrimore testified that he keeps the applications on file "[m]ainly because I've been told to by the home office," and also because "occasionally if we need someone and there is nobody at the gate" he will examine the applications. 2 6 4 Larrimore did not, however, say very much about Boyd's testimony. He knew of Boyd only recently, as someone who had filed a charge. He acknowledged that Boyd's application was, indeed, in his files. He testified that when he had hired ironworkers in July, he had taken applications from those at the gate who had not filled them out before, and he "told them that if there was anyone that has already filled one out to give me your name and I will see if I can find your application. And then I would pull those." Larrimore did not remember Boyd speaking to him. He was not asked about Boyd's testimony that George Watson was hired by a telephone call originating from Daniel DuPont, but his testimony, as set out above, would accommodate the use of such a procedure from time to time. General Counsel's Exhibit 7, a record of hires at Daniel DuPont, shows that on Monday, July 21, a total of 17 employees were hired, including II in the iron- worker classification. The exhibit further shows that a "G. P. Watson" was hired as an ironworker on July 28, as were, on that day, other employees in that category. Here we have evidence that Boyd, an experienced ironworker, filed an application, presented himself at the gate at the appointed time, specifically identified himself to Larrimore as having filed an application,z6 5 and then stood listening as the name of George Watson, who was not even present, and whose application had earlier been filed simultaneously with Boyd's, was called out. Watson had been an ironworker for "not over four years I would say"; Boyd had been at the trade "[o]ff and on fourteen years," including, as his application pre- sumably disclosed, operating his own business for a few years and having worked for Respondent at Hercofina, Diamond Shamrock, and in Surry, Virginia. Given Larri- 1sI Respondent did not object to this hearsay testimony. When not ob- jected to, such testimony is entitled to consideration. is4 Counsel for Respondent represented at hearing the existence of an EEOC requirement relating to keeping records for at least 1 year. 161 As noted, Larrimore confirmed that he would have asked for the identity of those who had already filed applications, so that he could get their applications from the files; and he testified that, as of the hearing, Boyd's application was in the files. more's testimony that hiring is normally done at the gate, the failure to even afford Boyd an interview in these cir- cumstances is simply inexplicable.' 66 Since Boyd was good enough to have been hired at Hercofina, his addi- tional experience there should at least have qualified him to be interviewed at DuPont. I can only conclude that this deliberate snub of Boyd must have been related to the fact that, as his application presumably showed, he had worked at Hercofina, where the walkout had occurred. That other Daniel sites hired former Hercofina employees does not mean that Daniel DuPont chose to do so, and, in the absence of any expla- nation by Respondent for this refusal to even consider a qualified applicant, I conclude that the reason must be found in the fact of Boyd's association with the Herco- fina job. I find, accordingly, that Respondent violated Section 8(a)(3) by refusing to employ Boyd at Daniel DuPont on July 21. e. Ernest Gelegonya Ernest Gelegonya began work at the Hercofina site in January 1970. In March 1979, he resigned, but returned to work there in October 1979. He was laid off on the following June 27. Gelegonya was a maintenance mill- wright who worked in a crew of about six millwrights and five pipefitters and helpers. Gelegonya picketed from the beginning to the very end of the walkout, and he signed a card and passed around others at the Sunday meeting in the park. Gelegonya was transferred from the "A" line shop to the "D" line shop in April or May 1980. Soon thereafter, his new foreman, Clifford Webb, asked him and some other employees, "What in the world would you all want a union for?" A few days later, Webb stopped Ge- legonya and put the same question to him. On both occa- sions, Gelegonya replied that since he was not allowed to talk about the Union on the job, he could not under- stand why Webb was authorized to do so.' 67 Gelegonya also testified that around the early part of June his working partner, and then Gelegonya, was called into the foreman's office to speak to one Emmett George, who introduced himself as "Bill Johnson's assist- ant" and a "trouble-shooter for Daniel," who "came out of retirement to come down there and find out what our problems were and see what could be done about them." While George made no reference to the Union, Gele- gonya offered that he thought the Union could help obtain benefits, and George said that "agreements could be reached without a third party." The complaint alleges that George was an "agent" and a "supervisor" of Respondent. The answer denies the al- legations of the pertinent complaint paragraph with re- spect to George and another named individual "on the basis that the complaint does not contain specific infor- mation to determine whether they were supervisors s16 Larrimore testified that after names are called out the applicants are then interviewed by foremen. 167 These conversations are alleged to violate Sec. B(a)(l). Webb denied having ever conversed with any employee about unions, but I be- lieved Gelegonya, and I conclude that Respondent thereby engaged in coercive interrogation. 608 DANIEL CONSTRUCTION COMPANY within the meaning of the Act at the time material to the complaint." The answer does not deny the status of "agent," and the circumstances make it clear that George was authorized to act on behalf of Respondent. The complaint alleges that in the "latter part of March 1980," George "[slolicited . . grievances to discourage [employee] support for the Union." While Gelegonya put the date in early June, this discrepancy is not material- Gelegonya was the only witness to testify about George. George did not testify, and there is no reason to disbe- lieve Gelegonya. I agree that George's solicitation was unlawful; his offer to "see what could be done about" employee problems and his assurance that "agreements could be reached without a third party" were clearly de- signed to hold out the promise of benefits and thus to blunt the Union's forward thrust which, in June, may have been seen as menacing. 118 I find the violation as al- leged. On June 27, Gelegonya and two pipefitters from an- other crew were told by Foreman Webb about their layoff. There were, according to Gelegonya, millwrights in his crew who had been hired since the strike and who were not laid off on June 27. The evidence shows that in January 1978, when Gelegonya had been looking for other work, Superintendent Johnson had, at the request of Gelegonya, written a recommendation praising him as "highly skilled in the Millwright craft" and an "honest" and "very reliable" employee. The evidence also shows that Gelegonya had been a supervisor for Daniel until 1976, when he was demoted for a rule violation of some sort. Foreman Webb testified that he was directed by the superintendent on June 27 to submit three names for layoff. He chose Gelegonya "[b]ecause he had less se- niority, or less than my crew, because he had only been with me for about 3 months . . . and I couldn't lay off the other guys because they were as good as he was." He also described a somewhat uncooperative attitude on the part of Gelegonya, otherwise a "good worker," par- ticularly when he was ordered to work on the line rather than in the shop and when he was asked to work over- time, and said that some other crewmembers "really didn't like to work with him." However, Webb seemed to make clear that the essential reason was Gelegonya's lack of crew seniority together with the fact that his work was not superior to the more senior "crew mem- bers." 16 I do not find persuasive evidence of discrimination here. While Gelegonya's long association with Respond- ent suggests that there would have been, in the ordinary course of human affairs, some natural sympathy toward him, that would have been lessened by the fact that he had quit employment for 7 months in 1979. Webb's testi- mony about the role played by seniority is not necessar- ily inconsistent with that given by Johnson and some other employer witnesses; Webb seemed to be saying that seniority was the controlling factor when other con- 'l The Union filed its election petition on June 6. 109 Webb also picked welder Buddy Suggs because "his work just wasn't satisfactory with me" and Julius Brock, a pipefitter, because his work function had practically "disappeared " Neither man is alleged to have been subjected to unlawful discrimination. siderations were equal. That he paid little attention to overall, as opposed to crew, seniority is suggested by the fact that selected for termination together with Gele- gonya were pipefitter Brock, whose tenure began in No- vember 1971,170 but who had only been with Webb for "[m]aybe 4 months, 5 months," and pipewelder Suggs, who had been employed since September 1979, but under Webb for only 4 or 5 months. Gelegonya's testi- mony that there were millwrights on his crew who had been hired "since the walkout" was not directly chal- lenged; if there were such employees, however, they may have had slightly more seniority on the crew than Gelegonya; the record does not tell me otherwise." I also note, for what it may be worth, that, according to Johnson's April 18 layoff list, Gelegonya had been named as second choice by his then-foreman, William- son, but was not laid off (Williamson's purported first choice, Holloman, who was let go, is not alleged as a discriminatee). 172 In addition, while Webb was evasive and defensive about all subjects concerning the Union, employer meetings, and conversations with employees, he seemed more comfortable when he spoke of the rea- sons why employees were chosen for layoff. The foregoing analysis, together with the fact that Ge- legonya's union activities were no more prominent than those of other employees, leads me to conclude that the allegation as to him requires dismissal. f. William S. Wi'lletts William Willetts worked at the Hercofina site for almost 2 years,' 7 3 and, as well, for Respondent at other sites for another 8 years. He was a millwright and pipe- fitter working with a crew of seven other pipefitters who performed construction work. Willetts picketed during the walkout, attended the union rally at the park, and signed a union card there. About 2 days before the March walkout, according to Willetts, Superintendent Johnson asked him what he thought about the imminent walkout. Willetts said he would not cross a picket line and he thought "the boys had a legitimate gripe." A few days prior to the June 27 layoff, Johnson purportedly asked Willetts if the employ- ees really needed a spokesman and whether he was "going to have a part" in the upcoming union election. Willetts replied that he would see through to the end anything that he began and that the employees needed a spokesman. On the basis of the foregoing testimony, the complaint alleges that Johnson coercively "interrogated ... em- ployees concerning their union activities and sympa- thies." 7I0 See G.C Exh. 12. 71 The fact is that G.C. Exh. I I, which purports to show all hires at Hercofina between January and November 1980, does not indicate that any millwrights were hired between March 17 and June 27. While I have some doubts about the accuracy of this and other stipulated exhibits, as noted elsewhere, it seems probable that Gelegonya was simply mistak- en-I doubt that he would deliberately lie about a matter so easily dis- proven. '1" When asked if he had ever received compliments about his work, Gelegonya replied, "Never." I3 According to G.C. Exh. 12. since August 14, 1978. 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson was asked at the hearing if he had put any question to Willetts "as to whether he would vote for a union or as to whether he would vote for a walkout"; he said he had not. He testified that, as with all his employ- ees, he spoke to Willetts once or twice a week as a matter of course. Willetts was one of the less imposing employee wit- nesses, but I was of the impression that he told the truth about these encounters with Johnson. The questioning of Johnson at the hearing, moreover, did not result in even substantially approximate denials of Willetts' allegations, and I would be hard put to conclude that material por- tions (such as what Willetts "thought" about the possibil- ity of a walkout, and whether the employees really needed a spokesman) stand contradicted. Accordingly, I accept the testimony of Willetts and find the alleged vio- lations. 17 4 On cross-examination, Willetts was asked by Respond- ent about any discussions of "the Union" with Foreman Curtis Courtney, and he replied, "I talked to him about it and he told me I could get laid off if I participated in it .... [H]e was strictly against it, if you talked about the Union. He didn't want to talk about it." The complaint contains no allegation corresponding to this testimony, but Foreman Courtney was asked about it, and he re- called no such conversation. While the issue was thus sufficiently litigated to permit a finding that Respondent thereby violated the Act, I am dubious about the value of Willetts' testimony on this score. It is quite surprising that such a conversation was not reflected in Willetts' affidavit and, thereafter, the complaint. Willetts gave varying dates for the conversa- tion, some of which were improbable-twice he placed it prior to the walkout; it is unlikely that "the Union" would have been the subject of discussion at that time. I shall therefore make no finding of violation on this testi- mony. Willetts was laid off on June 27, along with two pipe- fitters in his crew. His foreman, Courtney, told Willetts that he "gave the man a list of names and he said, you know, he said my name, he didn't pick none of the names, that they were picked from up front, you know." Willetts testified that he was the only member of his con- struction pipefitter crew who performed millwright work, and he was required to perform such work two or three or more times a month. However, there are, he said, "a right good many" millwrights in the mainte- nance department at Hercofina. Willetts also testified that prior to the layoff, the construction employees "knew that a layoff was coming." Foreman Courtney said that he was told to pick three pipefitters for layoff. 175 He chose Willetts, who had '17 1 note that Willetts testified on December 2, 1980, and Johnson on January 6, 1981. Respondent had ample time to prepare precise questions to pose to Johnson. '75 As earlier indicated, Johnson's June 27 list describes Courtney and the other 15 supervisors shown thereon as "maintenance supervisors." Willetts seemed to regard himself as a member of a "construction" crew, and Courtney, who did not appear as a "maintenance supervisor" on the April list, seemed to testify that he is really more involved in construc- tion than in maintenance. The other evidence on this subject of whether a clear distinction exists between the two functions is equally confusing been in Courtney's crew for "maybe I year, maybe a little longer," because "he had less experience for one thing, and he couldn't do the work that we were going to do."'76 As to the first reason, all of the other pipefit- ters in the crew were more experienced and had more seniority, and Willetts was not "as qualified." As to the second, Willetts had told Courtney that he had "bad legs and . . . couldn't climb," and, despite the fact that "high line" work constituted 80 percent of the job, Courtney had "had to find work on the ground for him." Willetts had not, however, actually refused any climbing assign- ment, and he did perform some low-level climbing. Courtney also averred that Willetts resisted overtime work. Courtney denied having said that the "front office" had selected Willetts; he said that, in response to Wil- letts' question about the reason for the layoff, he had told Willetts that "we just had to lay off three people." On cross-examination, Willetts conceded that "some- times I did" complain about working in the air, due to leg problems, but he maintained that he "done the job." He denied on cross-examination that he had less pipefit- ter experience than the other employees, but agreed that he had less seniority on the job than "some" of the em- ployees he worked with. I find the evidence inadequate to sustain the complaint as to Willetts. Willetts engaged in no extraordinary union activity, although he did, as found above, make his senti- ments clear to Johnson shortly before the layoff. None- theless, the reasons Courtney advanced for choosing Willetts were at least partially corroborated by the latter. Willetts' length of service at Hercofina was not remark- able; employee Reason, laid off on June 27 with Willetts, had worked there over 5 years, and employee Hilburn, also then laid off, was hired 3 days before Willetts in August 1978. The principal argument favoring the reten- tion of Willetts seems to be his millwright skill, but it ap- pears that he functioned as a millwright only occasional- ly, and there were many millwrights on the project. There is no reason to believe that, absent Willetts' union activities, he would have been retained on June 27. On the foregoing reasoning, I shall recommend dis- missal of the Willetts 8(a)(3) allegation. g. Donald H. Rouse Donald Rouse, a pipewelder, worked at Hercofina for a total of 13 years until his termination on June 27. Rouse had apparently begun work at Hercofina in the 1960's. He quit twice around 1973 and 1974 in order to engage in a seasonal fishing venture, and came back twice. He quit again around 1977 in anticipation of a layoff. He had been laid off previously, perhaps 4 or 5 years prior to the hearing. According to his calculations, he was the third most senior welder, out of 8 or 10 of them, at the time of his layoff on June 27, counting from his last employment. 1 77 1"6 The others chosen were James Hilburn and Gorman Reason, nei- ther of whom is named in the complaint as a discriminatee. Courtney thought that Hilburn had been employed for "probably 5 years" and Reason for perhaps "3 or 4" years. G.C. Exh. 12 shows that Hilburn had been hired, like Willetts, in August 1978, and Reason in May 1975. i7T Which G.C. Exh. 12 shows as April 10, 1978. 610 DANIEL CONSTRUCTION COMPANY Rouse picketed during the strike. While on strike, he responded to a call from his foreman by saying that he would not cross a picket line to come to work. He also attended the union meeting in the park on Sunday; he did not, however, sign a union card. When Foreman James Taylor told Rouse, welder West, and pipefitter Kinlaw on June 27 that they had been chosen for layoff, Rouse asked why he had been se- lected over employees "with less seniority and less expe- rience," particularly a less senior and less skilled welder named Shiver who had at some time "cussed his fitter out," but Taylor would not say. Rouse testified that, during a shutdown a few months before the layoff, the plant engineer had specifically expressed his appreciation of "the fine job you are doing." and other superiors had also complimented his work. On the day of his layoff, Rouse was offered two jobs, one in Richmond; Rouse rejected the offers. At the time of the hearing, he was employed by Respondent in Hopewell, Virginia, a job he got "on my own." Respondent did not present Foreman Taylor as a wit- ness. This was not an oversight. On brief, Respondent states that it chose not to do so because "it is believed that Rouse's claim is spurious." The logic of that asser- tion might lead one to conclude that in all cases in which it did present testimony, Respondent believed that the claims are genuine. A meaningful inference must be drawn against Re- spondent for its failure to have Foreman Taylor testify. Since Respondent made no motion at the close of the General Counsel's case to dismiss Rouse's (or any other) claim for want of a prima facie case, it must have as- sumed that such a case had been made out. The failure to call Taylor despite the fact that it called all other rele- vant foremen (as well as some witnesses whose contribu- tions were decidedly marginal), despite the fact that it became obvious at the hearing that the authenticity of Johnson's lists was being scrutinized, and despite the fact that Respondent had apparently concluded that a prima facie case existed as to Rouse, inevitably gives rise to the inference that Taylor had something to say which Re- spondent did not want the Board to hear. It remains uncontradicted that Rouse had been steadily employed at Hercofina for the prior 26 months, and for some 10 more years in addition; that five or eight other welders with less seniority than Rouse were spared when he was laid off; that his foreman had refused to tell him why he had been selected for layoff; that his work had been the subject of expressed appreciation by a number of officials only a few months before the layoff;'7 8 that his work was, particularly, a "whole lot better" than the less experienced and ill-tempered Shiver with whom he had worked; and that he "work[s] hard," he does "what- ever they tell me to do," and his superiors do not have to "get on me for anything." The evidence also shows that Rouse picketed during the strike, told his foreman that he would not cross the picket line in order to return to work, and attended the union rally in the park (a circumstance which, I infer 18s While Rouse said that Superintendent Johnson's compliments were paid to everyone, he did not make the same qualification about the praise of Foremen Taylor and Pierce and plant engineer Noffsinger. from the other evidence in this case, Respondent may well have known about). Without any contradiction whatsoever, it seems to me that this aggregation of facts gives rise to a prima facie case of unlawful discrimina- tion, 79 and that, in the particular context of this hear- ing, in which it otherwise testimonially responded to cases not materially stronger than Rouse's, Respondent's failure to present the testimony of Foreman Taylor or any other witness to even articulate a reason for choos- ing Rouse, fairly gives rise to the inference that Taylor's testimony would have been considerally more harmful than helpful to Respondent. I therefore conclude that the evidence preponderates in favor of finding that the selec- tion of Rouse was violative of Section 8(a)(3) and (1). B. The Discharge of Phillip L. Cobb The case of Phillip Cobb presents a somewhat differ- ent issue for this proceeding-a claim that Cobb was dis- charged on a pretext, rather than discriminatorily laid off in a group context. He also figures in some 8(a)(1) allega- tions. Cobb had worked as a maintenance electrician on the "C" and "D" lines at Hercofina for almost 6 months when he was discharged on April 7. He had been at the trade for some 12 years. Cobb participated in the picket- ing and signed a card at the meeting in Hugh McRae Park. A day or two after the strike ended, Foreman Coston told Cobb that he "didn't want anybody running the Company down or talking Union at any time on the job"'80 and "that if there was a union voted in that we would probably none of us have jobs." He also asked Cobb's opinion of the Union; Cobb said he did not want to discuss the matter. The complaint asserts that Re- spondent thereby "promulgated an unlawful no-talking rule to prohibit its employees from engaging in union ac- tivity" and also "threatened its employees with loss of jobs." As previously noted Coston freely admitted speaking to "all the employees" about the Union, although he placed the conversations in "[m]aybe April or May." He said that he told each one "it could affect their job, and it could affect my job," and, in explaining this to the em- ployees, he told them the Union "[c]ould affect their re- lationship with me, as far as them coming to me and talking about their problems. It could affect their pay, their raises." He also told the employees that "there was a no-solicitation rule posted on the bulletin board for the Union .... " He denied having told any employee that "it would not do them any good" to join the Union, or that "they would lose their jobs if they supported the Union," and answered "I don't think so" to a question about whether he had "issued a rule to the members of your crew that prohibited them from talking on the job." Both Cobb and Coston projected personal images of sincerity, and their demeanor provided no basis for choosing between them. The candor of Coston's volun- tary concessions about what he did tell employees is a I9 Cf. McDonnell Douglas Corp. v. Green, supra. 180 Cobb was cerain that Coston said "on the job," 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point in his favor. Still, on reconsidering Coston's testi- mony, it appears to me that he was inclined to be some- what defensive. Thus, although he originally testified that he "spelled out" to employees that the Union "could affect their pay, their raises," on later examination he would state only that he "may have said that." Given what Coston admittedly told employees (which itself is violative of Section 8(a)(l)), I think it quite possible that he went as far as Cobb says he did. I therefore conclude that Coston promulgated an unlawful union gag rule,' 81 threatened Cobb with probable plant closure, and, as well, coercively interrogated Cobb. Around the end of March, on a Monday, Paul Durbin, who occasionally acted as a substitute foreman for Coston, asked Cobb (in the presence of Coston, who had just returned from a vacation) if he had "made [his] meeting Sunday"; there had been a union meeting the preceding day. Cobb said no. Durbin then asked if Cobb had sent a representative; Cobb said that he was not al- lowed to discuss such subjects on the job. The complaint alleges that Respondent, through Durbin, "[i]nterrogated its employees concerning their union activities and sym- pathies." Durbin's supervisory status is contested by Respond- ent. Durbin testified that he is a maintenance mechanic who occasionally performs as a detail foreman, with re- sponsibility to "make or keep up the work plan . . . issue out various work orders and attempt to see that the nec- essary jobs got done during the day." Durbin did not deny that the alleged incident occurred. There is no sub- stantial evidence that detail foremen are vested with the full panoply-or, indeed, any-of a regular foreman's real' authority while serving in such a capacity. As earlier indicated, a number of the alleged discriminatees served at various times as detail foremen, and I doubt that they acquired any true supervisory stature in the eyes of their fellows. Moreover, the evidence shows that Durbin was not acting as a substitute foreman when he inquired of Cobb about attendance at the union meeting. The General Counsel argues that "Coston's presence makes out the violation," citing Intertherm, Inc., 235 NLRB 693 (1978). In that case, an employee told an- other that the latter could be discharged for wearing a union emblem, and a supervisor, in attendance, "not only failed to repudiate Caleco's comment but responded to it by telling the employee to remove his insignia." It was found that the supervisor thereby "ratified Caleco's threat and indicated that Caleco's views were also those of management." The present situation is quite different. Coston did nothing which appeared to be supportive of Durbin's questions. That Coston, as the General Counsel argues, "failed to rebuke or disavow Durbin's action" is immate- rial. A supervisory rebuke to one employee for question- ing another about a union meeting might itself violate Section 8(a)(1). A disavowal of an interrogation would have been a difficult thing to formulate-something along the lines of "He's asking the question, you under- stand, not me," a truth hardly necessary for Coston to 181 I note, as to this allegation, that Coston did not squarely deny it. He was only asked quite broadly if he had issued a rule to his crew mem- bers "that prohibited them from talking on the job." point out to Cobb. Daringer Mfg. Company, 201 NLRB 622, 625-626 (1973), indicates that neither protest nor disavowal was necessary in these circumstances. I would dismiss this allegation. On an uncertain date before he was terminated on April 7, Cobb received permission from Coston to attend his son's music recital. When he left about 2 p.m., Cobb signed his timesheet and, as he went hurriedly through the gate, failed to sign a register there; the guard yelled to ask where he was going "and something about signing out," and Cobb replied that he was leaving and had signed out in the shop. Cobb had had some sort of run-in with the guard before, and he "avoided the guard" as much as possible. When Cobb returned to work the next day, Coston asked why he had not signed out at the gate, and Cobb replied that he did not know it was re- quired and that he thought it sufficient to sign his time- sheet. He also said that he thought the guard was "has- sling" him. Coston told him to sign at both places the next time. A week later, said Cobb, Coston asked Cobb to go outside with him. Once there, Coston asked if Cobb re- membered failing to sign at the gate. He then told Cobb that he "was not firing" Cobb, but that he "just got to let you go." Cobb asked if his work was the problem, and Coston said it was not. Coston testified that he "fired" Cobb on April 7 for several reasons. About a month before the discharge, Cobb had failed to take a safety precaution and thereby endangered another employee. Cobb "daydreamed a lot, he walked around in a daze, his mind was not on the job." His workmanship was sometimes "poor." Most im- mediately on the "Thursday" before his Monday dis- charge, when Cobb had gone to his son's recital, he had refused to sign out at the gate, a required procedure, and had had harsh words with the guard. When the guard reported this incident to Coston, on either Thursday or Friday, he consulted Bill Johnson about Cobb as soon as he could get together with him, on Monday morning, and they agreed that Cobb should be terminated. The termination slip given to Cobb recites only "workmanship" as the cause of dismissal.' 82 Moreover, Coston was almost certain that the discharge followed closely upon the heels of the encounter with the guard, but Cobb testified that a week or more went by before he was abruptly terminated. Cobb was the first person ever fired by Coston in the 5-year supervisory career of the latter. There is much confusion in the record about the date of the guard incident and the amount of time which elapsed between that encounter and Cobb's discharge. My own process of deduction leads me to think that the incident did not occur on Monday, March 31, as Cobb ultimately testified, but more likely on Tuesday or Wednesday of that week.'83 While the delay in firing *82 For reasons unknown, both parties appeared to be reluctant to put the slip into evidence. I83 It appears, from the combined testimony of Cobb and Durbin, that Durbin's questioning of Cobb, discussed above, must have taken place on March 31, and since that happened, according to Cobb, at or about 4 p.m., he obviously was not at the recital on that date. At one point in his testimony, Cobb thought that the guard incident occurred on a Wednes- day. 612 DANIEL CONSTRUCTION COMPANY Cobb is curious, it is not necessarily damning, in view of the fact that no intervening union activity occurred and in the light of Coston's testimony that he had some diffi- culty getting together with Johnson. I entertain suspicions about this case, but I do not be- lieve that they can be elevated into proof of an unfair labor practice. The work deficiencies alluded to by Coston were corroborated in some meaningful ways by Cobb, at least to the point at which it may be said that Coston had a reason to suspect the existence of deficien- cies. Cobb conceded that there had been some problem, within a month of his termination, about failing to "lock out" an electrical device on which Cobb and another employee were working. While Cobb denied any error, it appears that the other electrician had blamed Cobb, and the latter conceded that Coston had "mentioned" the incident to him. At the hearing, Cobb volunteered some- thing that Coston did not refer to-that when Coston re- turned from his vacation in late March, he told Cobb that another foreman had "claimed that I was goofing off," a claim also assertedly denied by Cobb to Coston. Finally, the guard incident is arguably more than a "mere failure to sign out at the gate," as the General Counsel puts it on brief. Cobb obviously refused to stop and speak to the guard or to obey his order to sign out, sufficiently provoking the guard so that he called Coston to complain. 184 Although Cobb had apparently received no written warnings about any transgressions, the record shows that Respondent let the employees know that a safety viola- tion, such as Coston might have reasonably thought Cobb had committed a few weeks earlier, was an imme- diately dischargeable offense. While Coston testified that he was willing to give Cobb another chance after that in- cident, one can see that the asserted complaint thereafter by a foreman about Cobb "goofing off," and then the guard incident, could lead Coston to promote the dis- charge of Cobb, an employee with less than 6 months' tenure. One could also see that Cobb's appearance at the park, the incident with Durbin on March 31 which suggested Cobb's partisanship, and Coston's plain opposition to the Union might have combined to trigger the discharge. I have also taken into consideration Cobb's testimony that Coston told him on April 7 that he was being "let go" but "not fired" and that his work performance was not the cause, and his testimony that in a subsequent tele- phone call Coston had said he "did not think" that Cobb's union activity was responsible for the discharge. It seems likely to me that Cobb's memory of these excit- ing situations may be overheated here. I doubt that Coston would have made such equivocal remarks if he had been involved (as he would have had to be) in an unlawful conspiracy to weed out a union adherent- Coston seemed too intelligent for that.'8 5 184 Cobb testified that he did not know of the need to sign out at the gate, and that he so told Coston. Since Cobb also testified that he had left early on one other occasion, one would assume that he should have been through the early-leaving sign-out procedure before. 18s Although the termination slip cites only "workmanship," Cobb himself concedes that the first thing Coston referred to on April 7 was the guard incident. Accordingly, and not without doubt, I conclude that the allegation as to Cobb should be dismissed. In so con- cluding, I have taken into account that Cobb's case-the discharge of an established employee for asserted mis- conduct-has no parallel in the complaint and appears to be at odds with the course of conduct mapped out by Respondent at DuPont and Hercofina. C. Other Allegations I. The allegation of surveillance by Banks The complaint alleges that Bob Banks, vice president for industrial relations of Respondent's parent company, and an unidentified individual engaged in unlawful sur- veillance of union activities. Sammy Smith testified that on the Friday of the March picketing at Hercofina he saw Banks and two others drive up in a car. Banks at- tempted to convince some employees to return to work. One of Banks' companions, sitting in the car, took pic- tures of the picketers and their signs. Donald Rouse testi- fied that during the Thursday picketing he saw a man re- sembling Banks walk out of the gatehouse "and it looked like he was taking pictures of us out on the road." Banks testified that "at one time" Respondent was contemplating legal action to keep the gates cleared, and he "remember[ed] seeing some [photographs] being taken from the front gate area out towards the street . . . but I was not involved in taking any photographs." It is clear that Respondent was responsible for the pic- ture-taking. It has not been established that those circum- stances which might justify such conduct were present here. See, e.g., Glomac Plastics. Inc., 234 NLRB 1309, 1320 (1978), and cases cited. Nor does the fact that some picketing employees seemed to invite coverage by media cameramen to lessen the intimidation that other, more diffident, employees might have felt at being photo- graphed by agents of Respondent at a time when no ob- jective reason for such action was apparent. I find that Respondent engaged in unlawful surveillance, as charged. 2. The 8(a)(l) Holloman-Webb allegation Charles Holloman, a millwright mechanic at Daniel Hercofina, testified that sometime between March 14 and April 18, the day on which he was laid off, Foreman Clifford Webb (not his own supervisor) came to the table at which Holloman and another employee were working and said that "Daniel had 107 jobs and if they lost one, they would still have 106, and that if the Union got in there that Daniel would be out at Hercofina." Webb denied having uttered such a remark. Holloman made a very good impression; in matters such as this, Webb did not. I conclude that Webb uttered a threat of loss of jobs, as alleged in the complaint. 3. The Banks meetings During the strike, Bob Banks came to Hercofina with some other Daniel officials and made an effort to end the strike. Beginning on March 17, when the strikers re- turned to work, Banks and Ted Johnson, vice president of Respondent, held a series of meetings with small (20 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or so) groups of employees, extending over "6 or 8, maybe 10, days." The complaint asserts that on March 17 and 18, Banks and/or Johnson, at these meetings, ut- tered threats of closure and loss of jobs, informed em- ployees of the futility of selecting the Union to represent them, and unlawfully solicited grievances from them. Both sides presented an abundance-indeed, a surfeit- of testimony about the content of these meetings. As often occurs in matters of this sort, the testimony, even by witnesses on the same side, was confused and contra- dictory. The problem is exacerbated by the likely facts that many of the employees did not recall which meeting they attended, that no two meetings were alike, that the employees were excited by the events of the recent past, and that testimonial condensation resulted in distortion. In addition, some four more series of meetings occurred after the initial round and prior to the election, which undoubtedly contributed to the confusion. It follows that no clearly limned picture of the meetings of March 17 and 18 (the only dates referred to in the complaint) emerges. One central issue here relates to testimony by some employees that Banks spoke of Respondent canceling its contract with Hercofina if a union was selected. As will be seen, something was said about the severance of the relationship, but how it was said, and in what context, is controverted. Banks testified that during the week of the strike, he had told the employee spokesmen that when the employ- ees came back to work, "we would be glad to meet with them in small groups and see what they had to say."' 8 6 In line with this "open forum" approach, Banks testified that the format employed at the meetings was merely to begin them with some innocuous remarks, and then throw the meetings open to employee questions. Other witnesses seemed to testify, however, that Banks and Johnson made substantial remarks before questions were taken. It is not easy to ascertain the procedure followed at each meeting. I conclude from all the testimony, howev- er, that Banks and Johnson made a more affirmative presentation than Banks testified to.'8 7 For example, Re- spondent's witness, M. A. Moore, said that Banks stated, speaking of unionization, that "it was to the best interest of Daniel that it would be to leave it like it is right now." While this statement could have been in response to a question, it is difficult to imagine an employee asking such a question as "Do you think a union would be beneficial or not?" Although Banks denied having used notes, General Counsel's witness Roger Johnson testified that Banks referred to notes on a clipboard, and I doubt that Johnson's recall of that detail was errone- ous. Employee Harold Caposto testified, without contra- diction, that, on the morning of March 17, Superintend- ent Johnson appeared in his shop to ask the employees to :se Larry McDowell, the only spokesman to testify, said on cross-ex- amination that Banks had offered to talk to "everybody," although McDowell did not receive the impression that a round of meetings was contemplated. Employee Sammy Smith testified that on March 14, Banks encouraged some of the employees to return to work, saying that "we could talk if we would come back in." I7' Ted Johnson did not appear at the hearing. hold off signing union cards in order to give manage- ment a chance to tell its "side of the story"; this makes it seem likely that management had something to say. The possibility of variance does, however, appear; employee Rouse testified that at his March 17 meeting, Banks "opened the meeting with questions from the employ- ees." It would seem from Rouse's other testimony, how- ever, that this statement does not preclude the likelihood that certain prefatory remarks were made.18 8 Whether Banks, as a matter of course, made allusions at the meetings to cancellation of the Daniel-Hercofina contract is in question. Banks testified that he made the remarks set out hereafter only in response to employee questions. He was quite inconsistent about the number of meetings in which the question about cancellation of the contract assertedly arose: first he said it was asked by "some of the people in the groups"; then it was brought up in "'all" 16 or so meetings; then at "[p]robably 3 or 4 meetings;" then "it might have come up more than [at 3 or 4 meetings]." Banks was also less than clear about whether he or Johnson ever initiated reference to possi- ble cancellation of the contract. When first asked this question by Respondent counsel, he replied, "I seriously doubt that we would because Hercules, who owns Her- cofina, is a very important client to us." To the followup question, "So is it your testimony that you did not bring the subject up," Banks answered "No" (presumably meaning "Yes"). I cannot say, however, that Banks brought up the sub- ject at every meeting; General Counsel's witness Gele- gonya testified that at the early meeting he attended on March 17, he could recall "no references to the Union." Accordingly, it may be that Banks primarily mentioned the subject' in response to employee questions; the testi- mony does make it appear that, as Banks said, rumors were rife as to the possibility of cancellation of the con- tract. The record shows that, all told, each of the employees was called into four or five meetings between the strike and the election, and undoubtedly many were subject to infirmities of recall at the hearing, both as to what was said and when, and whether it was gratuitously uttered or stated in reply to a question. The testimony of em- ployees Roger Johnson and Harold Caposto is illustra- tive. Although Johnson said that he and Caposto sat next to each other at a 9 a.m. meeting on March 18, their recol- lection as to the remarks and speaker differed. Johnson remembered that Ted Johnson did most of the talking, saying "if a union was voted in that Daniel would pull out of the plant," while Banks was "involved mostly with the evils of filling out" the cards. The strong lan- guage about Daniel "pull[ing] out" was emphasized by Johnson ("Would pull out, it was a very positive state- ment, there was no question what his intention was") 188 Banks conceded that he began carrying a blank union card to the meetings. He said he did so only after an employee had asked at an early meeting about the effect of signing such a card, and he only exhibited it thereafter, and explained that it was a "legal document," whenever an employee asked a question relating to cards. Although it is not clear that Banks routinely spoke of the card thereafter, and not simply in response to questions, I am inclined to think that he at least did so frequently. 614 DANIEL CONSTRUCTION COMPANY even after he had conceded the accuracy of his affidavit that Ted Johnson had said that Daniel "only had to give Hercofina 30 days' notice and Hercofina could likewise back out of the contract with only 30 days' notice" and that "I recall Hercofina only being mentioned with re- spect to being able to pull out of the contract." (Empha- sis supplied.) Caposto, on the other hand, abjured the word "would," saying that he remembered Banks (not Ted Johnson) stating that "Hercofina could drop [the con- tract] if we were to go unionized, that they could live without Hercofina, they didn't want to but if they had to they could leave." Banks "didn't say would, he said could." On this state of the record, I think it best to look to Banks' own description of his reply to questions about whether "if the Union came in would . . . Hercofina cancel our contract": I said that the contract does give the client, all of our maintenance clients throughout the United States, the right to cancel the contract within 30 days notice, and they had that right for any reason, that we had to maintain a competitive posture on this job as we do on other jobs, and if we were no longer competitive, why they could cancel the con- tract. He further testified that there was no "discussion about the reason why union work would not be competi- tive in this area," and that after he made such statements, the employees either "understood or let it drop at that." The General Counsel argues, I think correctly, that Banks' version is itself violative under N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). That case held that an employer's prediction as to the precise effect he believes unionization will have on his company "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control .... " While the rule is normally invoked in cases in which the employer is ac- cused of implicitly threatening to "take action solely on his own initiative," id. at 618, it has been held applicable to situations in which an employer has made predictions about actions which might be taken by customers or sup- pliers in the event of unionization of the employer's busi- ness. Patsy Bee, Inc., 249 NLRB 976, 977 (1980); Hertzka and Knowles, 206 NLRB 191, 194 (1973); Blaser Tool & Mold Company, Inc., 196 NLRB 374 (1972) (then-Chair- man Miller dissenting on this point). Such a finding is appropriate here. When an employer undertakes to discuss with his employees the highly meaningful subject of loss of jobs, he treads on delicate ground. If an employee asks the question whether a client, who provides the employer's entire income, would cancel a contract "if the Union came in," and is told that the client has a discretionary right to cancel "for any reason" and would likely exercise that right if the company was "no longer competitive," without ex- planation of the latter word, the equation between simply being represented by a union and no longer being "com- petitive" is inescapable. Banks did not bother to outline the long sequence of highly theoretical events which might be understood by a sophisticated listener as being subsumed in the word "competitive": that the Union, once elected, would demand, and actually win from Daniel, benefits so sub- stantial that Hercofina would choose, rather than pay the increased cost, to cancel the longstanding relationship between the two firms.' 89 The question-will Hercofina cancel "if the Union came in"-could have been an- swered simply, "I have no reason to believe that Herco- fina will do so." Instead, Banks, believing that rumors about cancellation were rampant, chose to give an answer minatory in tone, ominously pointing to Herco- fina's right to cancel "for any reason," and saying that it probably would do so if Daniel were not to remain "competitive," which term, left undiscussed, likely meant to the employees "if Daniel were to become union- ized."' 9 0 In Gissel, the Court adopted the Board's belief that "employees, who are particularly sensitive to rumors of plant closing, take such hints as coercive threats rather than honest forecasts." Id. at 619-620. Here Banks en- gaged in the "brinkmanship" cautioned against by the Court, and he failed to "avoid conscious overstatements he [had] reason to believe [would] mislead his employ- ees." Ibid. In so doing, he uttered a threat "based on mis- representation and coercion," and thereby violated Sec- tion 8(a)(1). Id. at 618. Blaser Tool & Mold Company, Inc., supra, appears to control the issue here. 9I The complaint further alleges that on March 17, Banks "[s]olicited ... employees' grievances to discourage their support for the Union." The evidence relevant to this claim cited by the General Counsel on brief, and as to which there is no contradiction in the record, is that Banks asked employees at the meetings what grievances they had, the grievances were written down by a man- agement representative, and Banks and Emerson John- son, another management representative, thereafter fur- ther investigated some of the personal grievances and set them aright. In the situation faced by Respondent, I believe that it was entitled to inquire about, and attempt to remedy, the "s9 Cf. "[P]etitioner had no support for its basic assumption that the union, which had not yet even presented any demands, would have to strike to be heard .... " 395 U.S. at 619. Wilmington Heating Service, Inc., 173 NLRB 68 (1968), cited by Respondent, is a good example of how an employer can present a rationalized prediction of the possibility of losing a customer. 190 In Marathon LeTourneau Company. Gulf Marine Division of Mara- thon Manufacturing Company, 208 NLRB 213, 222, where the employer attempted to explain the process of becoming "noncompetitive," the Board, then-Chairman Miller dissenting, nonetheless found a violation "1I The complaint contains a separate allegation that, on March 17, Banks informed employees "that it would be futile for them to select the Union as their collective-bargaining representative." I see no difference between this allegation and the evidence underlying the one just dis- cussed. I further find, however, that at the meeting attended by Sammy Wood on March 17, Banks stated, as well, that "we've got 207 jobs, he said if we lose this job we've still got 206 jobs" Woods, as indicated elsewhere, was a sterling witness, and I accept his precise recall of this detail. Banks testified in passing that, as of the hearing, Respondent was operating "well over 200 projects." 615 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances of the employees.19 2 The employees had just ended a 3-day, almost unanimous, walkout, successfully closing down Respondent's operation. It seems wholly natural and reasonable that Respondent would inquire into the causes of that disruption, and to remedy those causes if possible, in order to avoid a similar impairment of operations in the future. The practical reason for proscribing promises and grants of benefits to employees when a union campaign surfaces is to prevent the interjection of an artificial im- balancing factor into the picture and to allow the em- ployees to compare the union's promises against their proven experience with the employer (as well as to pro- hibit the display of the "fist inside the velvet glove" re- ferred to in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964)). In the present circumstances, how- ever, Respondent had a very real and pressing reason for asking about grievances-to guard against another strike-and the employees surely understood that clear imperative.' 9 3 Moreover, Banks apparently made it plain that he was throwing no large bones; employee Caposto testified that at his meeting, Banks said, "We are here to listen to your grievances but not to give you anything, not to give you any benefits we don't plan to give you, we can't afford to give you benefits." Thus, despite the facts that the Union suddenly emerged as a factor on March 16 and that Banks wove the Union into his presentation thereafter, I have no reason to believe that the same effort to mollify the strik- ers and resolve their problems would not have been made in the absence of the Union. In this respect, the sit- uation is much like that in American Spring Bed Manufac- turing Co., d/b/a American Chain Link Fence Co., 255 NLRB 692, where the Board found no violation in like circumstances. Accordingly, I recommend dismissal of this allegation. 1 94 The complaint alleges that on March 18, Banks threat- ened employees "with loss of jobs if the employees se- lected the Union as their collective-bargaining repre- sentative." The General Counsel's brief cites here Jerry Carter's testimony that Banks said at his employee meet- ing that the Union "wouldn't stick up for the workers because if they did get the Union in there that in the near future they'd have every one of us out on the street and have different people working in there." Banks testi- fied that this prediction was made at a meeting by an an- tiunion employee, who argued that the Union would extend preference to its own unemployed members. I have no reason to disbelieve Banks on this point, and I therefore recommend dismissal of the allegation. 192 The General Counsel predicates no argument on Banks' references to an "open door" policy. It would appear from the record that many employees were already aware of their right to speak to superiors about their problems. 193 As Banks stated at the hearing, "'w]hat we were concerned with was why were all of our people standing out there in the middle of the street." 194 I note also the uncontradicted testimony of Banks and Johnson that Respondent routinely visits its sites to hear and remedy employee griev- ances. 4. The allegation against Emerson Johnson Emerson Johnson is a manager of employee relations for the parent corporation. Employee Carl Tedder testi- fied that at a meeting of 15-20 employees in "late March or early April," Johnson said, inter alia, that if the Union came in, "they'd be out the gate in 30 days because they had 107 more jobs, I believe it was 107, and he said that one job wouldn't hurt them." Johnson testified that he did not attend any of the em- ployee meetings which began on March 17. He also denied ever threatening employees as outlined by Tedder. I think it probable that Emerson Johnson did not ad- dress employees in "late March or early April"; no other employee said that he did. Tedder may have been think- ing of Ted Johnson, since he apparently spoke to em- ployees after the first series of meetings. However, since Ted Johnson did not testify, I cannot conclude that there has been considered and complete litigation of any claim involving him. I would, accordingly, dismiss this allega- tion. 9 5 CONCLUSIONS OF LAW 1. Daniel Construction Company, a Division of Daniel International Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. North Carolina State Building & Construction Trades Council, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging James A. Piner, James Perdue, Ralph M. Wilson, Jacqueline M. Wilson, and Heber A. Norris, on March 20, 1980; by discharging Larry C. McDowell and Sammy R. Wood on April 18, 1980; by discharging Jerry M. Carter and Donald H. Rouse on June 27, 1980; by suspending James W. Stokes from midday on March 17 to the morning of March 18, 1980; by refusing to hire Charles K. Boyd on July 21, 1980; and by issuing written reprimands to Larry C. McDowell and Jerry M. Carter on March 17, 1980, Re- spondent violated Section 8(a)(3) and (1) of the Act. 4. By in March, April, May, and June 1980 expressly and implicitly threatening employees with reprisal, clo- sure of its operations, and loss of jobs; coercively interro- gating employees; engaging in surveillance of employee protected concerted activity; coercively soliciting rescind union authorization cards; promising benefits to employ- ees; and imposing a rule which restricted talking about the Union, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except as set out above, Respondent has not violat- ed the Act in any other respect alleged in the consoli- dated complaints. L"I It may be that Foreman Clifford Webb actually made the remark, and that Tedder forgot the source. Employee Charles Holloman, a crew- mate of Tedder's, testified their foreman, Webb, made a very similar remark to him. 616 DANIEL CONSTRUCTION COMPANY THE REMEDY Having found that Respondent unlawfully discharged James A. Piner, 196 James Perdue, Ralph M. Wilson, Jacqueline M. Wilson, Heber A. Norris, Larry C. McDowell, Sammy R. Wood, Jerry M. Carter, and Donald H. Rouse, and unlawfully failed and refused to hire Charles K. Boyd, I shall recommend that it be or- dered to offer them full and immediate reinstatement to their former positions (or, in Boyd's case, employment in the position for which he applied), without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suf- fered from the dates of their discharge (or, in Boyd's case, from July 21. 1980) to the date of Respondent's offer of reinstatement or, in Boyd's case, employment, with interest computed in accordance with F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). t 9 7 Similarly, I rec- ommend that Respondent shall be required to make James W. Stokes whole for loss of earnings he suffered from midday of March 17 until the morning of March 18, 1980. I shall further recommend that Respondent be required to expunge from its files the written warnings it issued to Larry C. McDowell and Jerry M. Carter on March 17, 1980. Counsel for the General Counsel requests that Re- spondent be required to post at the four jobsites involved in this case and at "all of its other construction sites within the continental United States" copies of a notice to employees signed by its chief corporate officer, and that it be further required to reproduce and mail to all of its employees at each such site a facsimile of the signed notice. Similar relief was granted in Daniel Construction Company, a Division of Daniel International Corporation, 244 NLRB 704 (1979) but the extraordinary remedy was there thought necessary "to counter the effect of unfair labor practices which had been ordered by high-level su- pervision." Id. The circumstances which were present in that case do not appear to be present here. Accordingly, I shall simply recommend that Respondent be required to post the customary notices at its DuPont and Herco- fina jobsites. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9i The Respondent, Daniel Construction Company, a Di- vision of Daniel International Corporation, Wilmington and Leland, North Carolina, its officers, agents, succes- sors, and assigns, shall: 196 The record shows that Piner returned to work for Respondent on May 14, 1980 Since it is not clear whether Piner was afforded the sort of full reinstatement to which he was entitled, I shall include him in the re- instatement remedy as well as the backpay remedy. 19? See, generally, Isis Plumbing d Heating Co., 138 NLRB 716. 198 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1. Cease and desist from: (a) Discharging, refusing to hire, or otherwise discrim- inating against employees because of any activities on behalf of North Carolina State Building & Construction Trades Council, AFL-CIO, or any other labor organiza- tion. (b) Expressly or implicitly threatening employees with reprisal, closure of operations, or loss of jobs, for assist- ing, supporting, or selecting the Union, or any other labor organization; coercively interrogating employees about their union sentiments, interests, or activities; coer- cively soliciting employees to rescind union authorization cards; engaging in surveillance of employee protected concerted activities; promising benefits to employees to induce them to refuse to support the Union, or any other labor organization; and imposing rules which unlawfully restrict talking about the Union. or any other labor orga- nization. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor or- ganization, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) If it has not already done so, offer to James A. Piner, James Perdue, Ralph M. Wilson, Jacqueline M. Wilson, Heber A. Norris, Larry C. McDowell, Sammy R. Wood, Jerry M. Carter, and Donald H. Rouse, imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to Charles K. Boyd, if it has not already done so, an appropriate position at Respondent's DuPont project and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (c) Make Jame:; W. Stokes whole in the manner set forth in the section of this Decision entitled "The Remedy." (d) Rescind and expunge from its personnel files the written warnings given to Larry C. McDowell and Jerry M. Carter on March 17, 1980. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security records, timecards, per- sonnel records and reports, and all other records neces- sary, or appropriate, to analyze the amount of backpay due. (f) Post at its places of business at the Hercofina and DuPont projects in Wilmington, North Carolina, copies of the attached notice marked "Appendix."'99 Copies of 199 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L.abor Relations Board." 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 11, in writing, within 20 days from the date this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that those portions of the com- plaints found to be without merit are hereby dismissed. 618