Buncher Co.

THE BUNCHER COMPANY The Buncher Company and United Mine Workers of America. Cases 6-CA-8564 and 6-CA-8665 April 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On November 17, 1976, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed exceptions and supporting briefs, and Respondent filed a brief in answer to the General Counsel's and the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Buncher Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The General Counsel, the Charging Party, and Respondent have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed in Case 6-CA-8564 on August 25, and a charge filed in Case 6-CA-8665 on October 7, 1975, by United Mine Workers of America, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 6 (Pittsburgh, Pennsylvania), issued a consolidated complaint and notice of hearing on December 31, 1975. The consolidated complaint, as amended at the hearing, alleges that the Respondent, by named officers and agents, interrogated employees about union member- 229 NLRB No. 33 ship and activities; promised employees wage increases and other benefits to discourage union membership and activities; threatened employees with discharge, layoff, or other reprisals if they selected the Union as their collective- bargaining representative; and laid off employees Archie Jackson and Sammie Lee Rutherford on or about July 18, 1975, and thereafter failed and refused to recall them, because of their union membership and activities; and thereby engaged in unfair labor practices violative of Section 8(aX1) and (3) of the Act. The Respondent, in its answer filed on February 13, 1976, admits some of the factual allegations of the consolidated complaint, states that Jackson was recalled from layoff on October 30 and Rutherford on December 4, 1975, and denies the commission of the alleged unfair labor practices. The Union's charge of August 25 in Case 6-CA-8564 alleges that the Respondent on or about February 27, 1975, terminated David Koeber, Steve G. Owens, Robert Sheperd, Thomas Kubicka, Joseph Sparvero, Joseph Bouchard, David Cochran, Robert Crumb, and William McDonough, because of their membership in and activities on behalf of the Union. Its charge of October 7 in Case 6- CA-8665 alleges that the Respondent laid off Dave Cochran on or about April 28, and laid off Bob LaBryer, Larry Weiher, Jack LaBryer, Jackson, and Rutherford on or about June 11, 1975, because of their union membership and activities. The Regional Director, on the ground that investigation showed insufficient evidence, refused on December 10, 1975, to issue a complaint as to the charges of discrimination against those named in the charge in Case 6-CA-8564, and, as to the charges of discrimination in Case 6-CA-8665, refused on December 23, 1975, to include Cochran, Weiher, and Bob and Jack LaBryer in the allegations of discrimination, limiting them to Jackson and Rutherford. Appeals regarding these refusals were filed by the Union. The Regional Director on April 30, 1976, notified the parties that, upon reconsideration, he was revoking his refusal to issue a complaint as to alleged discrimination with respect to Cochran, Weiher, and Jack and Robert LaBryer, and, on May 26, 1976, issued an amended consolidated complaint incorporating the 8(a)(3) charges as to these four individuals, which was further amended at the hearing by changing the location at which some of the incidents in issue were alleged to have occurred, and by striking the only allegation involving a particular supervisor as to an incident that occurred in the pre-10(b) period. In response to the Respondent's protest of the Regional Director's revocations of earlier determina- tions, the Regional Director, in a letter dated June 25, 1976, explained his actions and denied the allegations of lack of due process. The Respondent filed its answer dated June 2, 1976, to the amended consolidated complaint. Pursuant to notice and several postponements granted by the Regional Director, a hearing was held before me in Pittsburgh, Pennsylvania, on June 30 and July 1, 2, 20, and 21, 1976. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evi- dence. At the opening of the hearing, the Respondent presented, and argued, a motion to dismiss, to strike 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain allegations of the amended consolidated complaint, or, in the alternative, to postpone the hearing, on the ground that the Regional Director's revocation of the refusal to issue a complaint as to four alleged discrimina- tees, without affording the Respondent adequate notice and opportunity for discussion, deprived the Respondent of due process. The Respondent stated that it was unable to file this motion in advance of the hearing because certain responses from the Regional Director were not received until immediately prior to the opening of the hearing. The Respondent's motion to dismiss, to strike certain allegations of the amended consolidated complaint, or, in the alternative, to postpone the hearing, made at the hearing and based on the procedures in issuing the amended consolidated complaint, were denied by me at the hearing. These motions, renewed in the Respondent's brief, are hereby denied.' The Respondent's motions to dismiss the amended consolidated complaint in its entirety, or as to certain allegations, based on lack of evidence, made at the close of the General Counsel's case and at the close of the hearing, were denied with the assurance that they would be considered by me in reviewing the entire record, and are disposed of as indicated below. The parties agreed to incorporate herein the entire record in a representation case involving the parties (Case 6-RC-7096). The General Counsel made an opening statement at the beginning of the hearing. All parties at the close of the hearing waived the opportunity to present closing argument. Subsequent to the hearing, the General Counsel and the Respondent filed briefs on or about September 27, 1976, and the Charging Party filed a notice that it was in agreement with the position taken by the General Counsel, all of which have been fully considered. Upon the entire record in these cases and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Pennsylvania corporation with its principal offices located in Pittsburgh, where it is engaged in the business of industrial land development, scrap metal processing, steel fabrication, and rail, river, and truck terminal operations. Involved herein are the Respondent's operations at its Nine Mile Run facility and its Glennwood dock facility, located approximately a mile apart in the Pittsburgh area. During the past 12-month period, the Respondent shipped goods and materials valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. The complaint alleges, the Respondent admits, and I find, that the Respondent is, and at all times material herein has been, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that United Mine Workers of America is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The parties stipulated that the Union's election petition was filed on February 11, 1975, seeking a production and maintenance unit at the Glennwood dock and Nine Mile Run slag reclamation facility in the Pittsburgh area; that the hearing in that proceeding was held on February 26 and March 11; that the Decision and Direction of Election issued on March 28; and that the election, held on April 25, resulted in a 10-8 vote for the Union, which was certified on August 11, 1975. The parties also agreed to incorporate the representation case record in part because of the description therein of the Respondent's unit operations. That record shows that at Nine Mile Run the Respondent ran slag, received from steel mills by truck, through a series of processing machines which magnetically separated the metallic contents, and sized, processed, and loaded them for delivery back to the steel mills in railroad cars. The residual waste product was deposited into trucks and used as landfill at the Nine Mile Run site of over 200 acres, but this landfill operation had been almost completed at the time of that hearing. The Glennwood dock, located on the bank of the Monongahela River, is owned by the B & O Railroad. The Respondent, which operated it under a lease arrangement, owns the equipment used at that location. At Glennwood the Respondent unloaded coal from railroad cars and loaded the coal onto barges which transported the coal via the river to the steel mill purchasers. That operation was run for many years with about six employees. The complement increased in about 1974 as a result of the steel mills, during the energy crisis, buying coal from mines with which they did not ordinarily do business, resulting in increased tonnage sent to Glennwood. The Respondent put in a great deal of new equipment that mechanized much of the Glennwood coal processing. Green, the Respondent's executive vice president, stated at the representation case hearing that there were about 10 employees at Nine Mile Run and 19 at Glennwood, that many of the employees had done work at both locations, and that, with the construction at Glennwood virtually completed, there would be an immediate layoff of nine of the employees there, with their recall very unlikely, a layoff that had been delayed at counsel's request until that hearing was held. One of those named for layoff was Cochran, who had been employed for many years as a welder, and who was at the time not working because of an injury received on the job. Green named the employees who would not be laid off, including Jackson and Jack and Robert LaBryer, but stated that further layoffs would be See Winn-Dixie Stores, Inc.. 224 NLRB 1418 (1976). 218 THE BUNCHER COMPANY made later. He also stated that seniority was a factor in the layoffs, but of less importance than ability. The General Counsel conceded at the instant hearing that the Respondent had economic justification in making layoffs during the period here in issue, but contended that the selections of the individuals to be laid off were discriminatorily motivated as shown by interrogation and threats directed at each of them by Buncher and Green. Buncher and Green denied the alleged interrogation and threats and maintain that the selections for layoff were based on completion of certain construction on which some employees had been working, on elimination of some jobs as a result of the new construction, and on considera- tions of which employees in the small remaining comple- ment would be most useful in the Respondent's operations. The Respondent carried on other industrial operations, not directly involved herein, but at which a number of the unit employees had worked at times. The General Counsel requested that judicial notice be taken of a Board decision involving the Respondent and a different labor organizations in which the Board, in June 1961, affirmed the findings that the Respondent violated Section 8(a)(1) and (3) of the Act by interrogating employees about their union activities and the activities of other employees; threatening employees with loss of employment if they continued in their union activities; promising employees benefits if they would discontinue their union activities; requesting employees to engage in surveillance of the union activities of other employees and report said activities to the Respondent; soliciting and directing employees to join a particular union other than the charging party therein; by statements and conduct causing employees to believe that the Respondent was engaging in surveillance of their union activities; and making a reduction in staff for which the Respondent had economic justification but was substantially motivated in its timing and in its selection, for transfer or layoff, or both, of 13 named employees including Jackson and Rutherford, by the employees' known or suspected union activity. The court of appeals enforced the Board's Decision and Order.3 Buncher, president of the Respondent since it was incorporated 6 or 7 years ago and previously for many years the owner, and Green, associated with the Respon- dent since 1946 and the executive vice president for about 4 years, were the individuals found to be primarily involved in the unlawful conduct described above, and are charged with the conduct alleged herein to be violative of the Act. The General Counsel called as its witnesses in this proceeding Cochran, who was laid off on February 27, Weiher and Robert LaBryer, who were laid off on June 11, and Jack LaBryer, Jackson, and Rutherford, who were laid off on July 18, 1975. The last two were later recalled to work by the Respondent and were still employed at the time of the hearing herein. The Respondent called Buncher and Green, as well as Thomas Turnbull, regional sales 2 Jack G. Buncher, d/b/a The Buncher Company, 131 NLRB 1444 (1961). 3 N.L.R.B. v. Jack G. Buncher, d/b/a The Buncher Company, 316 F.2d 928 (C.A. 3, 1963). 4 The Respondent objected to the General Counsel's reference to the prior case on the ground it had fully complied with that order, objected repeatedly to the General Counsel's presentation of testimony regarding certain events as background. and objects in its brief to any consideration manager of coal traffic for the Chessie railroad system, who was also under subpena by the General Counsel, to testify regarding the economic situation at the Glennwood dock. The General Counsel's witnesses presented, as additional background evidence, testimony as to incidents that occurred prior to the 10(b) limitations period.4 B. Interference, Restraint, and Coercion I. Testimony of laid-off employees The Union began organizing the Respondent's employ- ees in about December 1974. An organizing meeting held at the Seahorse Lounge in late January 1975 was attended by approximately 30 employees. Cochran began his employment with the Respondent in 1965. He was injured on the job on January 15, 1975, and was still out of work when he was laid off on February 27, 1975. Cochran, Behun, Jones, and Owens were among a small group of employees who first discussed union organization. Cochran signed a card in December 1974 and attended the Seahorse Lounge meeting. He testified that he went to Green's office a few days before that meeting to get his compensation check, and was told by the secretary to see Green; and that Green asked why the men wanted the Union and asked who started it, asked him to find out and report who started it, and said Buncher did not want the Union. He also testified that Buncher telephoned him the next day, talked about his injury, then asked if he knew more about the Union than he told Green, and asked him to come in to see Buncher; that, when he did, Buncher suggested that he go to see a particular back specialist but he said he was satisfied with his doctor; that Buncher then asked what he knew about the Union; that when he told him about the Seahorse Lounge meeting, Buncher said four others had told him of it; that Buncher asked him to talk to the men about not going union; that Buncher asked him to return to work on Monday and, when he said his back was too painful, explained it was not to work but just to talk to the men about not going union, and failure to do so would show which side he was on; but that he said he could not make it. This testimony was presented as background evidence. Weiher was employed by the Respondent first in about 1970. He was laid off after a year, but was rehired in November 1972, and was employed until his layoff on June 11, 1975. Weiher testified that he learned of the employees organizing in December 1974 from Cochran and Jones, who invited him to the Seahorse Lounge meeting; that he attended and signed a card; that he and many others obtained buttons in early February and wore them at work at Nine Mile Run; that Pasquarelli, the superintendent, asked him about the button in early February, and he said the Union would be a good thing at Nine Mile Run; that Green spoke to him in late February and in March about the Union, indicating he was known to be prounion, and thereof in determining the issues herein. The objections made at the hearing were overruled. The evidence has been viewed as background only. See Local Lodge No. 1424, International Association of Machinists, AFL-CIO IBryan Manufacturing Co.] v. N.LR. ., 362 U.S. 411, 416 (1960): Gerald F. Hinkle, d/b/a Akron Novelty Manufacturing Company, 224 NLRB 998 (1976). 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said the Respondent was giving him good job training but the Union would not. This testimony was presented as background. Weiher also testified that Green asked him in March if he would vote for the company, and he said he would; that in April, about 2 weeks before the election, Green told him, with Buncher present, Pasquarelli would not always have the superintendent's job, if he voted for the company he would have a shot at that job and a raise, and if the Union lost he would get a raise in a week; and that, on the day of the election, Green again asked if he would vote for the company, and he said he would. He also testified, on cross- examination, that, when Buncher and Green asked him about the Union, "I told them that we wanted the benefits, and the wages that we could get from the Union." Robert LaBryer testified that he was employed by the Respondent the first time in July 1968, quit after about a month because he wanted higher wages, returned and quit again at the end of June 1973 because he was promised a higher wage but did not get it, and returned again and was employed until laid off on June 11, 1975. He had difficulty recalling even the year of some of these events. LaBryer testified that he learned from Owens about the Union organizing in late November 1974; that he obtained a card from his brother and signed it just before the Seahorse Lounge meeting; that he attended that and a few later union meetings; and that he got a union button from another employee and wore it on the job almost all of February and until he was hurt on March 16, 1975, at Glennwood, and was out of work about 8 weeks; 5and that the Respondent paid him for about 3 weeks until his Workmen's Compensation checks began. When LaBryer went to the company offices in late March to pick up his paycheck, the secretary told him to go in to see Buncher and Green. He testified that they said they were sorry he got hurt and talked about when he would be able to return to work; that Green talked of the steel mills slowing down, shortage of coal, and the possibility of more layoffs; that Buncher asked what he would get by going union; that when he replied that he wanted principally a pension and job security, Buncher offered to put his money in the bank, and said he could trust Buncher with his pension money as well as the Union; and that Buncher said he could be laid off at any time and replaced by men from Nine Mile Run, and Buncher could not see why the men wanted the Union as Buncher always took good care of the men. He also testified, on cross- examination, that Green said the company began building the new plant at Glennwood in about February 1974 with the hope it could operate with fewer men; that Green spoke of the layoffs at the time of "the first trial," and said "the reason for them being laid off was because most of the work had been done and there was very little work to complete the operation. They wouldn't need that many men"; that Green said, because of the slowdown of the steel mills, "they would have to close down Nine Mile, and the men from Nine Mile would be in turn transferred to the coal docks," and "I could be replaced by men from Nine Mile, he didn't say I would be, he said I could be . . . 5 He was injured when he tried to get a line to his brother and Jackson, who were on coal barges that were breaking loose. Green gave each of these because I had less seniority than any of them"; and that Green spoke of seniority, not skills. He testified further that Green then left the office and Buncher continued the conversation; that Buncher referred to the first hearing and said Jack LaBryer and others who testified did not lie; that Buncher said "if the Union got in that I could be replaced by men from Nine Mile" with more seniority; that he responded only about wanting a pension and job security; and that Buncher said he had kept the Union out for 45 years and was not going to let it in at that time, "not if he could help it." LaBryer also testified that he was in his car on the way to the coal dock to vote on the day of the election when he met Buncher and Green in a car; that they asked him to come to Nine Mile Run to talk; that he followed their car in his car to where they could talk under cover as it was raining very hard; that Buncher said he should vote for the company and not for the Union, Buncher knew he would vote the way his brother did, he could be replaced with men from Nine Mile Run as he "didn't have much time there," and if he was not "a little bit shakey" about how he was going to vote, there was something wrong with him; that Green indicated agreement with what Buncher was saying; and that he said he was not sure how he would vote as he appreciated that the company had paid him after his injury until he began getting his unemployment compensa- tion checks. He also testified that he was not sure but thought he was not wearing a union button at the time. Jack LaBryer testified that he began working for the Respondent in late 1963 or early 1964; that he quit after about 2 years; that he ran into Pasquarelli months later and said he had quit because of John Monahan; that Pasquarelli told him Monahan had left, and asked him to return with his seniority continued; that he did so, and thought this was in 1965; and that he worked until his layoff on July 18, 1975. He also testified that he heard of the Union from Cochran and Owens in November 1974, that he signed a union card in early January at Owens' request and distributed cards to his brother and other employees, and that he attended meetings including the one at the Seahorse Lounge. LaBryer testified on cross-examination that about 3 weeks before the election Buncher spoke to him on the dock and that Buncher said something about L & N railway cars and the Union, expressed opposition to outsiders telling Buncher how to run the company. He also said the Union did not guarantee job security and he could be discharged and the Union could not force his rehire, but he did not indicate he was going to be discharged. He also testified that Buncher complained about his practice of listening to Buncher's talks and not saying anything. LaBryer also testified that, 2 weeks before the election, he was finishing up his work at Glennwood when Green "called me aside and he talked about how business was slowing down, due to the auto and steel industry problems, and how there was going to be a lay off in the future, and that they would try to lay off the youngest men in seniority, first, and keep the oldest. He also said, how I never got laid off before, in the past, and the company had always taken men $20. He testified that he would have given them more but the amount was suggested by counsel so it would not appear to be a bribe. 220 THE BUNCHER COMPANY care of me. He then told me about the company's plans to keep only six men to operate the coal docks, including me and my brother Bob, and he asked me how I felt about the union, and I would not answer him.... He asked me or he told me that he knew I had influence over the men and he wanted me to talk to them, and try to convince them, not to vote for the Union." As this conversation took place after quitting time, LaBryer was paid overtime. LaBryer denied on cross-examination that Green in this conversation talked about the ballot being secret so those who signed cards were free to vote "No," about the importance of voting, the Union's inability to fulfill its campaign promises, the benefits provided by the Respon- dent, or what he owed the Respondent for providing him for so long with employment. He testified further that although Green never showed him any newspaper clip- pings about the Union, he saw some posted and could not recall if Green, in any of their conversations, talked about the new Glennwood equipment needing fewer men. LaBryer testified that Green spoke to him again about 2 days before the election; that Green asked him to convince his brother not to vote for the Union; and that Green said that, with the Union, there would have to be a layoff, the men would not be able to transfer jobs as they had in the past, and there would be strikes and strike funds the men would have to support. LaBryer also testified that on the day of the election, when it was raining hard, Buncher called him into the power shanty; that Buncher "started talking about my position as far as the union, and he said that he trusted me, but he still wasn't satisfied, that he didn't know how I stood, as far as the company or the union, and he wanted to know what he could do for me, could he buy me a new car, or give me five hundred dollars, or Jerry Burns' old job"; that Green, who had joined them, said Buncher would give him whatever Buncher promised; that his response was that he did not need any help like that and "that I didn't have to tell him anything about how I was going to vote, and that I had been selected by the men to be the union observer"; that Buncher then "said this had nothing to do with it, that I would never talk to you again, if the union won"; that Buncher also told him Jackson and Rutherford "had screwed him with the last union, and he gave them a second chance, but they wouldn't get another one, and he told me that I already made one mistake"; and that he saw Buncher after that at Glennwood, but Buncher has never spoken to him since then. LaBryer denied on cross-examination that Buncher spoke to him about the secrecy of the ballot or asked him to vote for the company, and testified that he did not recall any discussion of company benefits or of a possible layoff at Glennwood, nor recall talking to Buncher about his father working on the B & O or about his buying houses, which he was doing. Jackson began working for the Respondent in February 1959. He was laid off in 1960 and reinstated in 1962 pursuant to Board order. He was laid off on July 18, 1975, was recalled by the Respondent on Ocotber 31, 1975, and was still employed at the time of the hearing. Jackson testified that he learned of the Union in December 1974 when Owens told him of a meeting to be held, that he went to the meeting and got a card from Owens which he signed a week later and returned to Owens, and that he wore a union button during January, February, and March, 1975. Jackson testified that he was called to the office, asked by Buncher and Green about rumors of racial discrimina- tion, and assured that company policy did not condone such conduct. He was told to go to the office by McDonough, who was found in the representation case to have been laid off for economic reasons on February 27, 1975, and as to whom the Regional Director refused to issue a complaint. Counsel agreed, therefore, that this Jackson incident occurred in the pre-10(b) period, and the General Counsel presented it as background only. Jackson testified that in this conversation Green asked why he was wearing the union button; he said he wanted better pay, benefits, and a pension; and Green responded that "we're going to give you a pension plan, when you get old you're going to draw Social Security." Jackson testified further that he saw Buncher and Green at Glennwood on April 21; that Buncher was going to talk to him but Green asked to do so instead; that Green asked if he was still going to vote for the Union, and he said he was; that Green said the company was going to lose shipments on L & N and other railcars because of new river docks being built; and that Green said the Union wanted only his dues, urged him to discuss the matter with his family, and commented that they were like a family and Green had taken care of him in the past. Jackson also testified that Green spoke to him again "in the car puller house" at Glennwood on April 24 and asked if he talked to his family; that he said he did and was "going to go with the company"; and that Green "said I don't believe you, but he said I will see. He said you know you're going to lose anyhow, because we've got ten votes to eight votes." Jackson testified on cross-examination that Green on April 21 said the employees as a group would have to pay the Union $2,700 a year in dues but that would not take care of the office in Pittsburgh; that Green on April 24 expressed again the hope he would vote "No," but did not mention the secrecy of the ballot or say anything about the company being good to him, about company benefits, or about wages or pensions, although Green in other conver- sations spoke of having taken care of him; that Green in all their talks expressed the hope that he would vote "no union" and "for the company"; and that Green said the vote was secret, but did not say he was to vote as he felt. Rutherford began working for the Respondent in 1956. He was laid off after about 2 years as the work was slow, but was called back a few days later. He was laid off again in 1960 but was reinstated in 1962 under the Board order. He was laid off July 18, 1975, was recalled to work on December 4, and was still employed at the time of the hearing herein. Rutherford testified that he learned of the Union organizing in December 1974 from Jackson; that he signed a card at the Seahorse Lounge meeting; that about a week later Green asked if he had signed a card, and said the card did not mean anything; that Green asked if he did not feel, after being employed 17 or 18 years, that he owed the company something; that he said it seemed so and he would think about it; that Green asked what he wanted from the Union; and that when "I told him I wanted the 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pension fund," Green said he should get savings bonds which "would equal up to a big pension fund." Rutherford also testified that he received a union button weeks after he signed a card, but thought he did not wear it. Rutherford testified that Green spoke to him again outside the office, he thought in March but admitted on cross-examination it may have been in February; that Green asked what he was thinking about the Union, and he answered he did not give it much thought; that Greeii told Buncher, who joined them, that "he ain't talking too good"; that Buncher said that he and Jackson "got me once, but you won't get me again," and said to Green "I told you you should have got rid of Sam [Rutherford] and Archie [Jackson] a long time ago"; that Green said "that don't matter right now. All I want him to do is sign for the Company"; and that both Buncher and Green said in conclusion they could not offer him anything "but when it's over and you vote for the Company you won't regret it." Rutherford testified, on cross-examination, that, during the conversation in February or March, Green said the Union was not necessary, there would be a vote by secret ballot, "the card didn't mean nothing, just vote for the company"; and that his response was that he might vote for the company and that he wanted a pension fund. Rutherford denied that Green discussed race discrimina- tion in any of the talks about which he testified, but admitted Green discussed this matter separately with him at one time, he did not recall when. In view of Rutherford's uncertainty about the dates, the above conversations will be considered only as background. On the day before the election, the Respondent held a meeting of employees at Nine Mile Run at which it provided luncheon, and at which both Buncher and Green spoke. Rutherford testified on cross-examination that he approached Buncher before this meeting; said to Buncher that "like you said, you was pretty good to me and everything," and that he bore no grudge because of any of the union matters; that he could not recall what Buncher responded; that Buncher might have said he was free to vote as he pleased but Buncher hoped he would vote "No"; and that Buncher did say that at the luncheon meeting. Rutherford testified further that he could not recall much of what was said at that meeting or that they said the vote was secret, that it was important that everyone vote, or that everyone was free to vote in secret and there would be no discrimination against anyone because of the vote; but he did recall that Buncher said the Union just wanted the dues, that both Buncher and Green said the company could make no promises under the law, and that both at the end said "all we want you to do is vote for the company." Rutherford also testified that he was sent to Glennwood to do some work after the "meeting party"; that Green came to where he was working there and asked "what was I thinking about the union. How was I thinking of voting, and I told him I don't know, I still hadn't really gave it a thought, and he said well, we've got ten, but what I want is all of you. So at that time, Archie Jackson came by ... So he [Green] just said there's Archie . . . would you like to see him on Welfare. .... I said no, but I will vote for the Company, just like that, and that's about all that was said." 2. Testimony of Buncher and Green Buncher and Green testified that they carried on a vigorous campaign to urge "No" votes for 3 or 4 weeks before the election of April 25, 1975. Buncher, who normally visited the worksites involved once in a month or two, and Green, who visited them for a few hours about twice a week, went there daily and talked repeatedly to each of the eligible employees. They arranged in advance which employees each would talk with that day. Literature was distributed to the employees with their paychecks and by registered mail to their homes. Buncher and Green maintained that they said the same things to the employees day after day in these conversations, varying them only to refer to literature that might have been distributed since the preceding talk; that, as described by Buncher, "we made it a point. . . almost on a daily basis. . . to. . . see as many of the people, on a personal basis, and have direct conversation with them, and try to sell them basically, on the soundness of. . . going along and voting no union"; that both of them spoke to the assembled employees at the luncheon meeting the day before the election; and that their campaign was cleared with counsel. They maintained that virtually all of their conversations were on a one-to- one basis, denied that both participated in certain conver- sations about which witnesses of the General Counsel testified, and denied making the unlawful remarks attrib- uted to them. Buncher testified that during his talks he showed the men newspaper articles critical of the Union and other labor organizations, including one that "was full of Allis Chalmers' statements as to why the plant was being shut down, and it was union, union, union." He also testified that "I did everything that I could to convince them, that they had done well without the union, and that I had been a good employer, and I had given them good salaries, good wages, I had yearly added to their benefits. . . . These are the things that I spoke with to each and every one of the men, anybody who would listen, I hammered at them ... I tried to convince them that they were much better off, to remain and leave it at status quo," because they could then, as they had in the past, discuss any "gripe" about the work with him. Buncher testified, as to the conversation with Cochran, that it took place at Cochran's request. Cochran com- plained about the supervisor as in previous conversations and they both discussed Cochran's work and injury. Buncher stated that if Cochran was wearing a union button he did not see it, that there was no discussion of the Union, and that he did not know of the union drive at that time. Buncher specifically denied making the references to the Union to which Cochran testified. Buncher testified that he spoke to Weiher a number of times, including on election day and the day before, at Nine Mile Run and in the office. He testified that he told Weiher that the voting would be by secret ballot, that "the signing of the card did not commit the man to vote for the union," that Weiher had a good work record and "was the kind of person that he would like to have." Weiher started as a laborer on a wrecking job on Herrs Island but was put on other jobs when that one finished and was taught skills on the job and given wage increases. Buncher testified that 222 THE BUNCHER COMPANY "this basically is what we talked about at every opportunity that I saw to sit down and talk with him." Buncher also testified that Weiher, like most of the others, did not have much to say; that he did not recall what was said in the earlier conversations but did recall the ones close to the election; that "This man had been wearing a button, all the time . . . I don't know that he wore it all the time, but I know that on several occasions, I did see it"; that he did not recall if Weiher was wearing a button at the first conversation in the office but "He could have, yes, because I know that I saw him with one on, but which meeting or when or what, I cannot tell you." He testified, on cross-examination, that in April 1975, "I don't know that I specifically looked, I remember seeing it, at least once, but beyond that, I don't recall that I ever looked to see if it was on or off, from then on." As to whether he told Weiher in April 1975 that the signing of a card did not commit him, Buncher testified that "I don't know whether it was said to him at that time or whether I said it to him at all.... If I saw him with a button on it may have prompted my saying it, but I don't know if he had a button on at that time.... I'm positive that I did not say it to him, if I said it at all.... I don't specifically remember making a statement like that to him at all." Buncher denied that he and Green ever spoke together to Weiher, then admitted they went together to the jobsites to campaign, and that he or Green may have been present long enough to hear snatches of conversations the other was carrying on. He denied hearing Green make the offers to which Weiher testified, denied that he offered Weiher benefits, and maintained that both he and Green spoke of promotions only in terms of pointing to Green and the supervisors who had been taught skills and given advance- ments from lower rated jobs to their present positions. He also denied asking any questions about how Weiher would vote, but stated that he "certainly did" say he hoped Weiher "would vote for the company." Buncher testified that he and Green spoke separately to Robert LaBryer, who had come to the office to get a compensation check, but that "nothing too much was said other than, I had confidence in the fact, that I could convince Jack LaBryer that his best interest lie with voting no union, and voting for the company.... and I told him that I had hoped that I could do the same with him, and I did say . . . there was no animosity because of Jack's previous testimony in the representation case, because the man had had basically, stated facts as they were, and I just - well, there was no resentment ... " He testified that he did not recall whether LaBryer was wearing a union button at the time, and that the only other matter they talked about was LaBryer's injury. He denied making all the comments about the Union to which LaBryer testified, and stated, as to the comment about having kept a union out for years, that the "one thing that was said, I said for all of the years that I have been in business, the men had trusted me enough, to the extent that they did not never need a union, and I was hoping that that would con- tinue... ." Buncher also testified that when he and Green asked LaBryer to follow them on the day of the election, Green spoke to LaBryer first, and he later spoke briefly, and that it was "the same thing again, I said to him about the secret ballot, about going in, and I didn't care what had transpired, and I was aware by then, that he had at times been wearing a union button, and I didn't care anything about any of that, when he got in that booth, no one would know how he voted, and I hoped that he would vote for the company, and I hoped that we had convinced him that he would vote for the company, and if we hadn't at that point, I just gave up, and that was the extent of my conversation with him." Buncher denied the other remarks pertaining to the Union to which LaBryer testified, but admitted LaBryer "may have construed as he said, as being shaky, I said, I just give up, if I haven't been able to convince you, that you are making a mistake, that the union can't do for you, as much as we can, we have proven ourselves to you, we are proving you a known quantity, and you are dealing with an unknown... ." Buncher testified that he had no "serious conversation" with Jackson because Green felt he could reach Jackson better. He and Green did have a conversation with Jackson and each of the other black employees in late January or early February about the rumors of racial discrimination, and urged these employees to report to them any such incident. Buncher testified, when asked if Jackson was wearing a union button, "I don't remember, I'm not certain, I think he may have been, but I cannot be sure." He denied that he or Green asked why Jackson was wearing a union button or had any discussion pertaining to any union matter. Buncher also testified that he had no conversations with Jackson from that time until the election other than to make comments in passing to the effect that "I hope we can count on you." He again asserted that, as to every eligible voter, "I certainly emphasized the fact, that their best interests lie with voting no union, I felt that I had proven myself as a good employer over the years, and I told him that I felt that that certainly was better than taking something that you are uncertain with." Buncher testified that he spoke to Rutherford about racial and other matters a number of times, but that he recalled no conversations about the election before early April; that Rutherford showed great reluctance to talk to him and was always busy when he approached; that "I almost felt that I had the man convinced" after the luncheon meeting; that Rutherford approached him after the meeting and "almost apologetically" asked if he was angry, "and I told him that I wasn't angry, and I said you worked too long for me, and I feel when you get into that booth tomorrow, in the election, you will do the right thing, and I put it on the basis that I expected him to do it, and that's the way I left it." He denied that he asked how Rutherford was going to vote. As to whether he stated how he wanted Rutherford to vote, Buncher answered, "Do you mean did I say, vote for the company, I could have, but I don't know if those were the words that I used, it seems to me that I used vote the right way, I can't tell you if I said vote for the company, I meant vote for the company, and there was no question about that, and there was no question in his mind, that I meant vote for the company." Buncher denied other remarks about the Union to which Rutherford testified, and denied that he and Green 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together had any conversations with Rutherford. He denied that he spoke to Rutherford about investing Rutherford's money for a pension fund or getting a pension in the form of social security, but admitted having "a little comment like that" with Jack LaBryer. He denied that he said anything about getting rid of Jackson and Rutherford, and that he said they "got" him once but would not again. On cross-examination, he testified that he did not believe Jackson's name was mentioned; that he did not recall it being mentioned; that "I would say if I had to but I would say that it was not mentioned. But I am not positive.. .. I know that I didn't mention it for any specific reason. There was nothing there that would bring it up"; and that he did not see Jackson at the time and thought Jackson and most of the men had left. Buncher testified that he had many conversations about the election at Glennwood, starting in early April, with Jack LaBryer, because "in my book he represented two votes, and he also represented some influence, and I felt, if I could persuade him, I had a chance, and I knew his brother would go along . . . and possibly influence somebody else, so I did seek him out"; that he asked LaBryer to influence his brother and others to vote for the company and against the Union; that he knew LaBryer wore a union button at times; that in these conversations he complimented LaBryer who "had performed a beautiful job, and done his work well"; that LaBryer complained because he had been working there for years and, when Maynard left, the promotion to Maynard's job was given to Burns; and that he said he would look into this, and did, and found this action was justified because LaBryer "had a run in, many years ago with John Monahan," but did not report this to LaBryer. Buncher testified that LaBryer talked about his father working at B & O and indicated he would prefer to be working for B & O; that he said the company needed flexibility in transferring men but the Union would not permit it; that when LaBryer talked about a car problem, he asked why LaBryer did not buy a new car; that LaBryer said he had bought a home and another house so he could not afford to buy a car; and that he said LaBryer "can always get the money for the down payment or something from Moe [Pasquarelli], because his work record was good, and this was common practice" to get "a company loan, without interest." Buncher testified that one of the equipment changes that would make LaBryer's work of handling barges easier apparently made LaBryer fear there would be less work for him, but, at other points, that LaBryer argued there would be more work, men would be hired, and the dock operation would go to three shifts; that LaBryer did not believe what he said about there being less work when the equipment changes were completed even though he showed LaBryer articles about other river docks getting into operation to which coal would be sent that had been going to Glennwood; and that, when they were discussing job benefits, LaBryer brought up pensions, and he replied there was so much dishonesty about pension systems it might be better to set up a savings plan of some sort, the Government had come up with a new plan for setting money aside, and "I told him that if he wanted, I would look into it for him, and I would help him do it, and that was all, now if that's a promise of setting up a pension, I don't know." Buncher testified that he took one more shot at LaBryer on the day of the election; that he knew from LaBryer's head shaking that he had not "reached" LaBryer but, at another point, that he still hoped LaBryer would vote for the company; that when he said LaBryer could still make the right decision, LaBryer said he was elected to be the union observer; and that "I remember saying Jack I feel bad, but if that's your decision, this is the last conversation that we will have about it. He walked away, and I walked away, and that's all that was said." He testified that he had not seen LaBryer since the election until the hearing, and would have spoken if he had. Buncher denied that he offered LaBryer a car, $500, or a promotion to vote against the Union or to campaign for the company; that he said Jackson and Rutherford "screwed" him or mentioned their names; that he discussed discharg- es except to say the company would need fewer men when the construction was completed; and that he said he could discharge LaBryer and the Union could do nothing about it. He testified that they did not touch on job security, he thought, other than his comment that LaBryer had been there a long time and would be there "as long as we were there, if we had the business, and could maintain it fine, I saw no reason to discuss job security, I can't ever recall saying that." Green testified that he as well as Buncher carried on daily talks with all the men at both jobsites beginning in early April; that he saw quite a few union buttons worn on the job; that he told the men that they could get greater benefits from the company than from the Union, that the company did a great deal for them and would continue to do so, and, in every conversation, that he would like them to vote for the company. He also asked that the men talk to him about any "gripes" they might have. Green testified that the luncheon meeting the day before the election lasted about 1-1/2 hours, that they ate for 45 minutes and then he and Buncher spoke for 45 minutes, and that they stuck pretty closely to prepared remarks and repeated what they had been saying in the numerous conversations; that they spoke of what they had done for the men, of how the company kept the business going without the Union and saw no need for it, and that "we think we can do more," and hoped they would vote next day for the company. Green denied ever asking any employee if he signed a card or how he would vote, that he made any promise of benefit conditioned on voting against the Union or for the company, or that he threatened any employee with reprisals if the employee voted for the Union. Green testified that when Cochran came to the office in January 1975, and "claimed" to have hurt himself, Cochran had been out of work for a couple of weeks and came for his compensation check; that he arranged with the secretary that he would hand Cochran the check; that he inquired about how the injury occurred and expressed sympathy for the back trouble Cochran was having, which took about 5 minutes; that this was all they discussed; and that there was no reference to the Union. He also pointed out that Cochran was held ineligible to vote in the election as a permanently laidoff employee. 224 THE BUNCHER COMPANY Green testified that he had 8-10 preelection talks with Weiher beginning in early April, but did not recall a conversation in February; that Buncher took no part in his talks with Weiher; that he saw Weiher wearing a union button; and that he told Weiher of the company's improving job benefits and promotional opportunities. He denied ever promising Weiher benefits to vote against the Union or for the company. Green testified that he had conversations with Robert LaBryer, who wore a union button, at Nine Mile Run, at Glennwood, and in his office, and that he explained, as he did to other employees, that LaBryer had performed various kinds of work at different locations but would not have that flexibility under a union classification, and that "this is why I don't believe the Union can do you any good." He also testified that he gave LaBryer $20 for preventing a barge from breaking loose, and intended to give more but was advised against it by counsel on the ground that it would be construed as a bribe. Green testified as to the conversation with LaBryer on the day of the election that "We talked about the union benefits as opposed to the benefits of the Buncher Company.... and we certainly think that he's taking it into consideration, his future, as well as that of the family, to vote for the Company which has been giving him steady work in the past. And, it looked like it was going to continue to keep him gainfully employed." Green denied that LaBryer ever said he was looking for pensions or job security from the Union, that they ever discussed LaBryer's brother Jack, and that he ever discussed seniority with any of the men. Green testified that he spoke to Jack LaBryer several times during April; that in the first talk he asked if LaBryer, who was wearing a union button, had received and understood the company literature; and that he pointed out the benefits of the company job flexibility "to assure continued work," but "if the union were to come in here, they would probably classify you as a dock hand," there would be no more shifting to other work, so that "if we didn't have barge work for you, we would have no alternative but to lay you off for that day ... I think it is going to be in your best interest to vote against the union, and vote for the company... ." Green testified that their next talk would have been the same, and would have taken place in a day or so as he tried to reach all the men about every other day. He also testified that in their talk at the dock on the day of the election, LaBryer said nothing about being a poll watcher and he never heard LaBryer was to be one. Green denied that he asked how LaBryer would vote; that there was any discussion of LaBryer's brother; that he asked LaBryer to tell his brother or other men to vote against the Union; that he told LaBryer there would be a layoff if the Union got in; that he offered LaBryer a raise, new car, or promotion to vote for the company or heard Buncher do so; or that he heard Buncher say Jackson and Rutherford "screwed" him but would not again, or say LaBryer made his first mistake. Green testified that he had "repeated" conversations with Jackson at Glennwood; that if he spoke to Jackson in March, it was late in March as he started his "actual campaign" in early April; and that he spoke to Jackson in about February about the reports of racial discrimination, but there was no discussion of the Union, and no reference to the union button Jackson was wearing. Green testified that in his conversations with Jackson beginning in early April, he asked if Jackson received the company literature and if Jackson and his wife had discussed it; that "I said does your wife agree with you, that you are working steady, that you don't lose any overtime, and he said yes, and I said I think that's one of the benefits working with the Buncher Company, working with us is steady work, and I said, you know, I don't know if you are going to be able to enjoy that benefit, if the union comes in here, because Archie remember, your classification is laborer, and you don't have any skills, I don't know what the union is going to say about that .. ."; that Jackson helped on electrical and maintenance work, and on moving barges and cars; and that those were the benefits he enjoyed as an employee of the company whereas the union benefits were getting a card and paying dues. Green denied that he ever talked with Jackson about pensions or job security, or asked how Jackson was going to vote. Green testified that Jackson and the other employees were at the luncheon meeting on the day before the election; and that, in his next talk with Jackson, on the day of the election, he told Jackson, "I think you will agree that, what's best for you would be to vote for the company." He denied that he predicted the outcome of the election, and that there was in this conversation any indication of how Jackson would vote. Green testified that he spoke to Rutherford about the reports of racial discrimination, that there was no reference at this time to the Union, and that he did not think Rutherford was wearing a union button. He also testified that later, during his campaign, he had several conversa- tions with Rutherford in which he asked if Rutherford read and understood the company literature, "and I asked if he had considered the advantages to him, staying with the company the way it was and has been, as opposed to what it might become if we had union representation ... I think if you think it out right, you are going to vote for the company . . ." Green denied that he asked how Ruther- ford was going to vote, that Rutherford mentioned wanting a pension or job security and that he discussed these matters with any of the men, that there was any talk in March or April in which Jackson was mentioned, and that he or Buncher ever said that they should have gotten rid of Jackson and Rutherford or that they could not offer anything at that time but Rutherford would not be sorry if the company won the election. Green testified that he talked to Rutherford and others the day before the election but merely repeated his campaign talk, and that he spoke to several of the men after the luncheon meeting, but merely asked if they had any questions about the talks. He denied that he had any discussion with Rutherford or anyone else about any pending layoffs at Nine Mile Run or at Glennwood. Green testified that he talked to Parham and Washington about the rumors of race discrimination, and that he had the same campaign talks with them as he did with every eligible voter. 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings Each of the six laidoff employees impressed me as a candid and forthright witness, testifying to the best of his recollection to what was said in the many conversations Buncher and Green held with each of them. On the other hand, I found Buncher and Green evasive and argumenta- tive witnesses, whose testimony about these conversations contains many improbabilities, inconsistencies, and self- contradictions, and lacks the ring of truth. I therefore credit the testimony of the laidoff employees as to these conversations. Accordingly, I find, on the basis of the credited testimony, of the admissions made in the testimony of Buncher and Green, and of the record in its entirety, that the General Counsel has established the Respondent's knowledge of the union organizing activity shortly after it began as well as the Respondent's union animus. I find further that Buncher and Green, the two principal officers of the Respondent, in their daily barrage over a period of weeks directed at a small complement of employees, within the 10(b) period, coercively interrogated employees about membership in and activities on behalf of the Union; that they told employees repeatedly about the wage increases and other job benefits the company had provided over the years without the Union, indicated that continued benefits would be forthcoming if the employees voted for the company and against the Union, whereas the employees could not know what to expect with the Union if it won the election, and thereby actually or impliedly promised employees wage increases and other benefits in order to discourage membership in and activities on behalf of the Union; that they talked about pending layoffs and about the company practice of transferring men to different jobsites and teaching them new skills in order to keep them employed, whereas the Union, if it won the election, would insist that employees get job classifications and be permitted to work only in those classifications, with the result that employees would have to be laid off whenever there was no work in their classification, and, by repeatedly warning employees of an inevitable curtailment of work if the Union won the election, threatened employees with discharge and/or layoff and other reprisals if the employ- ees selected the Union as their bargaining representative; that this conduct interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act; and that the Respondent, by such conduct violated Section 8(aX)(1) of the Act. 6 C. The Layoffs Cochran was laid off on February 27, Weiher and Robert LaBryer on June II11, and Jack LaBryer, Jackson, and Rutherford on July 18, 1975. Cochran began working for the Respondent in 1965 as a laborer at Nine Mile Run. After about a year he learned and did welding also, but most of his work continued to be as a laborer at Nine Mile Run. He went to Glennwood at times to load coal, and on occasion did laborer work at the 6 N.L.R.B. v. Colonial Haven Nursing Home, Inc., 542 F.2d 691 (C.A. 7, 1976); General Automation Manufacturing, Incorporated, 167 NLRB 502 (1967); Gilbert International, Inc., 213 NLRB 538 (1974); Quemetco. Inc., a Respondent's Leetsdale location in about the early 70's, laid track and did other laborer work at Northside on Preble Avenue for about 6 months, and helped out at the Heinz warehouse in an ice storm. In 1974 he worked at Glennwood, where he put belts on the conveyor, unloaded coal, moved cars, and welded. His welding was done on equipment in the field, not in the shop. There was a good deal of welding on the new construction at Glennwood. Cochran also did some welding on Glennwood equipment at Leetsdale after Nine Mile Run closed down. Cochran testified that much of the welding the last year he was employed was done by Behun, Owens, and himself, and Jack LaBryer helped when not busy on other work. Cochran testified that Green, in January 1975, men- tioned the layoffs in the coal industry, and said the Respondent was thinking of laying everyone off, and that it was not because of the Union. Cochran was injured on the job on January 15, 1975. On April 1, 1975, the insurance company told him there would be no more compensation payments and he could go back to work. He had been laid off, however, on February 27. He was never previously laid off. He testified, at a hearing on a compensation claim he brought against the Respondent in February 1976, that he could do only light work and no heavy lifting. Green maintained that all of the Respondent's welding work required heavy lifting. Weiher went to work for the Respondent in 1970 as a burner cutting up scrap on demolition work at Herrs Island. He was taught this work by the Respondent. He was laid off after about a year. Weiher was rehired as a burner on demolition work at Preble Avenue in November 1972. In January 1973 he was transferred to Nine Mile Run as a mechanic's helper and general laborer. He was tranferred in May 1975, shortly after the election, to Glennwood to work on the track unloading railcars and barges until his layoff on June 11. He testified that Nine Mile Run closed down in June. A few times while at Glennwood he helped Strangis, a mechanic, repair heavy equipment, and he received some training as a mechanic and on other work. He also shoveled coal from under the conveyor belts, drove the parts truck at Nine Mile Run, and went to the company's Squirrel Hill offices to pick up the payroll for Nine Mile Run and Glennwood employees, but, he testified, the last few months of his employment he worked for the most part as a general laborer. Weiher testified that Green told him, Robert LaBryer, Stoltz, and Trotter of their layoff at the same time, and that Green said there was no work and no indication when it would pick up, and suggested he find anotherjob. Robert LaBryer first went to work for the Respondent in July 1968 as a laborer on the track at Glennwood, quit after about a month for higher wages, returned and quit again at the end of June 1973 because a promise of higher wages was not kept, returned in August to do the same work, and was laid off on June 11, 1975. During his employment LaBryer worked at the Respondent's Preble Avenue location about a month, 3 or 4 years before his layoff, burning scrap. He testified that he also helped subsidiary of RSR Corporation. 223 NLRB 470 (1976); Masoneilan Interna- tional, Inc., 223 NLRB 965 (1976); Serv-U-Stores, Inc., 225 NLRB 37 (1976). 226 THE BUNCHER COMPANY Jackson, Rutherford, and Evans lay track at Herrs Island for a few days in about 1971 or 1972, and was sent there by Maynard, at that time a supervisor at Glennwood who was later succeeded by Burns, as there was no coal to be loaded or other work then at Glennwood. He returned to Glennwood on May 12 to work on the track. He testified that he worked basically as a laborer at Glennwood. Occasionally on Saturdays, if not busy at Glennwood, he was sent to Nine Mile Run to help shovel coal out under belts and clean up. He has helped Strangis, the mechanic, make equipment repairs, but he did not do welding, operate equipment, or possess the skills that were exercised by some of the Respondent's employees. LaBryer testified that when he was in the office in late March 1975, Green talked of the slacking down in the steel industry and in the coal supply which meant "they were going to have to make more layoffs.... they built up the new plant, with hoping to operate with fewer men . . ."; that Maynard had said this when construction began at Glennwood in or about February 1974; that the construc- tion was designed to load coal faster into two barges simultaneously instead of one at a time, and made part of the operation automatic; and that a new conveyor was in operation at the end of February 1975, but work was continuing on another conveyor when he was laid off. LaBryer testified that on June 11 he was helping Monahan on some rigging work when he was called to the office with Weiher, Stoltz, and Trotter, and that Green told them they were laid off due to lack of coal, he did not know for how long, and suggested they look for other jobs. Jack LaBryer began working for the Respondent in late 1963 or early 1964, worked at Nine Mile Run for 6 months largely on welding, and was sent to Glennwood, which was being rebuilt, to do welding for about I- 1/2 years, when he quit. He testified that he happened to meet Pasquarelli months later and said he quit because of John Monahan, that Pasquarelli said Monahan had left and asked him to return with his seniority continued, and that he returned to Nine Mile Run to do welding and maintenance repair on equipment. He was sent back to Glennwood after about 3 months, where he was engaged principally in loading barges, but also worked on the track and did other laborer work. Robert LaBryer testified that his brother was a laborer as he was, but also worked on the barges and helped on the track. Jack LaBryer testified that he also welded and repaired barges, operated and repaired certain equipment, and helped on diesel repairs. He admitted he was not a diesel mechanic, but testified that he had been an auto mechanic in the Army. After about 1972 he worked at Glennwood except that he went to Nine Mile Run once to replace Behun, who was laid off, and sometimes on Saturdays. LaBryer testified that men from other opera- tions including Leetsdale came to Glennwood at times to work on the new construction. He admitted that his welding on new construction was done under the supervi- sion of Monahan or Burns, and that Behun and Owens, who were also laid off, had done some welding. LaBryer testified that the men usually received their paychecks at noon and cashed them at the bank, but on July 18 the checks were delayed until quitting time; that Jackson was called into the office first, and then he was; that Green told him the layoff was for lack of work, there was no coal in sight, and Green had no idea when there would be any; and that he was never before laid off. LaBryer admitted that Glennwood was not getting much coal in July, that he was doing maintenance work on the dock because not many barges were being loaded, and that there was a slowdown in the work about a week or so before his layoff. Jackson began work for the Respondent in February 1959 as a laborer at Nine Mile Run. Rutherford began in 1956 as a laborer at Leetsdale, where he helped on the building there, and, after about 7 months, went to Nine Mile Run as a laborer. He was laid off after about 2 years because work was slow, but was called back in a few days to work as a laborer at Leetsdale, and after a few months was sent back to Nine Mile Run. He was there about a year when he and Jackson were laid off in 1960. Both were reinstated in 1962, pursuant to Board order, to jobs at Leetsdale as laborers. After his reinstatement, Jackson was moved around to Carson Street, Corralis, Herrs Island, Nine Mile Run, and Glennwood, and was at Nine Mile Run and Glennwood an equal amount of time from about 1970 to 1975 except for 2 days at Leetsdale. He was at Glennwood from May 1975, working as a laborer on barges and railway tracks until Friday, July 18. On that date he was called to the office to see Green, who gave him 3 checks for his pay, "pay in the hole," and vacation pay, and said Jackson was a good worker but had to be laid off for lack of coal. Rutherford after his reinstatement worked at Leetsdale as a laborer about 8 years. He ran the highlift and the forklift, unloaded barges, rolled pipe, and dug ditches. Since 1970 he spent most of his time at Nine Mile Run. He was at Glennwood for a year, worked as a laborer on the construction of a Heinz warehouse on Carson Street for a few months, and occasionally at other locations for periods of a few days. He was at Nine Mile Run for 3 or 4 weeks after the Board election, and was sent back to Glennwood in or about late April until July 18. He was changing clothes that day when he was told to see Green, who gave him his checks and said he was being laid off for lack of work and should look for another job as Green did not think he would be recalled. Both Jackson and Rutherford were recalled to work, Jackson on October 31 and Rutherford in late November 1975. Since their recall, Jackson has worked on the barges and track at Glennwood, and Rutherford has unloaded coal cars, sometimes helped on barges, and helped on dock repair and other maintenance work at Glennwood that did not include work on motors. Both Jackson and Rutherford are sent to Nine Mile Run at times to help tear down a plant. Jackson testified that Pasquarelli said when assign- ing this work that the plant would no longer be operated, and that he heard that Nine Mile Run stopped operating, and Rutherford testified that work at Nine Mile Run stopped in late April or early May, and that he and other men were transferred about that time to Glennwood. Jackson testified there was less coal at Glennwood for a month or so before the layoff, that the operation went from 89 to 3 or 4 barges a day, and that at times they were doing only maintenance work as was the situation at the time of 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hearing. He also testified that no new equipment has been installed at Glennwood since Jack LaBryer's layoff; that when new winches of about 6 feet were installed, an operation that took months, he and Rutherford did the laborer work while Monahan did the installation, Burns operated the crane, and Redding and Shurick did the electrical work. Rutherford testified that, on the Monday before the hearing herein, only he, Evans, Bums, and Strangis were working at Nine Mile Run, he and Evans tearing down a plant, Burns running a crane and taking apart a conveyor, and Strangis working on the engine of a water truck, and that some weeks they did only maintenance work. Both Jackson and Rutherford admitted they did not have the skills of certain other employees but occasionally assisted them, that they worked as laborers, and that the other complainants herein did also. Moreover, the testimo- ny of the complainants shows that, while some of the individuals who were retained worked at times as laborers, they also possessed and exercised various skills, that Monahan was in charge of installation of new equipment, laid out the work, took care of the blueprints, did rigging, and gave directions to the crane operator; that Bums was a foreman and crane operator who worked at Glennwood and, in the past year, was at Nine Mile Run to help in taking down the conveyors and to run the highlift; that Evans was a maintenance man at Nine Mile Run who came to Glennwood to install and repair belts, on which both Jackson and Rutherford had assisted him, and laggings on which Jackson and both LaBryers had assisted; that Madonna operated the highlift and other equipment; that Parham operated a power shovel at Nine Mile Run and a barge puller at Glennwood; that Redding did the electrical work assisted by Shurick, also an electrician; that McDonough was an equipment operator; and that Strangis was a mechanic. The Respondent put in evidence a great deal of testimony and documentary evidence as to the economic causes of the layoffs here in issue. Shipments of coal to the Glennwood coal dock, engaged primarily in transferring coal from railroad hopper cars to river barges with conveyors and other equipment, had been sharply reduced with no foreseeable resumption at the previous level, and the Nine Mile Run operation has been dormant except for dismantling of equipment since its only customer, Jones & Laughlin, directed the Respondent to stop shipping metal as the Pittsburgh works were to be closed in June 1975, and shipments later resumed at a greatly reduced level. Much of the equipment at both sites was "put in mothballs." The Respondent at present has no scrap operations, and did no demolition work in 1975. Some of the complainants testified they were aware of the curtailment of operations, and Green announced the layoff of Cochran and others at the representation case hearing and on various other occasions. The General Counsel has conceded that there was economic justification for a layoff, but maintains that the selections of employees for layoff were discriminatorily motivated. 7 Pasquarelli underwent brain surgery, and Madonna fractured his ankle at work, but they were not replaced. The General Counsel established the Respondent's knowledge of the union organizing activities and its union animus as set forth above. In addition, while the Respon- dent admitted that seniority was a consideration in selecting employees for layoff, some of those laid off were senior by many years to others who were retained. The Respondent's witnesses testified, however, that, while seniority was a factor, the principal consideration was to retain in the small remaining complement the individuals who were most skilled, who could perform the laborer work at both sites as well as the more skilled operations that might at times be necessary, and whose skills would be needed if Glennwood or Nine Mile Run resumed opera- tions; that those retained were willing to perform the laborer work, and did so, but were able also to perform operations that those laid off could not do; and that Nine Mile Run was virtually closed down, and the Glennwood dock was closed down completely for the first time in 15 years and would be closed down for an indefinite time, so that the employees retained could be given a week's work only if able to perform various operations working part of each week at Nine Mile Run and at Glennwood. The Respondent also maintained that there was no longer work for those laid off at other operations where they had on occasion been employed. The work at those sites involved site preparation which was completed, scrap yards which were phased out, constructing buildings which have been completed and leased, and other operations that have been completed or on which, where the Respondent was still operating, it had a full crew of workers or was completing work with subcontractors as had been its practice on the work involved. There is occasionally electrical work to be done in the buildings, which Redding and Shurick do, but no laborer work that the employees laid off could perform. The Respondent also asserted at the hearing that, just as it recalled Jackson and Rutherford to work when there was a need for their services, it would recall others who were laid off when and if there is work for them. It made no contention that any of them were laid off for work deficiencies, and, in fact, admitted some were exceptionally good workers. The record shows that no new employees have been hired since the layoffs, not even as temporary replacements for individuals who have been unable to work for periods of time because of illness or injuries.7 The Respondent has in 1974 and once in 1976 engaged personnel through a Manpower agency, but Green testified that this was done at the request of a customer occupying warehouse space leased by the Respondent, who specified Manpower personnel for the work in question, and this personnel could perform work that the laidoff employees could not. Moreover, the record shows that a number of employees other than the complainants were laid off, some before the complainants were, and some who were more active in union organizing than the complainants, that employees had been on notice for some time that layoffs would be made, and that the Respondent has on previous occasions laid off employees for lack of work. 228 THE BUNCHER COMPANY With respect to the qualifications of the individuals retained, Green's testimony shows as follows: Pasquarelli had been for a long time the superintendent of both operations with an office at each one. After the layoffs and the decrease in work at Nine Mile Run, he was based at Glennwood. Burns was a foreman in charge at Glennwood under Pasquarelli. Burns, who is also a master mechanic who can maintain and operate all the equipment, has since the layoffs been reduced to a rank-and-file employee, and operates a crane. John Monahan is a master rigger, master welder, and steel layout man, who has been with the Respondent since about 1949. He receives requests to install equipment at sites all over the world, and on several occasions over the years has taken time off from his work for the Respondent to do so. Jack LaBryer could weld, but not with the same skill as Monahan or do other work Monahan did. LaBryer also worked on maintenance, but only as a helper to Pasquarelli, Evans, Burns, or Monahan. Redding, a registered electrician who has been employed since August 1972, does all kinds of electrical work at the Respondent's various locations. He is assisted by Shurick, who was hired in May 1973 on Redding's recommenda- tion, and does electrical work although not a registered electrician. Both have done some laborer work since the layoffs. Strangis, who was hired in July 1974, was trained in Italy and speaks little English, but he is a qualified motor and diesel mechanic at Nine Mile Run, where much of the equipment is diesel-powered. Since the layoffs he has worked on the mothballing of equipment, repairs mechani- cal equipment at various locations, and has done some laborer work. Madonna, who began working for the Respondent in March 1962, operated the highlift, the dragline crane, and the shovel, for the most part at Nine Mile Run, but since June 1975 has been doing principally laborer work at Glennwood. Weiher, who was being trained as a mechan- ic's helper, had assisted Strangis at times, drove the truck on errands for the superintendent, and performed other duties at various locations, but never operated the highlift, shovel, or crane, or worked as a diesel mechanic. Jackson had operated the highlift in Madonna's absence, but not with the same skill as Madonna did in operations such as road grading, and Jackson never operated other equipment that Madonna operated. Parham, who has been working for the Respondent since 1951, operated at times all the power equipment at both locations, which none of the laidoff men could do. He operated the conveyors and the shovel, and has been doing laborer work since the layoffs. Jack LaBryer operated the conveyors for a brief period, but never the shovel. Evans, who began working for the Respondent in 1961 as a skilled mechanic, is a highly specialized maintenance mechanic on conveyor equipment, who also does installa- tion, maintenance, and field welding, operates the highlift, serves at times as a leadman on a major repair job, and does laborer work. Jack LaBryer, a laborer who spent most of his time moving barges up and down the river, did other kinds of work also, including some maintenance and welding, as did Behun and others who were laid off. He also helped Evans at times on conveyor belt maintenance, on which he did the manual labor while Evans did the skilled work; but he was not a crane operator and lacked other skills that those who were retained possessed and exercised. Edington was hired in June 1974. He worked at Nine Mile Run, was a unit employee who voted in the election, and was transferred in June 1975 to the warehouse operation built at Leetsdale about 3 years ago. He is a young man who had some warehouse experience before being hired, came to the Respondent because he wanted a better job than he had, but was willing to start as a laborer to learn the business, and worked as a laborer at Nine Mile Run while learning clerical work from Pasquarelli. He was sent to Leetsdale to train under office manager Byers so he could be a backup for Byers and be trained as a warehouse foreman. He also worked as a laborer, worked in the warehouse and in the office, and ran the pickup truck on trips to customers and to deliver interoffice mail. An attempt had been made to train some of the laidoff employees in clerical work but they were unable to perform such work satisfactorily. Weiher ran the pickup truck while at Nine Mile Run, but did not perform any clerical duties. Concluding Findings As set forth above, I have found that the record establishes the Respondent's knowledge of, and active opposition to, the union organizing drive, and its attempts by unlawful acts and statements to discourage employees from voting for the Union in the Board election. The credible testimony presented by the General Counsel also casts some doubt on the bases for the Respondent's layoff selections. The Respondent asserted that seniority was a factor, but laid off some senior employees before it laid off other employees who had less seniority, and laid off some with far more years of service than others who were retained. Furthermore, Green and Buncher indicated in a few instances that certain laid off employees had less, and certain retained employees had more, seniority than was shown by company records to be the fact. There is also evidence that indicates the Respondent might have been able to furnish occasional work to the laidoff employees at some of its job locations. On the other hand, the economic data presented by the Respondent shows that a substantial personnel reduction was warranted. Moreover, the Respondent explained why it utilized Manpower, subcontractors, and other personnel sources after the layoffs. It also showed that work at its two locations herein involved, Nine Mile Run and Glennwood, was considerably reduced at the time of the layoffs, with the economic factors indicating that the reduced need for personnel would continue. Moreover, the record shows that the Respondent laid off a number of employees who were not included in the complaint, including some who were active in initiating the union organizing campaign and some who were named in the Union's charges, and that it laid off one of the complainants, Cochran, before the election, and the other five complainants months after the election. In addition, the Respondent showed, as the principal basis for its selections, that those retained had abilities, 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD skills, experience, or potentials that made them of particu- lar value in carrying on the Respondent's existing opera- tions with a reduced complement of employees. It is true, as the General Counsel argues, that those retained have since the layoffs spent much of their time doing laborer work which those laid off were qualified to perform. I am not convinced, however, from the record in its entirety, that the Respondent selected the employees to be laid off because of their union membership or activities, and selected those to be retained because they refrained from membership in or activities on behalf of the Union rather than, as it maintained, because they had skills which the operations at times required and which the laidoff employees did not have. I find, therefore, that the General Counsel has not established that the reasons given by the Respondent for the layoff selections were pretextual, nor shown by a preponderance of the credible and probative evidence that the complainants were laid off because of their membership in and activities on behalf of the Union and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection and in order to discourage membership in the Union.8 I shall therefore recommend dismissal of the allegations of the complaint that the Respondent, by these layoffs, violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(I) of the Act, I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from in any like or related manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: 8 See Nutmeg Coal Company, Inc., 224 NLRB 1098 (1976); Bromine Division, Drug Research, Inc., 224 NLRB 1275 (1976); Parts, Jobbers, Warehouse, Inc., 224 NLRB 1511 (1976); East Bay Newspapers, Inc., d/b/a Contra Costa Times, 225 NLRB 1148 (1976). 9 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 CONCLUSIONS OF LAW 1. The Respondent, The Buncher Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their membership in and activities on behalf of the Union, promising employees employment benefits to discourage membership in and activities on behalf of the Union, and threatening employees with discharge, layoff, or other reprisals if the employees designated the Union as their collective-bargaining representative, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(aX 1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent, as alleged in the amended consolidated complaint, laid off six employees discriminatorily in violation of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 The Respondent, The Buncher Company, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from coercively interrogating employees concerning their union membership and activi- ties, promising employees employment benefits to discour- age union membership and activities, threatening employ- ees with discharge, layoff, or other reprisals if the employees designate United Mine Workers as their collective-bargaining representative, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its premises at Nine Mile Run and Glenn- wood Coal Docks copies of the attached notice marked "Appendix."l Copies of the notice, on forms provided by the Regional Director for Region 6, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 'o In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 230 THE BUNCHER COMPANY the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the amended consolidated complaint be dismissed insofar as it alleges that the Respondent laid off six employees in violation of Section 8(a)(3) and (I) of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we, The Buncher Company, violated the National Labor Relations Act, and has ordered us to post this notice and to keep the promises that we make in this notice. WE WILL NOT coercively interrogate employees concerning union membership and activities, promise employees employment benefits to discourage union membership and activities, threaten employees with discharge, layoff, or other reprisals if the employees designate United Mine Workers as their collective- bargaining representative, or in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act. THE BUNCHER COMPANY 231