Sunshine Piping, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 90 1186 Sunshine Piping, Inc. and United Association of Jour- neymen & Apprentices of the Plumbing & Pipe- fitting Industry of the U.S. & Canada, AFL– CIO, Local Number 366. Case 15–CA–16530 September 10, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On November 1, 2002, Administrative Law Judge George Carson II issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Re- spondent filed a reply brief. The General Counsel filed cross-exceptions and a supporting brief, and the Respon- dent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions and briefs and has decided to af- firm the judge’s rulings, findings,1 and conclusions as modified and to adopt the judge’s recommended Order as modified and set forth in full below.2 We find merit in the Respondent’s exception to the judge’s finding that the Respondent’s foreman, Steve Phelps, during a conversation with employees Joey Ka- del and Mike Pikula in March 2002,3 created the impres- sion that employees’ union activities were under surveil- lance. On March 20, Kadel and employee John Martin solic- ited employees and obtained signatures on authorization cards during the lunchbreak. The next morning, as em- ployees arrived at work, Kadel and Martin, who were wearing “UA Organizing Committee” pins, continued their open solicitation of authorization cards in the Re- spondent’s parking lot. Later that day, Phelps told Kadel and Pikula that he had just met with the Respondent’s president, Jim Scott, who had asked whether Phelps 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us they are incorrect. Stan- dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The judge found, and we agree, that the Respondent violated Sec. 8(a)(1) by verbally counseling or warning employee Steve Folmer (spelled in the record variously as “Folmer” and “Folmar”) for wearing union insignia. However, the judge inadvertently omitted the remedy for this violation from his recommended Order. The judge also omitted from the notice a provision corresponding to his finding, which we affirm, that the Respondent unlawfully laid off five employees on March 22, 2002, and discriminatorily failed to recall two of those em- ployees from layoff. We will modify the recommended Order and substitute a new notice to conform to the violations found. 3 All dates are 2002 unless otherwise noted. knew if the employees “had been to the union hall.”4 Phelps told Kadel and Pikula that he told Scott the em- ployees had been to the union hall and that “about 80 percent of the shop” had signed authorization cards. “The shop” consisted of 65 to 70 employees. The judge found that the first part of Phelps’s state- ment—that employees had been to the union hall—was innocuous because the Respondent “could reasonably assume that Kadel had been to the union hall since he was wearing a UA Organizing Committee pin.” As to the remainder of Phelps’s statement, however, the judge found otherwise. Citing United Charter Service, 306 NLRB 150, 151 (1992), the judge found that the state- ment that 80 percent of the shop had signed cards rea- sonably suggested that the Respondent was closely moni- toring employees’ union activity and thus unlawfully created an impression of surveillance. We agree with the judge that the “union hall” portion of Phelps’s statement did not create an impression of surveillance. However, we find, contrary to the judge, that the “80 percent” portion of the statement is equally insufficient to support that allegation. United Charter Service, supra, cited by the judge, is distinguishable. There, employees’ union activities were primarily con- ducted off the respondent’s premises, and the respon- dent’s statements revealed detailed knowledge of those activities, including knowledge of specific topics dis- cussed at organizational meetings and the content of an employee petition that the respondent did not show it had obtained lawfully. In this case, by contrast, the employ- ees’ card solicitation activities were conducted openly on the Respondent’s premises during or immediately before the start of the workday. Although Phelps’s “80 percent” statement indicated that the Respondent was aware of the evident success of the employees’ openly conducted card drive, the statement also reasonably suggested that the Respondent had observed this open activity on its prop- erty. The Respondent merely noted that about four-fifths of the 65–70 shop employees had signed cards, rather than suggesting to them, as the Board found in United Charter Service, that the respondent “was closely moni- toring the degree and extent of [the employees’] organiz- ing efforts and activities.” Id. Thus, under the circum- stances, we find that employees would not reasonably conclude from Phelps’s “80 percent” statement that their protected activity had been placed under surveillance. See, e.g., Michigan Roads Maintenance Co., 344 NLRB 617 at fn. 4 (2005) (dismissing impression-of- surveillance allegation where employer’s statement re- 4 Scott’s question followed his receipt of a phone call advising him that employees were engaged in union activity, as well as several days of open union activity on the Respondent’s premises. SUNSHINE PIPING, INC. 1187 vealed awareness of employee’s open union activity on employer’s property). Accordingly, we reverse the judge’s unfair labor practice finding and dismiss this allegation of the complaint. ORDER The National Labor Relations Board orders that the Respondent, Sunshine Piping, Inc., Panama City, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with plant closure if they select a union. (b) Informing employees that they would not be hired if it were suspected that they would engage in union ac- tivity. (c) Informing employees that employees had been ter- minated for engaging in union activities. (d) Threatening to lay off or otherwise separate em- ployees for engaging in union activities. (e) Overbroadly applying a no-solicitation rule to pro- hibit employees from wearing union logos or insignia on their clothing. (f) Warning, counseling, or otherwise disciplining em- ployees for wearing union logos or insignia on their clothing. (g) Restricting employees from discussing unions. (h) Coercively interrogating employees regarding their union membership. (i) Informing employees that they would be laid off because of the union activities of other employees. (j) Informing employees that they were going to be laid off because of their union activities. (k) Laying off, failing to recall, or otherwise discrimi- nating against any employee for engaging in activities on behalf of or otherwise supporting United Association of Journeymen & Apprentices of the Plumbing & Pipefit- ting Industry of the U.S. & Canada, AFL–CIO, Local Number 366, or any other union. (l) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawful verbal warning issued to Steve Folmer on March 8, 2002. (b) Within 14 days from the date of this Order, remove from its files any reference to the unlawful warning is- sued to Steve Folmer, and within 3 days thereafter notify the employee in writing that this has been done and that the warning will not be used against him in any way. (c) Within 14 days from the date of this Order, offer John Martin and Scott Pooser full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. (d) Make John Martin, Scott Pooser, Charles Carlton, Jack Black, and Reid Evans whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against them in the manner set forth in the remedy section of the judge’s decision. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoffs, and within 3 days thereafter notify the employees in writing that this has been done and that the layoffs will not be used against them in any way. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its facilities in Panama City, Florida, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since November 15, 2001. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188 (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. MEMBER LIEBMAN, dissenting in part. I agree with the judge’s conclusion that Phelps’ state- ment “reasonably suggested . . . that the Respondent was closely monitoring the degree and extent of [the employ- ees’] organizing activities.” United Charter Service, 306 NLRB 150, 151 (1992).1 Phelps told Kadel and Pikula that he had told the Respondent’s president not only that employees were organizing, but that 80 percent of them had signed union cards. By professing to have precise, quantified knowledge of the percentage of employees who supported the Union, Phelps certainly suggested to Kadel and Pikula a sustained, close-range observation of their union activities, or else that he had an inside source. Either way, his statement would reasonably have led employees to believe that their organizing activities were under rigorous surveillance. As in United Charter Ser- vice, where the respondent named particular items that were listed on the employees’ union petition, Phelps’ statement “went into detail about the extent of [organiz- ing] activities.” Id. I disagree that United Charter Service is distinguish- able because there the employees’ union activities were primarily conducted off of the employer’s premises. As the Board stated, “even if it were common knowledge that the employees were attempting to organize, [the Re- spondent’s] comments went beyond permissible limits” by communicating a detailed knowledge of their union activity. Id. Similarly, Phelps’ 80-percent statement intimated more than casual observation of open union activity. Rather, it suggested (and surely was intended to suggest) a close and sustained scrutiny, reasonably con- veying the impression that their union activities were under surveillance. I would also find the majority’s reli- ance on Michigan Roads Maintenance Co., 344 NLRB 617 at fn. 4 (2005), misplaced. In that case the employer merely conveyed its general knowledge that the union had placed flyers on employees’ cars in the parking lot, and not detailed knowledge about the extent of its em- ployees’ union activities. APPENDIX NOTICE TO EMPLOYEES 1 I agree with the majority opinion in all other respects. POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten you with plant closure if you se- lect a union as your collective-bargaining representative. WE WILL NOT inform you that you will not be hired if we suspect that you will engage in union activity. WE WILL NOT inform you that employees have been terminated for engaging in union activity. WE WILL NOT threaten you with layoff or other separa- tion from employment for engaging in union activity on behalf of United Association of Journeymen & Appren- tices of the Plumbing & Pipefitting Industry of the U.S. & Canada, AFL–CIO, Local Number 366 (the Union), or any other union. WE WILL NOT prohibit you from displaying union logos or insignia on your personal attire. WE WILL NOT warn, counsel, or otherwise discipline you for wearing union logos or insignia on your clothing. WE WILL NOT restrict you from discussing unions. WE WILL NOT coercively interrogate you concerning your union membership. WE WILL NOT inform you that you are to be laid off be- cause of the union activities of your fellow employees. WE WILL NOT inform you that you are to be laid off be- cause of your union activities. WE WILL NOT lay you off, fail to recall you, or other- wise discriminate against you for engaging in activities on behalf of or otherwise supporting the Union or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL rescind the unlawful verbal warning issued to Steve Folmer on March 8, 2002. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful verbal warning given to Steve Folmer, and WE WILL, within 3 days thereafter, notify him in writing that this SUNSHINE PIPING, INC. 1189 has been done and that the warning will not be used against him in any way. WE WILL, within 14 days from the date of the Board’s Order, offer John Martin and Scott Pooser full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make John Martin, Scott Pooser, Charles Carlton, Jack Black, and Reid Evans whole for any loss of earnings and other benefits resulting from their unlaw- ful layoff, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful layoffs of John Martin, Scott Pooser, Charles Carlton, Jack Black, and Reid Evans, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the layoffs will not be used against them in any way. SUNSHINE PIPING, INC. Charles R. Rogers and Kevin McClue, Esqs., for the General Counsel. Tony B. Griffin and Brett P. Ruzzo, Esqs., for the Respondent. Joseph Egan, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE GEORGE CARSON II, Administrative Law Judge. This case was tried in Panama City, Florida, on August 26, 27, and 28, 2002. The charge was filed on March 29, 2002, and was amended on April 11 and May 23, 2002.1 The complaint issued on May 31, and a corrected amendment to that complaint issued on June 14. The complaint, as amended, alleges several viola- tions of Section 8(a)(1) of the National Labor Relations Act (the Act), the layoff of 19 employees on March 21 and 22 in violation of Section 8(a)(3) of the Act, and failure to recall two of those employees. The Respondent’s answer denies any viola- tion of the Act. I find that the Respondent did violate Section 8(a)(1) of the Act substantially as alleged in the complaint, that the layoffs that occurred on March 21 were lawful, but that the additional layoffs that occurred on March 22 and the failure to recall two of the employees laid off that day violated the Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Respondent, Sunshine Piping, Inc. (the Company) is a corporation engaged in the fabrication of pipe assemblies at its facilities near Panama City, Florida, where it annually pur- 1 All dates are in 2002, unless otherwise indicated. chases and receives goods valued in excess of $50,000 directly from points outside the State of Florida. The Respondent ad- mits, and I find and conclude, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits, and I find and conclude, that United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the U.S. & Canada, AFL–CIO, Local Number 366 (the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background The Company was founded in 1990 by Jim Scott, a welder and former member of the Union. Scott is president and owner. The Company purchases stainless steel and carbon pipe and fittings that it fabricates into piping systems for powerhouses. This specialized work experienced a significant decline follow- ing the catastrophic events at the World Trade Center on Sep- tember 11, 2001, and the collapse of Enron Corporation, which was heavily involved in the utilities industry. The production process at the Company is carried out by 65 to 70 employees in three facilities, a small building where pipe is sandblasted prior to fabrication, the main facility where fab- rication and welding occurs, and a third building referred to as the new building. The plant offices are attached to the fabrica- tion facility. Carbon pipe assemblies are also finished in this building. Stainless steel assemblies are finished in the new building which also contains a warehouse where assemblies are stored prior to shipment. Initial construction of the pipe assemblies is performed by a team consisting of a welder and a fitter who work at tables. The Company has nine tables but generally operates only seven or eight. The assemblies are constructed in accord with shop sketches that are made from blueprints. After the fitter makes a connection, the table welder makes a “root pass” and a “hot pass” to hold the pipe in place. The finished welds are made by other welders in an area referred to as the weldout or rollout area. In this area, the assemblies are placed in vises on ma- chines referred to as rollers that rotate the pipe, hence the term rollout area. By using the roller machines, the finishing welders can remain in one position while completing the welding proc- ess as the machine turns the pipe. Final welds are approved by quality control. The fitting and welding operation is designated as building trades work. The assemblies are then sent to the appropriate metal trades area, depending upon whether the assembly is made of carbon steel or stainless steel, where the assemblies are finished by cleaning and polishing them, and in the case of carbon steel by painting, prior to shipment. Despite President Scott’s prior union membership, the Com- pany is nonunion. After beginning operations in 1990, Scott and Union Business Agent Gregg Boggs discussed operating the Company as a union shop, but the discussions were not fruitful. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190 2. The Company’s opposition to union activity Following the unfruitful discussions between Scott and Boggs, Scott became further disenchanted with the Union. He felt that the welding teacher at the local vocational school, a member of the Union, was sending his trained students to “other jobs rather than mine because I was nonunion [and] because he and Mr. Boggs are good friends.” Scott’s animosity was not a secret. When employee Charles Carlton terminated his union membership in order to save his dues money, his father suggested that he inform Scott that he had done so. Employee Scott Pooser worked at the Company on four separate occasions, most recently from August 22, 2000, until March 22. In late October or early November, 2001, about 5 months before the layoffs in March, Pooser was on the way to a break when he encountered President Scott. Pooser initiated a conversation, asking whether Scott remembered his uncle, James Linton. Scott replied that he did, that he and Linton had worked together building a nuclear plant and had worked to- gether in the Pipefitters Union. Pooser asked how Scott felt about the Union and he replied that “it was good back then but he really wasn’t for it now.” Scott continued, stating that the Company could not come to an agreement with the Union and, “basically,” that he “would close the plant before he would let the Union come in.” Scott explained the foregoing statement by pointing out that the equipment, “millions of dollars of stuff,” was all “his equipment” and he “didn’t want anybody to tell him what to do with it, how to run his business.” Scott did not deny the foregoing conversation. In January, the Company hired welder Robert Huggins. Foreman Steve Phelps conducted an orientation for Huggins. In the course of that orientation, Phelps informed Huggins that “Mr. Scott did not like unions and not to mention it around him.” Phelps then asked Huggins if he was a union member, and Huggins answered that he was not. Huggins testified that his answer was truthful, that he was not a member at the time he replied to Phelps. Phelps denied the foregoing comments and asserted that Huggins volunteered that he was not a union member; however he gave no context in which this purportedly volunteered in- formation was given. I find it simply unbelievable that a new employee, during his orientation, would deny membership in a union without being asked or prompted. I credit Huggins. After being advised by his father that it “might be a good idea” to let President Scott know that “I had dropped my book with the Union,” Carlton did so in early March. Speaking alone with Scott in a corner of the plant, Carton told Scott that he knew that Scott had been aware that he had been in the Union, but that he had dropped his book. Carlton testified that he could not remember what was said at that point, but he acknowledged that he had given an affidavit in which he had stated that Scott responded that he did know that, but that he “didn’t think you [Carlton] would start anything in the shop because if you would have, I wouldn’t have hired you.” The conversation continued and Scott stated, “I built this shop and I am not going to allow somebody to come into my shop,” and that he would “shut the doors to the shop before I will allow someone else to come into this shop and tell me how to run it.” Scott’s affidavit states that Scott said he would “shut the doors before I go union.” Al- though acknowledging that his affidavit was correct at the time he gave it, Carlton testified that he “may have made a mistake” and that, upon reflection, believed that Scott said, “someone else” rather than “union.” Accepting Carlton’s recollection, his attribution of the word “union” to Scott in his affidavit is per- fectly understandable since the only “somebody else” men- tioned was the Union. Following Scott’s “shut the doors” comment, Carlton’s affi- davit reports that Scott stated that “Wewa [the nickname of former employee Kenneth W. Armstrong] and his wife had tried to organize a union, and I fired them for it.” The affidavit states that Scott continued, explaining that he had “learned his lesson” regarding firing, that he could “lay them [employees] off or promote them up to management and then fire them.” Carlton testified that he did not recall making the statement regarding Scott’s reference to Wewa and his wife, “I guess it has slipped my eyes whenever I read over it,” and that he did not know who Wewa was until he met him at this hearing, im- plying that he would not have used his name in a statement. Regarding the reference to laying off employees rather than firing them, Carlton asserted that he believed that “I was the one that was . . . trying to explain something to him . . . that I had seen happen.” He testified that he believed that Scott re- plied that “he knew about it already.” Carlton’s affidavit reports Scott’s statement to him, thus his denial of knowing Wewa compels the conclusion that he accu- rately reported what Scott said even though he did not know the employee to whom Scott referred. I do not credit Carlton’s testimony that the reference to Wewa “slipped [his] eyes” or that he, an employee, was “trying to explain” to Scott, the plant owner, how to separate prounion employees. I find, consistent with the unequivocal statement in Carlton’s affidavit, that Scott referred to Wewa, learning his lesson, and laying off rather than firing employees. See Alvin J. Bart & Co., 236 NLRB 242 (1978). Carlton had, on the advice of his father, assured Scott that he was nonunion. Scott’s undenied remarks followed. 3. Employee union activity In late February, employee Joey Kadel spoke with Business Agent Boggs regarding obtaining union membership and refer- rals to union jobs. Boggs engaged him in conversation regard- ing conditions at the Company and suggested “bringing in a union” at the Company. Thereafter, on March 19, Kadel and employee John Martin met with Boggs, who provided them with union stickers and authorization cards. On March 20, during the lunchbreak, Kadel and Martin be- gan speaking with employees and getting cards signed. They requested that employees come to a meeting at a convenience store located across the highway from the plant after work. Foreman Phelps observed the meeting when he stopped by the store to make a purchase. There is no allegation regarding this innocent encounter. On the evening of March 20, Scott received a telephone call from an employee advising him of the union activity at the plant. On the morning of March 21, Kadel came to the plant about 6 a.m., and Martin came soon thereafter. Both Kadel and Mar- tin were wearing pins on their shirt pockets that stated, “UA Organizing Committee.” They began soliciting union authoriza- SUNSHINE PIPING, INC. 1191 tion cards from their fellow employees as they arrived at work. Both testified that Scott and Quality Assurance Manager Jerry Nichols observed them as they were doing this. Nichols ac- knowledges that he did stop and look when he saw an unusual gathering of employees in the parking lot. He explained that he was unaware of what was occurring, but that Scott arrived and explained that he had heard there might be some union activity at the plant and that they should “leave them alone.” When employee Scott Pooser arrived in the parking lot, Ka- del and Martin asked him if he would be willing to sign a union authorization card. Pooser replied that he would, and he did so. They then asked if he would wear a union pin, and he agreed to do so. The pin said, “UA Organizing Committee,” and Pooser placed it on his shirt pocket. As Pooser was talking with Kadel and Martin, he noticed Scott at the back door of the plant. Kadel, Martin, and Pooser walked into the plant together and clocked in. Scott was standing about 10 feet from the timeclock when they did so and observed each of them. All three were wearing the “UA Organizing Committee” pins. During the day on March 21, Foreman Phelps commented to Kadel several times that he should not take off his union button “no matter what, even if Mr. Scott asks you to. Leave your button on.” Kadel replied that he would. Shortly before the layoff, Phelps told Kadel and his fitter, Mike Pikula, that he had just met with Scott who had asked whether Phelps knew if the employees had been to the union hall. Phelps informed Kadel and Pikula that he told Scott that the employees had been to the union hall and “had about 80 percent of the shop signed up on the cards.” Phelps told employee Pooser, on March 21, not to take off his union pin or he could be fired outright. On the following day, March 22, Phelps informed Pooser, who had not been laid off on March 21, that it “really doesn’t matter, he’s going to get rid of everybody anyway.” Pooser responded that he thought that Scott “could not fire us if we were wearing the pin.” Phelps replied, “[He] is just going to lay everybody off.” On March 23, after the layoffs, employee Martin spoke with Phelps by telephone. Phelps and Martin are personal friends. Phelps informed Martin that Scott had heard about the employ- ees’ union activity the day before the first layoff and that, if the employees had not “had our union pins on, Jim Scott was going to terminate us that morning.” Employee Robert Huggins was approached by Foreman Phelps shortly before the layoff on March 21. Phelps stated that he had “to lay a bunch of people off so he can get rid of a cou- ple of troublemakers.” He mentioned Joey Kadel. He told Hug- gins to “take a week off,” that he had his telephone number and would call him back. Huggins further testified that he placed a union sticker on his welding hood prior to the layoff, but that he did not remember when he did so. I find it unlikely that Phelps would have mentioned laying off troublemakers to Huggins if he had been wearing the sticker. Thus, I find that Huggins put it on after that conversation. Phelps was asked about, and denied, informing Huggins that “Scott was going to get rid of a bunch of people to make it look like he [wasn’t] singling out anybody.” He was not asked about, and did not deny, the “troublemakers” comment to which Huggins testified. Phelps was asked and specifically denied making the “get rid of everybody anyway” comment to Huggins rather than Pooser. He generally denied any conversa- tion with Pooser. Phelps did not deny his March 23 telephone conversation with Martin. He was asked whether he told Martin that “Scott had planned to fire them the next day,” not that, if the employees had not “had . . . union pins on,” that Scott was going to terminate them that morning, i.e., the morning of March 21. Phelps answered, “On March 20? No, sir.” Phelps then denied that Scott had said anything about firing employees “on March 20.” He did not deny what he told Martin. Phelps denied making any comment to Kadel about employees signing cards or that he told Kadel not to remove his union pin. I need not speculate whether the specific phrasing of the questions as asked of, and denied by, Phelps was by accident or design. I do not credit either his general or specific denials. The testimony of the employees was clear, convincing, and credible. The testimony of Phelps was not, and I was not impressed by his demeanor. I credit the testimony of the employees regarding their various conversations with Phelps. 4. The layoffs President Scott testified that the disruption in the economy following September 11 and the collapse of Enron resulted in decreased orders from the Company’s chief customer, Siemens Westinghouse Power Corporation. The Company introduced documentary evidence reflecting orders that it had received, the projected number of man hours of work necessary to perform the work, and the remaining number of hours necessary to complete the orders that had been received. The foregoing documents were produced in hard copy from databases main- tained on the Company’s computer system. I received this evi- dence after obtaining the Company’s commitment to provide access to its actual computer databases to counsel for the Gen- eral Counsel and counsel for the Charging Party upon request. The page in Respondent’s Exhibit 29 for February 20 shows that, as of February 20, the Company had only 704 hours of work remaining in Building Trades to complete all February orders, had only 445 hours of work remaining to complete the March orders that had been received, and had completed almost 50 percent of April orders that had been received. On February 25, the plant went from 10 hour to 8 hour work- days. Despite the decrease in working hours, as of March 20, the page in Respondent’s Exhibit 29 for March 20 shows that, on March 20, the Company had 632 hours of work remaining in Building Trades to complete all March orders, 1018 hours of work remaining to complete all April orders, and had com- pleted 35 percent of all May orders that had been received. By comparison, after the curtailment in production due to the layoff in March, the page in Respondent’s Exhibit 30 for May 20, shortly before employees were recalled to begin work on June 3, shows that Building Trades had 988 hours of work re- maining to complete all May orders and 1740 hours of work remaining to complete all June orders. Only 15 percent of all July orders had been completed. Shipping clerk Ferol Jordan confirmed that pipe assemblies were being produced well prior to their scheduled shipping dates and that she was unable to get releases to ship the assem- blies sooner than scheduled. She explained that the Company DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192 could not ship “so much in advance,” noting that, in some cases, the jobsite to which the assemblies were to be shipped did not open “until a certain date.” Thus, “we just had to keep stacking it close to each other and on top of each other” in the warehouse. Scott’s uncontradicted testimony establishes that, although the Company had occasionally subcontracted work in the past, no work was subcontracted in 2002. Representatives of two vendors that supply pipes and fittings, the material from which the Company’s piping assemblies are constructed, testified to decreased orders by the Company. Scott testified that, at a meeting with Building Trades em- ployees on March 7, he mentioned that a layoff was a possibil- ity if additional orders were not received. Kadel, Martin, and Pooser testified Scott criticized the employees for their lack of productivity and excessive consumption of argon gas. None recalled anything being stated about potential layoffs. On March 15, Scott informed his son, Vice President Kevin Scott, that he had decided there would have to be a layoff, that the warehouse was full, and if they did not lay off “we would . . . very shortly work ourselves out of a job.” Scott acknowl- edged that, although a layoff had to occur, it could have been postponed for a week. Kevin Scott testified that he and his fa- ther decided to have the lay off on Thursday, March 21, be- cause it was payday and March 22. Scott testified that he had a list and knew on March 15 whom he was going to lay off. I do not credit the testimony that Scott had a list or that layoffs on March 22 were contemplated. On March 21, the Company laid off 14 employees: 5 of its 14 welders, 2 of its 7 fitters, an apprentice who was working as a fitter, an apprentice who was working as a material handler, 2 employees who worked in metal trades finishing carbon steel and 3 employees who worked in metal trades finishing stainless steel. Kadel was included in this layoff. The layoffs were by seniority within each classification. On March 22, the Company laid off five additional employ- ees: Reid Evans who worked in carbon steel finishing and who had given notice that he was going to leave the Company on March 29, Jack Black who worked as the plant carpenter and who had worked less than a month after being hired on March 1, and three more welders, John Martin, Scott Pooser, and Charles Carlton. Carlton was the junior employee, having been hired on February 15, 2001. Pooser had been rehired on August 22, 2000. John Martin had worked for well over 2 years after being hired on November 1, 1999. This left only 6 employees identified as welders. Although Scott testified that he intended to operate four ta- bles after the layoff, he retained five fitters. None were laid off on March 22. When questioned about this, Scott testified that many of the welders could also work as fitters and vice versa, “[t]hey are combination people.” President Scott explained, “I tried to fix it as of the day of the layoffs as what people were doing as of that day.” This explanation contradicts his testi- mony, noted above, that he had a list and knew on March 15 whom he was going to lay off. No list created on March 15 was offered into evidence. I do not credit the testimony that Scott had a list on March 15. Three fitters had less seniority than Martin: Harry Nelson had been hired on February 2, 2000; Porfirio Solano had been hired on July 27, 2000, and Tim Speakman had been hired on January 29, 2001. Speakman had 5 months less seniority than Pooser. The Company had, some months previously, experienced damage to property when a discharged employee had retaliated by damaging property in the breakroom. In order to preclude a recurrence of retaliation, Scott requested the presence of local law enforcement on March 21. Whether that presence consisted of one officer, as Scott testified, or more than one officer, as several employees testified, is immaterial. Even though the Company obtained the presence of local law enforcement to assure that there was no disruption, Vice President Kevin Scott testified that all employees slated for layoff were not laid off on March 21 because it would have been “too big a group to try to do at one time.” President Jim Scott, after testifying that he simply decided to lay off over 2 days, admitted that he could not justify not laying off everyone at once and that, if he had it to do over again, “I would do it all at one time.” I do not credit the foregoing testimony that the contemplated layoff had been planned to occur on two separate days rather than on payday, March 21. Neither Kevin Scott nor President Jim Scott explained why, if it had been decided to lay off the employees over 2 days, the group was not split evenly or why employees were not laid off by date of hire or alphabetically. President Scott informed Foreman Phelps of the welders and fitters who were to be laid off on March 21 shortly before the layoff when he directed Phelps to bring those employees to the back of the shop. Phelps testified that he had no inkling that there were to be further layoffs. I find it incomprehensible that Scott would not have informed Foreman Phelps that an addi- tional three welders would be laid off the following day if, in fact, that had been his plan. Employee Huggins recalled that, on March 21, Scott told the employees that when business picked up there would be a recall. There is no testimony that such a statement was made on March 22. 5. Additional 8(a)(1) allegations On March 5 the Company posted the following rule: Examples of impermissible forms of solicitation include: The promotion, endorsement, or advertisement of organizations, groups or commercial entities by public display of logos or messages on personal attire, lapel buttons, etc. The complaint alleges and the answer denies that the rule was promulgated and maintained to discourage union or con- certed activities. Scott testified that the policy was promulgated in response to employees wearing vulgar and suggestive T- shirts. The complaint alleges that employee Steve Folmer was is- sued a verbal warning pursuant to the rule on March 8 and the answer admits that “a verbal counseling occurred.” Scott testi- fied that Folmer was counseled and told to cover up the shirt. The shirt that he was wearing was “a local union” T-shirt. (It was not a UA T-shirt.) Scott acknowledged that, as enforced, the rule covered any shirt with writing on it, including designer logos and, in the case of Folmer, references to a local union. He testified that, at some point after the layoff, “we finally got to the point that . . . we’re not doing nothing with shirts, but if you SUNSHINE PIPING, INC. 1193 come in here with something that’s vulgar. . . we’re just going to send you home and let you change it.” Notwithstanding the change in interpretation, there is no evidence that the rule itself was modified or rescinded. B. Analysis and Concluding Findings 1. The 8(a)(1) allegations President Scott did not deny any aspect of the conversations to which employees Pooser and Carlton testified. Consistent with complaint subparagraph 7(a), I find that the Respondent, in November, violated Section 8(a)(1) of Act by threatening plant closure when Scott informed Pooser that he would “close the plant before he would let the Union come in,” noting that the “millions of dollars of stuff,” was “his equipment” and he “didn’t want anybody to tell him what to do with it.” The remaining 8(a)(1) allegations in paragraph 7 of the com- plaint arise from Scott’s conversation with employee Carlton. I find, as alleged in subparagraph 7(b), that Scott’s informing Carlton if he had thought that Carlton “would [have] start[ed] anything in the shop” he would not have hired him constituted a threat to deny employment to those that the Respondent sus- pected would engage in union activity. Regarding subparagraph 7(c) it is immaterial whether Scott said he would shut the doors before allowing “someone else” or “the Union” to come in the shop and tell him how to run it. The only “someone else” men- tioned in the discussion with Carlton was the Union. Scott’s statement threatened closure if employees selected a union as their collective-bargaining representative. Scott’s statement that he had fired Wewa and his wife for trying to organize a union was coercive, as alleged in subparagraph 7(d) of the complaint, in that it advised Carlton that the Respondent had terminated employees in the past because of their union activity. His fur- ther statement that he had “learned his lesson” regarding firing but that he could “lay them [employees] off or promote them up to management and then fire them” threatened separation of employees who supported the Union as alleged in subparagraph 7(e). All of the foregoing threats violated Section 8(a)(1) of the Act. The complaint, in subparagraph 9(a) and (b), alleges that Phelps, in January, informed employees that they could not talk about the Union and interrogated its employees about their union membership. Although Phelps’ informing employee Huggins not to mention unions around Scott appears to have been well intentioned in view of Scott’s animus towards un- ions, the prohibition obviously restricted Huggins’ exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act. Having informed Huggins of Scott’s dislike of unions and telling him not to mention them, Phelps’ ques- tioning this new employee about his union membership during the course of his orientation was coercive and violated the Act. Regarding the creation of an impression of surveillance al- leged in subparagraph 9(c), Phelps informed Kadel that he had told Scott that employees had been to the union hall and that 80 percent of them had signed cards. Although the Respondent could reasonably assume that Kadel had been to the union hall since he was wearing a UA organizing committee pin, Phelps’ statement that he had reported that 80 percent of the employees had signed cards was specific information that “reasonably suggested . . . that the Respondent was closely monitoring the degree and extent of their organizing efforts and activities.” United Charter Service, 306 NLRB 150, 151 (1992). This statement created the impression that the employees’ union activities were under surveillance and violated Section 8(a)(1) of the Act. Phelps informed Huggins that he had “to lay a bunch of peo- ple off” in order to “get rid of a couple of troublemakers,” nam- ing Kadel. Phelps did not mention union organizational activ- ity, but his identification of Kadel, who was wearing the UA pin, who had held the employee meeting at the convenience store, and who had been obtaining authorization cards, could leave no doubt that those activities made Kadel a troublemaker. See Kidd Electric Co., 313 NLRB 1178, 1187 (1994). Al- though, as noted in the Respondent’s brief, Phelps’ statement is hearsay with regard to Scott and is certainly not dispositive with regard to the layoff, the statement did, as alleged in sub- paragraph 9(d) of the complaint, inform employees that they would be laid off because of the union activities of other em- ployees. Such a statement is coercive and violates Section 8(a)(1) of the Act. Grand Canyon Mining Co., 318 NLRB 748, 753 (1995). The complaint, in subparagraph 9(e), alleges that Phelps in- formed its employees that they would be laid off because of their union activities. Pooser testified that, although Phelps had informed him on March 21 not to take off his union pin, he told him on March 22 that it really did not matter because “he’s going to get rid of everybody anyway.” When Pooser re- sponded that he thought that Scott could not fire employees who were wearing union pins, Phelps replied, “[He] is just going to lay everybody off.” Since only five employees were laid off on March 22, it is clear that Scott was going to lay off everybody wearing union pins. Scott’s statements to Carlton establish that his preferred method of separating prounion em- ployees was by layoff. Phelps’ informing Pooser that he would be laid off after having worn the union pin violated Section 8(a)(1) of the Act. Subparagraph 9(f) of the complaint alleges that Phelps, on March 23, informed employees that they were being terminated because of their union activities. In actuality, Phelps informed Martin, in their telephone conversation of March 23, that Scott would have terminated Martin if he had not been wearing the union pin. Thus, there was no threat of termination. Implicit in Phelps’ remarks was the inference that Martin had been sepa- rated by being laid off rather than terminated because he was wearing the union pin; however, the foregoing inference was not stated. I shall recommend that subparagraph 9(f) be dis- missed. Paragraph 8 of the complaint alleges that Scott and Quality Assurance Manager Nichols engaged in surveillance of em- ployee union activities on March 21. The General Counsel, citing Teksid Aluminum Foundry, 311 NLRB 711, 715 (1993), argues that the conduct of Scott and Nichols, who were stand- ing almost 100 yards away from Kadel and Martin, who were soliciting in the plant parking lot, constituted surveillance. I do not agree. Teksid involved closely following prounion employ- ees. This incident is governed by Roadway Package System, 302 NLRB 961 (1991), cited by the Respondent. Where em- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194 ployees elect to conduct their organizational activity openly on company property, “open observation of such activities by an employer is not unlawful.” Ibid. I shall recommend that para- graph 8 of the complaint be dismissed. Subparagraph 10(a) sets out the solicitation rule that was promulgated on March 5, and subparagraph 10(b) alleges that it was promulgated “to discourage its employees from assisting or supporting the Union or engaging in other concerted activities.” There is no evidence that the rule was promulgated in response to union or concerted activity, thus I shall recommend that sub- paragraph 10(b) be dismissed. Notwithstanding the absence of an unlawful motive, the en- forcement of this rule violated the Act as alleged in paragraph 11 of the complaint. Employees have the protected right to wear union insignia while at work. Republic Aviation Corp. v. NLRB, 314 U.S. 793, 801–803. The Board, in cases involving interference with that right, has reasoned as follows: While employees have the right to wear union insignia at work, employers have the right to take reasonable steps to en- sure full and safe production of their product or to maintain discipline. Therefore, the Board holds that a rule which cur- tails that employee right is presumptively invalid unless spe- cial circumstances exist which make the rule necessary to maintain production or discipline, or to ensure safety. The Kendall Company, 267 NLRB 963, 965 (1983). The Respondent’s rule, as promulgated on March 5, was not justified by any “special circumstances.” The determination by the Respondent not to enforce the rule except to prohibit “something that’s vulgar” confirms that, as promulgated, the rule was unlawfully broad. Insofar as it was invoked as the basis for counseling an employee wearing a shirt with a union logo, its enforcement interfered with the employee’s exercise of Section 7 rights in violation of Section 8(a)(1) of the Act. 2. The layoffs The analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), is applicable in dual or mixed motive cases after the General Counsel has estab- lished employee union activity, employer knowledge of that activity, animus towards such activity, and adverse action taken against those involved in that activity. Kadel, Martin, and Pooser engaged in union activity, and the Respondent was aware of that activity. The record amply dem- onstrates the Respondent’s animus towards employee union activity. The layoff of Kadel and the layoff and failure to recall Martin and Pooser were adverse actions affecting their em- ployment. Thus, the General Counsel established a prima facie case. The Respondent argues that the layoff was dictated by eco- nomic circumstances. The documentary evidence reflecting insufficient work to justify retaining a full complement of em- ployees, the reduction from 10 hour to 8 hour workdays on February 25 in order to curtail production, and the completion of orders prior to their projected shipping dates resulting in stacking pipe assemblies in the warehouse confirms the Re- spondent’s contention that, for legitimate economic reasons, it needed to reduce its work force. Counsel for the General Counsel, in his brief, refers to the documentary evidence introduced by the Respondent and ar- gues that the Respondent did not present “equivalent data to demonstrate how those figures [for 2002] compare to the previ- ous year’s figures.” The Respondent presented the documentary evidence upon which Scott testified he relied when determining that a layoff was necessary. If the counsel for General Counsel wished to seek to impeach that testimony by questioning Scott regarding data from past years or obtaining that data and plac- ing it before him upon cross-examination, he had that right. I can make no inference on the basis of evidence that is not be- fore me. Although there is no evidence regarding the decisional proc- ess establishing the exact number of employees by which the work force was to be reduced, I find that Scott intended to lay off the 14 employees that were laid off on March 21. Employee Bill Priester in quality control had given notice that he was going to leave on March 22, and he was not laid off. Employee Reid Evans, who worked in the metal trades carbon steel area, had given notice that he was leaving as of March 29, and he was not laid off on March 21. Although Scott contradicted his own testimony that he identified the employees to be laid off on March 15, I find that the layoff on March 21 was economically motivated. See Hinkle Metal Supply, 305 NLRB 522 (1991). The Respondent, after March 15 but before March 21, identi- fied 14 employees, slated them for layoff on payday, March 21, and arranged for the presence of law enforcement. The Re- spondent’s identification of Kadel as a union activist and Hug- gins’ placing a union sticker on his welding hood shortly before the layoff did not alter the Respondent’s plans. I find, with regard to the layoff on March 21, that the Respondent has re- butted the General Counsel’s prima facie case and established that, even absent any union activity, a layoff would have oc- curred. Kadel, consistent with his seniority, was nondiscrimina- torily laid off. Id. at 533. Martin and Pooser’s seniority ex- empted them from the March 21 layoff. On the morning of March 21, Kadel, Martin, and Pooser had worn UA organizing committee pins into the plant where they were observed by Scott. Scott carried out the layoff as planned. That layoff re- moved Kadel from the work force. Following the layoff, Scott determined to remove Martin and Pooser from the work force. I have not credited the testimony of President Jim Scott or Vice President Kevin Scott that they planned to conduct the layoff over 2 days and that Martin and Pooser had been slated for layoff prior to their appearance in plant wearing union pins. Having arranged for the presence of law enforcement on March 21 to assure no disruption, the Respondent had no reason to lay off only 14 employees and delay laying off the additional five employees who had purportedly been selected for layoff, espe- cially considering that those five included carpenter Black who had worked less than a month and employee Reid who was leaving on March 29. In order to reach Martin and Pooser, the Respondent had to determine their seniority. Upon doing so it became necessary to lay off employee Carlton, who had recently informed Scott that he had left the Union but who was junior to both Pooser and Martin. All three of these employees were welders. The Re- spondent’s targeting of Martin and Pooser is further confirmed SUNSHINE PIPING, INC. 1195 by the failure of the Respondent to lay off any of the remaining fitters, three of whom had less seniority than Martin and one of whom had less seniority than Pooser. Although employee Ev- ans had given notice and had not been laid off on March 21, the Respondent, in a transparent effort to disguise its intentions regarding Pooser and Martin, laid him off on March 22 as well as employee Black, who had worked less than a month. I find that the Respondent has not established that these employees would have been laid off but for its attempt to make it appear that the layoffs of Martin and Pooser were unrelated to their union activities. Confirmation of the Respondent’s discriminatory intent re- garding Martin and Pooser is established by its failure to recall them, as hereinafter discussed. I find that the Respondent laid off Martin and Pooser be- cause of their union activities and that it laid off employees Carlton, Evans, and Black “in order to disguise Respondent’s true reasons for ridding itself of the prounion employees.” Cecil I. Walker Machinery Co., 305 NLRB 172, 191 (1991). In so doing, the Respondent violated Section 8(a)(3) of the Act. C. Failure to Recall Martin and Pooser I have found that Martin and Pooser were unlawfully laid off on March 22, and I shall recommend that they be offered rein- statement and be made whole from that date. Insofar as I have found that, but for the Respondent’s discrimination against them, they would not have been laid off, the Respondent’s pur- ported justification for not recalling them has no relevance. Should a reviewing authority determine, contrary to my find- ing, that Martin and Pooser were lawfully laid off, the failure of the Respondent to recall them must be addressed. All laid off employees except Martin and Pooser were of- fered reinstatement on or about June 3. Scott testified that Pooser was not offered reinstatement be- cause of his attendance and tardiness, working too slowly, and failing to assist his fitter. Foreman Phelps, the direct supervisor of Pooser, was not asked whether Pooser worked too slowly or whether he failed to properly assist the fitters with whom he worked. Pooser had been rehired previously by the Respondent on three separate occasions. There is no evidence that his work habits changed. Scott testified that Martin was not offered reinstatement be- cause of absenteeism, tardiness, not punching the timeclock, improper welds, damaging flow meters, being out of his work area, and not assisting his fitter. Notwithstanding this testi- mony, Scott ultimately admitted that Martin was a good welder. Foreman Phelps was not asked about the overall quality of Martin’s work, whether there was a problem regarding Martin punching the timeclock, whether Martin was too often out of his work area, or whether he failed to properly assist the fitters with whom he worked. He admitted writing a warning regard- ing one defective weld after Martin had been laid off because Scott told him to. Scott admitted adding three warnings to Martin’s personnel file after the layoff, one relating to threatening, one relating to damaging flow meters and the one he directed Phelps write relating to a defective weld. Scott himself backdated the warn- ing relating to flow meters to February 21. There is no proba- tive evidence establishing that Martin ever damaged a flow meter. Regarding the threat, Scott claimed that Martin, upon observing Scott in a parked car in downtown Panama City, had pointed at him and said, “I’m going to get you, asshole.” Scott acknowledged that the engine of his vehicle was running when he purportedly heard Martin make the foregoing statement. Martin acknowledges recognizing Scott and pointing at him, but denies making any comment. I credit Martin. In his initial testimony, Scott did not report this purported incident. His fail- ure to report this incident when he initially testified suggests either that it had little or no significance or that his recollection of exactly what occurred was not clear. In either event, his fail- ure to mention the purported incident when initially testifying regarding the reasons he did not recall Martin establish that the purported incident was not a factor. The Respondent had four separate attendance policies during the 10-month period from mid-July 2001 through early May 2002. The Respondent’s general policies, in effect prior to July 18, 2001, provided that habitual absence or lateness would not be tolerated. Between July 18 and December 2, 2001, the Re- spondent published guidelines relating to discipline for ab- sences and tardiness. On December 4, 2001, the Respondent placed policies in effect that remained in effect until early May. In early May, a new policy was promulgated. At the time of the layoff, the policy published December 4, 2001, was in effect. Under that policy, management had the discretion to deem a tardiness as excused. During that period, Martin’s attendance record reflects no unexcused absences and four instances of tardiness, two in December 2001, one on January 25, and one on February 7. He received a written warn- ing on February 8 as a result of the February 7 tardiness, the only discipline in his file regarding attendance during that pe- riod. Between December 4, 2001, and March 22, Pooser’s at- tendance record reflects no unexcused tardiness. Although his record shows an unexcused absence on December 14, 2001, and an unexcused absence for illness on March 11, Pooser’s file reflects no discipline relating to attendance during this period. The accuracy of the foregoing records may be open to question. Pooser’s attendance record also shows an unexcused absence on March 21, the day that undisputed testimony establishes that Scott observed Pooser, Martin, and Kadel at the timeclock when they reported to work wearing UA pins. Martin was rehired in 1999 after having been terminated pur- portedly for poor attendance. Pooser had been rehired on three separate occasions, most recently on August 22, 2000. The Respondent, in its brief, summarizes the total attendance re- cords of Martin and Pooser. Scott claims to have reviewed their total attendance records prior to making his decision not to recall these two employees. He did not limit his review to their attendance since the then current attendance policy had gone into effect on December 4, 2001, or even to their most recent periods of employment. In previously rehiring these employees, the Respondent obviously overlooked their past attendance records. Scott’s reliance upon their overall records in determin- ing not to recall Martin and Pooser suggests that he was seeking any reason he could find to deny continued employment to these union advocates. Confirmation that he singled out Martin and Pooser rather than rationally evaluating their current atten- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196 dance records is established by the recall of employee Sharon Champion. Champion had, after the promulgation of the De- cember 4, 2001, attendance policy, been suspended in February for attendance violations and terminated on March 4 after re- porting to work 30 minutes late. She was rehired, laid off on March 21, and recalled from layoff. When they were laid off, Martin and Pooser were each pro- vided with an individual termination review document that states that they are recommended for rehire. The documents were prepared by Office Manager Lisa Hedayati after she was authorized to do so by President Scott. Welder Don Nugent had been hired on March 4 and, therefore, had far less seniority than either Martin or Pooser. Nugent was laid off on March 21. His termination review document, prepared by Phelps, reflects that he was not recommended for rehire, but he was recalled. I find that, even if it be assumed that the layoffs of Martin and Pooser were lawful, the General Counsel has established that the union activity of Martin and Pooser was the motivating factor for the Respondent’s failure to recall them. Manno Elec- tric, 321 NLRB 278 (1996). Scott’s litany of shortcomings attributed to Martin and Pooser regarding their work is unsup- ported by probative evidence and was not corroborated by Foreman Phelps. His review of their total attendance records, even though neither had been suspended pursuant to the then current attendance policy, while recalling an employee who had been discharged and rehired less than a month before the layoff confirms that attendance was a pretext upon which the Respon- dent seized to justify not recalling these two prounion employ- ees. Where it is found that a respondent’s reasons for its pur- ported actions are nonexistent or pretextual, the respondent has failed to sustain its Wright Line burden since the effect of this “is to leave intact the discriminatory motive established by the General Counsel.” Champion Rivet Co., 314 NLRB 1097, 1098 (1994). Thus, in the event that it be found that the layoffs of Martin and Pooser were lawful, I find that the Respondent failed to recall them because of their union activity and, in so doing, violated Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. By threatening employees with plant closure if they se- lected a union as their collective-bargaining representative, informing employees that they would not be hired if it was suspected that they would engage in union activity, informing employees that employees had been terminated for engaging in union activities, threatening to lay off or otherwise separate employees for engaging in union activities, maintaining, and enforcing a rule prohibiting employees from displaying union logos or insignia on their personal attire, restricting employees from discussing unions, coercively interrogating employees regarding their union membership, creating the impression that employee union activities were under surveillance, informing employees that they would be laid off because of the union activities of other employees, and informing employees that they were going to be laid off because of their union activities, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By laying off and failing to recall employees because of employee union activity, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily laid off and failed to recall John Martin and Scott Pooser, it must offer them rein- statement. The Respondent having discriminatorily laid off John Mar- tin, Scott Pooser, Charles Carlton, Reid Evans, and Jack Black, it must make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of layoff to date of proper offer of reinstatement in the case of Martin and Pooser, to June 3 in the case of Carlton and Black, and to March 29 in the case of Evans, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent will also be ordered to post an appropriate notice. [Recommended Order omitted from publication.]