Pullman Power Products Corp.

PULLMAN POWER PRODUCTS Pullman Power Products Corporation and Sterling Ansley and Paul Sweeney and John M: _ Craft and Ray Bates and Ross Winner. Cases : 10- CA-19651-1, 10-CA-19615-2, 10-CA-.19615- 3, 10-CA-19615-4, and 10-CA-19774 26 June 1985 - - DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND'DENNIS On 26 September 1984. Administrative -.Law Judge Karl H. Buschmann issued the attached deci- sion. Both the General Counsel and the Respond- ent filed exceptions and supporting briefs. Thereaf- ter, they each filed an answering brief to the other party's exceptions. - The Board has considered the -decision and the record in light of the exceptions and briefs and has decided to affirm -the judge's rulings, findings,- and conclusions except as modified herein. The judge found that the Respondent violated Section 8(a)(1) when Supervisor Altman threatened employee Ross Winner with a loss of jobs because of his protected concerted activity. We agree. The judge, however, also found that the 'Respondent lawfully laid off Winner effective 30 July 1984:1 We again agree with the judge. Accordingly, we dismiss the 8(a)(3) and (1) -allegations relating to Winner's layoff. The judge further found that the Respondent violated Section 8(a)(3) and (1) by laying off the four millwrights-Sterling Ansley, Paul Sweeney, John Craft, and Ray bates-on 22 August. The judge found that these men had been selected for layoff, not because of their work habits as 'de- scribed by Superintendent Walker, who made the layoff selection, but because Walker considered them to be troublemakers for having engaged in union activity and for having been involved in- re- placing their steward. We disagree with the judge for the reasons.set out below. For the judge, Walker's meeting with the mill- wrights held 22 August provided the key to the four layoffs later that day. Without explanation, the judge found that this meeting had been called by Walker for the specific purpose "to discuss the millwrights' activity in selecting a new [u]nion steward." The judge further found that - in this meeting Walker said that Owens-was a good stew- ard and then promised to make changes because Walker had enough of the employees' "squab- bling."' The judge, in effect, found that "squab- All dates are in 1984 unless otherwise indicated 275 NLRB No. 112 765 bling" was synonymous, with the millwrights' ac- tivity in replacing James Owens as their steward. After construing the 22 August meeting as indic- ative.of a discriminatory motive for the layoffs, the judge rejected Walker's stated justification for his layoff- selection. The. judge relied on the timing of the , layoffs in - relation; to the new steward election and the subsequent notification of, the election re- sults to the Respondent, as well as Owens' reelec- tion as' steward after. the -millwrights' layoff. The judge also disagreed with the Respondent's specific grounds for .layoff, finding the= incidents described by Walker to be too remote in relation to the lay- offs and, in his opinion, involving relatively minor infractions by the men. The judge was also influ- enced by the fact that not all laid-off millwrights came from the crew whose work had been com- pleted, thus - necessitating the layoffs in the first place. Finally, the judge relied on Walker's trial testimony in which he- characterized. three of the laid-off millwrights-Bates, Ansley, and Craft-as "troublemakers." The judge-inferred that this char- acterization was based not on the reasons given by Walker but because the laid-off employees had en- gaged in the union activity connected with replac- ing Steward Owens. Based on our review of the entire record, we find that each of the critical aspects of the 22 August meeting is equally susceptible. to two differ- ent meanings, one lawful and the other unlawful. We further find that the record taken as a whole gives an insufficient basis for us to choose the un- lawful meaning, which -the judge consistently ac- cepted, over the lawful meaning. We therefore re- verse. First, the judge inferred that, the 22 August meeting was called to discuss the steward • replace- ment matter. While the judge did not explain why he chose this inference, it appears-that-he did so because the- meeting was held a few days after Steward Owens had been replaced and Walker mentioned the steward replacement at the meeting -itself. On the other hand, the record reveals that Walker testified that his reason for holding the meeting was to discuss the "turmoil" on the job. Walker testified that' he,recently had learned that the disciplinary authority of the assistant millwright superintendent- on the project had been questioned. According - to Walker, whose testimony was cor- roborated by the testimony of another witness gen- erally credited by the judge, he told the assembled millwrights that -the assistant millwright superin- tendent did have the authority to fire them. The judge° failed to explain why, the remark about Owens and not the remark about the-assistant mill- wright superintendent, both of which concerned 766 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD recent events and were mentioned by Walker at the 22 August meeting, established the purpose of that meeting. Without more information , we are unable to find the definitive purpose of the meeting on the basis of"the record before us. ' ' Second, when the judge found that the Respond- ent was annoyed with the replacement of-Owens, the judge apparently interpreted Walker's remark that "Owens was a good steward " to mean that the Respondent believed that Owens was pro-compa- ny. The record, however, does not support that finding. While Respondent was clearly annoyed with the employee's bickering and dissatisfaction- of which the change in steward may have been a part-it does not appear that the Respondent had a preference for the steward position . Simply because some employees were disenchanted with Owens' performance as a steward does not prove that the Respondent was pleased with it . The Respondent's primary - concern was to end the employee squab- bling, not with supporting the incumbent steward.2 Third, the judge interpreted Walker's comment about making changes to have originated from the millwrights' activity in--replacing Owens. Credited testimony shows that Walker's reference to the possibility of changes occurred at the point in the discussion when Walker told the men that he was tired of their "squabbling." The judge implicitly concluded that "squabbling" referred to the em- ployees' activity in-replacing their steward. Again, the judge did not delineate his reason for accepting this particular interpretation over all others sug- gested by the record. It appears that the judge in- ferred this interpretation from Walker's having mentioned the steward replacement matter , prior to the squabbling remark. The judge, however, failed to consider that the "squabbling" could as easily have been in, reference to the turmoil over the dis- ciplinary authority of the assistant millwright su- perintendent which Walker also mentioned in that conversation. The judge also did not reconcile the fact that Walker's remark could have been in refer- ence to the admitted ongoing tension between the local millwrights and the millwright travelers on the project. And, as discussed below, some of the laid-off employees were involved in this source of tension. ' In the absence of any 'demonstrable animus on the part of the Respondent, 'we cannot attach the unlawful meaning- • which the judge ascribed to 2 Cf. Newport News'Shipbuilding, 233 NLRB 1443, 1451-52-(19.77) (where the employer favored the incumbent labor organization and ex-•- hibited displeasure, through statements and disciplinary actions, directed at employees who supported a potential rival labor organization ); Trian- gle Sheet Metal Works,-238 NLRB 517, 520 (1978) (where the employer engaged in various kinds of conduct showing its opposition to a union presidential candidate favored by the employee) Walker's remarks about Owens or about possible changes.3 The record contains no evidence that Walker at any time disparaged the new steward, voiced any displeasure with the steward election, or took any action to oppose the steward election or to affect its outcome. It is not enough that Walker's remarks about changes were made in the discussion which included his praise of Owens for us to assign an unlawful interpretation. See Burgess Mining & Construction Corp., 250 NLRB 211, 214 (1980). We recognize the ambiguity of Walker's remarks and, for this reason, we have considered them in connection with the surrounding circumstances, which include Walker's initial reaction to the stew- ard replacement. According to Bates, whose testi- mony was generally credited by the judge, when Walker was told of the results of the 9 August steward election, Walker responded that he would need a- letter from the Union confirming that Currie was the new steward. Such a letter admit- tedly is required by the applicable contract with the Union. This neutral reaction by Walker, rein- forces for us the absence of-animosity on the part of the Respondent towards the steward change. In sum, we find that the record as a whole gives little support. for choosing the unlawful meaning over the lawful meaning for Walker's remarks about Owens or about changes because of "squabbling." Further, unlike the judge,, we find that the timing of the layoffs after the visible union activity in- volved here is also susceptible 'to another lawful explanation. It is undisputed, that the Respondent's work ran out and- a layoff was necessary at that time. See Philips Medical Systems, 243 NLRB 944, 945 (1979); Maniac Corp., 231 NLRB 858, 861 (1977). As noted by the judge, the General Counsel's objection to the layoffs lay with the selection only. The General Counsel did not dispute even the number of layoffs except to the extent that it was less than the entire millwright complement on the crew whose work had been depleted. The General Counsel took the position, -that these. four mill- wrights were selected because of their prominent role in replacing Steward Owens. Even if we were to accept -the General, Counsel's position that the source for=the layoffs should have been the crew ,whose work had, been depleted, we find that the Respondent substantially confined itself to that crew for its layoff, selection. Sweeney, Craft, and Bates had been assigned to - the mill- wright crew whose work had been depleted. 3 We observe that Walker's remarks were not alleged to be violative of Sec 8(a)(1) of the Act nor were they found to be so PULLMAN POWER PRODUCTS In addition, so far as the record shows, the Re- spondent's layoff. criteria used here are consistent with its past practices, regarding layoffs. Consisten- cy with past practices undercuts suspicions that layoffs were for unlawful reasons. See Nabisco, Inc., -267 NLRB 1236, 1237 '(1983). In this regard, the General Counsel advances the position that se- niority of the men should have been a significant factor in the selection process. We disagree because, the record does not reveal that seniority had been used in the past for layoff selection. Accordingly, the Respondent was under no obligation to use se- niority here and its failure to do, so cannot be used as evidence of a discriminatory'motive on the part of the Respondent. See_- Documation, Inc., 263 NLRB 706 (1982). We further find that the record fails to demon strate that someone else other than Ansley, Bates,' Craft, and Sweeney should have been picked for layoff. See Circle Import Export. Co.,' 244 (NLRB 255, 261 (1979). The record reveals that many of the millwrights on the project - were dissatisfied' with Owens. Bates testified that the "majority" of the millwrights were- "teed off" by Owens" per formance as steward. Sweeney testified that "ap- proximately 15," out of 24 millwrights, were' in volved in the.effort to change the steward. - -' The record-reveals that Ansley, Bates, .Craff,- and- Sweeney were involved in setting up the' steward election to the extent that they approached their" union business agent who, in . turn, , set up -a union meeting - to discuss the matter: They 'talked'to -dther - employees trying to obtain' votes for' • Herbert Currie, their choice. Bates, along with -Everett' Phillips who was not laid off, spoke in'• favor of a' steward election at the. union, meeting: Although" the record reveals that the Respondent was aware ' that several - employees, . including Bates 'and' Ansley, wanted a new steward, the- record"-is- lack- ing as to whether the Respondent was aware that' Craft-and Sweeney were also involved- of- knew- of the extent of the involvement of Bates and;Ansley. Phillips actually conducted the first- election held'- 9' August; and, Currie. won .themajority -of'votes-- which had been'cast by a i `show of hand's. Ansley;' Bates, Craft, and Sweeney testified" that'each' voted' for Currie. The record,'however; <does'riot-indicate' whether their votes; or= those -,of 'any of the -'oth'er millwrights, were communicated='to the-Respond= ent. All the-record • shows is that" the - Respond'ent' was told that Currie 'had =won "the' election ) -As fur- ther • disclosed by , the' i record; " the' - election wag' voided by -the Union because'"of -ndncompliance- with certain election procedures,.and a new elec- tion was scheduled" for 16 August or 17 August.. However, the second election was canceled-be- 767 cause Owens was disqualified apparently, when it was discovered that -he ,was behind in the payment of his union -d'ue's. While the judge found that,, after. the millwrights', layoffs; Owens was reelected stew-.- ard, the General Counsel failed to, submit, any.,evi- dence as.to Currie's performance as steward or to the circumstances surrounding Owens' reelection. -,, On the basis .of this record, we find.the fact that the, layoffs, included. four, employees who favored replacing Steward Owens, not determinative. See Fiber Materials„ 228; NLRB. 933; 941 -.(1977).; We point, out that a high, number . of employees favored' the same thing but were retained by the. Respond- ent. We recognize that a failure to single out-all union activists, does not: necessarily negate: the alle gation of, discrimination, but raises concerns. as.-to, why these .four were: singled out- as, opposed to the others. See,Spotlight Co_.,;.192.,NLRB 491-,(1971)., Yet,.'we,,find: that- there is insufficient evidence of any, disparate treatment based on, the Respondent's application of,its ,selection, criteria, even though ,the; judge may . disagree with .them, .to reach the-four millwrights involved. See Documatioh, Inc., supra.. "Mere .speculation cannot, replace.,evidence."- Bur-. gess Mining &, Construction Corp.,-supra. For; this, reason, we do.not attach any weight- to- Owens,.re-- election as, steward. Thus,: the: judge; s implicit, sug ges'tion,thatthe reelection, of, Owens =tends to, prove; the violation is incorrect.. Even thou .-the- judge.;;rejectedthe Respond- -, stated reasons -for ,its selection,of the, four mill- wrights, for layoff, the question, of: motivation un-- derlying-the- layoffs is, not answered.-,Rather,, the,,, Board 1must -evaluate ;all relevant- evidence: to deter- none , if the, -- General Counsel -has affirmatively; shown that the, layoffs; were unlawfully-motivated: See: Garrett; ;Flexible. Products,, 270; :NLRB.. 1-147, 1148 (1984). It, is, well established. that union activi- ties of the, employee, plus his layoff; : without ,1 a-. causal. connection, do not alone make out a "case. of prohibited, discrimination. Nor- does- the, fact that-' Walk at- trial. three of the-laid-off,: millwrights,, as "troublemakers" necessarily.-, mean, that they,, are perceived -as--,such because,-of their- union. activity, ; It , is; true.. that: such a term is,, often, u used ;by- an employer. .-to describe= union-,activists. However, the backdrop for this case reveals, -.that-- the term .could have, easily,,referred,,to the-harass- ment ,of travelersaand,othei,project workers.-attrib- uted; to -several, of the laid.pf,f millwrights. Thus,, as with the 22' August meeting, we again are faced with., a. lawful- and,,, an unlalwful -interpretation of a- remark• for which-the-record proves insufficient--for, choosing one over the other. Based on-.our examination-of the-record,,as noted, herein,,,we- conclude - that the -General 'Counsel= has-' 768 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD not satisfied the initial burden under Wright Line4 and has failed to establish a prima facie case of dis- crimination with respect to the millwrights' lay- offs.5 Accordingly, we dismiss the 8(a)(3) and (1) allegations of the complaint pertaining to the lay- offs of Sterling Ansley, Paul Sweeney, John Craft, and Ray Bates.6 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 4 and 5 of the judge's decision. "4. The unfair labor practice of the Respondent as described above affects commerce within the meaning -of Section 2(6) and (7) of the Act. "5. Other than as set forth above, the Respond- ent has not violated the Act as alleged." ORDER The National Labor Relations Board orders that the Respondent, Pullman Power Products Corpora- tion, Waynesboro, Georgia, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening any employee with the loss of jobs because he" engages in protected concerted ac- tivity. . (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Waynesboro, Georgia, copies of the attached notice marked "Appendix."7 4 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cit. ' 1981), cert. denied 455 U.S. 989 (1982) 5 Contrary to the suggestion of our dissenting colleague, our reversal of the judge's findings involving the millwrights does not turn on a rever- sal of his demeanor credibility findings We merely show that the record evidence, as credited by the judge, is susceptible to different inferences, a point which is not challenged by our dissenting colleague After careful review of the record as' a whole, we find that it provides an insufficient basis for choosing the inferences drawn by the judge over the other pos- sible inferences It is well established that the Board , to the same extent as the j udge, is free to draw its own inferences from the record so long as demeanor is not involved See J. N. Ceazan Co, 246 NLRB 637, 638 In 6 (1979). 6,In its exceptions, the Respondent also contends that the 8(a)(1) and (3) allegations concerning the layoff of Foreman Ray Bates should be dis- missed on the additional ground that he was a statutory supervisor at all relevant times and, thus, outside the protection of the Act in these cir- cumstances The judge found that Bates, although a statutory supervisor during most of his employment with the Respondent, was an employee when he was engaged in protected concerted activity and when he was discharged. In light of our finding that the General Counsel failed to prove that the layoffs of the millwrights were unlawfully motivated, we find it unnecessary to pass on this additional issue concerning Bates' status Thus, we do not pass on the judge's discussion of this matter. 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " Copies of the notice, on forms provided by the Re- gional Director for Region 10, after ' being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 altered, defaced, or covered by any other material. (b) Notify the Regional' Director in . writing within 20 days from the date of this Order, what steps 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 DENNIS, dissenting in part. An experienced administrative" law judge, who "s[aw] the witnesses and hear[d] them testify,"1 had "no difficulty in concluding that Respondent discriminated against _[the] four millwrights when- it selected them for layoff on August 22, because of their union activity." .The majority, "look[ing] only at cold records,"2 second-guesses the judge's ap- praisal of the record evidence and-the inferences he fairly drew from it. I am satisfied that the judge correctly analyzed the issues presented, and I would adopt his decision in all respects. NLRB v. Walton Mfg. Co, 369 U.S. 404, 408 (1962) 2 ld APPENDIX NOTICE To EMPLOYEES - ' , ' ' 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 violated the National Labor Relations Act and has,ordered us to,post and-abide by this notice. Section ' 7' of the Act gives employees these ri ghts. To organize To form, join, or assist any, union To, bargain 'collectively through representa- tives of .their own' choice-. _ To act together -for other mutual ;aid or pro- tection' ,To-choose not to . engage in any of these protected concerted activities. " - WE WILL NOT threaten you with the loss of jobs because you engage in protected -concerted activi- ty. . PULLMAN POWER PRODUCTS 1 769 WE WILL NOT in any like or .related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. PULLMAN POWER PRODUCTS CORPO- RATION DECISION KARL H. BUSCHMANN, Administrative Law Judge: This case was tried in Waynesboro, Georgia,"on January 12, 13, and 19, 1984. The charges were filed on Septem- ber 26, 1983, by Sterling Ansley, Paul Sweeney, John M. Craft, and Ray Bates and a complaint issued in Cases 10- CA-19615, 1-4 on November 9, 1983. Separate charges in Case- 10-CA-19774 were filed on November 15, 1983, by Ross-Winner and the complaint and order consolidat- ing cases and notice of hearing issued on December 16, 1983. -The primary issues are whether the Respondent, Pullman Power Products Corporation,- violated Section 8(a)(1) and (3) of the National-Labor Relations Act (the Act) by laying off the Charging Parties an d whether Re- spondent violated Section 8(a)(1) of the Act by threaten- ing its employees with the loss of jobs because of their union activities. - On the entire record,; including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and the Company, I make the following - FINDINGS OF FACT The Respondent,' Pullman Power -Products Corpora- tion, is a -Delaware corporation located in Waynesboro, Georgia, where it is engaged as a mechanical contractor at the Vogtle nuclear power plant. The Respondent is admittedly an employer within the meaning of Section 2(6) and (7) of the Act. The Union, United Brotherhood of Carpenters and Joiners of America, Local -Union No. ' 283, is a labor or- ganization within the meaning of Section 2(5) of the Act. Among others, it represented the millwrights and carpen- ters employed by Pullman. On January 1, 1983, Pullman employed 16 millwrights, in April it hired 4 additional millwrights, and in June Re- spondent increased the number to 24. On-August 22, it laid off four millwrights. They were Sterling Ansley, Paul Sweeney,' John M. Craft, and- Ray Bates. The Gen- eral Counsel contends -that the Respondent selected these four millwrights for layoff because they had engaged in protected concerted activities, i.e., their -efforts in replac- ing James Owens as the job steward`whom,they had per- ceived -as•a-,"company man."-Respondent argues. that the layoff was economically motivated,- and that these four men were; selected- because they were "troublemakers," incompatible with oth^f 'worker or poor in workman- ship. "On July 30, 1983,' Respondent laid off Ross Winner, a carpenter who had been employed. since April- 1983. His layoff was part of a mass layoff affecting 14 carpenters from a crew, of about 90. According to the General Counsel, Respondent included Winner in the layoff for the purpose of encouraging membership in the Union and because of his protected concerted, activities arising out of a conversation with other employees about a well- known "non-union" company. Respondent, on the other hand, argues that Winner was selected in the layoff be- cause of his job performance which included the building of unsafe scaffolds. . The Layoff of Ross Winner Ross Winner had been employed as a carpenter on the scaffolding crew from April until July 30, 1983, when he was laid off under the following circumstances. On July 28, upper management informed all superintendents, in- cluding Ed Lasley, the carpenter superintendent, that they had to reduce the number of employees by a certain percentage. Fourteen carpenters would be affected. Lasley instructed his 2 general foremen, Henry Collins and Grady Flemming, to select from their crews 14 names for layoff. He told them to retain their best car- penters and to consider the individual carpenters' work habits, namely, their record of absenteeism, tardiness, and safety violations. Collins and Flemming were able to choose 12 carpenters principally by considering their ab- sentee record. Collins then informed Foreman - Sam Altman that two carpenters on his crew had already been selected for layoff and instructed him to select two additional men for layoff by considering the carpenters' records of absenteeism, tardiness, or safety violations. Altman selected two men on his crew including Ross Winner because, according to Altman, "Winner was not effective in his work, and he had some safety features that was not up to par." With respect to Winner's safety record, the record shows that Winner had neglected to wear his safety glasses on a number of occasions, and that he had been involved in building scaffolds which were not in accord- ance with acceptable safety standards. The record re- veals at least two incidents of unsafe scaffolding in which Winner had been involved. According to the testi- mony of Lasley and Altman, 2 or 3 months prior to the layoff, Winner and another carpenter built a. scaffold in front of an electrical box which blocked access to it. This could be dangerous, especially in an emergency. Al- though Altman was not the foreman at the time, he knew of the incident because he had been a member of the crew to whom the deficiency was shown. The second incident occurred when Winner and another car- penter built the scaffold on top of pipes. This deficiency was called to the attention of Winner and Altman by the general foreman. The third incident occurred about 1 month prior to the layoff, when Safety Supervisor. Ken Jenkins discovered a scaffold built by carpenters Winner and Hughes without the "x-brace" and without a toe= board. An x-brace is necessary for proper and safe sup- port,, and a toeboard is designed 'to prevent tools from sliding off the platform. Safety Supervisor Jenkins had initially recommended that the carpenters be terminated for the safety violations. But Supervisors Collins and Altman interceded on behalf of the carpenters and as- sured Jenkins that such violations would not reoccur. Al- though Winner denied his involvement in the first inci- 770 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD dent of unsafe' scaffolding and minimized' the seriousness of the other violations, the record is clear that Winner was involved in at least two of the incidents. Following" his layoff on July 30, Winner approached General 'Foreman' Lasley and inquired why he had been laid off. Lasley responded that the Company had strictly gone by the time'book. Winner, however,-had no'absen- teeismf- record; and, Lasley' , had ' merely -assumed that Altman -had chosen Winner because'of an' attendance problem. When Winner informed' Lasley that he had no record of absenteeism,- Lasley _ consulted with Collins about the ' selection. Collins told` Lasley that, Winner had experienced safety pr` oblems., Collins -immediately offered to - reconsider Winner's layoff. Lasley, however, stated that safety p'rot lems'had been, within the `mentioned `cri- teria and therefo re decided that the layoff was proper. The General Counsel does not quarrel with the stand- ards used'for the, lay-off and concedes that "upper man- agement may, have set forth permissible criteria'for layoff selection. Nevertheless- the General Counsel argues that Altman harbored illegal animus" and `selected Winner for discriminatory"ieasons. The General Counsel ' relies principally 'on' the' testimony of Winner`' as corroborated by his working partner Mike °Davis. Their testimony. es tablished that on July 23, ,they had a-conversation with two pipefitters: about Daniels`- Construction Company which -was widely ' known as 'a nonunion `- -company During that con'versation, one of `the 'pipefitters accused ` ther one who had` worked 'for' Daniels 'of, being" a o the ```rat" or a scab for having worked fora nonunioni coin pang. At -that point,. Winner -stated, that Daniels was both union and nonunion, "whatever it fakes ` to get the soli done, they, will" do tit.' About -a week later;'on' July 29,- Altman stronglyre- bukedWinner for"'his`"no'n-union talk" relating to Dan- iels Construction' Company. The pipefitters' foreman' had ;reported Winners conversation with the' pipefitters to General' Foreman 'Collinss 'and`'_complamed that the two carpenters'had'`interfered with'the`work of the'pipefit- tern. Collins, in- turn,` had spoken to `Altman about the in- cident `Accordingly, Altman talked initially to}-.Davis about. the conversation`and then '"to Winner`: Altliough Altman' denied using . strong, language nor' threatening Winner with `layoff or' transfer' if'he' ever talked about nonunion , companies, the consistent and credible te'stiino= ny of Winner and-Davis convinces me that`Altman-repn- 'manded `Winner in no"uncertain terms about th'e!incident and `told him never ' to 'mention `Daniels - Constriction Company or' to cause 'dissension ' among" the' other em= ployees and threatened`him'with layoff or''transfer'if he did tnot 'stop; his antiunion' talk: -A threat of a ' loss'of jobs because of an employee's protected'_ activity violates-Sec- ti on18(a)(1);nof the `Act. The next question is'•whether Winner's' layoff was prompted'' `y "his' antiunion ' talk in''viblation' of Section 8(a)(3) and `( 1) of the"Act. Winner ' testi'fied` that on' tfie morning`ofJuly 30,°the`-day-of'the' layoff,- Altman;, when questioned`-by Winner .whether" he `would be cut,'asssured him that- fie would not' lie' included 'id the layoff if he kept his mouth shut "about the non-union trash." How- ever, ,after Collins requested Altman to select two of his -men;'A ltman- selected Winner' and' John -Lange.?Altrnan clearly did not initiate the layoff but may have been mo- tivated, at least partially, by Winner's antiunion talk. Altman `testified that Winner's safety violations were the primary reason for having included Winner in the layoff. Altman admitted that the complaint from the pipefitters had also played a part in his decision. I find, therefore, that Altman's decision to select Winner for layoff had a dual motive, his safety violations, as well as his anti- union remark dealing with Daniels Construction Compa- ny. Of further significance was Collins' willingness'to re- consider Winner's layoff as well as Lasley's reaffirmation that Winner's layoff was properly based on his safety record. Upper management'•s view. of Winner's 'selection was accordingly based on his safety record. Since the record showed that- Winner had significant safety prob- lems, perhaps. more than those of other ' carpenters on Altman's, crew,. and. since the, criteria of absenteeism had already been considered by management and apparently exhausted in -the selection process, it must be inferred that, , even in the absence of the episode dealing with Daniels Construction Company, Winner would have been -laid off. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899'(lst Cir. 1981); cert. denied 455 U.S. 989 (1982). I therefore conclude that Respondent did not vio- late Section 8(a)(3) and (1) of the Act with respect to the allegation in the complaint dealing with Ross Winner's layoff. The Layoff of the Millwrights Respondent had, steadily increased its complement of millwrights beginning in January 1983 from 16 to 24 in late' June 1983.. The 24 millwrights were assigned to 3 crews,' the power `block crew under Foreman Johnny Marchman, the offsite crew under Foreman Earl Favors, and-the special-project crew under Foreman Ray Bates, one of the .Charging Parties. The special project crew had' finished the river intake pump project in July or early - August -ands was assigned to the turbine project. When that assignment was finished about August 18, a layoff appeared imminent. E. J. Walker, the millwright 'superintendent, discussed the possibility of a layoff with Assistant Millwright Superintendent Marvin Parks and others. - Walker did 'not make any ' final decision until 'August 22, because he hoped that new assignments might materialize. - I • • On the morning of August 22, Walker called a meeting with Ml--millwrights tb discuss 'the millwrights' activity in selecting a new union' steward' He told- them that their old steward, James Owens; had been a good' steward and 'then promised to make changes' because''he had enough `of their "`squabbling." =At the end'of'the day, -Walker- had 'the written `, layoff notices ' distributed to"Ansley , Bates, Sweeney, `'and Craft.` E.' J. "Walker, however, justified the 'layoff on the lack'of work and testified that'he-made'the selections on the following basis (Tr: 260): ''• Well, I'we'nt'over my list of manpower and decided on about their workmanship, compatibility, willing- ness' to work, and willingness to follow procedures and my iristructions also. - -' ' PULLMAN POWER PRODUCTS When asked to be more specific, Walker testified that Sweeney was poor in his workmanship and that Bates, Ansley, and Craft were "troublemakers." He considered Bates and Ansley to be troublemakers because they had harassed Pullman's toolroom attendants and the Georgia Power quality control personnel. Moreover, he had overheard Bates and Ansley converse in a vulgar manner within earshot of a millwrights' female apprentice. Bates and Ansley also had harassed the millwright "travelers" by telling them to go back where they came from or that they were not needed in the area. On occasion Bates and Ansley had used swear words in referring to travelers. Walker also felt that Bates was frequently absent without notifying supervision and that Bates' discussions with his men during working time were improper where he ex- pressed his. dissatisfaction with their steward James Owens. When describing Craft as a troublemaker, Walker ex- plained that Craft could not get along with his fellow employees. For example, in July 1982, Craft had re- ceived a written reprimand because he was considered incompatible with fellow employees and had failed to follow his supervisor's instructions. Craft had left the employ of Pullman Power shortly thereafter but was re- hired in June 1983. Walker testified that Craft had also offended a , Georgia Power employee named Jimmy Gray, and interfered with his job. Sweeney was included in the layoff, according to E. J. Walker, because of his poor workmanship. Walker testi- fied that Sweeney was not able to do precision work and often needed the assistance of his partner to finish an as- signed job. Sweeney had, .according to Walker, a drink- ing problem which accounted for his deficiency. Like Bates and Ansley, Sweeney had also been involved in harassing the millwright travelers. - Walker testified that he did not consider the mill- wrights' seniority in the selection process because senior- ity had no, significance at Pullman Power. Furthermore, Walker did not consider, their work assignments. For ex- ample, Ansley had been assigned to the power block crew supervised by Foreman Marchman and Bates was a supervisor and Sweeney and Craft, were assigned to the special projects crew. Moreover, Walker decided to lay off four millwrights even though he testified that he had no more work for the entire special projects crew which consisted of one foreman, five journeymen, and one ap- prentice. It is the General Counsel's position that the four mill- wrights were laid off for pretextual reasons. First, the four millwrights were the most prominent activists in- volved in removing James Owens as their steward whom they, considered a "company man"; second, the layoff occurred. shortly after the steward election in which Owens was defeated as. the steward; andthird, Walker announced that he would make changes to put an end to their internal disputes. The record shows that Bates, Sweeney, Ansley, and Craft had become disenchanted with James Owens as their steward. They testified that he was unresponsive to their complaints, frequently inaccessible to them and was constantly in the company of E. J. Walker.- Bates ex- 771 plained his dissatisfaction with the. steward as follows (Tr. 103): Well, he wasn't representing the men. He was .spending more time with the company employees than he was the men '.... Well, instead of like, you know,- being in the hole, checking on the men, - see if they had problems, being down the railroad yard, he was in the truck ' with E. J. Walker or either Marvin Parks [his assistant]. Ansley testified similarly,' explaining- that if a mill- wright "took a complaint to him, he used it as sarcasm against you. He turned a complaint into something to hurt you." Craft testified that the millwrights wanted a crew shack to change clothes or for shelter in case of rain, yet Owens"would pass -it -off as a joke" (Tr. 197). The four millwrights talked to other millwrights about their problems and, as: explained by Sweeney, "[Sweeney], Ray Bates, Sterling Ansley, and John Craft went to [their] business agent " and "talked to him about, to have an election for a new steward" (Tr. 218). The meeting was held in the parking lot on August 9. All the millwrights were present and elected Herbert Currie as their new steward. By letter of August 17; Jervis J. Arthur, the Union's business agent, informed the Compa- ny of the selection of Currie as the new steward. When Walker held the meeting with the millwrights in the railroad yard on the morning of'August 22, Walker and Parks remarked that James Owens had been a good steward. As recalled by Bates, Walker further said, "y'all got to stop this squabbling and all that or there is going to be some changes made" (Tr. 113). Ansley recalled Walker as saying -"he did not know why we wanted a new steward. And then he said that there was going to be some changes made" (Tr. 179). Sweeney similarly tes- tified that "Mr. Walker stated that he was tired of hear- ing gripes and beefing and that there was going to be some changes made" (Tr. 219). And Craft testifying about the same meeting recalled Walker saying, "that he thought that James Owens made'a good steward and he was tired of all'the 'bickering and . . . he was going to make some changes" (Ti. 199). Walker admitted that he had a meeting on that day and that he expressed his dis- satisfaction with their "turmoil." I agree with the General Counsel that the record clearly shows that the four men were selected for layoff, not because of their work habits as described by Walker, but because Walker considered them to be troublemakers for having engaged in union activity and for having been involved In replacing their steward . ,Walker's own re- marks could not have been much more specific when on August 22 he announced that he would make changes because of their activity in replacing Owens. It obviously annoyed the Respondent to have to deal with a more employee-oriented steward. Owens was promptly re- elected after the layoff. Walker's testimony justifying the .layoff of these four men was generally vague , implausi- ble, and unconvincing. The layoff occurred within a few days of the election and the Union's notification on August 17 that a new steward had been selected, yet most of the incidents which Walker claimed justified the 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff occurred a year or more prior to the layoff. Walker described Sweeney as being poor, in workman- ship who had to work with a partner "who could carry him," yet Sweeney's- "working partner had been a mill- wright apprentice who certainly could "not :"carry- a journeyman millwrig}it.'Bates wasdescribed-as a'trouble= maker„yet Walker made 'him a foreman. Craft was char- acterized as a troublemaker, yet, Walker rehired him ,in June 1983. Walker testified that the special project crew was without work, yet he selected from various- crews, the four individuals associated with, the election for a new steward rather than the special projects crew which consisted of about 'seven men: Even the various incidents described-by Walker when analyzed closely are relative- ly minor infractions, such as,-the use of crude language involving millwrights travelers or a female apprentice, the "hassling" or arguing with other employees, absences without notification and- vague references of incomp'ata- bility among employees. Such,conduct when considered over a period of .l or more years would hardly, describe an-unusual situation on a construction site. I have, therefore, no difficulty in -concluding, that Re- spondent- discriminated against- these four millwrights, when it selected them for layoff,on August 22,, because of their union activity. , - , The sole issue to be-resolved is whether -the layoff. of Ray Bates also violated Section 8(a)(3) and; (1) because of the' record evidence showing that -Bates was a fore- man and, supervisor within the meaning of the Act -for approximately 90.percent of.his working time at Pullman Power- which presumably. includes the -relevant time of the four millwrights' conce'rted,or union activity..--. The record shows that Bates on at least two occasions "cut back to his tools" or gave up his supervisory' status and worked as a millwright journeyman, so that-his pro-- tected activity,. albeit for a'sliort duration,_occurred, also during that time. 'For example, -Bates testified that be- cause of family reasons he gave up" his- supervisory posi- tion when he was working in the Turbine Building.- His crew was assigned to that job during "the relevant time. Moreover; the record is 'clear' that on, August 22` Bates had been cut back to' his tools. Walker had not made' any decision- concerning the'layoff until some time on August 22'and--the'meri were not effectively laid-off until quit- ting time on August 22. Accordingly, the act of discrimi- nation occurred at a time when Bates was an employee. Since Bates' protected activities, however short in dura- tion; occurred-while he was an ,employee and since the act of discrimination occurred while he was an employ- ee, Respondent's conduct violated Section-8(a)(3) and (1) of-the Act with`respect to Bates as Iwell as to the other three discriminatees. - - CONCLUSIONS OF LAW 1. The Respondent, Pullman Power Products Corpora- tion, is admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of'ihe Act. 2. United Brotherhood of Carpenters and Joiners of America, Local Union No. 283 is admittedly a labor or- ganization within the meaning of Section 2(5) 'of the Act. 3. ' Respondent, by threatening 'its employee Ross Winner with the loss of his job, because of his activities protected by- Section 7, of the Act, violated Section 8(a)(1) of the•Act. - 4. Respondent, by discriminatorily laying off and re- fusing -to: reinstate Sterling Ansley, : Paul, Sweeney, -John Craft,, and Ray Bates because of their union activities, violated -Section 8(a)(3) and (1) of the Act. - 5. The other allegation has not been substantiated.' - -"REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to' ordei•'it to cease and-desist-and to- take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily laid off four employees, it': must', offer t them reinstatement and '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, less any. net -interim earnings, -as-,prescribed; in F. W. Woolworth -Co., 90 NLRB--289 (1950), plus interest as computed 'in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]