John J. Hudson, Inc.

874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John J. Hudson, Inc. and General Teamsters, Chauffeurs, Warehousemen and Helpers, Build- . ing Materials; Heavy Highway Construction Employees Local Union No. 404 , a/w Interna- tional Brotherhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America. Case '1-CA-20200 28 June 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 26 September 1984 Administrative Law Judge Harold Bernard Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and ;the General Counsel filed an an- swering brief. 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, I -and conclusions only to- the extent consistent with -this Decision and Order.2 - The Respondent is engaged in the sale, distribu- tion, and application of asphalt products from its facilities located in Providence, Rhode Island, and North Wilbraham,' Massachusetts. The Respond- ent's approximately 25 • drivers and helpers em- ployed at' its Providence facility have been repre- sented by -the Teamsters Union for many years. The North Wilbraham employees have never been represented by any labor organization. The Re- spondent- employed' five drivers and helpers at North. Wilbraham-until 27 August 19833 when it laid off three employees. On 23 August three of the North Wilbraham em- - ployees signed Teamsters authorization cards. One more employee-signed a card on 24 August and the cards were submitted to the Union the next day. The Respondent's North Wilbraham supervisory salesman Arthur. House informed its operations manager Frank Hudson on 24 August of the. em- ployees' organizational efforts. The next day Hudson directed House to lay off three employees i, The Respondent has excepted to some of the judge's credibility, find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard 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 We find merit in the: Respondent 's exception to the judge's recom- mendation that it be,required to post notices at both its North Wilbraham and Providence facilities The' Board requires notice postings on a com- panywide basis only-where there is a clear pattern or practice of unlaw- ful conduct, which we do not find here Accordingly, we shall order the Respondent to post the attached notice only at its North Wilbraham facil- ity' 3 All dates are 1983 unless otherwise indicated. 275- NLRB No. 123 in order of seniority effective Friday, 27 August. Thereafter, on -26 August House approached em- ployee Charles Sanford who was wearing a Team- sters button and told him, "I think you guys are killing yourself [sic]' over what you're trying to pull." There was no other discussion regarding the Union. We adopt the judge's finding that Arthur House was a supervisor and the Respondent's managerial agent and that his 26 August statement to Charles Sanford violated Section 8(a)(1) of the Act.4 However, for the - reasons set forth below, we disagree with the judge's finding that the Respond- ent violated Section 8(a)(3) and (1) of the Act by laying off three employees at its North Wilbraham, Massachusetts facility on 27 August 1983. In finding a violation of Section 8(a)(3) and (1), the judge found that the General Counsel estab- lished a prima facie case that the layoffs were un- lawfully motivated.5 In making his finding, the judge relied on the above-related statement by House as establishing union animus on the part of the Respondent affecting the layoff. We believe the judge's finding in this regard ignores the weight of the record evidence. Thus, the record reflects that the Respondent has recognized the Teamsters as the collective-bargaining representative of its em- ployees at its main facility in Providence, Rhode Island, -since 1956. During the parties' collective- bargaining relationship, not one written grievance nor unfair-labor practice charge has been filed by the Teamsters, the same Union conducting 'the or- ganizational drive at North Wilbraham. Further, House played no part in the Respondent's decision to lay off the employees. Rather, he was instructed by Frank Hudson, who is responsible for labor re- lations at both of the Respondent's facilities, to lay off the three least senior employees and this in- struction occurred prior to House's unlawful state- ment. Under these circumstances we cannot con- clude that House's subsequent statement to an em- 4 Although the Respondent excepted to the judge's finding that House is a supervisor and its agent, it stipulated at the hearing that he is a mana- gerial employee and that he exercises independent judgment in making work assignments Further the record reveals that House hired employee Kenneth Longtin, an alleged discnminatee Contrary to his colleagues, Member Hunter would find that House's remark under the circumstances was too ambiguous to constitute a threat or otherwise interfere with employee Sanford's union activities Accord- ingly, he would dismiss this 8(a)(1) allegation - 6 As noted above, MemberHunter would not find that House's remark to employee Sanford violated Sec 8(a)(1) Member Hunter further finds that House's subsequent remark to two of the laid-off employees that "there was no work for obvious reasons" is ambiguous Accordingly, and noting House played no part in the Respondent's decision to lay off the employees, Member Hunter concludes that neither statement supports a finding of union annnus and he agrees that the General Counsel has failed to establish a prima facie case with respect to the alleged unlawful lay- offs JOHN J HUDSON, INC 875 ployee establishes the requisite element of union animus affecting the layoff. There is no other evi- dence of union animus. We find, therefore, that the General Counsel has failed to meet her burden of establishing a prima facie showing to support an in- ference that the employees' protected activities were motivating factors in the Respondent's deci- sion to lay off three of its' employees. As no prima facie case exists, it is not necessary to pass on the validity of the Respondent's asserted ecomonic de- fenses and the judge's analysis of same.- Hardwick- Co., 263 NLRB 302 (1982); Mini Industries, 255 NLRB 995 (1981). Accordingly, we reverse the judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act and shall order that those allegations be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' 2. By threatening employees with economic re- taliation if they selected a union to represent them, the Respondent has engaged in unfair, labor prac- tices in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent has engaged in no other unfair labor practices violative. of the Act. ORDER The National Labor Relations Board orders that the Respondent, John J. Hudson, Inc., North Wil- braham, Massachusetts, its officers, agents, succes- sors, and assigns, shall ; - 1. Cease and desist from (a) Threatening employees with economic retal= iation for exercising rights guaranteed by Section 7 of the Act. - (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 purposes of the Act. (a) Post at its facility in North Wilbraham, Mas- sachusetts, copies of the attached notice marked "Appendix."6 Copies of the notice, on form's pro- 6 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 " vided by the Regional Director for Region 1, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by, the Re- spondent 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 be dismissed as to any alleged violations of the Act not found herein. MEMBER DENNIS, dissenting. Contrary to my colleagues and in agreement with the judge, I would find the 8(a)(3) and (1) violations with respect to the Respondent's 27 August 1982 layoff of three employees. In particu- lar, I disagree with the majority's view that the General Counsel has failed to make a prima facie showing in support of the complaint. On 23 and-24 August 1982, four of five unit em- ployees at the Respondent's North Wilbraham, Massachusetts facility signed cards for representa- tion by the Union, which had represented the Re- spondent's Providence, Rhode Island facility em- ployees in collective bargaining for many _years. Arthur House, the Respondent's lone supervisor at North Wilbraham, informed the Respondent's oper- ations manager Frank Hudson about the employ- ees' union activities on 24 August. The next day Hudson ordered -House to lay off three employees in order of seniority. On 26 August, House told an employee who was wearing a union button, "I think you guys are killing yourself [sic] over what you're trying to pull." On 27 August, House in- formed three employees-all of whom were open union adherents-that they were laid off. He told two of them, that "there was no work for obvious reasons." Before this occasion, the Respondent had never laid off employees before the end of its operational season in November. There 'is also no evidence that the Resptindent'had given either its employees or Supervisor House any - forewarning of work short- ages and declining profits in 1981 and 1982, the al- leged business motivation for the layoffs. Only 2 weeks before the layoff, House hired employee Longtin with the assurance that Longtin's job at North Wilbraham would be permanent and full time until the regular end of the season in Novem- ber. - 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority here contends that the aforemen- tioned facts do not suffice for a prima facie show- ing of unlawful motivation. My colleagues believe House's August 26 "killing -yourself' statement, which violated Section 8(a)(1),1 cannot serve to es- tablish "the requisite element of union animus af- fecting the layoff' because House played no part in the decision to lay off employees. They further be- lieve that there is no other evidence of union animus, and consequently the General Counsel has failed to make a prima facie case, particularly in light of a long history of collective-bargaining har- mony between the Respondent and the Union at the Respondent's other facility. I disagree with the majority. First, although House was not the decisionmaker for the layoff, he clearly was in a position to know decisionmaker Hudson's motivation, having reported union activi- ty to Hudson on one day and received the layoff order on the very next day. Under these circum- stances, House's 8(a)(1) threat as well as his subse- quent reference to "obvious reasons" for the lack of work and layoff are highly probative indicators of the Respondent's animus. Second,-the timing and nature of the layoff itself-an action unprecedented in the Respondent's operational history, taken with- out forewarning immediately after-Hudson learned about the employees' union activity-' raise a strong inference of antiunion motivation sufficient to es- tablish- a prima facie case. Finally, the ,Respondent's history of amicable relations with the Union at an- other facility does not foreclose the possibility that the Respondent would use unlawful means to oppose the unionization of a previously unorga- nized facility.2 Having. found that the General Counsel estab- lished -a prima facie case, I also agree with the judge that the Respondent did not carry its burden of proving that it would have laid off the employ- ees 'even in the absence of their union -activities. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Thus, - I would fmd that the Respondent discriminatorily laid- off three employees on 27 August 1982 in swift retaliation for 'their union activities, violating Sec- tion 8(a)(3) and (1) of the Act. - ' I join Chairman Dotson in adopting the judge's finding of a violation 2 See Awrey Bakeries, 197 NLRB 705, 711 (1972) 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 rights. 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 tell any employee that our em- ployees are killing themselves by engaging in union activities. 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. JOHN J. HUDSON, INC. ' DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrative Law Judge. I heard this case on November 16, 17, and 18 in Spring- _ field, Massachusetts, pursuant to charges filed September 1, 1982, and a complaint issued October 21, 1982, alleg- ing,that the Respondent John J. Hudson, Inc. (Respond- ent) discriminatorily laid off employees Merrill Hutchin- son, Charles Sanford, and Kenneth Longtin because of their activities in support of the Union, thereby violating Section 8(a)(1) and (3) of the Act. On the entire record, including the demeanor of the witnesses, exhibits introduced at the hearing, and briefs filed by the General Counsel and by the representative for the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Rhode Island corporation engaged in the sale, distribution, and application of asphalt products from locations in Providence, Rhode Island, and North Wilbraham, Massachusetts, to points outside those States, including destinations in.the State of Connecticut. Annu- ally, ' Respondent ships products valued in excess of $50,000 from its North Wilbraham location directly to points located outside the State of Massachusetts. It is found, as admitted, the Respondent is an employer en- JOHN- J. HUDSON, INC 877 gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is admittedly a labor orga- nization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A: Background - Respondent's main office and operating -facility is lo- cated in Providence, Rhode Island, where it employs. some 25 truckdrivers, and is" engaged .in the bulk trans-. portation of liquid asphalt to private contractors as well as application of asphalt-the latter work for towns and municipalities, comprising 10 percent of, its operation. Employees there are represented by Teamsters Local 251. In 1963, after many years of operating from the Providence location during which its drivers had serv- iced points in Massachusetts in 1958, the Respondent opened a facility in Westfield, Massachusetts, in order to service areas in western parts of that State. In '1973; Re- spondent moved such facility to the North Wilbraham, Massachusetts location, site of the dispute involved herein, and where it employed four or five drivers and helpers, as well as 'Arthur House, who was, as shown below, in command there. These employees, not 'repre sented by any union, were primarily used in application work-the spreading of. liquid asphalt and road tar on highways; but also' did transport work, including bulk- delivery of material from the 80 miles distant Providence facility to the North Wilbraham location. Respondent's work was seasonal, beginning for most employees around April or May' depending on the weather, , and lasting until November at which time employees would be laid off until- the start in the following year's season. In the history of Respondent's business operations spanning 20 or more years, there had never-been a:layoff of employ- ees at Providence, or since North Wilbraham has -been in operation, during the course of the regular season until' the events described below. In fact,; the record indicates' that Respondent took pains to' carry the entire North' Wilbraham work force, on the' payroll through the`first- weeks in November before laying its members off as-a' group, rather than gradually, phasing' out the"gioiip by staggering individual layoffs as work diminished towards- the season's end. . ' B. The Status of Arthur House ' - Arthur House, a veteran staff member in Respondent's; operations in western Massachusetts for 17 years,' served, as a salesman and supervisor at North Wilbraham, where he assigned work to the ' four, or five employees there. The parties stipulated that Arthur House exercises inde- pendent judgment in the performance of his assigning duties and, .further, that House is an authoritative 'repre- sentative of Respondent acting on_ its behalf at 'all. 'times material herein so as to'constitute `a'managerial ,employee, within the meaning of the Act. The stipulation is sup= ported'by record testimony establishing that House's.'su perior in Providence told North' Wilbralam ' emplo Yee Charles Sanford in July 1982 during a conversation there while Sanford was picking up a load that Hudson did not have -time to' look into a problem concerning over-.: time 'which Sanford had raised and that that (the over- time question at North Wilbraham) "was Arthur's ball- game." It is clear, as well, that Arthur House was the sole authoritative figure at the North Wilbraham loca- tion, 80 miles from Respondent's main office in Provi- dence. I find on the basis of all the foregoing, that Arthur House is a supervisory and managerial employee as well as an agent for Respondent within the meaning of the Act. C. The Employees' Union Activities In addition to Sanford 's contact with Hudson concern- ing the subject of overtime, noted above, employee Mer- rill Hutchinson testified that he spoke to Arthur House- also sometime - in July as well as in August concerning the same problem. Hutchinson told House that the em- ployees needed the extra money due them for working overtime and complained about Respondent 's knocking them off from work after employees worked "long" days (beyond 8 hours), but before the weekly 40-hour total re-• quired to trigger overtime pay was reached, asking that employees at least be paid overtime after 8 hours and suggesting that House take the matter up with "Frankie" (Hudson). House replied, "We'll talk," we'll talk." Hutch-. inson went on to advise . House during one of these con- versations that `.`you're inviting a union if you keep knocking us off like this.". Hutchinson also called Frank Hudson the first week in August at Providence concerning the overtime problem, suggesting Hudson speak ' to employees as the "troops were getting restless," but was told Hudson ' was too busy to get away. • On August 23, employees Hutchinson, Sanford, and Joseph Ragno discussed ' the overtime problem and the need for improved medical insurance coverage at the North Wilbraham drivers'. room during the midmorning hours of a rain-date interruption "in the work schedule. There was 'discus'sion concerning the desirability' of se-' curing similar benefits to those provided .for employees at Providence under the Local 251 Teamsters ' 'contract and a • decision was reached to seek union representation at .:North Wilbraham; Afterward, Sanford called, the office of Local- 404 Teamsters (the local servicing North Wilbraham), and arranged a meeting with Union Repre- sentative Jack Fonte which took place in 'midday that same 'day, at 'a, restaurant across from the North Wilbra- ham office. Fonte ' answered Sanford's questions; gave" him `five"union authorization cards and explained how- the cards were to be "filled in and '.that they would be- processed from there. Sanford: returned <to-,the drivers':room., and. the-three` employeesi signed union ,cards. _ Sanford-, put • the cards in . his pocket and gave Ragno an,unsigned card,, asking him, to have a fourth employee, Kennetfi Longtin,`sign ii and return it to him, which Ragno did, returning it to San- ford the next morning. On-Wednesday, August 25 , during another rain date, Hutchinson and Sanford went to the Local 404 union hall and met with Union President Albert Tardy to con- firm, their understanding from the talk with Fonte. Tardy explained the -benefits' iii union contracts 'and the 'men gave the four signed union cards to him .' Tardy 'then 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave the employees union buttons bearing the union logo on it and told them to wear the buttons, asking, also, whether Hutchinson could get Harold House, son of Arthur House, to sign a union card also, and indicating that the cards would be used to go to a representation election. The two employees returned to the drivers' room, wearing the Local 404 union buttons and passing out additional ones for the other employees to, wear, whereupon Kenneth Longtin and Joseph Ragno put the buttons on. Hutchinson then asked Harold House, who was present at this time, if he could sign a union card, show- ing him a card, but the latter said he could-not, also stat- ing, "I hope that you understand," and leaving the room saying he had to go to the office. D. Respondent's Knowledge of Employee Activities The record is quite clear that Respondent, through Arthur House, knew about the efforts by its employees to seek union representation. Arthur House testified that he knew a union was trying to organize employees when his son, Harold House, who resided with him, told him about it the evening of August 23. For his part, Harold House admitted that he had told his father about employ- ee efforts to organize a union at North Wilbraham, ac- cording to Hutchinson's and Sanford's undenied testimo- ny. Arthur House then told Frank Hudson this informa- tion the next morning in a telephone call to Hudson- who served as chief of operations and labor relations. Hudson, according to House merely told him to keep him posted, yet the vent next day, Wednesday, August 25, with dramatic swiftness, informed Arthur House about the layoffs of Hutchinson,. Sanford, and Longtin which occurred Friday, August 27, only 2 days later and with,no advance notice-to the employees. E. Respondent's Animus Towards Employee Activities On Thursday, August 26, the day before the employ- ees were laid off, Charles.Sanford was working in Tol- land, Connecticut by the back end of a distributor, wear- ing a union button, when Arthur House approached him in midmorning . Sanford said, "How's it going Art?" and in reply Arthur House said, "I think you guys are killing yourself [sic] over what you're trying to pull." Sanford replied that he felt "we had to do it," and there was then conversation about the work then underway. Hutchinson testified without contradiction that he and Joseph Ragno, also wearing a union button, were work- ing in Tolland the same day, August 26, and that a town official told him he had called Providence requesting .,our crew" 'stay !oil the' job -until it- was completed, the date estimated to be Monday,-August 30. The relevancy in this testimony to the issue in this case becomes readily apparent, in discussion, below concerning ,the, timing of the,layoffs. F.` The Alleged Cause for Discharge on August 27 On August 27, Arthur House testified that he told the three employees they were laid off due to lack of work, a reason advanced at this hearing in defense of the com- plaint allegations. . There are several troubling factors in Respondent's economic defense, which, combination, render it unper- suasive, if not wholly unsupported. The record shows that the gallons of asphalt material poured-a criteria supposedly relied on by Hudson in reaching a decision to cut back at North Wilbraham, ac- - tually increased in 1982, rather than diminishing (G.C. Exh. 14(1-4)). Thus, gallons poured' went from 266,253 the months of Apnl-August 27, in 1981 to 314,292 for the same period in 1982. In fact, Respondent's overall gallons poured at North Wilbraham and Providence rose in these periods from 579,937 in 1981 to 701,058 in 1982. Furthermore, as noted aptly by the General Counsel on brief, there was even a greater increase in the postlayoff months of 1982 "as compared with -those months in 1981." (Br. 16 and G.C. Exh. 14(1).) These figures are consistent as well with Respondent's own preunion activity predictions to employees Longtin and Sanford concerning the workload. Thus, when House hired Longtin on August 16, only 10 days before laying him off, he told Longtin the job was secure, that he would be working up until November and that he would be starting the next year in June." After these as- surances, Longtin left another job to accept new employ- ment with Respondent. Nothing was said to him about possible cutbacks in-season and, as noted, there never had been any. When Longtin was notified by House of his layoff, he confronted House with his earlier statement that the job was to be secure and permanent, but House, who did not deny such assurance, merely remained silent and gave no explanation as to the turn in events other, than what he had said about lack of work. - House also told Sanford in June that when the weath- er broke, "we would have more work than we could handle." In August, the same month Respondent im- posed the layoffs, House also told Sanford that "there was a lot of work to do." Employee Hutchinson testified that so far, as he could tell, August was a normal month, i The hiring of Longtin on August 16 with House 's assurances in re- sponse to Longtm's, pointed questions concerning how long the job would last, that it was secure and permanent (within the season), belies the testimony by Operations Chief Francis Hudson in support of the econom- ic basis for the layoffs Hudson testified that North Wilbraham was being closely monitored all through 1982, and that the subject of possibly cut- ting back at North Wilbraham if things did not get better was raised in the spring of 1982 and again the week before the layoffs were made, in discussion with House I cannot accept such testimony given the fact of House's assurances to Longtin 'on August 16 that the job was permanent and secure Tending to confirm further any preumon activity decision or anticipation or even contemplation of a layoff at North Wilbraham being entertained by Re- spondent is the luring of any additional help at all when, under the ad- vanced exaggerated testimony North Wilbraham had been a "loser" for years Things only got worse for Respondent when it further advanced the argument that Longtin wasonly hired as a replacement for an alleg- edly unreliable-m-attendance Sanford, that no additional augmentation to the work force was intended, yet it failed to prove either point leaving a reasonable basis to infer that -contrary to Hudson's evaluation-but con- sistent with House's statements to employees of an unconditionally busy season at North Wilbraham-that operation was normally busy in August 1982 or at least, certainly that conditions there did not require over half of the work force being laid off, without notice, and with no invitation tendered to return the following season to soften the blow This was swiftly .done in a manner manifesting hostility in a stark contrast to the undenied good-will atmosphere extant before the employees' union activi- ties. JOHN J. HUDSON, INC. - 879 that is, a busy one , and that he worked 74 hours the very week before he had been laid off. He testified that there had been no inkling that work was slow or that he might be laid off, and that House gave no indication before- hand of a possible layoff. The failure of Respondent 's efforts to establish any economic necessity for an unprecedented , sudden layoff, the decision for which was made on the very next day following Hudson's learning about employee 'union ac- tivities creates genuine suspicion concerning the motive behind such action . The admitted fact that Hudson had no financial data or reports available to him when' he made the -decision, and admittedly, did not know how- much was saved -by the layoffs is coupled with the equal- ly damaging admission that the relative economics in re- ducing Providence overhead costs versus North Wilbra- ham costs were not even considered by him , a highly relevant analysis it would appear , if economy in oper- ations was the motivating force behind Respondent's de- cision. It is further revealing that Respondent presented shifting arguments in its economics defense pointing to a "Clean Air Act"- at the hearing when 'first presenting its case, as well as a statute limiting or' restricting road paving expenditures-followed by reference to there being too much "yard-time" at North Wilbraham and the assertion that a discussion had been underway for years, regarding the North Wilbraham operation being a- "loser." In the first place, there was not a scintilla of evidence presented by Respondent tending to establish that the North Wilbraham facility , as aptly described by the Gen- eral Counsel on brief, was ever 'before viewed by Re- spondent as an independent cost 'center rather than merely an integral part of Respondent's overall financial operation . Thus, placing a "loss" face 'on North Wilbra- ham lacked relevance . The so-called after-the-fact loss figures for North Wilbraham in 1982 ; in any event, fail to establish the need for sudden reduction of more'than 50 percent of the work force, in midseason without notice and in the clear face of a busy, season there as demonstrated by the aforementioned -gallonage figures. In the second place, Respondent later shifted its 'de- fense from reference to the clean-air legislation, admit- ting in the course of the hearing that it had not lost any business due to such enactment and, finally , the record shows regarding Respondent's additional reliance on too much yard time work at Wilbraham that a substantial amount, of such yard time-50 percent or 'more-was productive, essential work, • and not actually deadtime sufficient to warrant so severe a cutback. Against this backdrop, the undenied, further testimony of employee Charles Sanford regarding the:-. reasons Arthur House gave , employees for the -layoff assumes im- portance. It is recalled that, the day befo're_ -the; layoffs, House told Sanford , "I think you.guys are killing; your- self [sic] over what you're trying to pull," clearly . a refer- ence to the employees' union activities . The -following day, Sanford recalls in his undenied 'testimony that House informed the employees, "the following three men are being laid off because there's no work for obvious reasons." When Respondent's counsel examined •Sanford and asked him what the obvious reasons were, - Sanford responded, "I have no idea, sir. Obviously it was because' we were probably trying to join the Union:" Since there is, I conclude from all the above, no other reason which would be an "obvious" one (there being no "obvious" economic reasons) other than House's statement the very day before, that the men were "killing themselves" by trying to seek union representation, Sanford's undenied attribution to House constitutes a further admission, again via - House, as to Respondent's true motivation for the layoffs. Analysis Little further analysis is required . The General Coun-' sel established a prima facie case for finding a violation in the layoffs described hereinabove . The employees' open, substantial efforts to seek union representation were admittedly known to Respondent's officials, House and Hudson , and were met with swift and unprecedented retaliation the day after Hudson -learned the news: Re- spondent, through House, told employees they were "killing themselves" by -engaging in those union activi- ties, thereby, I find violating Section' 8(a)(1) of the Act inasmuch ' as such comment was openly hostile, and linked to the current campaign or employee efforts seek- ing union representation, if you - will, and those efforts were known to Respondent.2 House further linked the layoffs to "obvious" reasons under circumstances, I find, leaving no doubt that those reasons had to do with the employees' union affiliation and the prospect of a repre- sentation election being conducted by the Board which - could lead to union representation at North Wilbraham. The timing and unprecedented nature of the layoffs in mid-season without notice and with no reference to vet- eran employees returning should work ' pick up or at the beginning . of the following season strengthen the prima -facie case further. Respondent's failure to support its economic defense, its shifting ' rationale and I exaggerated contentions • ad- vanced for the action taken, the absence ,of any, clear. evi- dence in support of the highly suspiciously timed ' action on the heels -of-employee union activity all combine with the-above to provide ' a preponderance of the evidence supporting 'the, conclusion that Respondent laid off: the three employees because of their activities in support of the' Union, 'thereby discriminating against them in viola- tion of Section 8(a)(3) of the Act. I so find . Marian Lewis, 270 NLRB 432 ( 1984), citing St. Regis Paper Co., 247' NLRB 745"-(1980); Fabricut, Inc., !238 NLRB; 768 (1980);'and °McCarty & Son , 268 NLRB 1136•(1984).• • - - III. THE EFFECT OF THE UNFAIR LABOR - PRACTICES i UPON;COMMERCE - - ; , .The activities of Respondent; set forth' in 'section' II; above; and-therein found to constitute unfair_ labor prac- tices in violation of Section 8(a)(1) and (3) of 'the Act, occurring . in,connection with Respondent 's business op- erations as set forth in' section I,-above , have a close, inti- mate,` and substantial relationship to -trade , traffic, and commerce among the several States and tend to lead to 2 Compare Marlon Lewis, cited below 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I will recommend that it be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Respondent laid off Merril Hutch- inson, Charles Sanford, and Kenneth Longtin on August 27, 1982, I will recommend that Respondent be ordered to offer them immediate and full reinstatement to their former or substantially similar positions, without preju- dice to their seniority or other nghts,and privileges, and that Respondent make them whole for any loss of pay they may have suffered by reason of Respondent's dis- criminatory actions by payment to them of a sum equal to that which they would have normally received as wages from the date of their termination until Respond- ent offers them reinstatement, less any net earnings in the interim. Backpay, with interest, is to be computed on a quarterly basis in the manner prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel-Corp.,, 231 NLRB 651 (1977).3 I further will recommend that Respondent make available to the Board, on request, payroll and other records in order to facilitate checking the amount of backpay due them and other rights they may be entitled to receive. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3. Respondent's officials Arthur House and Francis Hudson at all times material herein, were supervisors and agents for Respondent acting on its behalf within the meaning of the Act. 4. Respondent violated Section 8(a)(1) ' of the Act by informing an employee that Respondent's employees were killing themselves by engaging in activities in sup- port of the Union. 5. Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily - laying off employees Merrill Hutchinson, Charles Sanford, and Kenneth Longtin be- cause of employees' union activities. [Recommended Order omitted from publication.] s See generally Isis Plumbing Co, 138 NLRB 716 (1962)