Clark & Wilkins Industries, Inc.

106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Clark & Wilkins Industries, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Work- ers, AFL-CIO. Cases 2-CA-21012 and 2-RC- 19908 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On March 31 , 1986, Administrative Law Judge Winifred D. Morro issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Charging Party Petitioner filed cross-ex- ceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,' and conclusions,2 and to adopt her recommended Order as modified. 3 We agree with the judge that the General Coun- sel has sustained her burden under Wright Line4 of ' The Respondent and the Charging Party have excepted to some of the judge's credibility findings . 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. a The Respondent contends that the judge erred in finding Uriel Brown, on whose testimony the judge relies in finding that the Respond- ent had knowledge of union activity , to be a statutory supervisor because the complaint did not specifically allege that Brown was a supervisor and was not amended to so allege at hearing The Respondent further con- tends that, in making her determination as to Brown's supervisory status, the judge failed to consider the parties ' stipulation to Brown's voting eli- gibility in the representation proceeding . We find no merit to these ex- ceptions. First, we find, based on a careful reading of the record, that the issue of Brown's supervisory status was fully and fairly litigated at the hearing. Second, the Board has held that failure to request review of a Regional Director's approval of a stipulation for a consent election has preclusive effect only to related subsequent unfair labor practice proceed- ings (i e, 8(a)(5) refusal-to-bargain cases), and that subsequent unfair labor practice proceedings involving Sec 8(aXI) and (3) such as the in- stant proceeding are not related unfair labor practice proceedings Farm Fans, Inc., 174 NLRB 723, 724 (196'1); see also Clothing Workers, 365 F.2d 898, 902-905 (D.C Cir 1966); Reeves Bros, 277 NLRB 1568, 1573 (1986). We find that the judge properly resolved Brown 's supervisory status in this proceeding and we affirm her findings in that regard. a In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987 ), interest on and after January 1 , 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 Interest on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U.S.C. § 6621 ), shall be computed in accordance with Florida Steel Corp , 231 NLRB 651 (1977). 4 251 NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir . 1981), cert denied 455 U S 789 (1980), approved in NLRB v. Transportation Manage. ment Corp., 462 U .S 393 ( 1983). a prima facie showing that union activity was a motivating factor for the discharges of employees Phillip Greene and Cessil Chinfloo and that the Respondent has failed to demonstrate that these employees would have been discharged even in the absence of their union activity. As found by the judge, the discharges were precipitated by a locker room agreement among employees, including Greene and Chinfloo, on January 30, 1985, to attend a union meeting, and their attendance at that meeting where they signed authorization cards. Regarding the prima facie case, we find that the General Counsel has established the Respondent's knowledge of employees' union activity by evi- dence that Brown, a supervisor who spent a con- siderable amount of time with the small comple- ment of unit employees both on and off the job, was aware of the campaign , and we agree with the judge that Brown 's knowledge is imputed to the Respondent's steel superintendent, Wardrop. We find support for the finding of knowledge not only in inferences drawn by the judge from the size of the unit and Brown's close relationship with em- ployees and from Brown's incredible denials in seeking to distance himself from his subordinates' union activity, but also in direct evidence of Brown's knowledge contained in Greene's uncon- troverted testimony concerning his confrontation with Brown on the construction site the morning before Greene's discharge.5 Greene testified that he had become upset after Brown approached the worksite where Greene, Chinfloo, and another employee were erecting fences and doors and criticized the quality of their work. Greene told Brown that he was "tired of being used" and that he would take "steps . . . to change that." Brown replied, in obvious references to the union meeting and solicitation of authoriza- tion cards that had taken place the previous evening, that "any steps or anything you guys are going to do, do not include me." This testimony contributes to establishing not only the Respond- ent's general knowledge of union activity within the unit but specific knowledge of the participation of the employees to whom Brown's remark was di- rected, which included Greene and presumably Chinfloo. The Respondent's asserted justification for Greene's discharge was trumped up from events occurring the very morning after his activity in support of the Union-events which even his su- pervisor made clear he considered trivial, and 5 Member Babson, in concluding that the Respondent had knowledge of the employees' union activity, finds it unnecessary to rely on the small size of the unit 290 NLRB No. 19 CLARK & WILKINS INDUSTRIES which the judge found to be pretextual. Chinfloo's discharge occurred only hours after the Respond- ent was confronted by the Union with a demand for recognition. The fact that these employees' sup- port for the Union was pivotal in this small unit- their discharges enabling the Respondent to frus- trate the Union's efforts to achieve recognition- renders even their modest activities significant.6 Further, having discredited Wardrop's confused and self-contradicting testimony and thus finding that his asserted reasons for the discharges were false, the judge properly inferred that the real reason was an unlawful one.7 Accordingly, because the Respondent has not shown that it would have discharged the employees even in the absence of union activity, we affirm the judge's finding that it violated Section 8(a)(3) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders the Respondent, Clark & Wilkins Industries, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(c) and reletter paragraph 2(c) and subsequent paragraphs. "(c) Expunge from their files any references to the discharges of Phillip Greene and Cessil Chin- floo and notify them in writing that this has been done and that the discharges will not be used against them in any way." 6 See Advance Development Corp, 275 NLRB 186, 191, 195 (1985) ' See E Mishan & Sons. Inc, 242 NLRB 1344, 1345 (1979), Shattuck Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966) Richard L. DeSteno, Esq., for the General Counsel. Martin Gringer, Esq. (Marshall M. Miller Associates, Inc.), of Hewlett, New York, for the Respondent. Susan Martin, Esq. (Sipser, Weinstock, Harper & Dorn), of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE WINIFRED D MORIO, Administrative Law Judge. This case, heard on 15, 24, 25, and 31 October 1985 at New York, New York, was based on a complaint issued by the Regional Director for Region 2, on 3 July 1985 The complaint alleges, in substance, that Clark & Wilkins In- dustries, Inc. (Respondent/Company) discharged its em- ployees, Phillip Greene and Cessil Chinfloo, because of their activities on behalf of Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO (Union). The Re- spondent filed an answer in which it denied that it had committed the alleged unfair labor practices. 107 All parties were afforded the opportunity to present witnesses , to cross-examine witnesses , and to file briefs Briefs were filed by all parties On the entire record , including my observation of the demeanor of the witnesses and on consideration of briefs filed by the parties , I make the following FINDINGS OF FACT 1. JURISDICTION At all times material, in the Respondent, a New York corporation, with a facility located in the City and State of New York, was engaged in providing general con- tracting services in the construction industry. Annually, the Respondent, in the course and conduct of its business operations, purchases and receives goods and materials valued at in excess of $50,000 directly from firms located outside of the State of New York The parties admit, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties also admit, and I find, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II THE REPRESENTATION PETITION On 7 February 1985, the Union filed a representation petition, in Case 2-RC-19908, seeking to represent all production and maintenance employees of Respondent. At a conference held on 25 February 1985, issues were raised concerning the status of four employees, Phillip Greene, Cessil Chinfloo, Leslie Earlington, and Carrol Dyall. It was the position of the Union that these four employees had been temporarily laid off and, therefore, they were eligible to vote. The Respondent contended that the four employees had been discharged for cause. A hearing was commenced on 25 February 1985 regard- ing the status of these individuals, but it was terminated when the parties entered into a Stipulation for Certifica- tion upon Consent Election. The parties agreed that Greene and Chinfloo would vote subject to challenge be- cause the Union continued to maintain that the two em- ployees were laid off, while Respondent maintained that they had been discharged i An election was held on 20 march 1985, which resulted in six votes for the Union and six votes against the Union. The challenged ballots of Greene and Chinfloo, therefore, were determinative of the election. The Regional Director, on 9 April 1985, issued a notice of hearing to determine the status of these two individuals The hearing, initially scheduled for 19 April 1985, was postponed to 29 April 1985. On 22 April 1985, the unfair labor practice charge in the instant case was filed and, as noted, on 3 July 1985 the complaint in this case issued. Subsequently, on 9 July 1985 an order consolidating the hearing on the challenged ballots with the hearing in the unfair labor practice case was issued by the Regional Director. ' The Union, apparently, did not pursue its position about the status of Earlmgton and Dyall and they did not vote in the election 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III. RESPONDENT'S MOTION TO DISMISS THE COMPLAINT During the hearing, Respondent's counsel filed a motion to dismiss the complaint . It was counsel's position that the Union, by proceeding with the election on the basis that Greene and Chinfloo were eligible to vote be- cause they had been temporarily laid off, waived the right to claim, subsequent to the election, that the two employees had been discharged for discriminatory rea- sons. Counsel argued that the instant case is similar to the situation that existed in Irving Air Chute, 149 NLRB 627 (1964), where the Board held that when a union loses an election it may seek a bargaining order pursuant to Section 8(a)(5) of the Act where it had failed to file timely objections to the conduct of the election . Counsel contends that it would be a logical extension of Irving Air Chute to hold that where a union proceeds to an election and fails to allege, in a timely manner, that cer- tain individuals are eligible to vote as a result of unlawful discharges, it waives its right to subsequently assert the illegality of such discharges . The motion to dismiss was denied. However, counsel requested that he be permitted to amend his answer to include the grounds for his motion to dismiss as an affirmative defense . This motion was granted. IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Phillip Greene commenced his employment with Re- spondent in June 1983. According to Walter Wardrop, the Respondent's steel superintendent, he discharged Greene in March 1984 because he, together with another employee, drank while on the job and both individuals failed to perform the work assigned to them . Greene claimed that he was laid off and not discharged in March 1984 because of a slowdown in work . Greene did admit, however, that some weeks before he was laid off, both he and another employee were reprimanded by Wardrop because they had failed to perform assigned work, and Wardrop told both employees that he did not want them drinking on the job. Although Greene claimed that it was the other employee who was drinking, it does not appear that he told this to Wardrop at the time he was reprimanded . Greene testified that he was unable to per- form the assigned work because he did not know how to drive the truck to the jobsites, it was driven usually by the other employee . However, Greene did not explain why he had failed to call Wardrop to explain what had happened. Uriel Brown, employed by Respondent as a leadman, testified that he had been friendly with Greene. He claimed that Greene told him, that sometime in 1984, he went drinking with another employee and they failed to perform the work assigned to them and Wardrop was angry with them. About this time, Greene also told Brown that he had been fired. Although counsel for the General Counsel claimed that Brown, originally, testified that Greene told him he was fired for drinking and, sub- sequently, testified that he "guessed " Greene was fired for drinking, a careful examination of the record estab- lishes that Brown, in both instances, testified that Greene told him he had been drinking and that he was fired and Brown "guessed" that Greene was fired for drinking on the job. Greene admitted that between the time he was laid off in March and June 1984 he knew that Wardrop was hiring employees but did not recall him; however, he could not remember if he complained to Wardrop about this failure to recall him . Greene testified that in June 1984 he approached Wardrop and asked to be rehired, and he was rehired at that time. According to Uriel Brown and Wardrop, Wardrop rehired Greene only after Brown interceded with Wardrop, told him that Greene needed a job and asked him to hire Greene, which War- drop did in June 1984. B. Greene's Alleged Organizing Efforts Antonio Schifano, the Union's business representative, testified that he was first approached by some of Re- spondent's employees at the union hall in December 1984 and they spoke to him about their interest in the Union. It is unclear whether Greene was one of the employees in the group at this first meeting, but Schifano did testify that he knew Greene2 because Greene had assisted him with his organizing efforts at another company.3 Schi- fano claimed that sometime in December 1984, whether it was at this meeting or another is unclear , he gave 12 authorization cards to Greene to distribute to the other employees. According to Schifano , these were the only authorization cards that he gave to Greene. Schifano also testified that during the following weeks he met with Greene once a week , on a Wednesday, to discuss the progress of his organizing efforts. Greene's recollection of his first meeting with Schi- fano about organizing Respondent's employees differs from Schifano's recollection. Greene recalled that in early January 1985 he went alone to the union hall, be- tween 5:30 and 6 p.m., and he spoke to Schifano about organizing the employees. Schifano told him to talk to the "other guys" to see if they were interested and to try to have them sign authorization cards . Schifano gave him two authorization cards to show "as specimens to the other guys." In response to a question about whether these two cards were signed, Greene responded that they were signed in January 1985. Greene testified that within a day or two after he spoke with Schifano he discussed the benefits of joining the Union with three employees at the 125th Street subway station and he gave one of the authorization cards to one of the employees and he kept the other as a sample to show to the other employees. It appears that the employee who Greene claimed he gave the card to was Carroll Dyall. Greene, initially, testified that the employee who took the card at the station did 2 Schifano testified that he had known Greene for some time Howev- er, it appears that Schifano first met Greene a few months earlier when he was organizing B R B Iron Works. 3 Greene had worked for B R B Iron Works and while there he had signed an authorization card for the Union He was discharged by that company on 7 May 1984. In Case 29-CA- 11244 Administrative Law Judge Howard Edelman found Greene's discharge and the discharges of two other employees, Earl Mills and Carrol Dyall, to be violative of the Act CLARK & WILKINS INDUSTRIES not return it to him until the last week in January How- ever, in subsequent testimony Greene stated that the em- ployee who took the card at the subway station returned it to him "the second Wednesday in January." In the af- fidavit secured from Greene during the investigation of the case, Greene stated, "the first card was signed on or about January 28, 1985 "4 In fact, the evidence in the record establishes that authorization cards were signed by Leslie Earlington and Carrol Dyall on 28 December 1984 and 20 January 1985 5 Greene claimed that he se- cured additional authorization cards from Schifano about 17 January and that he distributed about 12 of these cards to employees during January at various locations, and the evening of 30 January, during a union meeting at the union hall, he secured an additional 5 cards, which he distributed to employees at the meeting. At one point, Greene testified that he secured seven signed authoriza- tion cards, but he did not state where or when he se- cured these cards At another point, Greene testified that with the exception of the one card that he gave to the employee at the subway station, all authorization cards, including his cards, were signed at the union meeting on 30 January 1985. Greene claimed that he did not sign an authorization card until the union meeting because he be- lieved that the card he had signed previously while em- ployed at B R.B Iron Works was sufficient. According to Greene, Schifano did not ask him to sign a new au- thorization card or explain to him why it was necessary to sign a new card at any time before the union meeting on 30 January 1985. Greene's recollection about when, where, or the number of employees he spoke to about the Union also varied constantly throughout his testimo- ny At one point, Greene testified that he spoke to 9 em- ployees and at another point he testified that he spoke to 12 out of 15 employees. According to Greene, a day or two before 30 January 1985, Schifano told him that he wanted to hold a union meeting at the union hall and he requested Greene to ask the other employers to be present. Greene testified that he spoke to other employees about the meeting, either by telephone or in the locker room, and he asked them to attend the meeting, which was scheduled for 5:30 p m Although the employees usually left work about 4:30 p in., Greene testified that on 30 January 1985 the em- ployees left the locker room about 5:10 p.m. and as they left they observed Wardrop and Colon, another supervi- sor, standing at the door. Greene admitted that it was not unusual for employees to leave in a group, nor was it unusual for supervisors to be standing at the entrance, which was also the exit, to shop. Schifano, Greene, and Chinfloo testified that the meeting was held on 30 Janu- ary as planned and it was attended by 8 of the approxi- mately 15 employees in the unit . Greene admitted that Brown was not present at the meeting, and there is no evidence that any supervisor was present. Schifano, Greene, and Chinfloo testified that during the meeting 4'Greene testified that he made a mistake in the affidavit when he said the card was returned on 28 January 1985 5 Greene claimed that Dyall's card was the first one signed, in fact Earlmgton's card was the first one signed Earlmgton's card, apparently, was submitted to the Board in connection with the representation petition because it bears the Board's stamp Dyall's card was not submitted 109 there was general discussion about the benefits the Union could secure and about the possibility of an election However, their recollection about other events that took place at the meeting differed As noted, at one point Greene claimed that he had secured seven signed author- ization cards, but, subsequently, he claimed that he had received only one signed authorization card before the union meeting and the other eight or nine cards, includ- ing his card and that of Chinfloo, were signed by the employees during the meeting. Schifano claimed that Greene had returned some signed authorization cards to him before the meeting, he could not recall how many, and that other cards were signed by the employees during the meeting. Chinfloo testified that Greene gave him an authorization card in early January 1985, he took the card and told Greene he would think about it There- after, on 30 January, but before the meeting, he signed the card and he handed it to Greene during the meeting In the affidavit secured from Chinfloo during the investi- gation of the case, he stated that he signed the authoriza- tion card when Greene gave it to him and he returned it to Greene at the jobsite C. The Status of Brown Greene testified the he became angry when Brown interfered with the work his group was doing on 31 Jan- uary 1985 because he did not consider that Brown was his supervisor It was Greene's position that his status was the same as Brown's status and, therefore, Brown had no right to tell him what to do The record reveals that Greene applied for a position as a welder; however, he testified that he considered himself to be a welder-me- chanic When questioned whether he had been told by Respondent's representatives that that was his classifica- tion, Greene admitted that he had not been told this and that it was his opinion that that was his classification. It is undisputed that Brown, who had more seniority than Greene, was a mechanic who was paid, at the time of the events in this case, at the rate of $11 50 an hour, while Greene was paid at the rate of $8 50 and hour. Moreover, it was evident that Brown could read blue- prints and that Greene, when tested during the hearing, could not do so, although he testified that he was capa- ble of reading such prints Wardrop and Brown both tes- tified that Brown became a leadman about mid-1984 and in that position, he received instructions from Wardrop about the work to be performed and he transmitted these instructions to the men on the job Wardrop testified that at the time of these events he had two leadmen, Brown and Earl Mills" and one person, Tom Wardrop, in train- ing to be a leadman. According to Wardrop, leadmen do not work alone, they work with other employees and they decide when other employees are to work at the site and the work they are to perform. A leadman also has the authority to change the work employees are doing when the considers it necessary to do so and he does this without prior consultation with Wardrop, who normally rotates from job to job each day. Leadmen do 6 Mills had been the employee responsible for the Union's organizing efforts at B R B Iron Works 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not have the authority to hire or fire employees, but they are responsible to report to Wardrop when they consider that an employee's work is unsatisfactory . It is also the leadman's responsibilty to decide when a job is complet- ed and to advise Wardrop of this fact . Finally, Chinfloo, who was hired after Greene, was paid at the same rate as Greene and he testified that when he worked with Greene he considered that he was an equal partner with Greene but, when he worked with Brown he worked as a helper. D. Brown's Knowledge About the Union Brown, initially, testified that he first became aware of the existence of the Union on the day before the elec- tion, which was held on 20 March 1985, when Schifano, the Union's representative, asked him to sign an authori- zation card, which he refused to do.'' Later, Brown testi- fied that 2 days before the election he saw the Board's election notices and it was then that he became aware of the Union. The record reveals that Brown was friendly with Greene and the other employees, he drank with them, had their telephone numbers and they had his, and he performed the same work they did and he used the same locker room . Further, it should be noted, regarding Brown's claim of a lack of knowledge, that the Union filed its representation petition on 7 February 1985, Re- spondent agreed to an election on 25 February 1985, and Roth and Wardrop distributed literature to employees in the weeks before the election in which they urged the employees to reject the Union. E. The Discharge of Greene On 31 January 1985, two groups of employees were assigned to erect railings and gates at 97th Street off Central Park. Greene, Chinfloo, and a new employee, Kevin Brennan , worked at one end of the project, while Uriel Brown and Tom Wardrop8 worked at the other end of the project . It was Greene's position that War- drop had assigned him to head one section of the project and had given him a sketch that detailed the work to be done, and that Wardrop had assigned Brown to head the other section and had given him a sketch to outline the work to be done by his group. Approximately several hours after the job started , Wardrop returned to the job- site and, according to Greene and Chinfloo , he examined the work they were doing, expressed satisfaction with the job, and then left to speak with Brown. A few min- utes after Wardrop left the jobsite , Brown walked over to where Greene and Chinfloo were working and he began to criticize their work and told them they were too slow. Greene testified that he was angry because his group had progressed on their section further than Brown's group and he told Brown to get off his job. Green claimed that he told Brown that he was tired of being used and that steps were being taken to change that. Brown responded that Greene was not to include him in any changes, he was not interested . Greene ° Schifano claimed that it was in the week before 6 February 1985 that he asked Brown to sign an authorization card after Greene identified Brown for him 9 Tom Wardrop is the son of Walter Wardrop. claimed that he had asked on prior occasion to sign an authorization card and Brown had refused. Brown denied that Greene had asked him to sign a card. Al- though Chinfloo testified that Brown criticized the work that they were doing, he did not testify that Greene told Brown that he was tired of being used , nor did he testify that Brown told Greene not to include him in any changes. According to Wardrop, on 31 January 1985 he helped the men to unload the truck and then he left the site. He returned to the job between 1 and 2 p .m. and he ob- served that the section where Greene , Chinfloo, and Brennan were working was set up wrong , the job was being done incorrectly, and it was unsafe . He did not speak to Greene or Chinfloo but he did speak to Brown who was the leadman. He did not consider Greene a leadman. He told Brown the job was being done incor- rectly and he instructed Brown to check the work. Brown told him he would take care of the problem and Wardrop left the jobsite . The affidavit secured from Wardrop contradicts this testimony . According to the af- fidavit, Brown informed Wardrop that he gave Greene an assignment and it was taking Greene too long to do it. Brown also told him that when he tried to correct Greene, Greene screamed at him. Brown testified that on 31 January 1985 Wardrop gave him instructions and the documents for the job at 97th Street. According to Brown, he was the leadman on the job and he assigned Greene, Chinfloo, and Brennan, all of whom were helpers, to erect one section that he re- ferred to as section C, the most difficult section to erect. He worked with Tom Wardrop to erect the other sec- tion. Initially, Brown testified that about 3:30 p.m. he went over to where Greene, Chinfloo, and Brennan were working in order "to give them a hand" and he noticed that they were not doing the work properly , they were attempted to assemble three pieces of the railing at once, when they first should have anchored one piece of the railing to the wall . When he attempted to give instruc- tions about how the work should be done , Greene ap- peared to resent it and contradicted him. On cross-exami- nation, Brown stated that he did not make a thorough check on the progress of the work being done by Greene's group, but he did make a quick check and the work seemed to be progressing at a normal rate. About 1 p.m., Wardrop returned to the jobsite, he checked the work done by Greene's group, and he returned and told Brown that the work was not being done properly, it was not safe, and he told Brown to check the job. Brown claimed that he had not noticed how Greene and the others were doing the work until Wardrop spoke to him. He then checked and saw that they had done one section correctly, but the section they were then work- ing on was not being done properly , and he told this to the employees. He then instructed the employees about how the work should be done , and Chinfloo and Bren- nan followed his instruction but although Greene did not argue with him, he refused to change the way he was doing the work. It is undisputed that later that day in the locker room, about 4:30 p .m., Greene and Brown had a confrontation CLARK & WILKINS INDUSTRIES about Brown's efforts to correct Greene's work. Accord- ing to Greene, he told Brown to quit "messing around" with his job, voices were raised , and he might have said in more explicit language that Brown should not inter- fere with his work . Greene claimed that Wardrop came to the door of the locker room , asked what was going on, and when Brown replied that they were having a discussion, Wardrop left the room . Brown testified that when he went to the locker room later that day Greene confronted him and told him that he did not want Brown to interfere with his work again. Brown replied that he was trying to get the job done , and he told Greene that he thought the matter was finished . At this point, Wardrop passed by and he asked Brown what was the problem and he told Wardrop what had happened and that he thought the matter was closed but Greene confronted him about it in the locker room . According to Brown, when he spoke to Wardrop, Greene was still in the locker room . Brown testified that he did not ask Wardrop to do anything about the matter , it had not been his intention to tell Wardrop about the incident, that he had done so only because Wardrop questioned him as he left the locker room. Wardrop's testimony differs from Brown 's testimony. According to Wardrop, he heard yelling and screaming in the locker room, he opened the door and saw Greene, Brown, and other employees, and he asked what was the matter. Brown responded that he had an argument but he did not say with whom he had the argument. War- drop left the room . Later, Brown came to him and told him that he had attempted to assist Greene and others at the jobsite and Greene had yelled at him and told him to leave his work alone . Brown told Wardrop that when he tried to explain to Greene that what he was doing was wrong, Greene continued to scream at him. Wardrop said that Brown did not ask him to do anything, but he did say that he did not want that to happen again Initial- ly, Wardrop claimed that he went immediately to look for Greene to fire him for insubordination but at that point Greene had left work. According to Greene , on 1 February 1985 when he ar- rived at work at 7:30 a .m. Wardrop called him to his office and told him that he was laying him off for a few weeks but that a "big job" was coming up and he would then be called back to work . Greene claimed that he asked Wardrop if he was dissatisfied with his work and Wardrop responded that he was not , that Greene should file for unemployment benefits because he was being laid off.9 Greene admitted that he did not question Wardrop about why Brennan and other employees with less se- niority were being retained when he was being laid off. Greene testified that he spoke with Wardrop a week later about when he would be called back but Wardrop said that he was not ready to call him at that time. Wardrop testified that on 1 February 1985 as soon as Greene arrived at work he told him that he was dis- charged for insubordination. He also told Greene, "You've been screwing up long enough and this is the final thing. I just can't take insubordination on the job anymore. You're fired." Although , as noted, Wardrop 9 Greene did collect unemployment benefits 111 claimed, initially, that he had decided to fire Greene as soon as he heard Brown's story, on cross-examination, Wardrop testified that he did not make an immediate de- cision to discharge Greene when Brown reported the in- cident to him Rather , he thought about the matter over- night and then he decided to discharge Greene, which he did the following morning. When counsel for the General Counsel asked Wardrop why he looked for Greene after his conversation with Brown, he stated that he looked for Greene, "Probably to raise hell with him." Further probing by counsel produced these responses by Wardrop. Q. Were you prepared to fire him at that point? A. Yes I was Q. So, actually,-was that right after you spoke with Brown? A. I guess you can say that Q. So you made the decision right at the end of the conversation with Brown .. . then didn't you fire Mr. Greene? A. Was I going to fire him at that time? Q. Did you make the decision to fire Mr. Greene right at the end of your conversation with Mr. Brown? A. No, I didn't. Q. So when you went to see Mr. Greene, were you or were you not prepared to fire him when you went to look for him? A. I was prepared to fire him but I didn't say I was going to fire him. But after I thought about it, I know that this had to be done. Q. Okay, you say you were prepared. In other words, you didn't have a clear intention of going out to look for him to fire him, right? A. At that-say that again Sir. Q. You did not go to look for Greene with the clear intention that you were going to fire him when you found him. A. Not really. According to Wardrop's affidavit, after he spoke with Brown he went out to fire Greene but Greene had left the building . When this statement in the affidavit was called to his attention , Wardrop changed his prior testi- mony again and testified that when he went to look for Greene it was his intention to discharge him. Wardrop admitted that he did not ask Greene for his version of the events on 30 January 1985. Although Brown had not requested Wardrop to dis- charge Greene, Wardrop testified that he decided to dis- charge him because he considered insubordination to be a very serious matter . Wardrop claimed that it was nec- essary for the employees to work together and to obey the instructions of the leadman because the type of work they performed could be dangerous. F. The Discharge of Chinfloo Chinfloo began his employment with Respondent in September 1984. Chinfloo claimed that he applied for a position as a welder but when Wardrop hired him he did not tell him "definitely" what the job was for which he 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was hired . He denied , specifically, that Wardrop told him that he was hired as a helper or driver. Subsequent- ly, he admitted that during the initial interview Wardrop asked to see his driver's license and told him that he would both drive a truck and go out on jobs. Chinfloo claimed that he told Wardrop that he was from the West Indies and was not familiar with the city but Wardrop assured him that it would not be a problem , he would be accompanied by other employees who would know the location of the jobsites. During the period between September 1984 and Feb- ruary 1985, Chinfloo claimed that he drove the truck to jobsites on only 10 occasions and the remainder of the time he worked at the jobsites, frequently with Greene. Chinfloo testified that about January 1985, Greene spoke to him about the benefits of the Union and he gave him an authorization card to sign . As noted above, Chinfloo's recollection about when he signed the card varied at dif- ferent points in this testimony but he did state that he did not believe that any representative of Respondent was aware that he had signed an authorization card . Both in the affidavit he gave the Board and in his initial testimo- ny, Chinfloo claimed that it was on 7 February 1985 that he had a conversation with Wardrop , during which War- drop told him that he had been instructed by "° to lay off a man and he, therefore, had to lay off Chinfloo. Chinfloo claimed that he recalled that the conversation occurred on 7 February because he wrote down the date. During this conversation , Wardrop told him that he would be laid off for only a few weeks , that he was a good man and he would be the first one to be recalled when Wardrop "gets this thing straightened out." Chin- floo testified that he did not ask what things Wardrop re- ferred to and he did not ask why he was being laid off when he had more seniority than Brennan . Chinfloo told Wardrop that he was moving and he gave Wardrop his new address and Wardrop then told him that he would let him know, definitely, by noon, whether he was laid off. Later that day, a foreman told Chinfloo that War- drop said that Chinfloo should leave by 3 p .m. When Chinfloo asked whether that meant he was laid off, the foreman replied that it did. Chinfloo denied that War- drop had told him at any time that he would be dis- charged if he did not become familiar with the city streets. On cross-examination , Chinfloo admitted the conversa- tion with Wardrop about his layoff could have occurred on 6 February 1985. Chinfloo's payroll records establish that he worked 8 hours on both 4 and 5 February and for half a day on 6 February 1985 and that, thereafter, he did not work for the Respondent . Chinfloo also recalled, on cross-examination , that sometime in early February 1985 he was told by Wardrop to pick up debris at some location on Riverside Drive, but he could not remember where he was to make the pickup and he could not de- scribe how to get to the location . According to Chinfloo, Kevin Brennan was present when Wardrop asked him to pick up the debris but Brennan also did not know how to get to the jobsite and , thereafter, they followed Wardrop to the site, made the pickup, and returned, without War- drop's assistance, to the shop. Wardrop testified that he hired Chinfloo as a driver- helper and he told him his classification when he hired him. Chinfloo said he was not familiar with the city but Wardrop told him he would learn. Thereafter, Chinfloo worked both in the field and the shop but, according to Wardrop, he was not a good worker , "he was slow and sloppy." After Chinfloo had been on the job for several months, Wardrop told him , a few days before 6 Febru- ary 1985, to go to a site on 70th Street and West End Avenue to pick up some debris. Chinfloo said that he did not know how to get there, and Wardrop claimed that he then described , in detail, the route Chinfloo was to follow but Chinfloo did not appear to be able to follow Wardrop's instructions. Wardrop claimed that he then drew a map detailing the route for Chinfloo to follow but Chinfloo could not follow these directions. At this point, Wardrop decided he had no choice but to drive to the site and have Chinfloo follow him with the truck. Wardrop testified that this was the first time he realized that Chinfloo had not learned his way around the city and he decided that it was useless to keep Chinfloo, who had been hired primarily to drive, if he could not follow directions. Therefore, on 6 February he called Chinfloo to his office about 12 :30 or 1 p.m. and he told him that he was discharging him because his work performance was not satisfactory." Wardrop claimed that he had planned to talk to Chinfloo before 6 February 1985 but he became involved with another job and was unable to do so until that time. G. The Schifano Meeting There is no dispute that Schifano came to the premises of the Respondent, met with Roth , the Company's presi- dent, and requested Roth to recognize the Union as the representative of his employees. However, there is a dis- agreement about the date when this meeting occurred. The counsel for the General Counsel contends that the meeting occurred on 6 February 1985 and the meeting was a significant factor in the discharge of Chinfloo, which occurred on that date , although as noted, Chin- floo initially claimed that he was laid off on 7 February 1985. Respondent's counsel claims that the meeting oc- curred on 7 February 1985, after Chinfloo had been dis- charged. According to Schifano, he went to the Respondent's premises on 6 February 1985 at 7 :45 a.m., with two other union representatives to seek recognition . When he ar- rived at the premises, the employees told him which person was Wardrop , he then spoke to Wardrop and told him that he was seeking recognition as the representative of Respondent's employees. Wardrop told him that he could not help him, he would have to speak with Roth, the Respondent's president . Schifano left but he claimed that he returned about 10 a.m. on that same day and he met with Roth , told him that the employees had signed authorization cards for the Union , and he asked Roth to enter into negotiations. Roth asked who had signed 10 Jack Roth, Respondent's president 11 Chinfloo collected unemployment insurance benefits. CLARK & WILKINS INDUSTRIES cards, and Schifano agreed to show him the signed au- thorization cards provided that Roth would agree to rec- ognize the Union Ruth responded that he would go out of business but Schifano testified that he persuaded Roth to meet with him the following day at a nearby restau- rant, the Fox & Hound, to discuss the matter Schifano claimed that he was certain that this meeting with Roth took place on 6 February and not on 7 February 1985 because an entry in his calendar listed an appointment for 7 February at the Fox & Hound Restaurant. Howev- er, when asked where that restaurant was located Schi- fano was unable to respond and there does not appear to be a listing in the telephone directory for such a restau- rant in the nearby boroughs. Moreover, an examination of Schifano's calendar reveals that words were erased in the space where the name Fox & Hound appears. According to Schifano, later in the day on 6 February 1985 he received a call from Roth's office and he was told that the scheduled meeting for the following day was canceled and Schifano was told that he should con- tact Roth's attorneys. Schifano then called his office and advised them that they should file a representation peti- tion. In support of its position that Schifano met with Roth on 6 February, the Union called Harper, its counsel as a witness. Harper had no direct knowledge regarding Schi- fano's meeting with Roth. However, she did testify about an entry in her work diary concerning Respondent. Ac- cording to that entry, Harper met with Don Bell, a union representative, at 10 a.m. on 7 February to discuss the filing of a representation petition for Respondent's employees. Harper could not state the precise time when that meeting was arranged but she believed that it had to be sometime before 10 a.m on 7 February 1985, and she based this belief on her normal practice when she ar- ranged meetings with clients. Harper testified that when a client sought an appointment she entered a notation in her diary for that future appointment, she would not make such an entry at the time she actually met with the client. Further, it was her practice to arrive at her office between 10:05 and 10 10 a.m. Harper admitted that her secretary does make entries in her diary, at times, before she arrives at work, but the entry respecting her meeting with Bell was in her handwriting It was Harper's recol- lection, that the representation petition was prepared when Bell was present and that he hand delivered it to the Board An examination of the petition, establishes that it was filed on 7 February 1985 at 2:05 p.m. and it shows that the space is blank with respect to when the request for recognition was made. Roth did not testify, but Wardrop testified that it was on 7 February 1985 when Schifano came to the Re- spondent's premises, introduced himself, and asked to speak to the "boss" but he did not tell Wardrop why he wanted to see the "boss." Wardrop told Schifano that Roth, the president, would be in about 9 a.m. and Schi- fano left but returned about 9:30 a.m. and he met with Roth. Wardrop claimed that he was present for part of the meeting and he heard Schifano tell Roth that he had organized the employees and that he wanted to sit down to talk with Roth. Discussion 113 It is the position of counsel for the General Counsel that Greene initiated the organizing activities on behalf of the Union, that in the plant and at jobsites, he urged employees to join the Union and to sign authorization cards for it, that Respondent became aware of the activi- ties either through Brown or under the theory of the small plant doctrine and that Respondent discharged Greene because of these activities Counsel concedes that Chinfloo's union activities were limited to ' signing a union authorization card and attending a union meeting but counsel contends, nevertheless, that Respondent dis- charged Chinfloo either because it perceived him as being "guilty" by virtue of his association with Greene, or in an effort to reduce the number of employees who supported the Union or to camouflage Greene's dis- charge. In any event, he argues, Chinfloo's union activity was the motivating factor in Respondent's decision to discharge Chinfloo In the alternative, counsel argues that if the administrative law judge finds that these em- ployees were not discharged, but were laid off, then their union activity was the reason for Respondent's fail- ure to recall them. The counsel for the Union agrees with the arguments of the counsel for the General Coun- sel. In addition, she contends that if the discharges or layoffs are not found to be discriminatorily motivated, then the record supports a finding that the employees were temporarily laid off, had a reasonable expectancy of recall and, therefore, were entitled to vote and their ballots should be opened and counted. The Respondent has reiterated its argument that the Union failed to raise the issue of discriminatory discharges before the election and, therefore, it has waived its right to raise that issue in this proceeding. Counsel for Respondent also claims that the General Counsel has failed to establish any knowledge by Respondent's representatives of union ac- tivity by employees. Finally, he argues that these em- ployees were not laid off, they were discharged for cause. All counsel agree that the case presents credibility issues, but each contends that the witnesses who testified in support of their position were completely trustworthy and it was the witnesses for the other side who slanted the truth. Unfortunately, the resolution of the credibility issue in this case is not that simple My observation of the demeanor of all the witnesses and my examination of the record convinces me that witnesses for both sides tended to tell only part of the truth. Accordingly, in re- solving the credibility issues, I have accepted some por- tions of the testimony of the witnesses for both sides and have rejected other portions of their testimony The court and the Board have stated that "a trier of the facts is not required to accept the entirety of a witness' testi- mony, but may believe some and not all of what a wit- ness say." NLRB v. Universal Camera Corp, 179 F.2d 749, 754 (2d Cir. 1950); PBA Inc., 270 NLRB 998 (1984); L. D. Brinkman Southeast, 261 NLRB 204 (1982). The first issue to consider is whether Greene was the employee who was responsible, initially, for the Union's presence at Respondent's premises. According to Greene, he was the employee who approached Schifano 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about organizing Respondent's employees and he, there- after, urged employees to join the Union and to sign union authorization cards . More specifically, Greene tes- tified that in early January 1985 he went , alone and with- out an appointment, to the union office where he spoke to Schifano about organizing the employees and Schifano gave him two authorization cards as "specimens" to show to the other employees . Schifano, who was called to testify on Greene's behalf, did not support this version of the alleged meeting . According to Schifano, in late December 1984 he first heard about Respondent because it was "brought to his attention by some-some of the employees working there." Schifano further testified that at some point in December 1984 he met with Greene, whether it was at the meeting with other employees or at another one is unclear, and he gave him 12 authoriza- tion cards to distribute to other employees . It is difficult to understand how the participants to this meeting could differ on such crucial points as to when the meeting oc- curred, who first informed Schifano about Respondent and the number of authorization cards given by Schifano to Greene. It is evident that the differences arose because Greene and Schifano testified about a meeting that had not occurred between them. However, Schifano did meer to discuss organizing ac- tivities with an employee of Respondent in December 1984. The record reveals that on 28 December 1984 Leslie Earlington, then a Respondent employee , signed the first authorization card for the Union and he signed his card more than a month before Greene signed his au- thorization card . Generally speaking, the employee who contacts the Union signs either the first or one of the first authorization cards. t z Greene recognized this fact and he knew that his failure to sign an authorization card until late January undercut his contention that he was the instigator of the organizing efforts on behalf of the Union. He, therefore, offered an explanation for his fail- ure to sign the card before 30 January 1985. That expla- nation is not plausible. Greene claimed that he did not sign the authorization card at an earlier date because he believed that the authorization card that he had signed for the Union while employed at B.R.B. Iron Works was sufficient . It is unbelievable that Schifano, an experienced organizer, would have failed to inform Greene of the need to sign a new card, particularly if Schifano met with Greene as frequently as he claimed he did through- out January 1985. There was further contradictory testimony given by Schifano and Greene, which casts doubt on Greene's as- sertion that he was the main employee organizer for the Union. Schifano claimed that he gave authorization cards to Greene on only one occasion . However, Greene testi- fied that he received authorization cards from Schifano on two occasions, the first time was in early January, the second time was about the mid January 1985. According to Schifano, he received several signed authorization cards from Greene before 20 January 1985. Greene's tes- timony on this issue varied at different points . Although Greene testified, at one point, that he secured seven signed authorization cards, apparently before 30 January 12 As noted, Earhngton was discharged in January 1985. 1985, he did not state that he gave these cards to Schi- fano. Subsequently, he testified that he secured only one signed authorization card before 30 January 1985, the other cards, including his card and that of Chinfloo, were signed at the union meeting held at the end of Jan- uary. Greene's testimony and the statements he made in his affidavit about when he secured the one signed au- thorization card also were not the same . He testified that he secured the card on the second Wednesday in Jan- uray 1985, however, his affidavit stated that he secured the card on 28 January 1985. In fact , the card that Greene claimed he secured was signed on 20 January 1985.'Greene's testimony concerning the number of em- ployees he spoke to about the Union also varied depend- ing on when he testified about the matter. I do not credit Greene's assertion that he was the prime mover in the organizing efforts for the Union, and I base this conclusion not only on my observation of Greene's demeanor, but on the internal contradictions in his testimony and on the contradictions between his testi- mony and that of Schifano. In determining that Greene's testimony was not trustworthy regarding his contention that he instigated the union activity , I have also consid- ered his testimony concerning his prior separation from Respondent in June 1984. Greene claimed that he was laid off and not fired for drinking. However, an examina- tion of Greene's entire testimony and that of Brown on this issue establishes that Greene, in fact, was fired in June 1984 for drinking on the job. The record establishes that the Union's efforts to orga- nize Respondent's employees began at least as early as 28 December 1984, as evidenced by the fact that Earlington signed an authorization card for the Union on that day. The record establishes that these organizing efforts con- tinued in January 1985 and that on 20 January 1985 Carrol Dyall also signed an authorization card for the Union. 13 Although I do not find that Greene was as ac- tively involved in these organizing efforts as he claimed, I do find that both Greene and Chinfloo were part of the group who met in the locker room to attend the union meeting on 30 January 1985 during which they both signed authorization cards for the Union , which cards were submitted to the Board in support of the represen- tation petition." It is Respondent's position that it was unaware of any union activity by Greene , Chinfloo, or any of its employees prior to 7 February 1985 and that, therefore, it could not have discharged either Greene or Chinfloo because of such activity. I do not credit that contention. Wardrop testified that Brown was a leadman and in that capacity, at the time of the events in this case, he had certain responsibilities over the actions of the other employees when Wardrop was not at the jobsite, which occurred frequently because Wardrop rotated one job to another. According to Wardrop, leadmen had the au- thority to assign men on the job, to determine the work the men were to do, to rotate them if he determined that 1s Dyall also was discharged in January 1985 14 In view of my finding concerning Greene's role in the organizing efforts, I do not credit Chinfloo's testimony that Greene gave him an au- thonzation card at a jobsite sometime in January 1985 CLARK & WILKINS INDUSTRIES it was necessary and to perform these functions without prior consultation with Wardrop Leadmen also had the responsibility to decide lunch and breaks periods, to decide when a job was finished, and to tell the men when they could return to the shop. Although leadmen did not have the authority to hire, fire, or reprimand an employee, it was their responsibility to inform Wardrop about any dissatisfaction they had with an employee and about any problem that arose on the job. Greene's claim that he had the same status as Brown is not supported by the evidence in this record. The record reveals that Brown was paid at the rate of $11.50 an hour, while Greene was paid at the rate of $8.50 an hour, the same amount paid to Chinfloo, who was a new employee. Brown had greater seniority than Greene and unlike Greene he had the ability to read blueprints, which would be necessary in order to direct the work of the other employees. Significantly, Chinfloo testified that when he worked with Greene he considered that they worked on an equal basis but when he worked with Brown, he worked as a helper to Brown. Based on this record, I find that Brown responsibly directed other em- ployees and that he was a supervisor within the meaning of Section 2(11) of the Act. Dale Service Corp., 269 NLRB 924 (1984); Serendippity-Un-Ltd. & Tigerrr, 263 NLRB 768, 771 (1982) In efforts to establish Brown's knowledge of union ac- tivities, Greene claimed that in January 1985 he asked Brown to sign an authorization card. Because of my find- ings concerning Greene's role in the union organizing ef- forts, I do not credit that claim Schifano testified that he solicited Brown to sign an authorization card in the week before 6 February 1985. Brown admitted that Schi- fano asked him to sign an authorization card, but he tes- tified that the incident occurred a day or two before the election that was held on 19 March 1985. This disparity in the dates concerning this incident illustrates my prior statement that in the instant case witnesses for both sides tailored their testimony to suit the positions they held. Thus, Schifano claimed the incident occurred the week before 6 February 1985 in order to establish Respond- ent's knowledge of the union activities by employees before the layoff or discharge of Greene and Chinfloo. Brown testified that it occurred later to support his posi- tion that he had no knowledge of union activities until well after the discharges. Respondent has advanced many theories to support its position that the incident could not have occurred as early as Schifano claimed, and the counsel for the General Counsel has argued that it could not have occurred as late as Brown claimed. The fact is that the evidence in the record is insufficient to establish the exact date when the incident did occur. However, I am not convinced that it occurred as early as Schifano claimed or as late as Brown stated. Although the date of this particular incident is uncertain, I find, for other reasons, that Brown did have knowledge of the union activities of the employees before 1 February 1985. Brown, initially, testified that he first became aware of the existence of the Union on 19 March 1985. He then testified that he became aware of the Union about a day or two before the election when he saw the Board's elec- tion notices in the plant. That testimony must be evaluat- 115 ed in light of the circumstances, which existed at that time in the plant. The shop where Brown and the other employees worked was a small one, there were 15 em- ployees in the unit and Brown worked closely with these employees, often performing the same work they did. He shared a locker room with these employees, and he was on a friendly basis with them both during and after work hours. He exchanged telephone numbers with several of the employees and he frequently had drinks with them at a local restaurant. Despite his friendship with these em- ployees, and his presence with them on the job and in the locker room, it was Brown's position that he had no knowledge about the Union until late March. If that tes- timony is credited, it means that Brown did not know that a representation petition had been filed in early Feb- ruary 1985 or that Respondent had agreed in late Febru- ary 1985 that an election would be held. Further, it means that Brown continued to be unaware of any union activity even when that activity was well known to War- drop, who was Brown's immediate supervisor, and to Roth, the Respondent's president, both of whom were writing letters to employees, in the weeks before the election urging them to vote against union representa- tion. I do not credit Brown's testimony that he had not gained knowledge about the union activities of the em- ployees in the circumstances that existed at the plant. In fact, Brown's efforts to distance himself from any knowl- edge of the employees union activities raises the infer- ence, which I make, that Brown, due to his relationship with other employees and the size of the plant 1 Febru- ary 1985. The Board has held that knowledge of union activities of employees need not always be established by direct evidence, reliance may be placed on circumstantial evidence and knowledge may be inferred from the record as a whole. Park General Clinic, 218 NLRB 540, 544 (1975); Thunderbird Motel, 180 NLRB 656, 658 (1978). Although there is no direct evidence that Brown transmitted this information to Wardrop, the Board has held that a supervisor's knowledge of the union activities of the employees can be imputed to his supervisor. Herb Kohn Electric Co, 272 NLRB 815, 819 (1984); Hawthorne Mazda, 251 NLRB 313, 316 (1980). On the evening of 30 January 1985, after discussing the matter in the locker room, a group of employees, in- cluding Greene and Chinfloo, left work to attend a union meeting. Insofar as this record discloses, this was the first time this had happened Greene claimed that as the men left work they were observed by Wardrop and Colon, another supervisor, but Greene admitted that this was not unusual . On the following day, an incident occurred that involved Greene and Brown. Wardrop claimed that the incident was of such a serious nature that it required him to discharge Greene. There is no dispute that Greene's work was criticized by Brown on 31 January 1985. However, I am not convinced that the criticism was justified or that Wardrop, under other circumstances would have viewed the events that followed thereafter as grounds to discharge Greene. Rather, I believe that Wardrop used the incident to discharge Greene because of his support for the Union 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An examination of the testimony given by Brown and Wardrop about the entire incident discloses significant differences in their versions of the events. According to Greene and Chinfloo, Wardrop came to the jobsite about 12:30 or 1 p.m. on 30 January 1985, expressed satisfac- tion with the work the men were doing , spoke to Brown, and left the site. Brown then came to where Greene and Chinfloo were working, and told the men to "push" the job. Statements made by Wardrop in his affidavit tend to support, at least in part , Greene's version of what hap- pened. According to those statements, it was Brown who came to Wardrop to complain about the slow progress of the work being performed by Greene and Chinfloo. The testimony given by Wardrop , however, was completely different from the statements contained in his affidavit. According to Wardrop's testimony, he observed the work being done by Greene and his group , he consid- ered that the work was being performed in a dangerous manner, and he instructed Brown to correct the way work was being done, after Brown completed his own work. If, in fact, the work was being done in a danger- ous manner, it is surprising that Wardrop did not speak directly to Greene or at least that he did not direct Brown to speak immediately to Greene about the prob- lem. According to Wardrop , he not only did not speak to Greene but he left the jobsite when he knew a danger- ous condition existed that had not been corrected. Brown gave two versions concerning this incident. Ac- cording to Brown's testimony on direct examination, about 3:30 p .m., which was almost the end of the work- day, he observed that Greene's group was not perform- ing the work correctly, he told this to the group and he instructed them about the way the work should be done. However, on cross-examination, Brown changed both the time the incident occurred and the individual who first observed the manner in which the work was being performed. Thus, he testified that the incident occurred at 12:30 or 1 p.m. and that it was Wardrop who first no- ticed that the work was being performed in an incorrect manner. These numerous contradictions by Respondent's witnesses about the event raises suspicions about whether there was, in fact, any real reason to criticize the work being performed by Greene's group. Admittedly, Greene did not consider that there was, and he expressed his irri- tation to Brown about what he considered to be unjusti- fied criticism. Wardrop claimed that it was Greene's con- duct in expressing this irritation that he considered so se- rious that it warranted Greene's discharged . I do not credit that assertion. It was evident that Brown , who had the disagreement with Greene, considered the entire incident a trivial one. In fact, according to Brown, he had not intended to dis- cuss the matter with Wardrop and did so only because he met Wardrop as he left the locker room and Wardrop questioned him about what had happened . Brown did tell Wardrop that Greene appeared to resent his criticism, but Brown did not ask Wardrop either to speak to Greene or to reprimand him. Wardrop did not agree with Brown's version of this incident. Wardrop, appar- ently to support his position of the seriousness of the in- cident, claimed that it was Brown who came to his office to complain about Greene's conduct. Although Wardrop admitted that Brown did not ask him to reprimand Greene, Wardrop claimed that he decided he had to do something about Greene's conduct. Brown testified that Greene was still in the locker room when he left the room and saw Wardrop. Wardrop claimed that after he spoke to Brown he looked for Greene, but Greene had left the building . Wardrop's testimony about what he in- tended to do about Greene's conduct and when he made that decision changed so frequently that it was difficult to follow it. Wardrop claimed that he looked for Greene immediately after he spoke to Brown because he wanted to "raise hell with him." However, later, he testified that he looked for Greene immediately after Brown spoke to him in order to discharge him. He then testified that he thought about it overnight and it was then that he decid- ed to discharge Greene . Subsequently, he changed that testimony again and stated that he made an immediate decision to discharge Greene because of his insubordina- tion. It is impossible to believe that Wardrop would be uncertain as to whether his decision was "to raise hell with Greene" or to discharge him. There is a significant difference between those two options . It is also unlikely that Wardrop would be confused about whether he made the decision after he spoke to Brown or at some point during the night when he thought about the matter. This confused and contradictory testimony establishes that Wardrop did not testify truthfully when he said that he told Greene he was discharged for insubordination.' 5 It also establishes that he was not truthful when he claimed that it was Greene's insubordination that caused his dis- charge. The courts and the Board have held that if the stated motive for a discharge is false, then a judge may infer that there is another motive, an illegal one the em- ployer desires to conceal . Shattuck Denn Mining Corp. Y. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Professional Air Traffic Controllers Organization, 261 NLRB 922, 932 (1982); Kenco Plastics Co., 260 NLRB 1420, 1421 (1982). Based on the evidence in this case I find , under the standard set forth in Wright Line, 251 NLRB 1083 (1980), that the General Counsel has established that Greene's support for the Union was a motivating factor in his discharge and Respondent has failed to demon- strate that it would have taken the same action against him absent his union activities. Thus, I find that Re- spondent's employees commenced their activities on behalf of the Union in December 1984, that Brown, a su- pervisor who spent a considerable amount of time with the small complement of employees , including Greene, both during and after work hours, became aware of these activities, that Respondent expressed its opposition to these union activities of its employees , t 6 that Greene at- '" In fact, Wardrop's lack of certainty about when the decision was made to discharge Greene, tends to support Greene's assertion that he was never told that he was discharged . Greene's testimony about this issue also is supported by the fact that he collected unemployment insur- ance because he claimed he was laid off There is no evidence that Re- spondent filed an objection to the receipt of these benefits. "Although I find that Roth expressed his opposition to the Union, both in letters he sent to employees and in his statement to Schifano that he would go out of business, it should be noted that direct evidence of union animus is not required to establish that a layoff or discharge was unlawful Westinghouse Electric Corp., 235 NLRB 356, 358 (1978). CLARK & WILKINS INDUSTRIES 117 tended the meeting in the locker room where the em- ployees agreed to go to the union meeting, that he at- tended the union meeting, and signed a union authoriza- tion card on 30 January 1985, that immediately thereafter he was discharged, and that absent his union activities Respondent would have not have discharged Greene for the trivial incident that occurred on 31 January 1985. Accordingly, I find that Greene was discharged in viola- tion of Section 8(a)(1) and (3) of the Act. Allied Letter- craft Co., 272 NLRB 612 (1984); Abbey Island Park Manor, 267 NLRB 163 (1983). Schifano and Wardrop both agree that Schifano came to Respondent's premises in early February 1985, spoke to Roth, and demanded that he recognize the Union as the representative of his employees. However, they dis- agree about when the event occurred, about whether Chinfloo was discharged before or after this meeting, and about whether the meeting caused Chinfloo's dis- charge and/or layoff. Chinfloo had no knowledge about when a union representative came to Respondent's prem- ises but he testified that he heard it was 7 February 1985, and Chinfloo then proceeded to tailor his testimony to suit those hearsay statements. Thus, he testified, original- ly, that it was 7 February 1985 when Wardrop told him he was laid off. Wardrop claimed that it was 6 February 1985 when he told Chinfloo that he was discharged and in support of this position he offered Chinfloo's timecard, which establishes the last time Chinfloo worked for Re- spondent was noon on 6 February 1985. Chinfloo, after much probing, finally agreed 6 February was the last day that he worked for Respondent It was Wardrop's position that Schifano did not come to Respondent's premises until 7 February 1985 and, therefore, Chinfloo's discharge could not have been related to Schifano's visit I do not credit Wardrop's testimony concerning the date of Schifano's visit to the plant. Schifano testified that he spoke to Roth about 10 a.m. on 6 February 1985, told him he represented a majority of employees and demanded recognition. Schifano also testified that Roth, initially, stated that he would go out of business, but he then agreed to a meeting to discuss the matter the following day. Later that day, Roth's office called to cancel the meeting and, therefore, Schi- fano, on 6 February 1985, contacted his office and told them to file a representation petition with the Board. Al- though I find that Schifano embellished his testimony to establish that it was 6 February 1985 when he met with Roth, I credit the essential parts of his testimony for the following reasons. First, Roth, the president of the Com- pany, was not called to testify and he did not refute Schifano's testimony about this meeting. It is well estab- lished that an adverse inference can be drawn when a witness within the control of a Respondent fails to testi- fy. Laredo Coca Cola Bottling v. NLRB, 613 F.2d 1338 (5th Cir. 1980).' Moreover, I observed Wardrop who did testify about the incident and I was not convinced that his testimony was truthful. Finally, I credit the testimony of the Union's counsel, which tends to support Schi- fano's testimony that he met with Roth on 6 February 1985, and I base my credibility resolution on my obser- vation of counsel and on the notations contained in her work diary. Harper credibly testified that it was her practice to arrange appointments before they occurred,' that her diary disclosed that she had scheduled an ap- pointment for 10 a.m on 7 February 1985, concerning Respondent's employees, with a representative of the Union, that she usually did not arrive at her office until 10 a.m. and that the notation about this appointment was in her handwriting. The implication of that testimony is that Harper scheduled an appointment with a union rep- resentative to discuss the situation at Respondent's prem- ises sometime before 7 February 1985. Further, Harper credibly testified that the subject matter of her conversa- tion with the union representative was the Union's re- quest that a representation petition be filed for Respond- ent's employees. Harper's testimony supports Schifano's statements that it was 6 February 1985 when Roth called to cancel a scheduled meeting and that it was that day when he called his office and told them that a represen- tation petition had to be filed. Accordingly, I find that it was the morning of 6 February 1985 when Schifano de- manded that Respondent recognize the Union as the col- lective-bargaining representative of its employees and that it was within a few hours thereafter that Chinfloo was discharged. As noted above, immediately after the employees, in- cluding Greene and Chinfloo agreed in the locker room to attend a union meeting, attended that meeting and signed authorization cards for the Union, Wardrop seized on an incumbent to discharge Greene because he sup- ported the Union The same pattern was followed con- cerning Chinfloo. Chinfloo was discharged, within hours after Schifano came to the plant, allegedly for an inci- dent that occurred in early February 1985. I do not" credit Wardrop's explanation that he did not discharge Chinfloo at the time of the incident because he was busy with other projects It is obvious that if Wardrop consid- ered Chinfloo's inability to locate a particular jobsite to be serious he would have discharged him at the time the incident occurred. That Wardrop did not consider the matter important is evident from the fact that he did not reprimand Chinfloo at the time the incident occurred or mention it to Chinfloo. Wardrop knew from the begin- ning of Chinfloo's employment that his knowledge of the city was limited but Chinfloo was able to cope with the problem, for many months, apparently to Wardrop's sat- isfaction It is unlikely in these circumstances that War- drop would have discharged Chinfloo because of his fail- ure on one occasion to locate a particular site. As in the case of Greene, Wardrop seized on a situation to dis- charge Chinfloo, which absent Chinfloo's support for the Union he would not have done. In these circumstances, I find that Respondent violated Section 8(a)(1) and (3) when it discharged Chinfloo. Taylor Hospital, 272 NLRB 697, 702 (1984). Although, as I have observed, I have not credited all the testimony given by Greene and Chinfloo, I do credit their testimony that Wardrop told them they were laid off and did not tell them they were discharged I base this conclusion on the contradictory testimony given by Wardrop regarding this issue and that both Greene and Chinfloo collected unemployment benefits without objec- tion by Respondent. It is unlikely that Respondent would 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have permitted these employees to receive such benefits if they had been discharged for cause . However, al- though I find that Wardrop told Greene and Chinfloo that they were laid off and would be recalled, I have concluded that Wardrop, in fact, discriminatorily dis- charged the two employees.' 7 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. The Respondent violated Section 8(a)(1) and (3) of the Act by discharging Phillip Greene and Cessil Chin- floo. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist from engaging in such unfair labor practices and take certain affirmative action set forth below. Respondent shall offer to Phillip Greene and Cessil Chinfloo, imme- diate and full reinstatement to their former positions without prejudice to their seniority or other rights or privileges. In addition, Respondent shall make Greene and Chinfloo whole for any loss of earnings or other benefits they may have suffered by reasons of the dis- crimination practiced against them . All backpay shall be computed in the manner set forth in F. W. Woolworth Co., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Additionally, I shall require that Respondent remove from its records any reference to the unlawful discharges of Greene and Chinfloo. Re- spondent shall also be required to provide written notice of such expunctions and to inform them that Respond- ent's unlawful conduct will not be used as a basis for fur- ther personnel actions concerning them . Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed's ORDER The Respondent, Clark & Wilkins Industries, Inc, New York, New York, its officers,, agents, successors, and as- signs, shall 1. Cease and desist from 77 Respondent has not cited any support for its position that the Union waived its right to argue the issue of discriminatory discharges because it failed to raise that issue prior to the election I do not find any validity to that argument Moreover, any ambiguity that exists with respect to the status of these employees is the result of the Wardrop's verbal statements to the employees and his actual intent with respect to that status 18 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (a) Discharging and subsequently refusing to reinstate its employees because of their activities on behalf of or their support for Shopmen's Local Union No. 455, Inter- national Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO or any other labor organiza- tion. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage con- certed activities for the purpose of collective bargaining or other mutal aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Phillip Greene and Cessil Chinfloo full and immediate reinstatement to their former or substan- tially equivalent positions of employment, without preju- dice to their seniority or any other rights and privileges previously enjoyed. (b) Make whole Greene and Chinfloo for any loss of earnings they may have suffered by reason of the dis- crimination against them in the manner set forth in the remedy section of this decision. (c) Preserve and, on request , make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in New York, New York, copies of the attached notice marked "Appen- dix."' 9 Copies of the notice, on forms provided by the Regional Director for Region 2, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the Regional Director for Region 2 shall, within 10 days from the date of this decision, open and count the ballots cast by Phillip Greene and Cessil Chinfloo in Case 2-RC-19908 and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the Union has received a majority of the valid ballots cast , the Regional Director shall issue a certification of representative . However, if the revised tally shows that the Union has not received a majority of the valid ballots cast the Regional Director 19 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CLARK & WILKINS INDUSTRIES 119 shall set aside the election results and forward the case to the Board for further consideration.20 20 Gerber Co, 270 NLRB 1235, 1236 (1984) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had on opportunity to give evidence it has been found that we violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT discharge and thereafter refuse to rein- state our employees because of their activities on behalf of, or their support for the Shipmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO or any other labor organizational. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities. WE WILL offer to Phillip Greene and Cessil Chinfloo full and immediate reinstatement to their former or sub- stantially equivalent positions of employment, without prejudice to their seniority or to other rights and privi- leges previously enjoyed. WE WILL make whole Phillip Greene and Cessil Chin- floo for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this decision. Further, WE WILL remove from our records any reference to the discharges of the above-named employees and notify them in writing that this has been done and that evi- dence of these discharges will not be used for future per- sonnel actions against them. CLARK & WILKINS INDUSTRIES, INC