Davis Electrical Constructors, Inc.

DAVIS ELECTRICAL CONSTRUCTORS 115 Davis Electrical Constructors, Inc and North Caro lina State Building & Construction Trades Council, AFL-CIO Cases 11-CA-9018 and 11-CA-9806 September 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 4 1982 Administrative Law Judge Robert W Leiner issued the attached decision The Respondent and the General Counsel filed excep tions and supporting briefs and the Respondent subsequently filed a letter in further support of its position i 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 and briefs and has decided to affirm the judge s rulings findings 2 and conclusions3 and to adopt the recommended Order as modified 4 ' The Respondent asked the Board to take administrative notice of its decision in Winer Motors 265 NLRB 1457 ( 1982) in considering the Re spondent s exceptions to the judge s decision regarding the second layoff of Charles Rickard 2 The Respondent asserts in essence that the judge s credibility resolu bons findings of fact and conclusions of law are the result of bias After a careful examination of the entire record we are satisfied that the Re spondent s assertion is without merit There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsels witnesses As the Su preme Court stated in NLRB v Pittsburgh Steamship Co 337 US 656 659 (1949) [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact Furthermore it is the Board s established policy 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 Prod acts 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 find rags We note the following inadvertent errors in the judge s decision which are insufficient to affect our general agreement with the results of his de cision which we have adopted In the fourth paragraph of sec III A of his decision the judge incorrectly stated May 26 1981 rather than March 26 1981 as Hardison s termination date referred to in the charge and amended charge of Case 11-CA-9806 In In 3 of his decision the judge mistakenly referred to the Respondent rather than the Union as the party that filed the second amended charge in Case 11-CA-9018 Jesse Paul Watkins who the General Counsel asserts would have given testimony to support the consolidated complaint s allegations pertaining to Kermit Graham and Ted Box did not appear at the trial In view of Watkins absence the General Counsel admittedly was unable to submit evidence in support of these allegations We therefore dismiss them on the basis of insufficient evidence 9 We have carefully reviewed the judge s decision and are satisfied that the judge properly relied on the Respondents presettlement conduct ini tially only as evidence establishing motive in the Respondents postsettle ment actions We are further satisfied that the judge s findings taken in their totality and notwithstanding their chronological order reflect that he found the Respondent had engaged in unfair labor practices before the settlement only after he first set aside the settlement agreement based on the postsettlement violations he found 4 The settlement agreement provided that the four employees laid off by the Respondent on March 20 1980 did not desire reinstatement to In its exceptions and supporting brief the Re spondent renews its prior arguments that the alle gations regarding Charles P Rickards 1981 layoff is not closely related to a timely filed charge and thus is barred by Section 10(b) of the Act We do not find this allegation barred under Section 10(b) and we adopt the judges finding that Rickard s March 1981 layoff violated Section 8(a)(1) (3) and (4) of the Act We agree with the judge that the allegation concerning employee Rickards March 1981 layoff is closely related to the pending timely filed charge in Case 11-CA-9806 concerning em ployee Hardison s March 1981 layoff In addition we find that the complaint in Case 11-CA-9018 was properly amended to include this allegation because Rickards March 1981 layoff is merely a continuation of the previous unlawful conduct toward Rickard alleged in the earlier charge in that case 5 The relevant procedural facts are as follows On March 26 1980 the Union filed a charge in Case 11-CA-9018 alleging that the March 20 1980 lay offs of employees Hardison Rickard Townsend and Watkins violated Section 8(a)(1) and (3) of the Act A complaint issued on this charge and a hear ing was held on January 8 1981 Employees Har dison and Rickard who had both returned to work for the Respondent by that time testified at this hearing former employees Townsend and Watkins also attended the hearing After Hardison and Rickard testified the Respondent entered into a settlement agreement resolving all the matters al leged in the complaint 6 On April 7 1981 the Union filed a second charge in Case 11-CA-9806 alleging that the their former positions There is no ev dence to indicate that the employ ees were coerced in any manner into giving this waiver and pursuant to the settlement the employees were paid full backpay In fact Hardison and Rickard were already reemployed by the Respondent and Townsend was working for another employer at the time as shown by the record Therefore contrary to the judge we shall not require the Respondent to now offer Townsend reinstatement a second time Furthermore we qual ify the judge s order of reinstatement for Hardison and Rickard to date from their second unlawful layoffs of March 26 1981 Thus we do not adopt the portions of the judge s recommended remedy and Order that direct that the Respondent make a reinstatement offer to Townsend and continue to pay him backpay until such an offer is made to him See Lane Aviation Corp 226 NLRB 575 ( 1976) revised at 228 NLRB 1028 (1977) Jackson Tile Mfg Co 122 NLRB 764 (1958) In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be corn puted 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 amend ment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 6 Although the General Counsel relied on this theory the judge essen tially found it unnecessary to pass on the theory in his decision 6 As part of the settlement the Respondent promised it would not dis cnminatonly lay off employees for engaging in union or other protected activities and it would not in any like or similar manner interfere with restrain or oerce employees in the exercise of their Sec 7 rights 291 NLRB No 17 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD March 26 1981 layoffs of Hardison and two other employees violated Section 8(a)(1) and (3) of the Act This charge was amended on May 18 1981 to allege that Hardison s March 1981 layoff violated Section 8(a)(1) (3) and (4) 7 A complaint issued on this charge on May 22 1981 By a letter dated July 21 1981 the Acting Regional Director notified the Respondent that he was setting aside the settlement in Case 11-CA-9018 because of the subsequent unfair labor practices revealed by the investigation in Case 11-CA-9806 A consolidated complaint in Cases 11-CA-9018 and 11-CA-9806 issued on July 30 1981 On September 25 1981 the Union filed a third charge in Case 11-CA-10125 alleging that employ ee Rickards March 26 1981 layoff violated Sec tion 8(a)(1) and (3) On November 3 1981 the Union withdrew this charge because it had not been timely served on the Respondent 8 On November 16 1981 the Union amended the first charge in Case 11-CA-9018 to add an allega tion that Rickards March 1981 layoff violated Sec tion 8(a)(1) (3) and (4) The outstanding consoli dated complaint in Cases 11 -CA-9018 and 11-CA- 9806 was amended on November 20 1981 to add an allegation about Rickards 1981 layoff The heanng was held on January 19 and 20 1982 The Board and the courts have traditionally al lowed the General Counsel to add complaint alle gations outside the 6 month 10 (b) period if they are closely related to the allegations of a timely filed charge The judge here found that the allega tion about Rickards March 1981 layoff was prop erly added to the complaint because it was closely related to the allegations of the timely charge in Case 11-CA-9806 concerning Hardison s March 1981 layoff In finding the allegations closely relat ed, the judge noted that both employees were laid off at the same time and place by the same top su pervisor and for similar if not the same reasons We agree with the judge that the allegations about the two March 1981 layoffs are closely relat ed under the traditional Board test described in Redd I Inc supra Rickards layoff occurred within 6 months before the filing of the timely charge concerning Hardison s layoff Further the allegation concerning Rickards layoff is of the same class as the allegation in the timely charge concerning Hardison s layoff because both allega tions involve layoffs in retaliation against union ac ° The judge found that the charge and amended charge in Case 1I- CA-9806 specifically referred only to the 1981 layoff of employee Har dison and did not refer to the 1981 layoff of employee Rickard No ex ceptions to this finding were filed tivities and against giving testimony at the same unfair labor practice hearing in violation of Section 8(a)(3) and (4) Finally both layoff allegations arise from the same or similar factual situation or se quence of events Thus both layoffs occurred on the same day at the same construction site during the same reduction in force and under similar cir cumstances and were approved by the same overall supervisor who ordered the reduction in force Although the Respondent gave different reasons for selecting each employee to be laid off the judge discredited these reasons as pretexts and found the Respondent selected both employees for layoff based on the same unlawful motive 9 Fur ther the judge found that both employees had been laid off together the year before for the same un lawful motive and were the only two employees who had testified against the Respondent at the Board hearing resulting in a settlement of Case 11- CA-9018 just 2 months before their 1981 layoffs Therefore both allegations involve similar conduct during the same time period with a similar object as required under our Redd I test In addition we find that Rickards March 1981 layoff is closely related to the allegations in the timely charge in Case 11-CA-9018 concerning his earlier layoff The usual test for finding new allega tions closely related requires that the new events alleged must have occurred within 6 months before the filing of the timely charge However the Su preme Court specifically held in Fant Milling10 that Section 10(b) does not preclude the Board from adding new allegations to a complaint based on events that occurred after a charge was filed even though no new charge has been filed The Court stated there that the Board could properly add such new allegations if they were related to the conduct alleged in the timely charge and devel oped from that conduct while the charge was pending before the Board 11 The Court stated fur ther that the 6 month limitation period in Section 10(b) extinguishes liability for unfair labor prac tices committed more than six months prior to the filing of the charge It does not relate to conduct subsequent to the filing of the charge 12 Finally 9 We see no reason why we should rely on a respondents unproven characterization of its reasons for a discharge in ruling on whether cer tam allegations are closely related Even in cases where such a ruling is based on the bare pleadings we would rely on whether the allegations show the same object because it is in a respondents interest to state a pretextual reason to mask any unlawful conduct at that stage of the pro ceedings Furthermore if we find a heanng is warranted on allegations that appear to be closely related the respondent can still present evi dence on this issue at the heanng We would certainly not rely on a re spondent s proffered reasons where as here a judge has already rejected them as pretextual after hearing all the evidence 8 We do not consider the withdrawal of this charge relevant in decid 10 NLRB V Fant Milling Co 360 U S 301 (1959) ing whether Rickards 1981 layoff allegations are closely related to the 11 360 U S at 307 other two pending charges Redd I Inc 290 NLRB 1114 (1988) 12360US at 309 fn 9 DAVIS ELECTRICAL CONSTRUCTORS the Court quoted the following language from its decision in National Licorice as the standard for al lowing later allegations to be included under a pending charge not specifically mentioning these new allegations All are of the same class of violations as those set up in the charge and were continuations of them in pursuance of the same objects The Board s jurisdiction having been invoked to deal with the first steps it had authority to deal with those that followed as a consequence of those already taken 13 Applying that standard here we find that the al legation about Rickards second layoff is closely re lated to the allegation about his earlier layoff The allegation about Rickards March 1981 layoff is of the same class as the allegation about his 1980 layoff because both allegations involve layoffs in retaliation against union activities in violation of Section 8(a)(3) Further the second layoff is a con tinuation of the first layoff in pursuance of the same object Thus the judge found that the Re spondent used the same pretextual reason to select Rickard for layoff on both occasions that Rickard had testified at a Board hearing against the Re spondent about his 1980 layoff just 2 months before his second layoff and that the Respondent had ex pressed animus toward the employees pursuit of a Board remedy for their 1980 layoffs 14 In conclusion in agreement with the judge we find under the standard enunciated in Redd I that the allegation concerning Rickards 1981 layoff is closely related to the charge in Case 11-CA-9806 Additionally we find pursuant to the doctrine enunciated in Fant Milling that Rickards 1981 layoff is a continuation of the previous unlawful conduct toward Rickard alleged in his earlier charge in Case 11-CA-9018 Therefore we adopt the judge s finding that Rickard s 1981 layoff vio lated Section 8(a)(1) (3) and (4) of the Act ig 360 U S at 307 citing National Licorice Co. v NLRB 309 U S 350 369 (1940) i* Member Cracraft notes that the Board is setting aside the settlement agreement in Case I1-CA-9018 involving the 1980 layoffs because of the Respondents later unfair labor practices in Case I I-CA-9806 involv ing the 1981 layoffs Traditionally the Board only vacates a settlement if later events show that there has been a breach of the agreement or a later independent unfair labor practice Wallace Corp v NLRB 323 U S 248 254 (1945) Soule Glass & Glazing Co v NLRB 652 F 2d 1055 1108-1109 (1st Cir 1981) However the later independent unfair labor practice must be similar or related to the unfair labor practice involved in the settle ment to warrant vacating the agreement Deister Concentrator Co 253 NLRB 358 359 (1980) Gulf States Mfm v NLRB 598 F 2d 896 903-904 (5th Cir 1979) See also Sheet Metal Workers Local 80 (Sise Heating) 236 NLRB 41 42 (1978) Thus by setting aside the settlement here Member Cracraft concludes that the Board is necessarily finding that the allega tions concerning the 1981 layoffs are related to the allegations concerning the 1980 layoffs ORDER 117 The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent Davis Electrical Constructors Inc Leland North Carolina its officers agents succes sors and assigns shall take the action set forth in the Order as modified I Substitute the following for paragraph 2(a) (a) Offer Elwood Hardison and Charles P Rickard immediate and full reinstatement to their former jobs or if those jobs no longer exist, to sub stantially equivalent positions without prejudice to their seniority or any other rights or privileges pre viously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of their discharges of March 26 1981 less any net in tenm earnings plus interest in the manner set forth in the remedy section of the decision 2 Substitute the attached notice for that of the administrative law judge CHAIRMAN STEPHENS concurring I concur in my colleagues conclusion that the General Counsel should be permitted to litigate Rickards 1981 layoff but I do so only on the ground that his 1981 layoff was properly added by amendment to the charge in Case 11-CA-9018 which was the subject of a settlement In this regard I note that (1) the settlement agreement was properly set aside on the basis of unfair labor practices alleged in charges whose timeliness is not disputed (2) the setting aside of that settlement re sulted in the reinstatement of the charge covering Rickards 1980 layoff and (3) for reasons set forth in the majority opinion Rickards 1981 layoff is closely related to that charge As my colleagues also explain under NLRB v Fant Milling Co 360 US 301 (1959) a respondent can without the filing of a new charge be held liable for conduct that occurs after the conduct alleged in a pending charge and that is related to that charge Although as my dissent in Redd I Inc 290 NLRB 1114 (1988), makes clear, I differ with my colleagues as to the significance to be attached to the dismissal or withdrawal of charges involving conduct that is the subject of a later attempted ad dition to a case on a relation back theory I do not find that the Union s withdrawal of a charge con cerning Rickard in November 1981 leads to the same conclusion that I reached in Redd I Here the Union withdrew the charge because service was mistakenly believed to be untimely i e I day beyond the 6 month period beginning with Rick and s 1981 layoff But that withdrawal gave no hint that the merits of the charge might have been scru 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tinized and found wanting and the General Coun sel was clearly left with the option under Fant Milling of adding Rickards 1981 layoff to the complaint under the coverage of the 1980 charge that the Respondent knew was pending by virtue of the setting aside of the settlement agreement Consequently the circumstances here are signifi cantly different from those in Redd ! and allowing the litigation of Rickards 1981 layoff does not in my view pose any threat to the policies underlying Section 10(b) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government their seniority or any other rights or privileges pre viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoff of March 26 1981, less any net interim earnings plus interest WE WILL rescind two wntten February 24 1981 unlawful reprimands to Elwood Hardison and remove from our records all memoranda or reference thereto as well as the unlawful layoffs of Hardison Rickard and Gene Townsend in 1980 and of Hardison and Rickard in 1981 and will notify each of them in writing that this has been done and that evidence of these unlawful layoffs and reprimands will not be used as a basis for future personnel actions against any of them DAVIS ELECTRICAL CONSTRUCTORS INC 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 discharge layoff or issue unlaw fully motivated reprimands or otherwise discrimi nate or retaliate against any employee because he engages in activities on behalf of or supports North Carolina State Building & Construction Trades Council AFL-CIO or any other labor organiza tion or because he testifies at a hearing of the Na tional Labor Relations Board or because he en gages in concerted activities protected by Section 7 of the National Labor Relations Act WE WILL NOT create the impression among our employees that their union activities are under our surveillance or threaten our employees with dis charge or that they would not work again for us or any other employer in an effort to discourage their support of the Union or any other labor organiza tion 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 WE WILL offer Elwood Hardison and Charles P Rickard immediate and full reinstatement to their former jobs or if those jobs no longer exist to sub stantially equivalent positions without prejudice to Pars Favors Jr Esq for the General Counsel Robert T Thompson Jr Charles E Feuss and Michael P Fisher Esqs (Thompson Mann & Hutson) of Green ville South Carolina for the Respondent L F Shipman Coordinator of Charlotte North Caroli na for the Charging Party ROBERT W LEINER Administrative Law Judge This consolidated matter was tried before me on January 19 and 20 1982 in Wilmington North Carolina on the General Counsels third amended consolidated complaint and notice of hearing dated November 20 1981 and Re spondent s (Davis Electrical Constructors Inc) timely answer dated December 2 1981 The consolidated com plaint consists of two sections of allegations various alle gations of violation of Section 8(a)(1) of the National Labor Relations Act occurring in mid March 1980 to gether with violation of Section 8(a)(3) and (1) of the Act on March 20 1980 in the alleged unlawful termina tion of four named employees (Hardison Townsend Rickard and Watkins) The complaint also alleges the further unlawful termination of two of these same em ployees (Hardison and Rickard) on March 26 1981 Re spondent admitted various allegations of the consolidated complaint denied others and denied the commission of any of the alleged unfair labor practices At the hearing all parties were given full opportunity to call and examine witnesses submit oral and written evidence and argue orally on the record At the conclu sion of receipt of all evidence the parties waived final oral argument and submitted timely posttrial briefs that have been carefully considered On the record as a whole including my observation of the demeanor of the witnesses and consideration of the arguments and briefs of counsel I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I RESPONDENT AS EMPLOYER The complaint alleges Respondent admits and I find that Respondent Davis Electrical Constructors Inc a DAVIS ELECTRICAL CONSTRUCTORS 119 South Carolina corporation is licensed to do business in the State of North Carolina where it engages in the buss ness of electrical subcontracting including such subcon tracting at the Cape Fear Dupont Plant in Leland North Carolina At that facility in the 12 month period preced ing December 1981 Respondent received for use in exe cuting its electrical subcontract goods and products valued in excess of $50 000 which were received from points directly outside the State of North Carolina Re spondent concedes that at all material times it has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act I so find II THE LABOR ORGANIZATION INVOLVED Respondent concedes and I find that the Charging Party North Carolina State Building & Construction Trades Council AFL-CIO (the Union) is a labor organs zation within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Pleadings and Background The consolidated amended complaint alleges inter alia that electricians Hardison Townsend Richard and Watkins Respondents employees were unlawfully ter minated on March 20 1980 Whereas Townsend and Watkins on this record never worked again for Respond ent Respondent rehired Hardison on July 15 1980 and Rickard was rehired on May 12 1980 It is admitted that the Charging Party filed a charge in Case 11-CA-9018 on March 26 1980 served on Re spondent on March 27 1980 and filed an amended charge on May 6 1980 served on Respondent on May 7 1980 It is not disputed that the charge and amended charge in that case legally supported the issuance of complaint relating principally to the alleged violations of Section 8(a)(1) and (3) of the Act in the March 20 1980 terminations of the above four named employees Respondent admits as alleged that on January 8 1981 a hearing was opened before Administrative Law Judge Bernard Ries and that Respondent and the Union to gether with the Regional Director entered into a settle ment agreement approved on January 8 1981 by Judge Ries which as the complaint shows provided inter alia that Respondent would not engage in various alleged acts of independent violation of Section 8(a)(1) and most particularly would not thereafter discrimmatonly lay off employees for engaging in union activities that Respond ent would make whole all four employees and noted that these employees did not desire reinstatement to their former jobs The settlement agreement also provided against Respondent in the future engaging in any like or similar acts that would interfere with restrain or coerce employees in the exercise of Section 7 rights Thereafter on April 1 1981 counsel for the General Counsel on the Regional Director having found that Respondent complied with the settlement agreement filed with Judge Ries a motion to withdraw the complaint and close the hearing in Case 11-CA-9018 On April 8 1981 Judge Ries granted the motion to close the hearing and to withdraw the complaint On July 21 1981 by letter the Acting Regional Di rector for Region 11 notified Respondent that he was setting aside the settlement agreement because of alleged violation of the settlement agreement disclosed in an in vestigation following the filing of a subsequent charge in Case i 1-CA-9806 Respondent admits that the charge in Case 11-CA-9806 was filed and served by the Union on April 7 1981 with an amended charge in the same case filed and served on May 18 1981 The charge and amended charge in Case 11-CA-9806 referred only to the May 26 1981 termination of employee Elwood Har dison but did not refer to any similar termination of em ployee Rickard On September 25 1981 the Union in Case 11-CA- 10125 filed a charge alleging the unlawful March 26 1981 termination of Rickard but on November 3 1981 withdrew this charge because it was untimely filed under Section 10(b) of the Act Lastly on November 16 1981 the Union filed a second amended charge in Case 11- CA-9018 alleging the same allegations as appeard in the untimely and subsequently withdrawn charge (Case 11- CA-10125) i e the unlawful termination of Rickard On November 20 1981 the Regional Director issued the in stant third amended consolidated complaint which on the apparent basis of the second amended charge in Case 11-CA-9018 included as an alleged violation of Section 8(a)(3) and (1) the March 26 1981 termination of Rick and On December 8 1981 prior to opening of the hearing Respondent filed a motion for partial dismissal of the third amended consolidated complaint on the ground inter alia that in substance the Regional Director im properly issued the complaint regarding Rickard because the Regional Director was doing indirectly what he was forbidden by Section 10(b) of the Act from doing direct ly On December 30 1981 I issued an order' denying Respondents motion for partial dismissal principally on the ground that the Regional Directors inclusion of the Rickard discharge need not be supported by the second amendment to the charge in Case 11-CA-9018 (that Re spondent argues was merely an untimely attempted eva sion of Sec 10(b) of the Act) because the Charging Party s charge of April 7 1981 alleging the unlawful ter mination of Hardison in Case 11-CA-9806 supported the issuance of complaint with regard to the Rickard dis charge that occurred at the same place at the same time and under similar circumstances I concluded that the in stant complaint could lawfully include the Rickard alle gation since it was closely related to the Hardison dis charge timely included in Case 11-CA-9806 Gocat Inc 257 NLRB 208 (1981) cf NLRB v Fant Milling Co 360 U S 301 (1959) NLRB v Dinion Coil Co 201 F 2d 484 491 (2d Cir 1952) NLRB v Central Power Light Co 425 F 2d 1318 (5th Cir 1970) Exber Inc v NLRB 390 F 2d 127 (9th Cir 1968) I also rejected Respondents argu ments that the April 8 1981 settlement approved by Judge Ries was a complete defense because no Order was secured from Judge Ries or indeed from any ad t I I have included the full text of this December 30 1981 Order togeth er with Respondents motion and the General Counsels opposition (AU Exh 1) for convenience of the parties and the Board 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ministrative law judge to reopen the otherwise closed case and that the two discharges were so disparate as to prevent the joinder of the Rickard discharge with the Hardison discharge Lastly I rejected Respondents ar gument that the Regional Director was required as a condition precedent to setting aside the settlement and is suance of complaint to return any moneys paid to the alleged discnminatees in order to restore the status quo ante At the hearing I reaffirmed my pretrial order2 on the ground that Respondents renewal of its motion for partial dismissal failed to show facts that would demon strate that the Rickard termination of March 26 1981 was not so closely related as to permit the joinder of new matter otherwise barred by Section 10(b) of the Act with matters primarily included in the Hardison complaint 8 It is undisputed that for at least 10 years Respondent Davis Electrical Constructors Inc has been the electn cal subcontractor to general construction contractor Daniel Construction Co Inc a Division of Daniel International Corporation (Daniel) at a Dupont produc tion facility in Leland North Carolina This fiber manu factunng facility requires considerable new construction maintenance and repair work All employees in the con struction crafts and trades at the site are Daniel employ ees (carpentry pipefitting masonry etc) with the excep tion of the electrical employees who are employees of Respondent The business and labor relations relationship of Daniel and Respondent is not fully disclosed on this record but contrary to Respondents assertions made at the hearing the testimony of Respondents job supenn tendent J W Baxley demonstrates that Daniel ordman ly participates directly in and controls the hiring of Re spondent s employees in the electrical trade It also par ticipates in Respondents discharge procedures and labor Respondents posttnal brief requests a reversal of my conclusions in my December 30 1981 Order The December 30 1981 Order by its terms permitted Respondent the opportunity at the hearing to prove that the March 26 1981 Rickard discharge was not closely related within the meaning of Gocat Inc supra 257 NLRB 208 and NLRB v Dinion Coil Co supra 201 F 2d 484 491 to the matters alleged in the timely Hardison charge in Case I1-CA-9806 Respondent failed to adduce evidence to the contrary Since it appeared at the hearing that both employees were terminated at the same time and place from the same construction site by the same top supervisor for similar if not the same reasons advanced by Respondent I hereby reject Respondents fur ther requests for reversal and reaffirm the dispositions in the December 30 1981 Order regarding all matters there particularly the inclusion in the complaint of the Rickard discharge allegation and the right of the Re gional Director to bring before the Board matters occurring subsequent to a judge approved closing of a settled case so that I in the first in stance and thereafter the Board may decide whether the settlement should be set aside under Wallace Corp v NLRB 323 U S 248 (1944) As noted below two sets of unfair labor practices are closely if not inti mately connected rendering nugatory the intervening settlement agree ment since Hardison and Rickard discharged unlawfully by Respondent in 1980 were again discharged unlawfully in 1981 Thus not only was the settlement agreement prohibition against future discnminatory layoffs directly violated but Respondent unlawfully again acted against two of the same employees Respondent s citation of Gulf States Mfrs Inc v NLRB 598 F 2d 896 (5th Cir 1979) is not to the contrary s To the extent that my order of December 30 1981 recited that on May 18 1981 the Union amended its charge in Case 11-CA-9018 to allege the unlawful discharge of Rickard it is corrected so that the proper date for that amendment regarding Rickard is November 16 1981 Thus it was on November 16 1981 that Respondent filed a second amended charge in Case I I-CA-9018 relations Thus Daniel s labor relations department at the Leland North Carolina site maintains all records for Davis and does the interviewing and actual clearance for hiring after the job superintendent (Baxley) recommends the hiring of a specified number of additional electrical employees (Tr 514) That Respondents supervisors only occasionally interview the job applicants supports Dan iel s general regular control of hiring (Tr 512) 4 The chief Daniel supervisor at the jobsite is Charles Garrett In 1980 the chief respondent supervisor over all electrical work at the jobsite was J W Baxley Under Baxley in 1980 Respondent placed two electrical gener al foremen Ted Box and J W Hammonds The Dupont production operation consisted substan tially of two parts the production of fibers (known on this record as fiberside ) and the production of the or ganic chemical di methyl toluene (known on this record as DMT) These two Dupont production functions were paralleled by Respondent in the assignment of its two general foremen Box was a general foreman over DMT operations Hammonds was general foreman on the fi berside Each of the general foremen supervised the ac tivities of about a half dozen foremen admittedly statuto ry supervisors each of whom often had a crew of 8 to 10 electricians and helpers The record shows that Re spondent engaged in numerous transfers between crews under foremen working on the fiberside and from time to time laid off and hired employees depending on workload Among these foremen were Howard Ran some Kermit Graham Gordon Powell Ronnie Dorsett Jay Kraynick and Johnny Baxley son of Respondent s electrical superintendent J W Baxley who became a foreman in 1980 Regarding Respondents personnel requirements the ordinary practice is for Dupont and Daniel to meet each Wednesday with Respondents superintendents and other craft supervisors At that time Dupont and Daniel out lined the amount of anticipated work for the following week and thereafter In the Dupont and Daniel premises Daniel maintained a blackboard chart showing the number of employees including general foremen and foremen of each craft at the jobsite including the elec trial craft and demonstrated that as of March 25 1981 Respondent employed a total of 124 electricians includ ing 15 general foremen and foremen with 58 electricians being assigned to the DMT side and 35 to the fiberside Sixteen electricians were assigned to other duties in that week In any event each Wednesday Dupont notified the superintendents of each of the trades including Respond ent of the expected workload for the following week This permitted Respondents superintendents to decide on the number of employees necessary to execute its var sous long term and short term electrical work orders and * The person passing on the ability and technical qualifications of elec tncians to be hired by Respondent was not a respondent supervisor but the Daniel labor relations representative This person was neither an elec trical engineer nor a qualified electrician and judged the applicants tech nical qualifications from the face of the application (Tr 515-516) The General Counsel refrained from alleging Daniel to be joint employer of Respondents employees and I do not pass on the issue DAVIS ELECTRICAL CONSTRUCTORS projects Either later on the same Wednesday or on the succeeding Thursday morning Respondents DMT and fiberside superintendents in turn held meetings with their general foremen who were told of the need to either hire or lay off electricians In the case of layoffs the general foremen were directed by the superintend ents to submit the names of employees who should be se lected for layoffs Later on the same Thursday the gen eral foremen called together their subordinate foreman and arrange for the number of employees to be laid off The practice vanes regarding how the names are select ed on some occasions the general foreman on the basis of his long experience and knowledge of the work of in dividual electricians selects the employees to be laid off on other occasions the general foreman solicits names from individual foremen In either case it is the general foreman who validates the selection of the electricians for layoff Supervisor Hammonds testified that the super intendent has veto power over the selection of any em ployee on layoff list It is also not unknown for employ ees selected for layoff to be transferred to crews whose workload increased Respondents witnesses testified and I find that well regarded employees were sometimes laid off under the above circumstances B The Employees March 16 Attendance at5 McCrae Park March 17 Impression of Surveillance By March 1980 Charles P Rickard Gene Townsend and Elwood Hardison were journeymen electricians each employed by Respondent for about 7 or more years excluding intermittent layoffs and rehinngs due to lack of work In March 1980 they were employed on the fi berside and worked under Foreman Gordon Powell in a total crew of seven electrical employees Although there is conflicting testimony even among the General Coun sel s witnesses regarding the desirability of working on the fiberside as opposed to working on DMT at least Hardison suggested that working on the fiberside was preferable because working at DMT required consider able outdoor work during the hot summers and cold winters Nevertheless the record shows that almost half of the electricians worked at DMT and in addition some employees found DMT more desirable The Powell crew consisted of four journeymen electricians (Har dison Rickard Townsend and Storms) In addition there was a welder (Chauncey) a top helper (Knox Jacobs) and two helpers (Benton and Long) Powell s general foreman was J W Hammonds and Hammonds reported to Superintendent J W Baxley Although it is true that a prior Settlement Agreement may be set aside because of later unfair labor practices Wallace Corp v NLRB supra it is practical to state and analyze the facts chronologically and to ultimately determine whether the Respondents actions following the set dement are of a quality sufficient to either violate the terms of the settle ment itself or are of such a continuing nature as to render it valueless Although a settlement ordinarily precludes use of evidence of events prior thereto such presettlement evidence is admissable to establish motive for postsettlement conduct Joseph s Landscaping Service 154 NLRB 1384 (1965) enfd sub nom NLRB v Northern California Hod Carriers 389 F 2d 721 (9th Cir 1968) Hence the utility of a chronologi cal statement of events starting in 1980 rather than a preliminary analy sis in vacuo of 1981 events and their application to presettlement 1980 events 121 On or about March 13 1980 Daniel employees at a nearby jobsite known as the Hercofina (10 miles from Leland) jobsite walked off the job to protest Daniel working conditions and pickets from the Hercofina site told Rickard (and apparently newspapers and other media also stated) that there would be a 2 p in meeting on Sunday March 16 1980 of area construction employ ees and union representatives at the Hugh McCrae Park a public recreation area in nearby Wilmington North Carolina Rickard Townsend and Hardison who reside in Leland went together to attend the meeting They found approximately 150 to 200 people present at the meeting Employees from the Hercofina plant asked for a show of hands whose employees were present Among others present were Daniel employees employed at three plants A union representative (Ray Schnell) told employees that they should all return to work but organize commit tees and get together with union officials to have a union Union representatives then handed out building trade union membership application cards Rickard and Hardison signed union cards Present at the meeting were newspaper reporters and television cameramen from local Wilmington North Carolina television stations Rickard Hardison and Townsend were photographed by the television camera men and they saw themselves either that evening or the next morning before reporting to work on local televi sion broadcasts Rickard was shown accepting a union card from a union representative Respondents supervi sors saw the television broadcasts showing all three of these employees on television and their presence at the union meeting and their television appearances were dis cussed the next day (Monday March 17 1980) by super visors and respondent employees On Monday March 17 1980 at 7 a m when Rickard Townsend and Hardison reported to work at the Gro Mor but (a housing area where Respondents foremen distribute work assignments where the employees eat lunch and where Foreman Gordon Powell maintained his office) the other employees in the crew told them that they saw the fours of them on television Powell told them I have some celebrities in my crew Rick and testified that he saw himself Townsend and Har dison on the 11 o clock news that Sunday night Re spondent concedes that Respondent knew that at least Townsend and Hardison were seen (Br 29) I conclude that Hardison Townsend and Rickard were seen by Re spondent and Daniel in view of Supervisor J W Bax ley s admission ' 6 Jesse P Watkins alleged as a discriminatee who along with Har dison Rickard and Townsend was terminated on March 20 1980 did not appear or testify at the hearing His failure to appear was unexplained by the General Counsel 7 Baxley testified (Tr 519-521) that while he saw Hardison and Town send on TV other supervisors saw Rickard (Tr 521) He discussed the Sunday McCrae Park incident with Daniel Project Manager Garrett at the Monday morning Daniel Davis supervisor meeting convened to hear how they should deal with the union situation and what the law was I was not favorably impressed by Vaxley s preliminary denial and then ad mission that he spoke to Garrett about the McCrae Park incident and I do not believe that the conversation was as short as Baxley suggested Continued 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Later in the morning of March 17 about 9 a in Dan iel s supervisors including Project Manager Charles Gar rett had a meeting inter alia with all of Respondent s superintendents foremen and general foremen relating to union activities of the day before and Respondents re sponse Among the visitors addressing the Davis and Daniel supervisors was one Joe Virgil (the spelling is consistent with the transcript although I heard the name Virdon ) from Greenville South Carolina who told the assembled supervisors of their rights in speaking to employees and what they were prohibited from doing including interrogating them concerning their union ac tivity Whereas Superintendent J W Baxley who saw both Hardison and Townsend on television on the day before the supervisor meeting i e on Sunday March 16 testified at first that he did not speak to Garrett about seeing Hardison and Townsend on television he later testified that he did speak to Garrett concerning the tele vision appearances of Hardison and Townsend and also said that other supervisors told him that they had seen Rickard on the television screen Rickard testified that on March 17 after Respondents labor relations repre sentative Virgil met with the Respondent and Daniel supervisors he came to the work area and asked the em ployees whether anybody had any complaints or gripes that he wanted to talk to Virgil about 8 Hardison testified that a half hour to an an hour after he reported for work on Monday and the employees and Foreman Powell joked about Hardison and other em ployees appearance on television he saw Superintendent J W Baxley in the shop while Hardison was getting parts and materials According to Hardison Superintend ent Baxley said to him I heard you attended a little meeting this weekend Supervision has the names of the people who attended the meeting Hardison said that he said nothing and left Baxley not only denies any such conversation but denies meeting Hardison at that time or any other time when such a discussion took place Rather he testified that he was occupied all morning with showing Respondents visitors from Greenville South Carolina around the installation Although my ob servation of Hardison permits the conclusion that he was quite capable of exaggeration I nevertheless credit his version in view of circumstances relating to the credibil ity of J W Baxley noted above and to be discussed later As already noted I was unfavorably impressed with his testimony In short I credit Hardison s version over Baxley s denial and find that Baxley made this state ment ( I heard you attended a little meeting this week end Supervision has the names ) and that such state (Tr 521) I was even more unfavorably impressed with other matters discussed below including his inability to square why he failed to seek out Garrett to rehire Hardison if his motivation was personal sympathy for Hardison until Hardison withdrew his unfair labor practice charges 8 Although on Respondent s motion I struck Townsend s testimony on the same point Rickards testimony remained in the record The Gen eral Counsel did not allege Virgil s activities as a violation of the Nation al Labor Relations Ac and did not seek to amend the complaint to allege Respondents unlawful solicitation of grievances Neither did he request that a finding be made on such conduct Under such a state of facts I hesitate to draw the legal conclusion The above recitation therefore is merely to show a sequence of events re ating to employee union activities and Respondents response ment as alleged in the complaint par 8(b)) constitutes a violation of Section 8(a)(1) of the Act because it creates the unlawful impression that the employees union activi ties were under Respondents surveillance The vice of the statement is not that they were observed but that their names and the names of other employees at McCrae Park were recorded by Respondent Respondent cannot be faulted for having merely observed them on TV or mentioning that fact C March 18-Threat ofDischarge About 1 to 2 p in on March 18 1980 1 day after the Monday March 17 meeting of Daniel and Respondent supervisors with Joe Virgil from Greenville concerning prohibitions against interference with employee union ac tivities Foreman Powell told Hardison according to Hardison that Powell had been to a foremen s meeting with Daniel Project Manager Garrett and that Garrett at the meeting said that if he caught three or more people together they would be terminated Powell also allegedly told him that at the meeting laywers had come from Greenville and told the supervisors what rights they had regarding employees talking about the Union on worktime Hardison also said that this latter statement was made on the same or next day that Powell told him about Garrett s statement at the meeting Powell denies making any such statement to Hardison on or about March 17 or 18 1980 although Powell admits having gone to the meeting Although I draw no infer ence unfavorable to Respondent from its failure to produce Garrett a dominant if not controlling figure in Respondents labor relations to testify that he made no such remark at the meeting since it is Powell s remark not Garrett s which is coercive I nevertheless credit Hardison s version over Powell s denial based on my ob nervation of Powell and Hardison as witnesses the timing of the alleged conversations Powell s presence at the meeting and my impression that in this particular re spect at least Hardison was a truthful witness and Powell was not Thus I find as alleged in paragraph 8(c) of the complaint that on or about March 18 in violation of Section 8(a)(1) Powell told of a threat of discharge against employees if they were found in a group of three or more and that the context of the threat demonstrates a desire to discourage their support for the Union Such a Daniel threat was unlawful to a Davis employee when relayed by a Davis supervisor D The Layoffs of March 20 1980 The workweek among the Respondents employees at the Dupont worksite is a 4 day week Monday through Thursday 10 hours a day 7 a in through 5 30 p in On Thursday March 20 1980 the Powell crew was eating in the Gro Mor hut at the lunchbreak between 12 and 12 30 p in Foreman Gordon Powell told them that General Foreman J W Hammonds had called and wanted a meeting with Rickard Townsend Hardison and Powell in Powell s office at 2 p in When Townsend and Rickard went to work and then i eturned to the office about 1 50 p in they found Hardison already in Powell s office but Hammonds had not yet arrived Har DAVIS ELECTRICAL CONSTRUCTORS 123 dison testified that when he entered Powell s office about 1 45 p in (5 minutes before Townsend and Rickard ar rived) Powell said that he knew nothing about the meet ing and that when Hammonds called him at lunch he told him that he wanted to meet with Powell regarding the diminution of work the necessity of a reduction of force and Hammonds decision to layoff three employ ees Powell also testified that he and Hammonds had pre viously been talking about the diminution of work but said that there had been no conversation regarding a layoff or who would be laid off Powell said that at 2 p in he went out into the work area and told the three employees that Hammonds wanted to speak to them and to Powell Rickard Har dison and Townsend all testified that it was at the lunch break that Powell told them that Hammonds wanted to speak to them Powell s recollection is not entirely accu rate since he did not go out to the work areas to get the three employees together since it is clear on this record that Hardison was in the office with him alone prior to the other employees coming in 5 minutes later Thus they never appeared as a group in the office but Har dison was there first I therefore credit the three employ ees over Powell s recollection and find that Powell told them that Hammonds wanted to meet them and told them this during the lunchbreak 9 The record shows that Townsend and Rickard were working in the power house on the fiberside under Powell and that Hardison was working elsewhere on the fiberside and that they were installing conveyor limit switches photo cells and motor controls About 2 p in Hammonds came to Powell s office in the Gro Mor hut Prior to his arrival Hardison was there alone with Powell Hardison testified that Powell told him that he did not know what it was all about and I credit Hardison s testimony that Powell did say this In fact however by virtue of Powell s prior lunchtime con versations with Hammonds Powell knew that the sub ject matter of the anticipated Hammonds conversation had to do with layoffs When Hammonds walked in Hardison asked him Is it DMT or 0 U T ? 10 Ham monds answered that he was sorry but that they were being laid off Hardison asked why and the testimony be comes contradictory According to Rickard and Har dison Hammonds told them that the publicity had done them in (Rickard) Hardison recalled Hammonds saying that the news media and television coverage had paid off All three of the discriminatees testified that Hammonds said that neither he nor Powell had anything to do with the layoff but that in substance their hands were tied and the decision to lay them off had come from higher supervision The further testimony is sub stantially without contradiction that Hammonds told 9 I also do not credit Powell s recollection that when he went out to get Townsend Townsend told him that he knew what it was about that it was DMT or 0 U T As is noted above in the text the credible testi mony is that while Hardison made this statement he did not make it to Powell out in the field but made it to Powell and Hammonds in the office sometime later 10 As above noted some of the employees including Hardison consid ered the outdoor work in the chemical production area of the plant to be less desirable than where they were working on the fiberside them that he would do anything in his power to see if they could get jobs and offered to call an old acquain tence at nearby Yeargen Construction Corporation to see if they could be placed there To the extent that Rickard recalls Hammonds seeking to get them jobs in Virginia or South Carolina his recollection is not credited The three employees were given layoff slips signed by office personnel and other employees of Daniel Ham monds told all three of them that they were good work ers when he laid them off Hammonds encouraged Har dison to file an application for further employment Hammonds testified that in a meeting called by the then sole superintendent J W Baxley on or about March 20 1980 Baxley told his two general foremen Ted Box and J W Hammonds that there would have to be three layoffs in each of their departments (i e in Hammonds fiberside and in Box s DMT) When that meeting ended at lunch Hammonds called Powell at fi berside He knew that Powell was finishing a job and told him that he was laying off three persons Rickard Hardison and Townsend Although it is not an absolute rule for the foreman to submit to the general foreman the names of person whom the foreman believes are the least productive in his crew it is the ordinary practice accord ing to Respondents witnesses As Respondent observes (Br 38) although General Foreman Guzzle has overall approval of his foreman s selections he never predeter mines who is going to be selected he lets the fore men make the decision on who whey are going to work (Tr 528) 11 Here it is uncontradicted that General Foreman Hammonds contrary to practice told Foreman Powell the names of three employees to be laid off There is no suggestion in the evidence that Hammonds even consulted Powell in the selection Hammonds testi fled that he picked these three names because Powell was having trouble with all three although the type of trouble with each of them was different 1 E Rickard In the case of Rickard Hammonds testified that Fore men Powell and Grizzle told him that Rickard had an attitude problem and that Rickard believed that all of supervision was out to get him Indeed Hammonds tes tified that he had worked with Rickard when Rickard was a helper in 1974-1975 when Hammonds was then Rickards foreman Hammonds observed Rickard as having a bad attitude at that time and in particular this bad attitude manifested itself by Rickard sometimes not talking to the foreman who assigned him work Ham monds admitted that Rickard did talk to other foremen when work was assigned and that with regard to this bad attitude it did not affect the quality or quantity of Rickards work which at all times remained good He also testified that although this bad attitude in fact did not interfere with the work of other employees it could interfere with their work and set a bad moral tone both with the foreman and with other employees Hammonds also testified that after Rickard was reemployed by Re i i General Foreman Ted Box similarly testified the foremen submit the names ultimate decision is the general foremen s v 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent after May 1980 as described below other un named supervisors complained of Rickards bad atti tude Rickard was first hired by Respondent in May 1973 and with several intervening layoffs worked for Re spondent until March 20 1980 when he was terminated At his termination his foreman was Gordon Powell and before that Foreman Kraynick Powell testified that at or about lunchtime on March 20 Hammonds telephoned him told him of the fact that work was diminishing requiring a reduction of force (ROF) and that Hammonds had decided the names of the three employees to be laid off Hammonds admitted knowing that Hardison and Townsend had appeared on television at the Hugh McCrea Park union meeting About 2 p in the three employees Powell and Ham monds met in Powell s office the Gro Mor hut Powell testified that Hammonds came in told the employees that he was sorry but because of a cutback of work he had to lay them off Powell testified and Hardison denied that Hardison then kicked a butt can across the room I credit Powell s recollection and discredit Hardison s denial of this act Powell and Hammonds denied that he said anything about television or the media having gotten them or doing them in Powell testified and the three alleged discriminatees denied that Hardison in response to Hammonds suggestion that he might contact Yeargen Construction in Southport South Carolina for work that Hardison then said that that was all right but that they did not need the job down there because they were going to see their lawyer in the morning I again credit Powell s recollection on this latter point Regard ing the contradictions of whether Hammonds told the employees at the termination interview that the televi sion cameras or the media had gotten them or had done them in I need not resolve that issue although I would credit Hardison and Rickard if it were necessary If such statement were indeed made the General Coun sel s puma facie case would be strong indeed Powell in any event confirms that the three employees then got their tool boxes and were accompanied to the gate where the employees then left Powell testified that after the employees left he agreed with Hammonds that the remaining employees on his crew would be more pro ductive Regarding the economic basis of the layoff the evi dence is uncontradicted that the three employees were working on a major construction project (Traypac) which after 10-15 months work (Tr 495) was being completed except for minor adjustments on or about March 13 1980 Although it was Respondents ordinary practice to spread the layoff among several crews (at the time of the layoff Hammonds had Grizzle Powell and Krayntck as his fiberside foremen with approximately 24 to 30 electricians on their three crews) Hammonds did not spread it around on this occasion because the Tray pac job had been completed and the three alleged discri minatees were working on the Traypac job It is recalled that Respondent s superintendents regu larly met with their general foreman on Wednesdays in order inter alia to plot the job requirements for the fol lowing week Thus on either March 12 or 13 1980 Hammonds would have met with his foremen to tell them on those dates and the Traypac job would be completed that Thursday March 13 There is no show ing that this normal procedure was not followed Hammonds testified that Respondent continually re ceives small work orders and repair orders from Daniel for electrical work There was no showing of the quanti ty of work orders and repair orders on hand at the time of the March 20 layoff but that burden to show that there was work available for the three discriminatees whether on the General Counsels shoulders or Respond ent s shoulders was not met In any event notwithstand ing the existence of these work orders that the three dis criminatees might have performed there is no basis on this record to determine whether there was work avail able for them I conclude however it is unnecessary to determine whether as Respondent contends that on March 20 there was an economic basis for the layoff notwithstanding Respondent s witnesses testimony that there were substantial layoffs thereafter on two occasions in April 1980 For in any event if such a major project was known to be completed Respondent on this record failed to show why layoffs were not considered much less effectuated in the period ending March 13 at the su pervisors meeting called for that purpose rather than on March 20 The economic basis of the layoff and particu larly its timing rests on an unsure footing 12 It becomes all the more unsure in the face of the intervening March 16 meeting at Hugh McCrae Park Hardison for in stance worked a Respondent job for 5 years without being laid off (Tr 196) Respondent failed to prove its alternate argument that the three discriminatees would necessarily have been laid off for economic reasons even if their March 20 selection was unlawful That these su perior employees would have been chosen in the face of a work slow down on this record is unproved Certain ly as late as 1979 when work was very low Hardison was not laid off (Tr 414) The question remains however whether in the first place the selection of the three alleged discriminatees was unlawfully motivated In this regard Hammonds admits that he told the three alleged discriminatees that there were good workers when he laid them off on March 20 Neither General Foreman Grizzle nor Fore man Powell both of whom were called to testify on behalf of Respondent supported Hammonds testimony that they complained to Hammonds or anyone else re garding Rickards poor attitude In view of the balance of the record regarding Rickards performance it would be doubtful that they would be credited even if they had 12 Further it does not support the credibility of Respondents overall economic defense for Hammonds to testify (Tr 390) that the three eco nomically laid off members of Powell s crew (Hardison Rickard and Townsend) were replaced in the following week (Tr 391) because coin cidentally work picked up (Tr 389-390) Hammonds was not sure we probably pulled some completed work orders (Tr 390) Where Re spondent asserts that transfer into Powell s depleted crew and overtime work for its members started on the next working day (March 24) after the three March 20 layoffs only because of the need for emergency main tenance service (Br 56 Tr 476 et seq) the General Counsel notes that Powell admitted that the principal transferee worked in Powell s crew for a month (Tr 483-484) notwithstanding that the emergency was cor rected in one day (Tr 478) DAVIS ELECTRICAL CONSTRUCTORS 125 so testified For the record shows that not only Powell confirmed that the three alleged discnminatees were good workers from time to time but that Respondent over the more than 7 years of Rickards employment never issued a single verbal or written warning to him under its progressive disciplinary system (Tr 355) Fur ther it admits that he was at all times a good worker in terms of the quality and quantity of his work With regard to his bad attitude the written record maintained by Respondent speaks loudly on this point For the General Counsel produced from Respondent s records (G C Exhs 3-4) two recommendations for pay advancement and promotion of Rickard in 1973 and 1978 where Respondents appraisal of Rickard is that he was technically competent and was a dedicated employee 13 In response to these written recommendations and lauda tory statements concerning Rickards loyalty attitude technical ability reliability and good faith efforts on behalf of Respondent Hammonds testified that Rickards bad attitude commenced only after he became a journey man i e only after 1978 The bad attitude never mane fested itself to the extent that any foreman or supervisor at any time spoke to much less objected to Rickard concerning this bad attitude It somehow suddenly sur faced as some sort of inchoate malignant defect inexpli cably fouling Respondents 5 year unblemished estima tion of this otherwise exemplary employee Not only does this evidence not show any credible had attitude on the part of Rickard but his record is excellent to the extent of undermining the credibility of all Respondent s witnesses who testified in support of Rickards bad atti tude Where neither Supervisor Grizzle nor Powell cor roborated Hammonds testimony that they complained of Rickards bad attitude Respondents defense became futile It is for this reason that I need not and do not rely on any testimony by Rickard Hardison or Townsend regarding Hammonds having told them in the termina tion interview of March 20 1980 that the media or TV cameras at the Hugh McCrea Park had done them in or any similar testimony For Rickards attitude and per formance as an employee on this record are so superior and so free from criticism as to make Respondents de 18 Respondents witness (Ted Box) testified that employees could not receive pay raises or promotions without the recommendation of their su pervisors Rickard started work on May 7 1973 The 1973 recommenda tion for a pay raise (G C Exh 4) is signed by two foremen McEleveen and Ted Box The text of this August 29 1973 recommendation is as fol lows Mr Rickard has steadily progressed in his work from the very be ginning He has a keen interest in learning the electrical trade and at present is doing work far above his pay scale In order to keep men of this caliber I recommend he be given a raise in pay comparable to the work he is doing He had not missed a day of work since coming on the job and is ready to work when called on for overtime His attitude towards the work is always very positive [Emphasis added t On March 28 1978 Foreman Ted Box wrote the following concerning Rickard s work and attitude C P Rickard has worked here since May 1973 He has worked for me directly and indirectly over the past 5 years His work as an elec trician has continued to improve all the time I would like to recom mend him to topped out to electrician This man has been a real ben efit to the company He has been a top helper since August 23 1976 His work record has really been good He is also a reliable type person When we need someone for night or weekend work he has never turned us down fense that Rickard was selected for layoff because of a late blooming bad attitude wholly without foundation If Respondents own criteria for selection for layoff (pro ductivity being the most important criterion versatility and relations with other employees including morale being the other factors) are examined then Rickard was necessarily selected for layoff for reasons other than his attitude and performance Testimony of direct unlawful motivation in their selection is unnecessary 14 There can be no doubt that Respondents displeasure in the unionization of its employees was demonstrated The discharge of an employee shortly after the employer learned of his union activity as in the instant case with regard to Rickard may well give rise to an inference that the discharge was discriminatory NLRB v Campco Inc 369 F 2d 125 127 (5th Cir 1966) In short when there is added to this peculiar timing the employer s knowledge and hostility and as here the additional factor that Respondent s rationale for the Rickard selec tion his bad attitude is palpably false it may be in fered that the true motive for his selection was an unlaw ful one which Respondent sought to disguise Shattuck Denn Mining Corp v NLRB 362 F 2d 466 (9th Cir 1966) Heartland Food Warehouse 256 NLRB 940 (1980) Lastly I cannot leave discussion of this issue (since I be lieve it affects Respondents case generally) without pointing to the quality of Respondents testimony with regard to Rickard Whereas Hammonds testified that he had been told of Rickards attitude problem by among others general foreman Guzzle and that was one of the reasons for Rickard s selection in the March 20 1980 lay offs Guzzle testified however that he did not regard Rickards attitude problem as affecting the quality or quantity of his work as a serious problem until about a week before the March 26 1981 layoff when Foreman Dorsett complained about it (Tr 534) 15 I therefore con clude that in view of Respondents knowledge of Rick and s union activities on Sunday March 16 at the Hugh McCrea recreation area its intermediate demonstrations of union animus and unfair labor practices and its false assertion that he was selected because of his bad atti tude that its selection of Rickard in the March 20 1980 layoff occurring only 4 days after his appearance at the union meeting was puma facie evidence of unlawful mo tivation that its false defense was further evidence in sup port of the General Counsels burden of showing that by 4 Contrary to the General Counsel s assertion (Br 13) Hammonds specifically denied telling the three discriminatees that the front office was responsible (Tr 360) I discredit his denial 15 It might also have been the very day of the 1981 layoff (Tr 535) In spite of Forman Dorsett s reports of a deterioration of the quality and quantity of Rickard s work covering 3 to 4 weeks before the layoff (Tr 532) Grizzle neither approached Rickard nor directed the foreman to take corrective action merely telling the foreman to try to work with Rickard (Tr 532) This again was 1981 when Rickard was again termi nated Dorsett even in 1981 never spoke to Rickard concerning Rick ard s work and attitude defects notwithstanding it was defective as soon as Rickard came under Dorsett s supervision-a period of 1 1/2 to 2 months before the second termination Dorsett did nothing (Tr 555-558) I do not credit any such testimony concerning Rickards defects whether in 1980 or 1981 Nor do I credit Hammonds testimony that Rickards bad attitude started only after he became a journeyman Such testimony is designed to counter Respondents laudatory evaluation of Rickard as late as 1978 (G C Exhs 3-4) 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a preponderance of the credible evidence the selection of Rickard for the March 20 1980 layoff violated Sec tion 8(a)(1) and (3) of the National Labor Relations Act as alleged Limestone Apparel Corp 255 NLRB 722 (1981) Wellington Hall Nursing Home Inc 257 NLRB 791 (1981) Furthermore Respondent failed to show either that his selection for layoff was for reasons other than those supporting the General Counsels prima facie case or that in any event he would have been included in the March 20 layoff regardless of his unlawful selec tion , 2 The inclusion of Elwood Hardison in the March 20 1980layoff Hammonds testified that Hardison was selected for the March 20 1980 layoff because he had received com plaints from Powell and Grizzle two foremen (Tr 351) that Hardison had left his work area and had been caught talking to other employees out of his work area This allegedly unacceptable conduct continued over a 2 year period and was allegedly known to General Fore man Hammonds (Tr 406-407) Not a single oral or writ ten reprimand regarding this alleged improper Hardison conduct was ever made Respondent does not deny this 16 Rather apparently as a defense Respondent ad duced many pages of testimony in this proceeding re garding a 1979 Water Bottle Incident (Tr 354 et seq ) At the end of this testimony regarding the water bottle incident (in which Hardison and Townsend among others participated) Hammonds testified that this water bottle incident admittedly a serious safety problem (Tr 356) had nothing to do with the layoffs of Hardison and Townsend When confronted with Hammonds testimo ny Respondent suggested that it was introduced only to show a pattern of conduct a pattern of misconduct and horseplay for which these two above alleged disco minatees were terminated There was however not a suggestion in the record of any pattern of horseplay or that Respondent terminated them for any such horseplay Rather this irrelevant water bottle incident occurring in 1979 extremely serious misconduct around machinery and especially electric machinery demonstrates that Re spondent s selections of Rickard Hardison and Town send for layoff on March 20 1980 were for unlawful reasons and that the reasons assigned were either false or pretextual The 1979 water bottle incident resulted in no oral or written reprimand to any employee The incident re 16 Hammonds testified that he spoke to Hardison s foremen Powell and Grizzle and not only did they not reprimand him for his alleged chronic misbehavior but Hammonds knew of this misconduct over a 2 year period and did not look into the reason why he had not been repo manded (Tr 407) Hammonds testified he kept it in mind to consider in a reduction in force (Tr 408) I do not credit such testimony of no action against an employee for continued allegedly serious misbehavior over a 2 year period I do not credit Hammonds that Hardison was guilty of such misbehavior much less chronic misbehavior Neither Powell nor Grizzle confirm any such misbehavior nor conversations with Hammonds on the subject Powell testified only that he imagined he told his gener al foremen of Rickard Hardison and Townsend being unproductive (Tr 489) I do not credit Powell regarding Hardison s (or Rickard s or Town send s) chronic malingering or ganging up notwithstanding it had been going on for maybe two week? (Tr 490) rather than 2 years ported by Supervisor Grizzle to General Foreman Ham monds was that a DuPont supervisor caught four of Re spondent s electricians (Townsend Hardison Smith and Johnny Baxley the son of Respondents chief supervisor J W Baxley) running up and down the stairs spraying water at each other from water bottles The DuPont su pervisor wanted them discharged for endangering them selves and others by this horseplay Although Ham monds testified that he called in and verbally reprimand ed them I reject this conclusion and find on the basis of testimony by Townsend and Hardison that he told them only that he would try to smooth things over in spite of the fact that DuPont wanted them fired Hammonds told Hardison and Townsend that he would move them out of the DuPont supervisors area on the fiberside and move them over to the DMT side As a result of the water bottle incident all four of the parties were sent over to the DMT side remaining there for a period of several months except for Superintendent Baxley s son Johnny Baxley who remained there only 2 to 3 days It is I believe pertinent to include this water bottle incident first raised by Respondent as an apparent de fense (notwithstanding that Hammonds testified that it had nothing to do with the layoffs of the three alleged discnminatees) to show that a serious safety infraction resulted in no verbal or written warning to any of the employees It is further important when compared to certain other alleged infractions by Hardison that caused him to be included in a subsequent 1981 layoff because he then became an unproductive employee As in the case of Rickard despite the so called com plaints from foremen because he was caught talking with other employees and idly standing around out of his work area it must be noted that Hardison employed by Respondent for 8 years had like Rickard never been the subject of a single oral or verbal reprimand con cerning his work or conduct In March 1980 shortly before being laid off Hardison was called in together with Townsend to repair an elec tncal fixture on an emergency basis where water had leaked into the fixture This was done at night on an emergency basis and in the presence of Electrical Super intendent J W Baxley and Supervisor Ransome Har dison testified that Superintendent J W Baxley told him that he would not have to worry about a job for 3 to 4 years because there was plenty of work on hand at the DuPont project Baxley denied the conversation pnnci pally on the ground that it could not have occurred be cause Respondent does not know how much would be available 3 to 4 years ahead I was not impressed with Baxley s credibility both on the ground of his shifting testimony whether he spoke to Daniel Project Manager Garrett regarding seeing Hardison and Townsend on tel evision on Sunday March 16 first deny that he did and thereafter admitting that he did and also because as will be hereafter noted because of i,ertain Hardison testimo ny regarding a telegram of July 9 1980 1 therefore credit Hardison that Baxley shortly before the March 20 1980 layoff told Hardison that there would be plenty of work for him as a reward for his performing emergen DAVIS ELECTRICAL CONSTRUCTORS 127 cy night service for Respondent that the Baxley state ment was intended as praise for Hardison s dedication and loyalty and an affirmation of Respondents high esti mation of Hardison regardless of whether Baxley was guaranteeing Hardison continual employment for 3 or 4 years that this occurred before Hardison appeared at the Hugh McCrea Park on Sunday March 16 and that Re spondent failed to support its defense that Hardison was selected for layoff on March 20 1980 because he was an unproductive employee I reach this conclusion on the ground that there was not a single or oral reprimand in this employees record although he had worked for Re spondent over an 8 year period If his talking to other employees and appearing out of the work area were mat ters of some gravity to any of Respondents supervisors such improper conduct would have resulted in an oral or written reprimand or some minimal admonition It result ed in nothing at all notwithstanding that Respondent was not at all reticent in issuing reprimands to employees who did not do their share of the work and left the work area (e g R Exh 6) I was also impressed by Baxley s euphoric and congratulatory reassurance to Hardison shortly before his being selected for layoff because he was unproductive that there would be plenty of work for such a loyal employee On the basis therefore of similar factual and the same legal criteria as in the case of Rickard including Re spondent replacing Hardison Rickard and Townsend with other journeymen within a few days of layoff the failure to prove his selection because he was unproduc tive and Respondents union animus threats and the timing of the layoff I conclude that the selection of Har dison for layoff on March 20 1980 was because of his appearance at the Hugh McCrea Park and because of Respondents desire to rid itself of a union adherent in violation of Section 8(a)(1) and (3) of the Act I note fur ther in view of Baxley s statement to him shortly before the layoff that there would be plenty of work for him because of his exemplary conduct in working at night on emergency basis and his absolutely clean and superior work record that Respondents assertion that he was laid off because of his talking to other employees and being out of his work area was a false defense leads to the same inferences of unlawful motivation as in the case of Rickard and eliminates its alternate defense that regard less of its motivation he would have been included in the March 20 layoff in any case 3 The selection of Gene Townsend for inclusion in the March 20 1980 layoff Townsend testified that he worked for Respondent twice since 1972 the last time in the period August 1979 through March 20 1980 when he was terminated in the same layoff with Rickard and Hardison At that time he was a journeymen electrician for 7 1/2 years and worked under Foreman Gordon Powell with Rickard and Har dison Among Respondents more than 100 unit electri clans (R Exh 4) employed in March 1980 only Town send and one other employee ( Butch Lewis) were cer tified by DuPont as capable of doing high voltage work Although there was some dispute as to how often it was done (Townsend testified about once a month and Respondents witnesses testified that it oc curred on fewer occasions than that) there is no question that Townsend was specifically qualified and was a com parative rarity among Respondents employees More over it is undenied that Townsend before 1980 was named as a foreman and acted as a foreman for Respond ent on three or four occasions the longest period being about 6 months He like Rickard and Hardison was at the Hugh McCrea recreation park on Sunday March 16 and he was included in the March 20 layoff Among other things he testified that Respondents agent Jo Virgil on Monday March 17 following the Sunday March 16 meeting at the Hugh McCrea Park came to the powerhouse and inquired of employee gripes that they were willing to discuss with him 17 Whereas Re spondent s witnesses (Box) testified that Townsend was not uniquely qualified and indeed mentioned the names of R D Smith and employee Young as also being certi fled by DuPont to high voltage electrical work Town send testified without contradiction in rebuttal that Young had retired in 1977 and that Smith had last worked for Respondent in 1978 Thus Respondents at tempt to discredit Townsend ended in irrelevancy and both magnified Townsend s uniqueness and demonstrated an unnecessary weakness in Respondents selection of Townsend Further whereas Hammonds apparently did not testify on direct examination regarding the choice of Townsend he did testify on cross examination that there were complaints from Foreman Grizzle in 1980 that Townsend although a good worker on some days was moody Hammonds as with Hardison s wandering and Rickard s bad attitude never made a note of Grizzle s comment and never spoke to Townsend As with Rick and s bad attitude Townsend s moodiness failed to affect his work or conduct (Tr 365) As in the case of Rickard and Hardison there is not a single reprimand or warning whether oral or written regarding Townsend It is clear that Townsend like Hardison and Rickard was an exemplary employee and in his case uniquely qualified (except for one other) among all of Respond ent s more than 100 electricians Townsend s participa tion in the water bottle incident is of no probative value in view of Hammonds concession that it had nothing to do with the selection of the layoffs On the contrary Re spondent s raising the irrelevant misconduct as a defense and its inclusion of much testimony regarding that mci dent indicated quite clearly that it was not prepared for Hammonds admission on the witness stand and that the inclusion of such testimony alone is indicative of Re spondent grasping at straws and a false defense As in the cases of Rickard and Hardison I conclude that Respondents explanation of inclusion of Townsend in the layoff because of these inchoate subjective and undocumented complaints from Grizzle regarding Town send s moodiness and unproductivity was spurious I therefore conclude that Townsend like Rickard and Hardison was the beneficiary of the General Counsel s prima facie case which was met by false defenses and 1 Townsend testified as did Rickard and Hardison that as far as they knew they together with Jesse Paul Watkins were the only journeymen laid off on March 20 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was included in the March 20 1980 layoff for unlawful motives within the meaning of Section 8(a)(1) and (3) of the Act E The Grocery Store Conversation of Late March 1980 The complaint alleges that in the latter part of March 1980 Gordon Powell threatened employees that they would never work for Respondent again if they filed charges with the Labor Board (par 8(e)) In support of this allegation Hardison testified that in the late morning of a day about 1 week after the March 20 layoff he met Foreman Powell in a grocery store near the worksite i 8 He said that in a conversation with Powell Powell said that General Foreman Hammonds said that if they pro ceeded with their charges they would never work again on another Daniel job Powell admits meeting and con versing with Hardison at a grocery store but asserts that the meeting started with Hardison s wife looking at Powell and saying There s that SO B that laid you off Powell then said that he then asked Hardison whether he had found a job and Hardison said that he had not Powell specifically denies that he had been told by Hammonds that if the alleged discriminatees proceed ed with their charges they would never work again on a Daniel job Moreover Powell testified that in various telephone calls from Hardison which he received at home Hardison would inquire who was working for Re spondent would bad mouth Respondents and Daniel s top supervisors and said that the alleged discnminatees would get a lawyer I conclude from my observation of the witnesses as they testified and the circumstances of the case including Respondents manifiested hostility to union organization among its employees that the Gener al Counsel has not sustained his burden of proving that the particular threat was uttered Although I was not generally impressed with Powell s credibility I find that while Hardison was called in rebuttal he failed to con tradict Powell s testimony that their wives were present (Hardison said they were alone) and that the conversa tion occurred in a different place Neither wife was called as a witness Under such circumstances I recom mend that the allegation be dismissed as unproven 19 F The Rehiring of Rickard and Hardison Respondent does not deny that Rickard was reem ployed by Respondent on or about May 12 1980 and Hardison reemployed on or about July 15 1980 20 Re 18 Powell and Hardison disagree concerning in which grocery store the conversation occurred 19I need not pass on Respondents further argument (Br 48) that Hammonds and Powell members of Davis management could not keep him from working on a Daniel job If that were the issue then under the facts of this case demonstrating a substantial interrelation between the Davis employees and Daniel power to hire I would be inclined to change the credibility resolution 20 To the extent that Respondent argues that its voluntary rehiring of Hardison and Rickard (i e the absence of rehiring pursuant to an order of reinstatement) demonstrates freedom from union animus that argu ment is rejected Rather such rehiring on this record tends to demon strate the insubstantiality of Hardison s unproductiveness and Rickard s bad attitude a hiatus of union activity among Respondents employees and perhaps Respondents desire to limit any backpay since the charge in spondent admits that the charges in Case 11-CA-9018 were served on March 27 1980 (1 week after the alleged unlawful terminations of March 20 1980) and an amend ed charge in the same case was served on Respondent on May 7 1980 These charges relate to the unlawful termi nations inter alia of Rickard Hardison Townsend and Watkins Bearing in mind that the amended charge in Case 11- CA-9018 was served on Respondent on May 7 1980 there appears in the record certain uncontradicted and credited Rickard testimony which is unexplained by Re spondent and further suggests the implausibility of Re spondent s defenses regarding the performance inadequa cy and bad attitude of Townsend Rickard and Hardison to the extent that it would cause them to be laid off rather than other less experienced personnel Thus sometime subsequent to the March 20 1980 layoffs on three occasions Rickard was visited by employees Johnny Baxley and Conrad Stowell who asked him if he wished to return to work again around May 7 or 8 he was visited by Johnny Baxley and Stowell who again asked him if he was still interested in working for Davis He told them that he was Respondent received a copy of the amended charge alleging Rickards unlawful ter mination on May 7 Shortly thereafter Johnny Baxley telephoned him at night Wednesday May 7 and said that if he was still interested in working for Respondent he should come in on the next day (Thursday May 8 1980) to fill out employment application papers and be prepared to go to work on the next working day the fol lowing Monday May 12 1980 Rickard reported at the jobsite on Thursday May 8 did fill out the papers and had a conversation with Superintendent J W Baxley Baxley said to him Glad to have you back There being no further or other explanation than that Respond ent used employees Johnny Baxley (son of Respondent s superintendent) and Stowell as their means to inquire whether Rickard wanted further employment I conclude that they were Respondent s agents in the Rickard rehir ing and that it was Respondents May 7 receipt of the amended charge that lead to the sudden May 7 night offer and the actual reemployment of Rickard on May 1221 Starting on Monday May 12 Rickard worked under Foreman Kraynick and then the newly appointed fore man Johnny Baxley who took over Kraynick s crew Rickard worked for Baxley from approximately June 1 1980 through January 1981 when he was transferred to Foreman R D Dorsett s crew It was on January 8 1981 that Rickard and Hardison among others appeared at a National Labor Relations Board hearing before Administrative Law Judge Bernard Ries and it was in mid January 1981 that Rickard was transfered to Dorsett s crew The complaint alleges that Case 11-CA-9018 had already been served an amended charge served on May 7 and Rickard rehired on May 12 1980 21 I found it rather singular for the offer of employment to Rickard to flow from Johnny Baxley then a mere employee In making credibility resolutions adverse to Respondent this type of indirect dealing and ambi guity (allowing room for the argument over responsibility and agency status) cannot escape notice DAVIS ELECTRICAL CONSTRUCTORS 129 such a transfer was unlawful and violated Section 8(a)(1) and (3) of the Act (par 11 of the complaint) This allega tion is treated hereafter Meanwhile after Rickard had been employed and for the period subsequent to his March 20 1980 termination Elwood Hardison from time to time telephoned Re spondent s personnel department Superintendent J W Baxley and General Foreman J W Hammonds to in quire if Respondent was doing any hiring They told them that it was not He also telephoned Foreman Powell and spoke disparagingly of members of Daniel and Davis top management (Tr 481 et seq) Sometime immediately before July 8 1980 employee Conrad Stowell (who with Johnny Baxley had earlier visited Rickard on behalf of Respondent) came alone to Hardison s house Stowell gave Hardison a piece of paper with the National Labor Relations Board case number on it concerning the case number of the charge (Case 11-CA-9018) which had been filed and told Har dison that he should call J W Baxley about the case Hardison on July 8 1980 telephoned Baxley and there after visited him During the visit Baxley according to Hardison told him that if he telegraphed the National Labor Relations Board to drop the case Respondent would hire him back at the DuPont site Hardison said that Baxley insisted that the conversation be strictly con fidential and said that Hardison bring a copy of any such telegram to Baxley so that Baxley could give it to Daniel Constructions project manager Charlie Garrett With such a telegram Hardison said Baxley told him that he would return to work on the following Monday Hardison said that he agreed to send the telegram and to bring it to Baxley s house on the next day Friday July 10 1980 In any event Hardison on the morning of July 9 1980 sent a telegram to the Regional Director of Region 11 National Labor Relations Board (G C Exh 5) Would like to drop Case No 11-CA-9018 on Davis Electric Company [Signed] Elwood Hardison Har dison who had worked for Respondent from March 1975 through March 1980 without being laid off notwith standing that there had been many layoffs of electrical employees in that 5 year period was reemployed com mencing on or about July 15 1980 as a journeymen electrician J W Baxley s version of this event is that Hardison visited his house about 3 to 4 months after the March 20 1980 layoff and merely dropped in Hardison admittedly told him that his wife had left him that he was taking care of his little boy and that he was trying to get his wife back Baxley advised him to go to a church and re ceive counseling concerning his private life Baxley said that Hardison then remarked that Hardison s uncle had told him to get rid of the case against Davis and to send a telegram to that effect Baxley further said that Har dison suggested that he give a copy of the telegram to Baxley and that Baxley speak to Garrett about rehiring him on the job Baxley agreed to do so Baxley further testified that when a few days later he got a copy of the telegram from Hardison he gave the telegram to Garrett and that Hardison thereafter returned to work Baxley said that he spoke to Garrett after receiving the telegram and when he told him of Hardison s sad condition Gar rett told Baxley that he could see what he could do about the matter Thereafter as above noted on or about July 15 1980 Hardison was rehired on Respondent s payroll Baxley further testified that he spoke to Garrett not because of the telegram but because he felt sorry for Hardison and Hardison s personal predicament In re sponse to my inquiry of J W Baxley why since it was his feelings of sympathy for Hardison s personal predica ment rather than the receipt of the telegram that caused him to speak to Garrett he did not speak to Garrett before rather than after he received the copy of Hardis on s telegram Baxley sat silent was then evasive (Tr 509) and finally could not answer the question (Tr 509- 510) I have little difficulty in crediting Hardison s ver sion over Baxley s denial I am mindful of Baxley s testi mony at first denying and then admitting that he spoke to Daniel Project Manager Garrett on March 17 con cerning the presence of Davis employees at the Hugh McCrea Park meeting on March 16 (Tr 519) and I was particularly impressed by his inability to offer any expla nation (i e too busy forgetful etc) why he waited for a copy of Hardison s telegram before asking Garrett to rehire him if his motive in speaking to Garrett was sym pathy for Hardison Baxley s failure to answer this ques tion and his embarrassed silence lead me to discredit Baxley s denials and to credit Hardison In this regard Respondent not only manifested its opposition to the Union but sought to prevent Hardison s attempt at vindi cation through the processes of National Labor Relations Board I am also mindful of the fact that Conrad Stowell who with Johnny Baxley played a similar part in the earlier rehiring of Richard in May 1980 also played a similar part in the rehiring of Hardison Re spondent called neither Johnny Baxley nor Conrad Stowell to explain or deny the testimony of the General Counsels witnesses concerning their agency in causing the rehiring of Rickard and Hardison In view of my findings of Stowell s agency in this regard I further credit Hardison s version of the conversation with Super intendent Baxley concerning the circumstances of his at tempted telegram withdrawal in Case 11-CA-9081 since Respondent failed to call its agent Stowell to deny Har dison s testimony that Stowell come to his house with the case number on a slip of paper and a suggestion that Hardison communicate with Baxley I regard Respond ent s failure to call Stowell to deny this Hardison testi mony as a further basis for drawing an inference adverse to Respondent Compare Laredo Coca Cola Bottling Co 241 NLRB 167 172 (1979) with Hitchiner Mfg Co 243 NLRB 927 (1979) and to further cause me to believe that Hardison s version of the conversation was true and that superintendent Baxley testified falsely In so finding I do not conclude that this conduct constituted an unfair labor practice since it is not so alleged and the General Counsel offered the evidence only to show continued Respondent union animus (Tr 157(a)) 22 That it does 22 Respondent failed to object to the receipt of Rickard s testimony concerning Stowell and Johnny Baxley on any ground and the testimony was received for all purposes The Hardison testimony concerning Continued 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD G The Alleged Unlawful Transfer of Rickard in Mid January 1981 The complaint (par 11) alleges as noted above that in or about mid January 1981 Respondent transferred Rick and in violation of Section 8(a)(1) (3) and (4) of the Act As noted above Johnny Baxley telephoned Rickard on Wednesday night May 7 1980 asked him if he was interested in returning to work and if so he could come in the next day Thursday May 8 to fill out reemploy ment papers and be prepared to commence work on the next workday Monday May 12 When he was fill ng out the papers on May 8 1980 Superintendent J W Baxley told him that Baxley was glad to have you back Rickard then returned to work on Foreman Kraynick s crew and worked among 10 journeymen and helpers After 3 weeks Johnny Baxley became a fore man and took over Kraynick s crew Rickard testified that he worked for Johnny Baxley from June 1 1980 to mid January 1981 when he was transferred to Foreman Ron Dorsett s crew Rickard appeared before Adminis trative Law Judge Bernard Ries in the National Labor Relations Board proceeding which opened on January 8 1981 The transfer occurred within a short time Rickard testified that he was told of the transfer by Johnny Baxley while at work on Thursday and that the transfer would become effective on the following Monday At that time Rickard was working on the controls of a con veyor system work for only the most experienced elec tricians and journeyman Conrad Stowell was then transferred in from Kraymck s crew to do Rickard s job on the conveyor There was still a considerable amount of work on the conveyor when Rickard was transferred (Tr 101) Finally Rickard testified that his work on Dorsett s crew was pulling wire and running conduit which was routine work which continued from mid January 1981 to March 26 1981 when he was again terminated by Respondent At the time of his termination on March 26 also alleged as an unfair labor practice in violation of Section 8(a)(1) (3) and (4) of the Act Rick and testified without contradiction that he saw Conrad Stowell the journeyman wno had replaced him on the Baxley crew still working on and hooking up the con trol panels that Rickard had been working on when he was transferred from Baxley s crew to Dorsett s crew General Foreman Herb Grizzle testified that with the respect to the Rickard transfer in mid January he trans ferred Stowell from Kraymck s crew to Baxley s crew and Rickard from Baxley s crew to Dorsett s crew be cause Rickard was more familiar with the bailer which r Doresett s crew was working on than was Stowell Herb Grizzle also testified that there were also other transfers on the same day swelling Dorsett s crew to 14 journey men and helpers at the same time that Rickard was trans ferred Dorsett testified that they added six electricians and helpers to his eight man crew because they wanted Stowell s visit with the case number on a slip of paper allegedly from Baxley was also not the subject of objection although subsequent testi mony concerning the conversation on the next day between Hardison and Superintendent J W Baxley was the subject of Respondents objec tion of remoteness (Tr 157(a)) and it was admitted on the General Counsel s restrictive offer not for the purpose of finding an unfair labor practice but merely to show Respondents continued animus to be on schedule on the bailer which he and Grizzle de scribed (Tr 546) with contradiction as the most comph cated piece of equipment in the entire DuPont area He testified and Rickard denied that in the conversation be tween Dorsett and Rickard Rickard told him that he was happy to get out of Johnny Baxley s crew because he was tired of carrying him (Baxley) The General Counsel points to the fact of Respond ent s generalized union animus and particularized animus for Rickard because he appeared at the January 8 1981 Board hearing a week or so before the transfer The General Counsel argues that this sequence supports the inference that the transfer was unlawfully motivated particularly within the meaning of Section 8(a)(3) and (4) of the Act He also notes that many transfers occur under emergency conditions here there was not only no proof of an emergency but no reason given for the trans fer The testimony however is in dispute as to whether Rickard after the transfer was doing routine work pull ing wire and conduit notwithstanding that Rickard ad mitted that he was working with a helper on the bailer at the time of the layoff The evidence shows in addition that the transfer did not result in any pay or other detn ment to Rickard There was no suggestion that he was placed on Dorsett s crew in order to lay him off because he remained on that crew from mid January to the end of March Nor was it shown that he was transferred into the crew to isolate him or to keep his union activities under surveillance In the absence of evidence showing that he was trans ferred for purposes of keeping his union activities under surveillance or that the transfer resulted in some loss of pay or that some detrimental working condition was im posed on him or was retaliatory and notwithstarding that he may have only been pulling conduit rather than his erstwhile more complicated tasks in view of the General Counsels failure to undermine the testimony of Foreman Ted Grizzle that Rickard was added because the work on the bailer was work on a most complicated piece of machinery for which Rickards long experience qualified him I am unable to conclude that Respondents manifested animus against union activities in general and Rickard in particular played a role in this transfer particularly because in the absence of evidence that Rickard was being set up or that the new job was less desirable other than being technically unrewarding the transfer resulted in Rickard continuing to work for Re spondent for 3 months after the transfer In short I con elude that the General Counsel has failed to prove by a preponderance of the evidence (notwithstanding the ex istence of prior animus and unlawful conduct towards Rickard) that this mid January 1981 transfer was unlaw fully motivated Further Rickards January 8 1981 testi mony was not shown to be a causal factor in the trans fer 23 I shall therefore recommend to the Board that 23 I am not unaware that Hardison also was the subject of a transfer about a week after he appeared on January 8 1981 If Respondent by these transfers intended to send a message to Rickard and Hardison to retaliate for their testimony the evidence was too indistinct DAVIS ELECTRICAL CONSTRUCTORS i 131 paragraph 11 of the amended complaint be dismissed as unproven H The Alleged Unlawful Written Warnings to Elwood Hardison of February 24 1981 Paragraph 10 of the amended complaint alleges that on or about February 24 1981 Respondent issued two writ ten warnings to Elwood Hardison which warnings were unlawful in motivation and violated Section 8(a)(3) and (4) of the Act As noted above 1 week after Hardison presented a copy of his July 9 telegram to the Labor Board to J W Baxley he was rehired and worked with Rickard in Johnny Baxley s crew In November 1980 Hardison vol unteered to work on the night shift under Foreman Jerry Bell Like Rickard Hardison appeared at the Board heanng on January 8 1981 and was working on the night shift under Foreman Jerry Bell from November 1980 until January 1981 when he too was transferred (effective Jan uary 18 1981) about I week after the hearing to Fore man Kraynick crew on the day shift He worked for Kraynick until February 19 1981 As in the case of Rickard Hardison s foreman Bell told him on the pre ceding Thursday January 15 that Hardison and his helper were going back on the day shift on Kraynick s crew 24 After a week with Kraynick Kraynick told Hardison that he was being sent over to the DMT side under Foreman Ransom There was no allegation that these transfers of Hardison from crew to crew were in any way unlawful Hardison worked for Foreman Ransom on the DMT side from January 19 through March 26 1981 when he and Rickard were terminated under a reduction in force As above this reduction in force itself is the subject of the General Counsels further allegations that the selections of Rickard and Hardison were unlawfully motivated and violated Section 8(a)(3) and (4) of the Act Hardison testified that on Thursday February 19 1981 he left work and went home early with Respond ent s (General Foreman Ted Box) permission because he did not want to work in the rain doing outside electrical work Ted Box General Foreman on the DMT side tes tified that on Thursday February 19 1981 there was a need to transfer people and that on that afternoon he had a foremen s meeting to implement the transfer At that meeting he picked Hardison to be transferred from Ran som s crew to the crew of Foreman K Graham Hardison having left early on Thursday because of the rain (and because Thursday is the last day of the work week) Box Graham and Ransom were unable to tell Hardison of the impending transfer When Hardison came to work before 7 a in (starting time) on the next workday Monday February 23 he heard from an em ployee that he was being transferred to Graham s crew 24 I credit Hardison s uncontradicted testimony that Foreman Bell told Hardison in December 1980 after Hardison suggested that Rickard fill the opening for another night shift electrician that Respondent did not want Rickard and Hardison working together because they were too good friends I also credit Hardison s further uncontradicted testimony that Respondent has many crews on which personal friends work togeth er Hardison did not get along with Graham and did not want to work for him Hardison testified that Box knew this Box did not deny it When Hardison saw Foreman Ransom and asked where Box was Ransom said that Box was in his office Hardison went to Box s office but Box was not there Foreman Nathan Ridgeway was there (Tr 172) and called Box at another building (Tr 173) and said Hardison wanted to see him Box directed Ridgeway to send Hardison over to see him (Tr 423) Hardison then spoke to Box who maintained an open door policy for employees who had problems provided that the employee received permission from his foreman to visit Box When Hardison came to Box s office Har dison told him that he did not want to work for Fore man Kermit Graham When Box asked him if he were refusing to work for Graham Hardison told him that he was not refusing because if he refused Box would have the ground to fire him Instead Hardison asked for per mission to leave early to think the matter over and told Box that if he could find a job paying $2 an hour he would not come back to work for Respondent Box told him that he would sign his timecard to permit him to go home but wanted an answer from him first thing in the morning Hardison agreed Box then signed the timecard and permitted Hardison to leave early The next day February 24 Hardison reported to work for Graham but did not telephone or contact Box Rather Graham told Box that Hardison was working for him that morning Box returned to his office and wrote up a reprimand (G C Exh 7) Meanwhile Foreman Ransom had come to Box s office and told him that Hardison had not received per mission to talk with Box on February 23 and that while Hardison A as waiting to see Box Hardison had not re ported to his assigned work area on Monday morning thereby missing a safety lecture Ransom then wrote up a reprimand (G C Exh 6) allegedly on the morning of February 23 without dating the reprimand He placed the date (February 24) on it the next day when Hardison was called into the office and presented with the two reprimands on February 24 Hardison testified that on February 24 Graham told him while he was working that General Foreman Box wanted to see him He went to Box s office and there found Box and Ransom Box gave him Ransom s repn mand which noted a failure to receive Ransom s permis sion to see Box for not going to a safety meeting and not going to his designated work area Hardison told him that it was untrue and refused to sign the Ransom repri mand Then Box handed him a second reprimand (Box s reprimand) for going home early and not going to his designated work area Regarding Ransom s reprimand Hardison testified that when he saw Ransom on the morning of February 23 and asked him where Box was and Ransom told him that Box was in his office that was the equivalent of being given permission to see Box Regarding Box s reprimand Hardison testified that that reprimand looked more like the truth and admitted that during the conversation with Box Box told him that there was work to do on that Monday that he was needed and that Box said that 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hardison s dislike of working for Graham and wanting to go home early to think it over was not a good reason for going home early Box testified that he wrote up the reprimand (G C Exh 7) because he considered it an act of insubordina tion for Hardison to refuse to go to work even though he gave Hardison permission to leave early to think over whether he wanted to work for Graham An analysis of the reprimands demonstrates that in view of Respondents unlawful animus against Hardison the reprimands can hardly be said to have been lawfully inspired Regarding Ransom s reprimand as the General Court sel notes (Br 21) since Ransom admitted (G C Exh 6) that Hardison left him for Box before starting time Har dison did not then need Ransom s permission to leave In addition it is clear that Ransom knew or had reason to believe from Hardison s question where Hardison was going and saw him leave It is difficult to believe that seeing Hardison leave Ransom would not have made some inquiry or warned him of the impending safety meeting if this matter were of serious concern to Ransom But even if the evidence is not compelling re garding the Ransom reprimand it seems clear that since the events are linked the reprimands should be read to gether In this light it is clear that Box apparently un successful in inducing Hardison to affirmatively state that he refused to work for Graham and having given Har dison permission to leave early (to think it over) never theless without warning Hardison wrote up a reprimand (when Hardison was out of sight) based on Hardison s insubordination for leaving early with Box s permis sion I regard it as without legal meat that Box s permis sion to Hardison to leave early was reluctantly given be cause of the alleged large amount of work that was out standing The pivotal issue is whether Box with or without re luctance made the decision to give Hardison permission to leave early and in fact gave Hardison his permission It is uncontradicted that he gave such permission Under circumstances free from copious and accurately directed prior unlawful conduct Box s transfer of Hardison to an uncongenial foreman cannot be a matter for statutory concern To do so in the presence of Respondents union animus and unlawful prior acts against Hardison is clear ly suspicious But for Box to issue a reprimand to Har dison for his having left early after granting him permis sion to do so is to engage in a sandbagging operation against Hardison disciplining Hardison for an act for which he was given express permission to engage in Under these circumstances and notwithstanding an em ployer s clear right to engage in harsh and illogical ac tions against its employees without violating the Act but reading the two reprimands together since they grow out of the same transaction I regard the two reprimands to a newly rehired employee who has demonstrated by his January 8 testimony both an insensitiveness to super visor Baxley s benevolence and a continual desire to vin dicate his 8(a)(3) rights as a subterfuge and a method of creating a paper trial so that a record could be made of Hardison s misbehavior and an attempt to blacken his work history Box testified that reprimands may be taken into account in deciding whom to lay off In this record it must be noted above all as Box admitted that in the 8 years of Hardison s employment he had received not a single oral or written reprimand Respondents calling at tention to Hardison s participation in the water bottle incident admittedly not a reason for discharging him is not only not to be construed as an oral reprimand but shows Respondent searching around for an element of misconduct to pin on Hardison These two reprimands show the same stamp I therefore conclude that in accordance with para graph 10 of the amended complaint the written warn ings of February 24 1981 to Elwood Hardison whether or not supportable in fact and I believe them to be un supportable were pretextual attempts by Respondent to place blemishes on Hardison s work record I conclude that this Respondent conduct flowed both from Hardis on s participation in the prior years (March 16 1980) union activity and particularly his January 8 1981 Board appearance Respondent by the two warnings was showing Hardison that his National Labor Relations Board appearance was an act inconsistent with Respond ent having rehired him Thus I regard the two February 24 written reprimands to Hardison to constitute viola tions of Section 8(a)(3) and (4) of the Act I shall recom mend inter alia that they be removed from his employ ment record I The Alleged Unlawful March 26 1981 Layoffs of Hardison and Rickard J W Hammonds since June 1980 superintendent on the same highest managerial level as J W Baxley testi fled that in a meeting with DuPont on Wednesday March 25 1980 there was a decision to reduce the number of electricians by 14 because of the imminent completion of 2 projects one on fiberside the other at the DMT 25 Together with superintendent Baxley they decided early on Thursday March 26 that seven electri cians be laid off from DMT and seven from the fiberside They then held a meeting with their general foremen Herb Grizzle (fiberside) and Ted Box (DMT side) where they notified that each was to submit seven names for layoff Thereafter General Foremen Box and Guzzle re turned later on Thursday March 26 with the 14 names and Hammonds approved them Hammonds testified that he made no recommendations regarding the names All parties are in apparent agreement that the criteria for laying off employees is that Respondent lays off those who are least productive and does not abide by any seniority rule or criteria in making the layoff 1 The layoff of Elwood Hardison Box testified that on Thursday morning March 26 he was told of the need to layoff seven electricians from the 25 Hammonds insisted that Hardison on the DMT side was laid off because there was no electrical work for him and others laid off at that time in his project (Tr 400-402 ) Earlier he testified that the electrical work Hardison was working on was merely declining (Tr 400) Har dison testified that on Friday March 27 1981 the day after his layoff he saw members of his own crew going to work on an overtime basis (Tr 186) Friday is not part of the regular workweek DAVIS ELECTRICAL CONSTRUCTORS DMT side at a general foremen meeting with their su perintendent Hammonds that he then had a Thursday afternoon meeting with his six foremen Three did not give any names for layoffs (on the ground of being too busy) and three (Graham Hillburn and Ransom) gave seven names Box told the six foremen that he wanted the names of those who were least productive had poor quality and quantity of work and had a record of absen teeism Graham gave Hardison s name to Box 26 Box testified that the six employees laid off with Har dison were slow workers some of whom had repri mands He testified that Hardison had been picked by Graham and confirmed by Box because he was among the least productive and had two wntten reprimands (which above were found to be unlawfully derived) Box testified that all seven of the electricians included in the March 26 layoff had been counseled on their short comings although he could recall no dates Regarding Hardison Box testified that there were only two repri mands in his file that there was nothing else detrimental in his file such as accusations of absenteeism poor pro duction or poor quality of his work that Box had acqui esced in the selection of Hardison without inspecting his file On Box s admissions that the two unlawful reprimands played the principal if not the exclusive basis for his confirmation in the terminations since Hardison except for those reprimands had an unblemished record for 8 years of employment with Respondent and in view of myrconclusions that the two February 24 1981 repn mands were unlawfully motivated I conclude that the Hardison inclusion in the otherwise lawful economic layoff of March 26 stemmed from discriminatory moti vation was unlawful and that Respondent has failed to show that Hardison would have been included in the layoff absent the unlawful considerations Huntington Rubber Co 260 NLRB 1008 (1982) Wright Line 251 NLRB 1083 (1980) Moreover Hardison if anything on Box s admission was not shown to be among the least productive based Fon any objective criteria (again Graham who allegedly selected Hardison for terming tion by inter alta applying the criterion of least pro ductive did not testify) and Box admitted that there was nothing in Hardison s file concerning absenteeism and nothing concerning quality or quantity of his work Together with the two wntten reprimands Box testified it was principally his observation of Hardison that lead him to believe that he was among the least productive 27 In view of these circumstances including Graham s fail ure to testify the subjective and actually flimsy nature of Box s unsupported and undocumented observation that Hardison was not a productive employee I conclude that the inclusion of Hardison in the March 26 1981 layoff was unlawfully motivated because the reasons ad vanced by Respondent are unbelievable unsupported subjective observations and are not based on any sub stantiated objective criteria other than the two repn mands which were themselves unlawfully motivated 26 Graham did not testify 27 Respondent laid off Hardison in 1980 because with Rickard he was the least productive 133 Thus his being laid off for unlawful reasons creates a prima facie case which on Respondents own proof stands unrebutted Wright Line supra I further conclude that Respondents conduct regarding Hardison especial ly in light of his peculiar ingratitude after Respondent re hired him is a continuation of its previous retaliation against him for his further participation in union activi ties and Board proceedings A repetition of the evidence of Respondents animus and unlawful dealings with Har dison in unnecessary The layoff violates Section 8(a)(3) and (4) 2 The inclusion of C P Rickard in the March 26 1981 layoff Grizzle testified that he received from Superintendent J W Hammonds a direction to layoff seven employees Foreman Ronnie Dorsett testified that General Fore man Grizzle told him to cut back his 14 man crew to 9 employees Grizzle told him that he needed five names and that he should look at his people real good and take everything into consideration Dorsett testified that he gave five names to Grizzle at a meeting with four other Grizzle foremen on March 25 1981 the Wednesday before the Thursday layoffs Among the fac tors Dorsett said that he took into account were atti tude dependability early quits absence quality and quantity of work In accordance with these factors Dor sett testified that he picked Rickard among the others be cause of Rickards attitude problems He said that Rickard manifested an attitude whereby the whole world was against him ( there was a feeling there Tr 554) He said that it affected his work to such an extent that Rickard showed that he did not care if a job got done or not Yet Dorsett testified that he (1) never spoke to Rickard of this bad attitude that allegedly adversely of fected his work in the entire 2 months (January through March 1981) that Rickard had worked for him and (2) certainly had never issued a warning written or oral to Rickard because of his poor conduct or any other reason On the other hand Dorsett testified that regard ing employee J D Hull a helper who was also laid off for poor attitude and poor quality of work he told Hull to tighten up his work 2 weeks before the layoff Simi larly Dorsett warned employee Terry Shoenick who was laid off with Rickard because of his poor attitude of being caught in a phone booth out of the work area on several occasions before he was terminated Dorsett se lected employee Berkett for layoff Harvey Berkett was warned by Dorsett twice a week for a period of a month to stop talking and to work (Tr 560-561) No such warnings or counseling oral or written were given to Rickard Similarly there is not a particle of evidence showing any Rickard lack of dependability or that he quit early or that he had any absences or that the qual ity or quantity of his work was ever in doubt Dorsett s testimony regarding his basis for Rickards selection for the March 26 layoff where responsive was unbelievable (Tr 554-560) Grizzle testified on matters not at all suggested by Dorsett Dorsett who testified that Rickards bad atti tude covered the entire 2 month period of his working 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on Dorsett s crew never said that this matter had been discussed with Grizzle Grizzle testified that Rickard s bad attitude was his failure to communicate with the foreman and that Guzzle did not regard the deterioration of the quality and quantity of Rickards work as serious until the second Dorsett complaint about this matter on the Thursday March 26 layoff Dorsett s testimony men tions no complaints to Grizzle Although Dorsett did say that Rickard didn t speak to him in performing his jobs it is difficult to see how Rickard s bad attitude over so long a period allegedly affecting the quality and quanti ty of Rickards work to such an extent that it created a morale problem among other employees did not result in Dorsett taking the matter up with Rickard Dorsett never did so although he made an open issue of poor production and attitude with at least two other employ ees who were laid off with Rickard In view of these cir cumstances therefore including Grizzle s and Dorsett s inconsistent and wholly incredible testimony regarding their selection of Rickard for layoff I am unable to find any believable reason for the layoff of March 26 1981 Thus the General Counsels prima) facie case was unre butted Rather Respondent relied on principally the same factors in Rickards inclusion of the March 26 1981 layoffs as it did in his March 20 1980 layoff which was unlawful No credible evidence had been adduced by Re spondent to demonstrate Rickards bad attitude much less any objective evidence thereof nor any other reason to cause the inclusion of an employee with 7 years expe rience and an unblemished record whom Respondent voluntarily rehired 28 into an otherwise lawful layoff I conclude therefore that Respondent violated Section 8(a)(1) (3) and (4) by its March 26 1981 inclusion of Rickard as the inclusion of Hardison in the layoff for unlawful reasons and that its conduct was merely a con tinuation of Respondents 1980 unlawful conduct of re taliating against Rickard because of his open renewed participation in union activities and Board proceedings In reaching this conclusion I am not suggesting that the layoff of other employees was not for economic reasons Here Respondent used the otherwise lawful layoff to rid itself of two employees whose engaging in and support of statutory rights was inconsistent with Respondent s opposition to the Union and demonstrated in addition a callous ingratitude for being rehired 28 Supervisor Hammonds testified that Respondent laid off Rickard in 1980 because of his bad attitude (Tr 346 et seq ) because he sometimes failed to talk to supervisors This did not affect his work yet it was enough of a problem allegedly to cause Respondent to terminate him Yet as Respondent observes Respondent rehired Rickard of its own free will in May of 1980 (Br 30) apparently with no admonition against Rickard continuing to manifest this psychological defect Respondent ac cording to Dorsett and Grizzle allegedly noticed this same personality abberration in Rickard as soon as he was transferred to Dorsett s crew in January 1981 but never spoke to him about it for the 2 months it alleged ly irritated Dorsett Unlike Hardison who complained of his idleness and for whom Baxley felt sympathy when he caused him to be rehired the allegedly moody Rickard was repeatedly sought out by Respondent and repeatedly queried on his availability for return to work J W Baxley s only salutation to Rickard on his rehire was that he was happy to have Rickard back Such evidence shows that Respondent rehired Rickard after the settlement during a hiatus in union activity whatever his tem perament because he was a good electrician and terminated him shortly after he manifested by his Board appearance his continued support of his rights under Secs 7 and 8(a)(3) and (4) of the Act In making the above determinations I have relied in part on Respondents pre January 8 1981 conduct29 (the conduct anteceding the January 8 settlement agreement with the Regional Director) in establishing Respondent s motive in its postsettlement inclusion of Hardison and Rickard in the layoffs and the February 1981 reprimands to Hardison The Board rule approved by the courts permits the use of this presettlement evidence to establish a postsettlement motive or object Joseph s Landscaping Service 154 NLRB 1384 (1965) enfd sub nom NLRB v Northern California Hodcarrrers 389 F 2d 721 (9th Cir 1968) Electrical Workers IBEW Local 613 (M HE Con tracting) 227 NLRB 1954 at fn 1 (1977) Further in view of Respondents substantial and clear unlawful con duct regarding inter aria Rickard and Hardison in its unlawful terminations of them on March 20 1980 and in view of their umblemished records at all material times and the falseness and pretextual nature of Respond ent s reasons for terminating them both in 1980 and 1981 and considering Respondents continued union animus in rehiring Hardison in 1981 only if he withdraw his charges I regard the General Counsels prima facie case as not only not have been answered or rebutted see Wright Line supra but I also conclude in view of its palpably false defenses that Respondent has attempted to disguise its true motive for the terminations in 1980 and 1981 and that such attempts further support the General Counsels prima facie case Compare Limestone Apparel Corp 255 NLRB 722 (1981) with Lafayette Steel Erec tors Inc 260 NLRB 1220 (1982) I am also mindful of the Courts admonition to triers of fact that they need not be na ve in judging Respond ent s motives such as terminations where as here it at tacks the technical ability and personal conduct of em ployees with otherwise unblemished records whom it re peatedly rehired See Shattuck Denn Mining Corp v NLRB 362 F 2d 466 (9th Cir 1966) I further conclude and shall recommend to the Board therefore that the Regional Director for Region 11 was correct and supported by a preponderance of the credi ble evidence in setting aside the settlement agreement he entered into with Respondent on January 8 1981 be cause of Respondents serious continuing subsequent unfair labor practices in February and March 1981 The subsequent 1981 unfair labor practices particularly the March 26 1981 layoffs of Rickard and Hardison are closely related to each other and indeed are closely re lated to and flow directly from the March 20 1980 un lawful terminations which in large part were the sub stance of the settlement I thus reaffirm my order of De cember 30 1981 in which I concluded that the inclusion of the March 26 1981 Rickard termination to be closely related in time place and other circumstances to the Hardison layoff of the same date wherein the Handson layoff was the subject of the Charging Party s timely charge The inclusion in the complaint of Rickards un lawful termination was therefore proper See Wallace Corp v NLRB 323 US 248 (1944) NLRB v Central 29 Respondents postsettlement dealings with Hardison show continued union animus DAVIS ELECTRICAL CONSTRUCTORS Power & Light Co 425 F 2d 1318 1321 (5th Cir 1970) NLRB v Dinion Coil Co 201 F 2d 484 (2d Cir 1952) IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices found occurring in connec Lion with Respondents business have a close intimate and substantial relationship to trade traffic commerce among the several States and tend to lead to labor dis putes burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act V THE REMEDY Having found that Respondent engaged in various un lawful threats terminations and other similar conduct I shall recommend that the Board issue an Order proscrib ing such conduct confirming the setting aside of the Jan aury 8 1981 settlement agreement and revoking Judge Ries approval of the settlement and withdrawal of the complaint Having found that Respondent on March 20 1980 unlawfully terminated the employment of Elwood Har dison Gene Townsend and Charles P Rickard I shall recommend that in the future it not only cease and desist from such activity but in the case of Townsend Hardison and Rickard commencing with their unlawful terminations of March 20 1980 30 direct that Respondent offer them substantially equivalent positions of employ ment without loss of seniority or other rights and make these three employees whole for any wages or other ben efits they may have lost as a result of the discrimination against them for the period commencing March 20 1980 and ending with Respondents offers of unconditional re instatement in accordance with the formula set forth in F W Woolworth Co 90 NLRB 289 (1950) 31 Any inter vening and interim earnings including settlement moneys received from Respondent commencing March 20 1980 until respective offers of reinstatement by Respondent may be determined in compliance proceedings if neces sary I shall also recommend the rescinding and removing of the two unlawful February 24 1981 reprimands to Har dison and all the unlawful terminations of Hardison Rickard and Townsend In view of my conclusion that the Regional Directors setting aside the January 8 1981 settlement agreement was proper and in the absence of any evidence supporting the allegation of the unlawful termination on March 20 1980 of Jessie Paul Watkins for whose absence the General Counsel offered no expla nation I shall recommend to the Board that the allega tions of the amended complaint relating to the unlawful termination of Jessie Paul Watkins on March 20 1980 but dismissed as unproven 32 Respondent contends that 30 Any prior offers of reinstatement or waivers of such offers by the discnminatees here were products of the now set aside settlement and are rendered ineffectual thereby 31 See generally Isis Plumbing Co 138 NLRB 716 (1962) Florida Steel Corp 231 NLRB 651 (1977) 38 The General Counsel in its posttnal brief in the event the settle ment agreement as here is vacated moves to withdraw the allegation of the consolidated complaint relating to Watkins and to reinstate so much of the settlement agreement regarding Watkins The motion is denied as 135 in accordance with the settlement agreement here set aside it paid considerable sums of money to Watkins in settlement of his claim for backpay and has timely raised the question of the disposition of those funds the pay ment of which the General Counsel approved Respond ent suggests and I recommend issuing an order where the funds paid to Watkins be returned to it Of course if the Regional Director has not yet paid over the funds to Watkins he should return such moneys to Respondent Cf Steve Aloi Ford Inc 190 NLRB 661 (1971) If the moneys have been paid over Respondent desires return of the moneys regardless of the identity of the donor Although it is true that the courts have continually re minded the Board that it is a Board function to fashion remedies appropriate to the Boards statutory mission and function of remedying unfair labor practices I have found no authority and Respondent has failed to cite any authority where I should issue such an order More over it is reasonably certain that I have no personal ju risdiction over Watkins (he was not a Charging Party and never appeared in the prior hearing) to direct him to return the money and since the Regional Director ap parently does not have the money I am at a loss to un derstand how I can direct the Regional Director to return money which he does not have Nor does it appear that because the Regional Director may have in sisted as the price of his joining in the settlement that Respondent pay moneys as backpay to Watkins the Re gional Director should be held liable if on the Regional Directors application the Board sets aside the settle ment Even viewed from the point of view of a private equitable solution (since Respondent might view the Board s action respecting Watkins to be similar to a pn vate recision of the settlement agreement a position which however may not apply to statutory transactions of this type) it is not the Regional Director who has caused a breach of the agreement but Respondent Thus I perceive no legal or equitable basis for ordering return of the funds by the Regional Director Watkins has never appeared before me nor apparently in the pro ceeding before Judge Ries I therefore conclude that in the absence of precedent from the courts and the Board or the statute and in the absence of any personal ,juns diction over Watkins I believe myself to be without au thonty to direct the Regional Director to reimburse Re untimely The General Counsel offered no reasons either for Watkins ab sence as a witness or for the failure to prove his allegedly unlawful March 20 1980 termination Respondent pleaded its denial and was pre sumptively ready and willing to support its defense The General Coun sel s application to partially withdraw comes only after all the evidence was offered its failure to support its pleading and Respondent rested in face thereof Respondent is surely entitled to finality of adjudication on Watkins on such a record The General Counsels citation of Shurtenda Steaks Inc 161 NLRB 957 968 at fn 23 (1966) as authority for partial withdrawal of settlement is not to the contrary for there unlike here those elements of the partially set aside settlement agreement that the Re gional Director desired to save from litigation were left undisturbed apparently not included in the complaint and in any event were not of fered for litigation (other than for inclusion to show chronology) Here Watkins was at all times included in the complaint by the Regional Di rector and as far as Respondent knew the General Counsel would all through its case confront Respondent with evidence supporting the al leged unlawful Watkins termination The General Counsels motion comes too late and is denied 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent or to direct the repayment of moneys from an alleged discriminatee to whom Respondent has paid money under a settlement agreement subsequently set aside Whether Respondent has remedies in the state or Federal courts against Watkins are matters with which I need not deal On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed33 ORDER The Respondent Davis Electrical Constructors Inc Leland North Carolina its officers agents successors and assigns shall 1 Cease and desist from (a) Discharging laying off issuing unlawfully motivat ed reprimands to or otherwise discriminating or retaliat ing against employees because they engage in activities on behalf of North Carolina State Building 7 Construe tion Trades Council AFL-CIO (the Union) or any other labor organization or because they appear at hear ings of the National Labor Relations Board or because they engage in concerted activities protected in Section 7 of the Act (b) Creating the impression among its employees that their union activities are under surveillance threatening employees with discharge or that they would never work again for Respondent or any other employer be cause they engaged in activity on behalf of the Union or any other labor organization in order to discourage their support for the Union or any other labor organization (c) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full reinstatement to Gene Townsend Elwood Hardison and Charles P Rickard to their former jobs or if those jobs no longer exist to sub stantially equivalent positions of employment without prejudice to their seniority or other rights or privileges and make them whole with interest for any loss of earn ings that they may have suffered as a result of Respond ent s discrimination against them commencing March 20 1980 in accordance with the provisions of the remedy section above (b) Rescind its two written February 24 1981 repri mands to Elwood Hardison and remove from its records all memoranda of or reference thereto and remove from 33 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 put poses its files any references to the March 20 1980 and March 26 1981 terminations respectively of Gene Townsend Elwood Hardison and Charles P Rickard and notify each of them in writing that this has been done and that evidence of these unlawful terminations will not be used as a basis for future personnel actions against any of them (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 Leland North Carolina facility copies of the attached notice marked Appendix 34 Copies of the notice on forms provided by the Regional Director for Region 11 after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered defaced or covered by any other material 35 (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 Having found above that as alleged in Case 11-CA- 9806 Respondent by its March 26 1981 discharges of Hardison and Rickard violated Section 8(a)(3) and (4) of the Act and that such serious unlawful conduct was a repetition of similar unlawful Respondent conduct of March 20 1980 relating to the same employees and also violated the terms of a settlement agreement prohibiting Respondent from engaging in such conduct which agreement was entered into by Respondent and ap proved by Administrative Law Judge Bernard Ries on January 8 1981 it is my further Order that the settle ment agreement in Case 11-CA-9018 of January 8 1981 between the Regional Director Region 11 Re spondent and the Union approved by Judge Ries on Jan uary 8 1981 be set aside and that Judge Ries April 8 1981 order granting the General Counsels April 1 1981 motion to withdraw the complaint in Case 11-CA-9018 be similarly set aside 34 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 96 The fact that Respondent posted notices which in part covered the material here is not dispositive of a further obligation to post In fact the notices posted pursuant to the now set aside settlement agreement on Jan uary 8 1981 were not the same as those here nor did they cover the same unfair labor practices